Unjust enrichment.

This is a quasi-contract claim that contemplates an obligation imposed by equity to prevent injustice, in the absence of an actual agreement between the parties. Where there is a written contract between plaintiff and defendant governing all aspects of the matter at issue, there can be no claim against a third-party non-signatory to the contract.

J.T. Magen & Co., Inc. v. Nissan N. Am., Inc., NY Slip Op 08784 (1st Dep't December 5, 2019)

Here is the decision.

Direct and derivative claims.

The complaint properly pleads direct, rather than derivative, claims because it seeks to redress injury to plaintiffs individually.

Soriano v. Osario, NY Slip Op 08783 (1st Dep't December 5, 2019)

Here is the decision.

CPLR 3211(a)(1).

Dismissal is granted only where the documentary evidence that forms the basis of the defense is such that it utterly refutes the plaintiff's factual allegations, and, as a matter of law, conclusively disposes of the plaintiff's claims. To qualify as documentary evidence, the evidence must be unambiguous and of undisputed authenticity.

Benjamin v. Yeroushalmi, NYSlip Op 08547 (2d Dep't December 4, 2019)

Here is the decision.

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.