CPLR 602(a).

The motion court providently exercised its discretion in denying the motion to consolidate two personal injury actions, as there are insufficient common questions of law and fact. One action sounds in negligence, arising from an assault by a student, while the other is a premises liability case alleging a defective door. While both actions involve the same plaintiff and defendants, the underlying facts and standards of liability are different. In addition, there is no danger of defendants in one case blaming the defendants in the other case for plaintiff's exacerbated injuries.

Betancourt v. City of New York, NY Slip Op 04119 (1st Dep't May 28, 2019)

Here is the decision.

Contracts and torts.

A simple breach of contract is not to be considered a tort absent the violation of a legal duty that is independent of the contract itself.

Rosner v. Bankers Std. Ins. Co., NY Slip Op 04015 (2d Dep't May 22, 2019)

Here is the decision.

A restaurant's liability for valet parking.

The restaurant may be liable for the negligence of its attendants who are alleged to have caused an accident to a third party, even if the parking service is an independent contractor. The restaurant's duty of care arises when it has the ability and opportunity to control the conduct of its contractors, and an awareness of the need to do so.

Evans v. Norecaj, NY Slip Op 04029 (1st Dep't May 23, 2019)

Here is the decision.

CPLR 3211(a)(5).

A party may move to dismiss a cause of action based on the doctrine of res judicata, or claim preclusion, under which a valid final judgment bars future actions between the same parties on the same cause of action.

23 E. 39th St. Dev., LLC v 23 E. 39th St. Mgt. Corp., NY Slip Op 03748 (2d Dep't May 15, 2019)

Here is the decision.

Memorial Day.

Memorial Weekend. 2019.

Memorial Weekend. 1970.

Memorial Weekend. 1970.

CPLR 5511.

No appeal lies from an order entered upon the default of the appealing party.

HSBC Bank USA, Natl. Assn. v. Guaman, NY Slip Op 03772 (2d Dep't May 15, 2019)

Here is the decision.

CPLR 3025(b).

Although leave to amend a pleading will generally be granted in the absence of prejudice or surprise to the opposing party, the motion will be denied where the proposed amendment is palpably insufficient or patently devoid of merit.

Greene v. Esplanade Venture Partnership, NY Slip Op 03771 (2d Dep't May 15, 2019)

Here is the decision.

Service of process.

The process server's affidavit of service gives rise to a presumption of proper service, and the plaintiff's conclusory and unsupported statements in his affidavit are insufficient to rebut the presumption.

Green Tree Servicing, LLC v. Ferando, NY Slip Op 03770 (2d Dep't May 15, 2019)

Here is the decision.

Contract construction.

Where the parties' agreements are complete, clear and unambiguous on their face, they must be enforced according to the plain meaning of their terms.

Teledata Tech. Solutions, Inc. v. Sandton Fund Assignments, LLC, NY Slip Op 03889 (1st Dep't May 16, 2019)

Here is the decision.

Summary judgment in a personal injury action.

A plaintiff is not required to show freedom from comparative fault in order to establish prima facie entitlement to judgment as a matter of law on the issue of liability.

Catanzaro v. Edery, NY Slip Op 03762 (2d Dep't May 15, 2019)

Here is the decision.

CPLR 3126(3).

When a party fails to comply with a court order and frustrates the disclosure scheme set forth in the CPLR, it is within the court's discretion to strike or dismiss a pleading. The drastic remedy of dismissing a complaint is granted only where the plaintiff's conduct is willful and contumacious. Such conduct may be inferred from the repeated failure to comply with court-ordered discovery, coupled with inadequate explanations for the failures to comply, or a failure to comply over an extended period of time.

Empire Enters. I.J.J.A., Inc. v Daimler Buses of N. Am., Inc., NY Slip Op 03570 (2d Dep't May 8, 2019)

Here is the decision.

Summary judgment motions.

In granting the defendant-owner's motion, the court properly considered the homeowners' exemption to liability, even though the defendant-owner did not plead it as an affirmative defense. The plaintiff was not surprised by the defense, and fully opposed the motion.

 Urquiza v. Park & 76th St., Inc., NY Slip Op 03477 (1st Dep't May 14, 2019)

Here is the decision.

Entry of a default judgment.

The Appellate Division affirmed the Supreme Court's denial of the plaintiff's motion for leave to enter a default judgment, because the plaintiff failed to submit proof of service of the summons and complaint.  While the plaintiff's attorney submitted an affirmation stating that an affidavit of service of the summons and complaint had previously been e-filed, the affirmation failed to give the docket numbers on the e-filing system corresponding to the previously e-filed affidavit of service, as required by CPLR 2214(c). The plaintiff thus failed to establish its entitlement to a default judgment pursuant to CPLR 3215(f).

Eastern Funding LLC v. San Jose 63 Corp., NY Slip Op 03569 (2d Dep't May 8, 2019)

Here is the decision.

CPLR 503(a).

Venue is proper in the county in which a party resides at the time the action is commenced.

Hakanjin v. Lincare, Inc., NY Slip Op 03677 (1st Dep't May 9, 2019)

Here is the decision.

Restoring a case to the trial calendar.

