A claim for unlawful termination and retaliation under the New York City Human Rights Law.

A complaint can survive dismissal if the plaintiff produces some evidence to suggest that at least one of the defendant's reason for the termination of employment was false, misleading, or incomplete. Here, the plaintiff failed to meet the standard. The general principle that the statute must be construed broadly in favor of plaintiffs is not a substitute for evidence.

Woolf v. Bloomberg L.P., NY Slp Op 07174 (1st Dep't December 15, 2022)

Here is the decision.

CPLR 3213.

The motion court properly granted plaintiff's motion for summary judgment in lieu of complaint to enforce its guaranty against defendants as guarantors of the lease with the nonparty tenant, as plaintiff established the existence of the guaranty, the underlying debt, and the guarantor's failure to perform under the guaranty.

122 E. 42nd St., LLC v. Scharf, NY Slip Op 07141 (1st Dep't December 15, 2022)

Here is the decision.

Vacatur.

A defendant seeking to vacate a judgment pursuant to CPLR 5015(a)(1) must demonstrate a reasonable excuse for the default and a potentially meritorious defense to the action,  Here, the defendant failed to provide a detailed and credible explanation for the default. Instead, the defendant submitted only an affidavit of an employee of its loan servicer averring that the defendant's agent for process had emailed the summons and complaint to the servicer, and the complaint had been misrouted in the servicer's email system. That conclusory and nondetailed allegation does not constitute a reasonable excuse warranting vacatur of the default. Accordingly, is not necessary to determine whether the defendant demonstrated a potentially meritorious defense to the action.

259 Milford, LLC v. FV-1, Inc., NY Slip Op 06898 (2d Dep't December 7, 2022)

Here is the decision.

Article 78.

The complaint seeks to challenge the suspension of plaintiffs' New York State driving privileges as arbitrary and capricious on grounds that they were not properly notified of the Drivers Responsibility Assessment (DRA) imposed on them. Because plaintiffs' claims are cognizable under CPLR article 78, they are time-barred by the four-month statute of limitations of CPLR 217[1]. The fact that plaintiffs plead constitutional violations is to no effect, as such claims can be brought in an article 78 proceeding.

Ugo-Alum v. New York State Dept. of Motor Vehs., NY Slip Op 07018 (1st Dep't December 8 2022)

Here is the decision.

A cause of action for negligent misrepresentation

In order to survive dismissal, the complaint must allege a special relationship of trust and confidence among the parties.  Here, the project at issue constitutes an arm's length business transaction, which precludes a claim that the parties had a relationship of trust and confidence. In addition, the cause of action requires that the special relationship between the parties exist before the relevant transaction, not as a result of it.

100 & 130 Biscayne, LLC v. EE NWT OM, LLC, NY Slip Op 06985 (1st Dep't December 8, 2022)

Here is the decision.

Summary judgement on liability in a rear-end collision.

Plaintiff established prima facie that defendant was negligent by submitting his affidavit that defendant's vehicle rear-ended his vehicle as he slowed down or stopped to accommodate another vehicle that was merging in from his right, and defendant failed to provide a nonnegligent explanation for the collision. Plaintiff is not required to establish absence of comparative negligence on his part to be entitled to summary judgment on liability. Plaintiff's motion is not premature, as defendant did not demonstrate that facts essential to opposing the motion are exclusively within the knowledge and control of plaintiff, or explain what evidence could be uncovered in discovery that would augment his defenses on liability. 

Vasquez v. Strickland, NY Slip Op 06876 (1st Dep't December 1, 2022)

Here is the decision.

A cause of action for misrepresentation.

Pursuant to CPLR 3016[b], the claim must be pleaded with particularity.

Velez v. Mitchell, NY Slip Op 06877 (1st Dep't December 1, 2022)

Here is the decision.

Proper service of process.

It is well-settled that the court does not have personal jurisdiction over a defendant when a plaintiff fails to properly effectuate service of process. A process server's affidavit establishes a prima facie case as to the method of service and, therefore, gives rise to a presumption of proper service. Although bare and unsubstantiated denials are insufficient to rebut the presumption of service, a sworn denial of service containing specific facts generally rebuts the presumption of proper service established by the affidavit of service and necessitates a hearing. A minor discrepancy between the appearance of the person allegedly served and the description of the person served contained in the affidavit of service is generally insufficient to raise an issue of fact warranting a hearing. In addition, the discrepancies must be substantiated by something more than a claim by the parties allegedly served that the descriptions of their appearances were incorrect.

Here, the affidavits of service relied upon by the plaintiff constitute prima facie proof of proper service upon the defendants.  The defendants dispute the process server's description of the individual served. Specifically, they contend that the individual's weight, skin color, and height were not described accurately in the affidavits of service. The alleged discrepancy as to weight was unsubstantiated. As to skin color, the affidavits of service refer to the individual's race rather than to the actual color of her skin. As the defendants did not refute the description of the individual's race as black, this aspect of the description is unchallenged. The alleged height discrepancy alone is too minor to necessitate a hearing, particularly under the circumstances of the service in this case, in which the process server spoke to the individual through a window.

Bank of N.Y. Mellon v. Blackwood, NY Slip Op 06780 (2d Dep't November 30, 2022)

Here is the decision.

Out-of-state notarizations.

In support of its motion for summary judgment, the plaintiff submitted an affidavit that was notarized outside of New York State and that was not accompanied by a certificate of conformity pursuant to CPLR 2309(c). This is not a fatal defect, as it may be corrected nunc pro tunc, or pursuant to CPLR 2001, which permits trial courts to disregard mistakes, omissions, defects, or irregularities at any time during an action where a substantial right of a party is not prejudiced.

American Express Natl. Bank v. Hoffman, NY Slip Op 06779 (2d Dep't November 30, 2022)

Here is the decision.

Appellate practice.

To the extent that on its cross-claim for indemnification defendant raises arguments for the first time on appeal, they are not properly before the Appellate Division.

Martinez v. Kingston 541, LLC, NY Slip Op 06638 (1st Dep't November 22, 2022)

Here is the decision.

Failure to plead an affirmative defense.

The plaintiff's contention that leave to amend was properly denied because the defendant waived the defense of lack of standing by failing to assert that defense in its answer or in a pre-answer motion to dismiss the complaint is without merit. A waiver that results from a failure to affirmatively plead a defense in accordance with CPLR 3018(b), including a waiver of the defense of standing, may be retracted through subsequent amendment to the pleadings.

Baharrie v. MRAG Dev., LLC, NY Slip Op 06683 (2d Dep't November 23, 2022)

Here is th decision.