CPLR 3213.

A defendant does not defeat the motion for summary judgment in lieu of complaint by alleging defenses and counterclaims that are separate and severable from the plaintiff's claims under a promissory note.

Veg 83, LLC v JTED83, Inc., NY Slip Op 01320 (1st Dep't February 21, 2019)

Here is the decision.

Motions to renew and reargue.

Where the movant cites to no new facts that would change the court's prior determination, the motion is only a motion for reargument, the denial of which is non-appealable as of right.

O'Halloran v. Metropolitan Transp. Auth., NY Slip Op 01318 (1st Dep't February 21, 2019)

Here is the decision.

HSBC Bank USA, N.A. v. Mahadeo, NY Slip Op 01376 (1st Dep't February 26, 2019)

Here is the decision.

CPLR 503[a].

If neither party is a New York resident when the action is commenced, a plaintiff may designate any county as venue.

Lobo v. Gatehouse Partners, LLC, NY Slip Op 01317 (1st Dep't February 21, 2019)

Here is the decision.

A real estate broker's fiduciary duty.

The broker is a fiduciary with a duty of loyalty and an obligation to act in the best interests of the principal, to whom the broker must disclose all material information that it may possess or obtain concerning the transaction. Where the broker's interests or loyalties are divided due to a personal stake in the transaction or the representation of multiple parties, the broker must disclose to the principal the nature and extent of the broker's interest in the transaction or the material facts of the broker's divided loyalties. A breach of the broker's duty of loyalty may constitute a fraud for which the broker is answerable in damages.

Edwards v. Walsh, NY Slip Op 01197 (2d Dep't February 20 2019)

Here is the decision.

Tolling the statute of limitations.

A motion for leave to amend the complaint does not toll the statute of limitations if the plaintiff does not annex the supplemental summons to its papers.

Bossung v. Rebaco Realty Holding Co., N.V.,  NY Slip Op 01188 (1st Dep't, February 19, 2019)

Here is the decision.

Vacatur of an arbitration award.

The fact that the arbitrator does not offer a detailed explanation for the award is not a ground on which to set the award aside.

Matter of Reljic v. Tullett Prebon Fin. Servs., LLC, NY Slip Op 01182 (1st Dep't February 19, 2019)

Here is the decision.

Enforcing a foreign judgment.

The United States Constitution's Full Faith and Credit Clause does not require enforcement of a foreign judgment that has not been domesticated pursuant to New York law.

Kassover v. Prism Ventures Partners, LLC, NY Slip Op 01175 (1st Dep't February 19, 2019)

Here is the decision.

A dismissed Labor Law claim.

There is no viable § 240(1) claim where the plaintiff simply lost his footing while climbing down from a properly secured, non-defective extension ladder that did not malfunction.

Mitchell v. City of New York, NY Slip Op 01149 (1st Dep't February 14, 2019)

Here is the decision.

Contract construction.

Where the agreement is unambiguous, its commercial reasonableness is irrelevant.

J-Bar Reinforcement, Inc. v. Crest Hill Capital LLC, NY Slip Op 01142 (1st Dep't February 14, 2019)

Here is the decision.

A motion for class certification.

Pursuant to CPLR 901(a), the movant must demonstrate that a class action is more desirable and feasible than requiring individual members to prosecute separate actions.

Maor v. One Fifty Fifty Seven Corp., NY Slip 01140 (1st Dep't February 14, 2019)

Here is the decision.

Court holiday.

Breach of a settlement agreement.

The failure to make timely payment pursuant to the terms of the agreement constitutes a cause of action for breach of contract.

Okoye v. deVere Group Ltd., NY Slip Op 01132 (1st Dep't February 14, 2019)

Here is the decision.

Tort liability for defective sidewalks.

The Administrative Code of the City of New York shifts liability from the City to abutting property owners, with the exception of "one-, two- or three-family residential real property that is (i) in whole or in part, owner occupied, and (ii) used exclusively for residential purposes," pursuant to § 7-210[b].

Cosme v. City of New York, NY Slip Op 01055 (2d Dep't February 13, 2019)

Here is the decision.

A dismissed contracts claim.

A plaintiff cannot base its claim on the non-performance of a condition precedent where the plaintiff itself made performance impossible.

