Reasonable excuse for a default.

Plaintif's submission of an affirmation by counsel and an affidavit by counsel's calendar clerk is sufficient to establish law office failure.

Pena v. Pinnacle Assoc. II NY LLC, NY Slip Op 08600 (1st Dep't December 3, 2019)

Here is the decision.

CPLR 3216(b)(3).

A plaintiff who is served with a 90-day demand must file a note of issue, or, before the default date, move either to vacate the demand or to extend the time to file. A non-compliant plaintiff must demonstrate a justifiable excuse for its failure to timely respond, as well as a potentially meritorious cause of action.

HSBC Bank USA, N.A. v. Williams, NY Slip Op 08554 (2d Dep't November 27, 2019)

Here is the decision.

CPLR 213-a.

For the purpose of retroactive application of the statutory imitations period, the action remains pending during the pendency of an appeal.

Zitnam v. Sutton LLC, NY Slip Op 08527 (1st Dep't November 26, 2019)

Here is the decision.

Summary judgment on liability in a negligence action.

The plaintiff must establish, prima facie, that the defendant breached a duty owed to the plaintiff and that the defendant's negligence was a proximate cause of the alleged injuries.  The plaintiff is not required to establish a lack of comparative negligence. However, the issue of the plaintiff's comparative negligence may be decided on a summary judgment motion where the plaintiff moves to dismiss the defendant's affirmative defense of comparative negligence.

Balladares v. City of New York, NY Slip Op 08549 (2d Dep't November 27, 2019)

Here is the decision.

A motion for a preliminary injunction enforcing restrictive covenants.

Where the contractual covenants arose from the sale of the defendant's business, the essential element of irreparable injury to the plaintiff is presumed.

UAH-Mayfair Mgt. Group LLC v. Clark, NY Slip Op 08536 (1st Dep't November 26, 2019)

Here is the decision.

CPLR 3126.

A court may strike a pleading, or any part thereof, as a sanction against a party who refuses to obey an order for disclosure or willfully fails to disclose information which the court finds should have been disclosed.  The nature and degree of the sanction to be imposed on a 3126 motion is a matter of the court's discretion with the court, but the remedy of dismissal is only warranted where there has been a clear showing that the failure to comply with discovery demands is willful and contumacious. Willful and contumacious conduct may be inferred from a party's repeated failure to comply with court-ordered discovery, coupled with inadequate explanations for the failures, or a failure to comply with court-ordered discovery over an extended period of time.

Bouri v. Jackson, NY Slip Op 08552 (2d Dep't November 27, 2019)

Here is the decision.

Expert opinions.

The plaintiff's expert's opinion is admissible in support of opposition to the summary judgment motion in spite of the defendants' claim of the expert's lack of experience. Their claim goes to the weight given to the opinion, not its admissibility.

Pira v. Carasca, NY Slip Op 08523 (1st Dep't November 26, 2019)

Here is the decision.

Court holiday.

CPLR 327[a].

Even though some evidence and some witnesses are in New York, the court determined that New York is an inconvenient forum for this action in which the plaintiff alleges fraud and improper ouster from her position in a Bahamian company. All the allegedly tortious acts took place in the Bahamas, plaintiff's injury occurred in the Bahamas, and the company has it principal office in the Bahamas. In addition, Bahamian law will govern at least some of the claims.

Fernie v. Wincrest Capital, Ltd., NY Slip Op 08488 (1st Dep't November 21, 2019)

Here is the decision.

A motion to amend the bill of particulars.

The motion is denied as neither the original nor the amended notice of claim contained the proposed allegation, and the limitation period to assert it against defendant had passed.

Ebron v.. New York City Hous. Auth., NY Slip Op 08485 (1st Dep't November 21, 2019)

Here is the decision.

Statute of limitations as an affirmative defense.

The court may bar the assertion of the defense where the defendant's own wrongdoing resulted in the delay between the accrual of the cause of action and the institution of the legal proceeding.

Matter of New York City Asbestos Litig., NY Slip Op 08482 (1st Dep't November 21, 2019)

Here is the decision.