CPLR 3212(a).

 Unless the court has set a different date, a motion for summary judgment must be made "no later than one hundred twenty days after the filing of the note of issue, except with leave of court on good cause shown." In the absence of a showing of good cause, the court has no discretion to entertain even a meritorious, nonprejudicial motion for summary judgment.

Bricenio v. Perez, NY Slip Op 09249 (2d Dep't December 24, 2019)

Here is the decision.

A process server's affidavit.

The affidavit constitutes prima facie evidence of proper service, and gives rise to a presumption of proper service.  A conclusory denial of service is insufficient to rebut the presumption.  In order to warrant a hearing, the denial must be substantiated by specific, detailed facts that contradict the affidavit.

Bethpage Fed. Credit Union v. Grant, NY Slip Op 09246 (2d Dep't December 24, 2019)

Here is the decision.

Summary judgment in a medical malpractice action.

A plaintiff is only required to raise a triable issue of fact as to causation where the defendant makes a prima facie showing that the alleged departure from the standard of care was not a proximate cause of the plaintiff's injuries.

Barry v. Lee, NY Slip Op 09397 (1st Dep't December 26, 2019)

Here is the decision.

A corporate officer's liability.

Although a plaintiff fails to satisfy the requirements for piercing the corporate veil, liability may be imposed on a corporate officer who participates in the commission of a tort, even if the officer's participation is for the corporation's benefit.

Belle Light. LLC v. Artisan Constr. Partners LLC, NY Slip Op 09359 (1st Dep't December 26, 2019)

Here is the decision.

22 NYCRR 202.7(a)(2) .

On a discovery motion, the movant must submit an affirmation of good faith indicating that, prior to engaging in motion practice, efforts had been made to resolve issues.

Belle-Fleur v. Desriviere, NY Slip Op 09244 (2d Dep't December 24, 2019)

Here is the decision.

CPLR 3215(f).

An applicant for a default judgment must submit proof of service of the summons and complaint, proof of the facts constituting the claim, and proof of the defaulting defendant's failure to answer or appear. Where the complaint is not verified, the requisite proof must be set forth in an affidavit made by the party.

Deutsche Bank Natl. Trust Co. v. Silverman, NY Slip Op 08990 (2d Dep't December 18, 2019)

Here is the decision.

A deceased party.

The part of the order that severed the action against the party, who at that point was deceased, is vacated as void, as no legal representative has been appointed. An earlier order, issued while the party was alive, is not void. However, an appeal from that order will be dismissed, without prejudice, if an estate representative has not been appointed.

Bonnaig v. Walton, NY Slip Op 09103 (1st Dep't December 19, 2019)

Here is the decision.

Discovery.

Pursuant to Education Law § 6527(3), certain documents generated in connection with the "performance of a medical or a quality assurance review function," or which are "required by the Department of Health pursuant to Public Health Law § 2805-l," are not discoverable. The party seeking to invoke the privilege must demonstrate that the documents sought were prepared in accordance with the relevant statutes.  It is not enough merely to assert that the documents are privileged. In the absence of a showing as to why the privilege attaches, the documents are subject to disclosure.

DeLeon v. Nassau Health Care Corp., NY Slip Op 08989 (2d Dep't December 18, 2019)

Here is the decision.

A claim of spoliation.

New York does not recognize an independent tort for either first- or third-party negligent spoliation of evidence.

Rosa v. D&E Equities, Inc., NY Slip Op 09094 (1st Dep't December 19, 2019)

Here is the decision.

CPLR 2005.

A default may be excused on the ground of law office failure if the explanation for the default is detailed and credible.

210 East 60th Street, LLC v. Rahman, NY Slip Op 08983 (2d Dep't December 18, 2019)

Here is the decision.

Denial of a motion for summary judgment.

Plaintiff's omission of an affidavit in opposition to defendants' motion does not require that the facts in defendants' affidavit be deemed admitted, as defendants submitted plaintiff's affidavit and deposition testimony, which establish that there are issues of fact.

Munna v. Axman, NY Slip Op 08963 (1st Dep't December 17, 2019)

Here is the decision.

CPLR 214[6].

An action to recover damages arising from an attorney's malpractice must be commenced within three years of accrual. The claim accrues when the alleged malpractice is committed.

Marzario v. Snitow Kanfer Holzer & Millus, LLP, NY Slip Op 08953 (1st Dep't December 12 2019)

Here is the decision.

CPLR 3212[a].

The court may consider plaintiff's untimely motion, as it addresses the same basic issues as plaintiff's timely-filed motion.

Baez v. 1749 Grand Concourse LLC, NY Slip Op 08948 (1st Dep't December 12, 2019)

Here is the decision.

CPLR 2221(a).

A motion to reargue should be granted where the motion court engaged in a merits determination by considering the parties' deposition testimony.

Rodriguez v. Sharma, NY Slip Op 08937 (1st Dep't December 12, 2019)

Here is the decision.

A motion to dismiss on the ground of forum non conveniens.

The motion court will consider the residence of the parties, the location of evidence and witnesses, the burden on the New York courts, where the transaction giving rise to the cause of action took place, the applicability of foreign law, and the connection of the action with New York.

JTS Trading Ltd. v. Asesores, NY Slip Op 08935 (1st Dep't December 12, 2019)

Here is the decision.

Negligent infliction of emotional distress.

Extreme and outrageous conduct is an essential element of the cause of action.

Holmes v. City of New York, NY Slip Op 08922 (1st Dep't December 12, 2019)

Here is the decision.

CPLR 3025(b).

Leave to amend a pleading "shall be freely given," and the party seeking leave is not required to make a showing of merit in the proposed amendment.

Astro Air Corp. v. L.D. Wenger Constr. Co., NY Slip Op 08816 (2d Dep't December 11, 2019)

Here is the decision.

Appellate practice.

Where there is no specific argument regarding a cause of action, the claim is deemed abandoned.

Jemima O. v. Schwartzapfel, P.C., NY Slip Op 08793 (1st Dep't December 10, 2019)

Here is the decision.

CPLR 3025[b].

A party may amend a pleading at any time by leave of court. The application to amend is within the sound discretion of the court, and it should be granted  if the amendment is not palpably insufficient, does not prejudice or surprise the opposing party, and is not patently devoid of merit.

Flagstar Bank, FSB v. Davis, NY Slip Op 08655 (2d Dep't December 4, 2019)

Here is the decision.

CPLR 2221[e][3].

Defendant's motion to renew plaintiff's summary judgment motion was denied, as defendant failed to explain why, in opposing plaintiff's motion, it did not submit the documents that it concedes were in its possession.

Nieborak v. W54-7 LLC, NY Slip Op 08788 (1st Dep't December 5, 2019)

Here is the decision.

CPLR 5701(a)(2).

There is no appeal as of right from an order that does not decide a motion made on notice.

177 Richard St., LLC v. Weeks, NY Slip Op 08644 (2d Dep't December 4, 2019)

Here is the decision.

Unjust enrichment.

This is a quasi-contract claim that contemplates an obligation imposed by equity to prevent injustice, in the absence of an actual agreement between the parties. Where there is a written contract between plaintiff and defendant governing all aspects of the matter at issue, there can be no claim against a third-party non-signatory to the contract.

J.T. Magen & Co., Inc. v. Nissan N. Am., Inc., NY Slip Op 08784 (1st Dep't December 5, 2019)

Here is the decision.

Direct and derivative claims.

The complaint properly pleads direct, rather than derivative, claims because it seeks to redress injury to plaintiffs individually.

Soriano v. Osario, NY Slip Op 08783 (1st Dep't December 5, 2019)

Here is the decision.

CPLR 3211(a)(1).

Dismissal is granted only where the documentary evidence that forms the basis of the defense is such that it utterly refutes the plaintiff's factual allegations, and, as a matter of law, conclusively disposes of the plaintiff's claims. To qualify as documentary evidence, the evidence must be unambiguous and of undisputed authenticity.

Benjamin v. Yeroushalmi, NYSlip Op 08547 (2d Dep't December 4, 2019)

Here is the decision.

Reasonable excuse for a default.

Plaintif's submission of an affirmation by counsel and an affidavit by counsel's calendar clerk is sufficient to establish law office failure.

Pena v. Pinnacle Assoc. II NY LLC, NY Slip Op 08600 (1st Dep't December 3, 2019)

Here is the decision.

CPLR 3216(b)(3).

A plaintiff who is served with a 90-day demand must file a note of issue, or, before the default date, move either to vacate the demand or to extend the time to file. A non-compliant plaintiff must demonstrate a justifiable excuse for its failure to timely respond, as well as a potentially meritorious cause of action.

HSBC Bank USA, N.A. v. Williams, NY Slip Op 08554 (2d Dep't November 27, 2019)

Here is the decision.

CPLR 213-a.

For the purpose of retroactive application of the statutory imitations period, the action remains pending during the pendency of an appeal.

Zitnam v. Sutton LLC, NY Slip Op 08527 (1st Dep't November 26, 2019)

Here is the decision.

