Reasonable damages.

The amount of damages to be awarded to a plaintiff for personal injuries is a question for the jury, and the jury's determination will not be disturbed unless the award deviates materially from what is reasonable compensation. In determining whether a verdict constitutes reasonable compensation, courts will look to prior awards in cases involving similar injuries, as well as the nature and extent of the plaintiff's injuries.

Arcos v. Bar-Zvi, NY Slip Op 04139 (2d Dept July 22, 2020)

Here is the decision.

An employer's liability for an independent contractor.

The general rule is that the employer is not liable for an independent contractor's negligent acts. Determining whether there is an employer-employee relationship depends on whether the purported employer exercises control over the results produced, or the means used to achieve the results, and control over the means is the more important consideration. Factors relevant in assessing control include whether the worker worked at his or her own convenience; was free to engage in other employment; received fringe benefits;  was on the employer's payroll; and was on a fixed schedule. Minimal or incidental control over the work product, absent the employer's direct supervision or input over the means used to complete the work, is insufficient to establish an employer-employee relationship.

Athenas v. Simon Prop. Group, L.P., NY Slip Op 04140 (2d Dep't July 22, 2020)

Here is the decision.

Tortious interference with business relations.

In order to prevail on the cause of action, a plaintiff must prove that it had a business relationship with a third party; that the defendant knew of that relationship, and intentionally interfered with it; that the defendant's actions were motivated solely by malice, or otherwise constituted illegal means; and that the defendant's interference caused injury to the plaintiff's relationship with the third party.

684 E. 22nd Realty Co., LLC v. Sheehan, NY Slip Op 04136 (2d Dep't July 22, 2020)

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SCPA 2205(2)(g).

A plaintiff does not have standing to compel an accounting in the absence of any evidence that, at any point, the defendant was a fiduciary.

8-48 Catalpa Realty Corp. v S & S Med. Assoc., P.C.. NY Slip Op 04135 (2d Dep't July 22, 2020)

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The doctrine of res judicata.

The doctrine encompasses both claim preclusion and issue preclusion. Claim preclusion bars claims that were, or should have been, advanced in a previous suit involving the same parties. Issue preclusion, or collateral estoppel, bars the relitigation of issues that were argued and decided in the first suit, but it does not bar entire causes of action. Unlike claim preclusion, issue preclusion can be raised by someone who was not a party or in privity in the first suit. Issue preclusion applies after the final adjudication of an identical issue that was actually litigated, and necessarily decided, in the first suit, and the issue was necessary to support a valid and final judgment on the merits.

Rojas v. Romanoff, NY Slip Op 04237 (1st Dep't July 23, 2020)

Here is the decision.

The client's right to arbitrate.

The failure to provide timely notice of the right to arbitrate is a bar to a subsequent plenary action for legal fees.

Filemyr v. Hall, NY Slip Op 04238 (1st Dep't July 23, 2020)

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Appellate practice.

Where the order was not predicated on a motion made on notice, it is not appealable as of right, pursuant to CPLR 5701[a][2]. However, in the interest of justice, the Court may deem the notice of appeal as a request for leave to appeal, and grant leave for a determination on the merits, pursuant to CPLR 5701[c].

Matter of Gliklad v. Deripaska, NY Slip Op 04233 (1st Dep't July 23, 2020)

Here is the decision.

Appellate practice.

While, generally, an argument may not be raised for the first time on appeal, the Court may review a question of law presented for the first time on appeal if it appears on the face of the record and could not have been avoided if it had been raised at the proper juncture. Here, there is case law supporting the proposition that a plaintiff moving for summary judgment on the issue of liability on a cause of action alleging a violation of section BC 3309.4 must show, prima facie, that the plaintiff granted the requisite license for the defendant to access, inspect, and protect its property. As the defendants, in effect, are challenging the plaintiffs' legal showing on their summary judgment motion, as opposed to challenging the sufficiency of the plaintiffs' evidence in support of their motion, the defendants' argument is reviewable, even though it is raised for the first time on appeal.

211-12 N. Blvd. Corp. v. LIC Contr., Inc., NY Slip Op 04134

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Orders of preclusion.

Where plaintiff violated the court's conditional order of preclusion by failing to produce a witness for a scheduled deposition, and failed to demonstrate either a reasonable excuse for the failure to comply or a meritorious claim, the court may deny plaintiff's motion to allow the deposition to proceed. The court is not required to find that the failure to comply was willful.

Center Sheet Metal v. Cannon Design, Inc., NY Slip Op 04010 (1st Dep't July 15, 2020)

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22 NYCRR 202.27.

In order to vacate a dismissal based on being unprepared to proceed with trial at a calendar call, a plaintiff must demonstrate both a reasonable excuse for the default and a potentially meritorious cause of action. The determination of whether an excuse is reasonable lies within the sound discretion of the court.

Bank of Am., N.A. v. Wood, NY Slip Op 03885 (2d Dep't July 16, 2020)

Here is the decision.

Easements.

Where a written instrument granting the easement is unambiguous, the parties' intent must be found within the four corners of the document, and the question is one of law, which may be decided on a motion for summary judgment.  Once an easement for ingress and egress is definitively located by grant, its location cannot be changed unilaterally by either party, and the servient landowner is not free to unilaterally designate the particular path that may be used for ingress and egress.  Where an easement is granted in general terms, without limitation, and the right-of-way is described by its metes and bounds, the dominant estate is entitled to a right-of-way over the entirety of the described area.

Acosta v. Vincenti, NY Slip Op 03882 (2d Dep't July 16, 2020)

Here is the decision.