Default judgments.

On a motion pursuant to CPLR 3215 for leave to enter a default judgment, a plaintiff is required to submit proof of service of the summons and complaint, proof of the facts constituting the claim, and proof of the defendant's default in answering or appearing. Then, the defendant must show either that there was no default or that there was a reasonable excuse for the delay and a potentially meritorious defense. The determination as to whether an excuse is reasonable is committed to the sound discretion of the motion court. Ongoing settlement negotiations may constitute a reasonable excuse for a default.

Arnav  Indus. Inc. Profit Sharing Plan & Trust v. 3449-3461 Hamilton Ft, LLC, NY Slip Op 02052 (2d Dep't April 9, 2025)

Here is the decision.

Hearsay: Party Admissions.

As an exception to the hearsay rule, a party admission is admissible against that party as evidence of the matter asserted, regardless of whether the statement was against the party's interest when the statement was made.

Vivar v. Citigroup Tech., Inc., NY Slip Op 02051 (1st Dep't April 8, 2025)

Here is the decision.

Sua sponte dismissal.

The court's power to dismiss a complaint sua sponte is to be exercised sparingly and only in extraordinary circumstances.

Wood v. Heni, NY Slip Op 01972 (2d Dep't April 2, 2025)

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Premises liability.

Although landlords and permittees have a common-law duty to minimize foreseeable dangers on their property, including the criminal acts of third-parties, they are not the insurers of a visitor's safety. In cases arising out of injuries sustained on another's property, the scope of the possessor's duty is defined by past experience and the likelihood of third-person conduct which is likely to endanger the visitor's safety. A public establishment's owner has no duty to protect patrons against a harm that is unforeseeable and unexpected.

L.D. v. Brooklyn Kings Plaza, LLC, NY Slip Op 01906 (2d Dep't April 2, 2025)

Here is the decision.

Medical Malpractice: Experts' Affidavits.

The affidavit of plaintiff's out-of-state expert may be considered notwithstanding the lack of a certificate of conformity as required by CPLR 2309. The lack of the certificate is a mere irregularity, not a fatal defect.

Smalls v. Finegold, NY Slip Op 02024 (1st Dep't April 3, 2025)

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Proof of service.

Failure to file proof of service is a procedural irregularity, not a jurisdictional defect, and it may be cured by motion or sua sponte by the court. The court may grant this relief only upon such terms as may be just, and only where there is no prejudice to a substantial right of a party. The court may not make such relief retroactive, to the prejudice of the defendant, by putting the defendant in default as of a date prior to the order. A court may not give effect to a default judgment that, prior to the curing of the irregularity, was a nullity requiring vacatur.

Cherkassky v. Goykman, NY Slip Op 01904 (2d Dep't April 2, 2025)

Here is the decision.

Amending a pleading.

The motion court denied defendant's request to amend its answer, made for the first time as a footnote in its motion reply papers. A court may grant a request to amend a pleading without a formal motion where the amendment is not futile and will not result in prejudice to any party. The court found prejudice because the amendment would be made at the end of discovery.

Bloom v. Helmsley Spear, LLC, NY Slip Op 01999 (1st Dep't April 3, 2025)

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Mandamus.

The extraordinary remedy of mandamus will lie only to compel the performance of a ministerial act, and only where there is a clear legal right to the relief sought.

Matter of Lubrano v. Clarke, NY Slip Op 01809 (2d Dep't March 26, 2025)

Here is the decision.

Spoliation.

The court exercised its discretion and declined to strike the City's answer and to direct an adverse inference charge since the missing video was neither the sole source of information about the incident in which plaintiff was injured nor the sole means by which she can establish her case. Moreover, plaintiff did not show that the missing video was intentionally destroyed or that records beneficial to the City's defense were selectively preserved. Plaintiff's testimony and the conflicting accounts of the incident in the reports prepared by Department of Corrections employees are sufficient to enable the jury to properly evaluate credibility. Nevertheless, permitting the City's witnesses to testify to the contents of the missing tape would provide it with a tactical advantage from the spoliation. Accordingly, defendant is precluded from presenting evidence concerning the contents of the missing tape.

Tittel v. City of New York, NY Slip Op 09102 (1st Dep't April 1, 2025)

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Appellate practice.

Supreme Court properly denied defendant's motion to vacate the order granting a default judgment. Defendant appealed the order granting the motion for a default judgment, but then abandoned that appeal. Therefore, the order was deemed affirmed, and Supreme Court was bound by the doctrine of the law of the case. Furthermore, issues that could have been raised on the abandoned appeal may not be reviewed on this appeal.

D. Penguin Bros. Ltd. v. City Natl. Bank, NY Slip Op 01863 (1st Dep't March 27, 2025)

Here is the decision.

Employment Law.

A cause of action for negligent hiring, retention, or supervision requires a showing that the employer knew or should have known of the employee's propensity for the conduct which caused the injury and that there is a connection between the negligence and the injury. The employer's negligence lies in its having placed the employee in a position to cause foreseeable harm which most probably would not have occurred had the employer taken reasonable care in making decisions regarding the employee's hiring, retention, or supervision.

Schlesinger v. Sisters of the Order of St. Dominic, NY Slip Op 01831 (2d Dep't March 26, 2025)

Here is the decision.