Court Filings

The Appellate Division, First Department affirmed the denial of defendant 494 Eighth Avenue LLC’s summary judgment motion in a personal-injury sidewalk-trip case. Plaintiff said she tripped on an uneven sidewalk near a disassembled police barricade and testified the height differential was about one to one-and-a-half inches. The court held the defendant failed to show the alleged defect was trivial as a matter of law because the submitted photos and affidavit were inconclusive and the superintendent’s estimate was not a measured fact. Plaintiff’s testimony and possible violation of the NYC Administrative Code created questions of fact for trial.

The Appellate Division affirmed the Supreme Court's judgment after a nonjury trial in a lease dispute between Rose Group Park Avenue LLC (tenant) and Third Church Christ, Scientist of New York City (landlord). The court held that the lease's audit provisions limit the landlord to auditing only the prior lease year and bar audits seeking information from earlier years; directed certain payroll records be included in future audits; required return of the landlord's protested payment except for amounts the court found due from the tenant's affiliate; and upheld various declaratory and injunctive rulings concerning weekday use, occupancy rights, equipment use, alterations, signage, and auditorium setup. The court grounded its decision in the express lease language and prior appellate rulings interpreting those provisions.

The Appellate Division, First Department affirmed the trial court's grant of summary judgment holding the plaintiff liable on his Labor Law § 240(1) claim. The plaintiff testified he slipped on gravel and fell into an unguarded trench up to 10–12 feet deep alongside a building foundation; the trench had a makeshift pathway but no guardrail. The court found this testimony uncontradicted and held defendants failed to raise a triable issue of fact or justify the absence of a guardrail as necessary to the work. The judgment for plaintiff on liability was therefore upheld.

The Appellate Division, First Department affirmed a lower court order requiring petitioner Harold Peerenboom to reimburse Marvel Entertainment, LLC for reasonable production expenses incurred in responding to a subpoena. The court held that under New York's CPLR the party seeking discovery must pay a nonparty's reasonable production costs, and that such costs can include third-party vendor charges and attorneys' fees. The court also upheld the trial court's reductions to requested attorney rates and rejected petitioner's reliance on federal balancing tests and arguments that certain withholding-related costs were categorically unrecoverable.

The First Department unanimously affirmed a Bronx County Supreme Court order that required the Archdiocese of New York to produce certain documents (with specified redactions) and denied the Archdiocese's request to vacate that order or to obtain a protective order. The court held that evidence about the Archdiocese's patterns or practices in responding to allegations of clergy sexual abuse is discoverable because it could show a deliberate, repetitive practice of silencing accusations and therefore bear on the Archdiocese's negligence in the plaintiff's specific abuse claim. The appellate court rejected the Archdiocese's other arguments without discussion.

The Appellate Division, First Department affirmed the trial court's grant of summary judgment dismissing plaintiff Gordon Grubb's slip-and-fall complaint against the City of New York. The City showed it lacked prior written notice of the specific dangerous condition at the Madison Avenue and East 52nd Street crosswalk as required by the New York City Administrative Code. The court held that the records plaintiff cited did not amount to a written acknowledgment of the particular defect and that plaintiff's allegations did not raise triable issues or satisfy exceptions to the written-notice rule, so dismissal was appropriate.

The First Department affirmed the trial court's posttrial dismissal of Forrest Equities' complaint seeking coverage under a title insurance policy issued by Old Republic. Plaintiffs bought a Bronx building after an explosion and alleged the insurer should cover losses from vacate orders, relocation and emergency repair liens, and related litigation. The court held the policy did not provide coverage because the alleged enforcement actions and liens were not recorded in the public recording system required by the policy, and a lis pendens or vacate order alone did not make title unmarketable. Contract terms and exclusions controlled.

The Appellate Division, First Department affirmed the trial court's dismissal under CPLR 3211 of all claims in plaintiff Belina Anderson's complaint against multiple defendants. The court held Anderson's derivative claims failed because she did not plead a required pre-suit demand or futility, her individual fiduciary-duty and nuisance claims did not allege fraud, self-dealing, or unconscionability and were barred by the business judgment rule or arose from contract duties, and her declaratory-judgment and direct claims were speculative or lacked factual support. The court rejected Anderson's procedural challenge under CPLR 2219(a).

