Pre-joinder summary judgment.

The rule barring a pre-joinder motion for summary judgment is strictly applied, and so a motion for summary judgment brought before a defendant has answered the complaint is premature and must be denied.

SHG Resources, LLC v. SYTR Real Estate Holdings LLC, NY Slip Op 00525 (1st Dep't January 27, 2022)

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CPLR 2001.

The motion court properly exercised its discretion in disregarding the fact that the notice of cross motion did not state the grounds for relief, since the grounds were made clear in the supporting affirmation.

Ricciardi v. State of New York, NY Slip Op 00386 (1st Dep't January 25, 2022)

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Medical malpractice.

In order to establish liability, the plaintiff must prove that the physician deviated or departed from accepted community standards of practice, and that the departure was a proximate cause of the plaintiff's injuries. A defendant moving for summary judgment must make a prima facie showing either that there was no departure from the accepted standard of care or that any departure was not a proximate cause of the plaintiff's injuries. Where the defendant meets its prima facie burden as to both elements, the burden shifts to the plaintiff to rebut the defendant's showing by raising a triable issue of fact as to both the departure element and the causation element. While conflicting expert opinions may raise credibility issues which can only be resolved by a jury, expert opinions that are conclusory, speculative, or unsupported by the record are insufficient to raise triable issues of fact. Expert opinions in opposition must address the specific assertions made by the movant's experts, setting forth an explanation of the reasoning and relying on specifically cited evidence in the record. An expert opinion that is contradicted by the record cannot defeat summary judgment.

Audette v. Toussaint-Milord, NY Slip Op 00298 (2d Dep't January 19, 2022)

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CPLR 5015[a][1].

During divorce proceedings, which commenced in 2014, defendant-husband relocated to a former marital property in North Carolina. In April 2017, after the court granted plaintiff-wife a divorce, defendant chose to represent himself for the remainder of the trial on financial issues which was scheduled to begin on August 8, 2017. Supreme Court denied defendant's repeated requests for an adjournment. On July 24, 2017, the court directed defendant to submit an affidavit from his treating physician to support the claim that his medical condition prevented him from proceeding to trial. On August 4, 2017, defendant submitted a note from a physician's assistant at a North Carolina healthcare center stating that he had preexisting medical conditions, including seizures, and that he had been advised to avoid stressors that could trigger seizures, such as travel, pending testing and further evaluation. When defendant failed to appear for trial, Supreme Court determined him to be in default and held an inquest. After the inquest, a judgment of divorce was entered, memorializing the court's decision. Defendant moved to vacate the judgment.

While the motion court did not dispute defendant's medical issues, it observed that defendant was able to participate in the proceedings from June 2016 to August 2017 and that there were no changes in his condition that would render him unable to attend trial as scheduled. Although defendant's new North Carolina care team recommended that he avoid stressors, defendant was not affirmatively told not to travel. Moreover, the care team only began treating defendant after he had repeatedly sought adjournments. There is no basis to disturb the determination that defendant was using his preexisting medical condition to prolong the proceedings. Denial of defendant's motion is affirmed.

Wilson v. Wilson, NY Slip Op 00389 (1st Dep't January 25, 2022)

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CPLR 4404(a).

A motion to set aside a jury verdict and for judgment as a matter of law will be granted only if, based on the evidence presented at trial, there is no valid line of reasoning and permissible inferences which could possibly lead a rational jury to the conclusion it reached.

Anarumo v. Herzog, NY Slip Op 00297 (2d Dep't January 19, 2022)

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A plaintiff's motion to proceed in anonymity.

The court must exercise its discretion to limit the public nature of judicial proceedings only when unusual circumstances necessitate it. Here, plaintiffs submitted an attorney affirmation which merely repeated the relief requested in the order to show cause and made a single vague statement that plaintiffs might suffer further mental harm if their identities were revealed. Plaintiffs failed to provide any specific evidence as to why each unnamed plaintiff should be entitled to proceed anonymously. The motion is denied without prejudice to a new motion or motions supported by proper papers.

Twersky v. Yeshiva Univ., NY Slip Op 00366 (1st Dep't January 20, 2022)

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Res ipsa loquitur.

Res ipsa loquitur applies when a plaintiff establishes that: (1) the accident is of a kind that ordinarily does not occur in the absence of someone's negligence; (2) the accident was caused by an agency or instrumentality within the defendant's exclusive control; and (3) the accident was not due to any voluntary action or contribution on the part of the plaintiff. Notice is inferred where res ipsa loquitur applies.

Valdez v. Upper Creston, LLC, NY Slip Op 00367 (1st Dep't January 20, 2022)

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A malicious prosecution claim.

The elements of a claim for malicious prosecution are (1) the commencement or continuation of a criminal proceeding by the defendant against the plaintiff; (2) the termination of the proceeding in favor of the plaintiff; (3) the absence of probable cause for the criminal proceeding; and (4) actual malice. Although probable cause and malice are independent elements, the finder of fact may infer malice from a lack of probable cause. 

