Setting aside a verdict in the interest of justice.

A motion pursuant to CPLR 4404(a) to set aside a verdict and for a new trial in the interest of justice encompasses errors in the trial court's rulings on the admissibility of evidence, mistakes in the charge, misconduct, newly discovered evidence, and surprise. Here, the Supreme Court providently exercised its discretion in denying the plaintiff's motion to preclude the introduction of a certain photograph at trial on the basis that it was not timely disclosed. Precluding evidence that has been belatedly exchanged is appropriate where the offending party's violation was willful and contumacious, a finding that can be based upon the party's repeated failure to comply with discovery without a reasonable excuse. Plaintiff made no such showing.

Heller v. City of New York, NY Slip Op 03771 (2d Dep't July 12, 2023)

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Lack of personal jurisdiction.

The defendant did not assert the lack of personal jurisdiction in the answer, and thereby waived this defense under CPLR 3211(e). However, the defense can be interposed in an answer that is amended by leave of court pursuant to CPLR 3025(b).

Deutsche Bank Natl. Trust Co. v. Groder, NY Slip Op 03768 (2d Dep't July 12, 2023)

Here is the decision.

Dismissal under CPLR 3216.

Where the court issues a written demand to resume prosecution of the case, the court must "set forth the specific conduct constituting the neglect, which conduct shall demonstrate a general pattern of delay in proceeding with the litigation, " pursuant to CPLR 3216[b][3]. Where the court seeks sua sponte dismissal, it must give the parties notice and an opportunity to be heard, pursuant to CPLR 3216[a].

Designer Limousine, Inc. v. Authority Transp., Inc., NY Slip Op 03767 (2d Dep't July 12, 2023)

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Sanctions for frivolous conduct.

Pursuant to 22 NYCRR 130-1.1, a court, in its discretion, after a reasonable opportunity to be heard, may impose sanctions against a party or the attorney for a party, or both, for frivolous conduct. Conduct is frivolous if: (1) it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification, or reversal of existing law; (2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or (3) it asserts material factual statements that are false.

Crudele v. Price, NY Slip Op 03766 (2d Dep't July 12, 2023)

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Real estate brokerage commissions.

In order to recover a commission, the broker must establish: (1) that it is duly licensed; (2) that it had a contract, either express or implied, with the party to be charged with paying the commission; and (3) that it was the procuring cause of the transaction.

Commerce One Realty, Inc. v. 780 Humboldt, LLC, NY Slip Op 03763 (2d Dep't July 12, 2023)

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Law office failure.

Law office failure may constitute a reasonable excuse for a party's default if the claim of the failure is supported by a credible and detailed explanation. However, conclusory and unsubstantiated allegations of law office failure are insufficient to constitute a reasonable excuse. Neither do general allegations of neglect suffice. 

Columbus v. Kourtei, NY Slip Op 03762 (2d Dep't July 12, 2023)

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Summary judgment.

A defendant cannot prevail on a summary judgment motion merely by pointing to gaps in the plaintiff's proof.

Powell v. City of New York, NY Slip Op 03843 (1st Dep't July 13, 2023)

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Aiding and abetting and conspiracy claims.

On a motion to dismiss, the plaintiff's claims will stand or fall with the underlying tort. 

Iberdrola Energy Projects v. MUFG Union Bank, N.A., NY Slip Op 03841 (1st Dep't July 13, 2023)

Here is the decision.

Disqualification of an attorney.

The disqualification of an attorney is a matter that rests within the sound discretion of the trial court. Pursuant to Rule 3.7(a) of the Rules of Professional Conduct (22 NYCRR 1200.0), disqualification is warranted where it is likely that the attorney will be a witness on a significant issue of fact. Disqualification also is warranted in order to avoid the appearance of impropriety.

Alnoukari v. Nokari, NY Slip Op 03760 (2d Dep't July 12, 2023)

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Legal malpractice.

In order to state a cause of action to recover damages for legal malpractice, the plaintiff must allege: (1) that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession; and (2) that the attorney's breach of the duty proximately caused the plaintiff actual and ascertainable damages. In order to establish causation, the plaintiff must show that he would have prevailed in the underlying action or would not have incurred any damages, but for the lawyer's negligence. Conclusory allegations of damages or injuries predicated on speculation cannot suffice for a malpractice action, and dismissal is warranted where the allegations in the complaint are merely conclusory and speculative. 

The plaintiff commenced this action to recover damages arising from the defendants' prior legal representation in connection with a purchase agreement of the plaintiff's restaurant business. The defendants moved pursuant to CPLR 3211(a) to dismiss the complaint on the ground that the complaint failed to state a cause of action. The motion is granted because the plaintiff's allegation that the restaurant would have had increased profits but for the defendants' alleged malpractice is conclusory and speculative.

126 Main St., LLC v. Kriegsman, NY Slip Op 03758 (2d Dep't July 13, 2023)

Here is the decision.

Contract law.

The existence of a valid and enforceable written contract governing a particular subject matter ordinarily precludes recovery in quasi contract for events arising out of the same subject matter.  It makes no difference that the defendants are not parties to the contracts governing the dispute, as a nonsignatory to a contract cannot be held liable where there is an express contract covering the same subject matter.

Iberdrola Energy Projects v. MUFG Union Bank, N.A., NY Slip Op 03841 (1st Dep't July 13, 2023)

Here is the decision.