Statute of frauds.

The statute of frauds, codified at General Obligations Law § 5-701[a][1], requires agreements to be in writing when, by their very terms, there is absolutely no possibility in fact and law of full performance within one year. Here, the alleged agreement between the parties, by its terms, could have been terminated or completed within one year, however unlikely that might have been. Therefore, the agreement does not fall within the ambit of the statute.

Basal Trading & Sons Ltd. v. M&G Diamonds, Inc., NY Slip Op 00369 (1st Dep't January 26, 2023)

Here is the decision.

A landlord's strict liability for dog bites.

In order to recover against a landlord for injuries caused by a tenant's dog on a theory of strict liability, the plaintiff must demonstrate that the landlord: (1) had notice that a dog was being harbored on the premises; (2) knew or should have known that the dog had vicious propensities; and (3) had sufficient control of the premises to allow the landlord to remove or confine the dog. Vicious propensities include the propensity to do any act that might endanger the safety of the persons and property of others. Evidence tending to prove that a dog has vicious propensities includes a prior attack, or the dog's tendency to growl, snap, or bare its teeth.

Quintanilla v. Schutt, NY Slip Op 00339 (2d Dep't January 25, 2023)

Here is the decision.

Forbearance agreements.

If the agreement is unambiguous, it will be enforced according to its terms. In the forbearance agreement at issue here, the defendant waived all defenses to foreclosure and consented to the entry of a judgment of foreclosure and sale.

3052 Brighton 1st St. II, LLC v. 3052 Brighton First, LLC, NY Slip Op 00197 (2d Dep't January 18, 2023)

Here is the decision.

The assignment of claims.

A corporation may assign its claims to an individual plaintiff in order to evade a CPLR 3211(a) motion to dismiss. However, here the purported assignment was ineffective because it expressly stated that it did not assign any claims to the plaintiff.

Matter of Nieblas-Love v. New York City Hous. Auth., NY Slip Op 00240 (1st Dep't January 19, 2023)

Here is the decision.

Limited discovery.

The Appellate Division affirmed the denial of the petition to quash an out-of-state subpoena pursuant to CPLR 3119(e), and the granting of the motion to compel compliance with the subpoena. The information sought had been judicially determined to be relevant to the matrimonial proceedings pending in Pennsylvania, and that determination is entitled to full faith and credit without further inquiry. Limited discovery of the petitioner's mental health records is not in clear violation of New York law, pursuant to Mental Hygiene Law § 33.13[c][1], where the relevance of the information sought has been established.  In any event, since the issue of whether the petitioner's right to privacy and doctor-patient privilege precludes limited discovery of his mental health records has been litigated in the Pennsylvania courts, he is collaterally estopped from relitigating the issue in New York.

Suresh v. Krishnamani, NY Slip Op 00247 (1st Dep't January 19, 2023)

Here is the decision.

Preliminary injunctions.

The decision to grant or deny a preliminary injunction lies in the sound discretion of the Supreme Court. While the purpose of the preliminary injunction is to preserve the status quo pending a trial, the remedy is considered a drastic one and it should be granted sparingly. In order to be entitled to a preliminary injunction, a movant must establish (1) a probability of success on the merits; (2) the danger of irreparable injury in the absence of injunctive relief; and (3) a balance of the equities in the movant's favor.

203-205 N8 Mb, LLC v. 203-205 W. 8th St., LLC, NY Slip Op 00196 (2d Dep't January 18, 2023)

Here is the decision.

CPLR 5015(a).

Pursuant to the statute, a court that rendered a judgment or order may relieve a party from it on the grounds of excusable default; newly discovered evidence; fraud, misrepresentation, or other misconduct of an adverse party; lack of jurisdiction to render the judgment or order; or reversal, modification, or vacatur of a prior judgment or order on which it is based. In addition to the grounds set forth in the statute, a court, in the exercise of its discretion, may vacate its own judgment or order for sufficient reason and in the interests of substantial justice.

