An attorney may withdraw from representing a client for good and sufficient cause. The attorney may be permitted to withdraw where the client refuses to pay reasonable legal fees. The decision to grant or deny permission for counsel to withdraw lies within the discretion of the trial court, and the court's decision will not be overturned absent a showing of an improvident exercise of discretion.
Bank of Am., N.A. v. Chadha, NY Slip Op 01173 (2d Dep't March 8, 2023)
It is well-settled that lower federal court decisions are not binding on New York state courts.
Teshabaeva v. Family Home Care Servs. of Brooklyn & Queens, Inc., NY Slip Op 01170 (1st Dep't March 7, 2023)
The Appellate Division may decline to consider an argument which is raised for the first time in a reply brief.
Indymac, F.S.B. v. Baroi, NY Slip Op 01142 (1st Dep't March 2, 2023)
Defendant's motion is granted in the interest of justice. In its moving papers, defendant does not advance a new legal theory, but, instead, presents new evidence from plaintiff's employer that plaintiff's accident occurred at a different site. Defendant also presents a reasonable excuse for its delay in obtaining the new evidence, namely, that its investigation into the accident was stymied by third-party defendant's refusal to comply with discovery and plaintiff's employer's refusal to comply with requests for information.
Sanchez v. Colorado Assoc., LLC, NY Slip Op 01151 (1st Dep't March 2 2023)
Motions pursuant to CPLR 3025(b) for leave to amend a pleading are addressed to the sound discretion of the court. Leave should be granted where the amendment is neither palpably insufficient nor patently devoid of merit, and any claimed delay in seeking the amendment does not prejudice or surprise the opposing party. However, when leave is sought on the eve of trial, judicial discretion should be exercised sparingly. In exercising its discretion, the court should consider how long the amending party was aware of the facts upon which the motion is predicated, whether a reasonable excuse for the delay is offered, and whether any prejudice results therefrom.
Rice-Tamsen v. Tamsen, NY Slip Op 01110 (2d Dep't March 1, 2023)
A plaintiff meets its prima facie burden for summary judgment by establishing that the defendant did not comply with a contract provision requiring the procurement of insurance. The movant may make that showing by submitting copies of the contract requiring the procurement of insurance and of correspondence from the insurer of the party against whom summary judgment is sought indicating that the moving party was not named as an insured on any policies issued.
Dorset v. 285 Madison Avenue Owner LLC, NY Slip Op 01134 (1st Dep't March 2, 2023)
Pursuant to CPLR 1003, "[p]arties may be added at any stage of [an] action by leave of court or by stipulation of all parties who have appeared." Pursuant to CPLR 3025(b), a party may amend or supplement its pleading by setting forth additional or subsequent transactions or occurrences, at any time by leave of court or by stipulation of all parties. A plaintiff's failure to comply with CPLR 1003 when attempting to add a defendant is a jurisdictional defect, and an amended complaint that is not filed in accordance with CPLR 1003 and 3025 is a legal nullity, warranting dismissal.
Bodkin v. 112 Automative Ctr., Inc., NY Slip 01074 (2d Dep't March 1, 2023)
The complaint is dismissed and plaintiff's interest in the property is invalid. There is no evidence, on the face of the deed or otherwise, that the transferor had authority to transfer title to the property, and a corporate acknowledgement is insufficient. A deed based on forgery or obtained by false pretenses is void ab initio, as it is legally impossible for anyone to become a bona fide purchaser of real estate, or a purchaser at all, from one who never had any title.
Watson v. Lampkin, NY Slip Op 01154 (1st Dep't March 2, 2023)
Pursuant to CPLR 3117(a)(3)(iii), a witness's deposition may be read at trial if the court determines that the witness is unable to attend or testify because of age, sickness, infirmity, or imprisonment. In exercising its discretion under the statute, the trial court may not act arbitrarily or deprive a litigant of a full opportunity to present its case.
244 Linwood One, LLC v. Tio Deli Grocery Corp., NY Slip Op 01072 (2d Dep't March 1, 2023)
Tbe motion must be supported by an affidavit by a person having knowledge of the facts, pursuant to CPLR § 3212[b]. An affidavit that is not based on the affiant's personal knowledge may serve to authenticate a document for its admissibility as a business record, as long as the affiant demonstrates sufficient personal knowledge of the document in question, and the affidavit sufficiently establishes that the document falls within the business record exception to the hearsay rule.
Muslar v. Hall, NY Slip Op 01063 (1st Dep't February 28, 2023)
Defendants' motion to change venue from Bronx County to Westchester County is denied as untimely made. Defendants have a reasonable excuse for their failure to make a timely demand to change venue. They learned of plaintiff's Westchester address on April 5, 2022, when they received plaintiff's medical authorizations and a copy of the Aided report, and made a demand to change venue the day the next day.after, on April 6, 2022. However, pursuant to CPLR 511(b), defendants had until April 21, 2022, 15 days after service of their demand, to make the motion. Defendants' motion is untimely, as it was made on April 26, 2022, 20 days after the demand. Defendants offered no explanation for their failure to move within the statutory time-limits.
Gomez v. Cypser, NY Slip Op 01060 (1st Dep't February 28, 2023)