Preclusion.

The trial court abused its discretion in precluding defendants from using a deposition given by plaintiff in a prior personal injury action. Plaintiff could not have been surprised by defendants' use of her deposition testimony, as she was obviously aware that she had given the deposition, and she had received a copy of the transcript, pursuant to CPLR 3101[e]. Plaintiff's prior deposition testimony was directly relevant to the injuries for which she sought damages in this action. In addition, plaintiff's counsel concedes that plaintiff would not have been prejudiced by defendants' failure to produce the documents at issue if she had been represented by the same counsel in this action and in the prior personal injury action. However, plaintiff was represented in this action by her counsel in the prior personal injury action on the date that the court's scheduling order required defendant to turn over any statements made by plaintiff. Therefore, defendants should not be penalized for not having done so.

Miller v. Camelot Communications Group, Inc., NY Slip Op 02091 (1st Dep't March 29, 2022)

Here is the decision.

CPLR 3213.

Summary judgment in lieu of complaint is limited to actions that are based upon instruments for the payment of money only.

Bank of Am., N.A. v. Filho, NY Slip Op 02055 (1st Dep't March 24, 2022)

Here is the decision.

CPLR 317.

A defaulting defendant that was served with a summons other than by personal delivery may be permitted to defend the action upon the court's finding that the defendant did not personally receive notice of the summons in time to defend and has a meritorious defense. Service on a limited liability company through the Secretary of State does not constitute personal delivery. The mere denial of receipt of the summons and complaint is not sufficient to establish lack of actual notice of the action in time to defend.

Andrews v. Wartburg Receiver, LLC, NY Slip Op 01980 (2d Dep't March 23, 2022)

Here is the decision.

Suits against the State.

 In order to timely commence the action, a claimant must meet the requirements of Court of Claims Act § 11, which states, "[t]he claim shall state the time when and place where such claim arose, the nature of same, and the items of damage or injuries claimed to have been sustained." Absolute exactitude is not required, but the notice of claim must be definite enough to enable the State to investigate the claim promptly and to ascertain its liability.

Mindley v. State of New York, NY Slip Op 02069 (1st Dep't March 13, 2022)

Here is the decision.

A motion to quash a subpoena.

Since the plaintiff is trying to enforce a judgment that was issued by Supreme Court, New York County, plaintiff properly issued subpoenas with restraining notices out of that court. A proceeding to vacate the restraining notices must be brought in that court. 

79 Madison LLC v. Ebrahimzadeh, NY Slip Op 02052 (1st Dep't March 24, 2022)

Here is the decision.

Property owners' liability.

Property owners and occupiers owe a duty of reasonable care to keep their premises safe. The scope of that duty is the foreseeability of the possible harm, which can be resolved by the court when only one inference can be drawn from undisputed facts. A landowner is not liable for injuries arising from a condition that is inherent or incidental to the nature of the property, and that could be reasonably anticipated by those using it.

Aloi v. Dubriske, NY Slip Op 01979 (2d Dep't March 23, 2022)

Here is the decision.

The business judgment rule.

Tbe rule bars judicial inquiry into corporate directors' actions taken in good faith and in the exercise of honest judgment in the lawful and legitimate furtherance of corporate purposes.  A complaint's conclusory allegations do not defeat the powerful presumption of the rule.

Max v. ALP, Inc., NY Slip Op 01969 (1st Dep't March 22, 2022)

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CPLR 3017[a].

The court may grant any type of relief, regardless of whether the relief is demanded, appropriate to the proof, and imposing such terms as may be just.

Rios v. Sendowski, NY Slip Op 01977 (1st Dep't March 22, 2022)

Here is the decision.

CPLR 3025(b).

The court denied plaintiff's request for leave to file a new amended complaint that would include additional allegations, as plaintiff did not submit a proposed second amended complaint as required by the statute.

New York Studios Inc. v. Steiner Digital Studios, NY Slip Op 01881 (1st Dep't March 17, 2022)

Here is the decision.

Appellate practice.

The right of direct appeal therefrom terminated with the entry of the order and judgment of foreclosure and sale in the action.

CIT Bank, N.A. v. Fernandez, NY Slip Op 01763 (2d Dep't March 16, 2022)

Here is the decision.

Alter ego liability.

Alter ego liability is not an independent cause of action in New York.

