Court holiday.

Appellate practice.

Plaintiff's assertion that the voluntary payment doctrine, equitable estoppel, and waiver bar the accounting is improperly raised for the first time on appeal. 

U.S. Bank, N.A. v. Cordero, NY Slip Op 00819 (1st Dep't February 9, 2021)

Here is the decision.

Waiver of arbitration.

By participating in the lawsuit for two years before filing its motion to compel arbitration, defendant waived its right to assert that the action is barred by the arbitration agreement. Defendant failed to plead the arbitration agreement as an affirmative defense, and did not produce it in response to plaintiff's discovery request. Plaintiff demonstrated prejudice, as she had already expended considerable time and resources in litigating her claims in court.

Wallace v. Tri-Med Home Care Servs., Inc., NY Slip Op 00821 (1st Dep't February 9, 2021)

Here is the decision.

Court holiday.

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.