Answering papers on a summary judgment motion.

The non-movant is not required to address an issue that is not raised in the moving papers.

,Massillon v. Regalado, NY Slip Op 07717 (1st Dep't October 29, 2019)

Here is the decision.

CPLR 306-b.

If a plaintiff does not serve the summons and complaint within 120 days of commencement of the action, "the court, upon motion, shall dismiss the action without prejudice as to that defendant, or upon good cause shown or in the interest of justice, extend the time for service."  Good cause and interest of justice are two separate and independent standards. In order to establish good cause, a plaintiff must demonstrate reasonable diligence in attempting service. The interest of justice is a broader standard meant to accommodate service that is late due to mistake, confusion or oversight, as long as there is no prejudice to the defendant. The interest of justice standard requires a careful judicial analysis of the factual setting of the case and a balancing of the parties' competing interests. Under the interest of justice standard, the court may consider diligence, or lack thereof, along with any other relevant factor in making its determination, including expiration of the Statute of Limitations, the meritorious nature of the cause of action, the length of delay in service, the promptness of the plaintiff's request for an extension of time, and prejudice to the defendant.

Nationstar Mtge., LLC v. Wilson, NY Slip Op 07595 (2d Dep't October 23, 2019)

Here is the decision.

A claim of unjust enrichment.

To prevail on the cause of action, the plaintiff must establish that it conferred a benefit on the defendant, and that the defendant will retain that benefit without adequately compensating the plaintiff. In determining the viability of the claim, the essential inquiry is whether it is against equity and good conscience to permit the defendant to retain what the plaintiff seeks to recover.

Beaman v. Awaye Realty Mgt., LLC, NY Slip Op 07562 (2d Dep't October 23, 2019)

Here is the decision.

General Obligations Law § 5-1401.

Where the parties' agreement falls within the ambit of the statute, New York will enforce the choice-of-law clause, regardless of whether there is a connection between the transaction and New York.

ABB, Inc. v. Havtech, LLC, NY Slip Op 07693 (1st Dep't October 24, 2019)

Here is the decision.

Appellate practice.

Where the record reflects that respondent consented to the order, it is not appealable since he is not an aggrieved party within the meaning of CPLR 5511. Respondent's remedy, if any, is to move to vacate or resettle the order.

Matter of Jessica M. v. Julio G.R., NY Slip Op 07696 (1st Dep't October 24, 2019)

Here is the decision.

Traverse hearings.

Where there are conflicting affirmations, based on personal knowledge, on the issue of the proper service of the defendant's motion to strike the complaint. a traverse hearing is required.

US Bank NA v. Okeke, NY Slip Op 07687 (1st Dep't October 24, 2019)

Here is the decision.

Premises liability.

A tenant's common-law duty to maintain the premises in a reasonably safe condition is limited to those areas which it occupies and controls, or of which it makes a special use.

Arshinov v. Gr 10-40, LLC, NY Slip Op 07560 (2d Dep't October 23, 2019)

Here is the decision.

CPLR 4401.

Pursuant to the statute, a party may move for a directed verdict after the close of the opposing party's evidence. It is reversible error to grant a motion for a directed verdict prior to the close of the party's case against whom a directed verdict is sought, even if it is unlikely that the plaintiff will prevail. The denial of a fair trial claim is a stand-alone cause of action

Cromedy v. City of New York, NY Slip Op 07527 (1st Dep't October 22, 2019)

Here is the decision.

Dismissal on the ground of CPLR 301.

A corporate defendant's registration to do business in New York and the designation of the Secretary of State to accept service of process does not constitute the corporation's consent to submit to the general jurisdiction of New York for causes of action that are unrelated to the corporation's affiliations with New York.

Fekah v. Baker Hughes Inc., NY Slip Op 07500 (1st Dep't October 17, 2019)

Here is the decision.

A petition to vacate an arbitration award.

In order to vacate an award on the ground of manifest disregard of the law, the petitioner must show that the arbitration panel knew of a governing legal principle that was well defined, explicit, and clearly applicable, and refused to apply it or ignored it altogether. A mistake of law does not constitute manifest disregard, and is not ground for vacatur.

Matter of McKenna, Long & Aldridge, LLP v. Ironshore Specialty Ins. Co., NY Slip Op 07498 (1st Dep't October 17, 2019)

Here is the decision.

CPLR 3025(b).

A proposed amended complaint must clearly show the changes or additions between it and the previous complaint.

Cafe Lughnasa Inc. v. A&R Kalimian LLC, NY Slip Op 07496 (1st Dep't October 17, 2019)

Here is the decision.

22 NYCRR 202.27.

 A court may exercise its discretion to dismiss an action where the plaintiff fails to appear at any scheduled call of a calendar or at any conference.

Bank of N.Y. v. Harper, NY Slip Op 07378 (2d Dep't October 16, 2019)

Here is the decision.

CPLR 3212[f].

Where plaintiffs meet their burden of demonstrating that facts essential to justify opposition to a summary judgment motion may lie within defendants' exclusive knowledge or control, the motion will be denied as premature, with leave to renew upon the completion of discovery.

Lyons v. New York City Economic Dev. Corp., NY Slip Op 07483 (1st Dep't October 17, 2019)

Here is the decision.

Appellate Practice.

When a motion to renew an order will remove the grievance on which the appeal is based, the appeal should be abated.

Saud v. New York & Presbyt. Hosp., NY Slip Op 07375 (1st Dep't October 15, 2019)

Here is the decision.

