911 calls and liability.

The Appellate Division unanimously reversed, on the law, the Order granting defendants' motion to dismiss the complaint. Plaintiff's allegations are sufficient to establish a special relationship between the City and the decedent, bringing her claim within the exception to the general rule that a municipality may not be held liable to a person injured by the breach of a duty that it owes to the general public, such as the duty to provide ambulance service. The allegation that the 911 operator told plaintiff that "we are on our way" is sufficient to establish defendants' assumption of an affirmative duty to act on the decedent's behalf. Plaintiff sufficiently alleged justifiable reliance on the call operator's statement through an affidavit submitted in opposition to defendants' motion in which she listed several additional actions she would have taken to secure help but for the operator's assurance.

Xenias v. City of New York, NY Slip Op 00647 (1st Dep't February 4, 2021)

Here is the decision.

Appellate practice.

Plaintiff's argument that the limitations period should have been tolled until she was granted letters of administration was not properly before the Appellate Division, because it was raised for the first time on reargument/renewal and was not based on new facts or a change in the law. In any event, the limitations period is not tolled during the pendency of a petition for letters of administration.

Xenias v. Mount Sinai Health Sys. Inc., NY Slip Op 00648 (1st Dep't February 4, 2021)

Here is the decision.

Out-of-possesson landlords.

An out-of-possession landlord can be held liable for injuries that occur on its premises only if the landlord has retained control over the premises and if the landlord is contractually or statutorily obligated to repair or maintain the premises or has assumed a duty to repair or maintain the premises by virtue of a course of conduct.

Aponte v. Lee, NY Slip Op 00539 (2d Dep't February 3, 2021)

Here is the decision.

Confessions of judgment.

A person seeking to vacate a judgment entered upon the filing of an affidavit of confession of judgment must commence a separate plenary action.

Ace Funding Source, LLC v. Myka Cellars, Inc., NY Slip Op 00538 (2d Dep't February 3, 2021)

Here is the decision.

CPLR 5015(a)(1).

Defendants provided a reasonable excuse for their failure to appear for conferences and depositions, which led to the striking of their answer, based on the neglect of their attorney, who was suspended and then disbarred during the pendency of the proceedings, as a result of complaints concerning his neglect of matters and his failure to communicate with other clients.

Perez v. Table Run Estates, Inc., NY Slip Op 00533 (1st Dep't February 2, 2021)

Here is the decision.

CPLR 5015(a)(2).

In order to succeed on a motion to vacate an order or judgment on the ground of newly discovered evidence, the movant must establish that the evidence could not have been discovered earlier through the exercise of due diligence, and that the newly discovered evidence probably would have produced a different result.

Anghel v. Ruskin Moscou Faltischek, P.C., NY Slip Op 00402 (2d Dep't January 27, 2021)

Here is the decision.

Notes of issue.

Pursuant to the Uniform Rules for Trial Courts, at 22 NYCRR 202.21[a], [b], a note of issue must be accompanied by a certificate of readiness, which must state that there are no outstanding requests for discovery, and that the case is ready for trial. Here, the certificate of readiness that was filed with the first note of issue failed to indicate whether physical examinations were completed and whether medical reports were exchanged. As that certificate failed to materially comply with the rules, it was a nullity, and the plaintiff's time to move for summary judgment began to run when the new note of issue was filed.

Andujar v. Boyle, NY Slip Op 00401 (2d Dep't January 27, 2021)

Here is the decision.

The limitations period in a medical malpractice action.

The resumption of treatment, as opposed to the continuation of treatment, is insufficient to toll the statute of limitations.

Estrella v. Montefiore Med. Ctr., NY Slip Op 00491 (1st Dep't January 28, 2021)

Here is the decision.

A fraud claim.

In order to state the cause of action, the plaintiff must plead a material representation of a fact, knowledge of its falsity, an intent to induce reliance, justifiable reliance, and damages. The claim can be based on a material omission of fact for the purpose of inducing the plaintiff to rely on it, the plaintiffs justifiable reliance on the omission, and injury. The element of justifiable reliance is lacking where a sophisticated plaintiff enters into an arms-length transaction, and, with the exercise of ordinary intelligence, could have protected itself through due diligence.

Rapaport v. Strategic Fin. Solutions, LLC, NY Slip Op 00511 (1st Dep't January 28, 2021)

Here is the decision.

Default in a mortgage foreclosure action.

CPLR 3215(c) requires a plaintiff to move for a default judgment within a year of the defendant's default in answering or appearing. In a mortgage foreclosure action, the statutory requirements are satisfied by moving for an order of reference within a year of the default. The plaintiff's failure to make the motion requires dismissal of the action, either upon motion or sua sponte, except where sufficient cause is shown why the complaint should not be dismissed. Sufficient cause requires a reasonable excuse for the delay in moving for a default judgment and a potentially meritorious cause of action.

U.S. Bank N.A. v. Nunez, NY Slip Op 00515 (1st Dep't January 28, 2021)

Here is the decision.

A legal malpractice claim.

The claim is dismissed, as plaintiffs' allegations consist solely of purported violations of the Rules of Professional Conduct, which, standing alone, do not support a malpractice claim.

Volpe v. Munoz & Assoc., LLC, NY Slip Op 00516 (1st Dep't January 28, 2021)

Here is the decision.