Abandoning an action.

The action was not rendered a nullity by plaintiff's withdrawal of his initial summons and motion for summary judgment in lieu of a complaint, pursuant to CPLR 3213, as the parties' course of conduct reflected an understanding that plaintiff was not discontinuing or abandoning the action. Plaintiff withdrew the summons and motion "without prejudice" after reaching a settlement agreement with defendant, but the agreement expressly stated that the matter would be discontinued "with prejudice" upon defendant's full and complete compliance with its payment obligations. After defendant defaulted, plaintiff and defendant participated in further settlement discussions, court conferences, and motion practice for years before defendant invoked the argument that the action had been discontinued or abandoned.

Rizzo v. Progressive Capital Solutions, LLC, NY Slip Op 01948 (1st Dep't April 13, 2023)

Here is the decision.

Motions for summary judgment.

Pursuant to CPLR 3212(b), the motion must be supported by an affidavit made by a person with knowledge of the facts. Here, plaintiff failed to submit an affidavit.  Plaintiff submitted his attorney's affirmation, but such an affirmation is of no evidentiary value. Plaintiff's complaint is not verified, and so it cannot be used in lieu of an affidavit.

Tribbs v. 326-338 E 100th LLC, NY Slip Op 01950 (1st Dep't April 13, 2023)

Here is the decision.

Dismissal on the ground of failure to prosecute.

A court may not dismiss an action based on neglect to prosecute unless CPLR 3216's preconditions are met.  Here, the Supreme Court failed to serve a written demand upon the plaintiff to resume prosecution of the action and serve and file a note of issue within 90 days of receipt of the demand, pursuant to CPLR 3216[b][3]. Since at least one precondition set forth in CPLR 3216 was not met, the court was without power to direct dismissal of the complaint pursuant to that statute. 

Deutsche Bank Trust Co. Ams. v. Gonzales, NY Slip Op 01778 (2d Dep't April 5, 2023)

Here is the decision.

A motion for contractual and common-law indemnification.

Absent a showing that the movant was free of negligence, the motion will be denied.

Attia v. Slazer Enters., LLC, NY Slip Op 01834 (1st Dep't April 6, 2023)

Here is the decision.

Dismissal on the ground of statute of limitations.

In determining the applicable limitations period, the court must look to the substance of the allegations rather than to the parties' characterization of those allegations. On a motion to dismiss a cause of action pursuant to CPLR 3211(a)(5) as barred by the applicable statute of limitations, the defendant bears the initial burden of demonstrating, prima facie, that the time within which to commence the cause of action has expired.  Once that showing has been made, the burden shifts to the plaintiff to raise a question of fact as to whether the statute of limitations is tolled or is otherwise inapplicable.

Haddad v. Muir, NY Slip Op 01780 (2d Dep't April 5, 2023)

Here is the decision.

Defalut judgments.

A plaintiff must move for a default judgment within one year of the defendant's default or face dismissal, pursuant to CPLR 3215(c). Here, the plaintiffs' time in which to seek a default judgment is measured from the default in responding to the amended complaint, which was served less than a year after the service of the original complaint.  The amended pleading superseded the original complaint and became the only complaint in the case, restarting the clock on plaintiffs' one-year period in which to move for a default judgment.

NYCTL 2017-A Trust v. Heirs-at-Law of John Ghiselli, NY Slip Op 01845 (1st Dep't April 6, 2023)

Here is the decision.

Discontinuance.

An action is not automatically terminated by agreement except on a showing that the parties have executed an express and unconditional stipulation of discontinuance.

Conroy v. Conroy, NY Slip Op 01776 (2d Dep't April 5, 2023)

Here is the decision.

A claim for common-law indemnification.

The claim is actionable only where a party has been found to be vicariously liable, without proof of any negligence on its own part. 

Shivers v. City Smiles Dental, NY Slip Op 01768 (1st Dep't April 4, 2023)

Here is the decision.

A negligence claim against a municipality.

When a negligence claim is asserted against a municipality, the first issue for the court to decide is whether, when the claim arose, the municipal entity was engaged in a proprietary function or acting in a governmental capacity. A government entity performs a purely proprietary role when its activities substitute for or supplement traditionally private enterprises. When a municipality is engaged in a proprietary function, it is subject to suit, if at all, under the ordinary rules of negligence. However, if the municipality is engaged in a governmental function and acting for the protection and safety of the public pursuant to its police powers, the plaintiff must prove the existence of a special duty as an element of the negligence cause of action. 

Canberg v. County of Nassau, NY Slip Op 01658 (2d Dep't March 29 2023)

Here is the decision.

Vacatur and jurisdiction.

When a party seeking to vacate an order entered upon default seeks both a discretionary vacatur pursuant to CPLR 5015(a)(1) and raises a jurisdictional objection under CPLR 5015(a)(4), the jurisdictional question must be resolved before determining the question of vacatur.

Blue Lagoon, LLC v. Reisman, NY Slip Op 01657 (2d Dep't March 29, 2023)

Here is the decision.

A motion for an extension of time.

The determination of whether to grant a request for an extension of time pursuant to CPLR 2004 is addressed to the sound discretion of the trial court. In exercising its discretion, the court may consider such factors as the length of the delay, the reason or excuse for the delay, and any prejudice to the party opposing the motion. 

Bank of Am., N.A. v. Cord, NY Slip Op 01655 (2d Dep't March 29, 2023)

Here is the decision.