203-205 W. 8th St., LLC v. 203-205 W. 8th St. Loft, LLC, NY Slip Op 00195 (2d Dep't January 18, 2023)

Here is the decision.

Vacating a default.

A defendant seeking to vacate a default in answering a complaint pursuant to CPLR 5015(a)(1) must show both a reasonable excuse for the default and the existence of a potentially meritorious defense.

203-205 W. 8th St., LLC v. 203-205 W. 8th St. Loft, LLC, NY Slip Op 00194 (2d Dep't January 18, 2023)

Here is the decision.

Article 78.

CPLR article 78 may not be used to challenge a determination that was made in a civil action or a criminal proceeding,  except for a finding of summary contempt, pursuant to CPLR 7801[2].

Matter of Borrero v. Banks, NY Slip Op 00231 (1st Dep't January 19, 2023)

Here is the decision.

Appellate practice.

In this rent overcharge action, the plaintiffs' motion on the coverage period issue purported to be for both renewal and reargument. However, the motion on this point argued only that the court had overlooked or misapprehended the applicable law. Thus, the motion was for reargument only, the denial of which is not appealable. 

Alekna v. 207-217 W. 110 Portfolio Owner LLC, NY Slip Op 00178 (1st Dep't January 17, 2023)

Here is the decision.

Motions for leave to renew.

In this action to foreclose a mortgage, the Supreme Court properly denied the borrower's cross motion for leave to renew that branch of his motion which was to dismiss the complaint as against him, since the borrower failed to demonstrate that there had been a change in the law that would have altered the prior determination, pursuant to CPLR 2221[e][2].

Citimortgage, Inc. v. Warsi, NY Slip Op 00074 (2d Dep't January 11, 2023)

Here is the decision.

Attorney's fees.

The award of reasonable attorney's fees is within the sound discretion of the Supreme Court based upon such factors as the time and labor required, the difficulty of the issues involved, the skill required to handle the matter, and the effectiveness of the legal work performed.

Boruch v. Rommi Realty, LLC, NY Slip Op 00073 (2d Dep't January 11, 2023)

Here is the decision.

CPLR 3121.

The commencement of a personal injury action affirmatively puts the plaintiff's physical and/or mental condition in controversy, and, pursuant to the statute, the defendant may require the plaintiff to submit to an independent medical examination.

Pettinato v. EQR-Rivertower, LLC, NY Slip Op 00068 (1st Dep't January 10, 2023)

Here is the decision.

Intervening acts and liability in personal injury actions.

When an intervening act is extraordinary under the circumstances, unforeseeable, or wholly independent or far removed from the defendant's conduct, the act may break the causal nexus as a matter of law. However, that is not the case when the intervening act is a natural and foreseeable consequence of a circumstance created by the defendant. Where the general risk and character of the injuries is foreseeable, the defendant's failure to anticipate the exact manner of the accident does not preclude liability as a matter of law.

Floricic v. City of New York, NY Slip Op 00055 (1st Dep't January 10, 2023)

Here is the decision.

A claim for intentional infliction of emotional distress.

In order to survive dismissal, the complaint must allege extreme and outrageous conduct that could be considered utterly intolerable in a civilized community.

Sakthivel v. Industrious Staffing Co., LLC, NY Slip Op 00044 (1st Dep't January 5, 2023)

Here is the decision.

Discovery in a personal injury action.

The court providently exercised its broad discretion in denying the plaintiff's request for further discovery. The plaintiff failed to cite any specific misconduct by the defendants' counsel at the deposition of the building superintendent, and the Appellate Division's review of the transcript does not support the claim of a persistent pattern of frivolous, repetitive, or meritless conduct by the defendants' counsel sufficient to support sanctions. The Appellate Division notes that some objections were not well founded, but that the witness was generally permitted to answer the questions. In addition, many of the questions to which there were objections were vague or improper in other respects. The relevancy of the pictures and video in the record on appeal is unclear since no foundation was provided. The apparent conflict between the affidavit of the defendant's CEO and the testimony of the building superintendent does not warrant re-opening discovery, since the plaintiff filed a note of issue and certificate of readiness certifying that discovery was complete. In any event, the plaintiff had the opportunity to question the superintendent regarding the existence of records concerning mopping activities and complaints of a wet condition on the stairs. The plaintiff also failed to demonstrate that the defendants' failure to produce agreements between them violated outstanding court orders in that there is nothing in the record to indicate that the agreements were the subject of discovery requests that were not complied with by defendants.

