CPLR 3211[f].

The plaintiff failed to establish that the defendants were in default, as the plaintiff did not assert that he had served the order, with notice of entry, denying the defendants' motion to dismiss. Absent service of the order with notice of entry, the time within which the defendants were required to answer the complaint did not begin to run.

Citibank, N.A. v. Brooks, NY Slip Op 01142 (2d Dep't February 19, 2020)

Here is the decision.

CPLR 3211[c].

The Supreme Court may convert a defendant's motion to dismiss into a motion for summary judgment after providing the parties with notice of its intent to treat the motion as one for summary judgment and the opportunity to make supplemental submissions.

Gottlieb v. Colonel, NY Slip Op 01149 (2d Dep't February 19, 2020)

Here is the decision.

Special Referees.

It is well settled that the Special Referee's report will be confirmed when the findings contained therein are supported by the record, the issues are clearly defined, and matters of credibility have been resolved.

Busche v. Grover, NY Slip Op 01255 (1st Dep't February 20, 2020)

Here is the decision.

A claim of employment discrimination.

A plaintiff can establish a prima facie case of discrimination by showing that: (1) he is a member of a protected class; (2) he was qualified to hold the position; (3) he was terminated from employment; and (4) the discharge occurred under circumstances giving rise to an inference of discrimination. In moving for summary judgment, a defendant need only establish, prima facie, the absence of any of these elements. Regarding the fourth element, the defendant can demonstrate that the termination did not occur under circumstances giving rise to an inference of discrimination by providing a legitimate, nondiscriminatory reason for the termination, and demonstrating the absence of a material issue of fact as to whether its reason for termination was merely pretextual.

Averbeck v. Culinary Inst. of Am., NY Slip Op 01139 (2d Dep't February 19, 2020)

Here is the decision.

A motion to dismiss for failure to state a cause of action.

When assessing a CPLR 3211(a)(7) motion to dismiss, the pleading is afforded a liberal construction, the facts as alleged in the complaint are accepted as true, the plaintiff is accorded the benefit of every possible favorable inference, and the court determines only whether the facts as alleged fit within any cognizable legal theory. The court may freely consider affidavits submitted by the plaintiff to remedy any defects in the complaint, and the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one.

Grassi & Co., CPAS, P.C. v. Honka, NY Slip Op 01262 (1st Dep't February 20, 2020)

Here is the decision.

A motion to compel.

The motion court did not improvidently exercise its discretion in denying defendants' motion to compel plaintiff to produce authorizations for his primary care providers, various specific medical providers, and his pharmacy records on the ground that plaintiff's allegations placed his entire medical condition in issue. Defendants failed to adduce any evidence showing that plaintiff sought treatment from his primary care physician or the named providers for the body parts that plaintiff alleges were injured in the accident at issue. Defendants also failed to adduce any evidence showing that plaintiff received prescriptions to treat those body parts. Although defendants claim they are entitled to medical records relating to the aggravation of injuries sustained in a prior motor vehicle accident, they did not tailor their demands accordingly.

Lafata v. Verizon Communications Inc., NY Slip Op 01272 (1st Dep't February 20, 2020)

Here is the decision.

The judicial proceedings privilege.

The allegedly defamatory statements about plaintiff made by defendant in affidavits in support of her motion for summary judgment in lieu of complaint are not "obviously impertinent" to the judicial proceedings in which they were made, and are absolutely protected by the privilege.

Peck v. Peck, NY Slip Op 01254 (1st Dep't February 20, 2020)

Here is the decision.

The doctrine of res ipsa.

An injured plaintiff seeking to apply res ipsa loquitur must establish, among other things, that the accident was caused by an instrumentality within the defendant's exclusive control.

Bunn v. City of New York, NY Slip Op 01247 (1st Dep't February 20, 2020)

Here is the decision.

Court of Claims.

The Court of Claims is a court of limited jurisdiction determined by the Constitution and statute. Its jurisdiction is generally limited to money damage awards against the State. Whether the essential nature of the claim is to recover money, or whether the monetary relief is incidental to the primary claim, is dependent upon the facts and issues presented in a particular case.

