Claims sounding in subornation of perjury in a prior litigation.

The claim is not permitted in a subsequent plenary action.

LabMD, Inc. v. Buchanan, NY Slip Op 04084 (1st Dep't June 24, 2021)

Here is the decision.

Appellate practice.

The appeal from orders which granted defendants' motions to strike the complaint based on plaintiff's failure to provide court-ordered discovery was dismissed, as taken from nonappealable orders. Plaintiff may not appeal from these orders as they were entered upon his default, pursuant to CPLR 5511. Plaintiff's proper recourse is to move to vacate his default and, if necessary, appeal from the denial of that motion.

Manrique v. Delgado, NY Slip Op 04085 (1st Dep't June 24, 2021)

Here is the decision.

CPLR 2214(c).

Plaintiffs sought to recover the security deposit given in connection with their lease of a condominium unit owned by defendants. The court granted plaintiffs' motion to strike defendants' answer for failure to comply with discovery obligations, and thereupon granted judgment in favor of plaintiffs in the amount of the deposit plus statutory interest. Contrary to defendants' arguments, the motion court could consider the lease, even though it was not submitted by plaintiffs in support of their motion to strike, because it had been e-filed in connection with an earlier motion.

Quadracci v. Freeman, NY Slip Op 04094 (1st Dep't June 24, 2021)

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The continuous treatment doctrine.

Where the medical malpractice claim is predicated on an alleged failure to properly diagnose a condition, the continuous treatment doctrine may apply as long as the symptoms being treated indicate the presence of that condition. However, routine" or diagnostic examinations, even when conducted repeatedly and over a period of time, do not constitute a course of treatment for the purpose of tolling the statute of limitations.

Vines v. New York City Health & Hosps. Corp., NY Slip Op 04096 (1st Dep't June 23, 2021)

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A cause of action for breach of fiduciary duty.

In order to state the claim, the plaintiff must allege that (1) the defendant owed him a fiduciary duty; (2) the defendant committed misconduct; and (3) the plaintiff suffered damages caused by that misconduct.

Besen v. Farhadian, NY Slip Op 04080 (1st Dep't June 24, 2021)

Here is the decision.

CPLR 301.

Plaintiff failed to show that Defendant is domiciled in New York so as to confer general personal jurisdiction. Defendant is headquartered and has its principal place of business in Dubai, UAE, and it operates flights internationally serving 156 airports in 84 countries. Although Defendant has an office in New York County, it cannot be said that it is 'at home' in New York. In addition, its registration to do business in New York does not constitute consent to submit to general jurisdiction in New York for causes of action that are unrelated to its affiliation with New York.

Okoroafor v. Emirates Airlines, NY Slip Op 03994 (1st Dep't June 22, 2021)

Here is the decision.

Legal malpractice.

The Appellate Division, upon a jury verdict in favor of defendant, and appeal therefrom, affirmed the denial of plaintiff's post-trial motion to set aside the jury's verdict. It is well-settled that in order to recover damages for legal malpractice, a plaintiff must demonstrate that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession and that the attorney's breach of this duty proximately caused plaintiff to sustain actual and ascertainable damages. In order to establish causation, a plaintiff must show that, but for the attorney's negligence, he would have prevailed in the underlying action. Here, the jury's verdict that defendant did not depart from the requisite standard of care by failing to call a surgeon as an expert witness at the trial of plaintiff's medical malpractice action was not utterly irrational or against the weight of the evidence. The record presents a valid line of reasoning and permissible inferences that could have led the jury to find that before defendant rested his case, he informed the trial court that he intended to call the surgeon but could not locate her during the recess. The jury could have reasonably concluded that under the circumstances defendant could not have done more to secure the surgeon's testimony and. therefore, in not calling her before resting, he did not fail to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession.

Warren v. Silas, NY Slip Op 03930 (1st Dep't June 17, 2021)

Here is the decision., 

Equitable estoppel.

When a party with full knowledge, or with sufficient notice of its rights and of all the material facts, freely does what amounts to a recognition or adoption of a contract or transaction as existing, or acts in a manner inconsistent with its repudiation, and so as to affect or interfere with the relations and situation of the parties, that party acquiesces in and assents to it and is equitably estopped from impeaching it, even if it was originally void or voidable. Estoppel is applied in accordance with established general principles, so that the transactions and dealings may result justly and fairly with the parties concerned with them.

Bernard v. Citibank, N.A., NY Slip Op 03822 (2d Dep't June 16, 2021)

Here is the decision.

A deficient notice of claim.

