Confirming a referee's report.

The report of a referee should be confirmed whenever the findings are substantially supported by the record, and the referee has clearly defined the issues and resolved matters of credibility. However, any computations based on the review of unidentified and unproduced business records are inadmissible hearsay and lack probative value.

Here, the referee's report was based upon her review of the note and mortgage, the summons and complaint, and an affidavit of merit and the amount due to the plaintiff. However, the affiant failed to produce the business records that the referee purportedly relied on in making her calculations.

Plaintiff's motion to confirm the referee's report and for a judgment of foreclosure and sale is denied.

Countrywide Home Loans Servicing, L.P. v. Weberman, NY Slip Op 04240 (2d Dep't August 21, 2024)

Here is the decision.

Motor vehicle accidents.

A defendant moving for summary judgment in a negligence action has the burden of establishing, prima facie, that he was not at fault in the happening of the accident. There can be more than one proximate cause of an accident, and a defendant moving for summary judgment must show that he is free from fault. Pursuant to Vehicle and Traffic Law § 1214, "[n]o person shall open the door of a motor vehicle on the side available to moving traffic unless and until it is reasonably safe to do so, and can be done without interfering with the movement of other traffic."

Angelastro v. Dyer, NY Slip Op 04237 (2d Dep't August 21, 2024)

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Extending time to commence an action.

CPLR 205(a) extends the time to commence an action after the termination of an earlier related action, where both actions involve the same transaction or occurrence or series of transactions or occurrences. However, the six-month grace period provided under CPLR 205(a) is not available where the previous action has been terminated by a voluntary discontinuance, a failure to obtain personal jurisdiction over the defendant, a dismissal of the complaint for neglect to prosecute the action, or a final judgment on the merits.  A discontinuance effectuated pursuant to either CPLR 3217(a) or (b) constitutes a voluntary discontinuance for purposes of CPLR 205(a). 

Castillo v. Suffolk Paving Corp., NY Slip Op 04239 (2d Dep't August 21, 2024)

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The doctrine of primary jurisdiction.

The doctrine of primary jurisdiction coordinates the relationship between courts and administrative agencies so that any divergence of opinion between them does not render ineffective the statutes with which both are concerned. The doctrine applies to the extent that the matter before the court is within the agency's specialized field. Under the doctrine, there is concurrent jurisdiction, but where an administrative agency has the necessary expertise to dispose of an issue, the court's involvement awaits resolution of the administrative proceeding.

Calle v. National Grid USA Serv. Co., Inc., NY Slip 04190 (2d Dep't August 14, 2024)

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Statute of frauds.

Under the statute of frauds, a contract for the sale of real property must be evidenced by a writing, pursuant to General Obligations Law § 5-703[1].  In order to satisfy the statute of frauds, the writing evidencing a contract must identify the parties, describe the subject matter, be signed by the party to be charged, and state all of the essential terms of the agreement. The writing must set forth the entire contract with reasonable certainty so that the substance thereof appears from the writing alone. If the contract is incomplete and it is necessary to resort to parol evidence to ascertain what was agreed to, the remedy of specific performance is not available.

Block 865 Lot 300, LLC v. Baione, NY Slip Op 04189 (2d Dep't August 14, 2024)

Here is the decision.

Judgments of foreclosure and sale.

In order to be entitled to a judgment of foreclosure and sale against a defendant, the plaintiff must first establish entitlement to judgment against that defendant via a summary judgment motion or a motion for leave to enter a default judgment, or at trial.

Bank of N.Y. Mellon v. Levinson, NY Slip Op 04188 (2d Dep't August 14, 2024)

Here is the decision.

Default judgments.

A plaintiff seeking leave to enter a default judgment under CPLR 3215 must file proof of: (1) service of the summons and complaint; (2) the facts constituting the claim; and (3) the defendant's default. In order to defeat a facially sufficient CPLR 3215 motion, the defendant must show either that there was no default or that it had a reasonable excuse for its delay and a potentially meritorious defense.

Austin 26 Dental Group, PLLC v. Sino Northeast Metals (U.S.A.), Inc., NY Slip Op 04187 (2d Dep't August 14, 2024)

Here is the decision.

Summary judgment In a slip-and-fall action.

Reference to general cleaning practices is insufficient to establish a lack of constructive notice in the absence of evidence regarding specific cleaning or inspection of the area where the accident occurred.

Ames v. Kimso Apts., Inc., NY Slip Op 04186 (2d Dep't August 14, 2024)

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Employment Law.

Under State law, "if a reasonable accommodation would permit the employee to perform the essential functions of the employee's position, the employee has a 'disability' within the meaning of the statute, and the employer cannot disadvantage the employee based on that disability." The State's definition of "disability" does not include reasonable accommodation, but City law requires that an employer "shall make reasonable accommodation to enable a person with a disability to satisfy the essential requisites of a job."  Under both State and City law, an employee's request for an accommodation is relevant to the determination of whether a reasonable accommodation can be made. In order to prevail on a motion for summary judgment, an employer must demonstrate that it engaged in a good faith interactive process that assessed the needs of the disabled individual and the reasonableness of the accommodation requested. Both the employer and the employee have a duty to engage in a good-faith dialogue once the interactive process begins, and an employee who is responsible for the breakdown of that interactive process may not recover for a failure to accommodate. City law affords broader protections than State law, and there is no accommodation that is per se excluded from the category of reasonable accommodation for purposes of the City statute.

Alvarez v. New York City Tr. Auth., NY Slip Op 04185 (2d Dep't August 14, 2024)

Here is the decision.

Good faith and fair dealing.

The implied covenant of good faith is a limited one, as courts will find an obligation of good faith only in aid and furtherance of other terms of the agreement. A party who asserts the claim bears a heavy burden of showing not merely that it would have been better or more sensible to include such a covenant within the terms of the agreement, but, rather, that the particular unexpressed promise sought to be enforced is in fact implicit in the agreement viewed as a whole.

DirecTV, LLC v. Nexstar Broadcasting, Inc., NY Slip Op 04225 (1st Dep't August 15, 2024)

Here is the decision.

Statute of limitations.

On a motion to dismiss a complaint pursuant to CPLR 3211(a)(5) on the ground of the statute of limitations, the defendant must establish, prima facie, that the time in which to commence the action has expired. If the showing is made, the burden shifts to the plaintiff to raise a question of fact as to whether the statute of limitations is tolled or is otherwise inapplicable.

An action to foreclose a mortgage is governed by a six-year statute of limitations, pursuant to CPLR 213[4].

Comito v. Z & N Enters. Corp., NY Slip Op 04124 (2d Dep't August 7, 2024)

Here is the decision.