Leave to amend a pleading.

Motions pursuant to CPLR 3025(b) for leave to amend a pleading are addressed to the sound discretion of the court. Leave should be granted where the amendment is neither palpably insufficient nor patently devoid of merit, and any claimed delay in seeking the amendment does not prejudice or surprise the opposing party. However, when leave is sought on the eve of trial, judicial discretion should be exercised sparingly. In exercising its discretion, the court should consider how long the amending party was aware of the facts upon which the motion is predicated, whether a reasonable excuse for the delay is offered, and whether any prejudice results therefrom.

Rice-Tamsen v. Tamsen, NY Slip Op 01110 (2d Dep't March 1, 2023)

Here is the decision.

A claim for failure to procure insurance.

A plaintiff meets its prima facie burden for summary judgment by establishing that the defendant did not comply with a contract provision requiring the procurement of insurance. The movant may make that showing by submitting copies of the contract requiring the procurement of insurance and of correspondence from the insurer of the party against whom summary judgment is sought indicating that the moving party was not named as an insured on any policies issued.

Dorset v. 285 Madison Avenue Owner LLC, NY Slip Op 01134 (1st Dep't March 2, 2023)

Here is the decision.

Joinder of parties.

Pursuant to CPLR 1003, "[p]arties may be added at any stage of [an] action by leave of court or by stipulation of all parties who have appeared." Pursuant to CPLR 3025(b),  a party may amend or supplement its pleading by setting forth additional or subsequent transactions or occurrences, at any time by leave of court or by stipulation of all parties. A plaintiff's failure to comply with CPLR 1003 when attempting to add a defendant is a jurisdictional defect, and an amended complaint that is not filed in accordance with CPLR 1003 and 3025 is a legal nullity, warranting dismissal.

Bodkin v. 112 Automative Ctr., Inc., NY Slip 01074 (2d Dep't March 1, 2023)

Here is the decision.

A void deed.

The complaint is dismissed and plaintiff's interest in the property is invalid. There is no evidence, on the face of the deed or otherwise, that the transferor had authority to transfer title to the property, and a corporate acknowledgement is insufficient. A deed based on forgery or obtained by false pretenses is void ab initio, as it is legally impossible for anyone to become a bona fide purchaser of real estate, or a purchaser at all, from one who never had any title. 

Watson v. Lampkin, NY Slip Op 01154 (1st Dep't March 2, 2023)

Here is the decision.

Witness depositions.

Pursuant to CPLR 3117(a)(3)(iii), a witness's deposition may be read at trial if the court determines that the witness is unable to attend or testify because of age, sickness, infirmity, or imprisonment. In exercising its discretion under the statute, the trial court may not act arbitrarily or deprive a litigant of a full opportunity to present its case.

244 Linwood One, LLC v. Tio Deli Grocery Corp., NY Slip Op 01072 (2d Dep't March 1, 2023)

Here is the decision.

Motions for summary judgment.

Tbe motion must be supported by an affidavit by a person having knowledge of the facts, pursuant to CPLR § 3212[b]. An affidavit that is not based on the affiant's personal knowledge may serve to authenticate a document for its admissibility as a business record, as long as the affiant demonstrates sufficient personal knowledge of the document in question, and the affidavit sufficiently establishes that the document falls within the business record exception to the hearsay rule.

Muslar v. Hall, NY Slip Op 01063 (1st Dep't February 28, 2023)

Here is the decision.

Venue.

Defendants' motion to change venue from Bronx County to Westchester County is denied as untimely made. Defendants have a reasonable excuse for their failure to make a timely demand to change venue. They learned of plaintiff's Westchester address on April 5, 2022, when they received plaintiff's medical authorizations and a copy of the Aided report, and made a demand to change venue the day the next day.after, on April 6, 2022. However, pursuant to CPLR 511(b), defendants had until April 21, 2022, 15 days after service of their demand, to make the motion. Defendants' motion is untimely, as it was made on April 26, 2022, 20 days after the demand. Defendants offered no explanation for their failure to move within the statutory time-limits.

Gomez v. Cypser, NY Slip Op 01060 (1st Dep't February 28, 2023)

Here is the decision.

Default judgments.

A plaintiff seeking leave to enter a default judgment under CPLR 3215 must file proof of: (1) service of the summons and the complaint; (2) the facts constituting the claim; and (3) the defendant's default. The defendant is deemed to have admitted all factual allegations contained in the complaint, and all reasonable inferences that flow from those allegations. However, the court does not have a mandatory or ministerial duty to grant a motion for leave to enter a default judgment, and must exercise its discretion in determining whether the movant has met its burden of stating a viable cause of action.

Alleyne v. Rutland Dev. Group, Inc. NY Slip Op 00976 (2d Dep't February 22, 2023)

Here is the decision.

Appellate practice.

Plaintiffs have already appealed an order determining that the law firm representing them was disqualified under Rules of Professional Conduct (22 NYCRR 1200.0) rule 3.7(b), as a partner was to be called as a material witness. The Appellate Division affirmed the order, and both the Appellate Division and the Court of Appeals denied leave to appeal. Since there has been no new evidence discovered after the prior order or any change in the applicable law, resolution of the issue on the prior appeal constitutes the law of the case and forecloses reexamination of the issue. Since the law firm was disqualified from representing plaintiffs in any capacity, it does not have standing to bring the appeal. The appeal must be dismissed.

Applehole v. Wyeth Ayerst Labs., NY Slip Op 01059 (1st Dep't February 28, 2023)

Here is the decision.

Dismissal for another action pending.

The tortious interference and fraudulent inducement claims were dismissed on the ground of another action pending, pursuant to CPLR 3211(a)(4). New York follows the first-in-time rule, and as those claims were initially brought in Delaware and the Delaware court took jurisdiction over them, the Delaware court must decide the claims. 

Resort Group, Inc. v. Cerberus Capital Mgt., L.P., NY Slip Op 01071 (1st Dep't February 28, 2023)

Here is the decision.

Motions to dismiss.

On a motion to dismiss the complaint for failure to state a cause of action, pursuant to CPLR 3211(a)(7), the court must afford the pleading a liberal construction, accept all facts as alleged in the pleading to be true, give the plaintiff the benefit of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal theory. Where evidentiary material is submitted and the motion is not converted into one for summary judgment, the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one. Unless it is shown that a material fact as claimed by the plaintiff to be one is not a fact and unless it can be said that no there is no significant dispute regarding it, the motion should be denied. If the motion is based on documentary evidence, pursuant to CPLR 3211(a)(1), it may be granted only where the documentary evidence utterly refutes the plaintiff's factual allegations, conclusively establishing a defense as a matter of law.

Alleyne v. Rutland Dev. Group, Inc., NY Slip Op 00975 (2d Dep't February 22, 2023

Here is the decision.