Amending a complaint to add a defendant.

CPLR 1003 requires leave of court or a stipulation by all parties to add parties, at least where, as here, parties have previously been added. CPLR 3025(a)-(b) similarly requires leave of court or a stipulation by all parties to amend a complaint, at least when done so late in the case. Because this procedure was not followed, the amended complaint must be dismissed as against the newly joined defendant.

ALP, Inc. v. Moskowitz, NY Slip Op 03962 (1st Dep't June 16, 2022)

Here is the decision.

Service of process.

Plaintiff submitted affidavits of service that constituted prima facie proof of proper service, pursuant to CPLR 308(4). Defendants rebutted the presumption of proper service by averring that service was effectuated at the wrong address. The process server's subsequent affidavit did not establish proper service as a matter of law, because it did not specifically confirm that the follow up mailings had been sent to the correct address. Accordingly, a traverse hearing is required to determine whether personal jurisdiction was obtained over defendants.

Italian Elegant Jewelry, LLC v. Fteha, NY Slip Op 03967 (1st Dep't June 16, 2022)

Here is the decision.

A motion for leave to reargue.

The motion must be based on matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion. The movant cannot raise any matters of fact not offered on the prior motion. Disposition of the motion is addressed to the sound discretion of the motion court.

A.R. Conelly, Inc. v. New York City Charter High Sch. for Architecture, Eng'g & the Constr. Indus., NY Slip Op 03880 (2d Dep't June 15, 2022)

Here is the decision.

A dismissed unjust enrichment claim.

Dismissal of the unjust enrichment claim was required, as there was a valid and enforceable contract governing the parties' disputes.

Tutor Perini Corp. v. New York City Dept. of Transp., NY Slip Op 03981 (1st Dep't June 16, 2022)

Here is the decision.

Liquidated damages.

In order to avoid liquidated damages as an unenforceable penalty, there must be a showing either that damages flowing from a prospective contractual breach were readily ascertainable at the time the parties entered into their agreement, or that the liquidated damages clause is conspicuously disproportionate to these foreseeable losses.

VII MP Miami Hotel Owner, LLC v. Hycroft, LLC, NY Slip Op 03983 (1st Dep't June 16, 2022)

Here is the decision.

Long-arm jurisdiction.

There is long-arm jurisdiction under the "transacts business" provision of CPLR 302(a)(1) because defendant's New York activities were purposeful and substantially related to plaintiffs' claims to recover on 11 notes and debentures signed by defendant. Defendant's principal purposefully transacted business in New York by negotiating the terms of 8 of the 11 notes and debentures during in-person meetings in New York. In connection with the loan transactions, defendant retained a New York firm to represent it, traveled to New York on multiple occasions to meet with plaintiffs' representatives to promote and provide progress reports on defendant's business, and established a continuing relationship with plaintiffs that lasted several years and spanned 11 separate loans, all of which is sufficient to satisfy the statutory test for long-arm jurisdiction.

4069 Rosen Assoc., LLC v. Tournamentone Corp., NY Slip Op 03864 (1st Dep't June 14, 2022)

Here is the decision.

Appellate practice.

The appeal must be dismissed because the defendant died before the date of the notice of appeal, and the attorney who filed the notice of appeal lacked authority to act on the decedent's behalf.

Ditech Fin., LLC v. Connors, NY Slip Op 03709 (June 8, 2022)

Here is the decision.

A legal malpractice claim.

The denial of defendants' motion to dismiss is affirmed.  Defendants, who were admittedly discharged for cause, failed to proffer any evidence that subsequent counsel did not adequately prepare plaintiff's rebuttal expert witness for his deposition during the underlying federal litigation. Therefore, they did not establish prima facie that, but for the intervening and superseding failures of plaintiff's successor counsel, plaintiff would not have lost at tria. The Appellate Division notes that defendants have not shown on this record that it was not their own alleged acts of malpractice that prevented plaintiff from prevailing in her federal lawsuit, including their failure to timely serve expert reports, obtain a discovery stay, and be truthful when they otherwise advised plaintiff and the court that the missed expert witness deadline was a deliberate, strategic decision.

Vioni v. Carey & Assoc., LLC, NY Slip Op 03805 (1st Dep't June 9, 2022)

Here is the decision.

Appellate practice.

A person is aggrieved within the meaning of CPLR 5511 when he asks for relief but relief is denied in whole or in part, or when someone opposes the relief asked against him, and the relief is granted in whole or in part. Here, since the defendant is not aggrieved by the order appealed from, the appeal must be dismissed. 

Countrywide Home Loans, Inc. v. Connors, NY Slip Op 0370 (2d Dep't June 8, 2022)

Here is the decision.

Labor Law § 200 and common-law negligence claims.

A general contractor's general supervisory authority, without more, is insufficient to impose liability.

Zherka v. Hudson Meridian Constr. Group LLC, NY Slip Op 03704 (1st Dep't June 7, 2022)

Here is the decision.

Appellate practice.

No appeal lies from the branches of the two orders denying reargument.

2497 Realty Corp. v. Fuertes, NY Slip Op 03678 (1st Dep't June 7, 2022)

Here is the decision.