Aliksanyan v. State of New York, NY Slip Op 01137 (2d Dep't February 19, 2020)

Here is the decision.

CPLR 3213.

An absolute and unconditional guarantee of payment qualifies as an instrument for the payment of money only under CPLR 3213.

Punch Fashion, LLC v. Merchant Factors Corp., NY Slip Op 01121(1st Dep't February 18, 2020)

Here is the decision.

A motion to renew.

The court providently exercised its discretion in granting defendants' motion to renew their summary judgment motion, in order to correct a procedural error by the court, which had overlooked a prior order by another justice precluding plaintiff from submitting opposition papers. Contrary to plaintiff's contention, defendants had a right to enforce the preclusion order, which had been served upon her with notice of entry.

Ortiz v. Mar-Can Transp. Co., Inc., NY Slip Op 01036 (1st Dep't February 13, 2020)

Here is the decision.

Extending time to file a confession of judgment.

CPLR 2004 provides that a court "may extend the time fixed by any statute . . . for doing any act, . . . upon good cause shown," "[e]xcept where otherwise expressly prescribed by law." CPLR 3218 does not expressly prescribe that the time to file a defendant's affidavit confessing judgment may not be extended. So, upon finding that good cause was shown, the motion court properly granted plaintiff's motion for an extension of time to file defendants' confession of judgment.

Swanson v .Zink Global Media, LLC, NY Slip Op 01005 (1st Dep't February 13, 2020)

Here is the decision.

Court holiday.

CPLR 317.

On a motion to vacate a default judgment pursuant to CPLR 317, the defendant is not required to demonstrate a reasonable excuse for the default.

Wilson v. Kore Method on Gansevoort LLC, NY Slip Op 01003 (1st Dep't February 13, 2020)

Here is the decision.

Municipaity liability.

Generally, where a municipality has enacted a prior written notice statute, it is not liabie for injuries caused by an improperly maintained street or sidewalk unless it has received written notice of the defect. However, the courts have recognized an exception to the prior written notice requirement in circumstances where the municipality affirmatively created the defect through an act of negligence. This exception is limited to work performed by the municipality that immediately resulted in the existence of a dangerous condition.

Weinstein v. County of Nassau, NY Slip Op 00890 (2d Dep't February 5, 2020)

Here is the decision.

Personal jurisdction.

Supreme Court has personal jurisdiction of defendants based on allegations that defendants transacted business in New York by purporting to purchase a majority interest in a painting from a New York art gallery, which retained a minority interest in the painting, and marketing the painting for sale in New York under a consignment agreement with Christie's New York, using a New York address.

Silver v. Alon Zakaim Fine Art Ltd., NY Slip Op 00978 (1st Dep't February 11, 2020)

Here is the decision.

CPLR 213[2].

The statute of limitations for breach of a promissory note payable in installments is six years. A default on a single installment payment does not trigger the running of the statute on the entire debt. Instead, separate causes of action accrued as installments of the loan indebtedness are due and payable. Installment payments that have accrued more than six years prior to commencement of the action are time-barred.

Cannell v. Grail Partners, LLC, NY Slip Op 00973 (1st Dep't February 11, 2020)

Here is the decision.

Court holiday.

CPLR 327(a).

Pursuant to the doctrine of forum non conveniens, a court may dismiss an action when, although it has jurisdiction over the claim, the court determines that in the interest of substantial justice the action should be heard in another forum. The burden is on the defendant to show that considerations relevant to private or public interest militate against accepting or retaining the litigation. The court will consider factors such as the residency of the parties; potential inconvenience to proposed witnesses, especially nonparty witnesses;, the availability of an alternative forum; the situs of the actionable events; the location of the evidence; and the burden that retaining the case would have on New York courts.

Albright v. Combe Inc., NY Slip Op 00837 (2d Dep't February 5, 2020)

Here is the decision.

CPLR 3101[c].