The Appellate Division, Third Department affirmed Supreme Court's denial of Gravity Ciders, Inc.'s pre-note-of-issue motions for summary judgment on three counterclaims. Gravity had asked the court to declare unenforceable a contract provision awarding Copeland Holdings a 5% ownership interest (plus another 5%) and to win on a conversion/replevin claim over a corporate book. The court found genuine factual disputes and legal issues (including whether Alcoholic Beverage Control Law provisions render the ownership-transfer clause void) that precluded summary judgment, and held return of the corporate book while the motion was pending defeated replevin but left conversion contested.

The Appellate Division affirmed the Supreme Court's grant of summary judgment dismissing the plaintiff's claims for specific performance, fraud, and tortious interference and denied the plaintiff's summary judgment motions. The court found that the seller (Gholis) showed it was ready, willing, and able to close by producing a title policy and that the buyer (Scott Randolph, LLC) defaulted by failing to appear at the time-of-the-essence closing, so Gholis may retain the down payment. The court also found Bushwack and Stellberger entitled to dismissal of the fraud and interference claims because key events occurred after the plaintiff sought to terminate the contract.

The Appellate Division, Second Department affirmed the Supreme Court's dismissal of Rosario's wrongful-death, fraud, and civil-conspiracy claims against the Town and Village of Mount Kisco. The plaintiff alleged the municipality failed to enforce housing regulations after her adult son died in a basement fire in an illegally converted apartment. The court held the complaint did not plead a special relationship between the municipality and decedent, did not identify a private right of action under the cited statutes, and failed to allege facts showing voluntary assumption of duty, affirmative control, justifiable reliance, or municipal participation in fraud or a conspiracy.

The Appellate Division affirmed a Supreme Court order granting summary judgment to Lakeview Auto Sales and Service, Inc., and to Herold Motor Cars, Inc. and John C. Herold, and denying RJK Auto Brokers' cross-motion. RJK had purchased nine vehicles from Dream Carz, which never obtained title; RJK then paid Herold Motor to obtain title to eight sold vehicles. The court held the moving defendants showed they had no contract or fraudulent conduct with RJK and that Dream Carz was not an entrustee or a merchant able to pass good title. RJK failed to raise triable issues of fact to avoid dismissal.

The Appellate Division affirmed the Supreme Court's grant of summary judgment dismissing the plaintiff's personal-injury claims against homeowner Kim Eichle and certain claims against third-party defendant Joseph Russo. The plaintiff alleged the infant was injured after being punched outside a New Year's Eve party at Eichle's home and asserted causes of action under New York's Dram Shop statutes and premises liability. The court held Eichle showed she neither served visibly intoxicated guests nor furnished alcohol to minors, and that the infant could not identify whether an icy sidewalk caused his fall, so the plaintiff failed to raise triable issues of fact.

The Appellate Division affirmed the Supreme Court's order (after reargument) granting the defendants' motion for summary judgment dismissing the plaintiffs' personal injury complaint. The court held the defendants had shown, as a matter of law, that the injured plaintiff did not sustain a serious injury under Insurance Law § 5102(d) and that the plaintiffs failed to raise a triable issue of causation because their expert did not rebut defendants' evidence that the injuries were preexisting and degenerative. The court affirmed on the alternative ground of lack of causation, though it noted some triable issues as to certain injury categories before resolving causation against the plaintiffs.

The Appellate Division affirmed the Supreme Court's order granting Lalezarian Properties, LLC's motion for summary judgment dismissing the plaintiff's amended complaint in a slip-and-fall personal injury action. The plaintiff, a security guard who slipped on ice in an underground garage, sued the alleged property owner. The court held that Lalezarian showed it did not own, manage, operate, or control the property and thus cannot be liable for the hazardous condition, and the plaintiff failed to raise a triable issue of fact. The court therefore properly granted the defendant's motion upon reargument.