The Appellate Division affirmed the Order which granted defendants' motion for summary judgment dismissing the complaint. Plaintiff concedes that defendants are not liable for her injuries on the ground that they were negligent in failing properly to clear the sidewalk of snow and ice, because at the time she slipped and fell, there was a storm in progress, and therefore they had no legal duty to begin snow and ice removal efforts. Instead, in opposition to defendants' motion, plaintiff argues for the first time that defendants are liable because their employee negligently directed her to walk in an unsafe area. However, nowhere in her notice of claim, the complaint, or the verified bill of particulars does plaintiff allege that the employee directed her to go around his snow blower, causing her to step into an accumulation of snow that obscured the curb, from which she fell into the roadway. Contrary to plaintiff's contention, there is no allegation in her notice of claim, pleadings, or testimony that afforded defendants notice of this new theory of liability. Even if the pleadings and testimony had raised this new theory, plaintiff could not use them to rectify deficiencies in the notice of claim. Moreover, as the new theory would not have been authorized by General Municipal Law § 50-e(6), even if plaintiff had sought to amend the notice of claim, it is irrelevant whether defendants would be prejudiced by it.

Wilson v. City of New York, NY Slip Op 03931 (1st Dep't June 17, 2021)

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Law of the case.

The prior order, affirmed by the Appellate Division, denying defendant's summary judgment motion, does not establish as law of the case that defendant was required to designate plaintiff as a tenant on the lease for the restaurant operated by defendant pursuant to a management agreement with plaintiff. The denial of the defendant's motion establishes only that there are triable issues of fact.

37 E. 50th St. Corp. v. Restaurant Group Mgt. Servs., LLC, NY Slip Op 03932 (1st Dep't June 17, 2021)

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New York Supreme's general jurisdiction.

New York Supreme is a court of original, unlimited, and unqualified jurisdiction, pursuant to NY Const, art, VI, § 7[a].

21st Century Pharmacy v. American Intl. Group, NY Slip Op 03820 (2d Dep't June 16, 2021)

Here is the decision.

Preliminary injunctions and the element of irreparable harm.

The loss of the goodwill of a viable, ongoing business may constitute irreparable harm warranting the grant of preliminary injunctive relief.

Advent Software, Inc. v. SEI Global Servs., Inc., NY Slip Op 03807 (1st Dep't June 15, 2021)

Here is the decision.

Pre-discovery summary judgment.

Defendant's argument that discovery is required is unavailing, as the alleged factual issues raised by defendant are immaterial. They do not rebut plaintiff's prima facie showing of its entitlement to judgment as a matter of law or demonstrate the need for further inquiry into his defenses or counterclaims.

361 Broadway Assoc. Holdings, LLC v. Morales, NY Slip Op 03806 (1st Dep't June 15, 2021)

Here is the decision.

Assumption of the risk.

Plaintiff alleges that he was injured when, as a passenger sightseeing on defendant's boat, he stood up as the boat was rising up and down as a result of passing waves, then slipped and fell. Defendant established entitlement to judgment as a matter of law based on the doctrine of primary assumption of the risk., as his evidence shows that plaintiff's injuries arose from commonly appreciated risks inherent in the recreational activity in which he was engaged. 

Plaintiff' argues that, even if the primary assumption of the risk doctrine applies, he could not be deemed to have assumed certain increased risks beyond those inherent in the activity, noting the risks created by defendant's alleged reckless conduct in operating the boat, the presence of alcohol on board, the absence of life jackets, and his inexperience with boats. The Appellate Division rejected the argument as conclusory and otherwise unsupported by expert opinion or the circumstances of the incident.

Dismissed.

Paulino v. Braun, NY Slip Op 03668 (1st Dep't June 19, 2021)

Here is the decision.

A motion for civil contempt.

In order to prevail on the motion, the movant must prove, by clear and convincing evidence, that (1) there was a lawful court order, clearly expressing an unequivocal mandate; (2) the offending party disobeyed the order; (3) the offending party had knowledge of its terms; and (4) the movant was prejudiced by the offending conduct. When the movant establishes a knowing failure to comply with a clear and unequivocal court mandate, the burden shifts to the offending party to refute the movant's showing, or to offer evidence of a defense, such as an inability to comply with the order. The motion is addressed to the sound discretion of the court.

Matter of Weiss v. Rosenthal, NY Slip Op 03595 (2d Dep't June 9, 2021)

Here is the decision.

Stipulations of settlement.

Stipulations of settlement are favored by the courts and they are not lightly set aside, especially where the parties are represented by counsel. The stipulation is a contract which is enforceable according to its terms. As with any contract, its construction should give fair meaning to all of the language used by the parties, in order to reach a practical interpretation of the parties' expressions, so that their reasonable expectations will be realized.

