Affidavits of service.

A process server's affidavit of service establishes a prima facie case as to the method of service, and, therefore, gives rise to a presumption of proper service. Bare and unsubstantiated denials are insufficient to rebut the presumption of service, but a sworn denial of service containing specific facts necessitates an evidentiary hearing. Here, the defendant's claimed discrepancy between her hair color and the description of hair color in the affidavit of service was too minor and insufficiently substantiated to warrant a hearing.

Carver Fed. Sav. Bank v. Forde, NY Slip Op 01497 (2d Dep't March 22, 2023)

Here is the decision.

Untimely motion papers.

Pursuant to CPLR 2214[c], the motion court may exercise its discretion in declining to consider a defendant's untimely reply papers.

Wise v. 1614 Madison Partners, LLC, NY Slip Op 01495 (1st Dep't March 21, 2023)

Here is the decision.

Stipulations of settlement.

Stipulations of settlement between parties are binding contracts enforceable by the court, and, as such, they are favored and not lightly cast aside, especially where, as here, the party seeking to set aside the stipulation was represented by counsel. 

Cassignol v. Village of Hempstead, NY Slip Op 01277 (2d Dep't March 15, 2023)

Here is the decision.

Subsequent contracts.

A subsequent contract regarding the same subject matter will supersede a prior contract, but only with regard to that same subject matter.

Pope Contr., Inc. v. New York City Hous. Auth., NY Slip Op 01365 (1st Dep't March 16, 2023)

Here is the decision.

Dismissal of a claim of medical malpractice.

On a motion for summary judgment dismissing a cause of action alleging medical malpractice, the defendant bears the initial burden of establishing that there was no departure from good and accepted medical practice, or that any alleged departure did not proximately cause the plaintiff's injuries. If the defendant makes this showing, the burden shifts to the plaintiff to raise a triable issue of fact as to those elements on which the defendant met its prima facie burden.  Summary judgment is not appropriate in a medical malpractice action where the parties put forward conflicting medical expert opinions. However, expert opinions that are conclusory, speculative, or unsupported by the record are insufficient to raise triable issues of fact.

Gargano v. Langman, NY Slip Op 01279 (2d Dep't March 15, 2023)

Here is the decision.

Injunctive relief.

In order to establish the right to a preliminary injunction, the movant must demonstrate: (1) the likelihood of success on the merits; (2) irreparable injury unless the injunction issues; and (3) that the equities balance in the movant's favor, pursuant to CPLR 6301. The decision whether to grant or deny a preliminary injunction rests in the sound discretion of the court hearing the motion. In the absence of unusual or compelling circumstances, appellate courts are reluctant to disturb the motion court's determination.

Benaim v. S2 Corona, LLC, NY Slip Op 01274 (2d Dep't March 15, 2023)

Here is the decision.

Negligence claims.

A defendant moving for summary judgment in a negligence action has the burden of establishing, prima facie, that it was not at fault in the happening of the accident. It is well-settled that there can be more than one proximate cause of an accident, and the issue of proximate cause is for the trier of fact to decide. 

Moe-Salley v. Highbridge House Ogden, LLC, NY Slip Op 01187 (2d Dep't March 8, 2023

Here is the decision.

Appellate practice.

No appeal lies from an order denying reargument.

U.S. Bank N.A. v. Zaccagnino, NY Slip Op 01208 (2d Dep't March 8, 2023)

Here is the decision.

Appellate practice.

There is no appeal as of right from the portion of the order sua sponte dismissing the complaint, pursuant to CPLR 5701[a][2]. However, the Appellate Division may deem the notice of appeal from that branch of the order a motion for leave to appeal, and grant leave, pursuant to CPLR 5701[c].

D'Arata v. NY Post, NY Slip Op 01232 (1st Dep't March 9, 2023)

Here is the decision.

Summary judgment motions and discovery.

There should be a reasonable opportunity to conduct discovery before the motion is decided. The party opposing the motion is entitled to further discovery when it appears that there may be facts supporting its position but those facts cannot yet be stated.

Cruz v. Fanoush, NY Slip Op 01178 (2d Dep't March 8, 2023)

Here is the decision.

A motion to vacate the note of issue.

