Powers of attorney.

Unless the power of attorney document expressly authorizes gifts, an attorney-in-fact, in exercising his fiduciary responsibilities to the principal, may not make a gift to himself or to a third-party of the money or property which is the subject of the agency relationship. Such a gift carries with it a presumption of impropriety and self-dealing, and the presumption can be overcome only with the clearest showing of the principal's intention to make the gift. Any gifts of the principal's assets must be in the best interest of the principal.

Choudhari v. Choudhari, NY Slip Op 05245 (2d Dep't October 18, 2023)

Here is the decision.

Appellate practice.

The Appellate Division declines to reach the arguments of defendants New York City Transit Authority and Metropolitan Transit Authority regarding their cross-motion pursuant to CPLR 3211(a) to dismiss the complaint as asserted against them. The cross-motion was not addressed in the order appealed from and, therefore, remains pending and undecided. The appeal is dismissed.

Braithwaite v. City of New York, NY Slip Op 05244 (2d Dep't October 18, 2023)

Here is the decision.

Medical malpractice.

The elements of a medical malpractice cause of action are a departure from accepted community standards of practice, and that the departure was a proximate cause of the plaintiff's injuries. On a motion for summary judgment, the defendant has the burden of establishing the absence of any departure from good and accepted medical practice or that, if there were a departure, the plaintiff was not injured thereby. If the defendant meets its burden, the plaintiff, in opposition, must submit evidentiary facts or materials to rebut the defendant's prima facie showing, but only as to those elements on which the defendant met the prima facie burden.

Blank v. Adiyody, NY Slip Op 05243 (2d Dep't October 18, 2023)

Here is the decision.

Motions to Dismiss.

A party may move for judgment dismissing one or more causes of action asserted against it on the ground that the cause of action may not be maintained because of the statute of limitations, pursuant to CPLR 3211(a)(5). The moving defendant must establish, prima facie, that the time in which to commence the action has expired. If the defendant makes the requisite showing, the burden shifts to the plaintiff to raise a question of fact as to whether the statute of limitations was tolled or otherwise inapplicable, or whether the plaintiff actually commenced the action within the applicable limitations period.

Bank of N.Y. Mellon v. DeMatteis, NY Slip Op (2d Dep't October 18, 2023)

Here is the decision.

Motions to dismiss.

On a motion to dismiss for failure to state a cause of action pursuant to CPLR 3211(a)(7), the court must afford the complaint a liberal construction, accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory.

5 Star Holdings NY, LLC v. Kohl's Dept. Store, Inc.,  NY Slip Op 05240 (2d Dep't October 18, 2023)

Here is the decision.

The doctrine of res ipsa loquitur.

Res ipsa loquitur is not a separate theory of liability but merely a common-sense application of the probative value of circumstantial evidence. The doctrine permits an inference of negligence, but does not prove it. 

Lowman v. Consolidated Edison of N.Y., Inc., NY Slip Op 05226 (1st Dep't October 17, 2023)

Here is the decision.

Labor Law claims.

Plaintiff sustained injuries while working at a construction site where defendants were constructing a two-family home. The Labor Law §§ 240(1) and 241(6) claims as against defendants were dismissed, as defendants fell within the homeowner's exemption set forth in the statutes, which exempts from liability "owners of one and two-family dwellings who contract for but do not direct or control the work." Defendants made a prima facie showing of their entitlement to the exemption by demonstrating that they intended to reside in one of the units, and, therefore, that the property was not to be used solely for commercial purposes, and that they did not direct or control plaintiff's work. Plaintiff failed to raise a triable issue of fact in opposition.

In the absence of evidence that defendants exercised supervisory control over the injury-producing work, the Labor Law § 200 and common-law negligence claims were also dismissed.

Nava v. Franklin, NY Slip Op 05191 (1st Dep't October 12, 2023)

Here is the decision.

Slips and falls.

Defendant is not entitled to dismissal of the complaint on the basis that the alleged defect on the sidewalk abutting its property was not the cause of plaintiff's fall. Plaintiff consistently and unequivocally testified that she tripped on an uneven sidewalk abutting 1577 Third Avenue and that she immediately realized that a raised sidewalk flag extending about an inch above its adjoining flag had caused her fall. At her deposition, plaintiff pinpointed the alleged defect by indicating its location in photographs of the sidewalk, which depicted a raised sidewalk flag.

Defendant also is not entitled to summary judgment on the basis that the alleged defect was trivial. In light of plaintiff's testimony, photos of the accident location, and the conflicting expert affidavits on the height differential of the sidewalk flags, there are triable issues of fact as to whether the defect was trivial. In particular, while defendant's expert testified that the height difference between the two sidewalk flags was one quarter of an inch and was trivial, plaintiff's expert concluded that the height difference was three quarters of an inch and presented a tripping hazard. Moreover, defendant waived any objection to plaintiff's expert's affidavit as untimely or speculative by not objecting to its being considered on the motion.

Shapiro v. 89th St. Dev. Co. LLC, NY 05211 (1st Dep't October 12, 2023)

Here is the decision.

Service of process.

Service must be made in strict compliance with the statutory methods for effecting personal service upon a natural person' pursuant to CPLR 308, Here, the plaintiff purportedly served the defendant by the affix and mail method of CPLR 308(4). Service pursuant to CPLR 308(4) may be used only where service pursuant to CPLR 308(1) or (2) cannot be made with due diligence. The due diligence requirement of CPLR 308(4) must be strictly observed, given the reduced likelihood that a summons served pursuant to that section will be received.

Here, according to his affidavit of service, the process server made prior attempts at personal delivery of the summons and complaint at the defendant's residence at different times of the day between Thursday, December 21, 2017 and Friday, December 29, 2017. Although one of those times was on December 23, 2017, a Saturday, the attempts at service occurred at the height of the holiday season, when the defendant may have had reasons not to be home. The process server noted that holiday lights were on in the windows of the residence on December 23, and that both. floors of the residence were illuminated on December 26. Nevertheless, considering the holiday season, the process server's observations were not a sufficient basis to believe that the defendant was evading service. Moreover, the process server stated that he was unable to speak to a neighbor regarding the defendant's whereabouts.

In addition, in the year prior to the commencement of this action, in applying for a loan modification, the defendant was required to disclose his employer and address of employment to the plaintiff. The plaintiff did not try to serve the defendant at his place of employment. The plaintiff failed to demonstrate that the process server acted with due diligence before resorting to affix and mail service pursuant to CPLR 308(4).

Bank of America, N.A. v. Fischer, NY Slip Op 05112 (2d Dep't October 11, 2023)

Here is the decision.

Indemnification.

In order to establish a claim for common-law indemnification, a party must prove that it was not negligent and that the proposed indemnitor was responsible for negligence that contributed to the accident. 

Balanta v. Guo Lin Wu, NY Slip Op 05111 (2d Dep't October 11, 2023)

Here is the decision.

Appellate practice.

The Appellate Division may consider a legal argument that was not raised before the trial court if it appears on the face of the record and could not have been avoided if it had been raised.

Wagman v. Morgan Stanley Children's Hosp. of N.Y. Presbyt., NY Slip Op 05214 (1st Dep't October 12, 2023)

Here is the decision.