No appeal lies from an order entered on default, pursuant to CPLR 5511. However, the denial of the father's request for an adjournment on a hearing on his petition is appealable because that request was the subject of the underlying dispute.
Matter of Darlene H. v. Abdus R., NY Slip Op 02639 (1st Dep't April 21, 2022)
The petition seeking to vacate a tax assessment and lien on petitioners' property, brought pursuant to CPLR article 78, is denied. The petition is untimely, as it was filed well over four months after the charges became final, and petitioners establish no basis for tolling the statute of limitations.
Matter of Wahid v. New York City Dept. of Fin., NY Slip Op 02647 (1st Dep't April 21, 2022)
A plaintiff may not seek a declaratory judgment when other remedies, such as monetary damages, are available.
Uber Tech., Inc. v. American Arbitration Assn., Inc., NY Slip Op 02503 (1st Dep't April 14, 2022)
A conclusory affidavit or an affidavit by a person without personal knowledge of the facts stated therein does not establish the proponent's prima facie burden on a motion for summary judgment.
Beauvoir v. Samuel, NY Slip Op 02385 (2d Dep't April 13, 2022)
The statute provides that where a party's physical condition is in controversy, "any party may serve notice on another party to submit to a physical . . . examination by a designated physician." There is no statutory restriction on the number of medical examinations. However, a defendant seeking an additional medical examination must demonstrate that it is necessary. A plaintiff may challenge a defendant's choice of an examining physician based upon a claim of bias against the plaintiff or plaintiff's counsel, or prejudice against the plaintiff if the physician is allowed to testify at trial.
Abdelfattah v. Trevicano, NY Slip Op 02383 (2d Dep't April 13, 2022)
Unless the parties clearly and unmistakably provide otherwise, the court, not the arbitrator, will decide whether a dispute is arbitrable. An arbitration clause's reference to the American Arbitration Association rules is not clear and unmistakable evidence of the parties' intent to have an arbitrator decide the issue of arbitrability. A party cannot be compelled to arbitrate matters not covered by the arbitration clause.
ALP, Inc. v. Moskowitz, NY Slip Op 02355 (1st Dep't April 12, 2022)
The claim must be dismissed because there is no cause of action for conspiracy to commit a tort.
ALP, Inc. v. Moskowitz, NY Slip Op 02355 (1st Dep't April 12, 2022)
One year after the judgment of divorce ended the matrimonial action, the stipulation of settlement of a post-judgment motion was so-ordered. That stipulation was not part of the judgment, but was an independent contract which could not be incorporated into the judgment. Because the court did not retain the power to exercise supervisory control over the action, a plenary action is necessary to enforce the stipulation.
DeGiovine v. Kaufmann, NY Slip Op 02250 (2d Dep't April 6, 2022)
