Objecting to discovery demands.

A party waives its right to object generally to the demands by failing to respond timely with the requisite particularity, pursuant to CPLR 3122[a][1].

Worldview Entertainment Holdings, Inc. v. Woodrow, NY Slip Op 02891 (1st Dep't April 28, 2022)

Here is the decision.

Confessions of judgment.

A person seeking to vacate a judgment entered upon the filing of an affidavit of confession of judgment must commence a separate plenary action.

Ace Funding Source, LLC v. St. Michael's Urgent Care of Hattiesburg, LLC, NY Slip Op 02773 (2d Dep't April 27, 2022)

Here is the decision.

Claims under the New York City Human Rights Law.

Claims under the New York City Human Rights Law must be analyzed separately and independently from claims under the federal and New York State Human Rights Laws, because of the uniquely broad and remedial purposes of the City's statute.

Russell v. New York Univ., NY Slip Op 02765 (1st Dep't April 26, 2022)

Here is the decision.

A Judiciary Law § 487 claim.

The claim is dismissed because the plaintiff does not allege the essential elements of a cause of action under the statute, namely, intentional deceit and damages proximately caused thereby. The plaintiff's conclusory allegations do not support a showing of the defendant's attorney's egregious conduct or a chronic and extreme pattern of behavior that caused damages to the plaintiff. The allegations do not amount to acts of deceit, as the attorney's statements, which consist mainly of simple advocacy, do not give rise to an inference that there was an intent to deceive.

Nehmadi v. Claude Castro & Assoc. PLLC, NY Slip Op 02629 (1st Dep't April 21, 2022)

Here is the decision.

Serving a notice of claim on a public corporation.

The time to serve the notice cannot be extended beyond the time limited for commencement of the action. Therefore, the court lacks authority to grant a motion for leave to serve a late notice of claim made more than one year and 90 days after the cause of action accrued, unless the statute of limitations has been tolled. CPLR 204(a) tolls the limitations period while a motion to serve a late notice of claim is pending. Where a court declines to sign an initial order to show cause for leave to serve a late notice of claim on procedural grounds, but a subsequent application is granted, the period of time in which the earlier application was pending is also excluded from the limitations period.

Ahmed v. New York City Health & Hosp. Corp., NY Slip Op 02521 (2d Dep't April 20, 2022)

Here is the decision.

Appellate practice.

No appeal lies from an order entered on default, pursuant to CPLR 5511. However, the denial of the father's request for an adjournment on a hearing on his petition is appealable because that request was the subject of the underlying dispute.

Matter of Darlene H. v. Abdus R., NY Slip Op 02639 (1st Dep't April 21, 2022)

Here is the decision.

CPLR 217[1].

The petition seeking to vacate a tax assessment and lien on petitioners' property, brought pursuant to CPLR article 78, is denied. The petition is untimely, as it was filed well over four months after the charges became final, and petitioners establish no basis for tolling the statute of limitations.

Matter of Wahid v. New York City Dept. of Fin., NY Slip Op 02647 (1st Dep't April 21, 2022)

Here is the decision.

Dismissed declaratory judgment claims.

A plaintiff may not seek a declaratory judgment when other remedies, such as monetary damages, are available.

Uber Tech., Inc. v. American Arbitration Assn., Inc., NY Slip Op 02503 (1st Dep't April 14, 2022)

Here is the decision.

Affidavits in support of summary judgment.

A conclusory affidavit or an affidavit by a person without personal knowledge of the facts stated therein does not establish the proponent's prima facie burden on a motion for summary judgment.

Beauvoir v. Samuel, NY Slip Op 02385 (2d Dep't April 13, 2022)

Here is the decision.

CPLR 3121(a).

The statute provides that where a party's physical condition is in controversy, "any party may serve notice on another party to submit to a physical . . . examination by a designated physician." There is no statutory restriction on the number of medical examinations. However, a defendant seeking an additional medical examination must demonstrate that it is necessary. A plaintiff may challenge a defendant's choice of an examining physician based upon a claim of bias against the plaintiff or plaintiff's counsel, or prejudice against the plaintiff if the physician is allowed to testify at trial.

Abdelfattah v. Trevicano, NY Slip Op 02383 (2d Dep't April 13, 2022)

Here is the decision.

Arbitrability.

Unless the parties clearly and unmistakably provide otherwise, the court, not the arbitrator, will decide whether a dispute is arbitrable. An arbitration clause's reference to the American Arbitration Association rules is not clear and unmistakable evidence of the parties' intent to have an arbitrator decide the issue of arbitrability. A party cannot be compelled to arbitrate matters not covered by the arbitration clause.

ALP, Inc. v. Moskowitz, NY Slip Op 02355 (1st Dep't April 12, 2022)

Here is the decision.

A failed claim of civil conspiracy.

The claim must be dismissed because there is no cause of action for conspiracy to commit a tort.

ALP, Inc. v. Moskowitz, NY Slip Op 02355 (1st Dep't April 12, 2022)

Here is the decision.

Post-judgment motions.

One year after the judgment of divorce ended the matrimonial action, the stipulation of settlement of a post-judgment motion was so-ordered. That stipulation was not part of the judgment, but was an independent contract which could not be incorporated into the judgment. Because the court did not retain the power to exercise supervisory control over the action, a plenary action is necessary to enforce the stipulation.

DeGiovine v. Kaufmann, NY Slip Op 02250 (2d Dep't April 6, 2022)

Here is the decision.

"The tomb is empty."

 

Triduum: Dies irae, dies illa.

