Motions to dismiss and summary judgment.

On a motion to dismiss made under CPLR 3211(a) or (b)], either party may submit any evidence that could properly be considered on a motion for summary judgment, regardless of whether issue has been joined. If a court intends to treat the motion as one for summary judgment, it must give the parties notice of its intention to do so, pursuant to CPLR 3211(c).

Champion Mtge. Co. v. Antoine, NY Slip Op 01176 (2d Dep't March 8, 2023)

Here is the decision.

Intentional infliction of emotional distress.

Under New York law, the cause of action has four elements: (i) extreme and outrageous conduct; (ii) intent to cause, or disregard of a substantial probability of causing, severe emotional distress; (iii) a causal connection between the conduct and injury; and (iv) severe emotional distress.

Brown v. New York Design Ctr., Inc., NY Slip Op 01228 (1st Dep't March 9, 2023)

Here is the decision.

Leave to amend.

Leave to amend a pleading is freely given in the absence of prejudice or surprise to the opposing party, pursuant to CPLR 3025[b]. However, the motion will be denied where the proposed amendment is palpably insufficient or patently devoid of merit.  Here, the plaintiffs' motion for leave to amend the complaint to add a claim for punitive damages is denied. The allegations are palpably insufficient to demonstrate that the defendant's conduct evinced a high degree of moral culpability or constituted willful or wanton negligence or recklessness. 

Buccigrossi v. Glatman, NY Slip Op 01174 (2d Dep't March 8, 2023)

Here is the decision.

Withdrawal from representation.

An attorney may withdraw from representing a client for good and sufficient cause. The attorney may be permitted to withdraw where the client refuses to pay reasonable legal fees. The decision to grant or deny permission for counsel to withdraw lies within the discretion of the trial court, and the court's decision will not be overturned absent a showing of an improvident exercise of discretion.

Bank of Am., N.A. v. Chadha, NY Slip Op 01173 (2d Dep't March 8, 2023)

Here is the decision.

Federal court decisions as precedent.

It is well-settled that lower federal court decisions are not binding on New York state courts. 

Teshabaeva v. Family Home Care Servs. of Brooklyn & Queens, Inc., NY Slip Op 01170 (1st Dep't March 7, 2023)

Here is the decision.

Appellate practice.

The Appellate Division may decline to consider an argument which is raised for the first time in a reply brief.

Indymac, F.S.B. v. Baroi, NY Slip Op 01142 (1st Dep't March 2, 2023)

Here is the decision.

A motion to renew.

Defendant's motion is granted in the interest of justice. In its moving papers, defendant does not advance a new legal theory, but, instead, presents new evidence from plaintiff's employer that plaintiff's accident occurred at a different site. Defendant also presents a reasonable excuse for its delay in obtaining the new evidence, namely, that its investigation into the accident was stymied by third-party defendant's refusal to comply with discovery and plaintiff's employer's refusal to comply with requests for information.

Sanchez v. Colorado Assoc., LLC, NY Slip Op 01151 (1st Dep't March 2 2023)

Here is the decision.

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.