Category: Uncategorized

5015 in the Second Department

The Second Department is usually way more strict than the First (“not particular compelling”).  This seems to be a change.

P&H Painting, Inc. v Flintlock Constr. Servs., LLC, 2020 NY Slip Op 00603 [2d Dept. 2020]

Although the general rule is that in order to vacate a default, a party must demonstrate a reasonable excuse for the default and a potentially meritorious defense (see CPLR 5015[a][1]), the sufficiency of an excuse is not as significant where the default is only a short period (see Vallario v 25 W. 24th St. Flatiron, LLC, 149 AD3d 791, 792-793; Chakmakian v Maroney, 78 AD3d 1103, 1104).

2221 Renewal in the interest of justice

Ross v Lewis, 2020 NY Slip Op 01461 [1st Dept. 2020]

The duty of a landowner to take reasonable measures to remedy a dangerous condition caused by a storm is suspended while the storm is in progress, and does not commence until a reasonable time after the storm has ended (see Solazzo v New York City Tr. Auth., 6 NY3d 734, 735 [2005]).

It was undisputed that the snow continued to fall, albeit in trace amounts, until 2:30 a.m. at the earliest, five and a half hours before the accident. The weather records and defendant’s expert’s affidavit, once presented in admissible form, indicated that it was snowing in more than trace amounts until 11 p.m. on January 23, 2016, and in trace amounts thereafter. Thus, a reasonable period of time to correct the snow and ice condition on the steps had not yet elapsed at the time of the accident, given the blizzard conditions.

Plaintiff asserts that the weather data was not in admissible form on defendant’s initial motion. However, the court in its discretion may grant renewal in the interest of justice, upon facts known to the movant at the time of the original motion so as not to “defeat substantive fairness” (see Rancho Santa Fe Assn. v Dolan-King, 36 AD3d 460, 461 [1st Dept 2007]). Here, the court improvidently exercised its discretion upon renewal in failing to consider the weather data, in that the charts were identical to the data submitted in connection with the initial motion and plaintiff did not challenge the information or authenticity of the data contained in the charts.

Plaintiff contends that, regardless of whether defendant was required to remove the snow at an earlier time, his efforts, as depicted in a photograph, exacerbated the dangerous condition.However, the photograph is too unclear to raise a triable issue of fact as to this speculative claim.

Admissions

MIC Gen. Ins. Corp. v Campbell, 2020 NY Slip Op 01465 [1st Dept. 2020]

Plaintiff demonstrated, via defendant’s admission in a statement to its investigator and the investigator’s inspection of the insured premises, that defendant did not reside at the premises and was therefore not covered by the policy (see Almonte v CastlePoint Ins. Co., 140 AD3d 658 [1st Dept 2016]).

Choice of Law and Choice of Forum

Favourite Ltd. v Cico, 2020 NY Slip Op 01463 [1st Dept 2020]

Contrary to defendants’ contention, New York courts have subject matter jurisdiction over the amended complaint, which was supposed to contain only derivative claims (see Matter of Raharney Capital, LLC v Capital Stack LLC, 138 AD3d 83, 87 [1st Dept 2016]). The fact that the operating agreement of Upper East Side Suites, LLC (the Company) chooses Delaware law is of no moment, since “choice of law and choice of forum are altogether separate matters” (Bank of Tokyo-Mitsubishi, Ltd. v Kvaerner, 243 AD2d 1, 5 [1st Dept 1998]). Furthermore, section 18-1001 of the Delaware Limited Liability Company Act (the Act), which provides that “a member or an assignee of a limited liability company interest may bring an action in the Court of Chancery,” is permissive, not mandatory (see generally Estate of Calderwood v ACE Group Intl. LLC, 157 AD3d 190, 195 [1st Dept 2017], lv dismissed 31 NY3d 1111 [2018]).

3124 Cell records

Dani v 551 W. 21st St. Owner LLC, 2020 NY Slip Op 01456 [1st Dept. 2020]

The court providently exercised its discretion in denying defendants’ motion (see generally Veras Inv. Partners, LLC v Akin Gump Strauss Hauer & Feld LLP, 52 AD3d 370, 373 [1st Dept 2008]). Defendants at this point have failed to satisfy the “threshold requirement” that the request was reasonably calculated to yield information that is “material and necessary” (Forman v Henkin, 30 NY3d 656, 661 [2018] [internal quotation marks omitted]). The affidavits submitted in support of the motion simply stated that plaintiff was holding his cell phone in his hand prior to the trip and fall accident, and that the cell phone was found near his body after the accident. As such, they were too speculative to warrant disclosure of plaintiff’s cell phone records (see Gough v Panorama Windows, Ltd., 133 AD3d 526 [1st Dept 2015]).

