Appellate practice.

An order issued sua sponte is not appealable as of right.

New Globaltex Co., Ltd. v. Zhe Lin, NY Slip Op 04456 (1st Dep't June 6, 2019)

Here is the decision.

Yellowstone injunctions.

The injunction allows a commercial tenant, when threatened with termination of its lease, to toll the cure period so that, upon an adverse determination on the merits, the tenant may cure the default and avoid a forfeiture of the lease. An application must be made before the termination of the lease and before the expiration of the cure period set forth in the lease and the landlord's notice to cure.

255 Butler Assoc., LLC v. 255 Butler, LLC, NY Slip Op 04343 (2d Dep't June 5, 2019)

Here is the decision.

Attorneys' fees.

Plaintiff did not waive its right to attorneys' fees by postponing its application until after the merits determination, and a landlord's acceptance of a tenant's payment in satisfaction of a money judgment for rent is not an accord and satisfaction on the issue of attorneys' fees.

Paramount Leasehold, L.P. v. 43rd St. Deli, NY Slip Op 04342 (1st Dep't June 3, 2019)

Here is the decision.

Comparative negligence.

While a plaintiff is not required to establish freedom from comparative negligence, the issue may be decided on the plaintiff's motion to dismiss the affirmative defense of comparative negligence.

Wray v. Galella, NY Slip Op 04228 (2d Dep't May 29, 2019)

Here is the decision.

The City's duty of care for streets and sidewalks.

Administrative Code of the City of New York § 7-201(c) imposes liability only if its officials have been notified of a defect or hazardous condition at a specified location.  A plaintiff must plead and prove prior written notice as a condition precedent, and neither actual nor constructive notice is sufficient. The only recognized exceptions to the prior written notice requirement involve situations in which either the municipality created the defect through an affirmative act of negligence, or a special use confers a special benefit upon the municipality.

De Zapata v. City of New York, NY Slip Op 04132 (2d Dep't May 29, 2019)

Here is the decision.

A claim of conversion.

The claim does not lie as against a lawful possessor absent a demand and refusal to return the property.

Mutual Benefits Offshore Fund, Ltd. v. Zeltser, NY Slip Op 04290 )1st Dep't May 30, 2019)

Here is the decision.

1944.

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.