The doctrine of governmental function immunity.

The State's providing security measures at the Bronx Psychiatric Campus (BPC) involves a governmental function and the discretionary allocation of resources. In the absence of facts establishing a special relationship between the State and the claimant and the performance of ministerial acts by the State, neither of which is present here, the BPC is immune from liability for the alleged sexual assault of claimant at the BPC.

T.R. v. State of New York, NY Slip Op 01110 (1st Dep't February 17, 2022)

Here is the decision.

Court holiday.

An Article 75 petition to vacate or modify a mediator's award.

The parties unequivocally agreed, in writing, to submit their contract dispute to the mediator, and that they would be "bound by" the mediator's decision. They further agreed to "waive any right to review or appeal from such decision." The plain language of the parties' agreements precludes judicial review.

Matter of Trebuchet Capital Mgt., LP v. Prelude Opportunity Fund, LP, NY Slip Op 00991 (1st Dep't February 15, 2022)

Here is the decision.

The doctrine of judicial estoppel.

A party is judicially estopped from arguing a particular position only if it is truly inconsistent with the party's prior position.

White Rock Ins. Co. PCC Ltd. v. Lloyd's Syndicate 4242, NY Slip Op 00993 (1st Dep't February 15, 2022)

Here is the decision.

CPLR 3217.

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)

Here is the decision.

CPLR 7504.

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)

Here is the decision.

A Labor Law § 240(1) cause of action.

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)

Here is the decision.

CPLR 2221[e].

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)

Here is the decision.

An arbitrator's award of attorneys' fees.

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)

Here is the decision.

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.