Expedited relief.

Plaintiff commenced this action by summary judgment in lieu of complaint for unpaid rent of a retail store that was personally guaranteed by defendant. In opposition, defendant raised an issue of fact as to the amount of rent due and owing by submitting the affidavit of the store's manager, who averred that the only outstanding rent owed was the rent due for the period when the store was forced to close as a result of the Covid-19 pandemic. Plaintiff is not entitled to the expedited relief afforded by CPLR 3213.

3350 BW 136 Inc. v. Perez, NY Slip Op 03538 (1st Dep't June 29, 2023)

Here is the decision.

Default judgments.

Pursuant to CPLR 3215(f), an applicant for a default judgment against must submit proof of service of the summons and complaint, proof of the facts constituting the claim, and proof of the defendant's failure to answer or appear. In order to demonstrate the facts constituting the claim, the movant need only submit sufficient proof to enable a court to determine that there is a viable cause of action. In order to successfully oppose the motion, the defendant must provide a reasonable excuse for the default and demonstrate the existence of a potentially meritorious defense to the action. Whether a proffered excuse is reasonable is a sui generis determination to be made by the court based on all relevant factors, including the extent of the delay, whether there has been prejudice to the opposing party, whether there has been willfulness, and the strong public policy in favor of resolving cases on the merits. The determination of what constitutes a reasonable excuse lies within the discretion of the motion court. Where the defendant fails to demonstrate a reasonable excuse for its default, the court need not consider whether the defendant possesses a potentially meritorious defense to the action. Defaulters are deemed to have admitted all factual allegations contained in the complaint and all reasonable inferences that flow from them.

Cartessa Aesthetics, LLC v. Demko, NY Slip Op 03328 (2d Dep't June 21, 2023)

Here is the decision.

Continuous treatment doctrine.

Routine physical examinations or visits concerning matters unrelated to the condition giving rise to the malpractice claim do not implicate the doctrine so as to toll the statutory limitations period.

Pinkney v. New York City Health & Hosps. Corp., NY Slip Op 03421 (1st Dep't June 22, 2023)

Here is the decision.

Federal preemption of state laws.

Where a cause of action is preempted by federal law, a party may move pursuant to CPLR 3211(a)(2) to dismiss the cause of action on the ground that the court lacks subject matter jurisdiction. Preemption can occur in any one of three ways: where Congress has expressly preempted state law; where Congress has legislated so comprehensively that federal law occupies an entire field of regulation and leaves no room for state law; and where federal law conflicts with state law.

Astro Ready Mix, LLC v. MTA Long Is. R.R., NY Slip Op 03324 (2d Dep't June 21, 2023)

Here is the decision.

Appellate practice.

As a general rule, the Appellate Division does not consider any issue raised on a subsequent appeal that could have been raised on an earlier appeal that was dismissed for lack of prosecution, although it has the inherent jurisdiction to do so,

Alisa Auto Serv., Inc. v. Chernetskyy, NY Slip Op 03323 (2d Dep't June 21, 2023)

Here is the decision.

Requests for affirmative relief.

Ordinarily, a party who seeks affirmative relief should file a formal notice of motion or cross-motion, pursuant to CPLR 2215. However, courts have the discretion, in the interest of justice, to entertain a request for affirmative relief that is made in the opposition papers to a motion.

Trevino v. Pray, NY Slip Op 03426 (1st Dep't June 22, 2023)

Here is the decision.

Charging liens.

A law firm's right to enforce a charging lien under Judiciary Law § 475 is not forfeited in a case where the firm's representation is discontinued by mutual consent for reasons not rising to the level of misconduct or just cause.

Upfront Megatainment, Inc. v. Thiam, NY Slip Op 03428 (1st Dep't June 22, 2023)

Here is the decision.

                               

Claims for tortious interference with contract and prospective economic advantage.

The claims will be dismissed as facially insufficient where the plaintiff does not plead the requisite elements of the defendant's knowledge of its business relationships and/or contracts with third parties.

Karl Reeves, C.E.I.N.Y. Corp. v. Associated Newspapers, Ltd., NY Slip Op 03315 (1st Dep't June 20, 2023)

Here is the decision.

Contract law.

The fundamental precept of contract interpretation is that agreements are construed in accord with the parties' intent, and the best evidence of the parties' intention is what they say in their writing. Therefore, a written agreement that, on its face, is complete, clear, and unambiguous must be enforced according to the plain meaning of its terms. The threshold issues of whether a contract is unambiguous, and the subsequent construction and interpretation of an unambiguous contract, are for the court to decide.

249-251 Brighton Beach Ave., LLC v. 249 Brighton Corp., NY Slip Op 03321 (2d Dep't June 21, 2023)

Here is the decision.