Affidavits in support of summary judgment.

A conclusory affidavit or an affidavit by a person without personal knowledge of the facts stated therein does not establish the proponent's prima facie burden on a motion for summary judgment.

Beauvoir v. Samuel, NY Slip Op 02385 (2d Dep't April 13, 2022)

Here is the decision.

CPLR 3121(a).

The statute provides that where a party's physical condition is in controversy, "any party may serve notice on another party to submit to a physical . . . examination by a designated physician." There is no statutory restriction on the number of medical examinations. However, a defendant seeking an additional medical examination must demonstrate that it is necessary. A plaintiff may challenge a defendant's choice of an examining physician based upon a claim of bias against the plaintiff or plaintiff's counsel, or prejudice against the plaintiff if the physician is allowed to testify at trial.

Abdelfattah v. Trevicano, NY Slip Op 02383 (2d Dep't April 13, 2022)

Here is the decision.

Arbitrability.

Unless the parties clearly and unmistakably provide otherwise, the court, not the arbitrator, will decide whether a dispute is arbitrable. An arbitration clause's reference to the American Arbitration Association rules is not clear and unmistakable evidence of the parties' intent to have an arbitrator decide the issue of arbitrability. A party cannot be compelled to arbitrate matters not covered by the arbitration clause.

ALP, Inc. v. Moskowitz, NY Slip Op 02355 (1st Dep't April 12, 2022)

Here is the decision.

A failed claim of civil conspiracy.

The claim must be dismissed because there is no cause of action for conspiracy to commit a tort.

ALP, Inc. v. Moskowitz, NY Slip Op 02355 (1st Dep't April 12, 2022)

Here is the decision.

Post-judgment motions.

One year after the judgment of divorce ended the matrimonial action, the stipulation of settlement of a post-judgment motion was so-ordered. That stipulation was not part of the judgment, but was an independent contract which could not be incorporated into the judgment. Because the court did not retain the power to exercise supervisory control over the action, a plenary action is necessary to enforce the stipulation.

DeGiovine v. Kaufmann, NY Slip Op 02250 (2d Dep't April 6, 2022)

Here is the decision.

"The tomb is empty."

 

Triduum: Dies irae, dies illa.

Triduum: Stabat Mater dolorosa.

Triduum: "Quid est veritas?"

Spy Wednesday.

Summary judgment in a medical malpractice action.

Summary judgment is not appropriate where the parties submit conflicting medical expert opinions.

Buch v. Tenner, NY Slip Op 02247 (2d Dep't April 6, 2022)

Here is the decision.