Replies and sur-replies.

The motion court providently exercised its discretion in considering the third-party defendant's arguments raised by for the first time in its reply papers, having given the defendant the opportunity to respond to those arguments by way of a sur-reply and a motion for summary judgment.

Pizarro v. Dennis James Boyle, Inc., NY Slip Op 01299 (1st Dep't February 25, 2020)

Here is the decision.

Appellate practice.

The Appellate Division dismissed the appeal from an interim order which, to the extent appealed from, held in abeyance defendant's motion seeking plaintiff's forfeiture of further distribution of artwork under the parties' settlement agreement, the appointment of a permanent receiver, and to enjoin plaintiff from litigation on the parties' settlement agreement without leave of court, as taken from a nonappealable order. The court's deferral of a decision on defendant's motion is not appealable as of right, pursuant to CPLR 5701[a][2][v], and the Appellate Division declined to grant leave to appeal.

Condo v. Condo, NY Slip Op 01294 (1st Dep't February 25, 2020)

Here is the decision.

Proper service.

An affidavit of service constitutes prima facie evidence of proper service, and the mere denial of receipt of service is insufficient to rebut the presumption of proper service created by a properly-executed affidavit of service. Here, the Appellate Division affirmed the Supreme Court's finding of  jurisdiction over the defendant by proper service of the summons and complaint. In the defendant's affidavit, she denied that she was personally served because she had temporarily moved to a family member's home.  However, there is no documentary evidence to support her claim that she was never in her "dwelling place or usual place of abode," pursuant to CPLR 308[2], at the time service allegedly was effected.

The defendant's argument that she is shorter than the person described in the affidavit of service is insufficient to rebut the presumption of proper service, and she does not dispute that the other descriptions set forth in the affidavit of service, such as her age, weight, hair color, and skin color, match her description. Further, the defendant concedes that both her husband and a female tenant resided at the address where service was effected, and she does not dispute that they were of suitable age and discretion to have accepted service, pursuant to CPLR 308[2].

Ocwen Loan Servicing, LLC v. Ali, NY Slip Op 01292 (1st Dep't February 25, 2020)

Here is the decision.

The prevention doctrine.

The doctrine is a variant of the implied covenant of good faith and fair dealing. It is applicable only where it is consistent with the intent of the contracting parties.

Tisoped Corp. v. Thor 138 N 6th St LLC, NY Slip Op 01287 (1st Dep't February 25, 2020)

Here is the decision.

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)

Here is the decision.

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)

Here is the decision.

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.