Appellate practice.

The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of the judgment. The issues raised on appeal from the order are brought up for review, and are considered on the appeal from the judgment, pursuant to CPLR 5501[a][1].

Bowers v. Grier, NY Slip Op 04288 (2d Dep't July 29, 2020)

Here is the decision.

CPLR 3215(f).

A plaintiff seeking leave to enter a default judgment must file proof of proper service of the summons and the complaint, the defendant's default, and the facts constituting the claim. In a declaratory judgment action, the judgment will not be granted on the default and the pleadings alone, since the plaintiff must establish its right to the declaration.

Ameriprise Ins. Co. v. Kim, NY Slip Op 04286 (2d Dep't July 29, 2020)

Here is the decision.

CPLR 3211(a)(1).

A claim will be dismissed if the submission of documentary evidence conclusively establishes,  as a matter of law, a defense to the asserted claims. If the motion is not made before an answer is interposed, or preserved in a responsive pleading, it is waived.

M&E 73-75, LLC v. 57 Fusion LLC, NY Slip Op 04372 (1st Dep't July 30, 2020)

Here is the decision.

CPLR 3215(c).

The statute provides that "[i]f the plaintiff fails to take proceedings for the entry of judgment within one year after [a] default, the court shall not enter judgment but shall dismiss the complaint as abandoned, without costs, upon its own initiative or on motion, unless sufficient cause is shown why the complaint should not be dismissed." It is not necessary that the plaintiff actually obtain a default judgment within one year of the default in order to avoid dismissal.

Bank of Am., N.A. v. Wessen, NY Slip Op 04141 (2d Dep't July 22, 2020)

Here is the decision.

Reasonable damages.

The amount of damages to be awarded to a plaintiff for personal injuries is a question for the jury, and the jury's determination will not be disturbed unless the award deviates materially from what is reasonable compensation. In determining whether a verdict constitutes reasonable compensation, courts will look to prior awards in cases involving similar injuries, as well as the nature and extent of the plaintiff's injuries.

Arcos v. Bar-Zvi, NY Slip Op 04139 (2d Dept July 22, 2020)

Here is the decision.

An employer's liability for an independent contractor.

The general rule is that the employer is not liable for an independent contractor's negligent acts. Determining whether there is an employer-employee relationship depends on whether the purported employer exercises control over the results produced, or the means used to achieve the results, and control over the means is the more important consideration. Factors relevant in assessing control include whether the worker worked at his or her own convenience; was free to engage in other employment; received fringe benefits;  was on the employer's payroll; and was on a fixed schedule. Minimal or incidental control over the work product, absent the employer's direct supervision or input over the means used to complete the work, is insufficient to establish an employer-employee relationship.

Athenas v. Simon Prop. Group, L.P., NY Slip Op 04140 (2d Dep't July 22, 2020)

Here is the decision.

Tortious interference with business relations.

In order to prevail on the cause of action, a plaintiff must prove that it had a business relationship with a third party; that the defendant knew of that relationship, and intentionally interfered with it; that the defendant's actions were motivated solely by malice, or otherwise constituted illegal means; and that the defendant's interference caused injury to the plaintiff's relationship with the third party.

684 E. 22nd Realty Co., LLC v. Sheehan, NY Slip Op 04136 (2d Dep't July 22, 2020)

Here is the decision.

SCPA 2205(2)(g).

A plaintiff does not have standing to compel an accounting in the absence of any evidence that, at any point, the defendant was a fiduciary.

8-48 Catalpa Realty Corp. v S & S Med. Assoc., P.C.. NY Slip Op 04135 (2d Dep't July 22, 2020)

Here is the decision.

The doctrine of res judicata.

The doctrine encompasses both claim preclusion and issue preclusion. Claim preclusion bars claims that were, or should have been, advanced in a previous suit involving the same parties. Issue preclusion, or collateral estoppel, bars the relitigation of issues that were argued and decided in the first suit, but it does not bar entire causes of action. Unlike claim preclusion, issue preclusion can be raised by someone who was not a party or in privity in the first suit. Issue preclusion applies after the final adjudication of an identical issue that was actually litigated, and necessarily decided, in the first suit, and the issue was necessary to support a valid and final judgment on the merits.

Rojas v. Romanoff, NY Slip Op 04237 (1st Dep't July 23, 2020)

Here is the decision.

The client's right to arbitrate.

The failure to provide timely notice of the right to arbitrate is a bar to a subsequent plenary action for legal fees.

Filemyr v. Hall, NY Slip Op 04238 (1st Dep't July 23, 2020)

Here is the decision.

Appellate practice.

Where the order was not predicated on a motion made on notice, it is not appealable as of right, pursuant to CPLR 5701[a][2]. However, in the interest of justice, the Court may deem the notice of appeal as a request for leave to appeal, and grant leave for a determination on the merits, pursuant to CPLR 5701[c].

Matter of Gliklad v. Deripaska, NY Slip Op 04233 (1st Dep't July 23, 2020)

Here is the decision.