Court Filings

The Appellate Division, First Department affirmed a Supreme Court order that denied petitioner Elisabeth Kepley’s motion for leave to vacate a prior dismissal and denied her request to file additional papers. The court found that Kepley had previously abused the judicial process by bringing meritless litigation and that the proposed additional papers were irrelevant to the issues already decided. The First Department concluded the trial court properly exercised its discretion in refusing to permit further filings and denied the requested relief, while awarding costs to the respondents.

The Appellate Division, First Department affirmed the trial court's grant of summary judgment dismissing plaintiff Lisa Johnson's personal-injury complaint arising from a slip-and-fall at defendants' bowling alley. The court held the appeal was properly considered on the merits despite a procedural argument about appeal timing, but found no admissible evidence that any specific negligent condition (such as excessive oiling or waxing) caused the fall. Because causation could only be based on speculation, defendants met their burden and plaintiff failed to raise a triable issue of fact, so the dismissal was upheld.

The Appellate Division, First Department affirmed a Supreme Court order granting plaintiff Luis Gavilanes summary judgment on liability under Labor Law § 240(1) against defendant 919 Ground Lease LLC and others. The court held that the evidence shows defendants’ negligence in failing to provide proper fall protection — plaintiff was directed to climb cross-pipes without a harness tie-off and could not secure his harness — and that this was a proximate cause of his injury. The court also found defendant translations insufficiently certified but that factual disputes about ladder availability did not defeat liability.

The Appellate Division, First Department dismissed Jacob Adekola’s appeal from Supreme Court orders that granted Deutsche Bank’s motions for a default judgment, an order of reference, confirmation of a referee’s report, and a judgment of foreclosure and sale. The court held Adekola lacked standing to appeal because he failed to appear in the underlying action before filing his notice of appeal and therefore was not an aggrieved party. Because the appeal was dismissed for lack of standing, the panel did not reach the merits of Adekola’s arguments for relief.

The Appellate Division, First Department affirmed the denial of defendant Isabella Geriatric Center’s motion to dismiss a wrongful-death complaint brought after a resident contracted COVID-19 and died. The court held that defendant did not establish entitlement to immunity under the Emergency or Disaster Treatment Protection Act because, while two statutory prerequisites were satisfied (it was a health care facility providing COVID-related services), there were triable issues about whether the facility acted in good faith and whether its conduct rose to gross negligence. A post-death health department citation suggesting policy noncompliance was central to the decision.

The Appellate Division, First Department modified a lower-court order denying summary judgment to the landlord-defendants on their counterclaim for unpaid rent. The court held defendants were entitled to partial summary judgment that plaintiffs owe use-and-occupancy damages for the period October 2020 through March 2021, when plaintiffs returned to and lived in the apartment after elevator service was restored. The court otherwise affirmed the denial of summary judgment because disputed facts remain about defendants' alleged fraudulent inducement, whether plaintiffs were partially constructively evicted or unreasonably rejected alternative housing, and whether plaintiffs ratified the lease.

The Appellate Division, First Department reversed Supreme Court Bronx County's grant of summary judgment for New York City Health and Hospitals Corporation and reinstated Janice Campbell's medical malpractice complaint. The suit alleges surgeons lacerated the plaintiff's bladder during pelvic surgery. The appellate court found that plaintiff's expert affidavit raised a triable issue by opining surgeons deviated from the standard of care by failing to perform a retrograde bladder fill, which would have better delineated bladder margins given substantial pelvic adhesions. The court held this claim was included in the bill of particulars, so dismissal was improper.

The Appellate Division, First Department affirmed the foreclosure judgment entered for Bank of America against defendant Nicholas Sands. The court confirmed the Referee's report on the amount due because the bank submitted admissible business records and supporting filings, and Sands failed to produce proof of payments or raise evidentiary objections. The court found any failure to calendaring a post-report hearing did not prejudice Sands. It declined to review a separate challenge to service of a 90-day notice because Sands had abandoned that issue by not appealing the prior order or raising it below. The court also held the loan was not a protected "home loan."

