Appellate practice.

An order issued sua sponte is not appealable as of right, pursuant to CPLR 5701[a][2]. However, the Appellate Division may deem the notice of appeal a motion for leave to appeal, and grant leave, pursuant to CPLR 5701[c].

A&L 1664 LLC v. Jaspar Hospitality LLC, NY Slip Op 00264 (1st Dep't January 18, 2022)

Here is the decision.

A motion for a preliminary injunction.

The motion is denied because plaintiff seeks injunctive relief that, effectively, is the ultimate relief sought in the first cause of action. In addition, plaintiff alleges harm that is compensable by measurable money damages, and, therefore, it is not irreparable.

Montgomery v. 215 Chrystie LLC, NY Slip Op 00253 (1st Dep't January 13, 2022)

Here is the decision.

CPLR 3215.

A plaintiff seeking leave to enter a default judgment must file proof of: (1) service of a copy or copies of the summons and the complaint; (2) the facts constituting the claim; and (3) the defendant's default. In order to defeat a facially sufficient motion, the defendant must show either that there was no default, or that it had a reasonable excuse for its delay and a potentially meritorious defense.

U.S. Bank N.A. v. Crockett, NY Slip Op 00211 (2d Dep't January 12, 2022)

Here is the decision.

Summary judgment motions.

The motion court will not consider an affidavit submitted in opposition when the facts alleged therein materially conflict with the party's prior deposition testimony.

Lambert v. Bonilla, NY Slip Op 00251 (1st Dep't January 13, 2022)

Here is the decision.

Respondeat superior.

Plaintiff alleges that defendant's security guard sprayed him with a white powder, causing injuries to plaintiff. However, plaintiff fails to allege that the guard was acting within the scope of his duties for defendant, and, therefore, fails to state a cause of action against defendant.

Moroshkin v. Trinity Church, NY Slip Op 00254 (1st Dep't January 13, 2022)

Here is the decision.

Partnership Law § 51(1).

"A partner is co-owner with his partners of specific partnership property holding as a tenant in partnership." On the death of a partner, his right in specific partnership property vests in the surviving partner or partners. A deceased partner's representative is not entitled to participate in, or interfere with, the continuation of or winding up of partnership business by the surviving partner or partners.

Abruzzi v. Bond Realty Inc., NY Slip Op 00156 (2d Dep't January 12, 2022)

Here is the decision.

Judicial review of a condominium board's actions.

Under the business judgment rule, a court's inquiry is limited to whether the board acted within the scope of its authority under the bylaws, which is a necessary threshold inquiry, and whether the board acted in good faith to further the legitimate interests of the condominium. Absent a showing of fraud, self-dealing, or unconscionability, the court will not inquire as to the wisdom or soundness of the business decision.

Katz v. Board of Mgrs. of Stirling Cove Condominium Assn., NY Slip Op 00033 (2d Dep't Janury 5, 2022)

Here is the decision.

Summary judgment in a negligence action.

A defendant moving for summary judgment in a negligence action has the burden of establishing, prima facie, that he was not at fault in the happening of the accident. Here, in its moving papers, the defendant submitted deposition testimony which provided conflicting evidence as to the facts surrounding the incident. Viewing the evidence in the light most favorable to the plaintiff, as the nonmoving party, the defendant failed to satisfy the prima facie burden. The motion is denied, without considering the sufficiency of the opposing papers. 

Wiessner v. Phillips, NY Slip Op 00216 (2d Dep't January 2, 2022)

Here is the decision.

The tort of conversion.

The cause of action is established where the plaintiff owns and has a right to possession of personal property and proves that the property is in the unauthorized possession of the defendant who has acted to exclude the plaintiff's ownership rights.

Dragons 516 Ltd. v. GDC 138 E 50 LLC, NY Slip Op 00121 (1st Dep't January 11, 2022)

Here is the decision.

CPLR 302(a)(3).

In the context of a commercial tort, where the damage is solely economic, the situs of commercial injury is where the original critical events associated with the action or dispute took place, not where any financial loss or damages occurred.

Quad Capital Portfolio A LLC v. AbbVie Inc., NY Slip Op 00065 (1st Dep't January 6, 2022)

Here is the decision.

CPLR 3215(c).

The statute provides that if a plaintiff fails to "take proceedings" for the entry of judgment within one year after the defendant's default, the court shall not enter judgment, but shall dismiss the complaint as abandoned. In this action to foreclose a mortgage, the Second Department addresses for the first time whether the presentment to the court of a proposed ex parte order to show cause for an order of reference, which is rejected by the court for defects inherent in the papers, qualifies as a taking of proceedings within the meaning of the statute. The Second Department holds that it does qualify.

Citibank, N.A. v. Kerszko, NY Slip Op 00032 (2d Dep't January 5, 2022)

Here is the decision.