Matter of Varone Irrevocable Trust, NY Slip Op 03596 (2d Dep't June 9, 2021)

Here is the decision.

Appellate practice.

Plaintiff's cross motion was properly denominated a motion to renew based on newly discovered evidence and was thus appealable as of right, pursuant to CPLR 2221[e].

Salvator v. 55 Residents Corp., NY Slip Op 03673 (1st Dep't June 10, 2021)

Here is the decision.

A ceiling collapse.

The landlord failed to establish its entitlement to judgment as a matter of law in this action where plaintiff' seeks to recover damages for a ceiling collapse. The landlord failed to submit sufficient evidence showing that it neither created nor had actual or constructive notice of the hazardous condition. Plaintiff testified that she specifically notified the management company that her ceiling was "falling apart," and that she had a discussion in her bedroom with the super and a carpenter from the contractor doing renovation work on behalf of the landlord in the apartment above, during which she pointed out that dust was coming from her bedroom ceiling, and was told that the ceiling needed repairs Additionally, the building super and carpenter each testified that they observed multiple foot-long cracks in plaintiff's ceiling. The landlord submitted no evidence establishing that the area where they saw the cracks was distinguishable from the area which ultimately collapsed onto plaintiff.

For her part, plaintiff submitted sufficient evidence in opposition to raise a triable issue of fact, including an email in which she notified the building management that her ceiling was falling apart, and subsequent emails in which the renovation contractor informed management that cracks had formed in the ceiling.

The landlord failed to establish that, on these facts, the doctrine of res ipsa loquitur does not apply. A ceiling collapse does not ordinarily occur in the absence of negligence, and the landlord has not established that plaintiff's own negligence caused this accident. The fact that both the landlord and the contractor may have controlled plaintiff's ceiling does not preclude application of the doctrine. 

Wenzel v. All City Remodeling, Inc., NY Slip Op 03674 (1st Dep't June 10, 2021)

Here is the decision.

Repudiating a contract.

When one party repudiates a contract, the other party is entitled to claim damages for a total breach by the repudiating party, and any future performance by the nonbreaching party is excused.

Alloy Advisory, LLC v. 503 W. 33rd St. Assoc., Inc., NY Slip Op 03529 (1st Dep't June 3, 2021)

Here is the decision.

CPLR 3019(b).

In New York, cross claims may be asserted between defendants for any cause of action at all, regardless of whether they are related to the plaintiff's claim.

Feiger v. Ray Enters., LLC, NY Slip Op 03525 (1st Dep't June 3, 2021)

Here is the decision.

Notices to admit.

A notice to admit is to be used only for disposing of uncontroverted questions of fact or those that are easily provable, not for requesting admissions of material issues or ultimate or conclusory facts which can only be resolved after a full trial. The notice cannot be used to obtain information in lieu of other disclosure devices, such as the taking of depositions. Here, the motion court correctly found that both notices, which sought admissions of both ultimate and conclusory facts, were sufficiently responded to, and properly directed plaintiff to seek such information through discovery disclosure devices.

Genna v. Klempner, NY Slip Op 03526 (1st Dep't June 3, 2021)

Here is the decision.

Appellate practice.

At issue is an Order which precludes defendants American University of Antigua and American Union of Antigua from participating in the damages trial, and, sub silentio, denied their motion in limine to enforce a prior evidentiary preclusion order against plaintiffs and their motion to preclude certain damages. The Order is appealable, because it decided a motion made on notice to enforce the preclusion order, and denied defendants' right to participate in the damages trial, thereby involving the merits of the controversy and affecting a substantial right, pursuant to CPLR 5701 [a] [2] [iv], [v].

Jeffers v. American Univ. of Antigua, NY Slip Op 03528 (1st Dep't June 3, 2021)

Here is the decision.

Noncompete agreements and the practice of law.

At issue  is a law firm's employment agreement that prohibits a former associate attorney from engaging in any business that conducts the same or similar business as plaintiff for a period of 36 months, within 90 miles of New York City or in the Israeli community. The agreement also purports to prohibit the defendant attorney from directly or indirectly soliciting any business from customers or clients of plaintiff for a period of 36 months within 90 miles of New York City or in the Israeli community; or advertise on Israeli/Hebrew websites, TV or newspaper ads.

Rule 5.6(a)(1) of the Rules of Professional Conduct, codified as 22 NYCRR 1200.0, bars lawyers from "participat[ing] in offering or making a partnership, shareholder, operating, employment, or other similar type of agreement that restricts the right of a lawyer to practice after termination of the relationship." To the extent the noncompete provision seeks to prevent the defendant attorney from "conducting business activities that are the same or similar to those of [plaintiff]" within 90 miles of New York City or in the Israeli community, it is void and unenforceable. The solicitation of the firm's clients, however, is actionable.

