CPLR 3215(c).

A defendant's active participation in the litigation may constitute a waiver of the right to seek dismissal. Here, the defendant did not move to dismiss the complaint until nearly three years after his attorney filed a notice of appearance.  In addition, the defendant never sought to vacate his default in answering the complaint, and, therefore, he was precluded from raising his proffered defenses of the plaintiff's failure to comply with RPAPL 1304. 

Bank of Am., N.A. v. Carapella, NY Slip Op 03844 (2d Dep't July 19, 2023)

Here is the decision.

Law of the case.

On plaintiff's summary judgment motion, the law of the case doctrine does not apply to a prior order in the action because that order was rendered on a motion to dismiss pursuant to CPLR 3211, which applies standards different from those on summary judgment. 

938 St. Nicholas Ave. Lender LLC v. 936-938 Cliffcrest Hous. Dev. Fund Corp., NY Slip Op 03885 (1st Dep't July 20, 2023)

Here is the decision.

Setting aside a verdict in the interest of justice.

A motion pursuant to CPLR 4404(a) to set aside a verdict and for a new trial in the interest of justice encompasses errors in the trial court's rulings on the admissibility of evidence, mistakes in the charge, misconduct, newly discovered evidence, and surprise. Here, the Supreme Court providently exercised its discretion in denying the plaintiff's motion to preclude the introduction of a certain photograph at trial on the basis that it was not timely disclosed. Precluding evidence that has been belatedly exchanged is appropriate where the offending party's violation was willful and contumacious, a finding that can be based upon the party's repeated failure to comply with discovery without a reasonable excuse. Plaintiff made no such showing.

Heller v. City of New York, NY Slip Op 03771 (2d Dep't July 12, 2023)

Here is the decision.

Lack of personal jurisdiction.

The defendant did not assert the lack of personal jurisdiction in the answer, and thereby waived this defense under CPLR 3211(e). However, the defense can be interposed in an answer that is amended by leave of court pursuant to CPLR 3025(b).

Deutsche Bank Natl. Trust Co. v. Groder, NY Slip Op 03768 (2d Dep't July 12, 2023)

Here is the decision.

Dismissal under CPLR 3216.

Where the court issues a written demand to resume prosecution of the case, the court must "set forth the specific conduct constituting the neglect, which conduct shall demonstrate a general pattern of delay in proceeding with the litigation, " pursuant to CPLR 3216[b][3]. Where the court seeks sua sponte dismissal, it must give the parties notice and an opportunity to be heard, pursuant to CPLR 3216[a].

Designer Limousine, Inc. v. Authority Transp., Inc., NY Slip Op 03767 (2d Dep't July 12, 2023)

Here is the decision.

Sanctions for frivolous conduct.

Pursuant to 22 NYCRR 130-1.1, a court, in its discretion, after a reasonable opportunity to be heard, may impose sanctions against a party or the attorney for a party, or both, for frivolous conduct. Conduct is frivolous if: (1) it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification, or reversal of existing law; (2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or (3) it asserts material factual statements that are false.

Crudele v. Price, NY Slip Op 03766 (2d Dep't July 12, 2023)

Here is the decision.

Real estate brokerage commissions.

In order to recover a commission, the broker must establish: (1) that it is duly licensed; (2) that it had a contract, either express or implied, with the party to be charged with paying the commission; and (3) that it was the procuring cause of the transaction.

Commerce One Realty, Inc. v. 780 Humboldt, LLC, NY Slip Op 03763 (2d Dep't July 12, 2023)

Here is the decision.

Law office failure.

Law office failure may constitute a reasonable excuse for a party's default if the claim of the failure is supported by a credible and detailed explanation. However, conclusory and unsubstantiated allegations of law office failure are insufficient to constitute a reasonable excuse. Neither do general allegations of neglect suffice. 

Columbus v. Kourtei, NY Slip Op 03762 (2d Dep't July 12, 2023)

Here is the decision.

Summary judgment.

A defendant cannot prevail on a summary judgment motion merely by pointing to gaps in the plaintiff's proof.