Defendant's motion is denied since there was no misstatement of material fact in the certificate of readiness, which correctly stated that discovery was complete, and defendants failed to identify any outstanding discovery or to explain their delays in prosecuting the third-party action. Defendants' assertion that discovery might be necessary because one of the third-party defendants had indicated it would appear after defaulting does not warrant vacatur and a further delay in resolving plaintiff's claim. 

Tatis v. Triborough Constr. Servs., Inc., NY Slip Op 01247 (1st Dep't March 9, 2023)

Here is the decision.

Liability on a contract to provide legal services.

The parties entered into a written engagement agreement pursuant to which plaintiff agreed to provide legal services in connection with the proposed sale of defendant's business in exchange for the payment of plaintiff's hourly rates. Plaintiff would bill defendant upon the earlier of either defendant's abandoning the proposed sale or the closing of the proposed sale. The engagement letter permitted defendant to discharge plaintiff for any reason and at any time, upon reasonable notice. In the event of discharge, plaintiff would be entitled to all unpaid fees, costs, out-of-pocket expenses, and disbursements, within 30 days of being discharged. Plaintiff was also permitted to withdraw from representation of defendant under certain circumstances. In the event of withdrawal, defendant was to immediately pay all unpaid fees, costs, out-of-pocket expenses, and disbursements to plaintiff. The parties entered into an amended engagement agreement in which plaintiff agreed to defer payment for additional work until the end of the proposed sale engagement. The amended engagement agreement was substantially identical to the engagement letter. Plaintiff's retention ended acrimoniously.

The court rejects defendant's argument that it was entitled to partial summary judgment limiting plaintiff's recoverable fees to the ratable proportion of the work it completed based on plaintiff's initial fee estimate provided at the start of the parties' business relationship. The record is clear that the parties never agreed to a cap on fees and defendant does not eliminate any issues of fact concerning the amount of the fee estimate or explain what the pro rata share of fees would be.

Plaintiff is granted summary judgment as to liability since it established that there was a valid contract for legal services; that, pursuant to the contract, plaintiff performed legal work for defendant's benefit; and that, following termination of plaintiff's services, defendant has not paid plaintiff. The court defers for trial the issue of the amount of damages and the issue of whether the firm impermissibly charged an excessive fee.

White & Case LLP v. Shipman Assoc, LLC, NY Slip Op 01249 (1st Dep't March 9, 2023)

Here is the decision.

Motions to dismiss and summary judgment.

On a motion to dismiss made under CPLR 3211(a) or (b)], either party may submit any evidence that could properly be considered on a motion for summary judgment, regardless of whether issue has been joined. If a court intends to treat the motion as one for summary judgment, it must give the parties notice of its intention to do so, pursuant to CPLR 3211(c).

Champion Mtge. Co. v. Antoine, NY Slip Op 01176 (2d Dep't March 8, 2023)

Here is the decision.

Intentional infliction of emotional distress.

Under New York law, the cause of action has four elements: (i) extreme and outrageous conduct; (ii) intent to cause, or disregard of a substantial probability of causing, severe emotional distress; (iii) a causal connection between the conduct and injury; and (iv) severe emotional distress.

Brown v. New York Design Ctr., Inc., NY Slip Op 01228 (1st Dep't March 9, 2023)

Here is the decision.

Leave to amend.

Leave to amend a pleading is freely given in the absence of prejudice or surprise to the opposing party, pursuant to CPLR 3025[b]. However, the motion will be denied where the proposed amendment is palpably insufficient or patently devoid of merit.  Here, the plaintiffs' motion for leave to amend the complaint to add a claim for punitive damages is denied. The allegations are palpably insufficient to demonstrate that the defendant's conduct evinced a high degree of moral culpability or constituted willful or wanton negligence or recklessness. 

Buccigrossi v. Glatman, NY Slip Op 01174 (2d Dep't March 8, 2023)

Here is the decision.

Withdrawal from representation.

An attorney may withdraw from representing a client for good and sufficient cause. The attorney may be permitted to withdraw where the client refuses to pay reasonable legal fees. The decision to grant or deny permission for counsel to withdraw lies within the discretion of the trial court, and the court's decision will not be overturned absent a showing of an improvident exercise of discretion.

Bank of Am., N.A. v. Chadha, NY Slip Op 01173 (2d Dep't March 8, 2023)

Here is the decision.

Federal court decisions as precedent.