Summary judgment on liability in a negligence action.

The plaintiff 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 establish a lack of comparative negligence. However, the issue of the plaintiff's comparative negligence may be decided on a summary judgment motion where the plaintiff moves to dismiss the defendant's affirmative defense of comparative negligence.

Balladares v. City of New York, NY Slip Op 08549 (2d Dep't November 27, 2019)

Here is the decision.

A motion for a preliminary injunction enforcing restrictive covenants.

Where the contractual covenants arose from the sale of the defendant's business, the essential element of irreparable injury to the plaintiff is presumed.

UAH-Mayfair Mgt. Group LLC v. Clark, NY Slip Op 08536 (1st Dep't November 26, 2019)

Here is the decision.

CPLR 3126.

A court may strike a pleading, or any part thereof, as a sanction against a party who refuses to obey an order for disclosure or willfully fails to disclose information which the court finds should have been disclosed.  The nature and degree of the sanction to be imposed on a 3126 motion is a matter of the court's discretion with the court, but the remedy of dismissal is only warranted where there has been a clear showing that the failure to comply with discovery demands is willful and contumacious. Willful and contumacious conduct may be inferred from a party's repeated failure to comply with court-ordered discovery, coupled with inadequate explanations for the failures, or a failure to comply with court-ordered discovery over an extended period of time.

Bouri v. Jackson, NY Slip Op 08552 (2d Dep't November 27, 2019)

Here is the decision.

Expert opinions.

The plaintiff's expert's opinion is admissible in support of opposition to the summary judgment motion in spite of the defendants' claim of the expert's lack of experience. Their claim goes to the weight given to the opinion, not its admissibility.

Pira v. Carasca, NY Slip Op 08523 (1st Dep't November 26, 2019)

Here is the decision.

Court holiday.

CPLR 327[a].

Even though some evidence and some witnesses are in New York, the court determined that New York is an inconvenient forum for this action in which the plaintiff alleges fraud and improper ouster from her position in a Bahamian company. All the allegedly tortious acts took place in the Bahamas, plaintiff's injury occurred in the Bahamas, and the company has it principal office in the Bahamas. In addition, Bahamian law will govern at least some of the claims.

Fernie v. Wincrest Capital, Ltd., NY Slip Op 08488 (1st Dep't November 21, 2019)

Here is the decision.

A motion to amend the bill of particulars.

The motion is denied as neither the original nor the amended notice of claim contained the proposed allegation, and the limitation period to assert it against defendant had passed.

Ebron v.. New York City Hous. Auth., NY Slip Op 08485 (1st Dep't November 21, 2019)

Here is the decision.

Statute of limitations as an affirmative defense.

The court may bar the assertion of the defense where the defendant's own wrongdoing resulted in the delay between the accrual of the cause of action and the institution of the legal proceeding.

Matter of New York City Asbestos Litig., NY Slip Op 08482 (1st Dep't November 21, 2019)

Here is the decision.

A motion to vacate or modify a preliminary injunction.

The motion is addressed to the sound discretion of the motion court and may be granted on a showing of compelling or changed circumstances that render continuation of the injunction inequitable.

456 Johnson, LLC v. Maki Realty Corp., NY Slip Op 08374 (2d Dep't November 20, 2019)

Here is the decision.

CPLR 5015[a][2], [3].

The motion for vacatur on the ground of newly discovered evidence is properly denied where the evidence on which the movant relies could have been timely submitted in opposition to plaintiff's motion for summary judgment.

Deutsche Bank Natl. Trust Co. v. Williams, NY Slip Op 08372 (1st Dep't November 19, 2019)

Here is the decision.

CPLR 3211(a)(7).

Where evidentiary material is submitted and considered on the motion to dismiss the complaint and the motion is not converted into one for summary judgment, the question is whether the plaintiff has a cause of action, not whether the plaintiff has stated one. Unless it is shown that a material fact as claimed by the plaintiff is not a fact at all, and unless it can be said that there is no significant dispute regarding it, the motion should be denied.

Williston v. Jack Resnick & Sons, Inc., NY Slip Op 08247 (2d Dep't November 13, 2019)

Here is the decision.

Claims agains the Port Authority.

The Port Authority, albeit bistate, is subject to New York's laws involving health and safety, insofar as its activities may externally affect the public. Specifically, courts have repeatedly held that the Port Authority is subject to New York Labor Law.

Wortham v. Port Auth. of N.Y. & N.J., NY Slip Op 08278 (1st Dep't November 14, 2019)

Here is the decision.

CPLR 3116[a].

A movant's submission of its own deposition testimony is deemed to be an adoption of the testimony as accurate, and, therefore, admissible.

Singh v. New York City Hous. Auth., NY Slip Op 08272 (1st Dep't November 14, 2019)

Here is the decision.

An alleged ethical violation.

A violation of the Rules of Professional Conduct, in itself, does not give rise to a private cause of action against an attorney or a law firm.

Doscher v. Meyer, NY Slip Op 08171 (2d Dep't November 13, 2019)

Here is the decision.

CPLR 4518.

An affidavit which states that the attached documents were kept in the ordinary course of plaintiff's business and explains that they were necessarily kept in order to track the business's charges and credits is sufficient to support the admissibility of the documents as business records.

Marina Towers Assoc., L.P. v. Yu, NY Slip Op 08267 (1st Dep't November 14, 2019)

Here is the decision.

CPLR 3025[b].

On a motion to dismiss, the motion court may not sua sponte grant plaintiff leave to file a second amended complaint in the absence of a cross motion and an accompanying proposed pleading.

Sutton Animal Hosp. PLLC v. D&D Dev., Inc., NY Slip Op 08263 (1st Dep't November 14, 2019)

Here is the decision.

The doctrine of primary assumption of risk.

If the risks of a sporting activity are known by or perfectly obvious to a voluntary participant, he has consented to them and the defendant has discharged its duty of care by making the conditions as safe as they appear to be.  Inherent risks are those which are known, apparent, natural, or reasonably foreseeable consequences of participation in the sport. Participants are not deemed to have assumed the risks of reckless or intentional conduct, or concealed or unreasonably increased risks.

Calderone v. College, NY Slip Op 08160 (2d Dep't November 13, 2019)

Here is the decision.

CPLR 3211(a)(7).

Speculative and inherently incredible allegations of widespread surveillance, conspiratorial meetings, and eavesdropping involving unidentified persons are insufficient to state a cause of action for employment discrimination, retaliation, harassment, or intentional or negligent infliction of emotional distress.

Mira v. Harder, NY Slip Op 08131 (1st Dep't November 12, 2019)

Here is the decision.

A landlord's liability for a dog bite.

To hold a landlord liable, the plaintiff must establish the landlord's knowledge of the dog's presence and its vicious propensities. Knowledge of the dog's vicious propensities may be established by proof of prior similar acts of which the defendant had notice.

Almodovar v. New York City Hous. Auth., NY Slip Op 08129 (1st Dep't November 12, 2019)

Here is the decision.

A defense based on the Workers' Compensation Law.

The defense afforded to employers by the statute's exclusivity provisions extends to suits brought against an entity that is found to be the alter ego of the corporation that employs the plaintiff.

Gerardi v. I.J. Litwak Realty Ltd. Partnership, NY Slip Op 07947 (2d Dep't November 6, 2019)

Here is the decision.

Damages on a contract claim.

The award of damages should put the plaintiff in the same position as he would have been in if the contract had not been breached.

Rubin v. Baumann, NY Slip Op 08011 (1st Dep't November 7, 2019)

Here is the decision.

Court holiday.

CPLR 3212(g).

An innocent passenger's right to summary judgment on the issue of his fault in the happening of an accident is not restricted by questions of comparative negligence as between two defendant drivers.

Romain v. City of New York, NY Slip Op 07885 (2d Dep't November 7, 2019)

Here is the decision.

Real Property Law § 339-aa.

The statute provides for the appointment of a receiver in a lien foreclosure action to collect the reasonable rent for the use and occupancy of a unit by the defaulting unit owner.

Capital One, N.A. v. Banfill, NY Slip Op 08004 (1st Dep't November 7, 2019)

Here is the decision.

Appellate practice.

An appellant need not make a post-verdict motion for a new trial in order to preserve the contention that a jury verdict was contrary to the weight of the evidence.

Evans v. New York City Tr. Auth., NY Slip Op 07872 (2d Dep't November 6, 2019)

Here is the decision.

CPLR 5015(a).

An expert's affidavit, created after the order awarding summary judgment on the plaintiff's default, does not constitute "newly discovered evidence" sufficient to warrant vacatur of the order.

Luna v. Ponce Funeral Homes, Inc., NY Slip Op 07774 (2d Dep't October 30, 2019)

Here is the decision.

CPLR 602(a).

Cases may be joined for discovery and trial where there are common questions of law and fact, unless the party opposing the motion demonstrates that a joint trial will prejudice a substantial right. The Appellate Division will accord deference to the motion court's exercise of its discretion.

