An age discrimination claim.

Defendant established its entitlement to summary judgment dismissing the complaint, as it articulated a legitimate, nondiscriminatory reason for firing plaintiff from his employment as a cleaner, namely, plaintiff's unsatisfactory work performance and his failure to improve despite multiple warning letters. Defendant submitted tenant complaints regarding the uncleanliness of the bathrooms and the warning letters it issued to plaintiff about his poor performance,  supporting its claim that plaintiff was terminated not because of his age, but because of his failure to adequately perform his duties. As further evidence that plaintiff was not fired because of his age, defendant showed that it did not fill plaintiff's position after he was terminated but outsourced his job duties to a third-party cleaning service. 

In opposition, plaintiff presented no evidence tending to show that the tenant complaints or the warning letters were inaccurate, much less designed to supply a pretext for age discrimination. Nor does plaintiff show how defendant's failure to give him vacation wages before his vacation was to begin supports a finding of pretext under the circumstances. In addition, plaintiff's assertion that defendant failed to sufficiently warn him about his unsatisfactory job performance is undermined by his own testimony that he saw the letter that suspended him for three days based on tenant complaints regarding his job performance.

The two isolated comments made by plaintiff's supervisor about his intent to retire were merely stray remarks that, without more, do not constitute evidence of discrimination. Even if these remarks suggested bias, defendant established that the supervisor was not involved in the decision to terminate plaintiff's employment, and had no power to hire, fire, or discipline him.

Ahmed v. West 46th St. Mgt., LLC, NY Slip Op 06417 (1st Dep't November 15, 2022)

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Personal jurisdiction over an out-of-state defendant.

Pursuant to CPLR 302(a)(3), a plaintiff's economic injury in New York is insufficient to confer jurisdiction. The situs of commercial injury is where the original critical events associated with the action or dispute took place, not where any financial loss or damages occurred.

HH Trinity Apex Invs. LLC v. Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan, L.L.P., NY Slip Op 06321 (1st Dep't November 10, 2022)

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Photograph evidence in a slip-and-fall action.

In considering defendant's summary judgment motion, the court properly disregarded the Google Maps photos that defendant submitted in its reply papers. The photos purportedly were taken months before the accident. and there was no affidavit by a person with knowledge of the photos' origins, or knowledge of whether they fairly and accurately portrayed the condition of the sidewalk at the time of accident.

Mercedes v. 680 SN LLC, NY Slip Op 06323 (1st Dep't November 10, 2022)

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Appellate practice.

The doctrine of the law of the case does not bind an appellate court to a trial court ruling.

Morgan Stanley Private Bank, N.A. v. Ceccarelli, NY Slip Op 06324 (1st Dep't November 10, 2022)

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Service of process.

CPLR 308(2) authorizes "[p]ersonal service upon a natural person . . . by delivering the summons within the state to a person of suitable age and discretion at the actual place of business . . . of the person to be served and . . . by mailing the summons by first class mail to the person to be served at his or her actual place of business." CPLR 308(2) provides that "proof of such service shall be filed with the clerk of the court designated in the summons within twenty days of either such delivery or mailing, whichever is effected later." The failure to file timely proof of service is not a jurisdictional defect, but, instead, is a procedural irregularity that may be cured by motion or sua sponte by the court in its discretion pursuant to CPLR 2004.

Chunyin Li v. Joffe, NY Slip Op 06227 (2d Dep't November 9, 2022)

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Newly discovered evidence.

In arguing for vacatur of the order, defendant cannot rely on New York City Council resolutions and the Administrative Code as potentially newly discovered evidence. These legislative materials are matters of public record, and, as such, they are not considered new evidence which could not have been discovered with due diligence. 

NYCTL 1998-2 Trust v. Bethelite Community Baptist Church, NY Slip Op 06325 (1st Dep't November 10, 2022)

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Court holiday.

Appellate practice.

The Supreme Court properly characterized the plaintiff's motion, denominated as one to vacate an order, as seeking leave to reargue its opposition to the defendant's prior motion. Because no appeal lies from an order denying reargument, the appeal must be dismissed.

Bank of Am., N.A. v. Davis, NY Slip Op 06226 (2d Dep't November 9, 2022)

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A petition to annul a City agency's determination.

The failure to set forth an adequate statement of the factual basis for the determination forecloses the possibility of fair judicial review and requires that the matter be remanded to the agency.

Matter of Reynolds v. New York City Fire Pension Fund, NY Slip Op 06330 (1st Dep't November 10, 2022)

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The availability of injunctive relief.

Where a plaintiff's substantive claim is dismissed, the cause of action for injunctive relief has no legal basis, and will be dismissed.

300 Wadsworth LLC v. New York State Div. of Hous. & Community Renewal, NY Slip Op 06311 (1st Dep't November 10, 2022)

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A claim for breach of contact.

The essential elements of a cause of action to recover damages for breach of contract are the existence of a contract, the plaintiff's performance pursuant to the contract, the defendant's breach of its contractual obligations, and damages resulting from the breach.  Here, in support of their motion for summary judgment dismissing the claim, the defendants submitted transcripts of the parties' deposition testimony, which provided differing accounts regarding the existence of an agreement, and emails which had been exchanged between the parties and their attorneys. The defendants' evidence failed to eliminate triable issues of fact as to whether the parties had agreed upon the agreement's major terms and whether the parties began to perform the agreement. As such, they failed to establish, prima facie, that the parties had not reached an agreement. Since the defendants failed to establish their prima facie entitlement to judgment as a matter of law, their motion is denied wihout considering the sufficiency of the plaintiffs' opposition.

223 Sam, LLC v. 223 15th St., LLC, NY Slip Op 06224 (2d Dep't November 9, 2022)

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