An implied covenant of good faith and fair dealing.

The covenant cannot create independent contractual rights, or otherwise serve as a substitute for a plaintiff's nonviable contract claims.

Shionogi Inc. v. Andrx Labs, LLC, NY Slip Op 05308 (1st Dep't October 1, 2020)

Here is the decision.

Waiver of a jurisdictional defense.

The defendant's appearance, through counsel, by service of an answer asserting counterclaims but no jurisdictional defense, waived his subsequently asserted defense of lack of personal jurisdiction. His motion to vacate the order of foreclosure and sale must be denied insofar as it is based on lack of personal jurisdiction, pursuant to CPLR 5015(a)(4). Because the defendant voluntarily submitted to the court's jurisdiction, the alleged inaccuracies in the filed affidavits of service do not support vacatur of the prior summary judgment motion, pursuant to 5015(a)(3).

Wells Fargo Bank, N.A. v. Sewer, NY Slip Op 05170 (1st Dep't September 29, 2020)

Here is the decision.

Summary judgment in a premises negligence action.

Where, as here, there is a question of fact as to an owner's negligence in the cause of the accident, a motion for summary judgment on a contractual defense and indemnification claim must be denied as premature. 

Williams v. 2897 Third Ave., Inc., LLC, NY Slip Op 05171 (1st Dep't September 29, 2020)

Here is the decision.

Appellate practice.

An order denying a motion to compel a witness to answer questions propounded at a deposition is effectively a ruling made in the course of the deposition itself, and is not appealable as of right.

Gargano v. Langman, NY Slip Op 04923 (2d Dep't September 16, 2020)

Here is the decision.

Appellate practice.

The limited appeal from the order must be dismissed, pursuant to CPLR 5511, on the ground that the defendant-appellant is not aggrieved by the portion of the order appealed from. While the Supreme Court denied several branches of the defendant's motion, the appeal is based solely on the branch of the motion that the court granted. As the successful party, the defendant obtained the full relief sought in that branch of his motion, and, therefore, has no grounds to appeal from that portion of the order.

Federal Natl. Mtge. Assn. v. Lautman, NY Slip Op  04921 (2d Dep't September 16, 2020)

Here is the decision.

A general release and waiver of liability.

The defendant established its prima facie entitlement to judgment as a matter of law dismissing the complaint by presenting a general release and waiver of liability signed by the plaintiff. If the language of the release is clear and unambiguous, it is binding on the parties and is a complete bar to an action on a claim which is the subject of the release. 

Durand v. Salvation Army, NY Slip Op 04919 (2d Dep't September 16, 2020)

Here is the decision.

CPLR 305(c).

In the exercise of its discretion, the court may allow a summons or proof of service of a summons to be amended in the absence of prejudice to a substantial right of a party against whom the summons issued. The motion to cure a misnomer in the description of a party-defendant should be granted, even if the statute of limitations has run, where (1) there is evidence that the correct defendant has been properly served, and (2) the correct defendant would not be prejudiced by allowing the amendment.

Duncan v. Emerald Expositions, LLC, NY Slip Op 04918 (2d Dep't September 16, 2020)

Here is the decision.

Constructive trusts.

The purpose of a constructive trust is to prevent unjust enrichment. It is an equitable remedy that may be imposed when property has been acquired in such circumstances that the holder of the legal title may not in good conscience retain the beneficial interest.

Derosa v. Estate of Iannazzo, NY Slip Op 04917 (2d Dep't September 16, 2020)

Here is the decision.

A late notice of claim.

The Appellate Division affirmed the denial of the plaintiffs' cross motion for leave to amend the notice of claim or to serve a late notice of claim. The plaintiffs' proposed amendments add substantive new facts and new theories of liability not set forth in the original notice of claim and which are not permitted as late filed amendments to a notice of claim under General Municipal Law § 50-e(6).

C. D. v. Goshen Cent. Sch. Dist., NY Slip Op 04916 (2d Dep't September 16, 2020)

Here is the decision.

Rulings, decisions, and orders.

A decision resolves an issue on its merits, but does not order any party to do or refrain from doing anything. An order implements a decision by requiring a party to act or refrain from acting consistent with the decision. Decisions may not be appealed, although appeals may be taken from orders and final judgments, pursuant to  CPLR 5501[a] and 5512[a]. A ruling is not a product of a motion made on notice, but a mere determination of an issue made during depositions, trials, or other proceedings. Rulings are not appealable, but rulings that have been objected to and preserved may be reviewed on an appeal from a final judgment, pursuant to 5501[a][3].

Charalabidis v. Elnagar, NY Slip Op 04913 (2d Dep't September 16, 2020)

Here is the decision.

Failure to appear at a calendar call.

Where the plaintiff appears but the defendant does not, the court may grant judgment by default or order an inquest, pursuant to 22 NYCRR 202.27[a]. Where the defendant appears but the plaintiff does not, the court may dismiss the action and order a severance of counterclaims or cross claims, pursuant to 202.27[b]. If neither party appears, the court may make such an order as it deems just, pursuant to 202.27[c].

Charalabidis v. Elnagar, NY Slip Op 04912 (2d Dep't September 16, 2020)

Here is the decision.