Flowers v. Cora Realty Co. LLC, NY Slip Op 00029 (1st Dep't January 5, 2023)

Here is the decision.

Appellate practice.

The Supreme Court denied defendant's motion to vacate the judgment of foreclosure, the foreclosure sale to a third party, and the subsequent sale to another third party on procedural grounds, and directed him to renew his motion by order to show cause. No appeal lies from the order, which merely directed defendant to resubmit his motion in proper form. 

AMK Capital Corp. v. CIFRE Realty Corp., NY Slip Op 00024 (1st Dep't January 5, 2023)

Here is the decision.

Acquiring titlte by adverse possession.

Where the parties are tenants in common, the period required by RPAPL 541 is 20 years of continuous and exclusive possession before a cotenant may acquire full title by adverse possession. Even absent an ouster of the co-tenant, the occupying co-tenant must demonstrate open and overt acts which unmistakably repudiate a non-possessory owner's right by one possessing the property. Here, plaintiff's acts of exclusive ownership fulfill that criterion. Plaintiff's claim of right arising from the administrator's deed, which was recorded in the New York City Register's Office on or about November 19, 1992, vested 20 years later, in 2012. Under that claim of right, plaintiff constructed an open and notorious wood deck and other observable improvements on the property, encumbered the property with a construction loan which he later satisfied, and leased portions of the mixed-use building to third parties solely in plaintiff's name. There was no acknowledgement, by plaintiff or anyone else, of any other interest in the property. This satisfies the hostility element, as there is a rebuttable presumption of hostility when possession is accompanied by the usual acts of ownership.

Golobe v. Altchek, NY Slip Op 00031 (1st Dep't January 5, 2023)

Here is the decision.

A claim for negligence and detrimental reliance.

Defendants had a building safety protocol in which no one would be sent up to an apartment without a front desk announcement followed by tenant consent. Plaintiff testified that she knew of and relied on that protocol in unlocking her door while waiting for the food delivery when the building's doorman assaulted her. The motion to dismiss is denied.

Sackas v. 240 E. 46th St. Condominium, NY Slip Op 00046 (1st Dep't January 5, 2023

Here is the decision.

Dismissal for neglect to prosecute.

CPLR 205(a) states, "If an action is timely commenced and is terminated in any other manner than by a voluntary discontinuance, a failure to obtain personal jurisdiction over the defendant, a dismissal of the complaint for neglect to prosecute the action, or a final judgment on the merits, the plaintiff . . . may commence a new action upon the same transaction or occurrence or series of transactions or occurrences within six months after the termination . . . . Where a dismissal is one for neglect to prosecute the action made pursuant to [CPLR 3216] or otherwise, the judge shall set forth on the record the specific conduct constituting the neglect, which conduct shall demonstrate a general pattern of delay." 

An action that was dismissed for neglect does not lose the benefit of CPLR 205(a)'s six-month recommencement period unless there is a general pattern of delay in proceeding with the litigation. If the prior dismissal was based on neglect of a lesser magnitude, the plaintiff can take advantage of CPLR 205(a)'s recommencement benefit. In addition, the'general pattern of delay must have been set forth in the record of the court in which the neglect-to-prosecute dismissal occurred.

U.S. Bank Natl. Assn. v. Fox, NY Slip Op 00046 (1st Dep't January 5, 2023

Here is the decision.

The standard on a motion to dismiss.

