General releases.

A general release is governed by principles of contract law. A valid release which is clear and unambiguous on its face and which is knowingly and voluntarily entered into will be enforced as a private agreement between parties, and bars an action on any cause of action arising prior to its execution. A general release bar will not only cover any and all claims between the releasor and releasees which had, by that time the release is executed, actually ripened into litigation, but to all such issues which might then have been adjudicated as a result of pre-existing controversies.

Like any contract, a release must be read as a whole in order to determine its purpose and intent, and extrinsic evidence of the parties' intent may be considered only if the agreement is ambiguous. A contract is unambiguous if the language it uses has a definite and precise meaning, unattended by danger of misconception in the purport of the agreement itself, and concerning which there is no reasonable basis for a difference of opinion. An ambiguity never arises out of what is not written, but only out of what was written so blindly and imperfectly that its meaning is doubtful.

Smith v. City of New York, NY Slip Op 01198 (1st Dep't March 4, 2025)

Here is the decision.

Appellate practice.

As a general rule, the Appellate Division does not consider any issue raised on a subsequent appeal that was raised, or could have been raised, in an earlier appeal that was dismissed for lack of prosecution, although it has the inherent jurisdiction to do so. 

Deutsche Natl. Bank Trust Co. v. Light, NY Slip Op 01078 (2d Dep't February 26, 2025)

Here is the decision.

Discovery sanctions.

Pursuant to CPLR 3126, a court may impose sanctions, including the striking of a pleading or preclusion of evidence, where a party refuses to obey an order for disclosure or willfully fails to disclose information which the court finds ought to have been disclosed. Before a court invokes the drastic remedy of precluding a party from offering evidence at trial, there must be a clear showing that the failure to comply with court-ordered discovery was willful and contumacious. Here, the plaintiff failed to make a clear showing that the defendants willfully or contumaciously disobeyed a discovery order or acted in bad faith. Accordingly, the Supreme Court providently exercised its discretion by denying that branch of the plaintiff's motion which was pursuant to CPLR 3126 to strike the defendants' answer.

Borchkhadze v. McMahon, NY Slip Op 01077 (2d Dep't February 26, 2025)

Here is the decision.

Contract law.

Conduct amounting to breach of contract may also constitute breach of fiduciary duty.

Dar v. SAJ Transp. Northeast., LLC, 01165 (1st Dep't February 27, 2025)

Here is the decision.

Easements.

An easement appurtenant occurs when the easement is created in writing, subscribed by the creator, and burdens the servient estate for the benefit of the dominant estate. Once created, the easement runs with the land and can only be extinguished by abandonment, conveyance, condemnation, or adverse possession.

Bikes by Olga, LLC v. People of the State of New York, NY Slip Op 01076 (2d Dep't February 26, 2025)

Here is the decision.

Motion practice.

A court of original jurisdiction may entertain a motion for leave to renew based on an alleged change in or clarification of the law, even after an appellate court has rendered a decision on the prior order.

435 Cent. Park W. Tenant Assn. v. Park Front Apts., LLC, NY Slip Op 01157 (1st Dep't February 27, 2025)

Here is the decision.

Challenging a university's academic decisions.

The motion court found that plaintiff's causes of action, while pled as discrimination and contract claims, essentially seek to challenge defendants' academic decisions and testing procedures, and, therefore, should have been brought in an article 78 proceeding. It is undisputed that plaintiff was granted testing accommodations for her disabilities, and defendants' decision to deny her requests for additional accommodations and opportunities to re-take exams constitutes an academic decision, as granting her request would require relaxing defendants' academic standards and policies. Since plaintiff failed to bring the action within the four-month statute of limitations period, her claims are time-barred. For that reason, the motion court declined to convert plaintiff's plenary action into an article 78 proceeding.

Rutkoski v. New York Univ., NY Slip Op 01181 (1st Dep't February 27, 2025)

Here is the decision.

Appellate practice.

No appeal lies from an order denying leave to reargue.

Bayview Loan Servicing, LLC v. Kelly, NY Slip Op 01075 (2d Dep't February 26, 2025)

Here is the decision.

Leave to amend.

The Appellate Division held that insofar as Non-Linear Trading Co. v Braddis Assoc., 243 AD2d 107, held that a motion for leave to amend a pleading must be supported by an affidavit of merit, it should not be followed.

State Farm Mut. Auto. Ins. Co. v. Clarke, NY Slip Op 01184 (1st Dep't February 27, 2025)

Here is the decision.

The death of a party.

Generally, the death of a party divests a court of jurisdiction to act and automatically stays proceedings pending the substitution of a personal representative for the decedent. In most instances, a personal representative appointed by the Surrogate's Court should be substituted in the action to represent the decedent's estate. However, where a property owner dies intestate, title to real property is automatically vested in the decedent's distributees.

2911 Mgt., LLC v. Davis, NY Slip Op 01074 (2d Dep't February 26, 2025)

Here is the decision.

Premises liability.

Plaintiff made a prima facie showing that defendant violated its duty under Administrative Code of the City of New York § 7-210 to maintain the sidewalk abutting its property in a reasonably safe condition by failing to repair the raised sidewalk flag on which plaintiff tripped. Plaintiff established that defendant had actual knowledge of the defective condition by submitting the deposition testimony of defendant's superintendent, who testified that he first saw the height differential between the sidewalk flags about two years before plaintiff fell.

Plaintiff established the location of the raised sidewalk flag by drawing a circle on the photograph marked at his deposition and testifying that the circle encompassed the exact location where he fell. Plaintiff also established that the height of the raised sidewalk constituted a tripping hazard by submitting his investigator's affidavit that he went to the accident location about 12 days after plaintiff fell and took photographs that fairly and accurately show the sidewalk's condition. Those photographs show that there was a vertical grade differential between the adjacent sidewalk flags of at least one inch, which constitutes a tripping hazard under Administrative Code § 19-152(a)(4) and the Rules of City of New York Department of Transportation (34 RCNY) § 2-09(f)(5)(iv). In opposition, defendant submitted no evidence that raised a triable issue of fact as to where plaintiff fell or regarding the height differential between the sidewalk flags.

Plaintiff's motion for summary judgment on the issue of liability is granted.

Volquez v. Bronx 2120 Crotona Ave., L.P., NY Slip Op 01072 (1st Dep't February 25, 2025)

Here is the decision.