Prescriptive easements.

The right acquired by prescription is commensurate with the right enjoyed.

Barrett v. A&P Pac. Owner, LLC, NY Slip Op 00396 (2d Dep't January 22, 2020)

Here is the decision.

Collateral estoppel.

If a federal court declines to exercise jurisdiction over a plaintiff's state law claims, collateral estoppel may still bar those claims provided that the federal court decided issues identical to those raised by the state claims.

Afrat v. Kimber Mfg., Inc., NY Slip Op 00394 (2d Dep't January 22, 2020)

Here is the decision.

Pleading a cause of action for a constructive eviction.

The plaintiff must allege a landlord's wrongful act that deprives the tenant of the beneficial enjoyment or actual possession of the demised premises.

Leon v. Harlan, NY Slip Op 00496 (1st Dep't January 23, 2020)

Here is the decision.

Expert testimony in a medical malpractice case.

Testimony about which treatment option should have been recommended is not a proper basis for a claim of medical malpractice or lack of informed consent.  Testimony that one treatment option is preferable does not establish that, in following a different medically accepted treatment, a defendant-physician deviated from the standard of care.

Lampkowski v. Parra, NY Slip Op 00508 (1st Dep't January 23, 2020)

Here is the decision.

Appellate practice.

An argument that is raised for the first time on appeal is not preserved for review.

Crimlis v. City of New York, NY Slip Op 00514 (1st Dep't January 23, 2020)

Here is the decision.

A denied motion for a default judgment.

The defendant's delay in answering the complaint was excusable and minimal, and it caused no prejudice to plaintiff.  Plaintiff moved for default just one day after defendant's time to appear had expired, and defendant timely responded, presenting a meritorious defense to the action. Moreover, the motion court's order is in keeping with the strong public policy favoring litigation of claims on the merits.

Berardelli v. Novo Law Firm P.C., NY Slip Op 00516 (1st Dep't January 23, 2020)

Here is the decision.

A dismissed claim for unjust enrichment.

The existence of an express contract governing the subject matter precludes plaintiffs claim.

Polaris Venture Partners VI L.P. v. AD-Venture Capital Partners L.P., NY Slip Op 00483 (1st Dep't January 23, 2020)

Here is the decision.

Recovering on an unconditional guaranty.

CPLR 3213 provides a means of obtaining an accelerated judgment where a defendant's liability is premised upon an instrument for the payment of money only, such as an unconditional guaranty.  In order to recover, a plaintiff must establish that payment on the underlying debt was due.

255 Butler, LLC v. Boymelgreen, NY Slip Op 00392 (2d Dep't January 22, 2020)

Here is the decision.

A motion to renew.

The motion will be denied where the movant does not explain the failure to offer the purportedly new evidence on the initial motion.

Boccara v. Beinart, NY Slip Op 00374 (1st Dep't January 21, 2020)

Here is the decision.

Appellate practice.

The defendant-mortgagor, who remains obligated on the note and a potential deficiency judgment, has standing to appeal from the order vacating the dismissal of this action, notwithstanding that he transferred his interest in the encumbered property before the action was commenced.

U.S. Bank Natl. Assn. v. Thompson, NY Slip Op 00251 (2d Dep't January 14, 2020)

Here is the decision.

Contractual waiver of a jury trial.

Where the primary claim is fraudulent inducement, the agreement's provision waiving the right to a jury trial does not apply.

Ambac Assur. Corp. v. Countrywide Home Loans Inc., NY Slip Op 00367 (1st Dep't January 16, 2020)

Here is the decision.

Waiver of an objection to jurisdiction.

The defendant waived any objection to jurisdiction by appearing by notice of pro hac vice admission, failing, twice, to file timely pre-answer motions to dismiss, and defending on the merits.

Chao Jiang v. Ping An Ins., NY Slip Op 00366 (1st Dep't January 16, 2020)

Here is the decision.

The doctrine of respondeat superior.

