CPLR 3212(a).

 Unless the court has set a different date, a motion for summary judgment must be made "no later than one hundred twenty days after the filing of the note of issue, except with leave of court on good cause shown." In the absence of a showing of good cause, the court has no discretion to entertain even a meritorious, nonprejudicial motion for summary judgment.

Bricenio v. Perez, NY Slip Op 09249 (2d Dep't December 24, 2019)

Here is the decision.

A process server's affidavit.

The affidavit constitutes prima facie evidence of proper service, and gives rise to a presumption of proper service.  A conclusory denial of service is insufficient to rebut the presumption.  In order to warrant a hearing, the denial must be substantiated by specific, detailed facts that contradict the affidavit.

Bethpage Fed. Credit Union v. Grant, NY Slip Op 09246 (2d Dep't December 24, 2019)

Here is the decision.

Summary judgment in a medical malpractice action.

A plaintiff is only required to raise a triable issue of fact as to causation where the defendant makes a prima facie showing that the alleged departure from the standard of care was not a proximate cause of the plaintiff's injuries.

Barry v. Lee, NY Slip Op 09397 (1st Dep't December 26, 2019)

Here is the decision.

A corporate officer's liability.

Although a plaintiff fails to satisfy the requirements for piercing the corporate veil, liability may be imposed on a corporate officer who participates in the commission of a tort, even if the officer's participation is for the corporation's benefit.

Belle Light. LLC v. Artisan Constr. Partners LLC, NY Slip Op 09359 (1st Dep't December 26, 2019)

Here is the decision.

22 NYCRR 202.7(a)(2) .

On a discovery motion, the movant must submit an affirmation of good faith indicating that, prior to engaging in motion practice, efforts had been made to resolve issues.

Belle-Fleur v. Desriviere, NY Slip Op 09244 (2d Dep't December 24, 2019)

Here is the decision.

CPLR 3215(f).

An applicant for a default judgment must submit proof of service of the summons and complaint, proof of the facts constituting the claim, and proof of the defaulting defendant's failure to answer or appear. Where the complaint is not verified, the requisite proof must be set forth in an affidavit made by the party.

Deutsche Bank Natl. Trust Co. v. Silverman, NY Slip Op 08990 (2d Dep't December 18, 2019)

Here is the decision.

A deceased party.

The part of the order that severed the action against the party, who at that point was deceased, is vacated as void, as no legal representative has been appointed. An earlier order, issued while the party was alive, is not void. However, an appeal from that order will be dismissed, without prejudice, if an estate representative has not been appointed.

Bonnaig v. Walton, NY Slip Op 09103 (1st Dep't December 19, 2019)

Here is the decision.

Discovery.

Pursuant to Education Law § 6527(3), certain documents generated in connection with the "performance of a medical or a quality assurance review function," or which are "required by the Department of Health pursuant to Public Health Law § 2805-l," are not discoverable. The party seeking to invoke the privilege must demonstrate that the documents sought were prepared in accordance with the relevant statutes.  It is not enough merely to assert that the documents are privileged. In the absence of a showing as to why the privilege attaches, the documents are subject to disclosure.

DeLeon v. Nassau Health Care Corp., NY Slip Op 08989 (2d Dep't December 18, 2019)

Here is the decision.

A claim of spoliation.

New York does not recognize an independent tort for either first- or third-party negligent spoliation of evidence.

Rosa v. D&E Equities, Inc., NY Slip Op 09094 (1st Dep't December 19, 2019)

Here is the decision.

CPLR 2005.

A default may be excused on the ground of law office failure if the explanation for the default is detailed and credible.

210 East 60th Street, LLC v. Rahman, NY Slip Op 08983 (2d Dep't December 18, 2019)

Here is the decision.

Denial of a motion for summary judgment.

Plaintiff's omission of an affidavit in opposition to defendants' motion does not require that the facts in defendants' affidavit be deemed admitted, as defendants submitted plaintiff's affidavit and deposition testimony, which establish that there are issues of fact.

Munna v. Axman, NY Slip Op 08963 (1st Dep't December 17, 2019)

Here is the decision.

CPLR 214[6].

An action to recover damages arising from an attorney's malpractice must be commenced within three years of accrual. The claim accrues when the alleged malpractice is committed.

Marzario v. Snitow Kanfer Holzer & Millus, LLP, NY Slip Op 08953 (1st Dep't December 12 2019)

Here is the decision.

CPLR 3212[a].

The court may consider plaintiff's untimely motion, as it addresses the same basic issues as plaintiff's timely-filed motion.

Baez v. 1749 Grand Concourse LLC, NY Slip Op 08948 (1st Dep't December 12, 2019)

Here is the decision.

CPLR 2221(a).

A motion to reargue should be granted where the motion court engaged in a merits determination by considering the parties' deposition testimony.

Rodriguez v. Sharma, NY Slip Op 08937 (1st Dep't December 12, 2019)

Here is the decision.

A motion to dismiss on the ground of forum non conveniens.

