A cause of action under General Business Law § 349.

The claim was dismissed, as the dispute concerns a pawnbroker transaction that was unique to the parties and involved one-of-a-kind collateral, rather than conduct that could affect consumers at large or have an impact on consumer transactions involving the same type of item.

Koblence v. Modern Pawn Brokers, Inc., NY Slip Op 02376 (1st Dep't April 23, 2020)

Here is the decision.

A motion to vacate an arbitration award.

Vacatur on the ground of manifest disregard requires a finding that the arbitrators refused to apply or altogether ignored a governing legal principle of which they knew, and that the law so ignored was well-defined, explicit, and clearly applicable to the case.

Matter of Credit Suisse Sec. (USA) LLC v. Finn, NY Slip Op 02371 (1st Dep't April 23, 2020)

Here is the decision.

A municipality's liability.

A party seeking to impose liability on a municipality acting in a governmental capacity must establish the existence of a special duty to plaintiff, which is more than the duty owed to the public generally.

Musano v. City of New York, NY Slip Op 02368 (1st Dep't April 23, 2020)

Here is the decision.

Damages for emotional distress.

A plaintiff can recover damages for emotional distress arising out of the intentional destruction of property.

Barrish v. Chiesa, NY Slip Op 02375 (1st Dep't April 23, 2020)

Here is the decision.

Employment discrimination claims.

There is a lenient notice pleading standard for employment discrimination cases. Here, the complaint states a cause of action for retaliation, as it alleges that plaintiff filed a discrimination complaint in December 2010; that defendant was notified of the complaint in November 2011; and that six months later plaintiff was charged with misconduct that allegedly had occurred more than a year earlier. However, the complaint fails to state causes of action for discrimination and hostile work environment, as it does not allege that defendants' actions occurred under circumstances that give rise to an inference of discrimination. It does not allege facts that would establish that similarly situated persons who were male or who were not black were treated more favorably than plaintiff was  treated. Instead, the complaint merely asserts the legal conclusion that defendants' adverse employment actions and plaintiff's termination were due to race and gender. The hostile work environment cause of action fails for the additional reason that the handful of potentially insensitive comments made by her superior over the course of a few years do not rise to a level that is actionable under either the State or the City Human Rights Law.

Thomas v. Mintz,  NY Slip Op 02367 (1st Dep't April 23, 2020)

Here is the decision.

Legal malpractice.

Plaintiffs allege that they sustained damages when they relied on defendants' negligent advice that they could disclaim coverage of their insured in an underlying malpractice action. In support of their motion to dismiss, defendants properly rely on documentary evidence, including the challenged disclaimer letter and the relevant policy, since their authenticity is undisputed and their contents are essentially undeniable. The disclaimer letter sets forth an analysis of plaintiffs' right to refuse coverage on two independent bases. Dismissal is required because plaintiffs fail to plead with specificity or to argue that one of the two bases for defendants' advice was incorrect.

Lloyd's Syndicate 2987 v. Furman Kornfeld & Brennan, LLP,  (1st Dep't April 23, 2020)

Here is the decision.

Denial of leave to renew.

The article 78 court providently exercised its discretion in declining to grant leave to renew, as petitioner raised no new facts that would have changed the outcome of the prior order and judgment, and did not provide a reasonable excuse for failing to present those facts with the petition, pursuant to  CPLR 2221[e].

Yu Chan Li v. New York City Landmarks Preserv. Commn., NY Slip Op 02281 (1st Dep't April 16, 2020)

Here is the decision.

Summary judgment in a construction-site fall.

 In the absence of evidence as to the last time the stairway was cleaned or inspected before the accident, defendants failed to demonstrate that they lacked constructive notice of the dangerous condition that allegedly caused plaintiff's injury.

Ohadi v. Magnetic Constr. Group Corp., NY Slip Op 02278 (1st Dep't April 16, 2020)

Here is the decision.

A motion to change venue.

A plaintiffs' subsequent move to another conunty does not invalidate the original designation based on plaintiffs' residence at the time of the commencement of the action, pursuant to CPLR 503(a).

Green v. Steinitz, NY Slip Op 02287 (April 16, 2020)

Here is the decision.

Arbitration provisions.

The provision is binding on a non-signatory only on equitable estoppel/direct benefit grounds. The question is for the court to decide, not the arbitrator.