A hospital may be held vicariously liable for the negligence or malpractice of its employees acting within the scope of their employment. However, a hospital is not vicariously liable for the negligence or malpractice of a private attending physician who is not an employee.  There are exceptions to this general rule where a patient comes to the emergency room seeking treatment from the hospital and not from a particular physician of the patient's choosing, or a nonemployee physician otherwise acts as an agent of the hospital or the hospital exercised control over the physician. To establish its entitlement to summary judgment dismissing a claim of vicarious liability, the hospital must address and rebut any such allegations in the complaint and the bill of particulars. In the absence of such a showing, the hospital must establish either that the physician was not negligent, or that the physician's negligence was not a proximate cause of the plaintiff's injuries.

Mitchell v. Goncalves, NY Slip Op 00268 (2d Dep't January 15, 2020)

Here is the decision.

CPLR 510[1].

The court, on motion, may change the place of trial of an action. In order to prevail on the motion, a defendant must show that the plaintiff's choice of venue is improper, and that the defendant's choice is proper. Unless the defendant meets this burden, the plaintiff is not required to establish, in opposition, that the venue selected was proper.

Harvey v. Ogunfowora, NY Slip Op 002645 (2d Dep't January 15, 2020)

Here is the decision.

Liquidated damages.

A contractual provision fixing damages in the event of breach will be sustained if the amount liquidated bears a reasonable proportion to the probable loss and the amount of actual loss is incapable or difficult of precise estimation. If, however, the amount fixed is plainly or grossly disproportionate to the probable loss, the provision calls for a penalty and will not be enforced. The party challenging the damages provision has the burden to prove that the liquidated damages are an unenforceable penalty, but the party seeking to enforce the provision must necessarily have been damaged in order for the provision to apply.

Rubin v. Napoli Bern Ripka Shkolnik, LLP, NY Slip Op 00250 (1st Dep't January 14, 2020)

Here is the decision.

A claim for misappropriation of trade secrets.

Bank records and checks do constitute trade secrets, which are defined as any formula, pattern, device, or compilation of information which is used in one's business, and which gives one an opportunity to obtain an advantage over competitors who do not know or use it.

Landmark Ventures, Inc. v. Kreisberg & Maitland, LLP, NY Slip Op 00248 (1st Dep't January 14, 2020

Here is the decision.

CPLR 213[1].

The causes of action to impose a constructive trust and to recover damages for unjust enrichment are governed by a six-year statute of limitations that begins to run at the time of the wrongful act giving rise to a duty of restitution.

Saddharma Cakra Buddhist Assn., Inc. v. Sheng Chien Chen, NY Slip Op 00167 (2d Dep't January 8, 2020)

Here is the decision.

Contracts and tort liability.

Generally, a contractual obligation, without more, does not give rise to tort liability in favor of a third party. There are three exceptions to the rule: (1) where the contracting party, in failing to exercise reasonable care in the performance of its duties, launches a force or instrument of harm; (2) where the plaintiff detrimentally relies on the continued performance of the contracting party's duties; and (3) where the contracting party has entirely displaced the other party's duty to maintain the premises safely. On a motion for summary judgment, a contracting defendant is only required to negate the applicability of an exception that is expressly pleaded by the plaintiff or expressly set forth in the plaintiff's bill of particulars.

Ramsey v. Temco Serv. Indus., Inc., NY Slip Op 00166 (2d Dep't January 8, 2020)

Here is the decision.

CPLR Article 78.

Prohibition and mandamus are extraordinary remedies. Prohibition is available only where there is a clear legal right, and only in cases where judicial authority is at issue, and the court acts, or threatens to act, either without jurisdiction or in excess of its powers.  Mandamus will lie only to compel the performance of a ministerial act, and only where there is a clear legal right to the relief sought.

Matter of Taffet v. Cozzens, NY Slip Op 00149 (2d Dep't January 8, 2020)

Here is the decision.

CPLR 3212[f].

While a motion for summary judgment may be denied on the ground that discovery is not complete, vague allegations of discoverable material are insufficient.

Ull v. Royal Car Park LLC, NY Slip Op 00224 (1st Dep't January 9, 2020)

Here is the decision.

