Appellate practice.

An argument that is raised for the first time on appeal is not preserved for review.

Crimlis v. City of New York, NY Slip Op 00514 (1st Dep't January 23, 2020)

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A denied motion for a default judgment.

The defendant's delay in answering the complaint was excusable and minimal, and it caused no prejudice to plaintiff.  Plaintiff moved for default just one day after defendant's time to appear had expired, and defendant timely responded, presenting a meritorious defense to the action. Moreover, the motion court's order is in keeping with the strong public policy favoring litigation of claims on the merits.

Berardelli v. Novo Law Firm P.C., NY Slip Op 00516 (1st Dep't January 23, 2020)

Here is the decision.

A dismissed claim for unjust enrichment.

The existence of an express contract governing the subject matter precludes plaintiffs claim.

Polaris Venture Partners VI L.P. v. AD-Venture Capital Partners L.P., NY Slip Op 00483 (1st Dep't January 23, 2020)

Here is the decision.

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)

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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)

Here is the decision.

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)

Here is the decision.

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)

Here is the decision.

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.