A failed motion to vacate a default.

Defendant's claim that he was unfamiliar with the legal system and did not understand that he needed an attorney to represent him is not a reasonable excuse for failing to timely appear and oppose plaintiffs' motion for summary judgment in lieu of complaint. Absent a reasonable excuse for the default, the court need not consider whether there is a potentially meritorious defense to the action.

Besler v. Uzieri, NY Slip Op 00687 (1st Dep't January 30, 2020)

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22 NYCRR 9.1.

The motion court did not improvidently exercise its discretion in denying defendants' summary judgment motion on the ground that their affirmation in support far exceeded the court's page limitation rules.

Hornsby v. Cathedral Parkway Apts. Corp., NY Slip Op 00526 (1st Dep't January 28, 2020)

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A summary judgment motion.

The absence of an affidavit from a person having knowledge of the facts does not require denial of the motion, as it is supported by an attorney's affirmation to introduce undisputed documentary evidence, including the parties' contract and the addendum thereto.

Astoria Generating Co., LP v. Riley Power, Inc., NY Slip Op 00560 (2d Dep't January 29, 2020)

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Appellate practice.

An  interim decision is not an appealable paper, which deprives the Appellate Division of jurisdiction and requires dismissal of the appeal, albeit without prejudice.  There are instances where the Appellate Division  has deemed a paper denominated as a "decision" to be appealable because it contained all the hallmarks of an order. Here, however, the Supreme Court itself noted that it issued the interim decision in the absence of a motion for relief, and the decision did not result in the issue of any order.

Spectrum News NY1 v. New York City Police Dept., NY Slip Op 00521 (1st Dep't January 28, 2020)

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Prescriptive easements.

The right acquired by prescription is commensurate with the right enjoyed.

Barrett v. A&P Pac. Owner, LLC, NY Slip Op 00396 (2d Dep't January 22, 2020)

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Collateral estoppel.

If a federal court declines to exercise jurisdiction over a plaintiff's state law claims, collateral estoppel may still bar those claims provided that the federal court decided issues identical to those raised by the state claims.

Afrat v. Kimber Mfg., Inc., NY Slip Op 00394 (2d Dep't January 22, 2020)

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Pleading a cause of action for a constructive eviction.

The plaintiff must allege a landlord's wrongful act that deprives the tenant of the beneficial enjoyment or actual possession of the demised premises.

Leon v. Harlan, NY Slip Op 00496 (1st Dep't January 23, 2020)

Here is the decision.

Expert testimony in a medical malpractice case.

Testimony about which treatment option should have been recommended is not a proper basis for a claim of medical malpractice or lack of informed consent.  Testimony that one treatment option is preferable does not establish that, in following a different medically accepted treatment, a defendant-physician deviated from the standard of care.

Lampkowski v. Parra, NY Slip Op 00508 (1st Dep't January 23, 2020)

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Appellate practice.

An argument that is raised for the first time on appeal is not preserved for review.

Crimlis v. City of New York, NY Slip Op 00514 (1st Dep't January 23, 2020)

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A denied motion for a default judgment.

The defendant's delay in answering the complaint was excusable and minimal, and it caused no prejudice to plaintiff.  Plaintiff moved for default just one day after defendant's time to appear had expired, and defendant timely responded, presenting a meritorious defense to the action. Moreover, the motion court's order is in keeping with the strong public policy favoring litigation of claims on the merits.

Berardelli v. Novo Law Firm P.C., NY Slip Op 00516 (1st Dep't January 23, 2020)

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A dismissed claim for unjust enrichment.

The existence of an express contract governing the subject matter precludes plaintiffs claim.

Polaris Venture Partners VI L.P. v. AD-Venture Capital Partners L.P., NY Slip Op 00483 (1st Dep't January 23, 2020)

Here is the decision.