The Appellate Division, First Department modified a Bronx Supreme Court order on a Labor Law § 241(6) claim. The court affirmed that plaintiff was entitled to partial summary judgment and defendants were not entitled to dismissal as to Industrial Code §§ 23-1.5(c)(3) and 23-9.2(a) because the grinder lacked a visible guard, the employer had notice, and the unguarded tool was necessary for the work. The court reversed as to Industrial Code § 23-1.5(c)(1), holding that provision is too vague to support liability under Labor Law § 241(6). The remainder of the lower court's order was affirmed.

The Appellate Division, First Department modified a Supreme Court order concerning deposition priority in a multi-plaintiff civil case. The court held that defendants who filed a pre-answer motion preserved their CPLR 3106(a) priority to take party depositions and plaintiffs needed court leave to depose defendants before the defendants' time to answer expired. The Appellate Division also ruled that defendants are entitled to depose each individual plaintiff (all 27), not just 10, because each sues in his individual capacity and the Commercial Division presumptive limit can be altered. Nonparty depositions and document discovery may proceed as scheduled.

The Appellate Division reviewed cross-motions for summary judgment about whether two individuals (Maloney and Stern) must indemnify plaintiffs under two paragraphs of limited joinders tied to a joint venture agreement (JVA). The court affirmed the lower court in holding that paragraph (ii) does not obligate Maloney and Stern to indemnify plaintiffs for first-party claims, but it vacated the declaration and denied summary judgment as to paragraph (i) because that paragraph is ambiguous about covering first-party claims. The court relied on Delaware law requiring a clear statement to extend indemnities to first-party claims and found disputed issues of contractual interpretation for paragraph (i).

The Appellate Division, Third Department affirmed Supreme Court's denial of defendant Riding High Dude Ranch's motion for summary judgment in a negligence suit by plaintiff Kerry Small. Small alleged a wrangler negligently pushed her leg over a horse while mounting in June 2021, causing knee injuries requiring surgery. The court found defendant met its initial burden showing Small assumed ordinary risks of horseback riding, but Small raised triable issues that the wrangler applied excessive force in a manner contrary to ranch training and protocols, which could have unreasonably increased the risk and caused her injury. Those factual disputes preclude summary judgment.

The Appellate Division, Third Department affirmed the Workers' Compensation Board's decision awarding benefits for an occupational disease to Samuel Davis, a brick mason who alleged repetitive-trauma injuries to both hands/wrists and knees. The Board credited treating physician Dr. Hecht's opinion linking Davis's long history of repetitive masonry duties to his diagnoses, despite conflicting opinions from the carrier's consultant. The court also upheld a $500 penalty the Board imposed (reduced from $2,500) against the carrier for unilaterally conducting a third deposition of Dr. Hecht while an administrative appeal was pending, finding that the deposition constituted a frivolous proceeding.

The Appellate Division, Third Department affirmed Supreme Court's denial of defendants' summary judgment motions in a wrongful-death/medical malpractice suit. Plaintiff sued after her husband presented to the emergency department with left-sided back pain and difficulty breathing and later died of a heart attack four days after discharge. Defendants submitted expert affidavits saying care met the standard and testing would not have changed the outcome; plaintiff produced expert opinions that an EKG and troponin should have been ordered and that timely testing/treatment would likely have prevented death. The court found disputed issues of fact on breach and causation and rejected defendants' claim plaintiff raised a new theory of recovery.

The Court of Appeals held that the federal Graves Amendment preempts New York Vehicle and Traffic Law § 388 (which imposed vicarious liability on rental companies) but does not preempt VTL § 370's independent requirement that rental car companies carry minimum amounts of insurance. The court concluded that Section 370, insofar as prior New York precedent read it to require rental companies to provide primary insurance coverage to renters up to the statutory minimums, is preempted by the Graves Amendment's prohibition on vicarious liability; however, the statute’s separate obligation that rental companies maintain specified minimum insurance limits survives. The Appellate Division's order affirming summary disposition was therefore affirmed.