Summary judgment in a medical malpractice action.

The motion will be granted as to the defendant-resident who was acting under the supervision of the defendant-physician, and who did not trigger individual liability by exercising independent medical judgment or otherwise acting outside the realm of ordinary prudence.

Murphy v. Drosinos, NY Slip Op 00214 (1st Dep't January 9, 2020)

Here is the decision.

Appellate practice.

The Appellate Division may decline to consider an argument that is raised only in a reply brief.

Woodward v. Levine, NY Slip Op 00068 (1st Dep't January 7, 2020)

Here is the decision.

Workers' Compensation Law.

 The special employee doctrine cannot be used to deem the plaintiff an "employee" of defendant for purposes of the Workers' Compensation Law.

White v. Metropolitan Opera Assn., Inc., NY Slip Op 00076 (1st Dep't January 7, 2020)

Here is the decision.

Appellate practice.

The appeal from the judgment brings up for review the order that denied defendant's motion to reargue and renew, which the court, in effect, granted by addressing its merits.

JW 70th St. LLC v. Simon, NY Slip Op 00090 (1st Dep't January, 2020)

Here is the decision.

Personal jurisdiction.

 Pursuant to CPLR 320(b), a defendant's appearance is equivalent to personal service of the summons, unless the defendant objects by motion or in the answer.  An attorney's appearance constitutes an appearance by the party for purposes of conferring jurisdiction.

Residential Credit Solutions, Inc. v. Guzman, NY Slip Op 09313 (2d Dep't December 24, 2019)

Here is the decision.

A motion to compel discovery.

Where the plaintiff's job performance is not at issue, the demand for production of her entire employment file for three-years prior to the accident is overly broad and neither material nor necessary to her claim of a traumatic brain injury. The disclosure of records regarding her two knee replacements is appropriate, however, as the records are sufficiently related to her claim that, as a result of the accident, she had impaired instability and balance.

Wilson v. Simpson W. Realty, LLC, NY Slip Op 00053 (1st Dep't January 2, 2020)

Here is the decision.

CPLR 2221[e][2], [3].

The motion to renew is denied because it is not based on new facts, and the movant does not offer a reasonable justification for the failure to present those facts on the previous motion. The claimed ignorance of a confidentiality order entered in a related case raising identical issues does not constitute reasonable justification.

Arena v. Shaw, NY Slip Op 00050 (1st Dep't January 2, 2020)

Here is the decision.

Business Corporation Law § 306[b][1].

Service of process is complete when plaintiff serves the Secretary of State, irrespective of whether the process subsequently reaches the corporate defendant.

Fisher v. Lewis Constr. NYC Inc., NY Slip Op 00041 (1st Dep't January 2, 2020)

Here is the decision.

The defense of lack of personal jurisdiction.

Defendant waived the defense by failing to raise it until after he had filed a notice of appearance, attended numerous court conferences, consented to a damages inquest, and cross-examined a witness at the inquest, following the grant of plaintiffs' motion for a default judgment.

Good Gateway, LLC v. Thakkar, NY Slip Op 09369 (1st Dep't December 26, 2019)

Here is the decision.

Uniform Rules for Trial Courts § 202.21[e].

Pursuant to the rule, "[w]ithin 20 days after service of a note of issue and certificate of readiness, any party to the action or special proceeding may move to vacate the note of issue, upon affidavit showing in what respects the case is not ready for trial, and the court may vacate the note of issue if it appears that a material fact in the certificate of readiness is incorrect." A statement in a certificate of readiness to the effect that all pretrial discovery has been completed is a material fact, and where that statement is incorrect, the note of issue should be vacated. On a timely motion to vacate, the movant
 is required only to demonstrate why the case is not ready for trial, and is not required to establish that additional discovery is necessary. However, where the Supreme Court has directed the completion of discovery by a certain date or where the party seeking vacatur has failed to timely comply with court orders and discovery demands, denial of a motion to vacate is proper.

Cioffi v. S.M. Foods, Inc., NY Slip Op 09250 (2d Dep't December 24, 2019)

Here is the decision.