Appellate practice.

As a general rule, the Appellate Division does not consider any issue raised on a subsequent appeal that could have been raised on an earlier appeal that was dismissed for lack of prosecution, although it has the inherent jurisdiction to do so,

Alisa Auto Serv., Inc. v. Chernetskyy, NY Slip Op 03323 (2d Dep't June 21, 2023)

Here is the decision.

Requests for affirmative relief.

Ordinarily, a party who seeks affirmative relief should file a formal notice of motion or cross-motion, pursuant to CPLR 2215. However, courts have the discretion, in the interest of justice, to entertain a request for affirmative relief that is made in the opposition papers to a motion.

Trevino v. Pray, NY Slip Op 03426 (1st Dep't June 22, 2023)

Here is the decision.

Charging liens.

A law firm's right to enforce a charging lien under Judiciary Law § 475 is not forfeited in a case where the firm's representation is discontinued by mutual consent for reasons not rising to the level of misconduct or just cause.

Upfront Megatainment, Inc. v. Thiam, NY Slip Op 03428 (1st Dep't June 22, 2023)

Here is the decision.

                               

Claims for tortious interference with contract and prospective economic advantage.

The claims will be dismissed as facially insufficient where the plaintiff does not plead the requisite elements of the defendant's knowledge of its business relationships and/or contracts with third parties.

Karl Reeves, C.E.I.N.Y. Corp. v. Associated Newspapers, Ltd., NY Slip Op 03315 (1st Dep't June 20, 2023)

Here is the decision.

Contract law.

The fundamental precept of contract interpretation is that agreements are construed in accord with the parties' intent, and the best evidence of the parties' intention is what they say in their writing. Therefore, a written agreement that, on its face, is complete, clear, and unambiguous must be enforced according to the plain meaning of its terms. The threshold issues of whether a contract is unambiguous, and the subsequent construction and interpretation of an unambiguous contract, are for the court to decide.

249-251 Brighton Beach Ave., LLC v. 249 Brighton Corp., NY Slip Op 03321 (2d Dep't June 21, 2023)

Here is the decision.

An insurance carrier's duty to defend.

The carrier's duty to defend arises whenever the allegations in the complaint state a cause of action that gives rise to the reasonable possibility of recovery under the policy. If any of the claims against an insured arguably arise from a covered event, the insurer is required to defend the entire action.  There is a duty defend if the allegations of the complaint are even potentially within the language of the insurance policy.

1416 Coney Is. Realty, LLC v. Wesco Ins. Co., NY Slip Op 03320 (2d Dep't June 21, 2023)

Here is the decision.

Contract law.

A contract that assumes an obligation to indemnify must be strictly construed, and the court will not read into the agreement a specific obligation where none is plainly stated.

Tavarez v LIC Dev. Owner L.P., NY Slip Op 03318 (1st Dep't June 20 2023)

Here is the decision.

Contract law.

On the breach of contract claim, plaintiffs are limited to out-of-pocket damages for any breach of the parties' letter of intent, which was merely an agreement to agree.

Cresco Labs N.Y., LLC v. Fiorello Pharms., Inc., NY Slip Op 03305 (1st Dep't June 20, 2023)

Here is the decision.

Respondeat superior.

The doctrine of respondeat superior makes an employer vicariously liable for torts committed by an employee acting within the scope of the employment if the tortious conduct is generally foreseeable and a natural incident of the employment. An employee's actions fall within the scope of employment where the purpose in performing the actions is to further the employer's interest, or to carry out duties incumbent upon the employee in furthering the employer's business. An employee's action also falls within the scope of employment when it is performed while the employee is engaged generally in the employer's business, or if the act may reasonably be said to be necessary or incidental to the employment. Employer responsibility is broad, especially where the employee's activity may be regarded as incidental to the furtherance of the employer's interest. 

An employer cannot be held vicariously liable for its employee's alleged tortious conduct if the employee was acting solely for personal motives unrelated to the furtherance of the employer's business at the time of the incident. Generally, whether an employee was acting within the scope of his employment is a question of fact for the jury.

Cobena v. Antonioli, NY Slip Op 03221 (2d Dep't June 14, 2023_

Here is the decision.