Prevailing in an Article 78 proceeding.

During the pendency of this proceeding, which was based on a Freedom of Information Law (FOIL) request, the respondents disclosed, with limited redactions, the records that the petitioner sought. The fact that the records were disclosed voluntarily is irrelevant to the issue of whether the petitioner substantially prevailed. Therefore, the petitioner is entitled to attorneys' fees and costs.

Matter of Jaskaran v. City of New York, NY Slip Op 06166 (1st Dep't November 3, 2022)

Here is the decision.

Appellate practice.

It is the appellant's obligation to assemble a proper record on appeal. Here, the appellant did not comply with the Appellate Division's order which directed the submission of a replacement record containing certain materials. The appeal is dismissed, with costs.

Chery v. Simon, NY Slip Op 06104 (2d Dep't November 2, 2022)

Here is the decision.

A motion for spoliation sanctions.

A defendant's negligence in failing to maintain records may constitute a culpable state of mind with respect to spoliation.

Domingo v. 541 Operating Corp., NY Slip Op 06162 (1st Dep't November 3, 2022)

Here is the decision.

Appellate practice.

The appeal from the order must be dismissed, as no appeal lies from an order denying reargument.

Castillo v. Charles, NY Slip Op 06103 (2d Dep't November 2, 2022)

Here is the decision.

Court holiday.

Out-of-state notarizations.

In support of its motion for summary judgment, the plaintiff submitted an affidavit that was notarized outside of New York State and that was not accompanied by a certificate in conformity pursuant to CPLR 2309(c). This is not a fatal defect,  as it may be corrected nunc pro tunc, or pursuant to CPLR 2001, which permits trial courts to disregard mistakes, omissions, defects, or irregularities at any time during an action where a substantial right of a party is not prejudiced. 

American Express Natl. Bank v. Hoffman, NY Slip Op 06779 (2d Dep't November 30, 2022)

Here is the decision.

Legal malpractice.

Recovery for legal malpractice is limited to pecuniary damages.

Broomes v. Legal Aid Socy. of N.Y. City, Inc., NY Slip 06101 (2d Dep't Novembee 2, 2022)

Here is the decision.

A motion to vacate a default.

Respondent failed to demonstrate a reasonable excuse for its default, pursuant to CPLR 5015 [a] [1], as it did not submit proof sufficient to support its contention that it was never served with the order to show cause. Petitioner submitted an affidavit of service and documentary evidence establishing that the order to show cause was served by certified mail and delivered to an individual at respondent's address. Respondent did not proffer any evidence controverting this proof of service, but merely submitted self-serving statements. The motion is denied.

Matter of Pizzarotti, LLC v. New York Concrete Washout Sys., Inc., NY Slip Op 06182 (1st Dep't November 3, 2022)

Here is the decision.

Court holiday.

Specific jurisction.

A New York court may exercise specific jurisdiction over a foreign defendant pursuant to CPLR 302, which is New York's long-arm statute. CPLR 302(a)(1) provides that "a court may exercise personal jurisdiction over any non-domiciliary . . . who in person or through an agent . . . transacts any business within the state or contracts anywhere to supply goods or services in the state[.]" This jurisdictional inquiry is twofold: under the first prong the defendant must have conducted sufficient activities to have transacted business in New York, and under the second prong, the claims must arise from the transactions. In order to satisfy the second prong, the statute requires an articulable nexus or substantial relationship between the cause of action sued upon, or an element thereof, and the defendants' business transactions in New York.  The inquiry is relatively permissive, and does not require causation. There must at least be a relatedness between the transaction and the legal claim such that the latter is not completely unmoored from the former, regardless of the ultimate merits of the claim. Therefore, under CPLR 302(a)(1), jurisdiction is proper even though the defendant never enters New York, so long as the defendant's activities here were purposeful and there is a substantial relationship between the transaction and the claim pled. Where this necessary relatedness is lacking, the claim as too attenuated  from the transaction, or merely coincidental with it.

Aybar v. US Tires & Wheels of Queens, LLC, NY Slip Op 06099 (2d Dep't November 2, 2022)

Here is the decision.

A motion for jurisdictional discovery.

The motion will be denied in the absence of tangible evidence constituting a "sufficient start" to a showing that jurisdiction could exist against the defendant. 

Taxi Tours Inc. v. Go N.Y. Tours, Inc., NY Slip Op 06186 (1st Dep't November 3, 2022)

Here is the decision.