The motion court will consider the residence of the parties, the location of evidence and witnesses, the burden on the New York courts, where the transaction giving rise to the cause of action took place, the applicability of foreign law, and the connection of the action with New York.

JTS Trading Ltd. v. Asesores, NY Slip Op 08935 (1st Dep't December 12, 2019)

Here is the decision.

Negligent infliction of emotional distress.

Extreme and outrageous conduct is an essential element of the cause of action.

Holmes v. City of New York, NY Slip Op 08922 (1st Dep't December 12, 2019)

Here is the decision.

CPLR 3025(b).

Leave to amend a pleading "shall be freely given," and the party seeking leave is not required to make a showing of merit in the proposed amendment.

Astro Air Corp. v. L.D. Wenger Constr. Co., NY Slip Op 08816 (2d Dep't December 11, 2019)

Here is the decision.

Appellate practice.

Where there is no specific argument regarding a cause of action, the claim is deemed abandoned.

Jemima O. v. Schwartzapfel, P.C., NY Slip Op 08793 (1st Dep't December 10, 2019)

Here is the decision.

CPLR 3025[b].

A party may amend a pleading at any time by leave of court. The application to amend is within the sound discretion of the court, and it should be granted  if the amendment is not palpably insufficient, does not prejudice or surprise the opposing party, and is not patently devoid of merit.

Flagstar Bank, FSB v. Davis, NY Slip Op 08655 (2d Dep't December 4, 2019)

Here is the decision.

CPLR 2221[e][3].

Defendant's motion to renew plaintiff's summary judgment motion was denied, as defendant failed to explain why, in opposing plaintiff's motion, it did not submit the documents that it concedes were in its possession.

Nieborak v. W54-7 LLC, NY Slip Op 08788 (1st Dep't December 5, 2019)

Here is the decision.

CPLR 5701(a)(2).

There is no appeal as of right from an order that does not decide a motion made on notice.

177 Richard St., LLC v. Weeks, NY Slip Op 08644 (2d Dep't December 4, 2019)

Here is the decision.

Unjust enrichment.

This is a quasi-contract claim that contemplates an obligation imposed by equity to prevent injustice, in the absence of an actual agreement between the parties. Where there is a written contract between plaintiff and defendant governing all aspects of the matter at issue, there can be no claim against a third-party non-signatory to the contract.

J.T. Magen & Co., Inc. v. Nissan N. Am., Inc., NY Slip Op 08784 (1st Dep't December 5, 2019)

Here is the decision.

Direct and derivative claims.

The complaint properly pleads direct, rather than derivative, claims because it seeks to redress injury to plaintiffs individually.

Soriano v. Osario, NY Slip Op 08783 (1st Dep't December 5, 2019)

Here is the decision.

CPLR 3211(a)(1).

Dismissal is granted only where the documentary evidence that forms the basis of the defense is such that it utterly refutes the plaintiff's factual allegations, and, as a matter of law, conclusively disposes of the plaintiff's claims. To qualify as documentary evidence, the evidence must be unambiguous and of undisputed authenticity.

Benjamin v. Yeroushalmi, NYSlip Op 08547 (2d Dep't December 4, 2019)

Here is the decision.

Reasonable excuse for a default.

Plaintif's submission of an affirmation by counsel and an affidavit by counsel's calendar clerk is sufficient to establish law office failure.

Pena v. Pinnacle Assoc. II NY LLC, NY Slip Op 08600 (1st Dep't December 3, 2019)

Here is the decision.

CPLR 3216(b)(3).

A plaintiff who is served with a 90-day demand must file a note of issue, or, before the default date, move either to vacate the demand or to extend the time to file. A non-compliant plaintiff must demonstrate a justifiable excuse for its failure to timely respond, as well as a potentially meritorious cause of action.

HSBC Bank USA, N.A. v. Williams, NY Slip Op 08554 (2d Dep't November 27, 2019)

Here is the decision.

CPLR 213-a.

For the purpose of retroactive application of the statutory imitations period, the action remains pending during the pendency of an appeal.

Zitnam v. Sutton LLC, NY Slip Op 08527 (1st Dep't November 26, 2019)

Here is the decision.

Summary judgment on liability in a negligence action.

The plaintiff must establish, prima facie, that the defendant breached a duty owed to the plaintiff and that the defendant's negligence was a proximate cause of the alleged injuries.  The plaintiff is not required to establish a lack of comparative negligence. However, the issue of the plaintiff's comparative negligence may be decided on a summary judgment motion where the plaintiff moves to dismiss the defendant's affirmative defense of comparative negligence.

Balladares v. City of New York, NY Slip Op 08549 (2d Dep't November 27, 2019)

Here is the decision.

A motion for a preliminary injunction enforcing restrictive covenants.

Where the contractual covenants arose from the sale of the defendant's business, the essential element of irreparable injury to the plaintiff is presumed.

UAH-Mayfair Mgt. Group LLC v. Clark, NY Slip Op 08536 (1st Dep't November 26, 2019)

Here is the decision.