Spy Wednesday.

Summary judgment in a medical malpractice action.

Summary judgment is not appropriate where the parties submit conflicting medical expert opinions.

Buch v. Tenner, NY Slip Op 02247 (2d Dep't April 6, 2022)

Here is the decision.

An effective stipulation.

A stipulation is generally binding on parties that have legal capacity to negotiate, freely negotiate their agreement, and either reduce their stipulation to a properly subscribed writing or enter the stipulation orally, on the record, in open court.

Cenpark Realty, LLC v. Gurin, NY Slip Op 02335 (1st Dep't April 7, 2022)

Here is the decision.

Appellate practice.

The Appellate Division may consider new arguments raised for the first time on appeal, as long as the issue is determinative and the record on appeal is sufficient to permit its review.

Stile v. C-Air Customhouse Brokers-Forwards, Inc., NY Slip Op 02244 (1st Dep't April 5, 2022)

Here is the decision.

A dismissed claim for conversion.

In order to survive the motion to dismiss, the claim cannot be predicated on a mere breach of contract.

Stile v. C-Air Customhouse Brokers-Forwards, Inc., NY Slip Op 02244 (1st Dep't April 5, 2022)

Here is the decision.

Appellate practice.

No appeal lies from an order entered upon the default of the appealing party.

Hilton Wiener, LLC v. Anderson, NY Slip Op 02195 (1st Dep't March 31, 2022)

Here is the decision.

Leave to amend a bill of particulars.

Ordinarily leave is to be freely given in the absence of prejudice or surprise, but once discovery has been completed and the case has been certified as ready for trial, an amendment will not be permitted except upon a showing of special and extraordinary circumstances. Where the application for leave is made long after the action has been certified for trial, judicial discretion in allowing an amendment should be discrete, circumspect, prudent, and cautious. Moreover, where there has been an inordinate delay in seeking leave to amend to include a new injury, a plaintiff must establish a reasonable excuse for the delay and show that the proposed amendment has merit.

Blumenthal v. 1979 Marcus Ave. Assoc., LLC, NY Slip Op 02107 (2d Dep't March 30, 2022)

Here is the decision.

Defective service of process.

Because the process server's affidavit was filed more than 120 days after the service date, service was not timely completed under CPLR 306-b. As to the individual defendants, the affidavit of service does not list the names of the persons purportedly served and does not state that an additional copy of the papers was mailed to each of them, rendering incomplete the purported service via a person of suitable age and discretion, pursuant to CPLR 308[2]. As to the corporate and limited liability company defendants, the affidavit of service does not state that the receptionist who accepted service at the management office is an officer, authorized agent, or member of the defendant entities so as to constitute proper service under CPLR 311 or 311-a. Because the plaintiff is a party, her service of papers is prohibited under CPLR 2103(a).

Commissiong v. Mark Greenberg Real Estate Co. LLC, NY Slip Op 02192 (1st Dep't March 31, 2022)

Here is the decision.

CPLR 3215(c).

In order to avoid dismissal of the complaint as abandoned, a plaintiff must initiate proceedings for the entry of a judgment within one year of the defendant's default.

Bank of N.Y. v. Ilonzeh, NY Slip Op 02106 (2d Dep't March 30, 2022)

Here is the decision.

Waiver of the right to a jury trial.

The fact that the plaintiff is seeking money damages does not, in and of itself, guarantee entitlement to a jury trial. When the complaint either joins legal and equitable causes of action arising out of the same alleged wrong or seeks both legal and equitable relief, the plaintiff waives the right to a jury trial. Where the note of issue characterizes the action as sounding in equity, the plaintiff waives his right to a jury trial.

Aroch v. 391 Broadway LLC, NY Slip Op 02187 (1st Dep't March 31, 2022)

Here is the decision.

CPLR 3215(f).

Where a foreclosure complaint is not verified, an application for a default judgment must include an affidavit setting forth proof of the facts constituting the claim, the default, and the amount due.

799 Crown St., LLC v. Leblanc, NY Slip Op 09105 (2d Dep't March 30, 2022)

Here is the decision.