CPLR 3025.

A party may amend a pleading, by leave of court, at any time, before or after judgment, so as to conform the pleading to the evidence. Applications to amend pleadings are within the sound discretion of the court, and leave shall be freely given upon such terms as may be just, even if the amendment substantially alters the theory of recovery.

Americore Drilling & Cutting, Inc. v. EMB Contr. Corp., NY Slip Op 05845 (2d Dep't October 27, 2021)

Here is the decision.

Derivative claims.

Defendant's motion to dismiss the complaint was granted on the ground that plaintiff lacks standing to assert the claims because they are derivative, not direct. Under New York law, a shareholder lacks standing to pursue a direct cause of action to redress wrongs suffered by the corporation. Such claims must be asserted as derivative claims, for the benefit of the corporation. In determining whether a claim is derivative or direct, a court should consider (1) whether the corporation or the individual shareholders suffered the alleged harm,  and (2) whether the corporation or the individual shareholders would receive the benefit of any recovery or other remedy.

Sajust, LLC v. Mendelow, NY Slip Op 05835 (1st Dep't October 26, 2021)

Here is the decision.

Jury verdicts.

A verdict for the defendant may not be set aside as contrary to the weight of the evidence unless the evidence preponderates so heavily in the plaintiff's favor that it could not have been reached on any fair interpretation of the evidence. Issues of credibility are for the jury, and the jury's resolution of those issues is given deference. Where there is conflicting expert testimony, the jury is entitled to accept one expert's opinion and reject that of another expert.

Abbene v. Conetta, NY Slip Op 05682 (2d Dep't October 20, 2021)

Here is the decision.

CPLR 3012(d).

The statute authorizes an extension of time to appear and plead upon such terms as may be just, and upon a showing of reasonable excuse for the delay or default. Here, the delay in filing an answer was occasioned by law office failure, which constitutes good cause. Defendant showed an intent to defend when it sought to extend its time to answer by stipulation. Plaintiff has not shown that he would be prejudiced, and New York has a strong policy in favor of litigating matters on the merits. 

Velasquez v. New York City Tr. Auth./MTA, NY Slip Op 05803 (1st Dep't October 21, 2021)

Here is the decision.

CPLR 2001.

At any stage in an action, the court may permit a mistake, omission, defect, or irregularity to be corrected upon such terms as may be just, or, if a party's substantial right is not prejudiced, the mistake, omission, defect, or irregularity shall be disregarded. 

Wilmington Sav. Fund Socy., FSB v. Matamoro, NY Slip Op 05741 (2d Dep't October 20, 2021)

Here is the decision.

Contract interpretation.

Plaintiff's motion to dismiss so much of the counterclaim as sought damages in excess of $2 million and third-party defendants' motion to dismiss the third-party complaint were granted. The contractual provision that, in the event of plaintiff's default, defendants are entitled to retain the deposit as liquidated damages unambiguously refers to the deposit already made and held in escrow, as a party cannot retain something that it has not already acquired. As to the third-party complaint against plaintiff's members in their individual capacities, the pleadings fail to allege facts sufficient to demonstrate the inequity, fraud, or malfeasance necessary to sustain a claim to pierce the corporate veil.  The third-party complaint also fails to plead any facts to substantiate the conclusory allegations of a scheme to undercapitalize plaintiff. To the extent that the third-party complaint alleges that plaintiff is undercapitalized and might not be able to pay a judgment, third-party plaintiffs could not be damaged by such a scheme, as the contractual remedy is to retain the deposit already held in escrow. 

138 Bruckner Owner LLC v. Anjost Corp., NY Slip Op 05768 (1st Dep't October 21, 2021)

Here is the decision.

CPLR 3102(c).

The petition is denied to the extent that it seeks a pre-action order to preserve and disclose video camera recordings taken on the bus involved in petitioner's trip-and-fall. The petition demonstrates that petitioner knows the date of the accident, the place of the accident, the individuals or entities involved in the accident, and the alleged cause of the accident. Therefore, she is in possession of facts sufficient to frame her complaint, and the only purpose of reviewing the video camera recordings would be to explore whether there are additional causes of action or alternative theories of liability. This is not a proper purpose for invoking the statute.

Matter of White v. New York City Tr. Auth., NY Slip Op 05805 (1st Dep't October 21, 2021)

Here is the decision.

CPLR 3211[a][3] and 3018[b].

Standing is in the nature of an affirmative defense to be pleaded and proved. There is no requirement that a plaintiff allege standing in the complaint.

Wilmington Sav. Fund Socy., FSB v. Matamoro, NY Slip Op 05741 (2d Dep't October 20, 2021)

Here is the decision.

CPLR 603.

The order which granted plaintiffs' motion to sever their declaratory judgment claim from defendant's counterclaims was affirmed.  Most of the plaintiffs in this action are not counterclaim defendants, and they would be prejudiced if severance were denied.

Spicer v. Garda World Consulting (UK) Ltd., NY Slip Op 05681 (1st Dep't October 19, 2021)

Here is the decision.

Establishing standing in a foreclosure action.

The plaintiff establishes standing by showing that it had either a written assignment or physical possession of the underlying note and mortgage prior to commencement. A conclusory statement in an affidavit will not suffice when standing is raised as a defense. Here, the affiant's bare claim that plaintiff "has been in continuous possession of the Note and Mortgage prior to referring the Loan to be foreclosed" is not sufficient to establish standing.

U.S. Bank Trust, N.A. v. Francis, NY Slip Op 05655 (1st Dep't October 14, 2021)

Here is the decision.

Res ipsa loquitur in a defective sidewalk action.

The Appellate Division affirmed the order which denied defendant's motion for summary judgment dismissing the complaint. Plaintiff's failure to specifically plead res ipsa loquitur does not bar her from invoking the doctrine where, as here, the facts warrant its application. A sidewalk collapse is not the type of incident which ordinarily occurs in the absence of negligence, and defendant failed to show that it did not have exclusive control over the maintenance and repair of the sidewalk slab which collapsed.  In addition, defendant did not demonstrate that plaintiff's own negligence caused the collapse. 

Williams v. Forward Realty Corp., NY Slip Op 05658 (1st Dep't October 14, 2021)

Here is the decision.