CPLR 3126.

A court may strike a pleading, or any part thereof, as a sanction against a party who refuses to obey an order for disclosure or willfully fails to disclose information which the court finds should have been disclosed.  The nature and degree of the sanction to be imposed on a 3126 motion is a matter of the court's discretion with the court, but the remedy of dismissal is only warranted where there has been a clear showing that the failure to comply with discovery demands is willful and contumacious. Willful and contumacious conduct may be inferred from a party's repeated failure to comply with court-ordered discovery, coupled with inadequate explanations for the failures, or a failure to comply with court-ordered discovery over an extended period of time.

Bouri v. Jackson, NY Slip Op 08552 (2d Dep't November 27, 2019)

Here is the decision.

Expert opinions.

The plaintiff's expert's opinion is admissible in support of opposition to the summary judgment motion in spite of the defendants' claim of the expert's lack of experience. Their claim goes to the weight given to the opinion, not its admissibility.

Pira v. Carasca, NY Slip Op 08523 (1st Dep't November 26, 2019)

Here is the decision.

Court holiday.

CPLR 327[a].

Even though some evidence and some witnesses are in New York, the court determined that New York is an inconvenient forum for this action in which the plaintiff alleges fraud and improper ouster from her position in a Bahamian company. All the allegedly tortious acts took place in the Bahamas, plaintiff's injury occurred in the Bahamas, and the company has it principal office in the Bahamas. In addition, Bahamian law will govern at least some of the claims.

Fernie v. Wincrest Capital, Ltd., NY Slip Op 08488 (1st Dep't November 21, 2019)

Here is the decision.

A motion to amend the bill of particulars.

The motion is denied as neither the original nor the amended notice of claim contained the proposed allegation, and the limitation period to assert it against defendant had passed.

Ebron v.. New York City Hous. Auth., NY Slip Op 08485 (1st Dep't November 21, 2019)

Here is the decision.

Statute of limitations as an affirmative defense.

The court may bar the assertion of the defense where the defendant's own wrongdoing resulted in the delay between the accrual of the cause of action and the institution of the legal proceeding.

Matter of New York City Asbestos Litig., NY Slip Op 08482 (1st Dep't November 21, 2019)

Here is the decision.

A motion to vacate or modify a preliminary injunction.

The motion is addressed to the sound discretion of the motion court and may be granted on a showing of compelling or changed circumstances that render continuation of the injunction inequitable.

456 Johnson, LLC v. Maki Realty Corp., NY Slip Op 08374 (2d Dep't November 20, 2019)

Here is the decision.

CPLR 5015[a][2], [3].

The motion for vacatur on the ground of newly discovered evidence is properly denied where the evidence on which the movant relies could have been timely submitted in opposition to plaintiff's motion for summary judgment.

Deutsche Bank Natl. Trust Co. v. Williams, NY Slip Op 08372 (1st Dep't November 19, 2019)

Here is the decision.

CPLR 3211(a)(7).

Where evidentiary material is submitted and considered on the motion to dismiss the complaint and the motion is not converted into one for summary judgment, the question is whether the plaintiff has a cause of action, not whether the plaintiff has stated one. Unless it is shown that a material fact as claimed by the plaintiff is not a fact at all, and unless it can be said that there is no significant dispute regarding it, the motion should be denied.

Williston v. Jack Resnick & Sons, Inc., NY Slip Op 08247 (2d Dep't November 13, 2019)

Here is the decision.

Claims agains the Port Authority.

The Port Authority, albeit bistate, is subject to New York's laws involving health and safety, insofar as its activities may externally affect the public. Specifically, courts have repeatedly held that the Port Authority is subject to New York Labor Law.

Wortham v. Port Auth. of N.Y. & N.J., NY Slip Op 08278 (1st Dep't November 14, 2019)

Here is the decision.

CPLR 3116[a].

A movant's submission of its own deposition testimony is deemed to be an adoption of the testimony as accurate, and, therefore, admissible.

Singh v. New York City Hous. Auth., NY Slip Op 08272 (1st Dep't November 14, 2019)

Here is the decision.

An alleged ethical violation.

A violation of the Rules of Professional Conduct, in itself, does not give rise to a private cause of action against an attorney or a law firm.

Doscher v. Meyer, NY Slip Op 08171 (2d Dep't November 13, 2019)

Here is the decision.

CPLR 4518.

An affidavit which states that the attached documents were kept in the ordinary course of plaintiff's business and explains that they were necessarily kept in order to track the business's charges and credits is sufficient to support the admissibility of the documents as business records.

Marina Towers Assoc., L.P. v. Yu, NY Slip Op 08267 (1st Dep't November 14, 2019)

Here is the decision.

CPLR 3025[b].

On a motion to dismiss, the motion court may not sua sponte grant plaintiff leave to file a second amended complaint in the absence of a cross motion and an accompanying proposed pleading.