Powell v. City of New York, NY Slip Op 03843 (1st Dep't July 13, 2023)

Here is the decision.

Aiding and abetting and conspiracy claims.

On a motion to dismiss, the plaintiff's claims will stand or fall with the underlying tort. 

Iberdrola Energy Projects v. MUFG Union Bank, N.A., NY Slip Op 03841 (1st Dep't July 13, 2023)

Here is the decision.

Disqualification of an attorney.

The disqualification of an attorney is a matter that rests within the sound discretion of the trial court. Pursuant to Rule 3.7(a) of the Rules of Professional Conduct (22 NYCRR 1200.0), disqualification is warranted where it is likely that the attorney will be a witness on a significant issue of fact. Disqualification also is warranted in order to avoid the appearance of impropriety.

Alnoukari v. Nokari, NY Slip Op 03760 (2d Dep't July 12, 2023)

Here is the decision.

Legal malpractice.

In order to state a cause of action to recover damages for legal malpractice, the plaintiff must allege: (1) that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession; and (2) that the attorney's breach of the duty proximately caused the plaintiff actual and ascertainable damages. In order to establish causation, the plaintiff must show that he would have prevailed in the underlying action or would not have incurred any damages, but for the lawyer's negligence. Conclusory allegations of damages or injuries predicated on speculation cannot suffice for a malpractice action, and dismissal is warranted where the allegations in the complaint are merely conclusory and speculative. 

The plaintiff commenced this action to recover damages arising from the defendants' prior legal representation in connection with a purchase agreement of the plaintiff's restaurant business. The defendants moved pursuant to CPLR 3211(a) to dismiss the complaint on the ground that the complaint failed to state a cause of action. The motion is granted because the plaintiff's allegation that the restaurant would have had increased profits but for the defendants' alleged malpractice is conclusory and speculative.

126 Main St., LLC v. Kriegsman, NY Slip Op 03758 (2d Dep't July 13, 2023)

Here is the decision.

Contract law.

The existence of a valid and enforceable written contract governing a particular subject matter ordinarily precludes recovery in quasi contract for events arising out of the same subject matter.  It makes no difference that the defendants are not parties to the contracts governing the dispute, as a nonsignatory to a contract cannot be held liable where there is an express contract covering the same subject matter.

Iberdrola Energy Projects v. MUFG Union Bank, N.A., NY Slip Op 03841 (1st Dep't July 13, 2023)

Here is the decision.

Summary judgment on the issue of liability.

 A plaintiff in a negligence action moving for summary judgment on the issue of liability must establish, prima facie, that the defendant breached a duty owed to the plaintiff and that the defendant's negligence was a proximate cause of the alleged injuries. The plaintiff is not required to show the lack of comparative fault. However], the issue of a plaintiff's comparative negligence may be decided in the context of a plaintiff's motion for summary judgment on the issue of liability where, as here, the plaintiff also seeks dismissal of the defendant's affirmative defense alleging comparative negligence" (Ramirez v Wangdu, 195 AD3d 646, 646; see Sebagh v Capital Fitness, Inc., 202 AD3d 853; Poon v Nisanov, 162 AD3d at 808). A motion for summary judgment "shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party" (CPLR 3212[b]; see Alvarez v Prospect Hosp., 68 NY2d 320, 324). On a motion for summary judgment, the court must view the evidence in the light most favorable to the nonmoving party (see Sage v Taylor, 195 AD3d 971; Gobin v Delgado, 142 AD3d 1134, 1135).

There can be more than one proximate cause of an accident (see Cox v Nunez, 23 AD3d 427), and the issue of comparative negligence is generally a question for the jury to decide (see Wiessner v Phillips, 201 AD3d 776, 777; Calderon v Cruzate, 175 AD3d 644, 648). However, "liability may not be imposed upon a party who merely furnishes the condition or occasion for the occurrence of the event but is not one of its causes" (Ely v Pierce, 302 AD2d 489, 489; see Federico v Defoe Corp., 138 AD3d 682, 684; Castillo v Amjack Leasing Corp., 84 AD3d 1298).