Vizcaino v. City of New York, NY Slip Op 00293 (1st Dep't January 18, 2022)

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Jurisdiction in a landlord-tenant dispute.

The Appellate Division reversed the motion court's sua sponte dismissal of the complaint on the ground that this is a landlord-tenant dispute that should have been brought as a summary proceeding in Civil Court. Supreme Court has unlimited general jurisdiction over all real property actions, including those commenced by a landlord against a tenant. In its discretion, the Supreme Court may decline to hear such an action on the ground that a pending action in Civil Court is the proper forum.

A&L 1664 LLC v. Jaspar Hospitality LLC, NY Slip Op 00264 (1st Dep't January 18, 2022)

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Appellate practice.

An order issued sua sponte is not appealable as of right, pursuant to CPLR 5701[a][2]. However, the Appellate Division may deem the notice of appeal a motion for leave to appeal, and grant leave, pursuant to CPLR 5701[c].

A&L 1664 LLC v. Jaspar Hospitality LLC, NY Slip Op 00264 (1st Dep't January 18, 2022)

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A motion for a preliminary injunction.

The motion is denied because plaintiff seeks injunctive relief that, effectively, is the ultimate relief sought in the first cause of action. In addition, plaintiff alleges harm that is compensable by measurable money damages, and, therefore, it is not irreparable.

Montgomery v. 215 Chrystie LLC, NY Slip Op 00253 (1st Dep't January 13, 2022)

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CPLR 3215.

A plaintiff seeking leave to enter a default judgment must file proof of: (1) service of a copy or copies of the summons and the complaint; (2) the facts constituting the claim; and (3) the defendant's default. In order to defeat a facially sufficient motion, the defendant must show either that there was no default, or that it had a reasonable excuse for its delay and a potentially meritorious defense.

U.S. Bank N.A. v. Crockett, NY Slip Op 00211 (2d Dep't January 12, 2022)

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Summary judgment motions.

The motion court will not consider an affidavit submitted in opposition when the facts alleged therein materially conflict with the party's prior deposition testimony.

Lambert v. Bonilla, NY Slip Op 00251 (1st Dep't January 13, 2022)

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Respondeat superior.

Plaintiff alleges that defendant's security guard sprayed him with a white powder, causing injuries to plaintiff. However, plaintiff fails to allege that the guard was acting within the scope of his duties for defendant, and, therefore, fails to state a cause of action against defendant.

Moroshkin v. Trinity Church, NY Slip Op 00254 (1st Dep't January 13, 2022)

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Partnership Law § 51(1).

"A partner is co-owner with his partners of specific partnership property holding as a tenant in partnership." On the death of a partner, his right in specific partnership property vests in the surviving partner or partners. A deceased partner's representative is not entitled to participate in, or interfere with, the continuation of or winding up of partnership business by the surviving partner or partners.

Abruzzi v. Bond Realty Inc., NY Slip Op 00156 (2d Dep't January 12, 2022)

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Judicial review of a condominium board's actions.

Under the business judgment rule, a court's inquiry is limited to whether the board acted within the scope of its authority under the bylaws, which is a necessary threshold inquiry, and whether the board acted in good faith to further the legitimate interests of the condominium. Absent a showing of fraud, self-dealing, or unconscionability, the court will not inquire as to the wisdom or soundness of the business decision.

Katz v. Board of Mgrs. of Stirling Cove Condominium Assn., NY Slip Op 00033 (2d Dep't Janury 5, 2022)

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Summary judgment in a negligence action.

A defendant moving for summary judgment in a negligence action has the burden of establishing, prima facie, that he was not at fault in the happening of the accident. Here, in its moving papers, the defendant submitted deposition testimony which provided conflicting evidence as to the facts surrounding the incident. Viewing the evidence in the light most favorable to the plaintiff, as the nonmoving party, the defendant failed to satisfy the prima facie burden. The motion is denied, without considering the sufficiency of the opposing papers. 

Wiessner v. Phillips, NY Slip Op 00216 (2d Dep't January 2, 2022)

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The tort of conversion.

The cause of action is established where the plaintiff owns and has a right to possession of personal property and proves that the property is in the unauthorized possession of the defendant who has acted to exclude the plaintiff's ownership rights.

Dragons 516 Ltd. v. GDC 138 E 50 LLC, NY Slip Op 00121 (1st Dep't January 11, 2022)

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CPLR 302(a)(3).

In the context of a commercial tort, where the damage is solely economic, the situs of commercial injury is where the original critical events associated with the action or dispute took place, not where any financial loss or damages occurred.

Quad Capital Portfolio A LLC v. AbbVie Inc., NY Slip Op 00065 (1st Dep't January 6, 2022)

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CPLR 3215(c).

The statute provides that if a plaintiff fails to "take proceedings" for the entry of judgment within one year after the defendant's default, the court shall not enter judgment, but shall dismiss the complaint as abandoned. In this action to foreclose a mortgage, the Second Department addresses for the first time whether the presentment to the court of a proposed ex parte order to show cause for an order of reference, which is rejected by the court for defects inherent in the papers, qualifies as a taking of proceedings within the meaning of the statute. The Second Department holds that it does qualify.

