Post-note of issue discovery.

The substitution of defendant's counsel, which occurred after the note of issue was filed, does not constitute an unusual or unanticipated circumstance that would warrant post-note of issue discovery, pursuant to 22 NYCRR 202.21[d].  In any event, defendant waived its right to conduct a post-note of issue medical examination of plaintiff by failing to comply with the deadlines set by the court in the multiple orders issued before and after his examination before trial. 

Villanueva v. National Frgt., Inc., NY Slip Op 00507 (1st Dep't February 2, 2023)

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Vacatur.

In order to vacate their default in opposing the defendant's motion pursuant to CPLR 3126 to strike the complaint and the plaintiffs' reply to the defendant's counterclaims, the plaintiffs were required to demonstrate a reasonable excuse for their default and a potentially meritorious opposition to the motion, pursuant to CPLR 5015[a][1]. The plaintiffs failed to demonstrate the requisite reasonable excuse. Contrary to the plaintiffs' contention that they were not aware that corporations must be represented by counsel pursuant to CPLR 321(a), the order appealed from specifically stated that counsel "is required for corporate entities." The record establishes that the order was served on the plaintiffs. Since the plaintiffs failed to proffer a reasonable excuse, the Appellate Division need not consider whether they demonstrated a potentially meritorious opposition to the defendant's motion.

Comprehensive Mental Assessment & Med. Care, P.C. v. Gusrae Kaplan Nusbaum, PLLC, NY Slip Op 00408 (2d Dep't February 1, 2023)

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A motion to change venue.

Defendant's motion was denied as untimely. Defendant does not dispute that it was aware of the venue selection clause in the parties' agreement, and that it had the fully executed agreement in its possession when plaintiff commenced this action. Nonetheless, before making its motion, defendant engaged in discovery in Bronx County for more than a year, exchanging documentary evidence with plaintiff and appearing at numerous court conferences in that county. Defendant argues, to no effect, that it could not have moved for a change of venue earlier because it became aware of the relevant facts only after it deposed plaintiff. While depositions had not been held at the time of the motion, the depositions were scheduled and held shortly after defendant filed its motion. Further, defendant has never explained why it waited 14 months after the action's commencement before seeking a change of venue, pursuant to CPLR 511[a].

Williams v. Bronx Harbor Health Care Complex, Inc., NY Slip Op 00508 (1st Dep't February 2, 2023)

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A negligence claim.

In order to make out a prima facie case, the plaintiff must demonstrate that the defendant owed a duty to the plaintiff; that the defendant breached that duty; and that the breach was a proximate cause of the plaintiff's injury. A duty may arise from negligent words or acts that induce reliance. There is no duty to come to the aid of a person in peril, whether the peril is medical or otherwise. However, a person who assumes a duty to act, even though gratuitously, may thereby become subject to the duty of acting carefully. The issue is whether the defendant's conduct put the plaintiff in a more vulnerable position than if the defendant had done nothing.

Bardio v. Rego II Borrower, LLC, NY Slip Op 00405 (2d Dep't February 1, 2023)

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The issue of standing in a mortgage foreclosure action.

Where the defendant's answer raises the issue, the plaintiff must prove its standing as part of its prima facie showing on a motion for summary judgment. The plaintiff established, prima facie, that it had standing to foreclose by attaching a copy of the note endorsed in blank to the summons and complaint when the action was commenced. The plaintiff also produced a copy of the mortgage, a copy of the unpaid note, and evidence of default. In opposition, the defendants failed to raise a triable issue of fact. The defendants' contentions regarding the validity of various note and mortgage assignments are irrelevant to the issue of the plaintiff's standing. Where the note is attached to the complaint, it is unnecessary to give factual details of the delivery in order to establish that possession was obtained before a particular date. 

Bank of N.Y. Mellon v. Swift, NY Slip Op 00404 (2d Dep't February 1, 2023)

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The doctrine of collateral estoppel.

Plaintiff's argument that the doctrine does not apply because the earlier action involved different claims is unavailing. The determination of an essential issue is binding in a subsequent action, even if it recurs in the context of a different claim.

Hong Hui Kuang v. Jie Wen Zhou, NY Slip Op 00397 (1st Dep't January 31, 2023)

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Appellate practice.

The Appellate Division may consider at argument raised for the first time on appeal where it is a purely legal argument that appears on the face of the record and could not have been avoided had it been raised before the Supreme Court.

SyndiGate Media, Inc. v. Comtex News Network, Inc., NY Slip Op 00401 (1st Dep't January 31, 2023)

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An alleged violation of the State Constitution.

There is no private right of action to recover damages for a violation of the New York State Constitution where the alleged wrong could be redressed by a common-law claim.

Berrio v. City of New York, NY Slip Op 00388 (1st Dep't January 31, 2023)

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Prosecuting an action anonymously.

In determining whether to grant a plaintiff's motion to proceed anonymously, the court must use its discretion in balancing the plaintiff's privacy interest against the presumption in favor of open trials and against any potential prejudice to the defendant. Among the factors the court should consider are: (1) whether the plaintiff is challenging governmental activity or an individual's actions; (2) whether the action requires disclosure of information of the utmost intimacy; (3) whether identification would put the plaintiff or an innocent third-party at risk of physical or mental injury; (4) whether the defendant would be prejudiced by allowing the plaintiff to proceed anonymousl; and (5) the public interest in guaranteeing open access to proceedings without denying litigants access to the justice system.

Roe v. Harborfields Cent. Sch. Dist., NY Slip Op 00341 (2d Dep't January 25 2023)

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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)

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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)

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