Perez v. Long Is. Concrete Inc., NY Slip Op 0887 (1st Dep't March 17, 2022)

Here is the decision.

CPLR 3024[b].

The defendant's motion to strike portions of the complaint is denied, as he has made no showing that the purportedly scandalous or prejudicial allegations are irrelevant.

Robinson v. Dinneen, NY Slip Op 01889 (1st Dep't March 17, 2022)

Here is the decision.

CPLR 3211(7).

On a defendant's motion to dismiss a complaint for failure to state a cause of action, the court must construe the complaint liberally, accept the allegations as true, and gve the plaintiff the benefit of every favorable inference. Whether the plaintiff can ultimately establish its allegations is not part of the calculus in deciding the motion. Unlike on a motion for summary judgment where the court searches the record and assesses the sufficiency of the parties' evidence, on a motion to dismiss the court merely examines the adequacy of the pleadings.

Ayers v. Bloomberg, L.P., NY Slip Op 01762 (2d Dep't March 16, 2022)

Here is the decision.

Expert opinions.

In this medical malpractice action, the expert is qualified to render an opinion notwithstanding that the expert is anonymous, pursuant to CPLR 3101[d][1][i], from out of state, pursuant to CPLR 2309[c], and does not purport to have worked at a New York ambulatory surgery center. 

Barahona v. Marcus, NY Slip Op 01731 (1st Dep't March 15, 2022)

Here is the decision.

The timeliness of motions for leave to renew.

Under certain circumstances, a court of original jurisdiction may entertain a motion for leave to renew a prior order or judgment based on newly discovered evidence, even after an appellate court has rendered a decision on that order or judgment. However, absent any of the circumstances set forth in CPLR 5015, which are inapplicable here, a motion for leave to renew based upon an alleged change in the law must be made prior to the entry of a final judgment, or before the time to appeal has fully expired. Here, the petition was no longer pending when petitioner made its motion, based on an alleged change in the law, and, therefore, the motion was untimely.

Matter of 160 E. 84th St. v. New York State Div. of Hous. & Community Renewal, NY Slip Op 01729 (1st Dep't March 15, 2022)

Here is the decision.

A cause of action for assault.

A menacing physical act is required to support the essential element of an apprehension of imminent harm. An allegation of finger-pointing and generalized yelling, without more, is insufficient. Here, the element is satisfied because the plaintiff alleges that the defendant, while screaming an epithet, encroached upon her.

Berg v. Chelsea Hotel Owner, LLC, NY Slip Op 01511 (1st Dep't March 10, 2022)

Here is the decision.

Standing in a mortgage foreclosure action.

The defendant executed a note, promising to repay a loan which was secured by a mortgage on real property. The mortgage was subsequently assigned to the plaintiff. The defendant answered the complaint, asserting several affirmative defenses, including that the plaintiff lacked standing. Contrary to the defendant's contention, by annexing to the complaint a copy of the note, endorsed to the plaintiff, the plaintiff established, prima facie, that it had physical possession of the note when it commenced the action, and, therefore, that it had standing to foreclose. Where the note is affixed to the complaint, it is unnecessary to give factual details of the delivery in order to establish that possession was obtained prior to a particular date.

Deutsche Bank Nat'l Trust Co. v. Blackman, NY Slip Op 01289 (2d Dep't March 2, 2022)

Here is the decision.

A dismissed civil conspiracy claim.

 In the absence of any actionable tort, the cause of action does not lie.

Platt v. Berkowitz, NY Slip Op 01405 (1st Dep't March 3, 2022)

Here is the decision.

CPLR 3216.

A court may not dismiss an action for failure to prosecute unless the statutory preconditions to dismissal are met, including that issue has been joined. Here, the conditional order of dismissal was improper, since none of the defendants had submitted an answer to the complaint, and, therefore, issue was never joined.

Central Mtge. Co.. v. Ango, NY Slip Op 01286 (2d Dep't March 2 2022)

Here is the decision.

CPLR 3025[b] and 3043[b].

The court providently denied the plaintiff's request to amend his supplemental bill of particulars to add a theory that his arrest resulted in a delay in his parole hearing. Plaintiff provided neither a factual basis for the proposed amendment nor an excuse for seeking leave to amend six months after filing the note of issue.

Reese v. City of New York, NY Slip Op 01406 (1st Dep't March 3, 2022)

Here is the decision.

CPLR 3211[e].

