Appellate practice.

The Appellate Division unanimously affirmed the Order which denied plaintiff's motion to reject the Special Referee's report recommending, after a hearing on sanctions, that defendants be awarded attorneys' fees, and which  granted defendants' cross motion to confirm the report. Plaintiff waived the issue of noncompliance with CPLR 4320(b) by not raising it in his motion to reject the report. Plaintiff cannot challenge the quashing of subpoenas before the hearing, having failed to appeal the relevant order, pursuant to CPLR 5501 and 5513[a]. Furthermore, the challenge to the finding of frivolous conduct and the claim that plaintiff acted in good faith are foreclosed, as the Appellate Division had previously affirmed the order granting sanctions.

Abe v. New York Univ., NY Slip Op 00247 (1st Dep't January 19, 2021)

Here is the decision.

CPLR 3215(c).

The Appellate Division determined that the mortgage foreclosure action should have been dismissed as against the original borrower, because plaintiff failed to take proceedings for the entry of judgment within one year of the borrower's default. The time to seek a default judgment should be measured from the default in responding to the original complaint, not the amended complaint. Although an amended complaint supersedes the original complaint, and, therefore, requires a new responsive pleading in order to avoid default, allowing the filing of an amended complaint to effectively cure a failure to timely move for a default in responding to the original complaint would create an exception that swallows the rule. Because plaintiff did not move for a default judgment until well after one year after the default in responding to the original complaint, and because plaintiff fails to offer any excuse for the delay, dismissal was appropriate under 3215(c), in spite of plaintiff's inability to bring a new action due to expiration of the statute of limitations.

MTGLQ Invs., L.P. v. Shay, NY Slip Op 00237 (1st Dep't January 14, 2021)

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Supplemental bills of particulars.

To the extent that the supplemental bill raises new theories of liability and injuries, plaintiff was entitled to serve them as amendments as of course, pursuant to CPLR 3042(b), as no note of issue has been filed, and no prior amended bill of particulars has been served.

Napolitano v. Gustavson, NY Slip Op 00238 (1st Dep't January 14, 2021)

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A claim for respondent superior and negligent hiring.

The Appellate Division unanimously affirmed the granting of defendants' motion for summary judgment in this action where plaintiff alleges that she was assaulted by a receptionist employed by defendants in their medical office. The court properly concluded, as a matter of law, that the receptionist was not acting within the scope of her employment when she had a physical confrontation with plaintiff, because the conduct alleged by plaintiff was a significant departure from normal methods of performance of the job. Furthermore, defendants could not reasonably have anticipated the conduct, as the employee had worked for them for eight years and this was the first such encounter, and plaintiff was unable to cite any prior conduct that would have put defendants on notice that the receptionist had a propensity for violence. The Yelp reviews cited by plaintiff did not name the receptionist and made no reference to violent conduct.

Troy v. Fagelman, NY Slip Op 00246 (1st Dep't January 14, 2021)

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Appellate practice.

Defendant's failure to seek dismissal of the claim before the trial court precludes seeking such relief on appeal. 

Villani v. Kings Harbor Multicare Ctr., NY Slip Op 00244 (January 14, 2021)

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Recission.

The cause of action seeking the equitable remedy of rescission must be dismissed because plaintiffs have a complete and adequate remedy at law.

El Toro Group, LLC v. Bareburger Group, LLC, NY Slip Op 00246 (1st Dep't January 14, 2021)

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Appellate practice.

Defendants argue that the appeal should be dismissed because plaintiff's appeal from the underlying summary judgment order has been deemed dismissed. However, after the judgment was entered, terminating the right of direct appeal from the order, plaintiff properly appealed from the judgment, pursuant to CPLR 5501[a][1], without any improper delay.

Walsh v. Pisano, NY Slip Op 00245 (1st Dep't January 14, 2021)

Here is the decision.

Waiver of arbitration.

In deciding whether arbitration has been waived, the court considers the extent of the litigation, the length of time between the start of litigation and the request to arbitrate, and whether there is prejudice to the other party. Here, there was service of amended pleadings, but no discovery or motion practice. The length of time between the start of litigation and the demand for arbitration was 26 months, but that length of time, without more, is not enough to effectuate a waiver, as the critical element is prejudice. The Appellate Division rejected the conclusory argument that plaintiff will not be able to properly defend the arbitration due to the passage of time. The statute of limitations defense is still available to plaintiff and can be argued before the arbitrator.

Matter of NBC Universal Media, LLC v. Strauser, NY Slip Op 00091 (1st Dep' January 7, 2021)

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Appellate practice.

Plaintiff's arguments concerning waiver and whether arbitration would be futile are unpreserved, since they were first raised in reply and may not be raised on appeal.

Matter of NBC Universal Media, LLC v. Strausser, NY Slip Op 00091 (1st Dep't January 7, 2021)

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Arbitration.

The Appellate Division unanimously affirmed, with costs, the Order which denied the petition to permanently stay arbitration. The court correctly found that the statute of limitations defense to the arbitration proceeding was a matter for the arbitrator to determine, because the choice of law provision containing the arbitration clause specifies that the agreement is to be "interpreted" under New York law, not that enforcement of the agreement is to be governed by New York law.

Matter of NBC Universal Media, LLC v. Strausser, NY Slip Op 00091 (1st Dep't January 7, 2021)

Here is the decision.

CPLR 3012[d].

The Appellate Division unanimously reversed the Order which denied defendants' motion for an extension of time to respond to the complaint, and the Order which denied defendants' motion to dismiss the complaint, and granted both motions. Defendants proffered a reasonable excuse for their delay in answering by submitting an affidavit from their president and CEO, averring that they never received a copy of the summons and complaint that was served on the Secretary of State in August 2019, and only became aware of the lawsuit in October 2019 when the summons and complaint were mailed to their former employee. There is no evidence in the record that defendants' delay in responding to the complaint was willful, or that the three-month delay resulted in any prejudice to plaintiff.

Sukhu v. R.A.I.N. Home Attendant Servs., Inc., NY Slip Op 00098 (1st Dep't January 7, 2021)

Here is the decision.