Spy Wednesday.

Reformation of a contract.

There is a presumption that the contract's language embodies the parties' true intent, but when a party shows by clear and convincing evidence that the writing memorialized in an agreement is at variance with the parties' intent, reformation will be granted.

Empery Asset Master, Ltd. v. AIT Therapeutics, Inc., NY Slip Op 01585 (1st Dep't March 23, 2023)

Here is the decision.

Challenging a cooperative board's decisions.

A petition to annul the board's decision will be denied if the decision was made in furtherance of a legitimate corporate purpose and was not arbitrary and capricious or an abuse of discretion, pursuant to CPLR 7803[3]. In addition, absent bad faith or discrimination, the board's decision is protected by the business judgment rule.

Matter of McCabe v. 511 W. 232nd Owners Corp., NY Slip Op 01592 (1st Dep't March 23, 2023)

Here is the decision.

Personal jurisdiction.

A defendant may waive the issue of lack of personal jurisdiction by appearing in an action, either formally or informally, without raising the defense of lack of personal jurisdiction in an answer or pre-answer motion to dismiss. A defendant may appear in an action where counsel communicates a clear intent to participate by actively litigating the action or participating in the lawsuit on the merits.

HSBC Bank USA, N.A. v. Whitelock, NY Slip Op 01500 (2d Dep't March 22, 2023)

Here is the decision.

Injunction claims.

The claim will be dismissed where the plaintiff has an available remedy at law that would furnish plain and adequate relief. 

Salitsky v. D'Attanasio, NY Slip Op 01597 (1st Dep't March 23, 2023)

Here is the decision.

Affidavits of service.

A process server's affidavit of service establishes a prima facie case as to the method of service, and, therefore, gives rise to a presumption of proper service. Bare and unsubstantiated denials are insufficient to rebut the presumption of service, but a sworn denial of service containing specific facts necessitates an evidentiary hearing. Here, the defendant's claimed discrepancy between her hair color and the description of hair color in the affidavit of service was too minor and insufficiently substantiated to warrant a hearing.

Carver Fed. Sav. Bank v. Forde, NY Slip Op 01497 (2d Dep't March 22, 2023)

Here is the decision.

Untimely motion papers.

Pursuant to CPLR 2214[c], the motion court may exercise its discretion in declining to consider a defendant's untimely reply papers.

Wise v. 1614 Madison Partners, LLC, NY Slip Op 01495 (1st Dep't March 21, 2023)

Here is the decision.

Stipulations of settlement.

Stipulations of settlement between parties are binding contracts enforceable by the court, and, as such, they are favored and not lightly cast aside, especially where, as here, the party seeking to set aside the stipulation was represented by counsel. 

Cassignol v. Village of Hempstead, NY Slip Op 01277 (2d Dep't March 15, 2023)

Here is the decision.

Subsequent contracts.

A subsequent contract regarding the same subject matter will supersede a prior contract, but only with regard to that same subject matter.

Pope Contr., Inc. v. New York City Hous. Auth., NY Slip Op 01365 (1st Dep't March 16, 2023)

Here is the decision.

Dismissal of a claim of medical malpractice.

On a motion for summary judgment dismissing a cause of action alleging medical malpractice, the defendant bears the initial burden of establishing that there was no departure from good and accepted medical practice, or that any alleged departure did not proximately cause the plaintiff's injuries. If the defendant makes this showing, the burden shifts to the plaintiff to raise a triable issue of fact as to those elements on which the defendant met its prima facie burden.  Summary judgment is not appropriate in a medical malpractice action where the parties put forward conflicting medical expert opinions. However, expert opinions that are conclusory, speculative, or unsupported by the record are insufficient to raise triable issues of fact.

Gargano v. Langman, NY Slip Op 01279 (2d Dep't March 15, 2023)

Here is the decision.

Injunctive relief.

In order to establish the right to a preliminary injunction, the movant must demonstrate: (1) the likelihood of success on the merits; (2) irreparable injury unless the injunction issues; and (3) that the equities balance in the movant's favor, pursuant to CPLR 6301. The decision whether to grant or deny a preliminary injunction rests in the sound discretion of the court hearing the motion. In the absence of unusual or compelling circumstances, appellate courts are reluctant to disturb the motion court's determination.

Benaim v. S2 Corona, LLC, NY Slip Op 01274 (2d Dep't March 15, 2023)

Here is the decision.