Appellate practice.

The appeal must be dismissed because the right of direct appeal terminated with the entry of the order and judgment of foreclosure and sale.

Deutsche Bank Trust Co. Ams. v. Marous, NY Slip Op -4535 (2d Dep't August 19, 2020)

Here is the decision.

Preliminary injunctions.

In order to obtain a preliminary injunction, the movant must demonstrate a likelihood of success on the merits, irreparable injury absent the injunction, and a balancing of the equities in the movant's favor, pursuant to CPLR 6301. In deciding the motion, the court must be mindful that the injunction's purpose is to maintain the status quo, and not to determine the parties' ultimate rights. The decision to grant or deny the injunction lies within the sound discretion of the Supreme Court, and, absent unusual or compelling circumstances, the Appellate Division is reluctant to disturb the decision.

538 Morgan Ave. Props., LLC v. 538 Morgan Realty, LLC, NY Slip Op 04530 (2d Dep't August 19, 2020)

Here is the decision.

Motions to dismiss.

On a motion to dismiss for failure to state a claim, pursuant to CPLR 3211(a)(7), the court must afford the pleadings a liberal construction, pursuant to CPLR 3026, take the allegations in the complaint as true, and afford the plaintiff the benefit of every possible favorable inference. A motion court must only determine whether the facts, as alleged, fit within any cognizable legal theory. Whether a plaintiff can ultimately establish its allegations should not be considered in determining a motion to dismiss. Under CPLR 3211(a)(1), dismissal is warranted only if the documentary evidence conclusively establishes, as a matter of law, a defense to the asserted claims.

Charles Schwab Corp. v. Goldman Sachs Group, Inc., NY Slip Op 04520 (1st Dep't August 13,2020)

Here is the decision.

CPLR 3101(d)(1)(i).

The Supreme Court properly exercised its discretion in denying the plaintiffs' motion, made mid-trial, to preclude the defendants' expert from testifying about theories of causation not specifically referenced in the defendants' expert disclosure statement. The basis of the plaintiffs' objection to the expert disclosure was readily apparent from the face of the disclosure and could have been raised, and potentially cured, prior to trial.

Goldsmith v. Kipnis, NY Slip Op 04461 (2d Dep't August 12, 2020)

Here is the decision.

A claim of adverse possession.

To establish the claim, the occupation of the property must be hostile and under a claim of right, that is, a reasonable basis for believing that the property belongs to a particular party; actual; open and notorious; exclusive; and continuous for at least the statutory period of 10 years. The character of the possession must be such that it would give the owner a cause of action in ejectment against the occupier. In addition, where the claim of right is not founded upon a written instrument, the party asserting title by adverse possession must establish that the land was usually cultivated or improved or protected by a substantial inclosure. Because the acquisition of title by adverse possession is not favored under the law, the elements must be proven by clear and convincing evidence.

Blake Rising, LLC v. Atlantic Collision, Inc., NY Slip Op 04450 (2d Dep't August 12, 2020)

Here is the decision.

Vacatur for lack of jurisdiction.

The Appellate Division affirmed the Supreme Court's determination to deny those branches of the defendants' motion which were pursuant to CPLR 5015(a)(1) and to vacate the order. A plaintiff's failure to serve a defendant with a motion for summary judgment on the complaint deprives the Supreme Court of jurisdiction to entertain the motion, and nullifies any resulting order granting it. Here, the plaintiff's submission of an affidavit of service, indicating that the papers in support of its motion for summary judgment were timely mailed to the defendants' counsel at the address provided by counsel in the answer to the complaint, demonstrated that the defendants were properly served with the motion, pursuant to CPLR 2103[b][2]. So, the order was not subject to vacatur for lack of jurisdiction pursuant to CPLR 5015(a)(4).

Deutsche Bank Natl. Trust Co. v. Quinn, NY Slip Op 04456 (2d Dep't August 12, 2020)

Here is the decision.

Court of Claims Act § 10(6).

In determining whether to exercise its discretion to allow the filing of a late claim, a court will consider factors such as whether the delay in filing is excusable; whether the State had notice of the essential facts constituting the claim; whether the State had an opportunity to investigate the circumstances underlying the claim; whether the claim appears to be meritorious; whether the failure to file or serve a timely claim or a notice of intention resulted in substantial prejudice to the State; and whether the claimant has any other available remedy. No one factor is controlling, and neither is the presence or absence of any one factor determinative.

Cox v. New York State Thruway Auth., NY Slip Op 04455 (2d Dep't August 12, 2020)

Here is the decision.

A claim of prima facie tort.

The claim will be dismissed for failure to state a claim,  pursuant to CPLR 3211(a)(7),  where the plaintiff fails to allege special damages.

Benjamin v. Assad, NY Slip Op 04449 (2d Dep't August 12, 2020)

Here is the decision.

A motion for leave to renew.

Pursuant to CPLR 2221[e][2], the motion "shall be based upon new facts not offered on the prior motion that would change the prior determination." Pursuant to 2221[e][3], the motion "shall contain reasonable justification for the failure to present such facts on the prior motion." Renewal is not a second chance that is freely given to a party who have not exercised due diligence in making its first factual presentation.

Bellevue v. Gustav, NY Slip Op 04448 (2d Dep't August 12, 2020)

Here is the decision.

CPLR 3211(a)(5).

 On a motion to dismiss the complaint as time-barred, the moving defendant must establish, prima facie, that the time in which to commence the action has expired. Where the defendant makes the prima facie showing, the burden shifts to the plaintiff to establish that the statute of limitations has not expired, that it is tolled, or that an exception applies.

Arnell Constr. Corp. v. New York City Sch. Constr. Auth., NY Slip Op 04446 (2d Dep't August 12, 2020)

Here is the decision.

Recovery in quantum merit.

The complaint will be dismissed where there is a valid contract governing the subject matter of the claim. 

D. Gangi Contr. Corp. v. City of New York, NY Slip Op 04378 (2d Dep't August 5, 2020)

Here is the decision.