Sutton Animal Hosp. PLLC v. D&D Dev., Inc., NY Slip Op 08263 (1st Dep't November 14, 2019)

Here is the decision.

The doctrine of primary assumption of risk.

If the risks of a sporting activity are known by or perfectly obvious to a voluntary participant, he has consented to them and the defendant has discharged its duty of care by making the conditions as safe as they appear to be.  Inherent risks are those which are known, apparent, natural, or reasonably foreseeable consequences of participation in the sport. Participants are not deemed to have assumed the risks of reckless or intentional conduct, or concealed or unreasonably increased risks.

Calderone v. College, NY Slip Op 08160 (2d Dep't November 13, 2019)

Here is the decision.

CPLR 3211(a)(7).

Speculative and inherently incredible allegations of widespread surveillance, conspiratorial meetings, and eavesdropping involving unidentified persons are insufficient to state a cause of action for employment discrimination, retaliation, harassment, or intentional or negligent infliction of emotional distress.

Mira v. Harder, NY Slip Op 08131 (1st Dep't November 12, 2019)

Here is the decision.

A landlord's liability for a dog bite.

To hold a landlord liable, the plaintiff must establish the landlord's knowledge of the dog's presence and its vicious propensities. Knowledge of the dog's vicious propensities may be established by proof of prior similar acts of which the defendant had notice.

Almodovar v. New York City Hous. Auth., NY Slip Op 08129 (1st Dep't November 12, 2019)

Here is the decision.

A defense based on the Workers' Compensation Law.

The defense afforded to employers by the statute's exclusivity provisions extends to suits brought against an entity that is found to be the alter ego of the corporation that employs the plaintiff.

Gerardi v. I.J. Litwak Realty Ltd. Partnership, NY Slip Op 07947 (2d Dep't November 6, 2019)

Here is the decision.

Damages on a contract claim.

The award of damages should put the plaintiff in the same position as he would have been in if the contract had not been breached.

Rubin v. Baumann, NY Slip Op 08011 (1st Dep't November 7, 2019)

Here is the decision.

Court holiday.

CPLR 3212(g).

An innocent passenger's right to summary judgment on the issue of his fault in the happening of an accident is not restricted by questions of comparative negligence as between two defendant drivers.

Romain v. City of New York, NY Slip Op 07885 (2d Dep't November 7, 2019)

Here is the decision.

Real Property Law § 339-aa.

The statute provides for the appointment of a receiver in a lien foreclosure action to collect the reasonable rent for the use and occupancy of a unit by the defaulting unit owner.

Capital One, N.A. v. Banfill, NY Slip Op 08004 (1st Dep't November 7, 2019)

Here is the decision.

Appellate practice.

An appellant need not make a post-verdict motion for a new trial in order to preserve the contention that a jury verdict was contrary to the weight of the evidence.

Evans v. New York City Tr. Auth., NY Slip Op 07872 (2d Dep't November 6, 2019)

Here is the decision.

CPLR 5015(a).

An expert's affidavit, created after the order awarding summary judgment on the plaintiff's default, does not constitute "newly discovered evidence" sufficient to warrant vacatur of the order.

Luna v. Ponce Funeral Homes, Inc., NY Slip Op 07774 (2d Dep't October 30, 2019)

Here is the decision.

CPLR 602(a).

Cases may be joined for discovery and trial where there are common questions of law and fact, unless the party opposing the motion demonstrates that a joint trial will prejudice a substantial right. The Appellate Division will accord deference to the motion court's exercise of its discretion.

Lema v. 1148 Corp., NY Slip Op 07866 (1st Dep't October 31, 2019)

Here is the decision.

Court holiday.

Appellate practice.

The right of direct appeal of an order terminates with the entry of the order and judgment.

M & T Bank v. Biordi, NY Slip Op 07775 (2d Dep't October 30, 2019)

Here is the decision.

Family Court.

Family Court is a court of limited subject matter jurisdiction, and cannot exercise powers beyond those granted to it by statute.

Matter of Hamrahi v. Brock, NY Slip Op 07781 (2d Dep't October 30 2019)

Here is the decision.

Leave to renew.

The movant must raise new facts that would have changed the outcome of the prior motions, and provide a reasonable excuse for failing to present those facts at the proper time, pursuant to CPLR 2221[e]. Renewal is not a second chance for parties who have failed to exercise due diligence in making their original factual presentation, and  it is granted sparingly.

Wade v. Giacobbe, NY Slip Op 07852 (1st Dep't October 31,2019)

Here is the decision.

Dismissal of a conspiracy claim.

In the absence of a viable tort claim, there can be no conspiracy claim.

Sabo v. Candero, NY Slip Op 07720 (1st Dep't October 29, 2019)

Here is the decision.