A legal malpractice claim.

The Appellate Division affirmed the Order which granted defendants' CPLR 3211(a)(7) motion to dismiss the complaint. The ruling of the United States District Court for the Southern District of New York, which dismissed plaintiffs' complaint in the underlying fraud action for failure to state a claim, collaterally estops plaintiffs from arguing that, but for defendants' negligence in failing to timely serve the defendant doctors in the underlying action with the summons or timely seek an extension, they would have prevailed in the underlying matter. The motion court considered and properly rejected plaintiffs' alternative argument, that defendants' negligence caused them to sustain damages that they would not have incurred but for defendants' negligence, including pursuing the appeal from the dismissal of the underlying action for failure to timely serve the underlying doctor defendants with summonses. The motion court also properly dismissed the breach of contract and breach of fiduciary duty claims as duplicative of the legal malpractice claim. They are both predicated on the same allegations and seek relief identical to that sought in the malpractice cause of action.

Zegelstein v. Roth Law Firm PLLC, NY Slip Op 03396 (1st Dep't May 27, 2021)

Here is the decision.

Appellate practice.

The Appellate Division may consider an argument that is raised for the first time on appeal if the argument involves a legal issue that appears on the face of the record and could not have been avoided it had been raised earlier.

27 W. 72nd St. Note Buyer LLC v. Terzi, NY Slip Op 03364 (1st Dep't May 27, 2021)

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CPLR 5015[a][1].

In order to have a late answer deemed timely served nunc pro tunc, and avoid the entry of a default judgment, a nonanswering defendant must provide a reasonable excuse for the delay in answering and demonstrate a potentially meritorious defense to the action.

Nationstar Mtge. LLC v. Ahmed, NY Slip Op 03259 (1st Dep't May 20, 2021)

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Amendment as of right.

The Appellate Division found that the motion court improvidently exercised its discretion by denying leave to amend the complaint. "A party may amend his pleading once without leave of court . . .at any time before the period for responding to it expires," pursuant to CPLR 3025[a]. Since a motion to dismiss extends the defendant's time to answer the complaint "until ten days after service of notice of entry of the order" deciding the motion, pursuant to CPLR 3211[f], and since the court had not yet even decided defendant's CPLR 3211 motion at the time plaintiff moved to amend its complaint, plaintiff did not need to move pursuant to CPLR 3025(b); instead, it could have amended as of right pursuant to CPLR 3025(a).

Roam Capital, Inc. v. Asia Alternatives Mgt. LLC, NY Slip Op 03269 (1st Dep't May 20 2021)

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A cause of action for aiding and abetting fraud.

In order to plead the claim, the plaintiff must allege the existence of the underlying fraud, actual knowledge, and substantial assistance. The "substantial assistance" element need not be very great and can be met by as little as imploring the active tortfeasor to effect the fraud.

U.S. Tsubaki Holdings, Inc. v. Estes, NY Slip Op 03273 (1st Dep't May 20, 2021)

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Appellate practice.

Although the sua sponte dismissal of an action is not appealable as of right, pursuant to CPLR 5701[a][2], the Appellate Division may deem the notice of appeal from that portion of an order to be a motion for leave to appeal, and grant such leave.

558 Seventh Ave. Corp. v. Times Sq. Photo Inc., NY Slip Op 03244 (1st Dep't May 20, 2021)

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Leave to file a late answer.

By order, defendants were directed to serve their answer to the amended complaint within 20 days of service of notice of entry of the order. Defendants were served with notice of entry of the order, but they did not move for leave to file a late answer until 35 days later, when plaintiff filed its request to enter a default judgment with the clerk. The court denied defendants' motion for leave to file a late answer on the ground that defendant failed to provide a reasonable excuse for the delay in answering. At the same time, the clerk informed plaintiff that it needed to formally move for a default judgment. Thereafter, plaintiff formally moved for a default judgment and defendants cross-moved to extend their time to answer for the second time.

The Appellate Division determined that the court properly denied defendants' motion for leave to file a late answer based on law of the case. The court initially denied defendants' motion on the ground that defendants failed to provide a reasonable excuse, and defendants never appealed that decision or moved to reargue that decision. Defendants then made a second motion for leave to file a late answer and offered the same excuse for their delay. The Appellate Division determined that, in the alternative, the motion court properly denied defendants' second motion for leave to file a late answer on the ground that defendants failed to put forth a reasonable excuse for their delay in answering the amended complaint. It was not an abuse of discretion for the court to find that defendants' excuse was not reasonable.

2001 Real Estate Space Catalyst, Inc. v. Stone Land Capital, Inc., NY Slip Op 03138 (1st Dep't May 18, 2021)

Here is the decision.