Defaults.

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. The determination of what constitutes a reasonable excuse lies within the sound discretion of the trial court. In making its determination, the court may excuse a delay or default resulting from law office failure. However, law office failure should not be excused where a default results not from an isolated, inadvertent mistake, but from repeated neglect, or where allegations of law office failure are vague, conclusory, and unsubstantiated.. Mere neglect is not a reasonable excuse.

Here, in support of her motion, the plaintiff' submitted affirmations of her attorney and her treating physician, but they failed to set forth a detailed and credible explanation for the plaintiff's failure to oppose the defendants' motion. The plaintiff's claim of law office failure was vague, conclusory, and constituted mere neglect, and did not establish a reasonable excuse for the default. Furthermore, the plaintiff failed to demonstrate a reasonable excuse for the lengthy delay in moving to vacate the default. 

Kyung Aye Yoon v. Haktung Lam, NY Slip Op 06731 (2d Dep't December 27, 2023)

Here is the decision.

Personal jurisdiction.

The motion to dismiss the complaint as against this defendant is granted for lack of personal jurisdiction pursuant to CPLR 302(a)(2) because there is no evidence that the fire doors that allegedly caused decedent-plaintiff's injury were manufactured in New York. To the contrary, the testimony revealed that defendant, a company incorporated in California, never manufactured any products outside of California. Thus, defendant did not commit a tortious act within the State so as to confer jurisdiction. In addition, there is insufficient evidence of defendant's requisite minimal contacts with New York so as to comport with due process in the exercise of personal jurisdiction over it.

Redell-Witte v. Algoma Hardwoods, Inc., NY Slip Op 06826 (1st Dep't December 28, 2023)

Here is the decision.

Discovery.

It is a fundamental principle in civil litigation that there shall be full disclosure of all matter that is material and necessary in the prosecution or defense of an action. However, a party is not entitled to unlimited, uncontrolled, and unfettered disclosure, and the supervision of discovery is left to the trial court's broad discretion. Absent an improvident exercise of that discretion, its determination will not be disturbed on appeal Pursuant to CPLR 3103(a), the Supreme Court may issue a protective order precluding disclosure that is palpably improper in that it seeks irrelevant and/or confidential information, or is overly broad and burdensome.

Kopelevich & Feldsherova, P.C. v. Geller Law Group, P.C., NY Slip Op 06730 (2d Dep't December 27, 2023)

Here is the decision.

Notices of claim.

A notice of claim must set forth the nature of the claim, and the time, place, and manner in which the claim arose.  Evidence extrinsic to the notice cannot be used to substantively change the nature of the claim or the theory of liability, since causes of action or legal theories may not be raised in the complaint, or in a bill of particulars, that were not set forth in the notice of claim and that change the nature of the claim or assert a new one. Contrary to the plaintiff's contention, his claim in his bill of particulars that the City created the dangerous condition asserted a new theory of affirmative negligence that was not raised in his notice of claim. Accordingly, this theory cannot be considered in evaluating the City's motion for summary judgment.

Jacobwitz v. City of New York, NY Slip Op 06729 (2d Dep't December 27, 2023)

Here is the decision.

Appellate practice.

A party cannot raise an argument on appeal where it had defaulted on the motion at issue, thereby failing to raise that argument below.

Hamilton v. 208-214 E. 25h St., LLC, NY Slip Op 06594 (1st Dep't December 21, 2023)

Here is the decision.

Vacating a note of issue.

A motion to vacate the note of issue more than 20 days after it was filed requires a showing of good cause for the delay, or of substantial prejudice to the movant because of unusual or unanticipated circumstances subsequent to the filing, under 22 NYCRR 202.21 [d], [e].  A lack of due diligence in seeking discovery does not constitute an unusual or unanticipated circumstance.

Peterson v. City of New York, NY Slip Op 06601 (1st Dep't December 21, 2023)

Here is the decision.

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)

Here is the decision.