Appellate practice.

The right of direct appeal therefrom terminated with the entry of the order and judgment of foreclosure and sale in the action.

CIT Bank, N.A. v. Fernandez, NY Slip Op 01763 (2d Dep't March 16, 2022)

Here is the decision.

Alter ego liability.

Alter ego liability is not an independent cause of action in New York.

Perez v. Long Is. Concrete Inc., NY Slip Op 0887 (1st Dep't March 17, 2022)

Here is the decision.

CPLR 3024[b].

The defendant's motion to strike portions of the complaint is denied, as he has made no showing that the purportedly scandalous or prejudicial allegations are irrelevant.

Robinson v. Dinneen, NY Slip Op 01889 (1st Dep't March 17, 2022)

Here is the decision.

CPLR 3211(7).

On a defendant's motion to dismiss a complaint for failure to state a cause of action, the court must construe the complaint liberally, accept the allegations as true, and gve the plaintiff the benefit of every favorable inference. Whether the plaintiff can ultimately establish its allegations is not part of the calculus in deciding the motion. Unlike on a motion for summary judgment where the court searches the record and assesses the sufficiency of the parties' evidence, on a motion to dismiss the court merely examines the adequacy of the pleadings.

Ayers v. Bloomberg, L.P., NY Slip Op 01762 (2d Dep't March 16, 2022)

Here is the decision.

Expert opinions.

In this medical malpractice action, the expert is qualified to render an opinion notwithstanding that the expert is anonymous, pursuant to CPLR 3101[d][1][i], from out of state, pursuant to CPLR 2309[c], and does not purport to have worked at a New York ambulatory surgery center. 

Barahona v. Marcus, NY Slip Op 01731 (1st Dep't March 15, 2022)

Here is the decision.

The timeliness of motions for leave to renew.

Under certain circumstances, a court of original jurisdiction may entertain a motion for leave to renew a prior order or judgment based on newly discovered evidence, even after an appellate court has rendered a decision on that order or judgment. However, absent any of the circumstances set forth in CPLR 5015, which are inapplicable here, a motion for leave to renew based upon an alleged change in the law must be made prior to the entry of a final judgment, or before the time to appeal has fully expired. Here, the petition was no longer pending when petitioner made its motion, based on an alleged change in the law, and, therefore, the motion was untimely.

Matter of 160 E. 84th St. v. New York State Div. of Hous. & Community Renewal, NY Slip Op 01729 (1st Dep't March 15, 2022)

Here is the decision.

A cause of action for assault.

A menacing physical act is required to support the essential element of an apprehension of imminent harm. An allegation of finger-pointing and generalized yelling, without more, is insufficient. Here, the element is satisfied because the plaintiff alleges that the defendant, while screaming an epithet, encroached upon her.

Berg v. Chelsea Hotel Owner, LLC, NY Slip Op 01511 (1st Dep't March 10, 2022)

Here is the decision.

Standing in a mortgage foreclosure action.

The defendant executed a note, promising to repay a loan which was secured by a mortgage on real property. The mortgage was subsequently assigned to the plaintiff. The defendant answered the complaint, asserting several affirmative defenses, including that the plaintiff lacked standing. Contrary to the defendant's contention, by annexing to the complaint a copy of the note, endorsed to the plaintiff, the plaintiff established, prima facie, that it had physical possession of the note when it commenced the action, and, therefore, that it had standing to foreclose. Where the note is affixed to the complaint, it is unnecessary to give factual details of the delivery in order to establish that possession was obtained prior to a particular date.

Deutsche Bank Nat'l Trust Co. v. Blackman, NY Slip Op 01289 (2d Dep't March 2, 2022)

Here is the decision.

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.