Discovery in a personal injury action.

The court providently exercised its broad discretion in denying the plaintiff's request for further discovery. The plaintiff failed to cite any specific misconduct by the defendants' counsel at the deposition of the building superintendent, and the Appellate Division's review of the transcript does not support the claim of a persistent pattern of frivolous, repetitive, or meritless conduct by the defendants' counsel sufficient to support sanctions. The Appellate Division notes that some objections were not well founded, but that the witness was generally permitted to answer the questions. In addition, many of the questions to which there were objections were vague or improper in other respects. The relevancy of the pictures and video in the record on appeal is unclear since no foundation was provided. The apparent conflict between the affidavit of the defendant's CEO and the testimony of the building superintendent does not warrant re-opening discovery, since the plaintiff filed a note of issue and certificate of readiness certifying that discovery was complete. In any event, the plaintiff had the opportunity to question the superintendent regarding the existence of records concerning mopping activities and complaints of a wet condition on the stairs. The plaintiff also failed to demonstrate that the defendants' failure to produce agreements between them violated outstanding court orders in that there is nothing in the record to indicate that the agreements were the subject of discovery requests that were not complied with by defendants.

Flowers v. Cora Realty Co. LLC, NY Slip Op 00029 (1st Dep't January 5, 2023)

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Appellate practice.

The Supreme Court denied defendant's motion to vacate the judgment of foreclosure, the foreclosure sale to a third party, and the subsequent sale to another third party on procedural grounds, and directed him to renew his motion by order to show cause. No appeal lies from the order, which merely directed defendant to resubmit his motion in proper form. 

AMK Capital Corp. v. CIFRE Realty Corp., NY Slip Op 00024 (1st Dep't January 5, 2023)

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Acquiring titlte by adverse possession.

Where the parties are tenants in common, the period required by RPAPL 541 is 20 years of continuous and exclusive possession before a cotenant may acquire full title by adverse possession. Even absent an ouster of the co-tenant, the occupying co-tenant must demonstrate open and overt acts which unmistakably repudiate a non-possessory owner's right by one possessing the property. Here, plaintiff's acts of exclusive ownership fulfill that criterion. Plaintiff's claim of right arising from the administrator's deed, which was recorded in the New York City Register's Office on or about November 19, 1992, vested 20 years later, in 2012. Under that claim of right, plaintiff constructed an open and notorious wood deck and other observable improvements on the property, encumbered the property with a construction loan which he later satisfied, and leased portions of the mixed-use building to third parties solely in plaintiff's name. There was no acknowledgement, by plaintiff or anyone else, of any other interest in the property. This satisfies the hostility element, as there is a rebuttable presumption of hostility when possession is accompanied by the usual acts of ownership.

Golobe v. Altchek, NY Slip Op 00031 (1st Dep't January 5, 2023)

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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

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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

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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)

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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)

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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)

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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)

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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)

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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)

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