Timeliness of a summary judgment motion.

The Appellate Division unanimously reversed, on the law, the Order which denied defendants' motion for summary judgment dismissing the complaint, reinstated the complaint, and remanded the matter for a determination of the motion on the merits. The motion was timely since it was filed within the time period provided in the preliminary conference order. That deadline is controlling, despite the transfer to another Justice with part rules shortening the time, as there was no subsequent order or directive explicitly providing otherwise.

 Lopez v. Metropolitan Tr. Auth., NY Slip Op 00910 (1st Dep't February 11, 2021)

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Appellate practice.

Plaintiff's fraud in the factum argument involves issues of fact, and, therefore, may not be raised for the first time on appeal. 

Shilpa Saketh Realty, Inc. v. Vidiyala, NY Slip Op 00917 (1st Dep't February 11, 2021)

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Discovery of privileged information.

In these insurance coverage actions, the Appellate Division unanimously affirmed, with costs, the motion court's exercise of its broad discretion in denying the insurers' motions to compel discovery of the NFL's defense and settlement materials from the underlying action. The cooperation clauses in the insurance policies did not operate as waivers of the NFL's attorney-client and work-product privileges. Neither was there a waiver of the attorney-client privilege merely because the parties had a common interest in the outcome of the underlying actions. Nor did the NFL, by seeking coverage, put its privileged and protected information at issue.

Alterra Am. Ins. Co. v. National Football League, NY Slip Op 00900 (1st Dep't February 11, 2021)

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Court holiday.

Appellate practice.

Plaintiff's assertion that the voluntary payment doctrine, equitable estoppel, and waiver bar the accounting is improperly raised for the first time on appeal. 

U.S. Bank, N.A. v. Cordero, NY Slip Op 00819 (1st Dep't February 9, 2021)

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Waiver of arbitration.

By participating in the lawsuit for two years before filing its motion to compel arbitration, defendant waived its right to assert that the action is barred by the arbitration agreement. Defendant failed to plead the arbitration agreement as an affirmative defense, and did not produce it in response to plaintiff's discovery request. Plaintiff demonstrated prejudice, as she had already expended considerable time and resources in litigating her claims in court.

Wallace v. Tri-Med Home Care Servs., Inc., NY Slip Op 00821 (1st Dep't February 9, 2021)

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Court holiday.

911 calls and liability.

The Appellate Division unanimously reversed, on the law, the Order granting defendants' motion to dismiss the complaint. Plaintiff's allegations are sufficient to establish a special relationship between the City and the decedent, bringing her claim within the exception to the general rule that a municipality may not be held liable to a person injured by the breach of a duty that it owes to the general public, such as the duty to provide ambulance service. The allegation that the 911 operator told plaintiff that "we are on our way" is sufficient to establish defendants' assumption of an affirmative duty to act on the decedent's behalf. Plaintiff sufficiently alleged justifiable reliance on the call operator's statement through an affidavit submitted in opposition to defendants' motion in which she listed several additional actions she would have taken to secure help but for the operator's assurance.

Xenias v. City of New York, NY Slip Op 00647 (1st Dep't February 4, 2021)

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Appellate practice.

Plaintiff's argument that the limitations period should have been tolled until she was granted letters of administration was not properly before the Appellate Division, because it was raised for the first time on reargument/renewal and was not based on new facts or a change in the law. In any event, the limitations period is not tolled during the pendency of a petition for letters of administration.

Xenias v. Mount Sinai Health Sys. Inc., NY Slip Op 00648 (1st Dep't February 4, 2021)

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Out-of-possesson landlords.

An out-of-possession landlord can be held liable for injuries that occur on its premises only if the landlord has retained control over the premises and if the landlord is contractually or statutorily obligated to repair or maintain the premises or has assumed a duty to repair or maintain the premises by virtue of a course of conduct.

Aponte v. Lee, NY Slip Op 00539 (2d Dep't February 3, 2021)

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Confessions of judgment.

A person seeking to vacate a judgment entered upon the filing of an affidavit of confession of judgment must commence a separate plenary action.

Ace Funding Source, LLC v. Myka Cellars, Inc., NY Slip Op 00538 (2d Dep't February 3, 2021)

Here is the decision.