Appellate Practice.

Pursuant to CPLR 5511, the appeal will be dismissed where the appellant is not aggrieved by the final order.

Matter of Mahoney v. Martin, NY Slip Op 06969 (2d Dep't September 27, 2019)

Here is the decision.

CPLR 2016.

In this medical malpractice action, plaintiff's expert's affidavit, as originally submitted, was not notarized and, therefore, does not qualify as an affirmation. However, plaintiff corrected the defect by submitting a notarized version at oral argument.

Stewart v. Goldstein, NY Slip Op 06865 (1st Dep't September 26, 2019)

Here is the decision.

Amending a bill of particulars.

A plaintiff seeking leave to amend a bill of particulars by asserting a new injury must demonstrate a reason for the delay in asserting the injury and submit a medical affidavit showing a causal connection between the alleged injury and the original injuries sustained.

Cherry v. Longo, NY Slip Op 06741 (2d Dep't September 25, 2019)

Here is the decision.

CPLR 5015[a][1].

In order to vacate a default in opposing a motion, the moving party must demonstrate a reasonable excuse for the default and a potentially meritorious opposition to the motion.

Bazeli v. Azaz, NY Slip Op 06736 (2d Dep't September 25, 2019)

Here is the decision.

CPLR 3215(c).

Pursuant to the statute, "[i]f the plaintiff fails to take proceedings for the entry of judgment within one year after [a] default, the court shall not enter judgment but shall dismiss the complaint as abandoned, without costs, upon its own initiative or on motion, unless sufficient cause is shown why the complaint should not be dismissed." It is not necessary that the plaintiff actually obtain a default judgment within one year of the default in order to avoid statutory dismissal. Nor is the plaintiff required to specifically seek the entry of a judgment within a year. As long as the plaintiff has initiated proceedings for the entry of a judgment within one year of the default, there is no basis for dismissal of the complaint under the statute.

Aurora Loan Servs., LLC. v. Bandhu, NY Slip Op 06734 (2d Dep't September 25, 2019)

Here is the decision.

A claim for punitive damages.

The claim is dismissed, as no separate cause of action for punitive damages lies for pleading purposes. Even if it were properly pleaded, the claim does not lie in an action that is grounded on private breach of contract, and does not seek to vindicate a public right or deter morally culpable conduct.

Ahsanuddin v. Addo, NY Slip Op 06864 (1st Dep't September 26, 2019)

Here is the decision.

The computation of interest.

CPLR 5001(a) provides, in pertinent part, that "in an action of an equitable nature, interest and the rate and date from which it shall be computed shall be in the court's discretion." Pursuant to 5001(b), "interest shall be computed from the earliest ascertainable date the cause of action existed, except that interest upon damages incurred thereafter shall be computed from the date incurred."

Bistro Shop LLC v. N.Y. Park N. Salem, Inc., NY Slip Op 06696 (1st Dep't September 24, 2019)

Here is the decision.

Emails as sufficient modification of a lease.

In an email, plaintiff's counsel memorialized the parties' verbal agreement that plaintiff would continue to renovate the space while defendant waited for the necessary third-party approvals to complete its work. In a responding email, defendant acknowledged that plaintiff counsel's email was accurate. This exchange constitutes a written modification of the lease, permitting plaintiff to conduct additional renovations on the space.

Bistro Shop LLC v. N.Y. Park N. Salem, Inc., NY Slip Op 06696 (1st Dep't September 24, 2019)

Here is the decision.

Appellate practice.

Sua sponte orders which necessarily affect the final determination are reviewable on appeal from the final judgment.

Ahmed v. Ahmed, NY Slip Op 06580 (2d Dep't September 18, 2019)

Here is the decision.

Choice of law.

New York courts routinely apply the law of the place where the evidence in question will be introduced at trial or the location of the discovery proceeding when deciding privilege issues. However, there are circumstances where the court may undertake an interest-balancing analysis to decide whether another state's law should govern the evidentiary privilege.

Ambac Assur. Corp. v. Nomura Credit & Capital, Inc., NY Slip Op 06574 (1st Dep't September 17, 2019)

Here is the decision.

CPLR 5015(a).

In order to vacate a default in appearing at a scheduled court conference, a party must demonstrate both a reasonable excuse for the default and a potentially meritorious defense or cause of action. Here, the defendant's excuse is law office failure, as her attorney neglected to note the adjourned conference date in his calendar.  This is a reasonable excuse, particularly considering that the default was an isolated incident, the defendant promptly moved to vacate the order entered upon the default, and the plaintiffs were not prejudiced.

Advanced Remodeling of Long Is., Inc. v. Monahan, NY Slip Op 06579 (2d Dep't September 18, 2019)

Here is the decision.