It is well-settled that lower federal court decisions are not binding on New York state courts. 

Teshabaeva v. Family Home Care Servs. of Brooklyn & Queens, Inc., NY Slip Op 01170 (1st Dep't March 7, 2023)

Here is the decision.

Appellate practice.

The Appellate Division may decline to consider an argument which is raised for the first time in a reply brief.

Indymac, F.S.B. v. Baroi, NY Slip Op 01142 (1st Dep't March 2, 2023)

Here is the decision.

A motion to renew.

Defendant's motion is granted in the interest of justice. In its moving papers, defendant does not advance a new legal theory, but, instead, presents new evidence from plaintiff's employer that plaintiff's accident occurred at a different site. Defendant also presents a reasonable excuse for its delay in obtaining the new evidence, namely, that its investigation into the accident was stymied by third-party defendant's refusal to comply with discovery and plaintiff's employer's refusal to comply with requests for information.

Sanchez v. Colorado Assoc., LLC, NY Slip Op 01151 (1st Dep't March 2 2023)

Here is the decision.

Leave to amend a pleading.

Motions pursuant to CPLR 3025(b) for leave to amend a pleading are addressed to the sound discretion of the court. Leave should be granted where the amendment is neither palpably insufficient nor patently devoid of merit, and any claimed delay in seeking the amendment does not prejudice or surprise the opposing party. However, when leave is sought on the eve of trial, judicial discretion should be exercised sparingly. In exercising its discretion, the court should consider how long the amending party was aware of the facts upon which the motion is predicated, whether a reasonable excuse for the delay is offered, and whether any prejudice results therefrom.

Rice-Tamsen v. Tamsen, NY Slip Op 01110 (2d Dep't March 1, 2023)

Here is the decision.

A claim for failure to procure insurance.

A plaintiff meets its prima facie burden for summary judgment by establishing that the defendant did not comply with a contract provision requiring the procurement of insurance. The movant may make that showing by submitting copies of the contract requiring the procurement of insurance and of correspondence from the insurer of the party against whom summary judgment is sought indicating that the moving party was not named as an insured on any policies issued.

Dorset v. 285 Madison Avenue Owner LLC, NY Slip Op 01134 (1st Dep't March 2, 2023)

Here is the decision.

Joinder of parties.

Pursuant to CPLR 1003, "[p]arties may be added at any stage of [an] action by leave of court or by stipulation of all parties who have appeared." Pursuant to CPLR 3025(b),  a party may amend or supplement its pleading by setting forth additional or subsequent transactions or occurrences, at any time by leave of court or by stipulation of all parties. A plaintiff's failure to comply with CPLR 1003 when attempting to add a defendant is a jurisdictional defect, and an amended complaint that is not filed in accordance with CPLR 1003 and 3025 is a legal nullity, warranting dismissal.

Bodkin v. 112 Automative Ctr., Inc., NY Slip 01074 (2d Dep't March 1, 2023)

Here is the decision.

A void deed.

The complaint is dismissed and plaintiff's interest in the property is invalid. There is no evidence, on the face of the deed or otherwise, that the transferor had authority to transfer title to the property, and a corporate acknowledgement is insufficient. A deed based on forgery or obtained by false pretenses is void ab initio, as it is legally impossible for anyone to become a bona fide purchaser of real estate, or a purchaser at all, from one who never had any title. 

Watson v. Lampkin, NY Slip Op 01154 (1st Dep't March 2, 2023)

Here is the decision.

Witness depositions.

Pursuant to CPLR 3117(a)(3)(iii), a witness's deposition may be read at trial if the court determines that the witness is unable to attend or testify because of age, sickness, infirmity, or imprisonment. In exercising its discretion under the statute, the trial court may not act arbitrarily or deprive a litigant of a full opportunity to present its case.

244 Linwood One, LLC v. Tio Deli Grocery Corp., NY Slip Op 01072 (2d Dep't March 1, 2023)

Here is the decision.

Motions for summary judgment.

Tbe motion must be supported by an affidavit by a person having knowledge of the facts, pursuant to CPLR § 3212[b]. An affidavit that is not based on the affiant's personal knowledge may serve to authenticate a document for its admissibility as a business record, as long as the affiant demonstrates sufficient personal knowledge of the document in question, and the affidavit sufficiently establishes that the document falls within the business record exception to the hearsay rule.

