| MUST READS (2 summaries) | |||
| NOTEWORTHY | IF YOU MUST READ | ||
 Nursing home’s CPLR §7503 motion to compel arbitration of personal injury and wrongful death claim brought by decedent’s estate, based on the arbitration clause in their admission agreement, denied where the admission agreement was signed by the decedent’s eventual administratrix as a “responsible party” and the nursing home failed to show the decedent had given the responsible party authority to sign the agreement by “words or conduct.” An agent cannot ‘by [her] own acts imbue [her]self with apparent authority.’ Lisi v New York Ctr. for Rehabilitation & Nursing ✉ |
| Motion to dismiss Child Victims Act case on statute of limitations by foster care home and its employee denied as the CVA revival window was extended 90-days to 11/12/21 by the Governor’s Covid tolls, making the action timely commenced where filed on that day. Bethea v Children’s Vil. ✉ |
| NOTEWORTHY (7 summaries) | |||
| MUST READS | IF YOU MUST READ | ||
| LLC’s motion to vacate $280,000 judgment entered after inquest from plaintiff’s unopposed default motion denied under CPLR §317 as it did not show a meritorious defense without proof of the last time the exterior steps plaintiff fell on were inspected, even though service on the Secretary of State was not personal service, and denied under CPLR §5015(a)(1) where it failed to provide a reasonable excuse for failing to update its address with the SOS. The Court can set aside excessive awards entered on default but defendant improperly raised the issue for the first time on appeal. Borohov v Queens Fresh Meadows, LLC ✉ |
| Plaintiff’s CPLR §306-b cross-motion to extend his time to serve defendants who had moved to Washington State providently granted on plaintiff’s proof of good cause by attempts at service and inquiries and document searches establishing diligent efforts at service and, in the interest of justice, by showing a meritorious action and lack of prejudice to defendants. Rivera v Michaelsen ✉ |
 General contractor and resident engineer in charge of safety denied summary judgment dismissing claim of pedestrian struck while crossing in the crosswalk against a do not walk signal where questions remained of whether they launched an instrumentality of harm by covering a 6’-high fence in an opaque green fabric that extended halfway across the street, giving the impression the entire road was blocked off, and no crossing guards or traffic agents were present as there was no construction on the weekend.Issues of fact remained on whether the accident was solely caused by the pedestrian proceeding against a traffic signal, whether it was reasonable for him to assume the street was closed, and whether his actions were so extraordinary, unforeseeable, and independent of defendants’ actions as to be superseding cause. NYC granted dismissal as it was entitled to qualified immunity and lacked notice of the visibility issue. Hyland v MFM Contr. Corp. ✉ |
| Motion to dismiss causes of action alleging tractor-trailer owner/lessor and company listed as owner on insurance form were affirmatively negligent denied as the Graves Amendment does not apply to allegations of lessors’ own negligence or criminal conduct. Cause of action for violation of Penal Law §120.20 (reckless endangerment) dismissed as that statute does not provide a private cause of action as it’s applicable to the general public, not to a specific class to which the plaintiff belonged, but its violation was relevant on whether the Graves Amendment applied. Declaratory judgment cause of action based on the lease agreement dismissed as plaintiff was not a party or third-party beneficiary to the agreement but affidavit by lessee’s VP was insufficient to show it alone was responsible to maintain the vehicle where plaintiff alleged lessor and lessee were the same company with shared offices and officers. Alfonso v Trucar Leasing Corp. ✉ |
| Single family homeowners’ motion to dismiss worker’s Labor Law §240(1) claim for fall from ladder under the 1-2 family exception granted as to 1-homeowner but denied as to the other where questions remained on whether that homeowner “directed or controlled the work” by erecting the unsecured ladder and directing the plaintiff to climb it to address a leak in an upstairs bathroom, whether the work was part of a larger renovation project, and whether he had authority to supervise and control the work for plaintiff’s Labor Law §200 claim. Jia Zhong Liu v Yung ✉ |
| Abutting landowner failed to meet burden of showing area where plaintiff fell met the administrative code §7-210 exception for bus stops. Lower court improvidently relied on administrative code §16-124.1 to define the area of a bus stop. Moonilal v Roman Catholic Church of St. Mary Gate of Heaven ✉ Comment: From the cases cited by the Court, administrative code §16-124.1 defines an area that is included within a “bus stop,” but does not establish the limits of a bus stop. |
| Law firm’s motion to dismiss legal malpractice claim on conclusive proof it informed plaintiff during their initial meeting that they would not represent her in any personal injury action in an unambiguous writing signed by plaintiff acknowledging they would only represent her in a workers comp matter, negating any continuous representation toll of the statute of limitations. Plaintiff’s counsel’s affirmation in opposition insufficient to raise an issue of fact without personal knowledge. Boukari v Schwartzberg Assoc., LLC ✉ |
| IF YOU MUST READ (1 summaries) | |||
| MUST READS | NOTEWORTHY | ||
| Law firm’s motion to dismiss client’s pro se breach of fiduciary duty claim granted where client’s signature on non-party funding agreement selling a portion of future proceeds of personal injury case conclusively established attorneys did not fail to warn him of the terms of the agreement and he could not show attorneys induced him into signing the agreement which was not usurious or unconscionable where contingent on a recovery. Breach of fiduciary duty claim based on allegation defendants “provided inadequate and ineffective representation” dismissed as sounding in unpled malpractice and plaintiff failed to show any misconduct where WCB finding injury was not accident related was based on the client’s pre-representation statements and defendants were still able to obtains a sizable settlement in the personal injury case. Fraud and conversion claims based on allegedly forged authorization to obtain WCB files dismissed as there was no misrepresentation to plaintiff and firm obtaining the files did not interfere with plaintiff’s ability to obtain them. Peterec-Tolino v Ciacci ✉ |