Appellate practice.

In this rent overcharge action, the plaintiffs' motion on the coverage period issue purported to be for both renewal and reargument. However, the motion on this point argued only that the court had overlooked or misapprehended the applicable law. Thus, the motion was for reargument only, the denial of which is not appealable. 

Alekna v. 207-217 W. 110 Portfolio Owner LLC, NY Slip Op 00178 (1st Dep't January 17, 2023)

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Motions for leave to renew.

In this action to foreclose a mortgage, the Supreme Court properly denied the borrower's cross motion for leave to renew that branch of his motion which was to dismiss the complaint as against him, since the borrower failed to demonstrate that there had been a change in the law that would have altered the prior determination, pursuant to CPLR 2221[e][2].

Citimortgage, Inc. v. Warsi, NY Slip Op 00074 (2d Dep't January 11, 2023)

Here is the decision.

Attorney's fees.

The award of reasonable attorney's fees is within the sound discretion of the Supreme Court based upon such factors as the time and labor required, the difficulty of the issues involved, the skill required to handle the matter, and the effectiveness of the legal work performed.

Boruch v. Rommi Realty, LLC, NY Slip Op 00073 (2d Dep't January 11, 2023)

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CPLR 3121.

The commencement of a personal injury action affirmatively puts the plaintiff's physical and/or mental condition in controversy, and, pursuant to the statute, the defendant may require the plaintiff to submit to an independent medical examination.

Pettinato v. EQR-Rivertower, LLC, NY Slip Op 00068 (1st Dep't January 10, 2023)

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Intervening acts and liability in personal injury actions.

When an intervening act is extraordinary under the circumstances, unforeseeable, or wholly independent or far removed from the defendant's conduct, the act may break the causal nexus as a matter of law. However, that is not the case when the intervening act is a natural and foreseeable consequence of a circumstance created by the defendant. Where the general risk and character of the injuries is foreseeable, the defendant's failure to anticipate the exact manner of the accident does not preclude liability as a matter of law.

Floricic v. City of New York, NY Slip Op 00055 (1st Dep't January 10, 2023)

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A claim for intentional infliction of emotional distress.

In order to survive dismissal, the complaint must allege extreme and outrageous conduct that could be considered utterly intolerable in a civilized community.

Sakthivel v. Industrious Staffing Co., LLC, NY Slip Op 00044 (1st Dep't January 5, 2023)

Here is the decision.

Discovery in a personal injury action.

The court providently exercised its broad discretion in denying the plaintiff's request for further discovery. The plaintiff failed to cite any specific misconduct by the defendants' counsel at the deposition of the building superintendent, and the Appellate Division's review of the transcript does not support the claim of a persistent pattern of frivolous, repetitive, or meritless conduct by the defendants' counsel sufficient to support sanctions. The Appellate Division notes that some objections were not well founded, but that the witness was generally permitted to answer the questions. In addition, many of the questions to which there were objections were vague or improper in other respects. The relevancy of the pictures and video in the record on appeal is unclear since no foundation was provided. The apparent conflict between the affidavit of the defendant's CEO and the testimony of the building superintendent does not warrant re-opening discovery, since the plaintiff filed a note of issue and certificate of readiness certifying that discovery was complete. In any event, the plaintiff had the opportunity to question the superintendent regarding the existence of records concerning mopping activities and complaints of a wet condition on the stairs. The plaintiff also failed to demonstrate that the defendants' failure to produce agreements between them violated outstanding court orders in that there is nothing in the record to indicate that the agreements were the subject of discovery requests that were not complied with by defendants.

Flowers v. Cora Realty Co. LLC, NY Slip Op 00029 (1st Dep't January 5, 2023)

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Appellate practice.

The Supreme Court denied defendant's motion to vacate the judgment of foreclosure, the foreclosure sale to a third party, and the subsequent sale to another third party on procedural grounds, and directed him to renew his motion by order to show cause. No appeal lies from the order, which merely directed defendant to resubmit his motion in proper form. 

AMK Capital Corp. v. CIFRE Realty Corp., NY Slip Op 00024 (1st Dep't January 5, 2023)

Here is the decision.

Acquiring titlte by adverse possession.

Where the parties are tenants in common, the period required by RPAPL 541 is 20 years of continuous and exclusive possession before a cotenant may acquire full title by adverse possession. Even absent an ouster of the co-tenant, the occupying co-tenant must demonstrate open and overt acts which unmistakably repudiate a non-possessory owner's right by one possessing the property. Here, plaintiff's acts of exclusive ownership fulfill that criterion. Plaintiff's claim of right arising from the administrator's deed, which was recorded in the New York City Register's Office on or about November 19, 1992, vested 20 years later, in 2012. Under that claim of right, plaintiff constructed an open and notorious wood deck and other observable improvements on the property, encumbered the property with a construction loan which he later satisfied, and leased portions of the mixed-use building to third parties solely in plaintiff's name. There was no acknowledgement, by plaintiff or anyone else, of any other interest in the property. This satisfies the hostility element, as there is a rebuttable presumption of hostility when possession is accompanied by the usual acts of ownership.

Golobe v. Altchek, NY Slip Op 00031 (1st Dep't January 5, 2023)

Here is the decision.

A claim for negligence and detrimental reliance.

Defendants had a building safety protocol in which no one would be sent up to an apartment without a front desk announcement followed by tenant consent. Plaintiff testified that she knew of and relied on that protocol in unlocking her door while waiting for the food delivery when the building's doorman assaulted her. The motion to dismiss is denied.

Sackas v. 240 E. 46th St. Condominium, NY Slip Op 00046 (1st Dep't January 5, 2023

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Dismissal for neglect to prosecute.

CPLR 205(a) states, "If an action is timely commenced and is terminated in any other manner than by a voluntary discontinuance, a failure to obtain personal jurisdiction over the defendant, a dismissal of the complaint for neglect to prosecute the action, or a final judgment on the merits, the plaintiff . . . may commence a new action upon the same transaction or occurrence or series of transactions or occurrences within six months after the termination . . . . Where a dismissal is one for neglect to prosecute the action made pursuant to [CPLR 3216] or otherwise, the judge shall set forth on the record the specific conduct constituting the neglect, which conduct shall demonstrate a general pattern of delay." 

An action that was dismissed for neglect does not lose the benefit of CPLR 205(a)'s six-month recommencement period unless there is a general pattern of delay in proceeding with the litigation. If the prior dismissal was based on neglect of a lesser magnitude, the plaintiff can take advantage of CPLR 205(a)'s recommencement benefit. In addition, the'general pattern of delay must have been set forth in the record of the court in which the neglect-to-prosecute dismissal occurred.

U.S. Bank Natl. Assn. v. Fox, NY Slip Op 00046 (1st Dep't January 5, 2023

Here is the decision.