The Appellate Division, Second Department affirmed the trial court's dismissal of plaintiff Myles Watson's employment-discrimination suit against the Metropolitan Transit Authority and NYCTA. The Supreme Court had dismissed the case based on a broad release the plaintiff signed after disciplinary proceedings, but the appellate court found factual disputes about the circumstances of signing and therefore rejected dismissal on that ground. The court nonetheless affirmed because the complaint failed to state a viable disability discrimination claim under New York State law and the evidence showed no available safe and reasonable accommodation under the New York City law; the hostile-work-environment claim was also inadequately pleaded.

The Appellate Division affirmed the trial court's order dismissing the bank's foreclosure complaint against 972 Gates Avenue, LLC as time-barred. Chase earlier commenced a foreclosure in August 2010 that accelerated the mortgage, starting the six-year statute of limitations. US Bank filed a new foreclosure in June 2022, over 11 years later, and did not plead or prove it was acting on behalf of Chase. Under the Foreclosure Abuse Prevention Act's CPLR 205-a, a successor/assignee cannot use the six-month savings rule unless it pleads and proves it acts for the original plaintiff, so US Bank was not entitled to tolling and the dismissal was proper.

The Appellate Division, Second Department affirmed a Supreme Court order and judgment of foreclosure and sale. The dispute concerned whether John Evelyn, who conveyed his interest in the mortgaged Brooklyn property in 2015, remained a necessary defendant in a 2008 mortgage foreclosure. The court held that because Evelyn had made an absolute conveyance and the plaintiff waived any deficiency claim against him, he was no longer a necessary party and could be dropped from the caption under CPLR 1003. The foreclosure and sale order was therefore affirmed as to Evelyn.

The Appellate Division, Second Department affirmed a Supreme Court order that denied the plaintiff’s renewed attempt to obtain summary judgment on liability against defendant Olson E. Van Rossum in a pedestrian-vehicle negligence case. The court held the plaintiff failed to show new facts with reasonable justification required for renewal, and on reargument the evidence still did not establish the plaintiff’s prima facie entitlement to judgment on liability. Because the plaintiff’s submissions did not prove the defendant breached a duty proximately causing her injuries, the court adhered to the original denial of summary judgment.

The Appellate Division, Second Department affirmed the Supreme Court's grant of summary judgment dismissing the plaintiffs' negligence complaint against the Town of North Hempstead. The plaintiffs sued after Yelena Sharbani allegedly tripped on an uneven sidewalk; the Town moved for summary judgment arguing it had no prior written notice of the defect. The court held the Town showed it lacked prior written notice and the plaintiffs failed to raise a triable issue that an exception (affirmative creation of the defect or special use) applied, so the Town was entitled to dismissal as a matter of law.

The Appellate Division, Second Department affirmed a Kings County judgment dismissing Rios's personal-injury complaint after a jury found the bus driver’s negligence was not a substantial factor in the crash and that the other vehicle’s driver was solely at fault. The plaintiff had moved to set aside the liability verdict as against the weight of the evidence, but the court denied that motion. The court also found any claimed errors in admitting certain defense expert testimony to be harmless because the outcome would not have changed.

The Appellate Division reversed a Supreme Court order that had granted the plaintiff summary judgment to quiet title and declared a 2004 administrator's deed void from the start. The plaintiff had sued after her mother, appointed administrator c.t.a., conveyed decedent's property to herself and the plaintiff as joint tenants, contrary to the decedent's will leaving the property to the plaintiff alone. The appellate court held that because the defendant had Surrogate's Court letters of administration c.t.a., her transfer was cloaked with apparent authority and therefore was voidable (subject to attack), not void ab initio. The cross-motion for summary judgment was denied.