Medical malpractice.

Supervised medical personnel who are not exercising their independent medical judgment are not liable for malpractice. However, they may be liable for failing to intervene if the supervising doctor's directions greatly deviate from normal medical practice.

Macancela v. Wykoff Hgts. Med. Ctr., NY Slip Op 07244 (2d Dep't October 9, 2019)

Here is the decision.

CPLR 2221.

Plaintiffs' motion, while denominated as one for leave to renew and reargue, is not based on new facts unavailable at the time of the original motion, and, therefore, actually is a motion for leave to reargue, the denial of which is not appealable.

Smith v. Pereira, NY Slip Op 07357 (1st Dep't October 10, 2019)

Here is the decision.

CPLR 3211(a)(4).

The statute permits the dismissal of a cause of action where "there is another action pending between the same parties for the same cause of action in a court of any state or the United States; the court need not dismiss upon this ground but may make such order as justice requires." The motion court may providently exercise its discretion by dismissing the action without prejudice.

Seagate Mini Mall, Inc. v. Khlebopros, NY Slip Op 07306 (2d Dep't October 9, 2019)

Here is the decision.

Court holiday.

Statute of limitations.

In determining which limitations period is applicable to a given cause of action, the court must look to the substance of the allegations rather than to the parties' characterization of those allegations.

Potter v. Zucker Hillside Hosp., NY Slip Op 07304 (2d Dep't October 9, 2019)

Here is the decision.

CPLR 3211 and 3212.

The motion court treated defendant's motion to dismiss, pursuant to 3211(a)(2) and (7), as a motion for summary judgment, pursuant to 3211[c]), since both sides made it unequivocally clear that they were laying bare their proof and deliberately charting a summary judgment course.  The motion was untimely, since it was made after the 120-day deadline imposed by 3212(a) and was unaccompanied by an explanation for the lateness.

Hernandez v. 2075-2081 Wallace Ave. Owners Corp., NY Slip Op 07328 (1st Dep't October 10, 2019)

Here is the decision.

Waiver of trial by jury.

When the complaint either joins legal and equitable causes of action arising out of the same alleged wrong or seeks both legal and equitable relief, the plaintiff waives his right to jury trial.

Errant Gene Therapeutics, LLC v. Sloan-Kettering Inst. for Cancer Research, NY Slip Op 07226 (1st Dep't October 8, 2019)

Here is the decision.

Summary judgment in a trip-and-fall action.

Dismissal will be denied whee the defendant fails to meet its initial burden of demonstrating that it did not create the defective condition. Here, in relying on the building superintendent's deposition testimony, the defendant pointed to gaps in the plaintiff's proof instead of carrying its own burden on the motion.

Harvey v. Henry 85 LLC, NY Slip Op 07210 (1st Dep't October 8, 2019)

Here is the decision.

Appellate Practice.

The appellant may not challenge the propriety of an order granting a motion that he did not oppose, as he is not aggrieved by the order.

First Am. Tit. Ins. Co. v. Chavannes, NY Slip Op 07053 (2d Dep't October 2, 2019)

Here is the decision.

A claim of slander per se.

In order to survive dismissal, a plaintiff corporation must sufficiently state how the statements at issue harmed its reputation, business standing, or corporate integrity.

161 Ludlow Food, LLC v. L.E.S. Dwellers, Inc., NY Slip Op 07146 (1st Dep't October 3, 2019)

Here is the decision.

Charging liens.

An attorney of record who is discharged without cause has a charging lien pursuant to Judiciary Law § 475.  The lien is imposed on the cause of action, the proceeds of which are subject to lien, even where the recovery is from an action different from the one in which the services were rendered.

Dzhurinskiy v. Moore, NY Slip Op 07050 (2d Dep't October 2, 2019)

Here is the decision.

A claim for quantum merit/unjust enrichment.

The cause of action will be dismissed where it constitutes an indistinguishable dispute regarding the same operative facts as the claim for breach of contract.

Sears Holdings Mgt. Corp. v. Rockaway Realty Assoc., LP, NY Slip Op 07174 (1st Dep't October 3, 2019)

Here is the decision.

Stipulations.

Where the motion court so-orders the stipulation, its terms have the weight of a court order.

Gordon v. Schaeffer, NY Slip Op 07141 (1st Dep't October 3, 2019)

Here is the decision.

A dismissed claim of unjust enrichment.

There is no cause of action where the claim merely duplicates or replaces a conventional contract claim.

Markov v. Katt, NY Slip Op 07006 (1st Dep't October 1, 2019)

Here is the decision.

Appellate Practice.

Pursuant to CPLR 5511, the appeal will be dismissed where the appellant is not aggrieved by the final order.

Matter of Mahoney v. Martin, NY Slip Op 06969 (2d Dep't September 27, 2019)

Here is the decision.

CPLR 2016.

In this medical malpractice action, plaintiff's expert's affidavit, as originally submitted, was not notarized and, therefore, does not qualify as an affirmation. However, plaintiff corrected the defect by submitting a notarized version at oral argument.

Stewart v. Goldstein, NY Slip Op 06865 (1st Dep't September 26, 2019)

Here is the decision.

Amending a bill of particulars.

A plaintiff seeking leave to amend a bill of particulars by asserting a new injury must demonstrate a reason for the delay in asserting the injury and submit a medical affidavit showing a causal connection between the alleged injury and the original injuries sustained.

Cherry v. Longo, NY Slip Op 06741 (2d Dep't September 25, 2019)

Here is the decision.