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.