"Non est hic."

Appellate practice.

An order entered on default of the aggrieved party is not appealable, pursuant to CPLR 5511.

Arzu v. Kevin Dana Gratt Assoc., NY Slip Op 02242 (1st Dep't April 9, 2020)

Here is the decision.

Easter Vigil.

A non-party's breach of contract claim.

A non-party can asset the claim only if it is an intended, and not a mere incidental, beneficiary of the contract. Even then, the parties' intent to benefit the third-party must be apparent on the face of the contract.  In the absence of clear contractual language of such intent, New York courts have demonstrated a reluctance to interpret circumstances so as to construe such an intent.

CWCapital Invs. LLC v CWCapital Cobalt VR Ltd., NY Slip Op 02240 (1st Dep't April 9, 2020)

Here is the decision.

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.