A dismissed civil conspiracy claim.

 In the absence of any actionable tort, the cause of action does not lie.

Platt v. Berkowitz, NY Slip Op 01405 (1st Dep't March 3, 2022)

Here is the decision.

CPLR 3216.

A court may not dismiss an action for failure to prosecute unless the statutory preconditions to dismissal are met, including that issue has been joined. Here, the conditional order of dismissal was improper, since none of the defendants had submitted an answer to the complaint, and, therefore, issue was never joined.

Central Mtge. Co.. v. Ango, NY Slip Op 01286 (2d Dep't March 2 2022)

Here is the decision.

CPLR 3025[b] and 3043[b].

The court providently denied the plaintiff's request to amend his supplemental bill of particulars to add a theory that his arrest resulted in a delay in his parole hearing. Plaintiff provided neither a factual basis for the proposed amendment nor an excuse for seeking leave to amend six months after filing the note of issue.

Reese v. City of New York, NY Slip Op 01406 (1st Dep't March 3, 2022)

Here is the decision.

CPLR 3211[e].

A defense of lack of standing is waived if not asserted in an answer or a pre-answer motion to dismiss.

Castaldi v. Syosset Cent. Sch. Dist., NY Slip Op 01285 (2d Dep't March 2, 2022)

Here is the decision.

CPLR 2104.

A stipulation of settlement may be evinced by multiple writings. However, where those writings, taken together, do not show agreement on all material terms, the alleged agreement is unenforceable.

Xhepexhiu v. Mitaj, NY Slip Op 04109 (1st Dep't March 2, 2022)

Here is the decision.

Summary judgment.

Summary judgment is inappropriate where, in order to decide the motion, the court must make a factual finding.

Aviation Distribs. Inc., Formed May 1945 v. Aviation Distribs. Inc., Formed 2014, NY Slip Op 01378 (1st Dep't March 3, 2022)

Here is the decision.

Contractual indemnification.

The right to contractual indemnification depends upon the specific language of the contract. A promise to indemnify will not be found unless it can be clearly implied from the language and purpose of the entire agreement and the surrounding circumstances. A party that moves for summary judgment dismissing a claim for contractual indemnification must make a prima facie showing that it was not contractually obligated to indemnify the party asserting the indemnification claim. This may be accomplished by showing that, under the circumstances, an indemnification clause in a contract between the parties either was not triggered or was otherwise inapplicable.

Burgos v. 14 E. 44 St., LLC, NY Slip Op 01284 (2d Dep't March 2, 2022)

Here is the decision.

A cause of action for breach of contract.

The essential elements of a breach of contract cause of action are the existence of a contract, the plaintiff's performance under the contract, the defendant's breach of that contract, and resulting damages. Here, the plaintiff was not a party to, or intended beneficiary of, the escrow agreement, and, therefore, cannot recover for its alleged breach.

Blank v. Petrosyants, NY Slip Op 01283 (2d Dep't March 2, 2022)

Here is the decision.

CPLR 7502[a][i].

Venue is proper in the county where at least one of the parties is doing business.

Matter of Finkelstein v. Finkelstein, NY Slip Op 01268 (1st Dep't March 1, 2022)

Here is the decision.

CPLR 3213.

The action for summary judgment in lieu of complaint was appropriately commenced because the instruments sued upon were for the payment of money only and required no reference to external documents to determine their clear and material terms.

YH Lex Estates LLC v. H F Z Capital Group LLC, NY Slip Op 01282 (1st Dep't March 1, 2022)

Here is the decision.

CPLR 5015[a][1].

A party seeking to vacate a default judgment must demonstrate both a reasonable excuse for the default and a meritorious defense. Here, the defendant failed to proffer a reasonable excuse for the default in responding to the plaintiff's motion for summary judgment. Although, on the motion's return date, the defendant's counsel was moving his office to a new location, the defendant gives no reason why counsel could not have responded to the motion prior to the move. Counsel took no action for three weeks after receiving notice of the motion. The Appellate Division notes that this default was not an isolated incident on the defendant's part.

Aetna Life Ins. Co. v. UTA of KJ Inc., NY Slip Op 01266 (1st Dep't March 1, 2022)

Here is the decision.