CPLR 311[a][1]; CPLR 312-a[a]; Business Corporation Law § 306.

The court properly denied plaintiff's motion for a default judgment, and sua sponte dismissed the complaint for lack of personal jurisdiction, as plaintiff failed to demonstrate proper service of the summons and complaint. Service by certified mail to the corporate defendant's address, alone, is not a proper means of service.

Miller v. 21st Century Fox Am., Inc., NY Slip Op 01311 (1st Dep't February 25, 2020)

Here is the decision.

A motion for leave to amend the complaint.

The motion court did not abuse its discretion in denying leave. Defendant failed to explain why it waited until the brink of the discovery deadline to file its motion, and why it did not move by order to show cause or otherwise timely convey the "emergency" that arose when it realized that plaintiffs' belated document production contained previously unknown admissions that formed the basis for the counterclaims. While defendant claims that it acted as soon as possible after receiving the 100,000-plus documents, the motion court reasonably concluded that defendant could have avoided the last-minute nature of the document production, noting that defendant did not move to compel more prompt production of the documents, which it admits it had sought since February 2018. Moreover, defendant's June 2019 letter to the court primarily addresses plaintiff's failure to produce discovery substantiating its own damages claims, rather than the documents that it now claims support the proposed counterclaims.

Further, defendant's proposed new allegations - against plaintiff and two new defendants as well as other potentially relevant individuals implicated by the allegations - will inevitably entail substantial discovery and resulting delays. While CPLR 3025(b) motions may be granted at any time during the pendency of an action, defendant's explanation for the timing of its motion, combined with the scope of the proposed amendments, fails to show that the court, which anticipated not being able to try the case until 2021, was not reasonably concerned about the delay the new issues would generate.

Ness Tech. SARL v. Pactera Tech. Intl. Ltd., NY Slip Op 01310 (1st Dep't February 25, 2020)

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CPLR 3211[f].

The plaintiff failed to establish that the defendants were in default, as the plaintiff did not assert that he had served the order, with notice of entry, denying the defendants' motion to dismiss. Absent service of the order with notice of entry, the time within which the defendants were required to answer the complaint did not begin to run.

Citibank, N.A. v. Brooks, NY Slip Op 01142 (2d Dep't February 19, 2020)

Here is the decision.

CPLR 3211[c].

The Supreme Court may convert a defendant's motion to dismiss into a motion for summary judgment after providing the parties with notice of its intent to treat the motion as one for summary judgment and the opportunity to make supplemental submissions.

Gottlieb v. Colonel, NY Slip Op 01149 (2d Dep't February 19, 2020)

Here is the decision.

Special Referees.

It is well settled that the Special Referee's report will be confirmed when the findings contained therein are supported by the record, the issues are clearly defined, and matters of credibility have been resolved.

Busche v. Grover, NY Slip Op 01255 (1st Dep't February 20, 2020)

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A claim of employment discrimination.

A plaintiff can establish a prima facie case of discrimination by showing that: (1) he is a member of a protected class; (2) he was qualified to hold the position; (3) he was terminated from employment; and (4) the discharge occurred under circumstances giving rise to an inference of discrimination. In moving for summary judgment, a defendant need only establish, prima facie, the absence of any of these elements. Regarding the fourth element, the defendant can demonstrate that the termination did not occur under circumstances giving rise to an inference of discrimination by providing a legitimate, nondiscriminatory reason for the termination, and demonstrating the absence of a material issue of fact as to whether its reason for termination was merely pretextual.

Averbeck v. Culinary Inst. of Am., NY Slip Op 01139 (2d Dep't February 19, 2020)

Here is the decision.

A motion to dismiss for failure to state a cause of action.

When assessing a CPLR 3211(a)(7) motion to dismiss, the pleading is afforded a liberal construction, the facts as alleged in the complaint are accepted as true, the plaintiff is accorded the benefit of every possible favorable inference, and the court determines only whether the facts as alleged fit within any cognizable legal theory. The court may freely consider affidavits submitted by the plaintiff to remedy any defects in the complaint, and the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one.

Grassi & Co., CPAS, P.C. v. Honka, NY Slip Op 01262 (1st Dep't February 20, 2020)

Here is the decision.

A motion to compel.

The motion court did not improvidently exercise its discretion in denying defendants' motion to compel plaintiff to produce authorizations for his primary care providers, various specific medical providers, and his pharmacy records on the ground that plaintiff's allegations placed his entire medical condition in issue. Defendants failed to adduce any evidence showing that plaintiff sought treatment from his primary care physician or the named providers for the body parts that plaintiff alleges were injured in the accident at issue. Defendants also failed to adduce any evidence showing that plaintiff received prescriptions to treat those body parts. Although defendants claim they are entitled to medical records relating to the aggravation of injuries sustained in a prior motor vehicle accident, they did not tailor their demands accordingly.

Lafata v. Verizon Communications Inc., NY Slip Op 01272 (1st Dep't February 20, 2020)

Here is the decision.

The judicial proceedings privilege.

The allegedly defamatory statements about plaintiff made by defendant in affidavits in support of her motion for summary judgment in lieu of complaint are not "obviously impertinent" to the judicial proceedings in which they were made, and are absolutely protected by the privilege.

Peck v. Peck, NY Slip Op 01254 (1st Dep't February 20, 2020)

Here is the decision.

The doctrine of res ipsa.

An injured plaintiff seeking to apply res ipsa loquitur must establish, among other things, that the accident was caused by an instrumentality within the defendant's exclusive control.

Bunn v. City of New York, NY Slip Op 01247 (1st Dep't February 20, 2020)

Here is the decision.

Court of Claims.

The Court of Claims is a court of limited jurisdiction determined by the Constitution and statute. Its jurisdiction is generally limited to money damage awards against the State. Whether the essential nature of the claim is to recover money, or whether the monetary relief is incidental to the primary claim, is dependent upon the facts and issues presented in a particular case.

Aliksanyan v. State of New York, NY Slip Op 01137 (2d Dep't February 19, 2020)

Here is the decision.