Discovery of tax returns.

While compelling disclosure of tax returns is generally disfavored, the motion may be granted where, as here, the defendant demonstrates both that the specific information ordered disclosed is necessary to defend the action, and unavailable from other sources. Prior to granting the motion, the court inspected the tax returns in camera and deemed them relevant. Further, the redactions of those filings directed by the court's order ensures that discovery is narrowly tailored to the issues in controversy. Finally, the court's order does not constitute inappropriate judicial pruning, since the defendant's demand is not overbroad or burdensome, and it does not seek irrelevant material or conclusions. To the extent that plaintiffs are concerned about the use of the returns for purposes unrelated to the action, they may seek an appropriate protective order.

Currid v. Valea, NY Slip Op 03590 (1st Dep't June 25, 2020)

Here is the decision.

A claim for aiding and abetting a breach of fiduciary duty.

The claim against the corporate defendant is dismissed for failure to state a cause of action because the complaint does not allege that the corporate defendant took any distinct action independent of the underlying breaches of the two individual defendants.

Arena Riparian LLC v. CSDS Aircraft Sales & Leasing Co., NY Slip Op 03589 (1st Dep't June 25, 2020)

Here is the decision.

Discovery.

Defendant served a written document demand, and, eight days later, plaintiff served a writer objection  to production, but did not specify any ground. Plaintiff did not raise the ground of privilege until five months later, and never timely objected with particularity, pursuant to CPLR 3122[a][1]. Accordingly, plaintiff waived objection based on any ground other than privilege or palpable impropriety. The only ground which plaintiff advances is 8 USC § 1367,  which is not a privilege for purposes of CPLR 3101 or waiver under CPLR 3122. Plaintiff does not assert that the document demand was palpably improper. The Appellate Division reversed the denial of the motion to compel.

Khatskevich v. Victor, NY Slip Op 03478 (1st Dep't June 18, 2020)

Here is the decision.

Conditional orders.

When a defendant fails to comply with a self-executing, conditional order striking its answer if it does not produce a witness for deposition by a date certain, the order becomes absolute, pursuant to CPLR 3126[3]. Defendant's recourse is to move to vacate the conditional order, pursuant to CPLR 5015[a].

Humble Monkey, LLC v. Rice Sec., LLC, NY Slip Op 03470 (1st Dep't June 178, 2020)

Here is the decision.

A claim of replevin.

To plead the cause of action, a plaintiff must demonstrate that it owns specified property, or is lawfully entitled to possess it, and that the defendant has unlawfully withheld the property from the plaintiff.

Stewart Family Trust LLC v. Stewart, NY Slip Op 03465 (1st Dep't June 18, 2020)

Here is the decision.

A res ipsa jury charge.

The charge merely permits the jury to infer negligence from the circumstances of the occurrence. The doctrine of res ipsa does not require sole physical access to the instrumentality causing the injury.

Galue v. Independence 270 Madison LLC, NY Slip Op 03463 (1st Dep't June 18, 2020)

Here is the decision.

Expert testimony in a medical malpractice action.

To satisfy the Frye standard, the testimony must be based on a scientific principle or procedure which is sufficiently established to have gained general acceptance. A plaintiff fails to carry this burden if it does not present supporting material such as clinical data and peer reviewed medical literature. Here, the material presented by plaintiff's proposed experts discussed the presence of involuntary fasciculations in patients who experienced hyponatremia, but who also demonstrated indicia of brain damage. Plaintiff, however, did not have brain damage, and so the material did not support plaintiff's theory of liability.

Knafo v. Mount Sanai Hosp., NY Slip Op 03462 (1st Dep't June 18, 2020)

Here is the decisi

Appellate practice.

The general rule is that an evidentiary ruling made before trial is reviewable only in connection with an appeal from the judgment rendered after trial. There is an exception if the evidence is so central to the proponent's case that its exclusion is the functional equivalent of summary judgment. Here, without the proposed evidence purporting to establish a causal link between defendant's alleged departure from accepted practice and plaintiff's permanent condition, the malpractice claim fails. The order is appealable because it limits the scope of issues for trial.

Knafo v. Mount Sinai Hosp., NY Slip Op 03462 (1st Dep't June 18, 2020)

Here is the decision.

An untimely motion to change venue.

The court providently exercised its discretion in denying the motion as untimely. Defendant was aware of the venue selection clause in its own admission agreement and the agreement, which was signed by plaintiff's decedent, was in its possession at all times. Still, defendant waited almost two years after the action was commenced before seeking a change of venue, and provided no reasonable explanation for the delay.