A defense of lack of standing is waived if not asserted in an answer or a pre-answer motion to dismiss.

Castaldi v. Syosset Cent. Sch. Dist., NY Slip Op 01285 (2d Dep't March 2, 2022)

Here is the decision.

CPLR 2104.

A stipulation of settlement may be evinced by multiple writings. However, where those writings, taken together, do not show agreement on all material terms, the alleged agreement is unenforceable.

Xhepexhiu v. Mitaj, NY Slip Op 04109 (1st Dep't March 2, 2022)

Here is the decision.

Summary judgment.

Summary judgment is inappropriate where, in order to decide the motion, the court must make a factual finding.

Aviation Distribs. Inc., Formed May 1945 v. Aviation Distribs. Inc., Formed 2014, NY Slip Op 01378 (1st Dep't March 3, 2022)

Here is the decision.

Contractual indemnification.

The right to contractual indemnification depends upon the specific language of the contract. A promise to indemnify will not be found unless it can be clearly implied from the language and purpose of the entire agreement and the surrounding circumstances. A party that moves for summary judgment dismissing a claim for contractual indemnification must make a prima facie showing that it was not contractually obligated to indemnify the party asserting the indemnification claim. This may be accomplished by showing that, under the circumstances, an indemnification clause in a contract between the parties either was not triggered or was otherwise inapplicable.

Burgos v. 14 E. 44 St., LLC, NY Slip Op 01284 (2d Dep't March 2, 2022)

Here is the decision.

A cause of action for breach of contract.

The essential elements of a breach of contract cause of action are the existence of a contract, the plaintiff's performance under the contract, the defendant's breach of that contract, and resulting damages. Here, the plaintiff was not a party to, or intended beneficiary of, the escrow agreement, and, therefore, cannot recover for its alleged breach.

Blank v. Petrosyants, NY Slip Op 01283 (2d Dep't March 2, 2022)

Here is the decision.

CPLR 7502[a][i].

Venue is proper in the county where at least one of the parties is doing business.

Matter of Finkelstein v. Finkelstein, NY Slip Op 01268 (1st Dep't March 1, 2022)

Here is the decision.

CPLR 3213.

The action for summary judgment in lieu of complaint was appropriately commenced because the instruments sued upon were for the payment of money only and required no reference to external documents to determine their clear and material terms.

YH Lex Estates LLC v. H F Z Capital Group LLC, NY Slip Op 01282 (1st Dep't March 1, 2022)

Here is the decision.

CPLR 5015[a][1].

A party seeking to vacate a default judgment must demonstrate both a reasonable excuse for the default and a meritorious defense. Here, the defendant failed to proffer a reasonable excuse for the default in responding to the plaintiff's motion for summary judgment. Although, on the motion's return date, the defendant's counsel was moving his office to a new location, the defendant gives no reason why counsel could not have responded to the motion prior to the move. Counsel took no action for three weeks after receiving notice of the motion. The Appellate Division notes that this default was not an isolated incident on the defendant's part.

Aetna Life Ins. Co. v. UTA of KJ Inc., NY Slip Op 01266 (1st Dep't March 1, 2022)

Here is the decision.

Appellate practice.

The Appellate Division declines to consider the defendant's argument that is improperly raised for the first time on appeal.

10E53 Owner LLC v. Bruderman Asset Mgt., NY Slip Op 01228 (1st Dep't February 24, 222)

Here is the decision.

CPLR 304.

Where a case is marked off the calendar and not restored within one year, there is a rebuttable presumption that it is abandoned. If the presumption of abandonment is not rebutted, the case will be dismissed.

Wells Fargo Bank, N.A. v. Yoo Mi Min, NY Slip Op 01265 (1st Dep't February 24, 2022)

Here is the decision.

Summary judgment in a legal malpractice action.

In order to succeed on the motion, the defendant must present evidence, in admissible form, establishing that at least one of the essential elements of the cause of action cannot be satisfied:  (1) the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession, and (2) the attorney's breach of this duty proximately caused the plaintiff to sustain actual and ascertainable damages. The causation element requires a showing that, but for the defendant's negligence, the injured party would have prevailed in the underlying action, or would not have incurred any damages. The defendant must affirmatively demonstrate the absence of one of the elements, rather than merely point out gaps in the plaintiff's proof.

Schmidt v. Burner, NY Slip Op 01191 (2d Dep't February 23, 2022)

Here is the decision.