Discovery motions.

Pursuant to 22 NYCRR 202.7(a) and (c), the motion must be accompanied by an affirmation from moving counsel attesting to a good faith effort to resolve the issues raised in the motion, including the time, place, and nature of the consultation, as well as the issues discussed.

Bronstein v. Charm City Hous., LLC, NY Slip Op 06058 (2d Dep't August 7, 2019)

Here is the decision.

CPLR 3215(c).

"If the plaintiff fails to take proceedings for the entry of judgment within one year after the default, the court shall not enter judgment but shall dismiss the complaint as abandoned, without costs, upon its own initiative or on motion." The plaintiff's failure to timely seek a default may be excused on a showing of sufficient cause, which requires the plaintiff to proffer a reasonable excuse for the delay in timely moving for a default judgment and to demonstrate that the cause of action is potentially meritorious. The determination of whether an excuse is reasonable is committed to the sound discretion of the motion court.

Bank of Am., N.A. v. Santos, NY Slip Op 06056 (2d Dep't August 7, 2019)

Here is the decision.

CPLR 6301.

"A temporary restraining order may be granted pending a hearing for a preliminary injunction where it appears that immediate and irreparable injury, loss or damage will result unless the defendant is restrained before the hearing can be had." A party seeking a preliminary injunction must show a likelihood of success on the merits, the possibility of irreparable harm in the absence of a preliminary injunction, and the balance of the equities in its favor.

Wilder v. Fresenius Med. Care Holdings, Inc., NY Slip Op 06054 (1st Dep't August 6, 2019)

Here is the decision.

Dismissal on forum non conventions grounds.

In the court's granting the motion, New York law does not require that an alternative forum be available.

Primus Pac. Partners 1, LP v. Goldman Sachs Group, Inc., NY Slip Op 06052 (1st Dep't August 6, 2019)

Here is the decision.

The doctrine of equitable estoppel.

In order to successfully invoke the doctrine, the plaintiff must establish that the defendant's subsequent and specific actions kept the plaintiff from timely bringing suit.  Here, the plaintiff failed to raise a question of fact as to whether any purported fraudulent activity affirmatively induced it to refrain from commencing this action until the statute of limitations had expired. It is insufficient to merely allege that the defendant was in some way connected to a fraudulent scheme.

Jacobson Dev. Group, LLC v. Yews, Inc., NY Slip Op 05964 (2d Dep't July 31, 2019)

Here is the decision.

A day care center's duty of care.

A provider of day care services is under a duty to adequately supervise the children in its charge, and may be held liable for foreseeable injuries proximately related to the absence of adequate supervision. In stating a claim of negligent supervision,  the plaintiff is not required to exclude every other possible cause, but need only offer evidence from which proximate cause may be reasonably inferred. The burden of proof is satisfied if the possibility of another explanation for the event is sufficiently remote or technical to enable the jury to reach its verdict based not upon speculation, but upon the logical inferences to be drawn from the evidence.

A.D.G. v. Children's Ark Daycare Ctr., Inc., NY Slip Op 05959 (2d Dep't July 31, 2019)

Here is the decision.

Church property disputes.

A court may resolve the dispute when the case can be decided solely on the application of neutral principles of law, without reference to any religious principle. The court must apply objective, well-established principles of secular law, and may rely on internal church governing documents only to the extent that they do not require the interpretation of ecclesiastical doctrine.

Eltingville Lutheran Church v. Rimbo, NY Slip Op 05957 (2d Dep't July 31, 2019)

Here is the decision.

A referee's report.

The court should confirm the report if the findings are substantially supported by the record, and the report clearly defines the issues and resolves any issues of credibility.

Federal Natl. Mtge. Assoc. v. Puretz, NY Slip Op 05958 (2d Dep't July 31, 2019)

Here is the decision.

CPLR 3126.

A plaintiff may be precluded from offering any evidence of damages for willful and contumacious conduct that may be inferred from the repeated failure to respond to discovery demands or comply with court-ordered discovery, coupled with an inadequate explanation. On appeal, the standard is abuse of discretion.

Gafarova v. Yale Realty, LLC, NY Slip Op 05960 (2d Dep't July 31, 2019)

Here is the decision.

Contract construction and interpretation.

In the first instance, the question of whether the writing is ambiguous is for the trial court, and the construction and interpretation of an unambiguous contract is an issue of law. If the language is free from ambiguity, its meaning may be determined on the basis of the writing alone, without resort to extrinsic evidence.  The parties' intent must be found within the four corners of the contract, giving practical interpretation to the language employed and the parties' reasonable expectations.

Atlantic Shores Bldrs. & Devs., Inc. v. Federico, NY Slip Op 05950 (2d Dep't July 31, 2019)

Here is the decision.

Summary judgment in a medical malpractice action.

The defendant-doctor establishes prima facie entitlement to dismissal of the claim by showing that either (i) in treating the plaintiff there was no departure from good and accepted medical practice, or (ii) any departure was not the proximate cause of the plaintiff' injuries. Failure to make this showing requires denial of the motion, regardless of the sufficiency of the opposing papers.

Bahnyuk v. Reed, NY Slip Op 05839 (1st Dep't July 30, 2019)

Here is the decision.