CPLR 5001(a).

Where plaintiff commenced the action seeking equitable relief, he is not entitled to interest as if he had asserted a breach of contract claim.

Vogel v. Vogel, NY Slip Op 06568 (1st Dep't November 23, 2021)

Here is the decision.

A claim of tortious interference with contract.

The essential elements are: (1) the existence of a valid contract between plaintiff and a third party; (2) the defendant's knowledge of that contract; (3) the defendant's intentional procuring of the breach; and (4) damages.

DeLibero v. Duloc, NY Slip Op 06571 (1st Dep't November 23, 2021)

Here is the decision.

The merger doctrine in a real estate transaction.

Contractual provisions do not survive closing and transfer of the deed unless the agreement expressly states otherwise.

19 Stanton St. LLC v. 19 Stanton Realty LLC, NY Slip Op 06533 (1st Dep't November 23, 2021)

Here is the decision.

CPLR 3215(c).

The language of the statute is not discretionary, but mandatory, as it states that courts "shall" dismiss as abandoned claims for which a default judgment is not sought within the requisite one-year period. 

Deutsche Bank Natl. Trust Co. v. Watson, NY Slip Op 06340 (2d Dep't November 17, 2021)

Here is the decision.

CPLR 3215[f].

A movant for a default judgment must submit proof of service of the summons and complaint, proof of the facts constituting the claim, and proof of the defendant's failure to answer or appear. In order to defeat the motion, the defendant must show either that there was no default, or that it has a reasonable excuse for its delay and a potentially meritorious defense.

Deutsche Bank Natl. Trust Co. v. Pezzola, NY Slip Op 06339 (2d Dep't November 17, 2021)

Here is the decision.

Thanksgiving 1943.

Family Ct Act § 812 (2)(b).

"[A] family court proceeding is a civil proceeding and is for the purpose of attempting to stop the violence, end the family disruption and obtain protection." In order to support a finding that a respondent has committed a family offense, the petitioner must prove the allegations by a fair preponderance of the evidence. In deciding a motion to dismiss a petition, the allegations in the petition, as well as the petitioner's evidence, must be accepted as true and given the benefit of every reasonable inference which may be drawn therefrom.

Matter of Phillip D.S. v. Shamel B., NY Slip Op 06460 (1st Dep't November 18, 2021)

Here is the decision.

Contract law.

A contract is voidable on the ground of duress when it is established that the party making the claim was forced to agree to the contract by means of a wrongful threat precluding the exercise of free will. In order to rescind an agreement on the ground of overreaching, a plaintiff must demonstrate both overreaching and unfairness. In determining whether there has been overreaching, the court may examine the terms of the agreement and the surrounding circumstances. However, if the execution of the agreement is fair, no further inquiry will be made.

Barone v. Barone, NY Slip Op 06338 (2d Dep't November 17, 2021)

Here is the decision.

A Labor Law § 240(1) cause of action.

A fall from a scaffold, in and of itself, does not establish that the plaintiff was not provided with proper protection. Here, the plaintiff relies solely on his General Municipal Law § 50-h hearing testimony and his deposition testimony, which merely establish that he fell from a scaffold. The plaintiff fails to address whether there were scaffold rails, possible tie-off points for a harness, or some alternative fall protection. Without more, the plaintiff's testimony that he "moved [his] foot" to the left, causing him to step off of the scaffold and into an "empty space," and that "there was nothing there because [he] stepped on it and . . . thought it was something solid" is insufficient.

Torres v. New York City Hous. Auth., NY Slip Op 06207 (2d Dep't November 10, 2021)

Here is the decision.

General Municipal Law § 50-e.

As a prerequisite to suing individual municipal employees, they must be named in the notice of claim.

Wiggins v. City of New York, NY Slip Op 06035 (1st Dep't November 16, 2021)

Here is the decision.

CPLR 2221(e).