Muslar v. Hall, NY Slip Op 01063 (1st Dep't February 28, 2023)

Here is the decision.

Venue.

Defendants' motion to change venue from Bronx County to Westchester County is denied as untimely made. Defendants have a reasonable excuse for their failure to make a timely demand to change venue. They learned of plaintiff's Westchester address on April 5, 2022, when they received plaintiff's medical authorizations and a copy of the Aided report, and made a demand to change venue the day the next day.after, on April 6, 2022. However, pursuant to CPLR 511(b), defendants had until April 21, 2022, 15 days after service of their demand, to make the motion. Defendants' motion is untimely, as it was made on April 26, 2022, 20 days after the demand. Defendants offered no explanation for their failure to move within the statutory time-limits.

Gomez v. Cypser, NY Slip Op 01060 (1st Dep't February 28, 2023)

Here is the decision.

Default judgments.

A plaintiff seeking leave to enter a default judgment under CPLR 3215 must file proof of: (1) service of the summons and the complaint; (2) the facts constituting the claim; and (3) the defendant's default. The defendant is deemed to have admitted all factual allegations contained in the complaint, and all reasonable inferences that flow from those allegations. However, the court does not have a mandatory or ministerial duty to grant a motion for leave to enter a default judgment, and must exercise its discretion in determining whether the movant has met its burden of stating a viable cause of action.

Alleyne v. Rutland Dev. Group, Inc. NY Slip Op 00976 (2d Dep't February 22, 2023)

Here is the decision.

Appellate practice.

Plaintiffs have already appealed an order determining that the law firm representing them was disqualified under Rules of Professional Conduct (22 NYCRR 1200.0) rule 3.7(b), as a partner was to be called as a material witness. The Appellate Division affirmed the order, and both the Appellate Division and the Court of Appeals denied leave to appeal. Since there has been no new evidence discovered after the prior order or any change in the applicable law, resolution of the issue on the prior appeal constitutes the law of the case and forecloses reexamination of the issue. Since the law firm was disqualified from representing plaintiffs in any capacity, it does not have standing to bring the appeal. The appeal must be dismissed.

Applehole v. Wyeth Ayerst Labs., NY Slip Op 01059 (1st Dep't February 28, 2023)

Here is the decision.

Dismissal for another action pending.

The tortious interference and fraudulent inducement claims were dismissed on the ground of another action pending, pursuant to CPLR 3211(a)(4). New York follows the first-in-time rule, and as those claims were initially brought in Delaware and the Delaware court took jurisdiction over them, the Delaware court must decide the claims. 

Resort Group, Inc. v. Cerberus Capital Mgt., L.P., NY Slip Op 01071 (1st Dep't February 28, 2023)

Here is the decision.

Motions to dismiss.

On a motion to dismiss the complaint for failure to state a cause of action, pursuant to CPLR 3211(a)(7), the court must afford the pleading a liberal construction, accept all facts as alleged in the pleading to be true, give the plaintiff the benefit of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal theory. Where evidentiary material is submitted and the motion is not converted into one for summary judgment, the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one. Unless it is shown that a material fact as claimed by the plaintiff to be one is not a fact and unless it can be said that no there is no significant dispute regarding it, the motion should be denied. If the motion is based on documentary evidence, pursuant to CPLR 3211(a)(1), it may be granted only where the documentary evidence utterly refutes the plaintiff's factual allegations, conclusively establishing a defense as a matter of law.

Alleyne v. Rutland Dev. Group, Inc., NY Slip Op 00975 (2d Dep't February 22, 2023

Here is the decision.

Summary judgment in a mortgage foreclosure action.

In order to establish prima facie entitlement to judgment as a matter of law, the plaintiff must produce the mortgage, the unpaid note, and evidence of the default. Where the answer puts the plaintiff's standing in issue, the plaintiff must prove its standing as part of its prima facie showing. A plaintiff has standing to maintain a mortgage foreclosure action where it is the holder or assignee of the underlying note at the time the action is commenced. The plaintiff meets this burden with proof of either a written assignment of the underlying note or the physical delivery of the note endorsed in blank or specially to it prior to commencing the suit. 

31st St. Funding, LLC v. Majostan Corp., NY Slip Op 00974 (2d Dep't February 22, 2023)

Here is the decision.