Service of process and personal jurisdiction.

Supreme Court providently determined that the summons and complaint had been properly served on defendants, and, therefore, the court had personal jurisdiction over them. The affidavits of plaintiff's process servers constituted prima facie proof of proper service on the individual defendants, pursuant to CPLR 308[2]. Defendants' conclusory denials of receipt were insufficient to raise an issue of fact, warranting a traverse hearing. 

Franpo Realty, LLC v. Power Furniture Inc., NY Slip Op 01050 (February 23, 2023)

Here is the decision.

Sanctions for alleged spoliation.

Sanctions will not be imposed on a party that did not discard crucial evidence in an effort to frustrate discovery, and cannot be presumed to be responsible for the disappearance of the evidence.

Auguste v. Edlund Co., LLC, NY Slip Op 00837 (2d Dep't February 15, 2023)

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Appellate practice.

There is no appeal as of right where the judgment was entered subsequent to an Appellate Division order disposing of all the issues in the action, pursuant to CPLR 5701[a][1]. The remittance to Supreme Court does not alter the finality of the order where the remittance involved only the ministerial act of mathematical calculations without requiring any further fact-finding or exercise of judicial discretion. 

Summit Dev. Corp. v. Hudson Meridian Constr. Group LLC, NY Slip Op 00937 (1st Dep't February 16, 2023)

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A cause of action for quantum meruit.

The cause of action is dismissed, as there is a written contract that governs the subject matter in dispute. 

Tycoon Constr. Corp. v. New York City Hous. Auth., NY Slip Op 00938 (1st Dep't February 16, 2023)

Here is the decision.

Amending a complaint.

A motion for leave to amend will not be denied solely on the basis that the proposed pleading is not redlined, pursuant to CPLR 3025[b], where the proposed amendments are sufficiently described in the moving papers and easily discerned on review of the proposed pleading. 

Herrera v. Highgate Hotels, L.P., NY Slip Op 00729 (1st Dep't February 9, 2023)

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Recission or reformation of a contract based on mutual mistake.

Where there is no mistake about the agreement and the only mistake alleged is in the reduction of that agreement to writing, the scrivener error, no matter how it occurred, may be corrected.

Ralph Lauren Retail, Inc. v. 888 Madison LLC, NY Slip Op 00747 (1st Dep't February 9, 2023)

Here is the decision.

Claims against New York State.

Suits against the State are allowed only by the State's waiver of sovereign immunity and in derogation of the common law, and, therefore, statutory requirements must be strictly construed. Pursuant to Court of Claims Act § 11(b), the claim must specify (1) the nature of [the claim]; (2) the time when it arose; (3) the place where it arose; (4) the items of damage or injuries claimed to have been sustained; and (5) the total sum claimed. The pleading requirement is that the information be sufficiently definite to enable the State to investigate the claim promptly and to ascertain its liability, if any. Absolute exactness is not required, but the Court of Claims Act does not require the State to ferret out or assemble information that  § 11(b) obligates the claimant to allege.

Fenton v. State of New York, NY Slip Op 00650 (2d Dep't February 8, 2023)

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Appellate practice.

Plaintiffs' purported appeal of the Supreme Court's trial order dismissing their 42 USC §§ 1983 and 1988 claims must be dismissed for lack of jurisdiction, as it is taken from a non-appealable paper.

Small v. City of New York, NY Slip Op 00749 (1st Dep't February 9, 2023)

Here is the decision.

Court holiday.

The voluntary payment doctrine.

The doctrine bars recovery of payments that are made voluntarily and with full knowledge of the facts, and in the absence of fraud or mistake of material fact or law. There is a presumption that payments are voluntary, and a protest of payment must be memorialized in a contemporaneous writing.

ECI Fin. Corp. v. Resurrection Temple of Our Lord, Inc., NY Slip Op 00649 (2d Dep't February 8, 2023)

Here is the decision.

An order of preclusion.

For failure to comply with discovery, plaintiffs are precluded from offering evidence at trial. Plaintiffs' conclusory and unsubstantiated claim of law office failure does not excuse their default in failing to comply with discovery demands and numerous court orders for over two years.

T.W. v. Phillip Bus Serv., NY Slip Op 00750 (1st Dep't February 9, 2023)

Here is the decision.

Amending an answer.

The defendant filed her amended answer 20 months after filing the original answer, well beyond the period within which an amended pleading could have been served as of right, pursuant to CPLR 3025[a], without obtaining leave of court or the parties' stipulation. However, the plaintiff did not reject the amended answer. By retaining the amended pleading without objection, the plaintiff waived any objection as to untimeliness. The motion to strike the amended answer as untimely is denied.

Citibank, N.A. v. Saldarriaga, NY Slip Op 00647 (2d Dep't February 8, 2023)

Here is the decision.