Here, the plaintiff established, prima facie, that she was not at fault in the happening of the subject accident (see 34 RCNY 4-08[f][1]; cf. Brito v RDJ Express Transp., 135 AD3d 651; Picke

Castillo v. Unique Roofing of N.Y., Inc., NY Slip Op 03675 (2d Dep't July 5, 2023)

Here is the decision.

The doctrine of primary assumption of risk.

A participant consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from participating in the sport. Inherent risks are those which are known, apparent, natural, or reasonably foreseeable consequences of participation. The doctrine encompasses risks involving conditions that are less than optimal. Here, the plaintiff assumed the risk of injury from stepping into a hole by voluntarily choosing to play basketball on an outdoor basketball court surface with faulty conditions which were open and obvious.

Balgley v. City of New York, NY Slip Op 03672 (2d Dep't July 5, 2023)

Here is the decision.

Overlooking an error in a party's moving papers.

In this negligence action stemming from an auto-bicycle collision, the defendants failed to submit a copy of the defendant-driver's deposition transcript in support of their motion to dismiss. However,  the moving papers included the attorney's affirmation stating that the defendants were submitting the transcript as an exhibit. In addition, the defendants cited to the deposition testimony, and based their arguments on the transcript. The defendants submitted a copy of the transcript with their reply papers in further support of the motion, and their attorney affirmed that the failure to submit the transcript with the original papers was a clerical error. Since the plaintiffs did not assert that they were prejudiced by the omission, and the defendants ultimately submitted the transcript, the court should have ignored the defendants' failure to submit the transcript in the original papers, pursuant to CPLR 2001.

A.B. v. Waring, NY Slip Op 03671 (2d Dep't July 5, 2023)

Here is the decision.

Failure to answer.

By failing to answer, a defaulting defendant is deemed to have admitted the factual allegations in the complaint. 

State Farm Fire & Cas. Co. v. AA Acupuncture Serv., P.C., NY Slip Op 03562 (1st Dep't June 29, 2023)

Here is the decision.

Res judicata.

Under the doctrine of res judicata, or claim preclusion, a disposition on the merits bars litigation between the same parties, or those in privity with them, of a cause of action arising out of the same transaction or series of transactions as a cause of action that either was raised or could have been raised in the prior proceeding. Here, a foreclosure action was dismissed for lack of standing, and a subsequent action was dismissed on the ground that the plaintiff was bound by the earlier dismissal order. Because neither action reached the merits of the foreclosure claim, this action is not barred.

Bank of N.Y. Mellon v. Treitel, NY Slip Op 03446 (2d Dep't June 18 2023)

Here is the decision.

Summary judgment on a negligence claim.

Because there can be more than one proximate cause of an accident, a defendant moving for summary judgment in a negligence action must establish, prima facie, that he is free from fault.

Greene v. Peets, NY Slip Op 03454 (2d Dep't June 28 2023)

Here is the decision.

Appellate practice.

There is no appeal as of right from an order that does not decide a motion on notice, pursuant to CPLR 5701 [a] [2]. However, in the interest of judicial economy, the Appellate Division may exercise its discretion and deem the notice of appeal to be a motion for leave to appeal, and grant that motion, pursuant to CPLR 5701[c].

Trafalet v. Trafalet, NY Slip Op 03563 (1st Dep't June 29, 2023)

Here is the decision.

Expedited relief.

Plaintiff commenced this action by summary judgment in lieu of complaint for unpaid rent of a retail store that was personally guaranteed by defendant. In opposition, defendant raised an issue of fact as to the amount of rent due and owing by submitting the affidavit of the store's manager, who averred that the only outstanding rent owed was the rent due for the period when the store was forced to close as a result of the Covid-19 pandemic. Plaintiff is not entitled to the expedited relief afforded by CPLR 3213.

3350 BW 136 Inc. v. Perez, NY Slip Op 03538 (1st Dep't June 29, 2023)

Here is the decision.

Default judgments.