Lema v. 1148 Corp., NY Slip Op 07866 (1st Dep't October 31, 2019)

Here is the decision.

Court holiday.

Appellate practice.

The right of direct appeal of an order terminates with the entry of the order and judgment.

M & T Bank v. Biordi, NY Slip Op 07775 (2d Dep't October 30, 2019)

Here is the decision.

Family Court.

Family Court is a court of limited subject matter jurisdiction, and cannot exercise powers beyond those granted to it by statute.

Matter of Hamrahi v. Brock, NY Slip Op 07781 (2d Dep't October 30 2019)

Here is the decision.

Leave to renew.

The movant must raise new facts that would have changed the outcome of the prior motions, and provide a reasonable excuse for failing to present those facts at the proper time, pursuant to CPLR 2221[e]. Renewal is not a second chance for parties who have failed to exercise due diligence in making their original factual presentation, and  it is granted sparingly.

Wade v. Giacobbe, NY Slip Op 07852 (1st Dep't October 31,2019)

Here is the decision.

Dismissal of a conspiracy claim.

In the absence of a viable tort claim, there can be no conspiracy claim.

Sabo v. Candero, NY Slip Op 07720 (1st Dep't October 29, 2019)

Here is the decision.

Answering papers on a summary judgment motion.

The non-movant is not required to address an issue that is not raised in the moving papers.

,Massillon v. Regalado, NY Slip Op 07717 (1st Dep't October 29, 2019)

Here is the decision.

CPLR 306-b.

If a plaintiff does not serve the summons and complaint within 120 days of commencement of the action, "the court, upon motion, shall dismiss the action without prejudice as to that defendant, or upon good cause shown or in the interest of justice, extend the time for service."  Good cause and interest of justice are two separate and independent standards. In order to establish good cause, a plaintiff must demonstrate reasonable diligence in attempting service. The interest of justice is a broader standard meant to accommodate service that is late due to mistake, confusion or oversight, as long as there is no prejudice to the defendant. The interest of justice standard requires a careful judicial analysis of the factual setting of the case and a balancing of the parties' competing interests. Under the interest of justice standard, the court may consider diligence, or lack thereof, along with any other relevant factor in making its determination, including expiration of the Statute of Limitations, the meritorious nature of the cause of action, the length of delay in service, the promptness of the plaintiff's request for an extension of time, and prejudice to the defendant.

Nationstar Mtge., LLC v. Wilson, NY Slip Op 07595 (2d Dep't October 23, 2019)

Here is the decision.

A claim of unjust enrichment.

To prevail on the cause of action, the plaintiff must establish that it conferred a benefit on the defendant, and that the defendant will retain that benefit without adequately compensating the plaintiff. In determining the viability of the claim, the essential inquiry is whether it is against equity and good conscience to permit the defendant to retain what the plaintiff seeks to recover.

Beaman v. Awaye Realty Mgt., LLC, NY Slip Op 07562 (2d Dep't October 23, 2019)

Here is the decision.

General Obligations Law § 5-1401.

Where the parties' agreement falls within the ambit of the statute, New York will enforce the choice-of-law clause, regardless of whether there is a connection between the transaction and New York.

ABB, Inc. v. Havtech, LLC, NY Slip Op 07693 (1st Dep't October 24, 2019)

Here is the decision.

Appellate practice.

Where the record reflects that respondent consented to the order, it is not appealable since he is not an aggrieved party within the meaning of CPLR 5511. Respondent's remedy, if any, is to move to vacate or resettle the order.

Matter of Jessica M. v. Julio G.R., NY Slip Op 07696 (1st Dep't October 24, 2019)

Here is the decision.

Traverse hearings.

Where there are conflicting affirmations, based on personal knowledge, on the issue of the proper service of the defendant's motion to strike the complaint. a traverse hearing is required.

US Bank NA v. Okeke, NY Slip Op 07687 (1st Dep't October 24, 2019)

Here is the decision.

Premises liability.

A tenant's common-law duty to maintain the premises in a reasonably safe condition is limited to those areas which it occupies and controls, or of which it makes a special use.

Arshinov v. Gr 10-40, LLC, NY Slip Op 07560 (2d Dep't October 23, 2019)

Here is the decision.

CPLR 4401.

Pursuant to the statute, a party may move for a directed verdict after the close of the opposing party's evidence. It is reversible error to grant a motion for a directed verdict prior to the close of the party's case against whom a directed verdict is sought, even if it is unlikely that the plaintiff will prevail. The denial of a fair trial claim is a stand-alone cause of action

Cromedy v. City of New York, NY Slip Op 07527 (1st Dep't October 22, 2019)

Here is the decision.

Dismissal on the ground of CPLR 301.

A corporate defendant's registration to do business in New York and the designation of the Secretary of State to accept service of process does not constitute the corporation's consent to submit to the general jurisdiction of New York for causes of action that are unrelated to the corporation's affiliations with New York.

Fekah v. Baker Hughes Inc., NY Slip Op 07500 (1st Dep't October 17, 2019)

Here is the decision.

A petition to vacate an arbitration award.

In order to vacate an award on the ground of manifest disregard of the law, the petitioner must show that the arbitration panel knew of a governing legal principle that was well defined, explicit, and clearly applicable, and refused to apply it or ignored it altogether. A mistake of law does not constitute manifest disregard, and is not ground for vacatur.

Matter of McKenna, Long & Aldridge, LLP v. Ironshore Specialty Ins. Co., NY Slip Op 07498 (1st Dep't October 17, 2019)

Here is the decision.

CPLR 3025(b).

A proposed amended complaint must clearly show the changes or additions between it and the previous complaint.

Cafe Lughnasa Inc. v. A&R Kalimian LLC, NY Slip Op 07496 (1st Dep't October 17, 2019)

Here is the decision.

22 NYCRR 202.27.

 A court may exercise its discretion to dismiss an action where the plaintiff fails to appear at any scheduled call of a calendar or at any conference.

Bank of N.Y. v. Harper, NY Slip Op 07378 (2d Dep't October 16, 2019)

Here is the decision.

CPLR 3212[f].

Where plaintiffs meet their burden of demonstrating that facts essential to justify opposition to a summary judgment motion may lie within defendants' exclusive knowledge or control, the motion will be denied as premature, with leave to renew upon the completion of discovery.

Lyons v. New York City Economic Dev. Corp., NY Slip Op 07483 (1st Dep't October 17, 2019)

Here is the decision.

Appellate Practice.

When a motion to renew an order will remove the grievance on which the appeal is based, the appeal should be abated.

Saud v. New York & Presbyt. Hosp., NY Slip Op 07375 (1st Dep't October 15, 2019)

Here is the decision.

Medical malpractice.

Supervised medical personnel who are not exercising their independent medical judgment are not liable for malpractice. However, they may be liable for failing to intervene if the supervising doctor's directions greatly deviate from normal medical practice.

Macancela v. Wykoff Hgts. Med. Ctr., NY Slip Op 07244 (2d Dep't October 9, 2019)

Here is the decision.

CPLR 2221.

Plaintiffs' motion, while denominated as one for leave to renew and reargue, is not based on new facts unavailable at the time of the original motion, and, therefore, actually is a motion for leave to reargue, the denial of which is not appealable.

Smith v. Pereira, NY Slip Op 07357 (1st Dep't October 10, 2019)

Here is the decision.

CPLR 3211(a)(4).

The statute permits the dismissal of a cause of action where "there is another action pending between the same parties for the same cause of action in a court of any state or the United States; the court need not dismiss upon this ground but may make such order as justice requires." The motion court may providently exercise its discretion by dismissing the action without prejudice.

Seagate Mini Mall, Inc. v. Khlebopros, NY Slip Op 07306 (2d Dep't October 9, 2019)

Here is the decision.

Court holiday.

Statute of limitations.

In determining which limitations period is applicable to a given cause of action, the court must look to the substance of the allegations rather than to the parties' characterization of those allegations.

Potter v. Zucker Hillside Hosp., NY Slip Op 07304 (2d Dep't October 9, 2019)

Here is the decision.

CPLR 3211 and 3212.

The motion court treated defendant's motion to dismiss, pursuant to 3211(a)(2) and (7), as a motion for summary judgment, pursuant to 3211[c]), since both sides made it unequivocally clear that they were laying bare their proof and deliberately charting a summary judgment course.  The motion was untimely, since it was made after the 120-day deadline imposed by 3212(a) and was unaccompanied by an explanation for the lateness.

Hernandez v. 2075-2081 Wallace Ave. Owners Corp., NY Slip Op 07328 (1st Dep't October 10, 2019)

Here is the decision.

Waiver of trial by jury.

When the complaint either joins legal and equitable causes of action arising out of the same alleged wrong or seeks both legal and equitable relief, the plaintiff waives his right to jury trial.

Errant Gene Therapeutics, LLC v. Sloan-Kettering Inst. for Cancer Research, NY Slip Op 07226 (1st Dep't October 8, 2019)

Here is the decision.

Summary judgment in a trip-and-fall action.

