The timing of a summary judgment motion.

The motion is not premature where the information at issue is within the non-movant's own knowledge.

Reyes v. Gropper, NY Slip Op 00383 (1st Dep't January 26, 2023)

Here is the decision.

A motion to renew and reargue.

The Appellate Division affirmed the denial of petitioner's motion to renew and reargue the petition to extend the time to file a spousal election pursuant to EPTL 5-1.1. The petitioner failed to point to new facts that would change the result, pursuant to CPLR 2221[e][2], [3], and he did not demonstrate that the interests of justice required renewal. As the court noted in the original motion, petitioner did not show reasonable cause for his failure to elect in a timely fashion, pursuant to EPTL 5-1.1-A[d][2]. Nothing he presented on renewal would change that result. The court properly concluded that petitioner was aware that he was required to make an election within a stated time period, and that despite his alleged infirmities and difficulties, he was able to challenge respondent's petition to probate a 2015 instrument that benefited decedent's siblings and to petition for the probate of a 2016 instrument that benefited himself. No appeal lies from denial of a motion for reargument.

Matter of Penick, NY Slip Op 00386 (1st Dep't January 26, 2023)

Here is the decision.

Statute of frauds.

The statute of frauds, codified at General Obligations Law § 5-701[a][1], requires agreements to be in writing when, by their very terms, there is absolutely no possibility in fact and law of full performance within one year. Here, the alleged agreement between the parties, by its terms, could have been terminated or completed within one year, however unlikely that might have been. Therefore, the agreement does not fall within the ambit of the statute.

Basal Trading & Sons Ltd. v. M&G Diamonds, Inc., NY Slip Op 00369 (1st Dep't January 26, 2023)

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A landlord's strict liability for dog bites.

In order to recover against a landlord for injuries caused by a tenant's dog on a theory of strict liability, the plaintiff must demonstrate that the landlord: (1) had notice that a dog was being harbored on the premises; (2) knew or should have known that the dog had vicious propensities; and (3) had sufficient control of the premises to allow the landlord to remove or confine the dog. Vicious propensities include the propensity to do any act that might endanger the safety of the persons and property of others. Evidence tending to prove that a dog has vicious propensities includes a prior attack, or the dog's tendency to growl, snap, or bare its teeth.

Quintanilla v. Schutt, NY Slip Op 00339 (2d Dep't January 25, 2023)

Here is the decision.

Forbearance agreements.

If the agreement is unambiguous, it will be enforced according to its terms. In the forbearance agreement at issue here, the defendant waived all defenses to foreclosure and consented to the entry of a judgment of foreclosure and sale.

3052 Brighton 1st St. II, LLC v. 3052 Brighton First, LLC, NY Slip Op 00197 (2d Dep't January 18, 2023)

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The assignment of claims.

A corporation may assign its claims to an individual plaintiff in order to evade a CPLR 3211(a) motion to dismiss. However, here the purported assignment was ineffective because it expressly stated that it did not assign any claims to the plaintiff.

Matter of Nieblas-Love v. New York City Hous. Auth., NY Slip Op 00240 (1st Dep't January 19, 2023)

Here is the decision.

Limited discovery.

The Appellate Division affirmed the denial of the petition to quash an out-of-state subpoena pursuant to CPLR 3119(e), and the granting of the motion to compel compliance with the subpoena. The information sought had been judicially determined to be relevant to the matrimonial proceedings pending in Pennsylvania, and that determination is entitled to full faith and credit without further inquiry. Limited discovery of the petitioner's mental health records is not in clear violation of New York law, pursuant to Mental Hygiene Law § 33.13[c][1], where the relevance of the information sought has been established.  In any event, since the issue of whether the petitioner's right to privacy and doctor-patient privilege precludes limited discovery of his mental health records has been litigated in the Pennsylvania courts, he is collaterally estopped from relitigating the issue in New York.

Suresh v. Krishnamani, NY Slip Op 00247 (1st Dep't January 19, 2023)

Here is the decision.

Preliminary injunctions.

The decision to grant or deny a preliminary injunction lies in the sound discretion of the Supreme Court. While the purpose of the preliminary injunction is to preserve the status quo pending a trial, the remedy is considered a drastic one and it should be granted sparingly. In order to be entitled to a preliminary injunction, a movant must establish (1) a probability of success on the merits; (2) the danger of irreparable injury in the absence of injunctive relief; and (3) a balance of the equities in the movant's favor.

203-205 N8 Mb, LLC v. 203-205 W. 8th St., LLC, NY Slip Op 00196 (2d Dep't January 18, 2023)

Here is the decision.

CPLR 5015(a).

Pursuant to the statute, a court that rendered a judgment or order may relieve a party from it on the grounds of excusable default; newly discovered evidence; fraud, misrepresentation, or other misconduct of an adverse party; lack of jurisdiction to render the judgment or order; or reversal, modification, or vacatur of a prior judgment or order on which it is based. In addition to the grounds set forth in the statute, a court, in the exercise of its discretion, may vacate its own judgment or order for sufficient reason and in the interests of substantial justice.

203-205 W. 8th St., LLC v. 203-205 W. 8th St. Loft, LLC, NY Slip Op 00195 (2d Dep't January 18, 2023)

Here is the decision.

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.