Vacating a default.

A defendant seeking to vacate a default in answering a complaint pursuant to CPLR 5015(a)(1) must show both a reasonable excuse for the default and the existence of a potentially meritorious defense.

203-205 W. 8th St., LLC v. 203-205 W. 8th St. Loft, LLC, NY Slip Op 00194 (2d Dep't January 18, 2023)

Here is the decision.

Article 78.

CPLR article 78 may not be used to challenge a determination that was made in a civil action or a criminal proceeding,  except for a finding of summary contempt, pursuant to CPLR 7801[2].

Matter of Borrero v. Banks, NY Slip Op 00231 (1st Dep't January 19, 2023)

Here is the decision.

Appellate practice.

In this rent overcharge action, the plaintiffs' motion on the coverage period issue purported to be for both renewal and reargument. However, the motion on this point argued only that the court had overlooked or misapprehended the applicable law. Thus, the motion was for reargument only, the denial of which is not appealable. 

Alekna v. 207-217 W. 110 Portfolio Owner LLC, NY Slip Op 00178 (1st Dep't January 17, 2023)

Here is the decision.

Motions for leave to renew.

In this action to foreclose a mortgage, the Supreme Court properly denied the borrower's cross motion for leave to renew that branch of his motion which was to dismiss the complaint as against him, since the borrower failed to demonstrate that there had been a change in the law that would have altered the prior determination, pursuant to CPLR 2221[e][2].

Citimortgage, Inc. v. Warsi, NY Slip Op 00074 (2d Dep't January 11, 2023)

Here is the decision.

Attorney's fees.

The award of reasonable attorney's fees is within the sound discretion of the Supreme Court based upon such factors as the time and labor required, the difficulty of the issues involved, the skill required to handle the matter, and the effectiveness of the legal work performed.

Boruch v. Rommi Realty, LLC, NY Slip Op 00073 (2d Dep't January 11, 2023)

Here is the decision.

CPLR 3121.

The commencement of a personal injury action affirmatively puts the plaintiff's physical and/or mental condition in controversy, and, pursuant to the statute, the defendant may require the plaintiff to submit to an independent medical examination.

Pettinato v. EQR-Rivertower, LLC, NY Slip Op 00068 (1st Dep't January 10, 2023)

Here is the decision.

Intervening acts and liability in personal injury actions.

When an intervening act is extraordinary under the circumstances, unforeseeable, or wholly independent or far removed from the defendant's conduct, the act may break the causal nexus as a matter of law. However, that is not the case when the intervening act is a natural and foreseeable consequence of a circumstance created by the defendant. Where the general risk and character of the injuries is foreseeable, the defendant's failure to anticipate the exact manner of the accident does not preclude liability as a matter of law.

Floricic v. City of New York, NY Slip Op 00055 (1st Dep't January 10, 2023)

Here is the decision.

A claim for intentional infliction of emotional distress.

In order to survive dismissal, the complaint must allege extreme and outrageous conduct that could be considered utterly intolerable in a civilized community.

Sakthivel v. Industrious Staffing Co., LLC, NY Slip Op 00044 (1st Dep't January 5, 2023)

Here is the decision.

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)

Here is the decision.

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)

Here is the decision.

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)

Here is the decision.