The standard for dismissal.

On a motion to dismiss for failure to state a cause of action, pursuant to CPLR 3211(a)(7), the court must accept the facts alleged in the complaint as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory. Where evidentiary material is submitted and considered on the motion, and the motion is not converted into one for summary judgment, the question is whether the plaintiff has a cause of action, not whether the plaintiff has stated one. Pursuant to CPLR 3211(a)(1), the motion will be denied unless documentary evidence conclusively establishes, as a matter of law, a defense to the asserted claims.

68 16th Realty, LLC v. Bank of N.Y., NY Slip Op 00278 (2d Dep't January 20, 2021)

Here is the decision.

Appellate practice.

Defendant's failure to consolidate her legal malpractice action, which she commenced subsequent to this legal fees action, precludes review of whether her claim is sufficiently intertwined with the account stated cause of action.

Law Off. of Mark S. Helweil v. Karambelas, NY Slip Op 00260 (1st Dep't January 19, 2021)

Here is the decision.

Alleged negligence in responding to a 911 call.

The Appellate Division unanimously reversed the Order which denied the City defendants' motion to dismiss the complaint and granted plaintiff's cross motion for leave to amend the complaint, granting defendants' motion and denying plaintiff's motion. Neither the notice of claim nor the complaint alleges  facts that demonstrate the special relationship between plaintiff and the City defendants required for liability on the ground that they were negligent in handling plaintiff's 911 call. The proposed amended complaint does not remedy the pleading's deficiencies. Its factual allegations and plaintiff's affidavit that his mother-in-law told him she had called 911 and that the fire department was on its way conflict with plaintiff's § 50-h hearing testimony that he had no memory of the fire and did not know what had happened until he awoke in the hospital.

Velez v. City of New York, NY Slip Op 00277 (1st Dep't January 19, 2021)

Here is the decision.

Appellate practice.

The Appellate Division unanimously affirmed the Order which denied plaintiff's motion to reject the Special Referee's report recommending, after a hearing on sanctions, that defendants be awarded attorneys' fees, and which  granted defendants' cross motion to confirm the report. Plaintiff waived the issue of noncompliance with CPLR 4320(b) by not raising it in his motion to reject the report. Plaintiff cannot challenge the quashing of subpoenas before the hearing, having failed to appeal the relevant order, pursuant to CPLR 5501 and 5513[a]. Furthermore, the challenge to the finding of frivolous conduct and the claim that plaintiff acted in good faith are foreclosed, as the Appellate Division had previously affirmed the order granting sanctions.

Abe v. New York Univ., NY Slip Op 00247 (1st Dep't January 19, 2021)

Here is the decision.

CPLR 3215(c).

The Appellate Division determined that the mortgage foreclosure action should have been dismissed as against the original borrower, because plaintiff failed to take proceedings for the entry of judgment within one year of the borrower's default. The time to seek a default judgment should be measured from the default in responding to the original complaint, not the amended complaint. Although an amended complaint supersedes the original complaint, and, therefore, requires a new responsive pleading in order to avoid default, allowing the filing of an amended complaint to effectively cure a failure to timely move for a default in responding to the original complaint would create an exception that swallows the rule. Because plaintiff did not move for a default judgment until well after one year after the default in responding to the original complaint, and because plaintiff fails to offer any excuse for the delay, dismissal was appropriate under 3215(c), in spite of plaintiff's inability to bring a new action due to expiration of the statute of limitations.

MTGLQ Invs., L.P. v. Shay, NY Slip Op 00237 (1st Dep't January 14, 2021)

Here is the decision.

Supplemental bills of particulars.

To the extent that the supplemental bill raises new theories of liability and injuries, plaintiff was entitled to serve them as amendments as of course, pursuant to CPLR 3042(b), as no note of issue has been filed, and no prior amended bill of particulars has been served.

Napolitano v. Gustavson, NY Slip Op 00238 (1st Dep't January 14, 2021)

Here is the decision.

A claim for respondent superior and negligent hiring.

The Appellate Division unanimously affirmed the granting of defendants' motion for summary judgment in this action where plaintiff alleges that she was assaulted by a receptionist employed by defendants in their medical office. The court properly concluded, as a matter of law, that the receptionist was not acting within the scope of her employment when she had a physical confrontation with plaintiff, because the conduct alleged by plaintiff was a significant departure from normal methods of performance of the job. Furthermore, defendants could not reasonably have anticipated the conduct, as the employee had worked for them for eight years and this was the first such encounter, and plaintiff was unable to cite any prior conduct that would have put defendants on notice that the receptionist had a propensity for violence. The Yelp reviews cited by plaintiff did not name the receptionist and made no reference to violent conduct.

Troy v. Fagelman, NY Slip Op 00246 (1st Dep't January 14, 2021)

Here is the decision.

Appellate practice.

Defendant's failure to seek dismissal of the claim before the trial court precludes seeking such relief on appeal. 

Villani v. Kings Harbor Multicare Ctr., NY Slip Op 00244 (January 14, 2021)

Here is the decision.

Recission.

The cause of action seeking the equitable remedy of rescission must be dismissed because plaintiffs have a complete and adequate remedy at law.

El Toro Group, LLC v. Bareburger Group, LLC, NY Slip Op 00246 (1st Dep't January 14, 2021)

Here is the decision.

Appellate practice.

Defendants argue that the appeal should be dismissed because plaintiff's appeal from the underlying summary judgment order has been deemed dismissed. However, after the judgment was entered, terminating the right of direct appeal from the order, plaintiff properly appealed from the judgment, pursuant to CPLR 5501[a][1], without any improper delay.

Walsh v. Pisano, NY Slip Op 00245 (1st Dep't January 14, 2021)

Here is the decision.

Waiver of arbitration.

In deciding whether arbitration has been waived, the court considers the extent of the litigation, the length of time between the start of litigation and the request to arbitrate, and whether there is prejudice to the other party. Here, there was service of amended pleadings, but no discovery or motion practice. The length of time between the start of litigation and the demand for arbitration was 26 months, but that length of time, without more, is not enough to effectuate a waiver, as the critical element is prejudice. The Appellate Division rejected the conclusory argument that plaintiff will not be able to properly defend the arbitration due to the passage of time. The statute of limitations defense is still available to plaintiff and can be argued before the arbitrator.

Matter of NBC Universal Media, LLC v. Strauser, NY Slip Op 00091 (1st Dep' January 7, 2021)

Here is the decision.