Limited discovery.

The Appellate Division affirmed the denial of the petition to quash an out-of-state subpoena pursuant to CPLR 3119(e), and the granting of the motion to compel compliance with the subpoena. The information sought had been judicially determined to be relevant to the matrimonial proceedings pending in Pennsylvania, and that determination is entitled to full faith and credit without further inquiry. Limited discovery of the petitioner's mental health records is not in clear violation of New York law, pursuant to Mental Hygiene Law § 33.13[c][1], where the relevance of the information sought has been established.  In any event, since the issue of whether the petitioner's right to privacy and doctor-patient privilege precludes limited discovery of his mental health records has been litigated in the Pennsylvania courts, he is collaterally estopped from relitigating the issue in New York.

Suresh v. Krishnamani, NY Slip Op 00247 (1st Dep't January 19, 2023)

Here is the decision.

Preliminary injunctions.

The decision to grant or deny a preliminary injunction lies in the sound discretion of the Supreme Court. While the purpose of the preliminary injunction is to preserve the status quo pending a trial, the remedy is considered a drastic one and it should be granted sparingly. In order to be entitled to a preliminary injunction, a movant must establish (1) a probability of success on the merits; (2) the danger of irreparable injury in the absence of injunctive relief; and (3) a balance of the equities in the movant's favor.

203-205 N8 Mb, LLC v. 203-205 W. 8th St., LLC, NY Slip Op 00196 (2d Dep't January 18, 2023)

Here is the decision.

CPLR 5015(a).

Pursuant to the statute, a court that rendered a judgment or order may relieve a party from it on the grounds of excusable default; newly discovered evidence; fraud, misrepresentation, or other misconduct of an adverse party; lack of jurisdiction to render the judgment or order; or reversal, modification, or vacatur of a prior judgment or order on which it is based. In addition to the grounds set forth in the statute, a court, in the exercise of its discretion, may vacate its own judgment or order for sufficient reason and in the interests of substantial justice.

203-205 W. 8th St., LLC v. 203-205 W. 8th St. Loft, LLC, NY Slip Op 00195 (2d Dep't January 18, 2023)

Here is the decision.

Vacating a default.

A defendant seeking to vacate a default in answering a complaint pursuant to CPLR 5015(a)(1) must show both a reasonable excuse for the default and the existence of a potentially meritorious defense.

203-205 W. 8th St., LLC v. 203-205 W. 8th St. Loft, LLC, NY Slip Op 00194 (2d Dep't January 18, 2023)

Here is the decision.

Article 78.

CPLR article 78 may not be used to challenge a determination that was made in a civil action or a criminal proceeding,  except for a finding of summary contempt, pursuant to CPLR 7801[2].

Matter of Borrero v. Banks, NY Slip Op 00231 (1st Dep't January 19, 2023)

Here is the decision.

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)

Here is the decision.

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)

Here is the decision.

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)

Here is the decision.

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)

Here is the decision.

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.