The timeliness of motions for leave to renew.

Under certain circumstances, a court of original jurisdiction may entertain a motion for leave to renew a prior order or judgment based on newly discovered evidence, even after an appellate court has rendered a decision on that order or judgment. However, absent any of the circumstances set forth in CPLR 5015, which are inapplicable here, a motion for leave to renew based upon an alleged change in the law must be made prior to the entry of a final judgment, or before the time to appeal has fully expired. Here, the petition was no longer pending when petitioner made its motion, based on an alleged change in the law, and, therefore, the motion was untimely.

Matter of 160 E. 84th St. v. New York State Div. of Hous. & Community Renewal, NY Slip Op 01729 (1st Dep't March 15, 2022)

Here is the decision.

A cause of action for assault.

A menacing physical act is required to support the essential element of an apprehension of imminent harm. An allegation of finger-pointing and generalized yelling, without more, is insufficient. Here, the element is satisfied because the plaintiff alleges that the defendant, while screaming an epithet, encroached upon her.

Berg v. Chelsea Hotel Owner, LLC, NY Slip Op 01511 (1st Dep't March 10, 2022)

Here is the decision.

Standing in a mortgage foreclosure action.

The defendant executed a note, promising to repay a loan which was secured by a mortgage on real property. The mortgage was subsequently assigned to the plaintiff. The defendant answered the complaint, asserting several affirmative defenses, including that the plaintiff lacked standing. Contrary to the defendant's contention, by annexing to the complaint a copy of the note, endorsed to the plaintiff, the plaintiff established, prima facie, that it had physical possession of the note when it commenced the action, and, therefore, that it had standing to foreclose. Where the note is affixed to the complaint, it is unnecessary to give factual details of the delivery in order to establish that possession was obtained prior to a particular date.

Deutsche Bank Nat'l Trust Co. v. Blackman, NY Slip Op 01289 (2d Dep't March 2, 2022)

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A dismissed civil conspiracy claim.

 In the absence of any actionable tort, the cause of action does not lie.

Platt v. Berkowitz, NY Slip Op 01405 (1st Dep't March 3, 2022)

Here is the decision.

CPLR 3216.

A court may not dismiss an action for failure to prosecute unless the statutory preconditions to dismissal are met, including that issue has been joined. Here, the conditional order of dismissal was improper, since none of the defendants had submitted an answer to the complaint, and, therefore, issue was never joined.

Central Mtge. Co.. v. Ango, NY Slip Op 01286 (2d Dep't March 2 2022)

Here is the decision.

CPLR 3025[b] and 3043[b].

The court providently denied the plaintiff's request to amend his supplemental bill of particulars to add a theory that his arrest resulted in a delay in his parole hearing. Plaintiff provided neither a factual basis for the proposed amendment nor an excuse for seeking leave to amend six months after filing the note of issue.

Reese v. City of New York, NY Slip Op 01406 (1st Dep't March 3, 2022)

Here is the decision.

CPLR 3211[e].

A defense of lack of standing is waived if not asserted in an answer or a pre-answer motion to dismiss.

Castaldi v. Syosset Cent. Sch. Dist., NY Slip Op 01285 (2d Dep't March 2, 2022)

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CPLR 2104.

A stipulation of settlement may be evinced by multiple writings. However, where those writings, taken together, do not show agreement on all material terms, the alleged agreement is unenforceable.

Xhepexhiu v. Mitaj, NY Slip Op 04109 (1st Dep't March 2, 2022)

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Summary judgment.

Summary judgment is inappropriate where, in order to decide the motion, the court must make a factual finding.

Aviation Distribs. Inc., Formed May 1945 v. Aviation Distribs. Inc., Formed 2014, NY Slip Op 01378 (1st Dep't March 3, 2022)

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Contractual indemnification.

The right to contractual indemnification depends upon the specific language of the contract. A promise to indemnify will not be found unless it can be clearly implied from the language and purpose of the entire agreement and the surrounding circumstances. A party that moves for summary judgment dismissing a claim for contractual indemnification must make a prima facie showing that it was not contractually obligated to indemnify the party asserting the indemnification claim. This may be accomplished by showing that, under the circumstances, an indemnification clause in a contract between the parties either was not triggered or was otherwise inapplicable.

Burgos v. 14 E. 44 St., LLC, NY Slip Op 01284 (2d Dep't March 2, 2022)

Here is the decision.

A cause of action for breach of contract.

The essential elements of a breach of contract cause of action are the existence of a contract, the plaintiff's performance under the contract, the defendant's breach of that contract, and resulting damages. Here, the plaintiff was not a party to, or intended beneficiary of, the escrow agreement, and, therefore, cannot recover for its alleged breach.

Blank v. Petrosyants, NY Slip Op 01283 (2d Dep't March 2, 2022)

Here is the decision.