Citibank, N.A. v. Kerszko, NY Slip Op 00032 (2d Dep't January 5, 2022)

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CPLR 2001.

At any stage of the litigation, a court may permit a mistake, omission, defect, or irregularity to be corrected, upon such terms as may be just. If a party's substantial right is not prejudiced, the mistake, omission, defect, or irregularity shall be disregarded.

21st Mtge. Corp. v. Rudman, NY Slip Op 00031 (2d Dep't January 5, 2022)

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An action to foreclose a mortgage.

The limitations period is six years, pursuant to CPLR 213[4], and if the mortgage debt is accelerated, the statutory period begins to run on the entire debt. An acceleration of the debt can occur when a creditor commences an action to foreclose upon a note and mortgage, and, in the complaint, seeks payment of the full balance due. However, service of a complaint does not constitute a valid exercise of the option to accelerate a debt where the plaintiff does not have the authority to accelerate the debt or to sue to foreclose at that time.

21st Mtge. Corp. v. Rudman, NY Slip Op 00031 (2d Dep't January 5, 2022)

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CPLR 214(6).

A claim for legal malpractice is subject to a three-year statute of limitations. The malpractice accrues, and the limitation period starts running, when the act, error, or omission occurs.

Morgan & Mendel Genomics, Inc. v. Amster Rothstein & Ebenstein, LLP, NY Slip Op 00048 (1st Dep't January 6, 2022)

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Appellate practice.

The defendant appeals the order that granted the plaintiff's motion for summary judgment on the complaint and appointed a referee to compute the amount due to the plaintiff. The appeal from the order must be dismissed because the right of direct appeal therefrom terminated with the entry of the order and judgment of foreclosure and sale in the action. The issues raised on the appeal from the order are brought up for review and are considered on the appeal from the order and judgment of foreclosure and sale.

21st Mtge. Corp. v. Rudman, NY Slip Op 00030 (2d Dep't January 5, 2022)

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An attorney's allegedly defamatory statements.

The statements are afforded the protections of Civil Rights Law § 74, which allows the publication of a fair and true report of any judicial proceeding. The statutory privilege is absolute, and applies even where the plaintiff alleges malice or bad faith.

Weeden v. Lukezic, NY Slip Op 00026 (1st Dep't January 4, 2022)

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CPLR 4106.

The trial court may substitute a regular juror with an alternate juror after deliberations have begun. The court must direct the jury to restart its deliberations from the beginning and disregard and set aside all prior deliberations. 

Caldwell v. New York City Tr. Auth., NY Slip Op 07537 (2d Dep't December 29, 2021)

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Standing in a mortgage foreclosure action.

The plaintiff has standing where it is the holder or assignee of the underlying note at the time the action is commenced. Either a written assignment of the underlying note or its physical delivery prior to the commencement of the action is sufficient to transfer the obligation, and the mortgage passes with the debt as an inseparable incident. Where, as here, the plaintiff's standing is placed in issue by the defendant's answer, the plaintiff must prove its standing.

Bank of N.Y. Mellon v. Deas, NY Slip Op 07536 (2d Dep't December 29, 2021)

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CPLR 3216.

The court may dismiss a complaint for want of prosecution after the plaintiff is served with a written notice to serve and file a note of issue within 90 days, and stating that noncompliance will serve as the basis for a motion to dismiss. If the plaintiff fails to comply, the court may grant the motion unless the plaintiff shows a justifiable excuse for the delay and a meritorious cause of action. The statute is extremely forgiving, in that it does not require, but merely authorizes, the court to dismiss an action based on the plaintiff's unreasonable neglect to proceed.

Bank of Am., N.A. v. Nicolosi, NY Slip Op 07435 (2d Dep't December 29, 2021)

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Termination of an at-will employee.

New York does not recognize the tort of wrongful discharge of an at-will employee. Here, the claims for defamation and tortious interference with business relations are so closely related to the plaintiff's termination that they do not sound as distinct causes of action. Those claims are dismissed because a plaintiff cannot subvert the at-will rule by casting the cause of action as a separate tort. 

Winiarski v. Butler, NY Slip Op 07534 (1st Dep't December 28, 2021)

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The limitations period in a boundary dispute.

A boundary dispute over a party's rights to property is an action seeking to remove a cloud on title, which is an equitable remedy. The action is governed by the 10-year statute of limitations where the owner is out of possession. However, where, as here, the owner is in possession, the right of action to remove a cloud on title is a continuous one accruing from day to day, and this right is not barred by the statute of limitations until the cloud is continued without interruption for a length of time sufficient to effect a change of title as a matter of law.

Liberty Sq. Realty Corp. v. The Doe Fund, Inc., NY Slip Op 07082 (1st Dep't December 21, 2021)

Here is the decision.