Plaintiff's motion for leave to renew was denied because the purported new facts on which the motion was based was a notice of appearance that had been filed four years earlier by defendant's prior attorney, who was suspended and then disbarred. Plaintiff offered no reasonable justification for its failure to find and timely present this document, which was a matter of public record in the court file, in opposition to defendant's underlying motion to dismiss.

NRZ Pass-Through Trust IV v. Rouge, NY Slip Op 06095 (1st Dep't November 9, 2021)

Here is the decision.

CPLR 511(a).

The defendant shall serve with the answer, or prior to service of the answer, a demand for a change of place of trial on the ground that the designated county is not a proper county. Subsection (b) permits the defendant to move to change the place of trial within fifteen days after service of the demand. Where the defendant fails to make a timely demand for a change of venue on the ground that the venue designated by the plaintiff was improper, or to make a timely motion on that ground, the defendant is not entitled to a change of venue as of right, and the motion is addressed to the court's discretion.

Suki Bus., Inc. v. East Coast Realtors, Inc., NY Slip Op 06205 (2d Dep't November 10, 2021)

Here is the decision.

A claim for negligent hiring and training.

A necessary element of the cause of action is that the employer knew or should have known of the employee's propensity for the conduct which caused the injury.

Sheppard v. United States Tennis Assn. Inc., NY Slip Op 06204 (2d Dep't November 10, 2021)

Here is the decision.

CPLR 2104.

Emails which reduce the parties' settlement agreement to a writing are "subscribed" within the meaning of the statute, and, therefore, constitute a binding stipulation. The sender is identifiable, and there is no contention that defendant's counsel did not intentionally send the emails.

Rawald v. Dormitory Auth. of the State of N.Y., NY Slip Op 06109 (1st Dep't November 9, 2021)

Here is the decision.

CPLR 3212(f).

Plaintiff's assertion that the motion to dismiss is premature because additional discovery is necessary is unavailing. Plaintiff fails to offer anything other than conjecture to support this position.

Rios v. City of New York, NY Slip Op 06110 (NY Slip Op 06110 (1st Dep't November 9, 2021)

Here is the decison.

Appellate practice.

In this Article 78 action, petitioner's claim of agency bias is unpreserved, and the Appellate Divison has no discretionary authority or interest of justice jurisdiction in reviewing the agency's determination.

Matter of 383 8th LLC v. City of New York, NY Slip Op 06027 (1st Dep't November 4, 2021)

Here is the decision.

The doctrine of governmental immunity.

The New York State Division of Human Rights' investigation of the disability discrimination complaint constitutes a quasi-judicial discretionary action taken during the performance of governmental functions, and, therefore, the agency is shielded from liability.

Meehan of Huntington, Inc. v. State of New York, NY Slip Op 05778 (1st Dep't October 21, 2021)

Here is the decision.

22 NYCRR 202.27.

When plaintiff fails to appear for a mandatory court conference, regardless of whether the court issues an order of dismissal, the action is dismissed. 

HSBC Mtge. Corp. (USA) v. Marble Hill at 29, Inc., NY Slip Op 05922 (1st Dep't October 28, 2021)

Here is the decision.

Service of process and personal jurisdiction.

The court does not have personal jurisdiction over a defendant when a plaintiff fails to properly effect service of process. Where process has not been served upon a defendant, all subsequent proceedings are rendered null and void.

Wang v. Stony Brook Univ. Hosp., NY Slip Op 05891 (2d Dep't October 27, 2021)

Here is the decision.

The continuous treatment doctrine.

In order to implicate the tolling provision, the understanding that treatment is ongoing must be shared by both physician and patient.

Caraballo v New York Presbyt. Hosp./Weill Cornell Med. Ctr., NY Slip Op 05920 (1st Dep't October 28, 2021)

Here is the decision.

A default on a real estate contract.