Triduum: Stabat Mater dolorosa.

Triduum: "Quid est veritas?"

Spy Wednesday.

Summary judgment in a medical malpractice action.

Summary judgment is not appropriate where the parties submit conflicting medical expert opinions.

Buch v. Tenner, NY Slip Op 02247 (2d Dep't April 6, 2022)

Here is the decision.

An effective stipulation.

A stipulation is generally binding on parties that have legal capacity to negotiate, freely negotiate their agreement, and either reduce their stipulation to a properly subscribed writing or enter the stipulation orally, on the record, in open court.

Cenpark Realty, LLC v. Gurin, NY Slip Op 02335 (1st Dep't April 7, 2022)

Here is the decision.

Appellate practice.

The Appellate Division may consider new arguments raised for the first time on appeal, as long as the issue is determinative and the record on appeal is sufficient to permit its review.

Stile v. C-Air Customhouse Brokers-Forwards, Inc., NY Slip Op 02244 (1st Dep't April 5, 2022)

Here is the decision.

A dismissed claim for conversion.

In order to survive the motion to dismiss, the claim cannot be predicated on a mere breach of contract.

Stile v. C-Air Customhouse Brokers-Forwards, Inc., NY Slip Op 02244 (1st Dep't April 5, 2022)

Here is the decision.

Appellate practice.

No appeal lies from an order entered upon the default of the appealing party.

Hilton Wiener, LLC v. Anderson, NY Slip Op 02195 (1st Dep't March 31, 2022)

Here is the decision.

Leave to amend a bill of particulars.

Ordinarily leave is to be freely given in the absence of prejudice or surprise, but once discovery has been completed and the case has been certified as ready for trial, an amendment will not be permitted except upon a showing of special and extraordinary circumstances. Where the application for leave is made long after the action has been certified for trial, judicial discretion in allowing an amendment should be discrete, circumspect, prudent, and cautious. Moreover, where there has been an inordinate delay in seeking leave to amend to include a new injury, a plaintiff must establish a reasonable excuse for the delay and show that the proposed amendment has merit.

Blumenthal v. 1979 Marcus Ave. Assoc., LLC, NY Slip Op 02107 (2d Dep't March 30, 2022)

Here is the decision.

Defective service of process.

Because the process server's affidavit was filed more than 120 days after the service date, service was not timely completed under CPLR 306-b. As to the individual defendants, the affidavit of service does not list the names of the persons purportedly served and does not state that an additional copy of the papers was mailed to each of them, rendering incomplete the purported service via a person of suitable age and discretion, pursuant to CPLR 308[2]. As to the corporate and limited liability company defendants, the affidavit of service does not state that the receptionist who accepted service at the management office is an officer, authorized agent, or member of the defendant entities so as to constitute proper service under CPLR 311 or 311-a. Because the plaintiff is a party, her service of papers is prohibited under CPLR 2103(a).

Commissiong v. Mark Greenberg Real Estate Co. LLC, NY Slip Op 02192 (1st Dep't March 31, 2022)

Here is the decision.

CPLR 3215(c).

In order to avoid dismissal of the complaint as abandoned, a plaintiff must initiate proceedings for the entry of a judgment within one year of the defendant's default.

Bank of N.Y. v. Ilonzeh, NY Slip Op 02106 (2d Dep't March 30, 2022)

Here is the decision.

Waiver of the right to a jury trial.

The fact that the plaintiff is seeking money damages does not, in and of itself, guarantee entitlement to a jury trial. When the complaint either joins legal and equitable causes of action arising out of the same alleged wrong or seeks both legal and equitable relief, the plaintiff waives the right to a jury trial. Where the note of issue characterizes the action as sounding in equity, the plaintiff waives his right to a jury trial.

Aroch v. 391 Broadway LLC, NY Slip Op 02187 (1st Dep't March 31, 2022)

Here is the decision.

CPLR 3215(f).

Where a foreclosure complaint is not verified, an application for a default judgment must include an affidavit setting forth proof of the facts constituting the claim, the default, and the amount due.

799 Crown St., LLC v. Leblanc, NY Slip Op 09105 (2d Dep't March 30, 2022)

Here is the decision.

Injunctive relief.

An injunction will not issue in an action where the plaintiff can be fully compensated by a monetary award, because, as a matter of law, there will be no irreparable harm in the absence of injunctive relief.

Medallion Fin. Corp. v. Tsitiridis, NY Slip Op 02090 (1st Dep't March 29, 2022)

Here is the decision.

Affidavits of service.

A process server's affidavit of service constitutes prima facie evidence of proper service and, therefore, gives rise to a presumption of proper service. A mere conclusory denial of service is insufficient to rebut the presumption. In order to warrant a hearing, the denial of service must be substantiated by specific, detailed facts that contradict the affidavit of service. Here, the affidavit of service reflects that the defendant was personally served at his home and sets forth in detail a physical description of the defendant. The defendant attempted to rebut the presumption of proper service with an affidavit averring that he left a friend's house approximately 30 minutes prior to the alleged time of service, and that no one was at the defendant's home. The defendant failed to address the detailed physical description of him set forth in the affidavit of service. The Appellate Division affirmed the trial court's determination that the "defendant's assertion that there was not proper service is conclusory, self-serving and not credible." Thus, the trial court providently exercised its discretion in denying that branch of the defendant's motion which was pursuant to CPLR 5015(a)(4) to vacate the judgment of foreclosure and sale.

Wilmington Trust, NA v. Daddi, NY Slip Op 02040 (2d Dep't March 23, 2022)

Here is the decision.