Pursuant to CPLR 3215(f), an applicant for a default judgment against must submit proof of service of the summons and complaint, proof of the facts constituting the claim, and proof of the defendant's failure to answer or appear. In order to demonstrate the facts constituting the claim, the movant need only submit sufficient proof to enable a court to determine that there is a viable cause of action. In order to successfully oppose the motion, the defendant must provide a reasonable excuse for the default and demonstrate the existence of a potentially meritorious defense to the action. Whether a proffered excuse is reasonable is a sui generis determination to be made by the court based on all relevant factors, including the extent of the delay, whether there has been prejudice to the opposing party, whether there has been willfulness, and the strong public policy in favor of resolving cases on the merits. The determination of what constitutes a reasonable excuse lies within the discretion of the motion court. Where the defendant fails to demonstrate a reasonable excuse for its default, the court need not consider whether the defendant possesses a potentially meritorious defense to the action. Defaulters are deemed to have admitted all factual allegations contained in the complaint and all reasonable inferences that flow from them.

Cartessa Aesthetics, LLC v. Demko, NY Slip Op 03328 (2d Dep't June 21, 2023)

Here is the decision.

Continuous treatment doctrine.

Routine physical examinations or visits concerning matters unrelated to the condition giving rise to the malpractice claim do not implicate the doctrine so as to toll the statutory limitations period.

Pinkney v. New York City Health & Hosps. Corp., NY Slip Op 03421 (1st Dep't June 22, 2023)

Here is the decision.

Federal preemption of state laws.

Where a cause of action is preempted by federal law, a party may move pursuant to CPLR 3211(a)(2) to dismiss the cause of action on the ground that the court lacks subject matter jurisdiction. Preemption can occur in any one of three ways: where Congress has expressly preempted state law; where Congress has legislated so comprehensively that federal law occupies an entire field of regulation and leaves no room for state law; and where federal law conflicts with state law.

Astro Ready Mix, LLC v. MTA Long Is. R.R., NY Slip Op 03324 (2d Dep't June 21, 2023)

Here is the decision.

Appellate practice.

As a general rule, the Appellate Division does not consider any issue raised on a subsequent appeal that could have been raised on an earlier appeal that was dismissed for lack of prosecution, although it has the inherent jurisdiction to do so,

Alisa Auto Serv., Inc. v. Chernetskyy, NY Slip Op 03323 (2d Dep't June 21, 2023)

Here is the decision.

Requests for affirmative relief.

Ordinarily, a party who seeks affirmative relief should file a formal notice of motion or cross-motion, pursuant to CPLR 2215. However, courts have the discretion, in the interest of justice, to entertain a request for affirmative relief that is made in the opposition papers to a motion.

Trevino v. Pray, NY Slip Op 03426 (1st Dep't June 22, 2023)

Here is the decision.

Charging liens.

A law firm's right to enforce a charging lien under Judiciary Law § 475 is not forfeited in a case where the firm's representation is discontinued by mutual consent for reasons not rising to the level of misconduct or just cause.

Upfront Megatainment, Inc. v. Thiam, NY Slip Op 03428 (1st Dep't June 22, 2023)

Here is the decision.

                               

Claims for tortious interference with contract and prospective economic advantage.

The claims will be dismissed as facially insufficient where the plaintiff does not plead the requisite elements of the defendant's knowledge of its business relationships and/or contracts with third parties.

Karl Reeves, C.E.I.N.Y. Corp. v. Associated Newspapers, Ltd., NY Slip Op 03315 (1st Dep't June 20, 2023)

Here is the decision.

Contract law.

The fundamental precept of contract interpretation is that agreements are construed in accord with the parties' intent, and the best evidence of the parties' intention is what they say in their writing. Therefore, a written agreement that, on its face, is complete, clear, and unambiguous must be enforced according to the plain meaning of its terms. The threshold issues of whether a contract is unambiguous, and the subsequent construction and interpretation of an unambiguous contract, are for the court to decide.

249-251 Brighton Beach Ave., LLC v. 249 Brighton Corp., NY Slip Op 03321 (2d Dep't June 21, 2023)

Here is the decision.