A subpoena duces tecum.

A subpoena duces tecum may not be used for the purposes of general discovery.  Its purpose is to compel the production of specific documents that are relevant and material to facts at issue in a pending judicial proceeding.

Bottini v. Bottini, NY Slip Op 05665 (2d Dep't August 8, 2018)

Here is the decision.

Statute of limitations as a defense.

The statute of limitations is an affirmative defense which is waived by a party unless it is raised either in a responsive pleading, or by motion prior to the submission of a responsive pleading, pursuant to CPLR 3211[e]. A court may not take judicial notice, sua sponte, of the applicability of a statute of limitations if that defense has not been raised.

352 Legion Funding Assoc. v. 348 Riverdale, LLC, NY Slip Op 05662 (2d Dep't August 8,2018)

Here is the decision.

The timing of summary judgment motions.

Any party may move for summary judgment in any action, after issue has been joined, pursuant to CPLR 3212[a].

Tiberg v. Strebel-Eichner, NY Slip Op 05714 (2d Dep't 2018)

Here is the decision.

Prior appeals.

An appellate court's resolution of an issue on a prior appeal constitutes the law of the case, and is binding on both the trial court and the appellate court. It forecloses re-examination of the question, absent a showing of subsequent evidence or change of law.

Massey v. Byrne, NY Slip Op 05731 (1st Dep't August 9, 2018)

Here is the decision.

A dismissal based on documentary evidence.

In order to succeed on a motion to dismiss based on documentary evidence, pursuant to CPLR 3211(a)(1), the evidence must utterly refute the plaintiff's factual allegations, conclusively establishing a defense as a matter of law.

Never Used Cars, LLC v. Nat Hoe Equities Corp., NY Slip Op 05682 (2d Dep't August 8, 2018)

Here is the decision.

The scope of a general release.

The meaning and coverage of the release necessarily depends upon the controversy being settled and  the purpose for which the release is given. While a broad general release will be given effect regardless of the parties' unexpressed intentions, the release may not be read to cover matters which the parties did not intend for it to cover.

Chiappone v. North Shore Univ. Hosp., NY Slip Op 05569 (2d Dep't August 1, 2018)

Here is the decision.

Gender discrimination under the City Human Rights Law.

In order to establish a gender discrimination claim under the statute, a plaintiff need only demonstrate, by a preponderance of the evidence, disparate treatment because of gender. It is not necessary to invoke sexual harassment or quid pro quo. A defendant can assert an affirmative defense and avoid liability if the conduct amounts to nothing more than what a reasonable victim of discrimination would consider petty slights and trivial inconveniences.

Suri v. Grey Global Group, Inc., NY Slip Op 05627 (1st Dep't August 2, 2018)

Here is the decision.

Preliminary injunctions.

Pursuant to CPLR article 63, the injunction may issue on a showing of (1) a likelihood of ultimate success on the merits; (2) the prospect of irreparable injury if the provisional relief is withheld; and (3) a balance of equities tipping in the moving party's favor. The decision to grant or deny a preliminary injunction lies within the sound discretion of the Supreme Court.

Apple A.C. & Appliance Serv., Inc. v. Apple Home Heating Corp., NY Slip Op 05567 (2d Dep't August 1, 2018)

Here is the decision.

Attorney depositions.

The First Department has adopted the Second Department's rule that a party seeking to depose opposing counsel must demonstrate a good-faith basis, in addition to showing that the information sought is material, necessary, and unavailable from another source. The demonstration of good faith is intended to rule out the possibility that the deposition is sought as a tactic intended solely to disqualify counsel, or for some other illegitimate purpose.

Liberty Petroleum Realty, LLC v. Gulf Oil, L.P., NY Slip Op 05624 (1st Dep't 2018)

Here is the decision.

Summary judgment on a landlord's cross-claim for contractual indemnification.

Summary relief is appropriate where, as here, the lease is unambiguous and clearly sets forth the parties' intention that the tenant indemnify the landlord for the injuries sustained.

Hong-Bao Ren v. Gioia St. Marks, LLC, NY Slip Op 05520 (1st Dep't July 26, 2018)

Here is the decision.

A motion to withdraw as counsel.

An attorney may be permitted to withdraw where the client refuses to pay reasonable legal fees, pursuant to Rules of Professional Conduct [22 NYCRR 1200.0] 1.16[c][5].  Additionally, an attorney may withdraw if the client fails to cooperate in the representation, or otherwise makes it unreasonably difficult for the lawyer to carry out representation effectively, pursuant to 1.16[c][7].

Applebaum v. Einstein, NY Slip Op 05437 (2d Dep't July 25, 2018)

Here is the decision.