Appellate practice.

An argument is not properly before the Appellate Division if it is raised for the first time on appeal or if it relies on matters outside the record. 

Matter of Casanas, NY Slip Op 02826 (1st Dep't May 25, 2023)

Here is the decision.

Discovery demands.

An order striking the answer was entered after the court found that defendant failed to comply with the provisions of a conditional order striking the answer unless defendant complied with specified discovery demands within a specified time. The conditional order was issued following a prolonged period in which defendant provided partial but inadequate responses to outstanding discovery demands and orders, as well as a stipulation entered into between the parties. CPLR 3126 authorizes trial courts to craft self-executing orders that impose discovery sanctions on a party unless that party submits to the disclosure within a specified time. Conditional orders become absolute upon failure to fully comply wih them. Defendant's arguments that its noncompliance was not willful or contumacious is irrelevant because, where a litigant fails to comply with a conditional order, the court is not required to find that its failure to comply was willful. Relief from a conditional order requires a reasonable excuse for the failure to produce the requested items and the showing of a meritorious defense. Defendant's argument that plaintiff's document demands were improper and should not have been enforced by the court is unavailing since it failed to timely object to the document demands and never sought a protective order pursuant to CPLR 3103.

Citizen Watch Co. of Am., Inc. v. Zapco 1500 Inv., L.P., NY Slip Op 02823 (1st Dep't May 25, 2023)

Here is the decision.

Claims against the State.

Pursuant to Court of Claims Act § 11(b), a claim against New York State 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. Noncompliance with the statutory requirements is a jurisdictional defect that requires dismissal of the claim. A sufficiently detailed description of the claim's particulars is necessary in order to enable the State to investigate and promptly ascertain the existence and extent of its liability. Because suits against the State are allowed only by the State's waiver of sovereign immunity and in derogation of the common law, statutory requirements conditioning suit must be strictly construed. However, absolute exactness is not required, so long as the claim's particulars are detailed in a manner sufficient to permit investigation. 

Wimbush-Burkett v. State of New York, NY Slip Op 02804 (2d Dep't May 24, 2023)

Here is the decision.

Appellate practice.

An order that does not decide a motion made on notice is not appealable as of right under CPLR 5701(a)(2). However, the Appellate Division may deem the notice of appeal from the order to be a motion for leave to appeal, and may grant the motion so as to hear the appeal.

Moye v. Mount Sinai Hosp., NY Slip Op 02828 (1st Dep't May 25, 2023)

Here is the decision.

Damages for fraud.

Damages resulting from fraudulent inducement are meant to indemnify a plaintiff for the actual pecuniary loss sustained as the direct result of the fraud. Damages are calculated so as to compensate the plaintiff for what was lost because of the fraud, not for what might have been gained in the absence of any fraud. Damages are limited to the amount necessary to restore the plaintiff to its position before the fraud was committed. 

NMR e-Tailing LLC v. Oak Inv. Partners, NY Slip Op 02830 (1st Dep't May 25, 2023)

Here is the decision.

Vacating a deault.

A party seeking to vacate a default in opposing a motion must demonstrate both a reasonable excuse for the default and a potentially meritorious opposition to the motion, pursuant to CPLR 5015[a]. The determination of what constitutes a reasonable excuse lies within the sound discretion of the trial court. In excusing its discretion, the court may excuse delay or default resulting from law office failure, pursuant to  CPLR 2005.

Biotek Servs., LLC v. South Is. Med. Assoc., P.C., NY Slip Op 02775 (2d Dep't May 24, 2023)

Here is the decision.

Judgments as a matter of law.

Pursuant to CPLR 4401, a motion for judgment as a matter of law may be made at the close of an opposing party's case, or at any time on the basis of admissions. A motion made prior to the close of the opposing party's case will be denied, even if the opposing party's ultimate success in the action is improbable.

Bank of N.Y. Mellon v. Waheed, NY Slip Op 02774 (2d Dep't May 24, 2023)

Here is the decision.

 

Pleading quasi contract claims in the alternative.

The causes of action for promissory estoppel and unjust enrichment are properly pleaded in the alternative to the breach of contract cause of action, as the matter presents a bona fide dispute as to the existence of a valid contract.

Tahari v. Narkis, NY Slip Op 02772 (1st Dep't May 23, 2023)

Here is the decision.