Feiner & Lavy, P.C. v. Zohar, NY Slip Op 03407 (1st Dep't June 1, 2021)

Here is the decision.

City agencies as defendants.

The Appellate Division affirmed the Order which granted defendant's motion to dismiss the complaint and denied plaintiff's cross motion to amend the complaint to add the City of New York. Defendant, the New York City Human Resources Administration (HRA), is a City agency and, thus, is not a proper party to this action, pursuant to NY City Charter § 396. Plaintiff's motion to substitute the City for HRA was properly denied, as it was already decided against him in a prior order in this action. In any event, the complaint fails to state a claim against HRA, as the allegations do not implicate the agency.

Komatsu v. New York City Human Resources Admin., NY Slip Op 03410 (1st Dep't June 1, 2021)

Here is the decision.

June 6, 1944.

A cause of action for conversion of money.

Where the claim is asserted as to money, the funds must be specifically identifiable and be subject to an obligation to be returned or to be otherwise treated in a specified manner.  Here, the defendant-lawyer had put the funds into his IOLA account, which is an unsegregated interest-bearing bank account for an attorney's deposit of qualified funds, pursuant to Judiciary Law § 497. As the account is unsegregated, plaintiff's funds, upon their transfer therein, became commingled with monies that were already in it, rendering them no longer specifically identifiable. Even if the funds were specifically identifiable, the claim is insufficiently pled, as plaintiff did not make a demand for the return of the funds. Dismissed.

SH575 Holdings LLC v. Reliable Abstract Co., L.L.C., NY Slip Op 03427 (1st Dep't June 1, 2021)

Here is the decision.

CPLR 3215(c).

In this medical malpractice action, the Appellate Division affirmed the Order which denied plaintiff's motion for a default judgment and dismissed the complaint as abandoned. Plaintif's excuse for her delay in seeking a default judgment was not reasonable: that she failed to notify her counsel that she moved to Puerto Rico, that her counsel had to hire an investigator to locate her to sign the affidavits of merit annexed to her moving papers after she moved to Puerto Rico, and that, for months, she did not return the affidavits of merit which had been sent to her.

Ventura v. Chhabra, NY Slip Op 03430 (1st Dep't June 1, 2021)

Here is the decision.

A motion for a default judgment.

The Appellate Division affirmed the Order which, to the extent appealed from, denied plaintiff's motion for a default judgment against defendants. While defendants technically did not respond to plaintiff's motion for a default judgment, they appeared in the action before the motion was made, only shortly after the deadline to answer or move, and they moved to dismiss the action only one week after plaintiff made his motion for a default. In the motion to dismiss, defendants sufficiently responded to the arguments that plaintiff had made in the motion for a default judgment, asserting that they did not have sufficient time to move to dismiss the complaint because they had to research the action, having never actually been a party to the alleged retainer agreement with plaintiff, which they maintain was a forged document. Particularly given plaintiff's alleged fraud on the court, the motion court was within its discretion to excuse defendants' minor delay in moving to dismiss the complaint and their failure to submit a sworn statement in opposition to the motion.

Xiaoyong Zhang v Jong, NY Slip Op 03432 (1st Dep't June 1, 2021)

Here is the decision.

A legal malpractice claim.

The Appellate Division affirmed the Order which granted defendants' CPLR 3211(a)(7) motion to dismiss the complaint. The ruling of the United States District Court for the Southern District of New York, which dismissed plaintiffs' complaint in the underlying fraud action for failure to state a claim, collaterally estops plaintiffs from arguing that, but for defendants' negligence in failing to timely serve the defendant doctors in the underlying action with the summons or timely seek an extension, they would have prevailed in the underlying matter. The motion court considered and properly rejected plaintiffs' alternative argument, that defendants' negligence caused them to sustain damages that they would not have incurred but for defendants' negligence, including pursuing the appeal from the dismissal of the underlying action for failure to timely serve the underlying doctor defendants with summonses. The motion court also properly dismissed the breach of contract and breach of fiduciary duty claims as duplicative of the legal malpractice claim. They are both predicated on the same allegations and seek relief identical to that sought in the malpractice cause of action.

Zegelstein v. Roth Law Firm PLLC, NY Slip Op 03396 (1st Dep't May 27, 2021)

Here is the decision.

Appellate practice.

The Appellate Division may consider an argument that is raised for the first time on appeal if the argument involves a legal issue that appears on the face of the record and could not have been avoided it had been raised earlier.

27 W. 72nd St. Note Buyer LLC v. Terzi, NY Slip Op 03364 (1st Dep't May 27, 2021)

Here is the decision.