Matter of KPMG, LLP v. Kirschner, NY Slip Op 02286 (1st Dep't April 16, 2020)

Here is the decision.

Motion practice.

The court will not consider the merits of a new theory of recovery that is not pleaded in the complaint and that is raised for the first time in opposition to a motion for summary judgment.

Price v. TuneCore, Inc., NY Slip Op 02284 (1st Dep't April 16, 2020)

Here is the decision.

Appellate practice.

The denial of a motion for leave to reargue is not appealable.

Matter of Yu Chan Li v. New York City Landmarks Preserv. Commn., NY Slip Op 02281 (1st Dep't April 16, 2020)

Here is the decision.

Workers' Compensation Law.

An employee's rights to Workers' Compensation benefits is the employee's exclusive remedy against his employer or coemployee for injuries sustained during his employment, pursuant to §§ 11, 29[6]. However, the statute does not prevent the employee from recovering for intentional torts, such as an assault
.
Donnelly v. Christian, NY Slip Op 02279 (1st Dep't April 16, 2020)

Here is the decision.

Jury verdict sheets.

"And/or" questions are disfavored, as they make it impossible to determine on which claim or claims the jury makes its determination. The use of the word "any" is similarly flawed.

Baptiste v. RLP-East, LLC, NY Slip Op 02238 (1st Dep't April 9, 2020)

Here is the decision.

A parent's right to a hearing.

The Family Court's refusal to permit the mother's counsel to admit into evidence documentary evidence on the mother's behalf, based on the mother's failure to appear at the hearing, violated the mother's right to due process. A parent has a right to be heard on matters concerning the child, and, absent the convincing showing of a waiver, the parent's rights are not to be disregarded. Here, there was no showing that the mother waived her right to be heard.

Matter of Amira W.H., NY Slip Op 02264 (2d Dep't April 9, 2020)

Here is the decision.

A non-custodial parent's visitation rights.

There is a rebuttable presumption that visitation by the noncustodial parent is in the child's best interest, and visitation should be denied only in exceptional circumstances

Matter of Byron M. v. Sasha A., NY Slip Op 02243 (1st Dep't April 9, 2020)

Here is the decision.

Guardians ad litem.

The court may providently appoint the guardian where a party is incapable of prosecuting or defending the case and assisting counsel, pursuant to CPLR 1201.

Olga P. v. Ionnis P., NY Slip Op 02239 (1st Dep't April 9, 2020)

Here is the decision.

Notes of issue.

A note of issue will be vacated when it is based on a certificate of readiness which contains an erroneous fact, such as that discovery has been completed. Here, the motion to vacate was granted since plaintiff, prior to filing the note and the certificate, had not provided authorizations allowing her out-of-state medical providers to release her medical records to defendants, as well as certain receipts for expenses incurred as a result of her injuries.

Ruiz v. Park Gramercy Owners Corp., NY Slip 02260 (1st Dep't April 9, 2020)

Here is the decision.

"Non est hic."

Appellate practice.

An order entered on default of the aggrieved party is not appealable, pursuant to CPLR 5511.

Arzu v. Kevin Dana Gratt Assoc., NY Slip Op 02242 (1st Dep't April 9, 2020)

Here is the decision.

Easter Vigil.

A non-party's breach of contract claim.

A non-party can asset the claim only if it is an intended, and not a mere incidental, beneficiary of the contract. Even then, the parties' intent to benefit the third-party must be apparent on the face of the contract.  In the absence of clear contractual language of such intent, New York courts have demonstrated a reluctance to interpret circumstances so as to construe such an intent.

CWCapital Invs. LLC v CWCapital Cobalt VR Ltd., NY Slip Op 02240 (1st Dep't April 9, 2020)

Here is the decision.

Stabat Mater.

A petition to compel discovery.

A motion pursuant to CPLR 3103(a) is a proper vehicle for challenging a petition to compel discovery brought pursuant to CPLR 3102(c). CPLR 3102(c) merely provides a device for obtaining pre-action discovery, and CPLR 3103(a) is a means for obtaining, at any time, an order "denying, limiting, conditioning or regulating the use of any disclosure device."

Delgrange v. RealReal, Inc., NY Slip Op 02170 (1st Dep't April 2, 2020)

Here is the decision.

"Quid est veritas?"