Extending time to effect service.

In the interest of justice, plaintiff's motion for an extension of time is granted, pursuant to  CPLR 306-b. The interest of justice standard requires a careful judicial analysis of the factual setting of the case and a balancing of the competing interests as presented by the parties. In applying the standard, the court may consider diligence, or lack thereof, along with any other relevant factor, including expiration of the statute of limitations, the meritorious nature of the cause of action, the length of delay in service, the promptness of a plaintiff's request for the extension of time, and prejudice to defendant. No one factor is determinative. Here, the record demonstrates that the statute of limitations had not expired at the time of plaintiff's motion; plaintiff alleges potentially meritorious claims; there was a short delay in service; plaintiff promptly requested an extension; and defendant has not demonstrated that he would be prejudiced if the extension were granted.

Gjurashaj v. ABM Indus. Groups, LLC, NY Slip Op 00753 (1st Dep't February 9, 2023)

Here is the decision.

A premises liability case.

A defendant establishes its entitlement to summary judgment by showing that it neither created the allegedly dangerous or defective condition nor had actual or constructive notice of the condition. The defendant can make its prima facie showing by establishing that the plaintiff cannot identify the cause of his fall without engaging in speculation. However, a plaintiff's inability to testify as to how an accident occurred does not require dismissal where negligence and causation can be established with circumstantial evidence. To that end,  the record must render the other possible causes sufficiently remote to enable the trier of fact to reach a verdict based upon the logical inferences to be drawn from the evidence, and not upon speculation.

Buckstine v. Schor, NY Slip Op 00646 (2d Dep't February 8, 2023)

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Appellate practice.

Plaintiffs' failure to submit opposition papers to defendants' motion to dismiss does not render the order an unappealable order entered upon default, pursuant to CPLR 5511, as plaintiff appeared and orally opposed the motion during the final discovery conference.

Ganz v. Florman, NY Slip Op 00632 (1st Dep't February 7, 2023)

Here is the decision.

Court holiday.

Amending a pleading.

The motion court providently exercised its discretion in granting plaintiff's motion for leave to amend the complaint to correct defendant's name, pursuant to CPLR 305(c).  Defendant did not dispute proper service, except by asserting that a defense based on improper service was raised in the answer. However, that defense did not specify any way in which service was improper. Moreover, defendant did not move to dismiss the complaint for improper service within 60 days of asserting the defense, thereby waiving any objection based on service, pursuant to CPLR 3211[e].

Mariette v. Amber Ct. of Pelham Gardens LHCSA, LLC, NY Slip Op 00490 (1st Dep't February 2, 2023)

Here is the decision.

Post-note of issue discovery.

The substitution of defendant's counsel, which occurred after the note of issue was filed, does not constitute an unusual or unanticipated circumstance that would warrant post-note of issue discovery, pursuant to 22 NYCRR 202.21[d].  In any event, defendant waived its right to conduct a post-note of issue medical examination of plaintiff by failing to comply with the deadlines set by the court in the multiple orders issued before and after his examination before trial. 

Villanueva v. National Frgt., Inc., NY Slip Op 00507 (1st Dep't February 2, 2023)

Here is the decision.

Vacatur.

In order to vacate their default in opposing the defendant's motion pursuant to CPLR 3126 to strike the complaint and the plaintiffs' reply to the defendant's counterclaims, the plaintiffs were required to demonstrate a reasonable excuse for their default and a potentially meritorious opposition to the motion, pursuant to CPLR 5015[a][1]. The plaintiffs failed to demonstrate the requisite reasonable excuse. Contrary to the plaintiffs' contention that they were not aware that corporations must be represented by counsel pursuant to CPLR 321(a), the order appealed from specifically stated that counsel "is required for corporate entities." The record establishes that the order was served on the plaintiffs. Since the plaintiffs failed to proffer a reasonable excuse, the Appellate Division need not consider whether they demonstrated a potentially meritorious opposition to the defendant's motion.

Comprehensive Mental Assessment & Med. Care, P.C. v. Gusrae Kaplan Nusbaum, PLLC, NY Slip Op 00408 (2d Dep't February 1, 2023)

Here is the decision.

A motion to change venue.

Defendant's motion was denied as untimely. Defendant does not dispute that it was aware of the venue selection clause in the parties' agreement, and that it had the fully executed agreement in its possession when plaintiff commenced this action. Nonetheless, before making its motion, defendant engaged in discovery in Bronx County for more than a year, exchanging documentary evidence with plaintiff and appearing at numerous court conferences in that county. Defendant argues, to no effect, that it could not have moved for a change of venue earlier because it became aware of the relevant facts only after it deposed plaintiff. While depositions had not been held at the time of the motion, the depositions were scheduled and held shortly after defendant filed its motion. Further, defendant has never explained why it waited 14 months after the action's commencement before seeking a change of venue, pursuant to CPLR 511[a].