Not aggrieved

Naula v Utokilen, LLC, 2020 NY Slip Op 01355 [2d Dept 2020]

We dismiss Adapt’s appeal because it is not aggrieved by the portions of the order that it appeals from, which constituted dicta (see Waldorf v Waldorf, 117 AD3d 1035). A party is not aggrieved merely because it “disagrees with the particular findings, rationale or the opinion supporting” a judgment or order (Parochial Bus Sys. v Board of Educ. of City of N.Y., 60 NY2d 539, 545). That a decision “may contain language or reasoning which . . . parties deem adverse to their interests does not furnish them with a basis for standing to take an appeal” (Pennsylvania Gen. Ins. Co. v Austin Powder Co., 68 NY2d 465, 472-473). Thus, we do not address the merits of the parties’ contentions on the issue of whether the WCB’s findings have collateral estoppel effect on Adapt’s position that it was not involved with the subject construction project.

Bare denial of receipt

Federal Natl. Mtge. Assn. v Davis, 2020 NY Slip Op 01327 [2d Dept 2020]

The defendant Joseph Davis’s bare denial of receipt of the notice was similarly insufficient to demonstrate his entitlement to summary judgment dismissing the complaint insofar as asserted against him (see Citibank, N.A. v Conti-Scheurer, 172 AD3d at 23-24).

Default in opposing a motion

Singh v Sukhu, 2020 NY Slip Op 01105 [2d Dept. 2020]

A party seeking to vacate an order entered upon his or her default in opposing a motion must demonstrate both a reasonable excuse for the default and a potentially meritorious opposition to the motion (see CPLR 5015[a][1]; Credit Bur. of N.Y., Inc. v Rapid Realty 95, Inc., 137 AD3d 841, 841; J & J Alarcon Realty Corp. v Plantains Rest., Inc., 123 AD3d 886, 887; Bhuiyan v New York City Health & Hosps. Corp., 120 AD3d 1284, 1284; Schenk v Staten Is. Univ. Hosp., 108 AD3d 661, 662). “The determination of what constitutes a reasonable excuse lies within the trial court’s discretion” (Stewart v Berger, 137 AD3d 1103, 1105 [internal quotation marks omitted]). Law office failure may qualify as a reasonable excuse for a party’s default if the claim of such failure is supported by a detailed and credible explanation of the default (see Strunk v Revenge Cab Corp., 98 AD3d 1029, 1030.

Here, the plaintiff demonstrated a reasonable excuse for her default. The affirmation of her attorney explained that the plaintiff’s default was reasonable and inadvertent due to the fact that the attorney’s “calender service” never communicated the briefing schedule to counsel’s office and that counsel first learned of the August 19, 2016, date when it attempted to file the opposition papers only six days later (see Bank of N.Y. Mellon v Faragalla, 174 AD3d 677). The plaintiff also demonstrated a potentially meritorious defense to the DNJC defendants’ motion based upon the argument that the DNJC defendants were vicariously liable for Lopez’s negligence (see Galasso, Langione & Botter, LLP v Galasso, 176 AD3d 1176). Accordingly, the Supreme Court providently exercised its discretion in granting that branch of the plaintiff’s motion which was to vacate the prior order entered upon her default (see Advanced Remodeling of Long Is., Inc. v Monahan, 175 AD3d 1361; Credit Bur. of N.Y., Inc. v Rapid Realty 95, Inc., 137 AD3d at 841; Rocco v Family Foot Ctr., 94 AD3d 1077, 1079; Simpson v Tommy Hilfiger U.S.A., Inc., 48 AD3d 389, 392).

 

3211(a)(7) standard

Leader v Steinway, Inc., 2020 NY Slip Op 01153 [2d Dept. 2020]

 “[T]he sole criterion [on such a motion] is whether the pleading states a cause of action, and if from its four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law a motion for dismissal will fail” (Guggenheimer v Ginzburg, 43 NY2d 268, 275). The complaint must be construed liberally, the factual allegations deemed to be true, and the nonmoving party granted the benefit of every possible favorable inference (see Leon v Martinez, 84 NY2d at 87-88).