Recovering on an unconditional guaranty.

CPLR 3213 provides a means of obtaining an accelerated judgment where a defendant's liability is premised upon an instrument for the payment of money only, such as an unconditional guaranty.  In order to recover, a plaintiff must establish that payment on the underlying debt was due.

255 Butler, LLC v. Boymelgreen, NY Slip Op 00392 (2d Dep't January 22, 2020)

Here is the decision.

A motion to renew.

The motion will be denied where the movant does not explain the failure to offer the purportedly new evidence on the initial motion.

Boccara v. Beinart, NY Slip Op 00374 (1st Dep't January 21, 2020)

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Appellate practice.

The defendant-mortgagor, who remains obligated on the note and a potential deficiency judgment, has standing to appeal from the order vacating the dismissal of this action, notwithstanding that he transferred his interest in the encumbered property before the action was commenced.

U.S. Bank Natl. Assn. v. Thompson, NY Slip Op 00251 (2d Dep't January 14, 2020)

Here is the decision.

Contractual waiver of a jury trial.

Where the primary claim is fraudulent inducement, the agreement's provision waiving the right to a jury trial does not apply.

Ambac Assur. Corp. v. Countrywide Home Loans Inc., NY Slip Op 00367 (1st Dep't January 16, 2020)

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Waiver of an objection to jurisdiction.

The defendant waived any objection to jurisdiction by appearing by notice of pro hac vice admission, failing, twice, to file timely pre-answer motions to dismiss, and defending on the merits.

Chao Jiang v. Ping An Ins., NY Slip Op 00366 (1st Dep't January 16, 2020)

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The doctrine of respondeat superior.

A hospital may be held vicariously liable for the negligence or malpractice of its employees acting within the scope of their employment. However, a hospital is not vicariously liable for the negligence or malpractice of a private attending physician who is not an employee.  There are exceptions to this general rule where a patient comes to the emergency room seeking treatment from the hospital and not from a particular physician of the patient's choosing, or a nonemployee physician otherwise acts as an agent of the hospital or the hospital exercised control over the physician. To establish its entitlement to summary judgment dismissing a claim of vicarious liability, the hospital must address and rebut any such allegations in the complaint and the bill of particulars. In the absence of such a showing, the hospital must establish either that the physician was not negligent, or that the physician's negligence was not a proximate cause of the plaintiff's injuries.

Mitchell v. Goncalves, NY Slip Op 00268 (2d Dep't January 15, 2020)

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CPLR 510[1].

The court, on motion, may change the place of trial of an action. In order to prevail on the motion, a defendant must show that the plaintiff's choice of venue is improper, and that the defendant's choice is proper. Unless the defendant meets this burden, the plaintiff is not required to establish, in opposition, that the venue selected was proper.

Harvey v. Ogunfowora, NY Slip Op 002645 (2d Dep't January 15, 2020)

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Liquidated damages.

A contractual provision fixing damages in the event of breach will be sustained if the amount liquidated bears a reasonable proportion to the probable loss and the amount of actual loss is incapable or difficult of precise estimation. If, however, the amount fixed is plainly or grossly disproportionate to the probable loss, the provision calls for a penalty and will not be enforced. The party challenging the damages provision has the burden to prove that the liquidated damages are an unenforceable penalty, but the party seeking to enforce the provision must necessarily have been damaged in order for the provision to apply.

Rubin v. Napoli Bern Ripka Shkolnik, LLP, NY Slip Op 00250 (1st Dep't January 14, 2020)

Here is the decision.

A claim for misappropriation of trade secrets.

Bank records and checks do constitute trade secrets, which are defined as any formula, pattern, device, or compilation of information which is used in one's business, and which gives one an opportunity to obtain an advantage over competitors who do not know or use it.

Landmark Ventures, Inc. v. Kreisberg & Maitland, LLP, NY Slip Op 00248 (1st Dep't January 14, 2020

Here is the decision.

CPLR 213[1].

The causes of action to impose a constructive trust and to recover damages for unjust enrichment are governed by a six-year statute of limitations that begins to run at the time of the wrongful act giving rise to a duty of restitution.

Saddharma Cakra Buddhist Assn., Inc. v. Sheng Chien Chen, NY Slip Op 00167 (2d Dep't January 8, 2020)

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Contracts and tort liability.

Generally, a contractual obligation, without more, does not give rise to tort liability in favor of a third party. There are three exceptions to the rule: (1) where the contracting party, in failing to exercise reasonable care in the performance of its duties, launches a force or instrument of harm; (2) where the plaintiff detrimentally relies on the continued performance of the contracting party's duties; and (3) where the contracting party has entirely displaced the other party's duty to maintain the premises safely. On a motion for summary judgment, a contracting defendant is only required to negate the applicability of an exception that is expressly pleaded by the plaintiff or expressly set forth in the plaintiff's bill of particulars.

Ramsey v. Temco Serv. Indus., Inc., NY Slip Op 00166 (2d Dep't January 8, 2020)

Here is the decision.