Williams v. Bronx Harbor Health Care Complex, Inc., NY Slip Op 00508 (1st Dep't February 2, 2023)

Here is the decision.

A negligence claim.

In order to make out a prima facie case, the plaintiff must demonstrate that the defendant owed a duty to the plaintiff; that the defendant breached that duty; and that the breach was a proximate cause of the plaintiff's injury. A duty may arise from negligent words or acts that induce reliance. There is no duty to come to the aid of a person in peril, whether the peril is medical or otherwise. However, a person who assumes a duty to act, even though gratuitously, may thereby become subject to the duty of acting carefully. The issue is whether the defendant's conduct put the plaintiff in a more vulnerable position than if the defendant had done nothing.

Bardio v. Rego II Borrower, LLC, NY Slip Op 00405 (2d Dep't February 1, 2023)

Here is the decision.

The issue of standing in a mortgage foreclosure action.

Where the defendant's answer raises the issue, the plaintiff must prove its standing as part of its prima facie showing on a motion for summary judgment. The plaintiff established, prima facie, that it had standing to foreclose by attaching a copy of the note endorsed in blank to the summons and complaint when the action was commenced. The plaintiff also produced a copy of the mortgage, a copy of the unpaid note, and evidence of default. In opposition, the defendants failed to raise a triable issue of fact. The defendants' contentions regarding the validity of various note and mortgage assignments are irrelevant to the issue of the plaintiff's standing. Where the note is attached to the complaint, it is unnecessary to give factual details of the delivery in order to establish that possession was obtained before a particular date. 

Bank of N.Y. Mellon v. Swift, NY Slip Op 00404 (2d Dep't February 1, 2023)

Here is the decision.

The doctrine of collateral estoppel.

Plaintiff's argument that the doctrine does not apply because the earlier action involved different claims is unavailing. The determination of an essential issue is binding in a subsequent action, even if it recurs in the context of a different claim.

Hong Hui Kuang v. Jie Wen Zhou, NY Slip Op 00397 (1st Dep't January 31, 2023)

Here is the decision.

Appellate practice.

The Appellate Division may consider at argument raised for the first time on appeal where it is a purely legal argument that appears on the face of the record and could not have been avoided had it been raised before the Supreme Court.

SyndiGate Media, Inc. v. Comtex News Network, Inc., NY Slip Op 00401 (1st Dep't January 31, 2023)

Here is the decision.

An alleged violation of the State Constitution.

There is no private right of action to recover damages for a violation of the New York State Constitution where the alleged wrong could be redressed by a common-law claim.

Berrio v. City of New York, NY Slip Op 00388 (1st Dep't January 31, 2023)

Here is the decision.

Prosecuting an action anonymously.

In determining whether to grant a plaintiff's motion to proceed anonymously, the court must use its discretion in balancing the plaintiff's privacy interest against the presumption in favor of open trials and against any potential prejudice to the defendant. Among the factors the court should consider are: (1) whether the plaintiff is challenging governmental activity or an individual's actions; (2) whether the action requires disclosure of information of the utmost intimacy; (3) whether identification would put the plaintiff or an innocent third-party at risk of physical or mental injury; (4) whether the defendant would be prejudiced by allowing the plaintiff to proceed anonymousl; and (5) the public interest in guaranteeing open access to proceedings without denying litigants access to the justice system.

Roe v. Harborfields Cent. Sch. Dist., NY Slip Op 00341 (2d Dep't January 25 2023)

Here is the decision.

The timing of a summary judgment motion.

The motion is not premature where the information at issue is within the non-movant's own knowledge.

Reyes v. Gropper, NY Slip Op 00383 (1st Dep't January 26, 2023)

Here is the decision.

A motion to renew and reargue.

The Appellate Division affirmed the denial of petitioner's motion to renew and reargue the petition to extend the time to file a spousal election pursuant to EPTL 5-1.1. The petitioner failed to point to new facts that would change the result, pursuant to CPLR 2221[e][2], [3], and he did not demonstrate that the interests of justice required renewal. As the court noted in the original motion, petitioner did not show reasonable cause for his failure to elect in a timely fashion, pursuant to EPTL 5-1.1-A[d][2]. Nothing he presented on renewal would change that result. The court properly concluded that petitioner was aware that he was required to make an election within a stated time period, and that despite his alleged infirmities and difficulties, he was able to challenge respondent's petition to probate a 2015 instrument that benefited decedent's siblings and to petition for the probate of a 2016 instrument that benefited himself. No appeal lies from denial of a motion for reargument.

Matter of Penick, NY Slip Op 00386 (1st Dep't January 26, 2023)

Here is the decision.