A claim for specific performance of a real estate contract.

The elements of the cause of action are that the plaintiff substantially performed its contractual obligations, and was ready, willing and able to perform its remaining obligations; that the defendant was able to convey the property; and that there is no adequate remedy at law.

Breskin v. Moronto, NY Slip Op 04126(2d Dep't May 29, 2019)

Here is the decision.

CPLR 3126.

In deciding the motion to dismiss, a conditional order of preclusion is within the ambit of available remedies for the trial court to impose.

Rachimi v. Sacher, NY Slip Op 04275 (1st Dep't May 30, 2019)

Here is the decision.

CPLR 5701(a)(2).

No appeal lies from an order that does not decide a motion made upon notice.

Estate of Franzese v. Zear LLC, NY Slip Op 04265 (1st Dep't May 30, 2019)

Here is the decision.

CPLR 3215(g)(1).

A defendant who appears in an action is entitled to at least five days notice of the time and place of a motion, including motions for leave to enter a default judgment.  Failure to provide the required notice is a jurisdictional defect that deprives the court of the authority to entertain the motion.

Amaral v. Smithtown News, Inc., NY Slip Op 04122 (2d Dep't May 29, 2019)

Here is the decision.

Civil contempt.

In order to find a party in civil contempt, it must be determined that there was in effect a lawful order of the court, clearly expressing an unequivocal mandate, that the party charged had notice of the order and disobeyed it, and that the party's failure to comply with the order prejudiced the rights of another party.

Matter of Gallagher v. Old Guard of the City of N.Y., NY Slip Op 04101 (1st Dep't May 28, 2019)

Here is the decision.

CPLR 602(a).

The motion court providently exercised its discretion in denying the motion to consolidate two personal injury actions, as there are insufficient common questions of law and fact. One action sounds in negligence, arising from an assault by a student, while the other is a premises liability case alleging a defective door. While both actions involve the same plaintiff and defendants, the underlying facts and standards of liability are different. In addition, there is no danger of defendants in one case blaming the defendants in the other case for plaintiff's exacerbated injuries.

Betancourt v. City of New York, NY Slip Op 04119 (1st Dep't May 28, 2019)

Here is the decision.

Contracts and torts.

A simple breach of contract is not to be considered a tort absent the violation of a legal duty that is independent of the contract itself.

Rosner v. Bankers Std. Ins. Co., NY Slip Op 04015 (2d Dep't May 22, 2019)

Here is the decision.

A restaurant's liability for valet parking.

The restaurant may be liable for the negligence of its attendants who are alleged to have caused an accident to a third party, even if the parking service is an independent contractor. The restaurant's duty of care arises when it has the ability and opportunity to control the conduct of its contractors, and an awareness of the need to do so.

Evans v. Norecaj, NY Slip Op 04029 (1st Dep't May 23, 2019)

Here is the decision.

CPLR 3211(a)(5).

A party may move to dismiss a cause of action based on the doctrine of res judicata, or claim preclusion, under which a valid final judgment bars future actions between the same parties on the same cause of action.

23 E. 39th St. Dev., LLC v 23 E. 39th St. Mgt. Corp., NY Slip Op 03748 (2d Dep't May 15, 2019)

Here is the decision.

Memorial Day.

Memorial Weekend. 2019.