Appellate practice.

An issue that is raised for the first time in the appellant's reply brief is not properly before the Appellate Division.

513 W. 26th Realty LLC v. George Billis Galleries, Inc., NY Slip Op 05308 (1st Dep't October 19, 2023)

Here is the decision.

The advocate-witness rule.

The disqualification of an attorney is a matter which rests within the sound discretion of the trial court. A party's entitlement to be represented in ongoing litigation by counsel of its own choosing is a valued right which should not be abridged absent a clear showing that disqualification is warranted, and the movant bears the burden on the motion.  A party moving to disqualify counsel on the ground that he may be called as a witness must demonstrate that (1) the testimony of the opposing party's counsel is necessary to its case, and (2) the testimony would be prejudicial to the opposing party. Testimony may be relevant and even highly useful but still not strictly necessary. A finding of necessity takes into account such factors as the significance of the matters, weight of the testimony, and availability of other evidence.

Gamez v. Lopez, NY Slip Op 05250 (2d Dep't October 18, 2023)

Here is the decision.

Appellate practice.

Although landlord purports to appeal from Supreme Court's denial of its motion to dismiss the affirmative defense of tenant harassment, it offers no argument in support of its position on this issue. Therefore, it has abandoned its appeal on this issue.

Westman Realty Co., LLC v. Nettles, NY Slip Op 05346 (1st Dep't October 19, 2023)

Here is the decision.

Premises liability.

In order to be entitled to summary judgment in a premises liability case, the defendant is required to show, prima facie, that it maintained its premises in a reasonably safe condition and that it did not have notice of or create a dangerous condition that posed a foreseeable risk of injury to persons expected to be on the premises. Whether there is a dangerous or defective condition so as to create liability depends on the peculiar facts and circumstances of each case and generally is a question of fact for the jury.

De La Cruz v. NJE Enters., Inc., NY Slip Op 05247 (2d Dep't October 18, 2023)

Here is the decision.

Entry of judgment.

CPLR 3215(c) provides that "[i]f the plaintiff fails to take proceedings for the entry of judgment within one year after [a] default, the court shall not enter judgment but shall dismiss the complaint as abandoned, without costs, upon its own initiative or on motion, unless sufficient cause is shown why the complaint should not be dismissed." In order to show sufficient cause, the plaintiff is required to demonstrate that it had a reasonable excuse for the delay and that it has a potentially meritorious action. Where the action is subject to a mandatory settlement conference, pursuant to CPLR 3408, the one-year deadline imposed by CPLR 3215(c) is tolled. 

Citimortgage, Inc. v. Kimmerling, NY Slip Op 05246 (2d Dep't October 18, 2023)

Here is the decision.

Powers of attorney.

Unless the power of attorney document expressly authorizes gifts, an attorney-in-fact, in exercising his fiduciary responsibilities to the principal, may not make a gift to himself or to a third-party of the money or property which is the subject of the agency relationship. Such a gift carries with it a presumption of impropriety and self-dealing, and the presumption can be overcome only with the clearest showing of the principal's intention to make the gift. Any gifts of the principal's assets must be in the best interest of the principal.

Choudhari v. Choudhari, NY Slip Op 05245 (2d Dep't October 18, 2023)

Here is the decision.

Appellate practice.

The Appellate Division declines to reach the arguments of defendants New York City Transit Authority and Metropolitan Transit Authority regarding their cross-motion pursuant to CPLR 3211(a) to dismiss the complaint as asserted against them. The cross-motion was not addressed in the order appealed from and, therefore, remains pending and undecided. The appeal is dismissed.

Braithwaite v. City of New York, NY Slip Op 05244 (2d Dep't October 18, 2023)

Here is the decision.

Medical malpractice.

The elements of a medical malpractice cause of action are a departure from accepted community standards of practice, and that the departure was a proximate cause of the plaintiff's injuries. On a motion for summary judgment, the defendant has the burden of establishing the absence of any departure from good and accepted medical practice or that, if there were a departure, the plaintiff was not injured thereby. If the defendant meets its burden, the plaintiff, in opposition, must submit evidentiary facts or materials to rebut the defendant's prima facie showing, but only as to those elements on which the defendant met the prima facie burden.

Blank v. Adiyody, NY Slip Op 05243 (2d Dep't October 18, 2023)

Here is the decision.

Motions to Dismiss.

A party may move for judgment dismissing one or more causes of action asserted against it on the ground that the cause of action may not be maintained because of the statute of limitations, pursuant to CPLR 3211(a)(5). The moving defendant must establish, prima facie, that the time in which to commence the action has expired. If the defendant makes the requisite showing, the burden shifts to the plaintiff to raise a question of fact as to whether the statute of limitations was tolled or otherwise inapplicable, or whether the plaintiff actually commenced the action within the applicable limitations period.

Bank of N.Y. Mellon v. DeMatteis, NY Slip Op (2d Dep't October 18, 2023)

Here is the decision.

Motions to dismiss.

On a motion to dismiss for failure to state a cause of action pursuant to CPLR 3211(a)(7), the court must afford the complaint a liberal construction, accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory.

5 Star Holdings NY, LLC v. Kohl's Dept. Store, Inc.,  NY Slip Op 05240 (2d Dep't October 18, 2023)

Here is the decision.

The doctrine of res ipsa loquitur.

Res ipsa loquitur is not a separate theory of liability but merely a common-sense application of the probative value of circumstantial evidence. The doctrine permits an inference of negligence, but does not prove it. 

Lowman v. Consolidated Edison of N.Y., Inc., NY Slip Op 05226 (1st Dep't October 17, 2023)

Here is the decision.