CPLR 217(1).

An article 78 proceeding challenging a petitioner's termination from government employment must be brought within four months from the date the termination becomes final and binding.

Matter of Irace v. Williams, NY Slip Op 04648 (1st Dep't June 11, 2019)

Here is the decision.

A scheme to defraud.

Liability for fraud may be premised on knowing participation in the scheme, even if the participation, standing alone, does not constitute a fraud.

Bashian & Farber, LLP v. Syms, NY Slip Op 04348 (2d Dep't June 5, 2019)

Here is the decision.

The doctrine of res judicata.

An order entered upon a party's default in appearing to oppose a motion to dismiss is not a determination on the merits, and, therefore, the doctrine does not apply.

Abdelfattah v. Najar, NY Slip Op 04346 (2d Dep't June 5, 2019)

Here is the decision.

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.