Court holiday.

Statute of limitations.

In determining which limitations period is applicable to a given cause of action, the court must look to the substance of the allegations rather than to the parties' characterization of those allegations.

Potter v. Zucker Hillside Hosp., NY Slip Op 07304 (2d Dep't October 9, 2019)

Here is the decision.

CPLR 3211 and 3212.

The motion court treated defendant's motion to dismiss, pursuant to 3211(a)(2) and (7), as a motion for summary judgment, pursuant to 3211[c]), since both sides made it unequivocally clear that they were laying bare their proof and deliberately charting a summary judgment course.  The motion was untimely, since it was made after the 120-day deadline imposed by 3212(a) and was unaccompanied by an explanation for the lateness.

Hernandez v. 2075-2081 Wallace Ave. Owners Corp., NY Slip Op 07328 (1st Dep't October 10, 2019)

Here is the decision.

Waiver of trial by jury.

When the complaint either joins legal and equitable causes of action arising out of the same alleged wrong or seeks both legal and equitable relief, the plaintiff waives his right to jury trial.

Errant Gene Therapeutics, LLC v. Sloan-Kettering Inst. for Cancer Research, NY Slip Op 07226 (1st Dep't October 8, 2019)

Here is the decision.

Summary judgment in a trip-and-fall action.

Dismissal will be denied whee the defendant fails to meet its initial burden of demonstrating that it did not create the defective condition. Here, in relying on the building superintendent's deposition testimony, the defendant pointed to gaps in the plaintiff's proof instead of carrying its own burden on the motion.

Harvey v. Henry 85 LLC, NY Slip Op 07210 (1st Dep't October 8, 2019)

Here is the decision.

Appellate Practice.

The appellant may not challenge the propriety of an order granting a motion that he did not oppose, as he is not aggrieved by the order.

First Am. Tit. Ins. Co. v. Chavannes, NY Slip Op 07053 (2d Dep't October 2, 2019)

Here is the decision.

A claim of slander per se.

In order to survive dismissal, a plaintiff corporation must sufficiently state how the statements at issue harmed its reputation, business standing, or corporate integrity.

161 Ludlow Food, LLC v. L.E.S. Dwellers, Inc., NY Slip Op 07146 (1st Dep't October 3, 2019)

Here is the decision.

Charging liens.

An attorney of record who is discharged without cause has a charging lien pursuant to Judiciary Law § 475.  The lien is imposed on the cause of action, the proceeds of which are subject to lien, even where the recovery is from an action different from the one in which the services were rendered.

Dzhurinskiy v. Moore, NY Slip Op 07050 (2d Dep't October 2, 2019)

Here is the decision.

A claim for quantum merit/unjust enrichment.

The cause of action will be dismissed where it constitutes an indistinguishable dispute regarding the same operative facts as the claim for breach of contract.

Sears Holdings Mgt. Corp. v. Rockaway Realty Assoc., LP, NY Slip Op 07174 (1st Dep't October 3, 2019)

Here is the decision.

Stipulations.

Where the motion court so-orders the stipulation, its terms have the weight of a court order.

Gordon v. Schaeffer, NY Slip Op 07141 (1st Dep't October 3, 2019)

Here is the decision.

A dismissed claim of unjust enrichment.

There is no cause of action where the claim merely duplicates or replaces a conventional contract claim.

Markov v. Katt, NY Slip Op 07006 (1st Dep't October 1, 2019)

Here is the decision.