This action is brought by plaintiff-buyer, who entered into a written agreement to purchase a cooperative apartment from defendants-sellers. Plaintiff seeks the return of a down payment that plaintiff paid to secure her performance under the parties' contract. Defendants retained the deposit when plaintiff failed to close. Supreme Court granted plaintiff's motion for summary judgment in order to prevent unjust enrichment. The Appellate Division reversed. A claim for unjust enrichment will not stand in the face of the written agreement. An appeal to equity is unavailing, since it is settled law that a vendee who defaults on a real estate contract without lawful excuse cannot recover the down payment.

Jennings v. Silfen, NY Slip Op 05923 (1st Dep't October 28, 2021)

Here is the decision.

Referees.

Referees derive their authority from an order of reference by the court, which can be only be made upon the parties' consent. Absent consent, the referee has the power only to hear and report his findings. CPLR 4403 requires a motion to reject a referee's report to be made within 15 days of the filing of the report, while 22 NYCRR 202.44(a) requires the defendant to move to confirm or reject the report within 30 days after notice of the filing of the report.

HSBC Bank USA, N.A.. v. Sewell, NY Slip Op 05850 (2d Dep't October 27, 2021)

Here is the decision.

Appellate practice.

No appeal lies from an order denying reargument.

Bank of Am., N.A. v. Alrasheed, NY Slip Op 05848 (2d Dep't October 27, 2021)

Here is the decision.

Inadmissible hearsay.

The court refused to admit into evidence three statements allegedly made by plaintiff and recorded in his hospital records about the manner in which his accident happened. These statements are not admissible as admissions against interest, since the evidence adduced outside the jury's presence failed to establish that plaintiff was the source of the information contained in one of the statements, and defendants failed to produce the interpreters through whom the other two statements were made to confirm that they were objective and competent and that their interpretations were accurate. The statements are not admissible under the business records exception to the hearsay rule, since they are not germane to the treatment or diagnosis of plaintiff's injuries. 

Nassa v. 1512 LLC, NY Slip Op 05927 (1st Dep't October 28, 2021)

Here is the decision.

Forum selection clauses.

Where the record reflects a sufficiently close relationship among defendants so as to make the application of the clause foreseeable, a separate minimum-contacts analysis is unnecessary.

Oberon Sec., LLC v. Titanic Entertainment Holdings LLC, NY Slip Op 05929 (1st Dep't October 28, 2021)

Here is the decision.

The initial burden on a summary judgment motion.

Where the movant fails to satisfy its prima facie burden of establishing entitlement to judgment as a matter of law, it is unnecessary to consider the sufficiency of the opposition papers. 

Lampert v. County of Suffolk, NY Slip Op 05852 (2d Dep't October 27, 2021)

Here is the decision.

CPLR 3211(a)(5).

In opposition to the motion to dismiss, a plaintiff may submit affidavits to remedy defects in the complaint and preserve claims that are inartfully pleaded but potentially meritorious.

Jacobson Dev. Group, LLC v. Grossman, NY Slip Op 05851 (2d Dep't October 27, 2021)

Here is the decision.

CPLR 3025.

A party may amend a pleading, by leave of court, at any time, before or after judgment, so as to conform the pleading to the evidence. Applications to amend pleadings are within the sound discretion of the court, and leave shall be freely given upon such terms as may be just, even if the amendment substantially alters the theory of recovery.

Americore Drilling & Cutting, Inc. v. EMB Contr. Corp., NY Slip Op 05845 (2d Dep't October 27, 2021)

Here is the decision.

Derivative claims.

Defendant's motion to dismiss the complaint was granted on the ground that plaintiff lacks standing to assert the claims because they are derivative, not direct. Under New York law, a shareholder lacks standing to pursue a direct cause of action to redress wrongs suffered by the corporation. Such claims must be asserted as derivative claims, for the benefit of the corporation. In determining whether a claim is derivative or direct, a court should consider (1) whether the corporation or the individual shareholders suffered the alleged harm,  and (2) whether the corporation or the individual shareholders would receive the benefit of any recovery or other remedy.

Sajust, LLC v. Mendelow, NY Slip Op 05835 (1st Dep't October 26, 2021)

Here is the decision.