CPLR 4404(a).

A trial court has the discretion to set aside a jury verdict and order a new trial where the verdict is clearly the product of substantial confusion among the jurors.

Wright v. City of New York, NY Slip Op 00495 (2d Dep't January 23, 2019)

Here is the decision.

Waiver of an objection to discovery.

A plaintiff waives any objection to the adequacy and timeliness of the defendants' disclosure of certain evidence by filing a note of issue and certificate of readiness stating that disclosure was complete and that there are no outstanding requests for disclosure.

Mordekai v. City of New York, NY Slip Op 00431 (2d Dep't January 23, 2019)

Here is the decision.

CPLR 3215(c).

If the plaintiff does not have the judgment entered within one year after a default, the court shall dismiss the complaint as abandoned, absent a showing of reasonable excuse for the delay in entering the judgment and a potentially meritorious action.

HSBC Bank USA, N.A. v. Myers, NY Slip Op 00424 (2d Dep't January 23, 2019)

Here is the decision.

A dismissed claim for malicious prosecution.

Practice point:  A showing of probable cause for the arrest defeats the claim.

Sanchez v. City of New York, NY Slip Op 00538 (1st Dep't January 24, 2019)

Here is the decision.

Service of an order to show cause.

Practice point:  The service requirements specified in the order are jurisdictional in nature, and, on that ground, the defendant may challenge the entry of the order.

Boucan NYC Café, LLC v. 467 Rogers, LLC, NY Slip Op 00416 (2d Dep't January 23, 2019)

Here is the decision.

Disclosure of social media.

Private social media information is discoverable to the extent that it contradicts or conflicts with the plaintiff's claims, with appropriate limits as to time.

Vasquez-Santos v. Mathew, NY Slip Op 00541 (1st Dep't January 24, 2019)

Here is the decision.

An alleged breach of a coop board member's fiduciary duty.

Where the plaintiff does not allege individual wrongdoing by defendant board members separate and apart from the board's collective action taken on behalf of the cooperative, a breach of fiduciary duty claim does not lie against the individual defendants.

Graham v. 420 E. 72nd Tenant Corp., NY Slip Op 00409 (1st Dep't January 22, 2019)

Here is the decision.

CPLR 6312 and preliminary injunctions.

Pursuant to CPLR 6312[b], before a preliminary injunction is granted, the plaintiff must give an undertaking in an amount to be fixed by the court. In the event of a final determination that the plaintiff was not entitled to an injunction, the plaintiff will pay to the defendant all damages and costs which may be sustained by reason of the injunction.

Candlewood Holdings, Inc. v. Valle, NY Slip Op 00255 (2d Dep't January 16, 2019)

Here is the decision.

CPLR 3215 and default judgments.

To be entitled to a default judgment pursuant to CPLR 3215(f), a plaintiff must submit proof of service of the summons and the complaint, proof of the defendant's failure to answer or appear, and proof of the facts constituting the cause of action.

Caliguri v. Pentagon Fed. Credit Union, NY Slip Op 00254 (2d Dep't January 16, 2019)

Here is the decision.

CPLR 3025 and leave to amend.

Pursuant to CPLR 3025(b), leave to amend a pleading should be freely given, provided that the amendment is not palpably insufficient, does not prejudice or surprise the opposing party, and is not patently devoid of merit.

Bank of N.Y. v. C & L Interiors, Inc., NY Slip Op 00253 (2d Dep't January 16, 2019)

Here is the decision.

CPLR 5015 and vacating a default on the motion.

Pursuant to CPLR 5015(a)(1), the movant must demonstrate a reasonable excuse for the default and a potentially meritorious opposition to the motion.

Practice point:  The vague and unsubstantiated claim of law office failure is insufficient to establish a reasonable excuse for the default.

Bank of N.Y. Mellon v. Rici, NY Slip Op 00252 (2d Dep't January 16, 2019)

Here is the decision.

A landowner's liability.

Practice point:  Where a license agreement grants only a license to use the premises, and not a leasehold interest, the landowner remains in presumptive control of its property, and is subject to the obligations of ownership, including the duty to maintain the property in a reasonably safe condition.

Student note:  Courts uniformly hold that control is the test to measure the property owner's responsibility in tort.

Agbosasa v. City of New York, NY Slip Op 00250 (2d Dep't January 16, 2019)

Here is the decision.

CPLR 203(b) and the relation-back doctrine.

In order for a cause of action against a new defendant to relate back to the date of a claim against another defendant, the plaintiff must establish: (1) that the cause of action arises out of the same conduct, transaction, or occurrence; (2) that the additional party is united in interest with the original party; and (3) that the additional party knew or should have known that, but for the plaintiff's mistake as to the identity of the proper parties, the action would have been brought against the additional party as well.

Practice point:  In a medical malpractice action, the defendants are considered united in interest when one is vicariously liable for the acts of the other.

Ferrera v. Jerome Zisfein, NY Slip 00096 (2d Dep't January 9, 2019)

Here is the decision.

CPLR 317 and 5015.

Practice point:  The defense otherwise afforded by CPLR 317 is unavailable where the defendant's cursory denials fail to rebut the presumption of notice of the action created by the emails and proof of mailings submitted by the plaintiff. Where the defendant fails to raise an issue of fact as to service, vacatur for lack of jurisdiction under CPLR 5015(a)(4) will be denied. Where the defendant's only excuse is lack of service, and there is no issue of fact as to service, vacatur for excusable default under CPLR 5015(a)(1) will be denied.

Student note:  A process server's affidavit constitutes prima facie evidence of proper service.