The Appellate Division affirmed the dismissal of the plaintiff's negligence claim against Garden City Public Schools. The plaintiff sued under the Child Victims Act alleging the school negligently failed to prevent sexual abuse by a teacher. The school moved for summary judgment arguing it had no actual or constructive notice of the teacher's propensity for sexual abuse; the personnel file showed an earlier accusation was investigated and deemed unfounded. The court held the plaintiff's speculative allegations about bias or a cover-up did not create a triable issue of fact, so dismissal was proper.

The Appellate Division, Second Department affirmed the Supreme Court's denial of the plaintiff's motion for summary judgment on liability in a pedestrian-vehicle collision case. The plaintiff had sought a ruling that the driver was solely at fault and dismissal of the defendants' comparative negligence defense. The court held the plaintiff failed to meet her initial burden because her testimony did not eliminate triable issues about whether the driver could have seen her and whether she was at fault, so summary judgment was inappropriate.

The Appellate Division affirmed the Supreme Court's grant of summary judgment dismissing the plaintiff's negligence claims against defendant driver Christopher McCabe and his employer Brown's of Bellport, Inc. The plaintiff was in a left non-HOV lane and rear-ended a stopped tractor-trailer after McCabe swerved left into the HOV lane to avoid being struck from behind. The court held that McCabe’s evasive maneuver merely furnished the occasion for the collision and was not a proximate cause, and that the plaintiff failed to raise a triable issue of fact about McCabe’s negligence, so Brown's cannot be vicariously liable.

The Appellate Division dismissed John Evelyn's appeals from two Supreme Court orders in a mortgage foreclosure action because the right to a direct appeal ended when the court entered the final order and judgment of foreclosure and sale. The court granted the plaintiff's motion to dismiss these appeals, noting the issues raised are properly considered on the existing appeal from the final foreclosure judgment. The panel therefore dismissed the appeals without costs and treated related issues as preserved for review on the appeal from the order and judgment of foreclosure and sale.

The Appellate Division, Second Department affirmed a trial court order denying the plaintiff’s motion to strike the defendants’ answer, preclude their defenses, or resolve liability in the plaintiff’s favor for failure to produce court-ordered discovery in a personal injury action. The Supreme Court had found no clear showing that the defendants’ discovery lapses were willful and contumacious and instead extended a deadline for production. The appellate court held that the trial court did not abuse its broad discretion under disclosure and sanction rules and therefore affirmed the denial of the extreme sanctions sought by the plaintiff.

The Appellate Division, Second Department modified the Supreme Court order by granting the plaintiff's motion for summary judgment on liability in a personal-injury action where the plaintiff's electric bicycle collided with a vehicle while the driver attempted a left turn. The court concluded the driver was negligent as a matter of law for attempting the left turn when it could not be made with reasonable safety, and the defendants failed to raise a triable issue on liability. The court nevertheless affirmed the denial of the plaintiff's separate motion to dismiss the defendants' comparative negligence affirmative defense under CPLR 3211(b).

The Appellate Division reversed a Nassau County Supreme Court order and granted plaintiff Kelvin Goode leave to enter a default judgment against Bespoke Motor Group, LLC and Bentley Long Island, LLC in a breach of contract action. The court found service on an employee identified as a "service consultant" was proper under the rules for serving limited liability companies, the defendants failed to timely answer, and the plaintiff provided proof of service and the defendants' default. Because the defendants did not show a reasonable excuse for the default, the court granted default judgment without reaching the merits of any asserted defenses.

The Appellate Division, Second Department affirmed the Supreme Court's June 9, 2021 order denying both the defendant's motion for summary judgment dismissing a tenant's home health aide plaintiff's negligence complaint and the plaintiff's cross-motion for summary judgment on liability. The plaintiff was scalded by unexpectedly hot water while showering and alleged the landlord negligently maintained the building's hot-water/boiler system. The court held that competing evidence about prior hot-water incidents and the building's system created triable issues of fact about whether the defendant created or had notice of the dangerous condition, so neither side was entitled to judgment as a matter of law.