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)

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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.