Thomas v. Karen's Body Beautiful LLC, NY Slip Op 00241 (1st Dep't January 15, 209)

Here is the decision.

Rent regulation and CPLR 203-a.

Practice point:  Fraud is the only exception to the four year look-back period to determine the legally regulated rent on the base date.

Reich v. Belnord Partners, LLC, NY Slip Op 00220 (1st Dep't January 15, 2019)

Here is the decision.

The issue of standing on a summary judgment motion.

Practice point:  The burden is on the moving defendant to establish, prima facie, the plaintiff's lack of standing, rather than on the plaintiff to affirmatively establish its standing.

Cenlar FSB v. Lanzbom, NY Slip Op 00092 (2d Dep't January 9, 2019)

Here is the decision.

A landlord's duty to protect.

Practice point:  Landlords have a common-law duty to take minimal precautions to protect tenants and their guests from foreseeable harm, including a third party's foreseeable criminal conduct. A plaintiff's recovery requires a showing that the landlord's negligence was a proximate cause of the injury.

Student note: In premises security cases, the necessary causal link can be established only if the assailant was an intruder who gained access to the premises through a negligently maintained entrance.

Aminova v. New York City. Hous. Auth., NY Slip Op 00083 (2d Dep't January 9, 2018)

Here is the decision.

An involuntary dissolution.

Practice point:  In determining whether, under section 1104-a of the Business Corporation Law, the dissolution is warranted, a court must consider (1) whether liquidation is the only feasible means whereby the petitioner may reasonably expect to obtain a fair return on the petitioner's investment,  and (2) whether liquidation is reasonably necessary for the protection of the rights and interests of the petitioner or a substantial number of shareholders.  The court has discretion to deny the petition on a showing of shareholder oppression, provided the respondent shows that there is an adequate, alternative remedy, such as a buy-out, that would provide a fair return on the corporate investment.

Campbell v. McCall's Bronxwood Funeral Home, Inc., NY Slip Op 00182 (1st Dep't January 10, 2019)

Here is the decision.

Remedial affidavits.

Practice point:  In determining whether the pleading states a cause of action, a court may freely consider affidavits submitted by the plaintiff to remedy any defects in the complaint.

A. Servidone, Inc./B. Anthony Constr. Corp., J.V. v. State of New York, NY Slip Op 00082 (2d Dep't January 9, 2019)

Here is the decision.

Unjust enrichment.

Practice point:  To sufficiently plead the cause of action, a plaintiff must show that the defendant was enriched at the plaintiff's expense, and that it is against equity and good conscience to permit the defendant to keep what the plaintiff seeks to recover.

Student note:  Although the plaintiff does not have to allege privity, there must be a connection or relationship between the parties that could have caused reliance or inducement on the plaintiff's part.

McMurray v. Hye Won Jun, NY Slip Op 00065 (1st Dep't January 8, 2019)

Here is the decision.

CPLR 202.

Practice point:  This is New York's borrowing statute, which requires a claim to be timely under both the New York limitations period and that of the jurisdiction where the claim is alleged to have arisen.

Soloway v. Kane Kessler, PC, NY Slip Op 00026 (1st Dep't January 3, 2019)

Here is the decision.

CPLR 203(f).

Practice point:  Pursuant to the statute, a plaintiff may correct a pleading error by adding a new claim or a new party after the expiration of the statutory limitations period. There are three conditions for a claim against a newly named defendant to relate back to a claim against a defendant already named: (1) the claims arise out of the same conduct, transaction, or occurrence; (2) the new party is united in interest with the original defendant; and (3) the new party knew or should have known that, but for a mistake as to the identity of the proper parties, the action would have been brought against it.

Student note:  Codifying the relation back doctrine, CPLR 203(f) provides that "[a] claim asserted in an amended pleading is deemed to have been interposed at the time the claims in the original pleading were interposed, unless the original pleading does not give notice of the transactions [or] occurrences . . . to be proved pursuant to the amended pleading."

Ramirez v. Elias-Tejada, NY Slip Op 00021 (1st Dep't January 3, 2019)

Here is the decision.

The alleged breach of an attorney's fiduciary duty.

Practice point:  The cause of action is governed by the same standard as a legal malpractice claim, and it fails if the plaintiff does not establish the "but for" element.

Knox v. Aaronson, Mayefsky & Sloan, LLP, (1st Dep't December 27, 2018)

Here is the decision.

An attorney's affirmation in support of a motion to dismiss.

Practice point:  The fact that the defendant had submitted only an attorney's affirmation is not fatal to its motion, as the affirmation incorporated by reference deposition testimony which had been submitted by the co-defendant.

Canty v. 133 E. 79th Street, LLC, NY Slip Op 09022 (1st Dep't December 27, 2018)

Here is the decision.

The burdens on a defendant's motion for summary judgment in a medical malpractice action.

Practice point:  The physician-defendant must establish, prima facie, either that there was no departure from the accepted community standards of practice, or that, if there were]such a departure, it was not a proximate cause of the plaintiff's injuries. On this showing, the burden shifts to the plaintiff to rebut the defendant's prima facie showing with evidentiary facts or materials that demonstrate the existence of a triable issue of fact.

Salgado v. North Shore Univ. Hosp., NY Slip Op 08967 (2d Dep't December 26, 2018)

Here is the decision.

Admissibility of electronic records.

Practice point:  Copies of electronic records from the Secretary of State's official government website are admissible despite being uncertified, and the motion court may consider them.

Gibson v. U'SAgain Holdings, LLC, NY Slip Op 09012 (1st Dep't December 27, 2018)

Here is the decision.

New Year's 1971.