A plaintiff may voluntarily discontinue an action by serving and filing a notice of discontinuance, by filing a written stipulation that is signed by the parties' attorneys of record, or by obtaining a court order discontinuing the action.
Bank of Am., N.A. v. Ali, NY Slip Op 00838 (2d Dep't February 9, 2022)
The court has authority to designate an arbitral forum, since the defendant, even after arguing on a prior motion that the parties were required to arbitrate their dispute, refused to submit the dispute to binding arbitration before any forum.
Meckler v. Molner, NY Slip Op 00943 (1st Dep't February 10, 2022)
Where the plaintiff is the sole witness to the accident and his credibility is placed in issue, the granting of summary judgment on the issue of liability is inappropriate.
Alvarez v. 2455 8 Avenue, LLC, NY Slip Op 00837 (2d Dep't February 9, 2022)
Defendant's motion for leave to renew based on new evidence is denied because the documentary evidence submitted does not conclusively establish, as a matter of law, a defense to the asserted claims, and would not change the prior determination.
Sotheby's, Inc. v. Chowaiki, NY Slip Op 00955 (1st Dep't February 10, 2022)
The arbitrator's authority extends only to those issues that are expressly presented by the parties, and, therefore, the award of fees must be demanded. A prayer for such other relief as is just and proper is not a demand for fees.
Matter of 544 Bloomrest, LLC v. Harding, NY Slip Op 00936 (1st Dep't February 10, 2022)
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)
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)
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)
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)
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)
