An order that does not decide a motion made on notice is not appealable as of right under CPLR 5701(a)(2). However, the Appellate Division may deem the notice of appeal from the order to be a motion for leave to appeal, and may grant the motion so as to hear the appeal.
Moye v. Mount Sinai Hosp., NY Slip Op 02828 (1st Dep't May 25, 2023)
Damages resulting from fraudulent inducement are meant to indemnify a plaintiff for the actual pecuniary loss sustained as the direct result of the fraud. Damages are calculated so as to compensate the plaintiff for what was lost because of the fraud, not for what might have been gained in the absence of any fraud. Damages are limited to the amount necessary to restore the plaintiff to its position before the fraud was committed.
NMR e-Tailing LLC v. Oak Inv. Partners, NY Slip Op 02830 (1st Dep't May 25, 2023)
A party seeking to vacate a default in opposing a motion must demonstrate both a reasonable excuse for the default and a potentially meritorious opposition to the motion, pursuant to CPLR 5015[a]. The determination of what constitutes a reasonable excuse lies within the sound discretion of the trial court. In excusing its discretion, the court may excuse delay or default resulting from law office failure, pursuant to CPLR 2005.
Biotek Servs., LLC v. South Is. Med. Assoc., P.C., NY Slip Op 02775 (2d Dep't May 24, 2023)
Pursuant to CPLR 4401, a motion for judgment as a matter of law may be made at the close of an opposing party's case, or at any time on the basis of admissions. A motion made prior to the close of the opposing party's case will be denied, even if the opposing party's ultimate success in the action is improbable.
Bank of N.Y. Mellon v. Waheed, NY Slip Op 02774 (2d Dep't May 24, 2023)
The causes of action for promissory estoppel and unjust enrichment are properly pleaded in the alternative to the breach of contract cause of action, as the matter presents a bona fide dispute as to the existence of a valid contract.
Tahari v. Narkis, NY Slip Op 02772 (1st Dep't May 23, 2023)
The defendants' contentions that the plaintiff fraudulently robosigned allonges to the note and failed to comply with RPAPL 1304 amount to allegations of intrinsic fraud. A defendant seeking to vacate a default pursuant to CPLR 5015(a)(3) based on intrinsic fraud must establish a reasonable excuse for the default and a potentially meritorious defense to the action. Since the defendants failed even to allege any reasonable excuse for either one of their defaults, the court denied that branch of their motion to vacate the order and judgment of foreclosure and sale.
Bank of Am., N.A. v. Anderson, NY Slip Op 02635 (2d Dep't May 17, 2023)
The Appellate Division affirmed the granting of defendants' motion which was pursuant to CPLR 3211(a)(7) to dismiss the cause of action alleging unjust enrichment. The existence of a valid contract governing the subject matter precludes recovery in quasi contract for events arising out of the same subject matter. An unjust enrichment claim is not available where it simply duplicates, or replaces, a conventional contract or tort claim. Here, recovery on an unjust enrichment theory is precluded, since that cause of action arises out of the same subject matter as the breach of contract cause of action, which remains a viable part of this case despite the denial of summary judgment to the plaintiff on the issue of liability.
Avery v. WJM Dev. Corp., NY Slip Op 02634 (2d Dep't May 17, 2023)
The court rejected defendant's contention that she cannot be held liable as a matter of law because the pile of snow and ice that caused plaintiff's accident was open and obvious. An open and obvious condition only relieves a property owner of its duty to warn, and not the duty to ensure that the premises is maintained in a reasonably safe condition.
Martinez v. Contreras, NY Slip Op 02742 (1st Dep't May 18, 2023)
