Claims against New York State.

Suits against the State are allowed only by the State's waiver of sovereign immunity and in derogation of the common law, and, therefore, statutory requirements must be strictly construed. Pursuant to Court of Claims Act § 11(b), the claim must specify (1) the nature of [the claim]; (2) the time when it arose; (3) the place where it arose; (4) the items of damage or injuries claimed to have been sustained; and (5) the total sum claimed. The pleading requirement is that the information be sufficiently definite to enable the State to investigate the claim promptly and to ascertain its liability, if any. Absolute exactness is not required, but the Court of Claims Act does not require the State to ferret out or assemble information that  § 11(b) obligates the claimant to allege.

Fenton v. State of New York, NY Slip Op 00650 (2d Dep't February 8, 2023)

Here is the decision.

Appellate practice.

Plaintiffs' purported appeal of the Supreme Court's trial order dismissing their 42 USC §§ 1983 and 1988 claims must be dismissed for lack of jurisdiction, as it is taken from a non-appealable paper.

Small v. City of New York, NY Slip Op 00749 (1st Dep't February 9, 2023)

Here is the decision.

Court holiday.

The voluntary payment doctrine.

The doctrine bars recovery of payments that are made voluntarily and with full knowledge of the facts, and in the absence of fraud or mistake of material fact or law. There is a presumption that payments are voluntary, and a protest of payment must be memorialized in a contemporaneous writing.

ECI Fin. Corp. v. Resurrection Temple of Our Lord, Inc., NY Slip Op 00649 (2d Dep't February 8, 2023)

Here is the decision.

An order of preclusion.

For failure to comply with discovery, plaintiffs are precluded from offering evidence at trial. Plaintiffs' conclusory and unsubstantiated claim of law office failure does not excuse their default in failing to comply with discovery demands and numerous court orders for over two years.

T.W. v. Phillip Bus Serv., NY Slip Op 00750 (1st Dep't February 9, 2023)

Here is the decision.

Amending an answer.

The defendant filed her amended answer 20 months after filing the original answer, well beyond the period within which an amended pleading could have been served as of right, pursuant to CPLR 3025[a], without obtaining leave of court or the parties' stipulation. However, the plaintiff did not reject the amended answer. By retaining the amended pleading without objection, the plaintiff waived any objection as to untimeliness. The motion to strike the amended answer as untimely is denied.

Citibank, N.A. v. Saldarriaga, NY Slip Op 00647 (2d Dep't February 8, 2023)

Here is the decision.

Extending time to effect service.

In the interest of justice, plaintiff's motion for an extension of time is granted, pursuant to  CPLR 306-b. The interest of justice standard requires a careful judicial analysis of the factual setting of the case and a balancing of the competing interests as presented by the parties. In applying the standard, the court may consider diligence, or lack thereof, along with any other relevant factor, including expiration of the statute of limitations, the meritorious nature of the cause of action, the length of delay in service, the promptness of a plaintiff's request for the extension of time, and prejudice to defendant. No one factor is determinative. Here, the record demonstrates that the statute of limitations had not expired at the time of plaintiff's motion; plaintiff alleges potentially meritorious claims; there was a short delay in service; plaintiff promptly requested an extension; and defendant has not demonstrated that he would be prejudiced if the extension were granted.

Gjurashaj v. ABM Indus. Groups, LLC, NY Slip Op 00753 (1st Dep't February 9, 2023)

Here is the decision.

A premises liability case.

A defendant establishes its entitlement to summary judgment by showing that it neither created the allegedly dangerous or defective condition nor had actual or constructive notice of the condition. The defendant can make its prima facie showing by establishing that the plaintiff cannot identify the cause of his fall without engaging in speculation. However, a plaintiff's inability to testify as to how an accident occurred does not require dismissal where negligence and causation can be established with circumstantial evidence. To that end,  the record must render the other possible causes sufficiently remote to enable the trier of fact to reach a verdict based upon the logical inferences to be drawn from the evidence, and not upon speculation.

Buckstine v. Schor, NY Slip Op 00646 (2d Dep't February 8, 2023)

Here is the decision.

Appellate practice.

Plaintiffs' failure to submit opposition papers to defendants' motion to dismiss does not render the order an unappealable order entered upon default, pursuant to CPLR 5511, as plaintiff appeared and orally opposed the motion during the final discovery conference.

Ganz v. Florman, NY Slip Op 00632 (1st Dep't February 7, 2023)

Here is the decision.

Court holiday.

Amending a pleading.

The motion court providently exercised its discretion in granting plaintiff's motion for leave to amend the complaint to correct defendant's name, pursuant to CPLR 305(c).  Defendant did not dispute proper service, except by asserting that a defense based on improper service was raised in the answer. However, that defense did not specify any way in which service was improper. Moreover, defendant did not move to dismiss the complaint for improper service within 60 days of asserting the defense, thereby waiving any objection based on service, pursuant to CPLR 3211[e].

Mariette v. Amber Ct. of Pelham Gardens LHCSA, LLC, NY Slip Op 00490 (1st Dep't February 2, 2023)

Here is the decision.