Jeffers v. American Univ. of Antigua, NY Slip Op 00987(1st Dep't February 7, 2019)

Here is the decision.

An employment discrimination claim.

Mere disparate treatment, standing alone and without a showing that the disparity was based on a protected characteristic, does not amount to discrimination.

Abe v. New York Univ., NY Slip Op 00989 (1st Dep't February 7, 2019)

Here is the decision.

Restrictive covenants in employment agreements.

Practice point:  Where the agreement is between professionals, the restraint as to unfair competition is enforceable only if the former employee uses the employer's confidential business information, or if the former employee's services are extraordinary or unique.

Student note:  A restrictive covenant in an employment agreement is reasonable only if it is no greater than is required for the protection of the employer's legitimate interests; it does not impose an undue hardship on the employee; and it is not injurious to the public.

Harris v. Patients Med., P.C., NY Slip Op 00974 (1st Dep't February 7, 2019)

Here is the decision.

Court holiday.

Summary judgment in a medical malpractice action.

The injury itself cannot be the only basis for the finding of a departure from the accepted standard of medical practice.

Henry v. Duncan, NY Slip Op 00960 (1st Dep't February 7, 2019)

Here is the decision.

Contradictory testimony.

Generally, contradictions in the respective parties' testimony raise credibility issues for the trier of fact to resolve. However, where a party's deposition testimony is demonstrably false, it may be rejected as incredible as a matter of law.

Carthen v. Sherman, NY Slip Op 00954 (1st Dep't February 7, 2019)

Here is the decision.

Medical experts.

An expert does not have to be a specialist in order to testify regarding accepted practices in a particular field of medicine. However, where the testimony is outside the witness's area of specialization, a foundation must be laid to support the opinion's reliability.

Simpson v. Edghill, NY Slip Op 00923 (2d Dep't February 6, 2019)

Here is the decision.

Spoliation of evidence.

Sanctions may be imposed on a showing that the party in control of the evidence had an obligation to preserve it; that the evidence was destroyed with a culpable state of mind; and that the destroyed evidence was relevant to the extent that a trier of fact could find that the evidence would support the other party's claim or defense.

Sarris v. Fairway Group Plainview, LLC, NY Slip Op 00922 (2d Dep't February 6, 2019)

Here is the decision.

CPLR 3212(f).

Summary judgment will not be denied as premature where the affirmative defenses are precluded.

Bernstein v. Dubrovsky, NY Slip Op 00835 (1st Dep't February 5, 2019)

Here is the decision.

CPLR 217(1).

The four-month limitations period for article 78 claims applies to a plenary action to review the Police Pension Fund's administrative determination of an officer's vesting date.

Toolasprashad v City of New York, NY Slip Op 00825 (1st Dep't February 5, 2019)

Here is the decision.

CPLR 3018(b).

Practice point:  The defense of lack of standing in an action to foreclose a mortgage is waived if the defendant does not raise it in a pre-answer motion to dismiss or as an affirmative defense.

BAC Home Loans Servicing, LP v. Alvarado, NY Slip Op 00584 (2d Dep't January 30, 2019)

Here is the decision.

Legal malpractice.

Practice point:  An attorney cannot be found liable for failing to act outside the scope of the retainer agreement.

Attallah v. Milbank, Tweed, Hadley & McCloy, LLP,  NY Slip Op 00583 (2d Dep't January 30, 2019)

Here is the decision.

Conversion.

Practice point:  The conversion of intangible property is not actionable.

Austin v. Gold, NY Slip Op 00677 (1st Dep't January 31, 2019)

Here is the decision.

CPLR 5015(a)(3).

The court may vacate a judgment or order on the ground of an adverse party's fraud, misrepresentation, or other misconduct.

U.S. Bank, N.A. v. Robinson, NY Slip Op 00633 (2d Dep't January 30, 2019)

Here is the decision.

CPLR 7511(b).

The statute does not extend to vacatur or modification of the arbitration award on the sole ground that the arbitrators exceeded their authority by granting relief that was not specifically demanded in defendant's statement of claim.

Practice point:  The language of arbitration demands is not subject to the strict standards of construction applicable to formal court pleadings.

Chef Chloe, LLC v. Wasser, NY Slip Op 00571 (1st Dep't January 29, 2019)

Here is the decision.