Dismissal will be denied whee the defendant fails to meet its initial burden of demonstrating that it did not create the defective condition. Here, in relying on the building superintendent's deposition testimony, the defendant pointed to gaps in the plaintiff's proof instead of carrying its own burden on the motion.

Harvey v. Henry 85 LLC, NY Slip Op 07210 (1st Dep't October 8, 2019)

Here is the decision.

Appellate Practice.

The appellant may not challenge the propriety of an order granting a motion that he did not oppose, as he is not aggrieved by the order.

First Am. Tit. Ins. Co. v. Chavannes, NY Slip Op 07053 (2d Dep't October 2, 2019)

Here is the decision.

A claim of slander per se.

In order to survive dismissal, a plaintiff corporation must sufficiently state how the statements at issue harmed its reputation, business standing, or corporate integrity.

161 Ludlow Food, LLC v. L.E.S. Dwellers, Inc., NY Slip Op 07146 (1st Dep't October 3, 2019)

Here is the decision.

Charging liens.

An attorney of record who is discharged without cause has a charging lien pursuant to Judiciary Law § 475.  The lien is imposed on the cause of action, the proceeds of which are subject to lien, even where the recovery is from an action different from the one in which the services were rendered.

Dzhurinskiy v. Moore, NY Slip Op 07050 (2d Dep't October 2, 2019)

Here is the decision.

A claim for quantum merit/unjust enrichment.

The cause of action will be dismissed where it constitutes an indistinguishable dispute regarding the same operative facts as the claim for breach of contract.

Sears Holdings Mgt. Corp. v. Rockaway Realty Assoc., LP, NY Slip Op 07174 (1st Dep't October 3, 2019)

Here is the decision.

Stipulations.

Where the motion court so-orders the stipulation, its terms have the weight of a court order.

Gordon v. Schaeffer, NY Slip Op 07141 (1st Dep't October 3, 2019)

Here is the decision.

A dismissed claim of unjust enrichment.

There is no cause of action where the claim merely duplicates or replaces a conventional contract claim.

Markov v. Katt, NY Slip Op 07006 (1st Dep't October 1, 2019)

Here is the decision.

Appellate Practice.

Pursuant to CPLR 5511, the appeal will be dismissed where the appellant is not aggrieved by the final order.

Matter of Mahoney v. Martin, NY Slip Op 06969 (2d Dep't September 27, 2019)

Here is the decision.

CPLR 2016.

In this medical malpractice action, plaintiff's expert's affidavit, as originally submitted, was not notarized and, therefore, does not qualify as an affirmation. However, plaintiff corrected the defect by submitting a notarized version at oral argument.

Stewart v. Goldstein, NY Slip Op 06865 (1st Dep't September 26, 2019)

Here is the decision.

Amending a bill of particulars.

A plaintiff seeking leave to amend a bill of particulars by asserting a new injury must demonstrate a reason for the delay in asserting the injury and submit a medical affidavit showing a causal connection between the alleged injury and the original injuries sustained.

Cherry v. Longo, NY Slip Op 06741 (2d Dep't September 25, 2019)

Here is the decision.

CPLR 5015[a][1].

In order to vacate a default in opposing a motion, the moving party must demonstrate a reasonable excuse for the default and a potentially meritorious opposition to the motion.

Bazeli v. Azaz, NY Slip Op 06736 (2d Dep't September 25, 2019)

Here is the decision.

CPLR 3215(c).

Pursuant to the statute, "[i]f the plaintiff fails to take proceedings for the entry of judgment within one year after [a] default, the court shall not enter judgment but shall dismiss the complaint as abandoned, without costs, upon its own initiative or on motion, unless sufficient cause is shown why the complaint should not be dismissed." It is not necessary that the plaintiff actually obtain a default judgment within one year of the default in order to avoid statutory dismissal. Nor is the plaintiff required to specifically seek the entry of a judgment within a year. As long as the plaintiff has initiated proceedings for the entry of a judgment within one year of the default, there is no basis for dismissal of the complaint under the statute.

Aurora Loan Servs., LLC. v. Bandhu, NY Slip Op 06734 (2d Dep't September 25, 2019)

Here is the decision.

A claim for punitive damages.

The claim is dismissed, as no separate cause of action for punitive damages lies for pleading purposes. Even if it were properly pleaded, the claim does not lie in an action that is grounded on private breach of contract, and does not seek to vindicate a public right or deter morally culpable conduct.

Ahsanuddin v. Addo, NY Slip Op 06864 (1st Dep't September 26, 2019)

Here is the decision.

The computation of interest.

CPLR 5001(a) provides, in pertinent part, that "in an action of an equitable nature, interest and the rate and date from which it shall be computed shall be in the court's discretion." Pursuant to 5001(b), "interest shall be computed from the earliest ascertainable date the cause of action existed, except that interest upon damages incurred thereafter shall be computed from the date incurred."

Bistro Shop LLC v. N.Y. Park N. Salem, Inc., NY Slip Op 06696 (1st Dep't September 24, 2019)

Here is the decision.

Emails as sufficient modification of a lease.

In an email, plaintiff's counsel memorialized the parties' verbal agreement that plaintiff would continue to renovate the space while defendant waited for the necessary third-party approvals to complete its work. In a responding email, defendant acknowledged that plaintiff counsel's email was accurate. This exchange constitutes a written modification of the lease, permitting plaintiff to conduct additional renovations on the space.

Bistro Shop LLC v. N.Y. Park N. Salem, Inc., NY Slip Op 06696 (1st Dep't September 24, 2019)

Here is the decision.

Appellate practice.

Sua sponte orders which necessarily affect the final determination are reviewable on appeal from the final judgment.

Ahmed v. Ahmed, NY Slip Op 06580 (2d Dep't September 18, 2019)

Here is the decision.

Choice of law.

New York courts routinely apply the law of the place where the evidence in question will be introduced at trial or the location of the discovery proceeding when deciding privilege issues. However, there are circumstances where the court may undertake an interest-balancing analysis to decide whether another state's law should govern the evidentiary privilege.

Ambac Assur. Corp. v. Nomura Credit & Capital, Inc., NY Slip Op 06574 (1st Dep't September 17, 2019)

Here is the decision.

CPLR 5015(a).

In order to vacate a default in appearing at a scheduled court conference, a party must demonstrate both a reasonable excuse for the default and a potentially meritorious defense or cause of action. Here, the defendant's excuse is law office failure, as her attorney neglected to note the adjourned conference date in his calendar.  This is a reasonable excuse, particularly considering that the default was an isolated incident, the defendant promptly moved to vacate the order entered upon the default, and the plaintiffs were not prejudiced.

Advanced Remodeling of Long Is., Inc. v. Monahan, NY Slip Op 06579 (2d Dep't September 18, 2019)

Here is the decision.

CPLR 3212(b).

Where the deponent or affiant does not have personal knwlege of the facts, as required by the statute, the motion for summary judgment will be denied.

Saunders v. J.P.Z. Realty, LLC, NY Slip Op 06573 (1st Dep't September 17, 2019)

Here is the decision.

CPLR 5015(a).

Pursuant to the statute, a party may move to vacate a judgment or order on the grounds of, among other things, newly discovered evidence or fraud, misrepresentation, or other misconduct of an adverse party. However, the statute does not provide an exhaustive list of the grounds for vacatur, and a court may vacate its own judgment for sufficient reason and in the interest of substantial justice.

City of New York v. OTR Media Group, Inc., NY Slip Op 06572 (1st Dep't September 17, 2019)

Here is the decision.

Appellate practice.

The Appellate Division has discretion to consider arguments that first were raised in the defendant's reply on its motion to dismiss if they involve questions of law that can be resolved on the existing record.

HSBC Bank USA v. Merrill Lynch Mtge. Lending, Inc., NY Slip Op 06567 (1st Dep't September 17, 2019)

Here is the decision.

Duplicative fraudulent inducement claims.

A fraudulent inducement claim will be dismissed as duplicative of a breach of contract claim if the defendant establishes, as a matter of law, that the damages sought in connection with the fraud claim are the same as those sought in connection with the contract claim.

Ambac Assur. Corp. v. Countrywide Home Loans Inc., NY Slip Op 06570 (1st Dep't September 17, 2019)

Here is the decision.

Amending a pleading.

In the absence of prejudice or surprise resulting directly from the delay in seeking leave, an application to amend or supplement a pleading is to be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit.  Where the standard is met, no evidentiary showing of merit is required in a motion to amend the complaint under CPLR 3025(b). The determination to permit or deny amendment is committed to the sound discretion of the trial court.

Clarke v. Acadia-Washington Sq. Tower 2, LLC, NY Slip Op 06469 (2d Dep't September 11, 2019)

Here is the decision.

A medical malpractice action.

The failure to investigate a condition that would have led to the incidental discovery of an unindicated condition does not constitute malpractice. In addition, a plaintiff cannot defeat the defendant's prima facie entitlement to summary judgment by introducing a new theory of liability.