In considering the motion, the facts pleaded are presumed to be true and given every favorable inference. However, bare legal conclusions and factual claims that are either inherently incredible or flatly contradicted by documentary evidence are not entitled to such consideration. Here, the defendant-hospital cannot be liable under a malpractice theory, as there is no physician-patient relationship between it and the decedent.

Yovich v. Monefiore Nyack Hosp., NY Slip Op 00047 (1st Dep't January 5, 2023)

Here is the decision.

Article 78.

A petition to annul an administrative agency's determination will be denied where the determination is based on the agency's rational interpretation of its own regulations in its area of expertise.

Matter of 118 Duane LLC v. New York State Div. of Hous. & Community Renewal, NY Slip Op 00023 (1st Dep't January 5, 2023)

Here is the decision.

The defense of assumption of the risk.

Plaintiff is an experienced tennis coach who was injured while conducting a tennis lesson on a rubber floor area that was damaged with depressions and cracks. Defendant established that plaintiff assumed the risks associated with playing or coaching tennis on this rubber floor area, which was not a tennis court and had open and obvious defects. The defense of assumption of the risk does not require that a plaintiff  foresee the exact manner in which the injury occurs. All that is required is that the plaintiff be aware of the potential for injury of the mechanism from which the injury results. The fact that plaintiff was coaching and not playing is of no consequence. Defendant's motion to dismiss the complaint is granted.

Oetiker v. Hudson Riv. Park Trust, NY Slip Op 07509 (1st Dep't December 29, 2022)

Here is the decision.

Appellate practice.

No appeal lies from the denial of a motion for reargument. In any event, the underlying order granting defendant's motion to dismiss pursuant to CPLR 3211(a)(2) and (7) was entered upon plaintiff's default. Therefore, the proper remedy was for plaintiff to move under CPLR 5501(a) to vacate the default, not to move for leave to reargue.

Aaron v. Kennedy, NY Slip Op 07493 (1st Dep't December 29, 2022)

Here is the decision.

A claim for promissory estoppel.

A plaintiff cannot recover under a cause of action alleging promissory estoppel based on a contract. Here, though, the defendants dispute that there is a contract.  Therefore, at this stage of the litigation, the defendants' basis for dismissal of the promissory estoppel cause of action fails.

Arnone v. Burke, NY Slip Op 07427 (2d Dep't December 28, 2022)

Here is the decision.

A declaratory judgment action.

On a motion to dismiss for failure to state a cause of action, the only question is whether the plaintiff presents a case that invokes the court's jurisdiction to make a declaratory judgment, and not whether the plaintiff is entitled to a favorable declaration. 

General Ins. v. Piquion, NY Slip Op 07500 (1st Dep't December 29, 2022)

Here is the decision.

Tortious interference with contract.

The elements of the cause of action are (1) the existence of a valid contract between the plaintiff and a third party; (2) the defendant's knowledge of that contract; (3)  the defendant's intentional procurement of the third party's breach of that contract, without justification; and (4) damages to the plaintiff.

Arnone v. Burke, NY Slip Op 07427 (2d Dep't December 28, 2022)

Here is the decision.

An easement by prescription.

In order to acquire the easement, it must be shown that its use was hostile, open and notorious, and continuous and uninterrupted for the prescriptive period of 10 years. Where there is clear and convincing evidence that use of the easement was open, notorious, continuous, and undisputed, it is presumed that the use was hostile. The burden then shifts to the opponent of the allegedly prescriptive easement to show that the use was permissive. Permission may be inferred where the relationship between the dominant and servient estates evinced neighborly cooperation and accommodation.

Aboulissan v. Kingsland 79, LLC, NY Slip Op 07426 (2d Dep't December 28, 2022)

Here is the decision.

A claim for aiding and abetting a breach of fiduciary duty.

An essential element of the cause of action is actual knowledge of the breach. To the extent that the complaint alleges constructive knowledge, it is insufficient and will be dismissed.

Continental Indus. Group, Inc. v .Ustuntas, NY Slip Op 07294 (1st Dep't December 22, 2022)

Here is the decision.

Court holiday.