A cause of action for breach of fiduciary duty.

The elements are (1) the existence of a fiduciary relationship; (2) the defendant's misconduct; and (3) damages directly caused by the defendant's misconduct. The proponent must, at a minimum, establish that the offending parties' actions were a substantial factor in causing an identifiable loss.

Ali v. Chaudry, NY Slip Op 04900 (2d Dep't September 1, 2021)

Here is the decision.

The issue of standing in a contracts action.

The plaintiff lacks standing to assert the claim for an alleged breach, as, on the date of the closing, it assigned its rights in and to the purchase agreement to a nonparty. Therefore, the plaintiff is no longer the real party in interest. However, contrary to the defendant's contention, the plaintiff had standing to assert the remaining causes of action, as it only assigned its rights in the purchase agreement.

298 Humboldt, LLC v. Torres, NY Slip Op 04899 (2d Dep't September 1, 2021)

Here is the decision.

An action to foreclose a reverse mortgage.

The plaintiff establishes its prima facie entitlement to judgment as a matter of law by producing the reverse mortgage, the unpaid note, and evidence of the decedent's death, which constitutes a ground for acceleration of the debt under the terms of the instrument.

James B. Nuttter & Co. v. John Doe 1, NY Slip Op 04910 (2d Dep't September 1, 2021)

Here is the decision.

A dog- bite case.

Since the plaintiff's expert was not a treating physician, the testimony as to the plaintiff's description of how the incident occurred is inadmissible hearsay.

Wilt v. Montvel-Cohen, NY Slip Op 04925 (2d Dep't September 1, 2021)

Here is the decision.

Appellate practice.

There is no appeal as of right from an order which does not determine a motion made on notice, pursuant to CPLR 5701[a][2]. 

Ziegler v. O'Neill, NY Slip Op 04926 (2d Dep't September 1, 2021)

Here is the decision.

CPLR 4401 and 4404.

A motion for judgment as a matter of law may be granted only when the trial court determines that, based on the evidence presented, there is no valid line of reasoning and permissible inferences that could possibly lead rational persons to the jury's conclusion, and no rational process by which the jury could find in favor of the nonmoving party. The trial court must afford the motion's opponent every inference which could properly be drawn from the facts presented, and the facts must be considered in a light most favorable to the nonmovant.

Wasserberg v. Menorah Ctr. for Rehabilitation & Nursing Care, NY Slip Op 04923 (2d Dep's September 1, 2021)

Here is the decision.

Tomorrow's issue: Appellate practice.

CPLR 213(4).

An action to foreclose a mortgage is subject to a six-year statute of limitations, which begins to run on the entire debt once the debt is accelerated. Even if the mortgage is payable in installments, once the debt is accelerated, the entire amount is due and the statute of limitations begins to run on the entire debt.

Persaud v. U.S. Bank N.A., NY Slip Op 04920 (2d Dep't September 1, 2021)

Here is the decision.

Tomorrow's issue: CPLR 4401 and 4404.

Executive Law § 298 and CPLR article 78.

Where the respondent New York State Division of Human Rights, without holding a hearing, renders a determination of no probable cause for a finding of discriminatory conduct, the proper standard of appellate review is whether the determination was arbitrary and capricious or lacked a rational basis.

Matter of Ackerman v. New York State Div. of Human Rights, NY Slip Op 04912 (2d Dep't September 1, 2021

Here is the decision.

Tomorrow's issue: CPLR 213(4).

Contract law and tort liability.

A contractual obligation, standing alone, will generally not give rise to tort liability in favor of a third party. However, A contractor may be said to have assumed a duty of care and, thus, be potentially liable in tort, to third persons when the contracting party, in failing to exercise reasonable care in the performance of its duties, launches a force or instrument of harm.

Santibanez v. North Shore Land Alliance, Inc., NY Slip Op 04921 (2d Dep't September 1, 2021)

Here is the decision.

Tomorrow's issue: Executive Law § 298 and CPLR article 78.

Leave to amend a pleading.

Leave to amend a pleading should be freely given absent prejudice or surprise, and the court should not examine the merits or legal sufficiency of the proposed amendment unless it is palpably insufficient or patently devoid of merit on its face. The burden of demonstrating prejudice or surprise, or that a proposed amendment is palpably insufficient or patently devoid of merit, is on the nonmoving party.

HSBC Bank USA, N.A. v. Lien Thi Ngo,  Slip Op 04909 (2d Dep't September 1, 2021)

Here is the decision.

Tomorrow's issue: Contract law and tort liability.

Appellate practice.

The appellant seeks to argue the merits of the complaint and defendants' cross claims. However, the complaint was stricken for discovery violations and a default judgment was entered on the cross claims. Having failed to move to vacate the default on the cross claims, the appellant is deemed to have admitted all factual allegations contained therein.  Consequently, the appellant's arguments are not properly before the Appellate Division and the order appealed from is affirmed.

Honghui Kuang v. MetLife, NY Slip Op 04908 (2d Dep't September 1, 2021)

Here is the decision.

Tomorrow's issue: Leave to amend a pleading.