An attorney's work product is absolutely privileged, and is not obtainable. The privilege extends only to documents prepared by counsel acting as such, and to materials uniquely the product of a lawyer's learning and professional skills, such as those reflecting the attorney's legal research, analysis, conclusions, legal theory, or strategy.

Venture v. Preferred Mut. Ins. Co., NY Slip Op 00834 (1st Dep't February 4, 2020)

Here is the decision.

CPLR 2104.

While the record reflects that the parties agreed to various settlement terms, the oral agreement has no binding effect because the agreement and its terms were not sufficiently documented, recorded, or memorialized.

Greenway Mews Realty, L.L.C. v. Liberty Ins. Underwriters, Inc., NY Slip Op 00824 (1st Dep't February 4, 2020)

Here is the decision.

CPLR 203[f].

Under the relation back doctrine, the addition of a new defendant requires the following: (1) both claims arise out of same conduct, transaction, or event; (2) the new party is united in interest with the original defendant, and, by reason of that relationship, can be charged with such notice of the institution of the action that he will not be prejudiced in defending on the merits; and (3) the new party knew or should have known that, but for an excusable mistake by plaintiff as to the identity of the proper parties, the action would have been brought against him as well.

Stanger v. Shoprite of Monroe, NY, NY Slip 00820 (1st Dep't February 4, 2020)

Here is the decision.

CPLR 3215.

On a motion for leave to enter a default judgment, the movant must submit evidence of service of the summons and complaint, evidence of the facts constituting the claim, and evidence of the defaulting party's failure to appear or answer the complaint.

Wilmington Sav. Fund Socy., FSB v. Chishty, NY Slip Op 00641 (2d Dep't January 29, 2020)

Here is the decision.

Mental Hygiene Law § 9.41.

The complaint fails to state a cause of action because plaintiff's own allegations establish that his arrest and detention for a mental health evaluation were privileged.

Abascal-Montalvo v. City of New York, NY Slip Op 00676 (1st Dep't January 30, 2020)

Here is the decision.

Claims of retaliation and discrimination.

Before any disciplinary actions were taken, the plaintiff had lodged formal complaints that her superiors made discriminatory and disparaging comments about her race and gender. The allegedly pervasive racist and sexist comments and conduct preclude summary dismissal of the claims as insubstantial.

Nelson v. New York City Tr. Auth., NY Slip Op 00671 (1st Dep't January 30, 2020)

Here is the decision.

A failed motion to vacate a default.

Defendant's claim that he was unfamiliar with the legal system and did not understand that he needed an attorney to represent him is not a reasonable excuse for failing to timely appear and oppose plaintiffs' motion for summary judgment in lieu of complaint. Absent a reasonable excuse for the default, the court need not consider whether there is a potentially meritorious defense to the action.

Besler v. Uzieri, NY Slip Op 00687 (1st Dep't January 30, 2020)

Here is the decision.

22 NYCRR 9.1.

The motion court did not improvidently exercise its discretion in denying defendants' summary judgment motion on the ground that their affirmation in support far exceeded the court's page limitation rules.

Hornsby v. Cathedral Parkway Apts. Corp., NY Slip Op 00526 (1st Dep't January 28, 2020)

Here is the decision.

A summary judgment motion.

The absence of an affidavit from a person having knowledge of the facts does not require denial of the motion, as it is supported by an attorney's affirmation to introduce undisputed documentary evidence, including the parties' contract and the addendum thereto.

Astoria Generating Co., LP v. Riley Power, Inc., NY Slip Op 00560 (2d Dep't January 29, 2020)

Here is the decision.

Appellate practice.

An  interim decision is not an appealable paper, which deprives the Appellate Division of jurisdiction and requires dismissal of the appeal, albeit without prejudice.  There are instances where the Appellate Division  has deemed a paper denominated as a "decision" to be appealable because it contained all the hallmarks of an order. Here, however, the Supreme Court itself noted that it issued the interim decision in the absence of a motion for relief, and the decision did not result in the issue of any order.

Spectrum News NY1 v. New York City Police Dept., NY Slip Op 00521 (1st Dep't January 28, 2020)

Here is the decision.