An order of preclusion.

For failure to comply with discovery, plaintiffs are precluded from offering evidence at trial. Plaintiffs' conclusory and unsubstantiated claim of law office failure does not excuse their default in failing to comply with discovery demands and numerous court orders for over two years.

T.W. v. Phillip Bus Serv., NY Slip Op 00750 (1st Dep't February 9, 2023)

Here is the decision.

Amending an answer.

The defendant filed her amended answer 20 months after filing the original answer, well beyond the period within which an amended pleading could have been served as of right, pursuant to CPLR 3025[a], without obtaining leave of court or the parties' stipulation. However, the plaintiff did not reject the amended answer. By retaining the amended pleading without objection, the plaintiff waived any objection as to untimeliness. The motion to strike the amended answer as untimely is denied.

Citibank, N.A. v. Saldarriaga, NY Slip Op 00647 (2d Dep't February 8, 2023)

Here is the decision.

Extending time to effect service.

In the interest of justice, plaintiff's motion for an extension of time is granted, pursuant to  CPLR 306-b. The interest of justice standard requires a careful judicial analysis of the factual setting of the case and a balancing of the competing interests as presented by the parties. In applying the standard, the court may consider diligence, or lack thereof, along with any other relevant factor, including expiration of the statute of limitations, the meritorious nature of the cause of action, the length of delay in service, the promptness of a plaintiff's request for the extension of time, and prejudice to defendant. No one factor is determinative. Here, the record demonstrates that the statute of limitations had not expired at the time of plaintiff's motion; plaintiff alleges potentially meritorious claims; there was a short delay in service; plaintiff promptly requested an extension; and defendant has not demonstrated that he would be prejudiced if the extension were granted.

Gjurashaj v. ABM Indus. Groups, LLC, NY Slip Op 00753 (1st Dep't February 9, 2023)

Here is the decision.

A premises liability case.

A defendant establishes its entitlement to summary judgment by showing that it neither created the allegedly dangerous or defective condition nor had actual or constructive notice of the condition. The defendant can make its prima facie showing by establishing that the plaintiff cannot identify the cause of his fall without engaging in speculation. However, a plaintiff's inability to testify as to how an accident occurred does not require dismissal where negligence and causation can be established with circumstantial evidence. To that end,  the record must render the other possible causes sufficiently remote to enable the trier of fact to reach a verdict based upon the logical inferences to be drawn from the evidence, and not upon speculation.

Buckstine v. Schor, NY Slip Op 00646 (2d Dep't February 8, 2023)

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Appellate practice.

Plaintiffs' failure to submit opposition papers to defendants' motion to dismiss does not render the order an unappealable order entered upon default, pursuant to CPLR 5511, as plaintiff appeared and orally opposed the motion during the final discovery conference.

Ganz v. Florman, NY Slip Op 00632 (1st Dep't February 7, 2023)

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Court holiday.

Amending a pleading.

The motion court providently exercised its discretion in granting plaintiff's motion for leave to amend the complaint to correct defendant's name, pursuant to CPLR 305(c).  Defendant did not dispute proper service, except by asserting that a defense based on improper service was raised in the answer. However, that defense did not specify any way in which service was improper. Moreover, defendant did not move to dismiss the complaint for improper service within 60 days of asserting the defense, thereby waiving any objection based on service, pursuant to CPLR 3211[e].

Mariette v. Amber Ct. of Pelham Gardens LHCSA, LLC, NY Slip Op 00490 (1st Dep't February 2, 2023)

Here is the decision.

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)

Here is the decision.

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)

Here is the decision.

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)

Here is the decision.

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)

Here is the decision.