A court's sua ponte dismissal.

A court's power to dismiss a complaint, sua sponte, is to be used sparingly and only when extraordinary circumstances exist to warrant dismissal. In the absence of a jurisdictional defect, sua sponte dismissal is not warranted.

Countrywide Home Loans, Inc. v. Campbell, NY Slip Op 05749 (2d Dep't August 15, 2018)

Here is the decision.

Disclosure of expert witnesses.

A party's failure to disclose its experts pursuant to CPLR 3101(d)(1)(i) prior to the filing of a note of issue and certificate of readiness does not divest a court of the discretion to consider an affirmation or affidavit submitted by that party's experts in the context of a timely motion for summary judgment. The exercise of discretion is proper where the failure to disclose was neither intentional nor willful, and there is no prejudice to the other party.

Cobham v. 330 W. 34th SPE, LLC, NY Slip Op 05748 (2d Dep't August 15, 2018)

Here is the decision.

Judiciary Law § 487 and legal malpractice.

A claim alleging a violation of Judiciary Law § 487 is not duplicative of the cause of action alleging legal malpractice, as a violation of § 487 requires an intent to deceive, whereas a legal malpractice claim is based on negligent conduct.

Bill Birds, Inc. v. Stein Law Firm, P.C., NY Slip Op 05743 (2d Dep't August 15, 2018)

Here is the decision.

Opposing a summary judgment motion.

In opposing a plaintiff's prima facie showing on a summary judgment motion, a defendant's submission of an attorney's affirmation containing only general denials is insufficient to raise a triable issue of fact.

Bank of New York v. Aiello, NY Slip Op 056741 (2d Dep't August 15, 2018)

Here is the decision.

Brokers' commissions.

A real estate broker is entitled to recover a commission upon establishing that it (1) is duly licensed; (2) had a contract, express or implied, with the party to be charged with paying the commission; and (3) was the procuring cause of the transaction.

Gluck & Co. Realtors, LLC v. Burger King Corp., NY Slip Op 05668 (2d Dep't August 8 2018)

Here is the decision.

A subpoena duces tecum.

A subpoena duces tecum may not be used for the purposes of general discovery.  Its purpose is to compel the production of specific documents that are relevant and material to facts at issue in a pending judicial proceeding.

Bottini v. Bottini, NY Slip Op 05665 (2d Dep't August 8, 2018)

Here is the decision.

Statute of limitations as a defense.

The statute of limitations is an affirmative defense which is waived by a party unless it is raised either in a responsive pleading, or by motion prior to the submission of a responsive pleading, pursuant to CPLR 3211[e]. A court may not take judicial notice, sua sponte, of the applicability of a statute of limitations if that defense has not been raised.

352 Legion Funding Assoc. v. 348 Riverdale, LLC, NY Slip Op 05662 (2d Dep't August 8,2018)

Here is the decision.

The timing of summary judgment motions.

Any party may move for summary judgment in any action, after issue has been joined, pursuant to CPLR 3212[a].

Tiberg v. Strebel-Eichner, NY Slip Op 05714 (2d Dep't 2018)

Here is the decision.

Prior appeals.

An appellate court's resolution of an issue on a prior appeal constitutes the law of the case, and is binding on both the trial court and the appellate court. It forecloses re-examination of the question, absent a showing of subsequent evidence or change of law.

Massey v. Byrne, NY Slip Op 05731 (1st Dep't August 9, 2018)

Here is the decision.

A dismissal based on documentary evidence.

In order to succeed on a motion to dismiss based on documentary evidence, pursuant to CPLR 3211(a)(1), the evidence must utterly refute the plaintiff's factual allegations, conclusively establishing a defense as a matter of law.

Never Used Cars, LLC v. Nat Hoe Equities Corp., NY Slip Op 05682 (2d Dep't August 8, 2018)

Here is the decision.

The scope of a general release.

The meaning and coverage of the release necessarily depends upon the controversy being settled and  the purpose for which the release is given. While a broad general release will be given effect regardless of the parties' unexpressed intentions, the release may not be read to cover matters which the parties did not intend for it to cover.

Chiappone v. North Shore Univ. Hosp., NY Slip Op 05569 (2d Dep't August 1, 2018)

Here is the decision.