In order to vacate a dismissal based upon being unprepared to proceed with trial, a plaintiff must demonstrate a reasonable excuse for the default and a potentially meritorious cause of action, pursuant to CPLR 5015[a][1] and 22 NYCRR 202.27[a]. Whether an excuse is reasonable is a determination within the sound discretion of the trial court. Here, the plaintiff had a reasonable excuse not to proceed to trial given his unrefuted assertion that he was not given timely notice of the scheduling and commencement of the trial by his former counsel, and that the plaintiff's concerns over notice had led to a breakdown of his relationship with his former counsel.

Crevecouer v. Mattam, NY Slip Op 03566 (2d Dep't May 8, 2019)

Here is the decision.

CPLR 5701.

No appeal lies from an order that denies leave to reargue, pursuant to 5701(a)(2)(viii).

Liberty on Warren LLC v. Dragon Estates Condo, NY Slip Op 03666 (1st Dep't May 9, 2019)

Here is the decision.

Timely service.

Once an action is dismissed, a plaintiff can no longer seek an extension of time to effect service. Instead of merely opposing the motion to dismiss for lack of proper service, the plaintiff should, at least in the alternative, cross-move for an extension of time to serve.

One West Bank, FSB v. Barbosa, NY Slip Op 03673 (1st Dep't May 9, 2019)

Here is the decision.

Discontinuances.

A notice of discontinuance occurs at the time the notice is served, not at the time it is filed, pursuant to CPLR 3217[a]. A discontinuance by stipulation occurs when the stipulation is filed with the court, pursuant to CPLR 3217[a][2]).

Bayview Loan Servicing, LLC v. Windsor, NY Slip Op 03560 (2d Dep't May 8, 2019)

Here is the decision.

CPLR 7503(c).

Respondent's service of the demand for arbitration for a second time, more than a year after the original service, did not restart the 20-day period for petitioner to seek a stay of arbitration, and the petition to stay is denied.

Metropolitan Prop. & Cas. Ins. Co. v. Anthony, NY Slip Op 03662 (1st Dep't May 9, 2019)

Here is the decision.

CPLR 3012(d).

A defendant seeking leave to file a late answer must provide a reasonable excuse for the delay and demonstrate a potentially meritorious defense to the action. The determination of what constitutes a reasonable excuse lies within the sound discretion of the Supreme Court. Here, the court finds that the defendants' appearance and participation in mandatory foreclosure settlement conferences and their participation in loan modification negotiations does not constitute a reasonable excuse for their failure to file a timely answer.

Bank of Am., N.A. v. Viener, NY Slip Op 03557 (2d Dep't May 8, 2019)

Here is the decision.

A voluntary payment defense.

The defense is inapplicable where the the record does not demonstrate that plaintiffs made the payments with full knowledge of the facts that would have enabled them to conclude that they were being overcharged by defendants due to a hidden margin fee.

BLT Steak LLC v. Liberty Power Corp., LLC, NY Slip Op 03540 (1st Dep't May 7, 2019)

Here is the decision.

CPLR 2309(c).

Courts do not rigidly apply the statutory requirement of certification for affidavits. If the oath was duly given, authentication of the oathgiver's authority may be secured later, and given effect nunc pro tunc.

Forman v. Whitney Ctr. for Permanent Cosmetics Corp., NY Slip Op 03451 (1st Dep't May 2, 2019)

Here is the decision.

An estate's membership interest in an LLC.

Where plaintiff is a successor in interest to the decedent's membership interest in an LLC, plaintiff is not a member. As successor-in-interest, the estate retains only a right to distributions. Defendants' grant of access to books and records and issuance of a K-1 do not constitute an admission that plaintiff is a member.

Pappas v. 38-40 LLC, NY Slip Op 03447 (1st Dep't May 2, 2019)

Here is the decision.

CPLR 3211(f).

A defendant's time to answer the complaint is extended by virtue of its serving a notice of motion, together with its co-defendants, seeking dismissal of the causes of action asserted against the co-defendants.

Levine v. Singal, NY Slip Op 03438 (1st Dep't May 2, 2019)

Here is the decision.

An insufficient summary judgment motion in a personal injury action.

Summary judgment is denied when the defendant has a duty to keep the parking lot free of snow and ice, but the plaintiff does not allege where the accident occurred.

Neppi v. Fairway Pelham LLC, NY Slip Op 03440 (1st Dep't May 2, 2019)

Here is the decision.

Amending a bill of particulars.

Pursuant to CPLR 3025(b), failure to submit the amendment with the moving papers is fatal to the motion.

Cedano v. New York Racing Assn., Inc., NY Slip Op 03022 (2d Dep't April 2, 2019)

Here is the decision.

Expert opinions.

The opinion may be based on photographs, but the facts on which the expert relies must be fairly inferable from the evidence.

Eskridge v. TJBM Entrs., Inc., NY Slip Op 03027 (2d Dep't April 24, 2019)

Here is the decision.

A contract claim dismissed with prejudice.

The dismissal must be with prejudice where the plaintiff does not allege bad faith or facts known, or even suspected, to support a finding of bad faith, and fails to demonstrate that it can cure that fatal deficiency.

Eaton Vance Mgt. v. Wilmington Sav. Fund Socy., FSB, NY Slip Op 03143 (1st Dep't April 25, 2019)

Here is the decision.

Firing a probationary City employee.

The employee may be terminated without a hearing for any reason or no reason at all, as long as the dismissal was not unlawful or in bad faith.

Matter of Hawkins v. Farina, NY Slip Op 03141 (1st Dep't April 25, 2019)

Here is the decision.