Rotante v. New York Presbyt. Hospital- N.Y. Weill Cornell Med. Ctr., NY Slip Op 06457 (1st Dep't September 10, 2019)

Here is the decision.

CPLR 3102(d).

A party may seek additional disclosure after the commencement of trial only by permission of the court, on notice.

Matter of Michael R. v. Amanda R., NY Slip Op 06454 (1st Dep't September 10, 2019)

Here is the decision.

CPLR 5021(a)(3).

A deposit to the court must be made, on motion, pursuant to an order of the court. Otherwise, it is merely an escrow account.

Triadou SPV S.A. v. CF 135 Flat LLC, NY Slip Op 06453 (1st Dep't September 10, 2019)

Here is the decision.

CPLR 4404(a).

A motion to set aside a jury verdict and for judgment as a matter of law will be granted where there is no valid line of reasoning and permissible inferences which, based on the evidence presented, could possibly lead rational persons to the jury's conclusions. In considering the motion, the trial court must afford the opposing party every inference which may properly be drawn from the facts presented, and the facts must be considered in a light most favorable to the nonmovant.

Allen v. Federation of Jewish Philanthropies of N.Y., NY Slip Op 06462 (2d Dep't September 11, 2019)

Here is the decision.

An account stated.

An invoice and a demand letter are sufficient to create an account stated. Nevertheless, evidence that there was not a meeting of the minds as to the correctness of the balance rendered will defeat the plaintiff's motion for summary judgment.

Cushman & Wakefield, Inc. v. Kadmon Corp., LLC, NY Slip Op 06456 (1st Dep't September 10, 2019)

Here is the decision.

Appellate practice.

The Appellate Division will not consider an argument that is raised for the first time on appeal and does not involve a pure question of law that appears on the face of the record and could not have been avoided if brought to the attention of the Supreme Court.

Maida v. St. Bonaventure Univ., NY Slip Op 06389 (2d Dep't August 28, 2019)

Here is the decision.

Fee disputes.

When there is a dispute between the plaintiff's current and discharged attorneys in an action to which a contingent fee retainer agreement applies, the discharged attorney may elect to receive compensation immediately based on quantum meruit, or on a contingent percentage fee based on the proportionate share of the work performed on the whole case. The award of reasonable fees is within the sound discretion of the Supreme Court based on the time and labor required, the difficulty of the issues involved, the skill required to handle the matter, and the effectiveness of the legal work performed.

Pyong Woo Ye v. Pasha, NY Slip Op 06425 (2d Dep't August 28, 2019)

Here is the decision.

CPLR 3216.

An action will not be dismissed for failure to prosecute, whether on the ground of general delay or for failure to serve and file a note of issue, unless there has first been served a 90-day notice.

Rezk v. New York Presbyt. Hospital/N.Y. Weill Cornell Ctr., NY Slip Op 06426 (2d Dep't August 28, 2019)

Here is the decision.

Vacatur of an arbitration award.

An award will be vacated where the arbitrator irrationally ignored the controlling law.

Global Liberty Ins. Co. of N.Y. v. Top Q., Inc., NY Slip Op 06445 (1st Dep't September 3, 2019)

Here is the decision.

Real Property Law § 291

A bona fide buyer - one who buys land in good faith and for  valuable consideration - takes the property free and clear of any prior conveyance, encumbrance, or servitude of which, at the time of purchase, the buyer did not have actual or constructive notice.

Akasa Holdings, LLC v. 214 Lafayette House, LLC, NY Slip Op 06447 (1st Dep't September 3, 2019)

Here is the decision.

The New York City Human Rights Law.

The statute does not differentiate between sexual harassment and other forms of gender discrimination, but requires that sexual harassment be viewed as one species discrimination based on sex or gender.

Crookendale v. New York City Health & Hosps. Corp., NY Slip Op 06446 (1st Dep't September 3, 2019)

Here is the decision.

A slip and fall action.

An established reasonable cleaning routine precludes the imposition of liability. Where the incident occurs outside of the scheduled cleaning routine, the complaint will be dismissed if the plaintiff fails to raise a factual issue that the cleaning routine was manifestly unreasonable so as to require altering it.

Thomas v. Sere Hous. Dev. Fund Corp., NY Slip Op 06443 (1st Dep't September 3, 2019)

Here is the decision.

Appellate practice.

The Appellate Division will not consider an argument that raises factual issues that were not submitted to the motion court.

Mable v. 384 E. Assoc., LLC, NY Slip Op 06442 (1st Dep't September 3, 2019)

Here is the decision.

CPLR 78.

In order to annul an administrative law judge's determination made after a hearing directed by law at which evidence is taken, a court must conclude that the record lacks substantial evidence to support the determination.

Pepe v. New York State Dept. of Motor Vehicles, NY Slip Op 06397 (2d Dep't August 28, 2019)

Here is the decision.

General Municipal Law § 50-e(5).

Where there is an unexplained delay in seeking leave to serve a late notice of claim, the petitioner bears the initial burden of presenting some evidence or plausible argument that granting the petition would not substantially prejudice the City in maintaining its defense on the merits.

Galicia v. City of New York, NY Slip Op 06393 (2d Dep't August 28, 2019)

Here is the decision.

Triangle Shirtwaist Factory.

An incapacitated plaintiff.

An incapacitated person who has not been judicially declared incompetent may sue or be sued. The mere fact that the action is commenced before the plaintiff moves, pursuant to CPLR 1202, to be appointed guardian ad litem of the incapacitated person is not grounds for dismissal under CPLR 3211(a)(3). CPLR 1202(a) expressly states that a motion for the appointment of a guardian ad litem may be made "at any stage in the action."

Linghua Li v. Xiao, NY Slip Op 06388 (2d Dep't August 28, 2019)

Here is the decision.

A claim for prima facie tort.

The elements of the cause of action are 1) the intentional infliction of harm, (2) resulting in special damages, (3) without excuse or justification, (4) by an act or series of acts which otherwise are legal.

Garendean Realty Owner, LLC v. Lang, NY Slip Op 06381 (2d Dep't August 28, 2019)

Here is the decision.

CPLR 5015[a][1].

In order to vacate a default in appearing for oral argument, a party must demonstrate both a reasonable excuse for the failure to appear and a potentially meritorious cause of action. The motion to vacate is addressed to the sound discretion of the Supreme Court.

Ackerman v. Berkowitz, NY Slip Op 06375 (2d Dep't August 28, 2019)

Here is the decision.

Civil Rights Law § 74.

The allegedly defamatory statements that summarize or restate the allegations in judicial filings in a case related to plaintiff are not actionable.

Napoli v. New York Post, NY Slip Op 06371 (1st Dep't August 27, 2019)

Here is the decision.

Expert testimony in a medical malpractice action.

The expert need not be licensed in New York. It is sufficient that the expert attests to familiarity with either the standard of care in the locality or to a minimum standard applicable locally, state-wide, or nationally.

M.C. v. Huntington Hosp., NY Slip Op 06186 (2d Dep't August 21, 2019)

Here is the decision.

CPLR 308(2).

Service on a natural person may be made "by delivering the summons within the state to a person of suitable age and discretion at the actual place of business, dwelling place or usual place of abode of the person to be served and by . . . mailing the summons to the person to be served at his or her last known residence." Jurisdiction is not acquired pursuant to the statute unless there is strict compliance with the two steps of delivery and mailing. The plaintiff bears the ultimate burden of proving by a preponderance of the evidence that jurisdiction over the defendant was obtained by proper service of process.

Aurora Loan Servs, LLC v. Revivo, NY Slip Op 06210 (2d Dep't August 21, 2019)

Here is the decision.

The limitations period on a foreclosure action.

An action to foreclose a mortgage is subject to a six-year statute of limitations, pursuant to CPLR 213[4]. Where the mortgage is payable in installments, there are separate causes of action for each installment accrued, and the limitations period begins to run on the due-date of each installment. The limitations period begins to run on the entire debt when the mortgagee or its predecessor elects to accelerate the mortgage. The notice of acceleration must be clear and unequivocal, and, once the debt is accelerated, the entire amount is due and the limitations period begins to run on the entire debt.

Ditech Fin., LLC v. Reiss, NY Slip Op 06209 (2d Dep't August 21, 2019

Here is the decision.

Summary judgment motions.

In opposing the motion, a plaintiff cannot raise for the first time a new or materially different theory of recovery from those pleaded in the complaint and the bill of particulars.

Anonymous v. Gleason, NY Slip Op 06207 (2d Dep't August 21, 2019)

Here is the decision.

General Obligations Law § 5-701(a)(1).

An alleged oral agreement which by its terms cannot be performed within one year is unenforceable.

Martin Greenfield Clothiers, Ltd. v. Brooks Bros. Group, Inc.,  NY Slip Op 06225 (2d Dep't August 22, 2019)

Here is the decision.

CPLR 3212(f).

Plaintiff's motion for summary judgment is not premature where the defendant fails to offer an evidentiary basis to suggest that additional discovery may lead to relevant evidence, or that facts essential to opposing the motion are exclusively within the plaintiff's knowledge and control.

