Leave to amend.

The Appellate Division affirmed denial of the motion for leave to amend, as the proposed amended complaint is based on the same alleged wrongs as the original pleading. In the proposed amendment, plaintiff merely recasts derivative claims as direct ones.

MFB Realty LLC v. Eichner, NY Slip Op 03800 (1st Dep't May 29, 2018)

Here is the decision.

Effective service.

Where the notice of service on the Secretary of State, and a copy of the summons and complaint mailed to the defendant's out-of-state address, were returned as undeliverable, service was never effectuated. However, where, as here, service is not timely made, the court may, for good cause or in the interest of justice, extend the time, pursuant to CPLR 306-b. In applying the interest of justice standard, the court may consider factors such as the plaintiff's diligence, or lack thereof; expiration of the Statute of Limitations; the meritorious nature of the claim; the length of the delay in service; the promptness of the plaintiff's request for the extension of time; and prejudice to the defendant. No one factor is determinative.

Nunez-Ariza v. Nell, NY Slip Op 03735 (1st Dep't May 24, 2018)

Here is the decision.

Wages under the Labor Law.

So-called usage payments, which are third-party payments to models for the use of images taken at photo shoots, are not wages within the meaning of § 190[1].

Shanklin v. Wilhelmina Models, Inc., NY Slip Op 03732 (1st Dep't May 24, 2018)

Here is the decision.

Motions to leave and/or to reargue.

A motion denominated as one for leave to renew and/or to reargue that is not based on new facts, pursuant to CPLR 2221(d)(2), is a motion for leave to reargue. The denial of the motion is not appealable.

Capital One Bank v. Phillips, NY Slip Op 03656 (2d Dep't May 23, 2018)

Here is the decision.

Fraud in the inducement.

Plaintiffs' cause of action alleging fraud in the inducement was dismissed, as it is founded on non-actionable promises of future conduct or events, and not present fact, and non-actionable opinion of defendant as to his resources and capability of undertaking the work sought by plaintiffs.

Yablon v. Stern, NY Slip Op 03650 (1st Dep't May 22, 2018)

Here is the decision.

Memorial Day.

The continuing wrong doctrine.

The doctrine may only be predicated on continuing unlawful acts, and not on the continuing effects of earlier unlawful conduct. The distinction is between a single wrong that has continuing effects and a series of independent, distinct wrongs.

Gibbons v. Grondahl, NY Slip Op 03646 (1st Dep't May 22, 2018)

Here is the decision.

Statute of limitations in a foreclosure action.

An action to foreclose a mortgage is subject to a six-year statute of limitations, pursuant to CPLR 213[4]. The limitations period begins to run when the mortgagee or its predecessor elects to accelerate the mortgage. If the mortgage is payable in installments, the limitations period begins as to the entire debt.

DLJ Mtge. Capital, Inc. v. Hirsh, NY Slip Op 03505 (2d Dep't May 16, 2018)

Here is the decision.

A hospital's vicarious liability.

The general rule is that a hospital may not be held vicariously liable for the acts of a physician who is not an employee of the hospital, but, instead, is one of a group of independent contractors. However, a hospital may be vicariously liable if a nonemployee physician acted as its agent, or if it exercised control over the physician.

Castro v. Durban, NY Slip Op 03503 (2d Dep't May 17, 2018)

Here is the decision.

Falling object liability under the Labor Law.

Liability under § 240(1) is not limited to cases in which the falling object is being hoisted or secured. It also applies where the plaintiff demonstrates that, at the time the object fell, it required securing.  However, the statute does not automatically apply simply because an object fell and injured a worker, and a plaintiff must show that the object fell because of the absence or inadequacy of a safety device of the kind enumerated in the statute.  While a plaintiff is not required to present evidence as to which particular safety devices would have prevented the injury, the risk requiring a safety device must be foreseeable and inherent in the work being done.

Carlton v. City of New York, NY Slip Op 03500 (2d Dep't May 16, 2018)

Here is the decision.

A fall at a construction site.

A fall through an unguarded opening in the floor of a construction site invokes Labor Law § 240(1) if an adequate safety device was not provided. A safety line and harness may be adequate for a person working over an open area or near an elevated edge. However, summary judgment is precluded where, as here, the record shows that plaintiff was wearing a harness and lanyard bu there are triable issues as to whether there were static lines for him to safely tie off.

Maman v. Marx Realty & Improvement Co., Inc., NY Slip Op 03614 (1st Dep't May 17, 2018)

Here is the decision.