Stabat Mater.

A petition to compel discovery.

A motion pursuant to CPLR 3103(a) is a proper vehicle for challenging a petition to compel discovery brought pursuant to CPLR 3102(c). CPLR 3102(c) merely provides a device for obtaining pre-action discovery, and CPLR 3103(a) is a means for obtaining, at any time, an order "denying, limiting, conditioning or regulating the use of any disclosure device."

Delgrange v. RealReal, Inc., NY Slip Op 02170 (1st Dep't April 2, 2020)

Here is the decision.

"Quid est veritas?"

Civil conspiracy.

New York does not recognize an independent cause of action for civil conspiracy, which may only be asserted to connect actions of separate defendants to an underlying tort. In order to assert a civil conspiracy claim, the complaint must allege a cognizable cause of action, agreement among the conspirators, an overt act in furtherance of the agreement, intentional participation by the conspirators in furtherance of a plan or purpose, and damages. Bare, conclusory allegations of conspiracy are insufficient.

Kovkov v. Law Firm of Dayrel Sewell, PLLC, NY Slip Op 02166 (1st Dep't April 2, 2020)

Here is the decision.

Spy Wednesday.

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)

Here is the decision.

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)

Here is the decision.

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)

Here is the decision.

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.