Rodriguez-Garcia v. Bobby's Bus Co., Inc., NY Slip Op 06221 (2d Dep't August 21, 2019)

Here is the decision.

CPLR 510(1).

The statute requires the movant's affirmative showing that the plaintiff's choice of venue is improper. Absent such a showing, the court may not pass upon the propriety of the choice of venue proposed by the defendant.

Lividini v. Goldstein, NY Slip Op 06150 (1st Dep't August 20, 2019)

Here is the decision.

CPLR 1021.

A motion for substitution must be made within a reasonable time. In deciding the reasonability of the timing, a court will consider the diligence of the party seeking substitution, the prejudice to the other parties, and whether the party to be substituted has shown that the action or the defense has potential merit.

Petion v. New York City Health & Hosps. Corp., NY Slip Op 06107 (2d Dep't August 7, 2019)

Here is the decision.

CPLR 3025(b).

Leave to amend a pleading should be freely granted, in the absence of prejudice or surprise to the opposing party, and unless the proposed amendment is palpably insufficient or patently devoid of merit. The determination whether to grant leave is within the Supreme Court's broad discretion, and the exercise of that discretion will not be lightly disturbed on appeal.

Wells Fargo Bank, N.A. v. Confino, NY Slip Op 06081 (2d Dep't August 7, 2019)

Here is the decision.

CPLR 321.

The filing of a notice of appearance in an action by a party's counsel serves as a waiver of any objection to personal jurisdiction in the absence of either the service of an answer which raises a jurisdictional objection, or a motion to dismiss, pursuant to CPLR 3211(a)(8), for lack of personal jurisdiction.

Mid-Island Mtge. Corp. v. Johnson, NY Slip Op 06081 (2d Dep't August 7, 2019)

Here is the decision.

CPLR 3102(c).

Disclosure to aid in bringing an action authorizes discovery to allow a plaintiff to frame the complaint and to obtain the identity of the prospective defendants. Pre-action disclosure is not allowed after commencement of the action for which the identities are sought.

Weitzman v. Long Beach City Sch. Dist., NY Slip Op 06092 (2d Dep't August 7, 2019)

Here is the decision.

A slip and fall action.

Where the defendant does not establish its prima facie entitlement to summary judgment, the burden never shifts to the plaintiff to establish how long the allegedly hazardous condition existed.

Carela v. New York City Tr. Auth., NY Slip Op 06140 (1st Dep't August 13, 2019)

Here is the decision.

Labor Law § 240.

In order to invoke the statute, an appropriate safety device must be lacking or defective, thereby exposing workers to elevation-related risks, and it must have proximately caused the plaintiff's injuries. Here, plaintiff testified that he fell while, on his own volition, trying to climb the frame of a non-defective scaffold, which does not establish Labor Law § 240 liability.

Biaca-Neto v. Boston Rd. II Hous. Dev. Fund Corp., NY Slip Op 06142 (1st Dep't August 13, 2019)

Here is the decision.

Arbitrable and non-arbitrable claims.

Where the claims are inextricably interwoven, the court should stay judicial proceedings pending completion of the arbitration, especially where the determination of issues in arbitration may dispose of non-arbitrable matters.

Lake Harbor Advisors, LLC v. Settlement Servs. Arbitration & Mediation, Inc., NY Slip Op 06073 (2d Dep't August 7, 2019)

Here is the decision.

Successive summary judgment motions.

Successive motions should not be entertained, absent a showing of newly discovered evidence. Evidence is not newly discovered simply because it was not submitted on the previous motion. Instead, it must not have been available to the movant at the time of the prior motion, and it could not have been established through alternative evidentiary means.

Hillrich Holding Corp. v. BMSL Mgt., LLC, NY Slip Op 06070 (2d Dep't August 7, 2019)

Here is the decision.

CPLR 3211(a)(1).

A motion to dismiss will be granted on the ground of documentary evidence only where the evidence utterly refutes plaintiff's factual allegations, conclusively establishing a defense as a matter of law.

Glenwayne Dev. Corp v. James J. Corbett, P.C., NY Slip Op 06069 (2d Dep't August 7, 2019)

Here is the decision.

CPLR 3211(a)(5).

On a motion to dismiss on the ground that the statute of limitations has expired, the moving defendant must establish, prima facie, that the time within which to commence the action has expired. The burden then shifts to the plaintiff to raise a question of fact as to whether the limitations period has been tolled or is otherwise inapplicable, or whether the plaintiff actually commenced the action within the limitations period.

Edem v. Wondemagegehu, NY Slip Op 06065 (2d Dep't August 7, 2019)

Here is the decision.

Discovery motions.

Pursuant to 22 NYCRR 202.7(a) and (c), the motion must be accompanied by an affirmation from moving counsel attesting to a good faith effort to resolve the issues raised in the motion, including the time, place, and nature of the consultation, as well as the issues discussed.

Bronstein v. Charm City Hous., LLC, NY Slip Op 06058 (2d Dep't August 7, 2019)

Here is the decision.

CPLR 3215(c).

"If the plaintiff fails to take proceedings for the entry of judgment within one year after the default, the court shall not enter judgment but shall dismiss the complaint as abandoned, without costs, upon its own initiative or on motion." The plaintiff's failure to timely seek a default may be excused on a showing of sufficient cause, which requires the plaintiff to proffer a reasonable excuse for the delay in timely moving for a default judgment and to demonstrate that the cause of action is potentially meritorious. The determination of whether an excuse is reasonable is committed to the sound discretion of the motion court.

Bank of Am., N.A. v. Santos, NY Slip Op 06056 (2d Dep't August 7, 2019)

Here is the decision.

CPLR 6301.

"A temporary restraining order may be granted pending a hearing for a preliminary injunction where it appears that immediate and irreparable injury, loss or damage will result unless the defendant is restrained before the hearing can be had." A party seeking a preliminary injunction must show a likelihood of success on the merits, the possibility of irreparable harm in the absence of a preliminary injunction, and the balance of the equities in its favor.

Wilder v. Fresenius Med. Care Holdings, Inc., NY Slip Op 06054 (1st Dep't August 6, 2019)

Here is the decision.

Dismissal on forum non conventions grounds.

In the court's granting the motion, New York law does not require that an alternative forum be available.

Primus Pac. Partners 1, LP v. Goldman Sachs Group, Inc., NY Slip Op 06052 (1st Dep't August 6, 2019)

Here is the decision.

The doctrine of equitable estoppel.

In order to successfully invoke the doctrine, the plaintiff must establish that the defendant's subsequent and specific actions kept the plaintiff from timely bringing suit.  Here, the plaintiff failed to raise a question of fact as to whether any purported fraudulent activity affirmatively induced it to refrain from commencing this action until the statute of limitations had expired. It is insufficient to merely allege that the defendant was in some way connected to a fraudulent scheme.

Jacobson Dev. Group, LLC v. Yews, Inc., NY Slip Op 05964 (2d Dep't July 31, 2019)

Here is the decision.

A day care center's duty of care.

A provider of day care services is under a duty to adequately supervise the children in its charge, and may be held liable for foreseeable injuries proximately related to the absence of adequate supervision. In stating a claim of negligent supervision,  the plaintiff is not required to exclude every other possible cause, but need only offer evidence from which proximate cause may be reasonably inferred. The burden of proof is satisfied if the possibility of another explanation for the event is sufficiently remote or technical to enable the jury to reach its verdict based not upon speculation, but upon the logical inferences to be drawn from the evidence.

A.D.G. v. Children's Ark Daycare Ctr., Inc., NY Slip Op 05959 (2d Dep't July 31, 2019)

Here is the decision.

Church property disputes.

A court may resolve the dispute when the case can be decided solely on the application of neutral principles of law, without reference to any religious principle. The court must apply objective, well-established principles of secular law, and may rely on internal church governing documents only to the extent that they do not require the interpretation of ecclesiastical doctrine.

Eltingville Lutheran Church v. Rimbo, NY Slip Op 05957 (2d Dep't July 31, 2019)

Here is the decision.

A referee's report.

The court should confirm the report if the findings are substantially supported by the record, and the report clearly defines the issues and resolves any issues of credibility.

Federal Natl. Mtge. Assoc. v. Puretz, NY Slip Op 05958 (2d Dep't July 31, 2019)

Here is the decision.

CPLR 3126.

A plaintiff may be precluded from offering any evidence of damages for willful and contumacious conduct that may be inferred from the repeated failure to respond to discovery demands or comply with court-ordered discovery, coupled with an inadequate explanation. On appeal, the standard is abuse of discretion.

Gafarova v. Yale Realty, LLC, NY Slip Op 05960 (2d Dep't July 31, 2019)

Here is the decision.

Contract construction and interpretation.

In the first instance, the question of whether the writing is ambiguous is for the trial court, and the construction and interpretation of an unambiguous contract is an issue of law. If the language is free from ambiguity, its meaning may be determined on the basis of the writing alone, without resort to extrinsic evidence.  The parties' intent must be found within the four corners of the contract, giving practical interpretation to the language employed and the parties' reasonable expectations.

