A claim for negligence and detrimental reliance.

Defendants had a building safety protocol in which no one would be sent up to an apartment without a front desk announcement followed by tenant consent. Plaintiff testified that she knew of and relied on that protocol in unlocking her door while waiting for the food delivery when the building's doorman assaulted her. The motion to dismiss is denied.

Sackas v. 240 E. 46th St. Condominium, NY Slip Op 00046 (1st Dep't January 5, 2023

Here is the decision.

Dismissal for neglect to prosecute.

CPLR 205(a) states, "If an action is timely commenced and is terminated in any other manner than by a voluntary discontinuance, a failure to obtain personal jurisdiction over the defendant, a dismissal of the complaint for neglect to prosecute the action, or a final judgment on the merits, the plaintiff . . . may commence a new action upon the same transaction or occurrence or series of transactions or occurrences within six months after the termination . . . . Where a dismissal is one for neglect to prosecute the action made pursuant to [CPLR 3216] or otherwise, the judge shall set forth on the record the specific conduct constituting the neglect, which conduct shall demonstrate a general pattern of delay." 

An action that was dismissed for neglect does not lose the benefit of CPLR 205(a)'s six-month recommencement period unless there is a general pattern of delay in proceeding with the litigation. If the prior dismissal was based on neglect of a lesser magnitude, the plaintiff can take advantage of CPLR 205(a)'s recommencement benefit. In addition, the'general pattern of delay must have been set forth in the record of the court in which the neglect-to-prosecute dismissal occurred.

U.S. Bank Natl. Assn. v. Fox, NY Slip Op 00046 (1st Dep't January 5, 2023

Here is the decision.

The standard on a motion to dismiss.

In considering the motion, the facts pleaded are presumed to be true and given every favorable inference. However, bare legal conclusions and factual claims that are either inherently incredible or flatly contradicted by documentary evidence are not entitled to such consideration. Here, the defendant-hospital cannot be liable under a malpractice theory, as there is no physician-patient relationship between it and the decedent.

Yovich v. Monefiore Nyack Hosp., NY Slip Op 00047 (1st Dep't January 5, 2023)

Here is the decision.

Article 78.

A petition to annul an administrative agency's determination will be denied where the determination is based on the agency's rational interpretation of its own regulations in its area of expertise.

Matter of 118 Duane LLC v. New York State Div. of Hous. & Community Renewal, NY Slip Op 00023 (1st Dep't January 5, 2023)

Here is the decision.

The defense of assumption of the risk.

Plaintiff is an experienced tennis coach who was injured while conducting a tennis lesson on a rubber floor area that was damaged with depressions and cracks. Defendant established that plaintiff assumed the risks associated with playing or coaching tennis on this rubber floor area, which was not a tennis court and had open and obvious defects. The defense of assumption of the risk does not require that a plaintiff  foresee the exact manner in which the injury occurs. All that is required is that the plaintiff be aware of the potential for injury of the mechanism from which the injury results. The fact that plaintiff was coaching and not playing is of no consequence. Defendant's motion to dismiss the complaint is granted.

Oetiker v. Hudson Riv. Park Trust, NY Slip Op 07509 (1st Dep't December 29, 2022)

Here is the decision.

Appellate practice.

No appeal lies from the denial of a motion for reargument. In any event, the underlying order granting defendant's motion to dismiss pursuant to CPLR 3211(a)(2) and (7) was entered upon plaintiff's default. Therefore, the proper remedy was for plaintiff to move under CPLR 5501(a) to vacate the default, not to move for leave to reargue.

Aaron v. Kennedy, NY Slip Op 07493 (1st Dep't December 29, 2022)

Here is the decision.

A claim for promissory estoppel.

A plaintiff cannot recover under a cause of action alleging promissory estoppel based on a contract. Here, though, the defendants dispute that there is a contract.  Therefore, at this stage of the litigation, the defendants' basis for dismissal of the promissory estoppel cause of action fails.

Arnone v. Burke, NY Slip Op 07427 (2d Dep't December 28, 2022)

Here is the decision.

A declaratory judgment action.

On a motion to dismiss for failure to state a cause of action, the only question is whether the plaintiff presents a case that invokes the court's jurisdiction to make a declaratory judgment, and not whether the plaintiff is entitled to a favorable declaration. 

General Ins. v. Piquion, NY Slip Op 07500 (1st Dep't December 29, 2022)

Here is the decision.

Tortious interference with contract.

The elements of the cause of action are (1) the existence of a valid contract between the plaintiff and a third party; (2) the defendant's knowledge of that contract; (3)  the defendant's intentional procurement of the third party's breach of that contract, without justification; and (4) damages to the plaintiff.

Arnone v. Burke, NY Slip Op 07427 (2d Dep't December 28, 2022)

Here is the decision.

An easement by prescription.

In order to acquire the easement, it must be shown that its use was hostile, open and notorious, and continuous and uninterrupted for the prescriptive period of 10 years. Where there is clear and convincing evidence that use of the easement was open, notorious, continuous, and undisputed, it is presumed that the use was hostile. The burden then shifts to the opponent of the allegedly prescriptive easement to show that the use was permissive. Permission may be inferred where the relationship between the dominant and servient estates evinced neighborly cooperation and accommodation.

Aboulissan v. Kingsland 79, LLC, NY Slip Op 07426 (2d Dep't December 28, 2022)

Here is the decision.

A claim for aiding and abetting a breach of fiduciary duty.

An essential element of the cause of action is actual knowledge of the breach. To the extent that the complaint alleges constructive knowledge, it is insufficient and will be dismissed.

Continental Indus. Group, Inc. v .Ustuntas, NY Slip Op 07294 (1st Dep't December 22, 2022)

Here is the decision.