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State Courts -
New York - January 23, 2007
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Conserve Elec., Inc. v. Tulger Contr. Corp., 2006-03225, (Index No. 5725/00),
SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT, January 23, 2007, Decided
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Overview: In a breach of contract action, the trial court properly denied a contractor's motion to vacate its default pursuant to CPLR 5015(a)(1) because the contractor's attorney's failure to appear on the scheduled trial dates demonstrated a pattern of willful neglect, which was not justified by his claim that he had no record of these dates.
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Cyber Land, Inc. v. Chon Prop. Corp., 2005-09429, (Index Nos. 12812/04, 350567/04),
SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT, January 23, 2007, Decided
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Overview: Summary judgment for sellers, buyer, and attorney dismissing suit filed by tenant seeking specific performance of right of first refusal was affirmed as tenant materially breached lease by failing to timely pay rent, notice of default was not required, and breach was not in good faith, de minimus, or promptly cured as tenant did not pay all rent.
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DeCarlo v. Village of Dobbs Ferry, 2006-05058, (Index No. 5437/04),
SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT, January 23, 2007, Decided
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Overview: Plaintiff failed to raise a triable issue of fact as to whether, at the time of her accident, a door was defective and defendants had actual or constructive notice of this condition; a defective condition was not established merely because the door closed with sufficient force to sever the tip of plaintiff's finger.
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DeVita v. Macy's E., Inc., 2006-01323, (Index No. 24540/01), (Index No. 27056/98),
SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT, January 23, 2007, Decided
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Overview: In related personal injury actions, the trial court properly denied defendants' motions to enforce a purported settlement agreement because the e-mail confirmation, either alone or along with an e-mail response, between the parties' attorneys did not constitute a writing sufficient to bring the purported settlement into the scope of CPLR 2104.
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Doria v. Cassamajor, 2005-03628, (Index No. 44854/03),
SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT, January 23, 2007, Decided
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Overview: In a personal injury action, summary judgment was properly granted for the owners and the drivers of a taxicab and a dump truck because any purported negligence on the part of the two drivers, who were stopped on the roadway after colliding, was not a proximate cause of the collision between plaintiff's vehicle and another driver's vehicle.
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Friel v. Papa, 2006-05685, (Index No. 4285/04),
SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT, January 23, 2007, Decided
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Overview: Trial court erred in granting plaintiffs' motion to strike defendant's answer to an action based on spoliation and CPLR 3126, as plaintiffs failed to show that the evidence on a computer hard drive which was destroyed was central to their case, that they were prejudiced by its destruction, or that defendants' conduct was willful or contumacious.
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