Brown v. United Odd Fellow & Rebekah Home, Inc., NY Slip Op 03461 (1st Dep't June 18, 2020)

Here is the decision.

CPLR 3025[b].

In the absence of sufficient evidence to establish that the proposed amendment was not specious, defendant's motion for leave to amend its answer was providently denied.

Avail 1 LLC v. Acquafredda Enters., LLC, NY Slip Op 03460 (1st Dep't June 18, 2020)

Here is the decision.

A claim for negligent hiring, supervision, and retention.

An essential element of the cause of action is that the employer knew, or should have known, of the employee's propensity for the sort of conduct that caused the injury. Here, defendant's knowledge of the employee's criminal history does not raise an issue of fact as to whether the defendant knew or should have known of her propensity to commit sexual assault. Similarly, the fact that one of defendant's supervisors confronted the employee concerning her "nodding out" and missing work did not impute to defendant actual or constructive notice that the employee had any propensity to commit sexual assault. The claim was dismissed.

Norris v. Innovative Health Sys., Inc., NY Slip Op 03456 (1st Dep't June 18, 2020)

Here is the decision.

A demand to change venue.

By failing to respond to the defendant's demand to change venue to a proper forum, the plaintiff forfeits its right to select venue.

Richardson v. City of New York, NY Slip Op 03281 (1st Dep't June 11, 2020)

Here is the decision.

An asbestos-related claim.

Oa the motion for summary judgment, defendant has the initial burden of showing unequivocally that its product could not have contributed to the causation of decedent's injury. Here, defendant only pointed to gaps in plaintiffs' proof, which is insufficient to meet its burden. Even if the burden had shifted, plaintiff raised an issue of fact, citing hearsay evidence that could be considered by the court since it was not the sole basis of the opposition.

Fischer v. American Biltrite, Inc., NY Slip Op 03277 (1st Dep't June 11, 2020)

Here is the decision.

A summary judgment motion and part rules.

Supreme Court improvidently exercised its discretion in denying the City's motion for summary judgment as untimely on the ground that, in violation of the court's part rules. it was made more than 60 days after the note of issue was filed. When the note of issue was filed, and for more than 60 days thereafter, the case was assigned to a different part, and the City showed that it had complied with the rules of the part to which the case had originally been assigned.

Astrakan v. City of New York, NY Slip Op 03276 (1st Dep't June 11. 2020)

Here is the decision.

Charging liens.

Entry of an order recognizing the lien bars any challenge to the rendering of the underlying legal services. Here, though, the stipulated order also expressly provides that the substitute counsel does not waive "any claims or defenses w[ith] respect to fees or expenses," and that there will be a hearing "regarding all fee and expense issues." Therefore, a hearing is necessary to determine whether the former attorney was discharged for cause.

Matter of Verdugo v. Schwartz Goldstone & Campisi, LLP, NY Slip Op 03273 (1st Dep't June 11, 2020)

Here is the decision.

A motion for class certification.

Pursuant to CPLR article 9, the trial court has considerable flexibility in overseeing a class action, and the court may decertify the class at any time before a decision on the merits if it becomes apparent that class treatment is inappropriate.  Still, the proponent of class certification bears the burden of establishing the criteria promulgated by CPLR 901(a), and must do so by the tender of evidence in admissible form.

Mid Is. LP v. Hess Corp., NY Slip Op 03270 (1st Dep't June 11, 2020)

Here is the decision.

Appellate practice.

An order issued sua sponte is not appealable as of right, pursuant to CPLR 5701[a][2]. Plaintiffs' remedy is to move to vacate the court's order, and, if the motion is denied, appeal from the order, pursuant to CPLR 5701[a][3].

Hall v. Louis, NY Slip Op 03268 (1st Dep't June 11, 2020)

Here is the decision.

A cause of action for quantum meruit.

The motion court properly dismissed the claim, as a valid and enforceable written contract governed the subject matter at issue. Recovery in quasi-contract for events arising out of the same subject matter is precluded.

Graciano Corp. v. Lanmark Group, Inc., NY Slip Op 03266 (1st Dep't June 11, 2020)

Here is the decision.

A dismissed cause of action for abuse of process.

Defendant commenced two family offense proceedings based on separate incidents. Both petitions were dismissed, one on the merits and the other without prejudice. The mere filing of petitions is not legally considered process capable of being abused.

Ivancev v. Garrido, NY Slip Op 03190 (1st Dept June 4, 2020)

Here is the decision.