Atlantic Shores Bldrs. & Devs., Inc. v. Federico, NY Slip Op 05950 (2d Dep't July 31, 2019)

Here is the decision.

Summary judgment in a medical malpractice action.

The defendant-doctor establishes prima facie entitlement to dismissal of the claim by showing that either (i) in treating the plaintiff there was no departure from good and accepted medical practice, or (ii) any departure was not the proximate cause of the plaintiff' injuries. Failure to make this showing requires denial of the motion, regardless of the sufficiency of the opposing papers.

Bahnyuk v. Reed, NY Slip Op 05839 (1st Dep't July 30, 2019)

Here is the decision.

CPLR 2214(a).

Pursuant to the statute, an order to show cause must state the relief demanded and the grounds therefor. However, the court may grant such relief as is warranted by the facts plainly appearing on the papers on both sides, if the relief granted is not too dramatically unlike the relief sought, the proof offered supports it, and there is no prejudice to any party.

Velez v. City of New York, NY Slip Op 05781 (2d Dep't July 24, 2019)

Here is the decision.

General Municipal Law § 50-e.

Prior to commencing an action sounding in tort against a municipality or public corporation, a notice of claim must be served within 90 days after the claim arises. Leave to serve a late notice is denied where the petitioner fails to submit a copy of the proposed notice. or where the proposed notice does not specify the time, place, and manner in which the claim arose, the items of damages or injuries, or the total amount claimed. The petition must include an excuse for failure to timely serve the notice.

Brown v. City of New York, NY Slip Op 05773 (2d Dep't July 24, 2019)

Here is the decision.

CPLR 3013 and 3126.

The plaintiff's request for the disclosure of the defendant's cell phone records is not a mere fishing expedition. The motion papers adequately demonstrate that the request for disclosure may result in relevant evidence, is reasonably calculated to lead to the discovery of information bearing on the plaintiff's claim, and is sufficiently related to the issues to make it reasonable to get them in preparation for trial reasonable.  The defendant's motion for a protective order against production is denied, and the plaintiff's motion to compel production is granted.

Mendives v. Curcio, NY Slip Op 05771 (2d Dep't July 24, 2019)

Here is the decision.

A Labor Law § 240(1) cause of action.

The plaintiff's comparative negligence is not a defense to the claim. Recovery is unavailable only where the plaintiff's own conduct is the sole proximate cause of the accident.

Cruz v. St. Gerard Magella Church, NY Slip Op 05763 (2d Dep't July 24, 2019)

Here is the decision.

CPLR 308.

The affidavit of a process server constitutes prima facie evidence of proper service, and bare and unsubstantiated denials are insufficient to rebut the presumption of service.

McCraley v. Shvartsman, NY Slip Op 05770 (2d Dep't July 24, 2019)

Here is the decision.

Spoliation.

At common law, a party which loses or destroys evidence may be sanctioned under CPLR 3126.  The nature and severity of the sanction depends on factors such as the spoliator's knowledge and intent, proof of an explanation for the loss of evidence, and prejudice to the other party. The party seeking sanctions must demonstrate an obligation to preserve the evidence, a culpable state of mind, and the relevance of the evidence. A culpable state of mind includes ordinary negligence. Where the evidence was intentionally destroyed, its relevance is presumed. Where the evidence was negligently destroyed, its relevance must be established.

Delmur, Inc. v. School Constr. Auth., NY Slip Op 05764 (2d Dep't July 24, 2019)

Here is the decision.

Dog bites.

In order to recover on a theory of strict liability in tort, the plaintiff must prove that the dog had vicious propensities and that the owner of the dog, or person in control of the premises where the dog was, knew or should have known of those propensities.  Evidence of vicious propensities includes a prior attack, the dog's tendency to growl, snap, or bare its teeth, the manner in which the dog was restrained, and its having been used as a guard dog.

I.A. v. Mejia, NY Slip Op 05757 (2d Dep't July 24, 2019)

Here is the decision.

Civil conspiracy.

Civil conspiracy is not an independent tort in New York. However, the allegations of conspiracy are deemed part of a cause of action to which they are relevant, such as a claim for fraud, where liability may be premised on knowing participation in a scheme to defraud, even if that participation does not by itself suffice to constitute the fraud. The allegations of  conspiracy enable a plaintiff to connect a defendant with the acts of co-conspirators where otherwise the defendant could not be implicated.

Errant Gene Thereapetics, LLC v. Sloan-Kettering Inst. for Cancer Research, NY Slip Op 05654 (1st Dep't July 23, 2019)

Here is the decision.

Trips and falls.

Proof that a dangerous condition is open and obvious does not preclude a finding of liability, but is relevant to the issue of the plaintiff's comparative negligence.  For summary judgment, a defendant must establish that the condition was both open and obvious and, as a matter of law, was not inherently dangerous.

Karpel v. National Grid Generation, LLC, NY Slip Op 05651 (2d Dep't July 17, 2019)

Here is the decision.

A claim for lack of informed consent.

To establish the cause of action, a plaintiff must prove (1) that the treatment provider unreasonably failed to disclose alternatives and foreseeable risks; (2) that a reasonably prudent patient, if fully informed, would not have undergone the treatment; and (3) that the lack of informed consent is a proximate cause of the injury.

Gilmore v. Mihail, NY Slip Op 05647 (2d Dep't July 17, 2019)

Here is the decision.

An emergency doctrine jury instruction.

If, under some reasonable view of the evidence, an actor was confronted by a sudden and unforeseen occurrence not of the actor's own making, then the reasonableness of the conduct in the face of the emergency is for the jury, which should be appropriately instructed.

Figgiani v. Crociata, NY Slip Op 05645 (2d Dep't July 17, 2019)

Here is the decision.

Fraud and contracts.

The essential elements of a cause of action for fraud are representation of a material existing fact, falsity, scienter, deception, and injury. Mere unfulfilled statements as to what will be done in the future are not actionable as fraud, and the injured party's remedy is to sue for breach of contract. However, where it is alleged that the defendant made misrepresentations of present facts that were collateral to the contract and served as an inducement to enter into the contract, a cause of action alleging fraudulent inducement is not duplicative of a breach of contract claim.

Did-it.com, LLC v. Halo Group, Inc., NY Slip Op 05644 (2d Dep't July 17, 2019)

Here is the decision.

Suing the Port Authority.

A notice of claim must be served on the agency 60 days prior to commencing the action.  The notice must be a sworn writing setting forth the nature of the claim and the resulting damages or injuries.

Conn v. Tutor Perini Corp., NY Slip Op 05643 (2d Dep't July 17, 2019)

Here is the decision.

Vehicle and Traffic Law § 1128[a].

A driver has a duty not to enter a lane of moving traffic until it is safe to do so, and the failure to heed this duty constitutes negligence per se.

Castro v. Hatim, NY Slip Op 05639 (1st Dep't July 16, 2019)

Here is the decision.

CPLR 213[4].

An action to foreclose a mortgage is subject to a six-year statute of limitations. Where the mortgage is payable in installments, a separate cause of action accrues for each unpaid installment, and the limitations period begins on the due-date of each installment.  If a mortgage debt is accelerated, the entire amount is due and the limitations period begins on the entire debt. A lender may revoke its election to accelerate the mortgage, but it must do so by an affirmative act during the six-year limitations period subsequent to the commencement of the prior foreclosure action.

Wilmington Trust, N.A. v. Dawson, NY Slip Op 05583 (2d Dep't July 10, 2019)

Here is the decision.

Judiciary Law § 470.

A non-resident attorney's failure to comply with the statutory requirement of maintaining a physical office in New York State at the time a complaint is filed does not render the filing a nullity, and dismissal of the action is not required. The party may cure the statutory violation with the appearance of compliant counsel or an application for admission pro hac vice by appropriate counsel.

Marina Dist. Dev. Co., LLC v. Toledano, NY Slip Op 05480 (2d Dep't July 9, 2019)

Here is the decision.

CPLR 2005.

While the statute allows courts to excuse a default due to law office failure, it was not the Legislature's intent to routinely excuse such defaults, and mere neglect is not accepted as a reasonable excuse.  A claim of law office failure must be supported by detailed allegations of fact explaining the failure," and vague, conclusory, and unsubstantiated excuses are unacceptable.

Wright v. Brooklyn Renaissance Funding Co., LLC, NY Slip Op 05584 (2d Dep't July 10, 2019)

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CPLR 5015[a][1].

A party seeking to vacate a judgment based on excusable default must demonstrate both a reasonable excuse for the default and a meritorious defense. The preference for deciding cases on the merits does not justify vacating the default judgment where the moving party fails to satisfy the two-prong test.

Leader v. Parkside Group, NY Slip Op 05467 (1st Dep't July 9, 2019)

Here is the decision.

CPLR 214(4).

The statute of limitations for tortious interference with contract and with prospective business relations is three years from the date when the plaintiff first sustains damages. Here, the causes of action accrued on the date when the complaint alleges that plaintiff was terminated from his engagement with a nonparty.

