Venue.

Defendant's motion to change venue is denied. Pursuant to CPLR 510 [1], Defendant met its threshold burden of raising an issue as to plaintiff's residence by annexing documents indicating that plaintiff was a Connecticut resident. However, in opposition, plaintiff, through his detailed affidavit and corroborating documents, sufficiently established his bona fide residency,with some degree of permanency, in Bronx County.

Vaccaro v. Mercedes-Benz USA, NY Slip Op 06603 (1st Dep't December 21, 2023)

Here is the decision.

Summary judgment.

Summary judgment may be awarded on an unpleaded cause of action if the proof supports the cause of action  and if the opposing party has not been misled to its prejudice.

Castillo v. Hawke Enters., LLC, NY Slip Op 06505 (2d Dep't December 20, 2023)

Here is the decision.

Leave to renew.

CPLR 2221(e)(2) and (3) provides, in relevant part, that "[a] motion for leave to renew . . . shall be based upon new facts not offered on the prior motion that would change the prior determination . . . [and] shall contain reasonable justification for the failure to present such facts on the prior motion." The requirement of new or additional facts that were unknown to the movant is a flexible one and the court, in its discretion, may grant renewal, in the interest of justice, upon facts which were known to the movant at the time the original motion was made. In this slip-and-fall action, the plaintiff established a reasonable justification for her failure to provide the video recording of the condition of the floor in her opposition to the defendant's summary judgment motion. Renewal is granted.

Blackman v. Red Lobster Hospitality, LLC, NY Slip Op 06504 (2d Dep't December 20, 2023)

Here is the decision.

Defaults.

In the absence of an already existing default order or judgment, an affidavit of merit is not necessary when opposing a plaintiff's motion for a default judgment or in seeking to compel a plaintiff to accept the defendant's late answer.

Watts v. Garcia, NY Slip Op 06604 (1st Dep't December 21, 2023)

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Employment discrimination under New York's Human Rights Laws.

A plaintiff alleging employment discrimination in violation of the State statute must establish (1) membership in a protected class; (2)  qualification to hold the position; and (3) an adverse employment acttion, taken (4) under circumstances giving rise to an inference of discrimination.  Under the City statute, the plaintiff must establish that, on the basis of a protected characteristic, he was subject to an unfavorable employment change or treated less well than other employees. Under both the State and City statutes, the action must be commenced within three years of the alleged unlawful discriminatory practice or act of discriminatory harassment.

Acala v. Mintz Levin Cohn Ferris Glovsky & Popeo, P.C., NY Slip Op 06345 (2d Dep't December 13, 2023)

Here is the decision.

Motions to consolidate.

Consolidation serves the interest of judicial economy and the prevention of inconsistent determinations based on the same facts, pursuant to CPLR 602[a]. The motion will be granted where the two actions arise out of the same underlying occurrence, and they have common questions of law and significantly overlapping facts. Opposition to the motion requires a showing that consolidation would prejudice a substantial right

Steele v. Consolidated Edison Co. of N.Y., Inc., NY Slip Op 06498 (1st Dep't December 19, 2023)

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Summary judgment.

Plaintiff's expert relied on plaintiff's testimony as the basis for his opinion rather than relying on his own observations. Therefore,  his opinion is speculative and fails to raise a question of fact sufficient to defeat defendant's motion.

Williams v. Plaxall Realty Sub, LLC, NY Slip Op 06463 (1st Dep't December 14, 2023)

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Prima facie tort.

In order to state a cause of action to recover damages for prima facie tort, the plaintiff must allege: (1) the intentional infliction of harm, (2) which results in special damages, (3) without any excuse or justification, (4) by an act or a series of acts which would otherwise be lawful. The complaint must plead the defendant's malicious intent or disinterested malevolence as the sole motive for the challenged conduct.

Banschick v. Johnson, NY Slip Op 06231 (2d Dep't December 6, 2023)

Here is the decision.

Notices to admit.

CPLR 3123(a) authorizes the service of a notice to admit upon a party, and provides that if a timely response thereto is not served, the contents of the notice are deemed admitted. However, the only purpose of the notice is to eliminate from contention those matters which are not in dispute in the litigation and which may be readily disposed of. The notice may not be used to obtain information in lieu of other disclosure devices, or to compel admissions of fundamental and material issues or contested ultimate facts.

American Bldrs. & Contrs. Supply Co., Inc. v. Vinyl is Final, Inc., NY Slip Op 06346 (2d Dep't December 13, 2023)

Here is the decision.