The Appellate Division affirmed a Supreme Court order denying Margaret Liu’s motion to vacate a 2018 default judgment awarding Shau Chung Hu $1,480,636.50 in a hybrid proceeding seeking, among other relief, ownership and rescission relating to Lowbet Realty Corp. The Court held Liu’s CPLR 5015(a)(1) motion was untimely because it was made more than one year after service of the judgment, and that her claimed excuse—lack of personal service of the petition—failed because she had filed a notice of appearance and never challenged jurisdiction. The court also rejected relief under CPLR 317 because Liu had appeared in the action.

The Appellate Division affirmed a judgment awarding the claimant $15,508,705 as just compensation after the MTA condemned a Queens retail property for elevator renovations at the Flushing Main Street station. Following a nonjury trial, the trial court accepted the claimant's appraisal, which treated the property's highest and best use as one-story retail with development potential and relied on a nearby comparable sale to set a 2.5% capitalization rate. The court rejected the MTA's appraisal, which used a 6.5% cap rate based on national strip-center data and less comparable local transactions, finding the trial court's valuation was within the experts' ranges and adequately explained by the evidence.

The Appellate Division affirmed a lower court judgment that annulled the Town/Village of Harrison Planning Board's denial of BKP Harrison, LLC's application for amended site plan approval to replace a restaurant with a new restaurant and drive-through. The court held the board's denial was arbitrary and capricious because it relied on speculative traffic predictions, subjective doubts about the applicant honoring delivery-hour commitments, an improper interpretation of zoning (a power reserved to code enforcement and the zoning board of appeals), and a traffic study not shared with the applicant. The appellate court therefore ordered the planning board to grant the application.

The Appellate Division affirmed the lower court's refusal to award additional attorneys' fees to Smart Choice Medical, P.C. after Smart Choice filed its fee submission late and then sought permission to renew based on an argument that the court's briefing schedule postdated its deadline. The court held that Smart Choice's asserted “new” factual basis was actually available earlier and that it failed to offer a reasonable justification for not presenting that information earlier. Because the renewal standard under CPLR 2221(e) was not met, the trial court did not abuse its discretion in denying renewal or awarding additional fees.

The Appellate Division affirmed a Supreme Court judgment refusing to award additional attorneys' fees to Citimed Surgery Center, LLC. Citimed had been directed to file a motion for fees within 30 days after a May 11, 2023 order, but filed late and did not explain the delay. The court denied Citimed's motions as untimely, relying on precedent that court-ordered time frames must be respected to preserve the integrity of judicial orders. Because the second motion was filed beyond the 30-day period, the appellate court held the denial was proper and affirmed.

The Appellate Division affirmed the Supreme Court's judgment confirming a master arbitration award in favor of Bay Ridge Surgi-Center, LLC and refusing to award Bay Ridge additional attorney fees under 11 NYCRR 65-4.10(j)(4). Bay Ridge had sought relief after failing to appear for oral argument and moved to vacate that portion of the prior order and to obtain fees; the court denied the CPLR 5015(a)(1) motion and reargument request. The court held Bay Ridge could not use reargument to raise the fee claim for the first time and that Bay Ridge failed to submit the contemporaneous time records required to justify an award of additional fees.

The Appellate Division, Second Department affirmed the Supreme Court's order granting the plaintiff summary judgment on liability and dismissing the defendants' affirmative defense of comparative negligence in a rear-end collision case. The plaintiff showed he was slowing for a red light when the defendant's vehicle struck his car from behind, establishing a presumption of the defendant's negligence. The defendants' evidence that the plaintiff made a sudden stop and that their car skidded on wet pavement did not provide a sufficient nonnegligent explanation or show the skid was unavoidable, so no triable issue of fact was created.

