CPLR 3025[b].

A party may amend a pleading at any time by leave of court. The application to amend is within the sound discretion of the court, and it should be granted  if the amendment is not palpably insufficient, does not prejudice or surprise the opposing party, and is not patently devoid of merit.

Flagstar Bank, FSB v. Davis, NY Slip Op 08655 (2d Dep't December 4, 2019)

Here is the decision.

CPLR 2221[e][3].

Defendant's motion to renew plaintiff's summary judgment motion was denied, as defendant failed to explain why, in opposing plaintiff's motion, it did not submit the documents that it concedes were in its possession.

Nieborak v. W54-7 LLC, NY Slip Op 08788 (1st Dep't December 5, 2019)

Here is the decision.

CPLR 5701(a)(2).

There is no appeal as of right from an order that does not decide a motion made on notice.

177 Richard St., LLC v. Weeks, NY Slip Op 08644 (2d Dep't December 4, 2019)

Here is the decision.

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.