Plaintiff's assertion that the motion to dismiss is premature because additional discovery is necessary is unavailing. Plaintiff fails to offer anything other than conjecture to support this position.
Rios v. City of New York, NY Slip Op 06110 (NY Slip Op 06110 (1st Dep't November 9, 2021)
In this Article 78 action, petitioner's claim of agency bias is unpreserved, and the Appellate Divison has no discretionary authority or interest of justice jurisdiction in reviewing the agency's determination.
Matter of 383 8th LLC v. City of New York, NY Slip Op 06027 (1st Dep't November 4, 2021)
The New York State Division of Human Rights' investigation of the disability discrimination complaint constitutes a quasi-judicial discretionary action taken during the performance of governmental functions, and, therefore, the agency is shielded from liability.
Meehan of Huntington, Inc. v. State of New York, NY Slip Op 05778 (1st Dep't October 21, 2021)
When plaintiff fails to appear for a mandatory court conference, regardless of whether the court issues an order of dismissal, the action is dismissed.
HSBC Mtge. Corp. (USA) v. Marble Hill at 29, Inc., NY Slip Op 05922 (1st Dep't October 28, 2021)
The court does not have personal jurisdiction over a defendant when a plaintiff fails to properly effect service of process. Where process has not been served upon a defendant, all subsequent proceedings are rendered null and void.
Wang v. Stony Brook Univ. Hosp., NY Slip Op 05891 (2d Dep't October 27, 2021)
In order to implicate the tolling provision, the understanding that treatment is ongoing must be shared by both physician and patient.
Caraballo v New York Presbyt. Hosp./Weill Cornell Med. Ctr., NY Slip Op 05920 (1st Dep't October 28, 2021)
This action is brought by plaintiff-buyer, who entered into a written agreement to purchase a cooperative apartment from defendants-sellers. Plaintiff seeks the return of a down payment that plaintiff paid to secure her performance under the parties' contract. Defendants retained the deposit when plaintiff failed to close. Supreme Court granted plaintiff's motion for summary judgment in order to prevent unjust enrichment. The Appellate Division reversed. A claim for unjust enrichment will not stand in the face of the written agreement. An appeal to equity is unavailing, since it is settled law that a vendee who defaults on a real estate contract without lawful excuse cannot recover the down payment.
Jennings v. Silfen, NY Slip Op 05923 (1st Dep't October 28, 2021)
Referees derive their authority from an order of reference by the court, which can be only be made upon the parties' consent. Absent consent, the referee has the power only to hear and report his findings. CPLR 4403 requires a motion to reject a referee's report to be made within 15 days of the filing of the report, while 22 NYCRR 202.44(a) requires the defendant to move to confirm or reject the report within 30 days after notice of the filing of the report.
HSBC Bank USA, N.A.. v. Sewell, NY Slip Op 05850 (2d Dep't October 27, 2021)
No appeal lies from an order denying reargument.
Bank of Am., N.A. v. Alrasheed, NY Slip Op 05848 (2d Dep't October 27, 2021)
The court refused to admit into evidence three statements allegedly made by plaintiff and recorded in his hospital records about the manner in which his accident happened. These statements are not admissible as admissions against interest, since the evidence adduced outside the jury's presence failed to establish that plaintiff was the source of the information contained in one of the statements, and defendants failed to produce the interpreters through whom the other two statements were made to confirm that they were objective and competent and that their interpretations were accurate. The statements are not admissible under the business records exception to the hearsay rule, since they are not germane to the treatment or diagnosis of plaintiff's injuries.
Nassa v. 1512 LLC, NY Slip Op 05927 (1st Dep't October 28, 2021)
