Conditional orders of preclusion.

Where the plaintiff failed to comply with a conditional order of preclusion requiring her to produce authorizations relating to treatment for her preexisting conditions, the order became absolute. As the order precluded her from offering evidence as to damages at trial, plaintiff would be unable to prove her prima facie case, and the action was dismissed. The defendants were not required to show prejudice as a result of the plaintiff's noncompliance.

Diaz v. Maygina Realty LLC, NY Slip Op 01697 (1st Dep't March 12, 2020)

Here is the decision.

CPLR 3215(c).

Pursuant to the statute, "if [a] 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...upon its own initiative or on motion." The language of the statute is not discretionary, and a claim for which a default judgment is not sought within the requisite one-year period will be deemed abandoned. Notwithstanding that, a claim will not be deemed abandoned if the party seeking a default judgment provides sufficient cause as to why the complaint should not be dismissed. Here, the plaintiff waited almost three years to seek a default judgment, and it failed to provide sufficient cause as to why the complaint should not be dismissed. As such, plaintiff's complaint is dismissed as abandoned.

Wells Fargo Bank, N.A. v. Martinez, NY Slip Op 01593 (1st Dep't March 12, 2020)

Here is the decision.

The admissibility of business records.

An employee may lay a business record foundation for documents without having personal knowledge of their contents.

Deutsche Bank Natl. Trust Co. v. Kirschenbaum, NY Slip Op 01573 (1st Dep't March 10, 2020)

Here is the decision.

Opposition papers.

A plaintiff abandons his claims by failing to oppose that part of the defendant's motion seeking dismissal of those claims.

Leveron v. Prana Growth Fund I, L.P., NY Slip Op 01568 (1st Dep't March 10, 2020)

Here is the decision.

Appellate Practice.

In a nonjury case, where the record is complete, the Appellate Division's power of review extends to making any appropriate award of damages.

Xiaoen Xie v. Park Place Estate, LLC, NY Slip Op 01522 (2d Dep't March 4, 2020)

Here is the decision.

Slips and falls.

A stairway's worn marble tread, without more, is not an actionable defect.

DeCarbo v. Omonia Realty Corp., NY Slip Op 01555 (1st Dep't March 5, 2020)

Here is the decision.

A claim of ordinary negligence.

When the gravamen of the action is the alleged failure to exercise ordinary and reasonable care to ensure that no unnecessary harm befalls a patient, the claim sounds in ordinary negligence. Here, the plaintiff alleges that the defendant "failed to perform the services in a competent and professional manner," and "failed to properly test, perform services, and perform laser hair removal and treat plaintiff." While the defendant offered an expert affidavit in support of its motion to dismiss, the plaintiff raised an issue of fact by submitting photographs of her injuries and provided testimony as to the effects and injuries arising from the defendant's alleged negligence. The defendant's motion was properly denied since the laser treatment was not medical in nature and did not involve specialized knowledge of medical science or diagnosis.

Berkowitz v. Equinox One Park Ave., Inc., NY Slip Op 01553 (1st Dep't March 5, 2020)

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Reply papers.

The defendant cannot remedy a fundamental deficiency in its moving papers for summary judgment with evidence submitted in its reply to the plaintiff's opposition, although the evidence may be considered in opposition to the plaintiff's cross motion.

Ruland v. 130 FG, LLC, NY Slip Op 01558 (1st Dep't March 5, 2010)

Here is the decision.

Appellate practice.

Plaintiffs abandoned their appeal from the dismissal of the breach of fiduciary duty claims by failing to make any arguments about it in their appellate briefs.

Binn v. Muchnick, Golieb & Golieb, P.C., NY Slip Op 01302 (1st Dep't February 25, 2020)

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Replies and sur-replies.

The motion court providently exercised its discretion in considering the third-party defendant's arguments raised by for the first time in its reply papers, having given the defendant the opportunity to respond to those arguments by way of a sur-reply and a motion for summary judgment.

Pizarro v. Dennis James Boyle, Inc., NY Slip Op 01299 (1st Dep't February 25, 2020)

Here is the decision.

Appellate practice.

The Appellate Division dismissed the appeal from an interim order which, to the extent appealed from, held in abeyance defendant's motion seeking plaintiff's forfeiture of further distribution of artwork under the parties' settlement agreement, the appointment of a permanent receiver, and to enjoin plaintiff from litigation on the parties' settlement agreement without leave of court, as taken from a nonappealable order. The court's deferral of a decision on defendant's motion is not appealable as of right, pursuant to CPLR 5701[a][2][v], and the Appellate Division declined to grant leave to appeal.

Condo v. Condo, NY Slip Op 01294 (1st Dep't February 25, 2020)

Here is the decision.