Civil conspiracy.

New York does not recognize an independent cause of action for civil conspiracy, which may only be asserted to connect actions of separate defendants to an underlying tort. In order to assert a civil conspiracy claim, the complaint must allege a cognizable cause of action, agreement among the conspirators, an overt act in furtherance of the agreement, intentional participation by the conspirators in furtherance of a plan or purpose, and damages. Bare, conclusory allegations of conspiracy are insufficient.

Kovkov v. Law Firm of Dayrel Sewell, PLLC, NY Slip Op 02166 (1st Dep't April 2, 2020)

Here is the decision.

Spy Wednesday.

The doctrine of judicial estoppel.

On a prior motion, the plaintiff argued successfully that the escrow agreement was not sufficient restraint and that a preliminary injunction was required. He is barred from arguing now that the escrow agreement was the equivalent of the injunction.

Genger v. TPR Inv. Assoc., Inc., NY Slip Op 02165 (1st Dep't April 2, 2020)

Here is the decision.

A defendant's summary judgment motion.

The defendant does not meet its burden on the motion by merely pointing to gaps in plaintiff's proof.

Nassar v. Macy's Inc., NY Slip Op 02160 (1st Dep't April 2, 2020)

Here is the decision.

Appellate practice.

The issues raised by the defendants concerning contractual indemnification and the third-party complaint are not properly before the Appellate Division, since they are unrelated to the issues raised by plaintiff, the only party that filed a notice of appeal from the order under review.

Armental v. 401 Park Ave. S. Assoc., LLC,  (02154 (1st Dep't April 2, 2020)

Here is the decision.

Motions to renew.

The Appellate Division affirmed the denial of the defendant's motion to renew its summary judgment motion, as it offered no new facts or a change in the law, pursuant to CPLR 2221[e][2]. Neither did the defendant provide a reasonable justification for its failure to present the facts on the original motion, pursuant to CPLR 2221[e][3].

Kolchins v. Evolution Mkts, Inc., NY Slip Op 02155 (1st Dep't April 2, 2020)

Here is the decision.

Surveillance videos.

The Appellate Division affirmed the denial of the defendant's motion for summary judgment dismissing the complaint in this action where the plaintiff, a nurse, alleges that she was injured when she was attacked by a patient at the healthcare facility where she worked.  The defendant provided  security for the facility pursuant to a contract. The Appellate Division noted that, while the motion court declined to credit a surveillance video offered by the defendant in support of its claim that the security guard arrived one minute after the plaintiff called for help, the court should not have considered the video at all for two reasons. First, as the motion court noted, it was offered with defendant's reply papers, and plaintiff had no opportunity to respond to it. Second, it was not authenticated, and thus did not constitute evidence in admissible form, as required on a motion for summary judgment.

Kuti v. Sera Sec. Servs., NY Slip Op 02153 (1st Dep't April 2, 2020)

Here is the decision.

Appellate practice.

While no appeal lies from a judgment entered upon the default of an appealing party, pursuant to  CPLR 5511, an appeal from such a judgment brings up for review those matters which were contested before the Supreme Court.

Bank of America, N.A. v. Davis, NY Slip Op 02053 (2d Dep't March 25, 2020)

Here is the decision.

Motions to dismiss and summary judgment.

The defendant moved pursuant to CPLR 3211(a)(7) to dismiss the complaint for failure to state a cause of action, or, in the alternative, for summary judgment dismissing the complaint. The Supreme Court treated the motion as one for summary judgment, and granted the motion. The Appellate Division affirmed the determination to treat the defendants motion solely as one for summary judgment, as the parties' submissions demonstrated that they were laying bare their proof and deliberately charting a summary judgment course.

Ain v. Allstate Ins. Co., NY Slip Op 02042 (2d Dep't March 25, 2020)

Here is the decision.

Standing in a mortgage foreclosure action.

A plaintiff's filing of a copy of the note as an attachment to the complaint is prima facie evidence of the plaintiff's standing. Here, a copy of the note was attached to the certificate of merit, which was filed together with the summons and complaint. This establishes, prima facie, the plaintiff's standing, by demonstrating that it had physical possession of the note when it commenced the action.

Deutsche Bank Nat'l Trust Co., v. Bowens, NY Slip Op 02040 (2d Dep't March 26, 2020)

Here is the decision.