An insufficient opposition to summary judgment.

The defendant's affidavit is inconsistent with the police report and with the motor vehicle accident report that he had filed six days after the accident. Due to these inconsistencies, the affidavit raises feigned issues of fact, and is insufficient to defeat the motion. In addition, the affidavit fails to raise a triable issue as to whether there was a nonnegligent explanation for the accident, as it does not indicate that plaintiff was outside the crosswalk or that she did not have the light in her favor.

Curl v. Schiffman, NY Slip Op 02725 (1st Dep't May 7, 2020)

Here is the decision.

Successive motions for summary judgment.

The motion court may providently consider a successive motion where doing so would clearly enhance judicial efficiency.

MTGLQ Invs., LP v. Collado, NY Slip Op 02723 (1st Dep't May 7, 2020)

Here is the decision.

CPLR 317.

The defendant failed to rebut plaintiff's proof that defendant had received actual notice of the action in time to defend. The summons and complaint, with the motion for default judgment, were sent to defendant's president, and the order granting the default and directing an inquest was sent to the president at the same address. The affidavit of defendant's president claiming not to have received the complaint or default order was merely conclusory.

Frazier v. 811E. 178th St. Realty Corp., NY Slip Op 02722 (1st Dep't May 7, 2020)

Here is the decision.

22 NYCRR 202.21.

The trial court properly denied plaintiff's motion to strike defendants' pleadings or preclude defendants from calling witnesses on the ground of their alleged failure to provide discovery, as, by filing a note of issue, plaintiff waived her entitlement to any further discovery.

Hu-Lin Wu v. City of New York, NY Slip Op 02721 (1st Dep't May 7, 2020)

Here is the decision.

The doctrine of res judicata.

Under res judicata, or claim preclusion, a valid final judgment bars future actions between the same parties, or those in privity with them, on any claims arising out of the same transaction or series of transactions, even if the action is based on a different theory or is seeking different relief. Here, the plaintiff, as a successor to the same property interest, is in privity with the prior owner of the apartment at issue, and this action is barred.

East Hampton Capital LLC v. Fergusson, NY Slip Op 02718 (1st Dep't May 7, 2020)

Here is the decision.

CPLR 5015(a)(1).

On a motion to vacate a default, the standard is a reasonable excuse; plausibility is insufficient. Here, the moving defendant's one-sided understanding that plaintiffs would refrain from prosecuting their lawsuit while another defendant negotiated its sale is not a reasonable excuse for failing to answer.

Kowal v. JackFromBrooklyn Inc., NY Slip Op 02715 (1st Dep't May 7, 2020)

Here is the decision.

CPLR 2101[f].

Supreme Court providently exercised its discretion in denying respondent's motion for a default judgment on his counterclaim, as he waived any objection to the timeliness of petitioners' reply by failing to object to it within 15 days.

Matter of CUCS Hous. Dev. Fund Corp. IV v. Aymes, NY Slip Op 02711 (1st Dep't May 7, 2020)

Here is the decision.

Forum non conveniens.

The court did not abuse its discretion in dismissing the case pursuant to CPLR 327.  Even though the case is relatively simple and not unduly burdensome to New York's courts, there is only a minimal connection between the action and New York. There is no indication that any relevant events occurred in New York, and both the defendant and the sole non-party witness reside in Switzerland.

Trimarco v. Edwards, NY Slip Op 02709 (1st Dep't May 7, 2020)

Here is the decision.

Expert opinions based on hearsay.

The opinion may be received in evidence even though some of the information on which it is based is inadmissible hearsay, if the hearsay is of a kind accepted in the profession as reliable in forming a professional opinion, or if it comes from a witness subject to cross-examination at trial.

East Fordham DE LLC  v. U.S. Bank N.A., NY Slip Op 02547 (1st Dep't April 30, 2020)

Here is the decision.

An improper opposition to a motion for summary judgment.

In its opposition, a plaintiff' cannot raise for the first time a new theory of liability that had not been set forth in the complaint or in the bill of particulars.

Silber v. Sullivan Props., L.P., NY Slip Op 02538 (1st Dep't April 30, 2020)

Here is the decision.

CPLR 202.

Since plaintiff is a resident of Illinois and it allegedly suffered damage in Illinois, where it does business, New York's borrowing statute applies for the purpose of the statute of limitations.

Errant Gene Therapeutics, LLC v. Sloan-Kettering Inst. for Cancer Research, NY Slip Op 02534 (1st Dep't April 30, 2020)

Here is the decision.