A cause of action for conversion of money.

Where the claim is asserted as to money, the funds must be specifically identifiable and be subject to an obligation to be returned or to be otherwise treated in a specified manner.  Here, the defendant-lawyer had put the funds into his IOLA account, which is an unsegregated interest-bearing bank account for an attorney's deposit of qualified funds, pursuant to Judiciary Law § 497. As the account is unsegregated, plaintiff's funds, upon their transfer therein, became commingled with monies that were already in it, rendering them no longer specifically identifiable. Even if the funds were specifically identifiable, the claim is insufficiently pled, as plaintiff did not make a demand for the return of the funds. Dismissed.

SH575 Holdings LLC v. Reliable Abstract Co., L.L.C., NY Slip Op 03427 (1st Dep't June 1, 2021)

Here is the decision.

CPLR 3215(c).

In this medical malpractice action, the Appellate Division affirmed the Order which denied plaintiff's motion for a default judgment and dismissed the complaint as abandoned. Plaintif's excuse for her delay in seeking a default judgment was not reasonable: that she failed to notify her counsel that she moved to Puerto Rico, that her counsel had to hire an investigator to locate her to sign the affidavits of merit annexed to her moving papers after she moved to Puerto Rico, and that, for months, she did not return the affidavits of merit which had been sent to her.

Ventura v. Chhabra, NY Slip Op 03430 (1st Dep't June 1, 2021)

Here is the decision.

A motion for a default judgment.

The Appellate Division affirmed the Order which, to the extent appealed from, denied plaintiff's motion for a default judgment against defendants. While defendants technically did not respond to plaintiff's motion for a default judgment, they appeared in the action before the motion was made, only shortly after the deadline to answer or move, and they moved to dismiss the action only one week after plaintiff made his motion for a default. In the motion to dismiss, defendants sufficiently responded to the arguments that plaintiff had made in the motion for a default judgment, asserting that they did not have sufficient time to move to dismiss the complaint because they had to research the action, having never actually been a party to the alleged retainer agreement with plaintiff, which they maintain was a forged document. Particularly given plaintiff's alleged fraud on the court, the motion court was within its discretion to excuse defendants' minor delay in moving to dismiss the complaint and their failure to submit a sworn statement in opposition to the motion.

Xiaoyong Zhang v Jong, NY Slip Op 03432 (1st Dep't June 1, 2021)

Here is the decision.

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)

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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)

Here is the decision.

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)

Here is the decision.