The doctrine of judicial estoppel.

On a prior motion, the plaintiff argued successfully that the escrow agreement was not sufficient restraint and that a preliminary injunction was required. He is barred from arguing now that the escrow agreement was the equivalent of the injunction.

Genger v. TPR Inv. Assoc., Inc., NY Slip Op 02165 (1st Dep't April 2, 2020)

Here is the decision.

A defendant's summary judgment motion.

The defendant does not meet its burden on the motion by merely pointing to gaps in plaintiff's proof.

Nassar v. Macy's Inc., NY Slip Op 02160 (1st Dep't April 2, 2020)

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Appellate practice.

The issues raised by the defendants concerning contractual indemnification and the third-party complaint are not properly before the Appellate Division, since they are unrelated to the issues raised by plaintiff, the only party that filed a notice of appeal from the order under review.

Armental v. 401 Park Ave. S. Assoc., LLC,  (02154 (1st Dep't April 2, 2020)

Here is the decision.

Motions to renew.

The Appellate Division affirmed the denial of the defendant's motion to renew its summary judgment motion, as it offered no new facts or a change in the law, pursuant to CPLR 2221[e][2]. Neither did the defendant provide a reasonable justification for its failure to present the facts on the original motion, pursuant to CPLR 2221[e][3].

Kolchins v. Evolution Mkts, Inc., NY Slip Op 02155 (1st Dep't April 2, 2020)

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Surveillance videos.

The Appellate Division affirmed the denial of the defendant's motion for summary judgment dismissing the complaint in this action where the plaintiff, a nurse, alleges that she was injured when she was attacked by a patient at the healthcare facility where she worked.  The defendant provided  security for the facility pursuant to a contract. The Appellate Division noted that, while the motion court declined to credit a surveillance video offered by the defendant in support of its claim that the security guard arrived one minute after the plaintiff called for help, the court should not have considered the video at all for two reasons. First, as the motion court noted, it was offered with defendant's reply papers, and plaintiff had no opportunity to respond to it. Second, it was not authenticated, and thus did not constitute evidence in admissible form, as required on a motion for summary judgment.

Kuti v. Sera Sec. Servs., NY Slip Op 02153 (1st Dep't April 2, 2020)

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Appellate practice.

While no appeal lies from a judgment entered upon the default of an appealing party, pursuant to  CPLR 5511, an appeal from such a judgment brings up for review those matters which were contested before the Supreme Court.

Bank of America, N.A. v. Davis, NY Slip Op 02053 (2d Dep't March 25, 2020)

Here is the decision.

Motions to dismiss and summary judgment.

The defendant moved pursuant to CPLR 3211(a)(7) to dismiss the complaint for failure to state a cause of action, or, in the alternative, for summary judgment dismissing the complaint. The Supreme Court treated the motion as one for summary judgment, and granted the motion. The Appellate Division affirmed the determination to treat the defendants motion solely as one for summary judgment, as the parties' submissions demonstrated that they were laying bare their proof and deliberately charting a summary judgment course.

Ain v. Allstate Ins. Co., NY Slip Op 02042 (2d Dep't March 25, 2020)

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Standing in a mortgage foreclosure action.

A plaintiff's filing of a copy of the note as an attachment to the complaint is prima facie evidence of the plaintiff's standing. Here, a copy of the note was attached to the certificate of merit, which was filed together with the summons and complaint. This establishes, prima facie, the plaintiff's standing, by demonstrating that it had physical possession of the note when it commenced the action.

Deutsche Bank Nat'l Trust Co., v. Bowens, NY Slip Op 02040 (2d Dep't March 26, 2020)

Here is the decision.

CPLR 5015(a).

A defendant seeking to vacate a judgment under this provision must demonstrate a reasonable excuse for the default and a potentially meritorious defense.

Nationstar Mtge., LLC v. Brignol, NY Slip Op 02045 (2d Dep't March 25, 2020)

Here is the decision.

The right to a jury trial.

A plaintiff is not entitled to a jury trial where he seeks to enforce a judgment against a party other than the judgment debtor, as that is an equitable claim.

Jonke v. Foot Locker Inc., NY Slip Op 02113 (1st Dep't March 16, 2020)

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A conditional order of dismissal.

Pursuant to CPLR 3126(3), and in light of the plaintiff's history of noncompliance with court orders, the motion court providently exercised its discretion in issuing the order requiring her to appear for a deposition. On her motion to renew, the plaintiff failed to submit new facts, pursuant to CPLR 2221[e][2]), that is., facts that existed but were unknown to her at the time defendants made their motions. Instead, she submitted facts that developed after issuance of the conditional order that decided the prior motions.

Mehler v. Jones, NY Slip Op 02103 (1st Dep't March 26, 2020)

Here is the decision.