The Appellate Division, Second Department affirmed a judgment dismissing the plaintiff Alejandro Perez Barranco's claims under Labor Law §§ 240(1) and 241(6) arising from a 2017 ladder fall. The court held the homeowner's exemption protected defendant Marina Fronshtein because the property was a one-family residence and she did not direct or control the work. The court also held defendant Marat Fronshtein was entitled to dismissal under the Workers' Compensation Law exclusivity provision because he and the injured plaintiff were coemployees acting within the scope of employment. The defendants' cross-appeal was rendered academic.

The Appellate Division, Second Department affirmed the Supreme Court's denial of the Reinholds' motion to vacate a March 23, 2022 order that granted JPMorgan Chase leave to enter a default judgment in a mortgage foreclosure. The Reinholds had not answered the foreclosure complaint and did not oppose the plaintiff's motion for default; they later sought relief under CPLR 5015(a) claiming law-office failure and that prior counsel had misled them. The court found their submissions inadequate to show a reasonable excuse for the defaults and therefore properly denied vacatur without reaching whether they had meritorious defenses.

The Appellate Division affirmed the Supreme Court’s grant of summary judgment to the Suffolk County Comptroller in an action converted from a CPLR article 78 proceeding. The court held that Suffolk County may assess hotel and motel occupancy taxes under chapter 523, article II of the Suffolk County Code on the plaintiff’s Fire Island rental property for stays of under 30 consecutive days. The court reasoned that the state enabling statute grants broad authority to impose an occupancy tax and that the statutory and local definitions of “hotel or motel” are sufficiently broad to include the plaintiff’s short-term rentals.

The Appellate Division, Second Department affirmed the trial court's March 7, 2022 order granting defendant Dr. Cassandra B. Simmons summary judgment and dismissing the medical malpractice and lack-of-informed-consent claims against her. The court concluded Simmons met her initial burden by submitting expert affirmation, records, and depositions showing no departure from the standard of care and that she disclosed risks, benefits, and alternatives. The plaintiff's opposing expert was deemed conclusory, speculative, and failed to address Simmons's expert's specific assertions, so no triable issue of fact was shown.

The Appellate Division affirmed a jury verdict and judgment awarding Lueray Dowdy damages for injuries from a slip-and-fall at the Brooklyn Hospital Center cafeteria. The jury found the hospital 60% at fault and the plaintiff 40% at fault, and awarded substantial sums for past and future pain and suffering and future medical expenses. The court rejected the hospital's posttrial challenges to the liability finding, fault apportionment, damages awards, and request for a collateral source hearing, but it modified the judgment to delete a provision directing payment of an attorney fee directly from the defendant to the plaintiff's counsel.

The Appellate Division, Second Department affirmed the Supreme Court's order denying the defendants' motion to vacate a May 25, 2023 judgment and an August 22, 2022 stipulation of settlement in favor of Diesel Funding, LLC. The dispute arose from a receivables-purchase agreement where the lender purchased future receivables for $850,000 and could debit daily sales until receiving $1,274,150; parties later agreed to a settlement that allowed the plaintiff to enter judgment on default. The court concluded the transaction was not a usurious loan because repayment was not absolutely fixed and the agreement included daily-percentage payments, reconciliation procedures, and no finite term or bankruptcy-triggered default.

The Appellate Division, Second Department affirmed the Supreme Court's order granting the City of New York's motion for summary judgment dismissing the plaintiff's personal-injury claim. The plaintiff said she tripped in a pothole in a crosswalk; the City showed it had no prior written notice of the specific defect under the City's Pothole Law. The court found the Big Apple map entries did not put the City on notice of a defect at the exact location of the fall, and the plaintiff did not raise a triable issue that the City created the defect or that an exception applied.

The Appellate Division affirmed a Supreme Court order denying Brooklyn 7 Realty, Inc.'s late renewal motion to reopen and vacate a 2019 foreclosure judgment. Brooklyn 7 sought leave in 2023 to renew its opposition to confirmation of a referee's report, to vacate the foreclosure and dismiss the complaint as time-barred, or to amend its answer to assert a statute-of-limitations defense. The court held the renewal motion was untimely because it was made long after the judgment was entered and after the deadline to appeal had passed, so the lower court properly denied the motion without reaching the parties' other arguments.