Bandler v. DeYonker, NY Slip Op 05633 (1st Dep't July 11, 2019)

Here is the decision.

Summary judgment and discovery.

Plaintiff's argument that summary judgment should be denied because of a need for further discovery is unavailing since plaintiff only makes conclusory claims that unspecified evidence may be uncovered. While defendants moved for summary judgment just after the issue had been joined, depositions had been taken of all witnesses to the allegedly defamatory statements.

Thome v. Alexander and Louisa Calder Found., NY Slip Op 05625 (1st Dep't July 11, 2019)

Here is the decision.

An insufficient opposition to summary judgment.

In this personal injury action, the property owner-defendants' affidavits were insufficient to show, prima facie, that they did not owe a duty of care to the plaintiff.  The affidavits were conclusory, did not identify the source of their conclusions regarding the corporate relationships and responsibilities, did not refer to or include any supporting documentation or files, did not state that they were based upon personal knowledge, and failed to supply authenticated copies of the relevant leases or contracts.

Andriienko v. Compass Group USA, Inc., NY Slip Op 05506 (2d Dep't July 10, 2019)

Here is the decision.

The continuous representation doctrine.

The doctrine does not save an otherwise time-barred malpractice claim where the defendant-attorney was retained under two separately executed agreements.

Etzion v Blank Rome, LLP, NY Slip Op 05468(1st Dep't July 9, 2019)

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The advocate-witness rules.

The rules, as stated in 22 NYCRR 1200.0, provide guidance, but they are not binding authority in determining whether a party's attorney should be disqualified during litigation. Pursuant to Rule of Professional Conduct 3.7(a), "[a] lawyer shall not act as advocate before a tribunal in a matter in which the lawyer is likely to be a witness on a significant issue of fact."  At 3.7[a][3], there is an exception when "disqualification of the lawyer would work substantial hardship on the client." In addition, the rule generally does not apply where the attorney is a litigant.  However, estate representatives represent the interests of the estate's beneficiaries, rather than their own, and so the advocate-witness rule will prevail over a fiduciary-attorney's right to self-representation.

Greenberg v. Grace Plaza Nursing & Rehabilitation Ctr., NY Slip Op 05390 (2d Dep't July 3, 2019)

Here is the decision.

CPLR 7513.

Arbitrators are not permitted to award attorneys' fees, with three limited exceptions: (1) where a statute provides for the award; (2) where the award is authorized by an express provision in the agreement;  (3) where it is unmistakably clear that the parties intended the award.

Steyn v. CRTV, LLC, NY Slip Op 05341 (1st Dep't July 2, 2019)

Here is the decision.

A motion to compel arbitration.

Defendants' motion was denied because plaintiff was not a party to the agreement containing the arbitration clause, and, a separate agreement required that plaintiff's claims be litigated in New York.

BML Props. Ltd. v. China Constr. Am. Inc.,NY Slip Op 05339 (1st Dep't July 2, 2019)

Here is the decision.

A process server's affidavit.

Ordinarily, the affidavit establishes a prima facie case as to the method of service, and gives rise to a presumption of proper service. However, when the defendant submits a sworn denial of receipt of service containing specific facts to refute the statements in the process server's affidavit, the prima facie showing is rebutted. The plaintiff must establish personal jurisdiction by a preponderance of the evidence at a hearing.

Bank of N.Y.Mellon v. Ortiz, NY Slip Op 05378 (2d Dep't July 3, 2019)

Here is the decision.

Contracts for the sale of real property.

To satisfy the statute of frauds, a memorandum evidencing the contract and subscribed by the party to be charged must designate the parties, identify and describe the subject matter, and state all of the essential terms of a complete agreement.

443 Jefferson Holdings, LLC v. Sosa, NY Slip Op 05376 (2d Dep't July 3, 2019)

Here is the decision.

A dismissed malpractice claim.

Since damages in a legal malpractice case are designed to make the injured client whole, a plaintiff who fails to plead actual damages fails to state a claim.

Miami Capital, LLC v. Hurwitz, NY Slip Op 05332 (1st Dep't July 2, 2019)

Here is the decision.

A guarantor's liability.

The guarantee states that it is absolute and unconditional, and that, in pertinent part, it "shall be unconditional and irrevocable, irrespective of . . . (a) the genuineness, validity or enforceability of any of the Loan Documents . . . or (g) any other circumstance, occurrence or condition . . . which might otherwise constitute a legal or equitable defense."  The guarantor-defendant's claim of fraud in the inducement is barred.

Suttongate Holdings Ltd. v. Lanconm Mgt. N.V., NY Slip Op 05196 (1st Dep't June 27, 2019)

Here is the decision.

Long-arm jurisdiction.

California has jurisdiction over the non-resident defendants, based on their soliciting plaintiff in California by phone, exchanging drafts of the investor agreement by email, emailing status reports of the proposed venture, and flying to California to meet with the plaintiff.

Brothers Pac Four, LLC v. War Entertainment, LLC, NY Slip Op 05195 (1st Dep't June 27, 2019)

Here is the decision.

An alleged violation of disciplinary rules.

There is no private right of action against an attorney or law firm for alleged violations of the Code of Professional Responsibility or the disciplinary rules.

Karimian v. Karlin, NY Slip Op 05193 (1st Dep't June 27, 2019)

Here is the decision.

A landowner's duty of care.

While the landowner has a duty to exercise reasonable care in maintaining the property in a safe condition, there is no duty to protect or warn against an open and obvious condition which, as a matter of law, is not inherently dangerous. Neither is there a duty where the allegedly dangerous condition can be recognized simply as a matter of common sense, or where the condition is inherent or incidental to the nature of the property, and can reasonably be anticipated by its users.

Cerrato v. Jacobs, NY Slip Op 05105 (2d Dep't June 26, 2019)

Here is the decision.

CPLR 3016(b).

Vague and general allegations that a defendant misled the plaintiff about the defendant's financial abilities and defendant's intent to consummate the transaction are conclusory, and, as such, they are insufficient to plead fraud.

Meiterman v. Corporate Habitat, NY Slip Op 05078 (1st Dep't June 25, 2019)

Here is the decision.

CPLR 3025(b).

Pursuant to the statute, leave to amend a pleading "shall be freely given."  The motion should be granted where the amendment is neither palpably insufficient nor patently devoid of merit, and the delay in seeking amendment does not prejudice or surprise the opposing party.

Bargil Assoc., LLC v. Crites, NY Slip Op 04902 (2d Dep't June 19, 2019)

Here is the decision.

Res judicata.

A dismissal based on the statute of limitations is a determination on the merits, and so the dismissal of the prior lawsuit precludes a subsequent action in which the issues are identical to those sought to be litigated in plaintiffs' earlier action.

Cohen v. Glass, NY Slip Op 05065 (1st Dep't June 25, 2019)

Here is the decision.

CPLR 2004.

"[T]he court may extend the time fixed by any statute, rule or order for doing any act, upon such terms as may be just and upon good cause shown, whether the application for extension is made before or after the expiration of the time fixed." The grant of an extension is addressed to the sound discretion of the trial court.  In exercising its discretion, the court may consider such factors as the length of the delay, the reason or excuse for the delay, and any prejudice to the party opposing the motion.

Kim & Bae, P.C. v. Lee, NY Slip Op 04924 (2d Dep't June 19, 2019)

Here is the decision.

Successive motions for summary judgment.

The court considered and decided the motions as they were based on new evidence and they contributed to judicial efficiency, since they relieved the court and the movants of the burden of a plenary trial.

Elihu v. Nicoleau, NY Slip Op 05012 (1st Dep't June 20, 2019)

Here is the decision.

Judiciary Law § 21.

A Supreme Court Justice "shall not decide or take part in the decision of a question, which was argued orally in the court, when he was not present and sitting therein as a judge." However, the fact that summary judgment was granted by the Justice who did not not hear oral argument does not require vacatur of the order where the motion was decided on the basis of a purely legal question.

Marti v. Rana, NY Slip Op 05011 (1st Dep't June 20, 2019)

Here is the decision.

CPLR 3211(a)(4).

A party may move to dismiss a cause of action on the ground that there is another action pending between the same parties for the same cause of action in a court of any state or the United States.  The court need not dismiss upon this ground, but may make such order as justice requires.

21st Mtge. Corp. v. Ahmed, NY Slip Op 04899 (2d Dep't June 19, 2019)

Here is the decision.

Piercing the corporate veil.

To hold the individual owner-defendant liable for the corporation's actions, the plaintiff must show that (1) the individual owner exercised complete domination over the corporation with respect to the transaction attacked, and (2) that this domination was used to commit a fraud or wrong against the plaintiff, resulting in plaintiff's injury. It is a heavy burden, and the fact that the individual defendant is the corporation's sole shareholder is insufficient.

Kahan Jewelry Corp. v. Coin Dealer of 47th St., Inc., NY Slip Op 05001 (1st Dep't June 20, 2019)

Here is the decision.