Appellate practice.

Rulings directed to an examination before trial, whether made upon motion papers or not, are not appealable as of right.

Ward v. City of New York, NY Slip Op 02001 (1st Dep't April 11, 2024)

Here is the decision.

Expert witnesses.

A court has the inherent power to disqualify an expert witness in order to preserve the fairness and integrity of the judicial process. Disqualification based on a conflict of interest is required when the court finds both: (1) that it was objectively reasonable for a party claiming to have initially retained the expert to conclude that a confidential relationship existed between them, and (2) that confidential or privileged information was disclosed by the party to the expert.

Here, Supreme Court providently exercised its discretion in granting the motion to disqualify plaintiff's damages expert, due to the conflict of interest created when his firm hired an employee who worked for defendants' expert during the pendency of this action. Defendants demonstrated that the employee actively participated in the preparation of defense litigation strategies. The employee admittedly reviewed and analyzed plaintiff's documents on defendants' behalf, prepared or had input in drafting documents summarizing plaintiff's financial data, and communicated with and attended meetings with defendants' counsel. Accordingly, defendants had a reasonable expectation of a confidential relationship with the employee, and confidences were actually exchanged with him, satisfying both prongs of the disqualification test.

Manna Amsterdam Ave. LLC v. West 73rd Tenants Corp., NY Slip Op 01892 (1st Dep't April 9, 2024)

Here is the decision.

Documentary evidence.

Under CPLR 3211(a)(1), dismissal based on documentary evidence is warranted only if the evidence utterly refutes plaintiff's factual allegations, conclusively establishing a defense as a matter of law. The burden is on the defendant to demonstrate that the evidence is documentary. In order to be considered documentary, the evidence must be unambiguous and of undisputed authenticity, such that it is unassailable. Judicial records, as well as documents reflecting out-of-court transactions such as mortgages, deeds, and unambiguous contracts may qualify as documentary evidence. 

7 Mansion, LLC v. Calvano, NY Slip Op 01900 (2d Dep't April 10, 2024)

Here is the decision.

Injunctions.

Supreme Court providently exercised its discretion in granting plaintiff's motion for a preliminary injunction. Contrary to defendants' contention, the motion was not one for mandatory injunctive relief, as no affirmative action was required of them. The injunction merely enjoined defendants from interfering with or diverting monies that plaintiff was contractually entitled to receive. Plaintiff established the essential element of irreparable harm with its affidavit that, unless defendants were enjoined from diverting collections to themselves, it likely would default on its obligations to its lenders and go out of business.

BFG 104 LLC v. Greenwich Business Capital, LLC, NY Slip Op 01890 (1st Dep't April 9, 2024)

Here is the decision.

SLAPP suits.

A SLAPP suit (Strategic Lawsuit Against Public Participation), typically sounding in defamation, is brought to intimidate or silence a person who has spoken out about a matter of public interest. The anti-SLAPP law, at Civil Rights Law §§ 70-a, 76-a, is designed to deter such suits and thus protect the free exercise of speech, petition, and association.

The anti-SLAPP law creates an accelerated summary dismissal procedure, which applies when a SLAPP suit defendant moves to dismiss pursuant to CPLR 3211(a)(7). Upon such a motion, the defendant bears the initial burden of showing that the action or claim actually is a SLAPP suit, pursuant to CPLR 3211[g][1]. If the defendant meets its burden, the burden shifts to the plaintiff to demonstrate that the claim has a substantial basis, which is a showing of such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact. If the claim is dismissed, the defendant recovers a mandatory award of attorneys' fees.

Karl Reeves, C.E.I.N.Y. Corp. v. Associated Newspapers, Ltd., NY Slip Op 01898 (1st Dep't April 9, 2024)

Here is the decision.

Comparative fault.

A plaintiff is no longer required to show freedom from comparative fault in establishing a prima facie case against a defendant on the issue of that defendant's liability.

Burton v. Virk, NY Slip Op 01792 (2d Dep't Apri 3, 2024)

Here is the decision.

Affirmative defenses.

The statute of limitations is an affirmative defense and, pursuant to CPLR 3211(e), it is waived unless it is raised either in a responsive pleading or by motion prior to the submission of a responsive pleading. A court may not take judicial notice, sua sponte, of the applicability of a statute of limitations if the defense has not been raised.

Associates First Capital Corp. v. Roth, NY Slip Op 01789 (2d Dep't April 3, 2024)

Here is the decision.

CPLR 214-a.

A defendant who seeks dismissal of a cause of action on the ground that it is barred by the statute of limitations bears the initial burden of demonstrating, prima facie, that the time in which to commence the action has expired. The burden then shifts to the nonmoving party to raise a question of fact as to the applicability of an exception to the statute of limitations, as to whether the statute of limitations was tolled, or as to whether the action was actually commenced within the applicable limitations period.

Generally, an action to recover damages for medical malpractice "'must be commenced within two years and six months of the act, omission or failure complained of," pursuant to CPLR 214-a. However, where the action is based upon the alleged negligent failure to diagnose cancer or a malignant tumor, whether by act or omission, the action may be commenced within two years and six months of the time the plaintiff knew or reasonably should have known of such alleged negligent act or omission, pursuant to CPLR 214-a[b].

Ciancarelli v. Timmins, NY Slip Op 01793 (2d Dep't April 3, 2024)

Here is the decision.

General releases.

A valid release constitutes a complete bar to an action on a claim which is the subject of the release. The defendant has the initial burden of establishing that it has been released from any claims, but a signed release shifts the burden of going forward to the plaintiff to show that there has been fraud, duress, or some other fact that is sufficient to void the release. Here, the language of the release clearly and unequivocally expresses the parties' intention to relieve the defendant of liability for personal injuries sustained by the plaintiff during horseback riding lessons. In addition, the release is clear in reciting that the plaintiff was aware of the risks associated with participating in horseback riding lessons and assumed those risks.

Anthony v. Firehock, NY Slip Op 01287 (2d Dep't March 13, 2024)

Here is the decision.

Spoliation.

Plaintiff was the victim of a home invasion of his apartment in a building owned and operated by defendants. Defendants' motion to dismiss is denied, and plaintiff's cross-motion is granted to the extent that it sought a negative inference charge as a result of defendants' spoliation of the building's surveillance footage. The fact that, in response to a subpoena, defendants provided a copy of the video to the New York City Police Department, which did not retain all the footage, did not obviate defendants' responsibility to preserve the evidence.

Cabrera-Perez v. Promesa Hous. Dev. Fund Corp., NY Slip Op 01338 (1st Dep't March 14, 2024)

Here is the decision.

Appellate practice.

As the amended judgment conformed in substance to an earlier judgment entered on consent, defendant-respondent is not an aggrieved party within the meaning of CPLR 5511, and, therefore, lacks standing to appeal. Defendant-respondent did not oppose the petition to confirm the arbitration award, and did not object to entry of the judgment or amended judgment. Any contention that the amended judgment varied from what the parties agreed upon should have been addressed through a motion to vacate the judgment.

Matter of Barclays Capital Inc. v. Carreras, NY Slip Op 01336 (1st Dep't March 14, 2024)

Here is the decision.