Service of process and personal jurisdiction.

Supreme Court providently determined that the summons and complaint had been properly served on defendants, and, therefore, the court had personal jurisdiction over them. The affidavits of plaintiff's process servers constituted prima facie proof of proper service on the individual defendants, pursuant to CPLR 308[2]. Defendants' conclusory denials of receipt were insufficient to raise an issue of fact, warranting a traverse hearing. 

Franpo Realty, LLC v. Power Furniture Inc., NY Slip Op 01050 (February 23, 2023)

Here is the decision.

Sanctions for alleged spoliation.

Sanctions will not be imposed on a party that did not discard crucial evidence in an effort to frustrate discovery, and cannot be presumed to be responsible for the disappearance of the evidence.

Auguste v. Edlund Co., LLC, NY Slip Op 00837 (2d Dep't February 15, 2023)

Here is the decision.

Appellate practice.

There is no appeal as of right where the judgment was entered subsequent to an Appellate Division order disposing of all the issues in the action, pursuant to CPLR 5701[a][1]. The remittance to Supreme Court does not alter the finality of the order where the remittance involved only the ministerial act of mathematical calculations without requiring any further fact-finding or exercise of judicial discretion. 

Summit Dev. Corp. v. Hudson Meridian Constr. Group LLC, NY Slip Op 00937 (1st Dep't February 16, 2023)

Here is the decision.

A cause of action for quantum meruit.

The cause of action is dismissed, as there is a written contract that governs the subject matter in dispute. 

Tycoon Constr. Corp. v. New York City Hous. Auth., NY Slip Op 00938 (1st Dep't February 16, 2023)

Here is the decision.

Amending a complaint.

A motion for leave to amend will not be denied solely on the basis that the proposed pleading is not redlined, pursuant to CPLR 3025[b], where the proposed amendments are sufficiently described in the moving papers and easily discerned on review of the proposed pleading. 

Herrera v. Highgate Hotels, L.P., NY Slip Op 00729 (1st Dep't February 9, 2023)

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Recission or reformation of a contract based on mutual mistake.

Where there is no mistake about the agreement and the only mistake alleged is in the reduction of that agreement to writing, the scrivener error, no matter how it occurred, may be corrected.

Ralph Lauren Retail, Inc. v. 888 Madison LLC, NY Slip Op 00747 (1st Dep't February 9, 2023)

Here is the decision.

Claims against New York State.

Suits against the State are allowed only by the State's waiver of sovereign immunity and in derogation of the common law, and, therefore, statutory requirements must be strictly construed. Pursuant to Court of Claims Act § 11(b), the claim 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. The pleading requirement is that the information be sufficiently definite to enable the State to investigate the claim promptly and to ascertain its liability, if any. Absolute exactness is not required, but the Court of Claims Act does not require the State to ferret out or assemble information that  § 11(b) obligates the claimant to allege.

Fenton v. State of New York, NY Slip Op 00650 (2d Dep't February 8, 2023)

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Appellate practice.

Plaintiffs' purported appeal of the Supreme Court's trial order dismissing their 42 USC §§ 1983 and 1988 claims must be dismissed for lack of jurisdiction, as it is taken from a non-appealable paper.

Small v. City of New York, NY Slip Op 00749 (1st Dep't February 9, 2023)

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Court holiday.

The voluntary payment doctrine.

The doctrine bars recovery of payments that are made voluntarily and with full knowledge of the facts, and in the absence of fraud or mistake of material fact or law. There is a presumption that payments are voluntary, and a protest of payment must be memorialized in a contemporaneous writing.

ECI Fin. Corp. v. Resurrection Temple of Our Lord, Inc., NY Slip Op 00649 (2d Dep't February 8, 2023)

Here is the decision.

An order of preclusion.

For failure to comply with discovery, plaintiffs are precluded from offering evidence at trial. Plaintiffs' conclusory and unsubstantiated claim of law office failure does not excuse their default in failing to comply with discovery demands and numerous court orders for over two years.

T.W. v. Phillip Bus Serv., NY Slip Op 00750 (1st Dep't February 9, 2023)

Here is the decision.