The continuous treatment doctrine.

In order to implicate the tolling provision, the understanding that treatment is ongoing must be shared by both physician and patient.

Caraballo v New York Presbyt. Hosp./Weill Cornell Med. Ctr., NY Slip Op 05920 (1st Dep't October 28, 2021)

Here is the decision.

A default on a real estate contract.

This action is brought by plaintiff-buyer, who entered into a written agreement to purchase a cooperative apartment from defendants-sellers. Plaintiff seeks the return of a down payment that plaintiff paid to secure her performance under the parties' contract. Defendants retained the deposit when plaintiff failed to close. Supreme Court granted plaintiff's motion for summary judgment in order to prevent unjust enrichment. The Appellate Division reversed. A claim for unjust enrichment will not stand in the face of the written agreement. An appeal to equity is unavailing, since it is settled law that a vendee who defaults on a real estate contract without lawful excuse cannot recover the down payment.

Jennings v. Silfen, NY Slip Op 05923 (1st Dep't October 28, 2021)

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Referees.

Referees derive their authority from an order of reference by the court, which can be only be made upon the parties' consent. Absent consent, the referee has the power only to hear and report his findings. CPLR 4403 requires a motion to reject a referee's report to be made within 15 days of the filing of the report, while 22 NYCRR 202.44(a) requires the defendant to move to confirm or reject the report within 30 days after notice of the filing of the report.

HSBC Bank USA, N.A.. v. Sewell, NY Slip Op 05850 (2d Dep't October 27, 2021)

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Appellate practice.

No appeal lies from an order denying reargument.

Bank of Am., N.A. v. Alrasheed, NY Slip Op 05848 (2d Dep't October 27, 2021)

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Inadmissible hearsay.

The court refused to admit into evidence three statements allegedly made by plaintiff and recorded in his hospital records about the manner in which his accident happened. These statements are not admissible as admissions against interest, since the evidence adduced outside the jury's presence failed to establish that plaintiff was the source of the information contained in one of the statements, and defendants failed to produce the interpreters through whom the other two statements were made to confirm that they were objective and competent and that their interpretations were accurate. The statements are not admissible under the business records exception to the hearsay rule, since they are not germane to the treatment or diagnosis of plaintiff's injuries. 

Nassa v. 1512 LLC, NY Slip Op 05927 (1st Dep't October 28, 2021)

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Forum selection clauses.

Where the record reflects a sufficiently close relationship among defendants so as to make the application of the clause foreseeable, a separate minimum-contacts analysis is unnecessary.

Oberon Sec., LLC v. Titanic Entertainment Holdings LLC, NY Slip Op 05929 (1st Dep't October 28, 2021)

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The initial burden on a summary judgment motion.

Where the movant fails to satisfy its prima facie burden of establishing entitlement to judgment as a matter of law, it is unnecessary to consider the sufficiency of the opposition papers. 

Lampert v. County of Suffolk, NY Slip Op 05852 (2d Dep't October 27, 2021)

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CPLR 3211(a)(5).

In opposition to the motion to dismiss, a plaintiff may submit affidavits to remedy defects in the complaint and preserve claims that are inartfully pleaded but potentially meritorious.

Jacobson Dev. Group, LLC v. Grossman, NY Slip Op 05851 (2d Dep't October 27, 2021)

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CPLR 3025.

A party may amend a pleading, by leave of court, at any time, before or after judgment, so as to conform the pleading to the evidence. Applications to amend pleadings are within the sound discretion of the court, and leave shall be freely given upon such terms as may be just, even if the amendment substantially alters the theory of recovery.

Americore Drilling & Cutting, Inc. v. EMB Contr. Corp., NY Slip Op 05845 (2d Dep't October 27, 2021)

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Derivative claims.

Defendant's motion to dismiss the complaint was granted on the ground that plaintiff lacks standing to assert the claims because they are derivative, not direct. Under New York law, a shareholder lacks standing to pursue a direct cause of action to redress wrongs suffered by the corporation. Such claims must be asserted as derivative claims, for the benefit of the corporation. In determining whether a claim is derivative or direct, a court should consider (1) whether the corporation or the individual shareholders suffered the alleged harm,  and (2) whether the corporation or the individual shareholders would receive the benefit of any recovery or other remedy.

Sajust, LLC v. Mendelow, NY Slip Op 05835 (1st Dep't October 26, 2021)

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Jury verdicts.

A verdict for the defendant may not be set aside as contrary to the weight of the evidence unless the evidence preponderates so heavily in the plaintiff's favor that it could not have been reached on any fair interpretation of the evidence. Issues of credibility are for the jury, and the jury's resolution of those issues is given deference. Where there is conflicting expert testimony, the jury is entitled to accept one expert's opinion and reject that of another expert.

Abbene v. Conetta, NY Slip Op 05682 (2d Dep't October 20, 2021)

Here is the decision.