Extinguished agreements.

Where the parties clearly express their intention that a subsequent agreement supersedes a prior agreement, the remedy for breach is to sue on the subsequent agreement.

Kefalas v. Valiotis, NY Slip Op 04750 (2d Dep't August 25, 2021)

Here is the decision.

Tomorrow's issue: The enforcement of settlements.

Appellate practice.

The plaintiff moved, pursuant to CPLR 3126, to strike the defendant's answer and for leave to enter a default judgment based on willful noncompliance with court-ordered discovery. The defendant opposed the motion. In an order dated February 22, 2016, the Supreme Court granted the plaintiff's motion. In March 2018, the defendant moved for leave to reargue its opposition to the plaintiff's motion and, alternatively, pursuant to CPLR 5015(a)(1), to vacate the February 22, 2016 order. In the order appealed from, the court denied the defendant's motion. The Appellate Division affirmed that the Supreme Court properly denied the motion to vacate the February 22, 2016 order. Since the plaintiff's motion to strike the answer and for leave to enter a default judgment was opposed on the merits, the order granting that motion was appealable, and the defendant's motion to vacate it was procedurally improper.

Hinds v. 33rd St. Astoria, LLC, NY Slip Op 04749 (2d Dep't August 25, 2021)

Here is the decision.

Tomorrow's issue: Extinguished agreements.

Defective sidewalks.

Administrative Code of the City of New York § 7-210, which became effective September 14, 2003, shifts tort liability for injuries arising from a defective sidewalk from the City to the abutting property owner. Section 7-210[a] directs landowners to maintain their abutting sidewalks in a "reasonably safe condition." However, this provision does not apply to one-, two- or three-family residential property that is  owner-occupied, and used exclusively as a residence.

Blaise v. Guleria, NY Slip Op 04745 (2d Dep't August 25, 2021)

Here is the decision.

Tomorrow's issue: Appellate practice.

Vacating a default in answering.

A motion to vacate on the basis of excusable default, pursuant to CPLR 5015[a][1], and to compel the plaintiff to accept an untimely answer, pursuant to CPLR 3012[d], requires a reasonable excuse for the default and a potentially meritorious defense. Law office failure may be a reasonable excuse, but mere neglect is not. Here, it is not reasonable that defendant did not appoint an attorney until several months after the default.

Biskra, Inc. v. U.S. Bank N.A., NY Slip Op 04744 (2d Dep't August 25, 2021)

Here is the decision.

Tomorrow's issue: Defective sidewalks.

Summary judgment in a slip-and-fall case.

The plaintiff's inability to identify the cause of the fall is fatal to the cause of action, because a finding that the defendant's negligence, if any, proximately caused the plaintiff's injuries would be based on speculation.

Hughes v. Tower Crestwood 2015, LLC, NY Slip Op 04705 (2d Dep't August 19, 2021)

Here is the decision.

Tomorrow's issue: Vacating a default in answering.

Notices of claim.

A timely and sufficient notice of claim is a condition precedent to asserting a tort claim against a municipality or public benefit corporation. Pursuant to General Municipal Law § 50-e, the claimant must state the nature of the claim and the time when, the place where, and the manner in which it arose. The purpose of the statutory requirement is to afford the public corporation an adequate opportunity to investigate the circumstances surrounding the claim and to explore its merits while information is still readily available.

Harrison v. City of New York, NY Slip Op 04703 (2d Dep't August 18, 2021)

Here is the decision.

Tomorrow's issue: Summary judgment in a slip-and-fall case.

CPLR 3211(a).

A defendant can only move to dismiss a cause of action where that cause of action is actually asserted against the moving defendant.

Grocery Leasing Corp v. P&C Merrick Realty Co., LLC, NY Slip Op 04702 (2d Dep't August 18, 2021)

Here is the decision.

Tomorrow's issue: Notices of claim.

Appellate practice.

The Appellate Division will not consider plaintiff's arguments that are outside the scope of the notice of appeal and amended notice of appeal, pursuant to CPLR 5515[1].

Grocery Leasing Corp. v. P & C Merrick Realty Co, LLC, NY Slip Op 04701 (2d Dep't August 18, 2021)

Here is the decision.

Tomorrow's issue: CPLR 3211(a).

CPLR 3215(c).

"]f the plaintiff fails to take proceedings for the entry of judgment within one year after the default, the court shall not enter judgment but shall dismiss the complaint as abandoned . . . unless sufficient cause is shown why the complaint should not be dismissed." In order to avoid dismissal, it is not necessary for a plaintiff to actually obtain a default judgment within one year of the default, or to specifically seek the entry of a judgment within one year. As long as'proceedings are undertaken, and these proceedings manifest an intent not to abandon the case but to seek a judgment, the case should not be subject to dismissal. Furthermore, where an action is subject to a mandatory settlement conference, pursuant to CPLR 3408, the one-year deadline is tolled while settlement conferences are pending.

Deutsche Natl. Bank Trust Co. v. Attard, NY Slip Op 04698 (2d Dep't August 18, 2021)

Here is the decision.

Tomorrow's issue: Appellate practice.

Failure to appear at a scheduled conference.

Pursuant to 22 NYCRR 202.27, upon a party's failure to appear at a scheduled conference, the court may note the default on the record, and, where the plaintiff appears but the defendant does not, enter an order granting judgment by default or order an inquest, or, where the defendant appears but the plaintiff does not, dismiss the action. In order to vacate a default in appearing at a conference, the defaulting party must demonstrate both a reasonable excuse for the default and a potentially meritorious cause of action or defense to the action. The determination of whether an excuse is reasonable lies within the sound discretion of the trial court.

126 Henry St., Inc. v. Cater, NY Slip Op 04629 (2d Dep't August 18 2021)

Here is the decision.

Tomorrow's issue: CPLR 3215(c).

CPLR 3211(a)(7).

On a motion to dismiss the complaint for failure to state a claim, the standard is whether the pleading states a cause of action. When the movant offers evidence, the motion must be denied unless the evidence establishes conclusively that the plaintiff has no cause of action.

Francisco v. Kiara Foods, Inc., NY Slip Op 04662 (2d Dep't August 11, 2021)

Here is the decision.

Tomorrow's issue: Failure to appear at a scheduled conference.