Appellate practice.

The Appellate Division will not consider arguments that are raised for the first time on appeal.

Newport E. Inc. v. Sviba Floral Decorators, Inc., NY Slip Op 00819 (1st Dep't February 8, 2022)

Here is the decision.

Limitations period for medical malpractice.

The action must be commenced within two and one-half years of the alleged act, omission, or failure, or, where there is continuous treatment, the last treatment for the same illness, injury, or condition which gave rise to the alleged act, omission, or failure. Under the continuous treatment doctrine, the limitations period is tolled until the end of the course of treatment on three conditions: (1) the patient continued to seek, and obtained, an actual course of treatment from the defendant during the relevant period; (2) the course of treatment was for the same conditions or complaints underlying the plaintiff's claim; and (3) the treatment is continuous. There may be continuity of treatment when further treatment is explicitly anticipated by both the physician and patient, as manifested in the form of a regularly scheduled appointment for the near future in conformance with the periodic appointments which characterized the treatment in the immediate past. However, a discharge by a physician does not preclude application of the toll if the patient timely initiates a return visit to complain about, and seek further treatment for, conditions related to the earlier treatment.

Chvetsova v. Family Smile Dental, NY Slip Op 00650 (2d Dep't February 2, 2022)

Here is the decision.

Court holiday.

Tax estoppel.

Tax estoppel is applicable where the party seeking to contradict a tax return's factual statements as to ownership of an entity signed the return, and has failed to assert any basis for not crediting the statements.

Tradesman Program Mgrs., LLC v. Doyle, NY Slip Op 00747 (1st Dep't February 3, 2022)

Here is the decision.

Service of process on a corporation.

Service on a corporation by delivering process to the Secretary of State is not personal delivery to the corporation or to an agent designated under CPLR 318.

Barnett v. Diamond Fin. Co., Inc., NY Slip Op 00648 (2d Dep't February 2, 2022)

Here is the decision.

CPLR 317.

A defendant who has been served with a summons other than by personal delivery may be allowed to defend the action upon the court's finding that the defendant did not personally receive notice of the summons in time to defend and has a potentially meritorious defense. However, the mere denial of receipt of service of the summons and complaint does not demonstrate that the defendant did not receive notice of the action in time to defend.

Barnett v. Diamond Fin. Co., Inc., NY Slip Op 00648 (2d Dep't February 2, 2022)

Here is the decision.

CPLR 5015(a)(2).

In order to succeed on a motion to vacate an order or judgment on the ground of newly discovered evidence, the movant must establish that the evidence could not have been discovered earlier through the exercise of due diligence, and that the newly discovered evidence would probably have produced a different result.

Abakporo v. Abakporo, NY Slip Op 00647 (2d Dep't February 2, 2022)

Here is the decision.

Priority of security interests.

Under UCC § 9-330(d), "a purchaser of an instrument has priority over a security interest in the instrument perfected by a method other than possession if the purchaser gives value and takes possession of the instrument in good faith and without knowledge that the purchase violates the rights of the secured party." In the absence of such a purchase, the timing of the filing or perfection of the parties' security interests determines the rank of their priority, pursuant to UCC § 9-322[a][1].

NRT N.Y., LLC v. Middlegate Funding LLC, NY Slip Op 00646 (1st Dep't February 1, 2022)

Here is the decision.

CPLR 3212[f].

A summary judgment motion will be denied as premature where there is an evidentiary basis to suggest that additional discovery may lead to relevant evidence, or that facts essential to opposing the motion are exclusively within the knowledge and control of the movant.

Brooklyn Cancer Care Med., P.C. v. Brooklyn Hosp. Ctr., NY Slip Op 00395 (2d Dep't January 26, 2022)

Here is the decision.

An untimely motion to change venue.

It is a proper exercise of discretion to grant the motion when the defendant's delay can be attributed to plaintiff's willful omissions or misleading statements and the defendant moves promptly after ascertaining the truth about plaintiff's residence.

Montgomery v. ELRAC, Enter. Holdings, Inc., NY Slip Op 00508 (1st Dep't January 27, 2022)

Here is the decision.

CPLR 3215[f].

On a motion for leave to enter a default judgment against a defendant based on the failure to answer or appear, the plaintiff must submit proof of service of the summons and complaint, proof of the facts constituting the cause of action, and proof of the defendant's default. In order to defeat a facially sufficient CPLR 3215 motion, a defendant must show either that there was no default, or that he had a reasonable excuse for his delay and a potentially meritorious defense.

Bank of N.Y. Mellon v. Lee, NY Slip Op 00392 (2d Dep't January 26, 2022)

Here is the decision.