Choice of law.

New York courts routinely apply the law of the place where the evidence in question will be introduced at trial or the location of the discovery proceeding when deciding privilege issues. However, there are circumstances where the court may undertake an interest-balancing analysis to decide whether another state's law should govern the evidentiary privilege.

Ambac Assur. Corp. v. Nomura Credit & Capital, Inc., NY Slip Op 06574 (1st Dep't September 17, 2019)

Here is the decision.

CPLR 5015(a).

In order to vacate a default in appearing at a scheduled court conference, a party must demonstrate both a reasonable excuse for the default and a potentially meritorious defense or cause of action. Here, the defendant's excuse is law office failure, as her attorney neglected to note the adjourned conference date in his calendar.  This is a reasonable excuse, particularly considering that the default was an isolated incident, the defendant promptly moved to vacate the order entered upon the default, and the plaintiffs were not prejudiced.

Advanced Remodeling of Long Is., Inc. v. Monahan, NY Slip Op 06579 (2d Dep't September 18, 2019)

Here is the decision.

CPLR 3212(b).

Where the deponent or affiant does not have personal knwlege of the facts, as required by the statute, the motion for summary judgment will be denied.

Saunders v. J.P.Z. Realty, LLC, NY Slip Op 06573 (1st Dep't September 17, 2019)

Here is the decision.

CPLR 5015(a).

Pursuant to the statute, a party may move to vacate a judgment or order on the grounds of, among other things, newly discovered evidence or fraud, misrepresentation, or other misconduct of an adverse party. However, the statute does not provide an exhaustive list of the grounds for vacatur, and a court may vacate its own judgment for sufficient reason and in the interest of substantial justice.

City of New York v. OTR Media Group, Inc., NY Slip Op 06572 (1st Dep't September 17, 2019)

Here is the decision.

Appellate practice.

The Appellate Division has discretion to consider arguments that first were raised in the defendant's reply on its motion to dismiss if they involve questions of law that can be resolved on the existing record.

HSBC Bank USA v. Merrill Lynch Mtge. Lending, Inc., NY Slip Op 06567 (1st Dep't September 17, 2019)

Here is the decision.

Duplicative fraudulent inducement claims.

A fraudulent inducement claim will be dismissed as duplicative of a breach of contract claim if the defendant establishes, as a matter of law, that the damages sought in connection with the fraud claim are the same as those sought in connection with the contract claim.

Ambac Assur. Corp. v. Countrywide Home Loans Inc., NY Slip Op 06570 (1st Dep't September 17, 2019)

Here is the decision.

Amending a pleading.

In the absence of prejudice or surprise resulting directly from the delay in seeking leave, an application to amend or supplement a pleading is to be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit.  Where the standard is met, no evidentiary showing of merit is required in a motion to amend the complaint under CPLR 3025(b). The determination to permit or deny amendment is committed to the sound discretion of the trial court.

Clarke v. Acadia-Washington Sq. Tower 2, LLC, NY Slip Op 06469 (2d Dep't September 11, 2019)

Here is the decision.

A medical malpractice action.

The failure to investigate a condition that would have led to the incidental discovery of an unindicated condition does not constitute malpractice. In addition, a plaintiff cannot defeat the defendant's prima facie entitlement to summary judgment by introducing a new theory of liability.

Rotante v. New York Presbyt. Hospital- N.Y. Weill Cornell Med. Ctr., NY Slip Op 06457 (1st Dep't September 10, 2019)

Here is the decision.

CPLR 3102(d).

A party may seek additional disclosure after the commencement of trial only by permission of the court, on notice.

Matter of Michael R. v. Amanda R., NY Slip Op 06454 (1st Dep't September 10, 2019)

Here is the decision.

CPLR 5021(a)(3).

A deposit to the court must be made, on motion, pursuant to an order of the court. Otherwise, it is merely an escrow account.

Triadou SPV S.A. v. CF 135 Flat LLC, NY Slip Op 06453 (1st Dep't September 10, 2019)

Here is the decision.

CPLR 4404(a).

A motion to set aside a jury verdict and for judgment as a matter of law will be granted where there is no valid line of reasoning and permissible inferences which, based on the evidence presented, could possibly lead rational persons to the jury's conclusions. In considering the motion, the trial court must afford the opposing party every inference which may properly be drawn from the facts presented, and the facts must be considered in a light most favorable to the nonmovant.

Allen v. Federation of Jewish Philanthropies of N.Y., NY Slip Op 06462 (2d Dep't September 11, 2019)

Here is the decision.