A time-barred claim of tortious interference.

The statute of limitations for tortious interference .with prospective business relations is three years from the date of injury. The limitations period is triggered when a plaintiff first sustains damages.

Linkable Networks, Inc. v. Mastercard Inc., NY Slip Op 03187 (1st Dep't June 4, 2020)

Here is the decision.

Appellate practice.

No appeal lies from an order declining to sign an order to show cause, since it is an ex parte order that does not decide a motion made on notice, pursuant to CPLR 5701(a)(2).

Chi Young Lee v. Osorio, NY Slip Op 03186 (1st Dep't June 4, 2020)

Here is the decision.

An alleged violation of Judiciary Law § 487.

An attorney violates § 487(1) by intentionally deceiving the court or any party. A claim premised on a statutory violation must be supported by a showing that the attorney intended to deceive, or engaged in a chronic and extreme pattern of legal delinquency. In order to make a prima facie showing of entitlement to summary judgment, an affidavit from someone with actual knowledge of the allegations is sufficient. The defendant is not required to submit an affidavit from a legal expert.

Koch v. Sheresky, Aronson & Mayefsky LLP, NY Slip Op 03178 (1st Dep't June 4, 2020)

Here is the decision.

Summary judgment in a slip-and-fall action.

The Appellate Division reversed the motion court's determination that defendant was entitled to summary judgment dismissing the complaint on the ground that he is an out-of-possession landlord. In addition, it was permissible for plaintiff to plead defendant's violation of  Administrative Code of City of New York § 7-210 in opposition to defendant's motion, as plaintiff did not raise a new theory of liability or prejudice.

Herrera v. Vargas, NY Slip Op 03082 (1st Dep't May 28, 2020)

Here is the decision.

CPLR 3212(f).

The motion court providently rejected defendants' argument in opposition to plaintiff's motion for summary judgment. Although defendants purport to require discovery from a third party, that entity is defendants' own agent, and defendants neither explained why they were unable to obtain the information sooner nor outlined any efforts made to obtain it.

Bethpage Fed. Credit Union v. Bouzaglou, NY Slip Op 03081 (1st Dep't May 28, 2020)

Here is the decision.

Affidavits.

An affidavit based upon documentary evidence is sufficient to comply with the requirement of personal knowledge.

Bethpage Fed. Credit Union v. Bouzaglou, NY Slip Op 03081 (1st Dep't May 28, 2020)

Here is the decision.

CPLR 1018.

In this action where plaintiff seeks to recover the unpaid balances of eight loans, the motion court properly amended the caption to reflect plaintiff's successorship by merger to the entity that issued the loans.

Bethpage Fed. Credit Union v. Bouzaglou, NY Slip Op 03081 (1st Dep't May 28, 2020)

Here is the decision.

CPLR 306-b.

While plaintiff delayed in seeking an extension of his time to re-serve the complaint, the motion court appropriately exercised its discretion to extend plaintiff's time in the interest of justice . Plaintiff's legal malpractice claim, which would otherwise be time-barred, is potentially meritorious, and defendants have not established that they would suffer substantial prejudice from the extension, where they had actual notice of this action and the allegations against them from early on.

Fernandez v. McCarthy, NY Slip Op -3-79 (1st Dep't May 28, 2020)

Here is the decision.

A motion for a preliminary injunction.

Both CPLR 6301 and 6312(a) require a link between a cause of action and the preliminary injunction. In the absence of such a link, the motion will be deined.

Davis v. Influx Capital Group, LLC, NY Slip Op 03077 (1st Dep't May 28, 2020)

Here is the decision.

The admissibility of hearsay.

Hearsay is admissible in administrative proceedings, and it may be the basis for an administrative determination. If the hearsay is sufficiently relevant and probative, it, standing alone, constitutes substantial evidence.

Matter of Harge v. City of New York, NY Slip Op 03075 (1st Dep't May 28, 2020)

Here is the decision.

A time-barred fiduciary duty claim.

The claim is  untimely under the governing three-year limitations period. The essence of plaintiffs' allegations is not that the defendant was an active participant in an alleged fraudulent scheme, but that he endorsed it rather than opposed it. Any fraud allegations are, at most, incidental to the fiduciary duty claim. The fiduciary tolling doctrine is inapplicable here, as plaintiffs seek money damages, rather than an accounting or equitable relief.

Habberstad v. Revere Sec. LLC, NY Slip Op 03071 (1st Dep't May 28, 2020)

Here is the decision.