A summary judgment motion and part rules.

Supreme Court improvidently exercised its discretion in denying the City's motion for summary judgment as untimely on the ground that, in violation of the court's part rules. it was made more than 60 days after the note of issue was filed. When the note of issue was filed, and for more than 60 days thereafter, the case was assigned to a different part, and the City showed that it had complied with the rules of the part to which the case had originally been assigned.

Astrakan v. City of New York, NY Slip Op 03276 (1st Dep't June 11. 2020)

Here is the decision.

Charging liens.

Entry of an order recognizing the lien bars any challenge to the rendering of the underlying legal services. Here, though, the stipulated order also expressly provides that the substitute counsel does not waive "any claims or defenses w[ith] respect to fees or expenses," and that there will be a hearing "regarding all fee and expense issues." Therefore, a hearing is necessary to determine whether the former attorney was discharged for cause.

Matter of Verdugo v. Schwartz Goldstone & Campisi, LLP, NY Slip Op 03273 (1st Dep't June 11, 2020)

Here is the decision.

A motion for class certification.

Pursuant to CPLR article 9, the trial court has considerable flexibility in overseeing a class action, and the court may decertify the class at any time before a decision on the merits if it becomes apparent that class treatment is inappropriate.  Still, the proponent of class certification bears the burden of establishing the criteria promulgated by CPLR 901(a), and must do so by the tender of evidence in admissible form.

Mid Is. LP v. Hess Corp., NY Slip Op 03270 (1st Dep't June 11, 2020)

Here is the decision.

Appellate practice.

An order issued sua sponte is not appealable as of right, pursuant to CPLR 5701[a][2]. Plaintiffs' remedy is to move to vacate the court's order, and, if the motion is denied, appeal from the order, pursuant to CPLR 5701[a][3].

Hall v. Louis, NY Slip Op 03268 (1st Dep't June 11, 2020)

Here is the decision.

A cause of action for quantum meruit.

The motion court properly dismissed the claim, as a valid and enforceable written contract governed the subject matter at issue. Recovery in quasi-contract for events arising out of the same subject matter is precluded.

Graciano Corp. v. Lanmark Group, Inc., NY Slip Op 03266 (1st Dep't June 11, 2020)

Here is the decision.

A dismissed cause of action for abuse of process.

Defendant commenced two family offense proceedings based on separate incidents. Both petitions were dismissed, one on the merits and the other without prejudice. The mere filing of petitions is not legally considered process capable of being abused.

Ivancev v. Garrido, NY Slip Op 03190 (1st Dept June 4, 2020)

Here is the decision.

A time-barred claim of tortious interference.

The statute of limitations for tortious interference .with prospective business relations is three years from the date of injury. The limitations period is triggered when a plaintiff first sustains damages.

Linkable Networks, Inc. v. Mastercard Inc., NY Slip Op 03187 (1st Dep't June 4, 2020)

Here is the decision.

Appellate practice.

No appeal lies from an order declining to sign an order to show cause, since it is an ex parte order that does not decide a motion made on notice, pursuant to CPLR 5701(a)(2).

Chi Young Lee v. Osorio, NY Slip Op 03186 (1st Dep't June 4, 2020)

Here is the decision.

An alleged violation of Judiciary Law § 487.

An attorney violates § 487(1) by intentionally deceiving the court or any party. A claim premised on a statutory violation must be supported by a showing that the attorney intended to deceive, or engaged in a chronic and extreme pattern of legal delinquency. In order to make a prima facie showing of entitlement to summary judgment, an affidavit from someone with actual knowledge of the allegations is sufficient. The defendant is not required to submit an affidavit from a legal expert.

Koch v. Sheresky, Aronson & Mayefsky LLP, NY Slip Op 03178 (1st Dep't June 4, 2020)

Here is the decision.

Summary judgment in a slip-and-fall action.

The Appellate Division reversed the motion court's determination that defendant was entitled to summary judgment dismissing the complaint on the ground that he is an out-of-possession landlord. In addition, it was permissible for plaintiff to plead defendant's violation of  Administrative Code of City of New York § 7-210 in opposition to defendant's motion, as plaintiff did not raise a new theory of liability or prejudice.

Herrera v. Vargas, NY Slip Op 03082 (1st Dep't May 28, 2020)

Here is the decision.

CPLR 3212(f).

The motion court providently rejected defendants' argument in opposition to plaintiff's motion for summary judgment. Although defendants purport to require discovery from a third party, that entity is defendants' own agent, and defendants neither explained why they were unable to obtain the information sooner nor outlined any efforts made to obtain it.

Bethpage Fed. Credit Union v. Bouzaglou, NY Slip Op 03081 (1st Dep't May 28, 2020)

Here is the decision.