Appellate practice.

Defendants' arguments as to why a mistrial should have been declared as to the jury's liability and compensatory damages determinations are not properly before the Appellate Division. In their motion papers before Supreme Court, defendants expressly limited their motion to events and issues that arose after the first phase of the trial had concluded. However, defendants' brief on appeal focus on matters that either arose during the trial or have been addressed in motion practice that also is not at issue on this appeal.

Rosenthal v. Sperling, NY Slip Op 05996 (1st Dep't November 21, 2023)

Here is the decision.

Failure to oppose a motion.

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. The excuse of law office failure may be deemed reasonable. 

V.C. v. Fly High Indoor Trampoline Park, Inc., NY Slip Op 06024 (2d Dep't November 22, 2023)

Here is the decision.

Motions to dismiss.

A pre-answer motion to dismiss may properly be denied where "facts essential to justify opposition may exist but cannot then be stated," pursuant to CPLR 3211 [d].

Ark 357 Doe v. Jesuit Fathers and Bros., NY Slip Op 05975 (1st Dep't November 21, 2023)

Here is the decision.

Summary judgment as to liability.

A plaintiff in a negligence action moving for summary judgment on the issue of liability must establish, prima facie, that the defendant breached a duty owed to the plaintiff and that the defendant's negligence was a proximate cause of the alleged injuries. The plaintiff is not required to show freedom from comparative negligence in order to establish his prima facie entitlement to judgment as a matter of law.  However, the issue of the plaintiff's comparative negligence may be decided in the context of a summary judgment motion where the plaintiff moves for summary judgment dismissing a defendant's affirmative defense alleging comparative negligence.

Bornsztjen v. Zito, NY Slip Op 05706 (2d Dep't November 15, 2023)

Here is the decision.

Attorneys' fees.

The decision to award an attorney's fee in a matrimonial action lies, in the first instance, in the discretion of the trial court and then in the Appellate Division whose discretionary authority is as broad as that of the trial court. In exercising its discretion, the court must consider the financial circumstances of the parties and the circumstances of the case as a whole, including the relative merits of the parties' positions and whether either party has delayed the proceedings or engaged in unnecessary litigation.

Blocker v. Blocker, NY Slip Op 05705 (2d Dep't November 15, 2023)

Here is the decision.

Summary judgment.

In this toxic tort action, defendant's summary judgment motion is denied because the parties' competing causation evidence constitutes a battle of the experts.

Sason v. Dykes Lbr. Co., Inc., NY Slip Op 05796 (1st Dep't November 16, 2023)

Here is the decision.

Leave to renew.

A motion for leave to renew "shall be based upon new facts not offered on the prior motion that would change the prior determination or shall demonstrate that there has been a change in the law that would change the prior determination," pursuant to CPLR 2221[e][2].

Andil v. Wakefern Food Corp., NY Slip Op 05582 (2d Dep't November 8, 2023)

Here is the decision.

Contract law.

Because the dismissal of the contract claims was proper, the motion court also properly dismissed the claims for breach of the alleged implied covenants of good faith and fair dealing. 

2 Girls Accys LLC v. Larrea, NY Slip Op 05782 (1st Dep't November 16, 2023)

Here is the decision.

Medical malprctice.

In order to establish a physician's liability for medical malpractice, a plaintiff must prove that the physician departed from accepted community standards of practice, and that the departure was a proximate cause of the plaintiff's injuries. However, in order to reach the issue of departure from accepted medical practice, it is necessary first to establish the existence of a duty. While physicians owe a general duty of care to their patients, that duty may be limited to those medical functions undertaken by the physician and relied on by the patient. The existence and scope of a physician's duty of care is a question of law to be decided by the court.

Abruzzi v. Maller, NY Slip Op 05704 (2d Dep't November 15, 2023)

Here is the decision.

The relation-back doctrine.

In deciding a motion for leave to serve an amended complaint, the court may properly apply the relation-back doctrine if the original verified complaint put the defendant on notice of the underlying transactions,  pursuant to CPLR 203[f]. 

Spruill v. City of New York, NY Slip Op 05701 (1st Dep't November 14, 2023)

Here is the decision.

Court holiday.