Duplicative fraudulent inducement claims.

A fraudulent inducement claim will be dismissed as duplicative of a breach of contract claim if the defendant establishes, as a matter of law, that the damages sought in connection with the fraud claim are the same as those sought in connection with the contract claim.

Ambac Assur. Corp. v. Countrywide Home Loans Inc., NY Slip Op 06570 (1st Dep't September 17, 2019)

Here is the decision.

Amending a pleading.

In the absence of prejudice or surprise resulting directly from the delay in seeking leave, an application to amend or supplement a pleading is to be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit.  Where the standard is met, no evidentiary showing of merit is required in a motion to amend the complaint under CPLR 3025(b). The determination to permit or deny amendment is committed to the sound discretion of the trial court.

Clarke v. Acadia-Washington Sq. Tower 2, LLC, NY Slip Op 06469 (2d Dep't September 11, 2019)

Here is the decision.

A medical malpractice action.

The failure to investigate a condition that would have led to the incidental discovery of an unindicated condition does not constitute malpractice. In addition, a plaintiff cannot defeat the defendant's prima facie entitlement to summary judgment by introducing a new theory of liability.

Rotante v. New York Presbyt. Hospital- N.Y. Weill Cornell Med. Ctr., NY Slip Op 06457 (1st Dep't September 10, 2019)

Here is the decision.

CPLR 3102(d).

A party may seek additional disclosure after the commencement of trial only by permission of the court, on notice.

Matter of Michael R. v. Amanda R., NY Slip Op 06454 (1st Dep't September 10, 2019)

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CPLR 5021(a)(3).

A deposit to the court must be made, on motion, pursuant to an order of the court. Otherwise, it is merely an escrow account.

Triadou SPV S.A. v. CF 135 Flat LLC, NY Slip Op 06453 (1st Dep't September 10, 2019)

Here is the decision.

CPLR 4404(a).

A motion to set aside a jury verdict and for judgment as a matter of law will be granted where there is no valid line of reasoning and permissible inferences which, based on the evidence presented, could possibly lead rational persons to the jury's conclusions. In considering the motion, the trial court must afford the opposing party every inference which may properly be drawn from the facts presented, and the facts must be considered in a light most favorable to the nonmovant.

Allen v. Federation of Jewish Philanthropies of N.Y., NY Slip Op 06462 (2d Dep't September 11, 2019)

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An account stated.

An invoice and a demand letter are sufficient to create an account stated. Nevertheless, evidence that there was not a meeting of the minds as to the correctness of the balance rendered will defeat the plaintiff's motion for summary judgment.

Cushman & Wakefield, Inc. v. Kadmon Corp., LLC, NY Slip Op 06456 (1st Dep't September 10, 2019)

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Appellate practice.

The Appellate Division will not consider an argument that is raised for the first time on appeal and does not involve a pure question of law that appears on the face of the record and could not have been avoided if brought to the attention of the Supreme Court.

Maida v. St. Bonaventure Univ., NY Slip Op 06389 (2d Dep't August 28, 2019)

Here is the decision.

Fee disputes.

When there is a dispute between the plaintiff's current and discharged attorneys in an action to which a contingent fee retainer agreement applies, the discharged attorney may elect to receive compensation immediately based on quantum meruit, or on a contingent percentage fee based on the proportionate share of the work performed on the whole case. The award of reasonable fees is within the sound discretion of the Supreme Court based on 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.

Pyong Woo Ye v. Pasha, NY Slip Op 06425 (2d Dep't August 28, 2019)

Here is the decision.

CPLR 3216.

An action will not be dismissed for failure to prosecute, whether on the ground of general delay or for failure to serve and file a note of issue, unless there has first been served a 90-day notice.

Rezk v. New York Presbyt. Hospital/N.Y. Weill Cornell Ctr., NY Slip Op 06426 (2d Dep't August 28, 2019)

Here is the decision.

Vacatur of an arbitration award.

An award will be vacated where the arbitrator irrationally ignored the controlling law.

Global Liberty Ins. Co. of N.Y. v. Top Q., Inc., NY Slip Op 06445 (1st Dep't September 3, 2019)

Here is the decision.