Motions to dismiss.

A motion to dismiss on the ground that the action is barred by documentary evidence pursuant to CPLR 3211(a)(1) may be granted only where the documentary evidence utterly refutes the plaintiff's factual allegations, conclusively establishing a defense as a matter of law. in order to be considered documentary, evidence must be unambiguous and of undisputed authenticity.

On a motion to dismiss for failure to state a cause of action pursuant to CPLR 3211(a)(7), the complaint is to be afforded a liberal construction, the facts alleged are presumed to be true, the plaintiff is afforded the benefit of every favorable inference, and the court is to determine only whether the facts as alleged fit within any cognizable legal theory. Upon the submission of evidentiary material in support of such a motion, the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one, and, unless it has been shown that a material fact as claimed by the plaintiff is not a fact at all and unless it can be said that there is no significant dispute exists regarding it, dismissal should not be granted.

B&B Maintenance Servs., Inc. v. Town of Oyster Bay, NY Slip Op[ 03399 (2d Dep't June 20, 2024)

Here is the decision.

Vacatur.

A defendant seeking to vacate a default in answering or appearing pursuant to CPLR 5015(a)(1) must demonstrate a reasonable excuse for the default and a potentially meritorious defense to the action. The determination of what constitutes a reasonable excuse lies within the sound discretion of the Supreme Court.  In determining whether there is a reasonable excuse, a court should consider all the relevant factors, including the extent of the delay, prejudice to the opposing party, whether the default was willful, and the strong public policy in favor of resolving cases on the merits.

Here, the defendant's excuse that he believed that the attorney representing him in separate litigation was addressing this action was unreasonable. Mere neglect is not a reasonable excuse. Likewise, his conclusory and unsubstantiated claim that he was hampered by the restrictions imposed in response to the COVID-19 pandemic does not amount to a reasonable excuse.

American Cancer Socy., Inc. v. Ashby, NY Slip Op 03398 (2d Dep't June 20, 2024)

Here is the decision.

A legal malpractice action.

Defendants' motion for summary judgment dismissing the complaint is granted. Defendants met their prima facie burden by submitting the affidavit of their legal expert, who averred that defendants did not depart from the applicable standard of care in prosecuting plaintiff's medical malpractice action. Defendants established that their decisions were reasonable and strategic courses of action. Plaintiff cannot show that, but for defendants' negligence, she would have obtained a verdict after trial that exceeded the settlement amount defendants negotiated.

Bet Yang v. Pagan Law Firm, P.C., NY Slip Op[ 03394 (1st Dep't June 20, 2024)

Here is the decision.

Intentional infliction of emotional distress.

As to the claim for intentional infliction of emotional distress, plaintiff has failed to allege all elements of that claim: (i) extreme and outrageous conduct; (ii) intent to cause, or disregard of a substantial probability of causing, severe emotional distress; (iii) a causal connection between the conduct and injury; and (iv) severe emotional distress. Although the complaint alleges that defendants engaged in extreme and outrageous conduct, plaintiff fails to adequately plead that defendants acted with the intent or disregard necessary to support his claim.

Furthermore, plaintiff's allegations regarding defendants' intentions and plaintiff's injuries state little more than bare legal conclusions and are not sufficiently particularized to demonstrate the required causal connection.

Zheng v. Centers Urgent Care Mgt., LLC, NY Slip Op 03395 (1st Dep't June 20, 2024)

Here is the decision.

Appointment of a receiver.

CPLR 6401(a) permits the court, upon a motion by a person with an apparent interest in property, to appoint a temporary receiver of the property where there is danger that it will be lost, materially injured or destroyed.  The appointment of a temporary receiver is an extreme remedy resulting in the taking and withholding of possession of property from a party without an adjudication on the merits. The motion seeking the appointment should be granted only where the moving party has made a clear and convincing evidentiary showing of irreparable loss or waste to the property and that a temporary receiver is needed to protect the movant's interests.

American Cancer Socy., Inc. v. Ashby, NY Slip Op 03398 (2d Dep't June 20, 2024)

Here is the decision.

Collateral estoppel.

The amended complaint is dismissed as barred by collateral estoppel. The allegations in plaintiff's third amended complaint in the federal action were substantially identical to her amended complaint herein. The federal action was dismissed because plaintiff failed to establish standing. She did not own the shares that were allegedly stolen; her husband did, although she claimed that she inherited those shares. The issue of plaintiff's injury was 'necessarily decided in the prior federal action between the parties, and plaintiff was granted a 'full and fair opportunity to contest' that finding.

While plaintiff brought the federal action in her capacity as representative of her husbands estate, she also brought individual claims, as she does here, and the dismissal of those individual claims bars plaintiff from relitigating those claims.

Plaintiff unpersuasively relies on the fact that the federal action was dismissed without prejudice. It is true that where a case is dismissed for lack of Article III standing, the dismissal must be without prejudice. However, that does not mean that a plaintiff may simply litigate elsewhere.

Tzanakakis v. Royce, NY Slip Op 03349 (1st Dep't June 18, 2024)

Here is the decision.

Premises liability.

A property owner has a duty to maintain the property in a reasonably safe condition. However, the owner has no duty to protect or warn against a condition that is both open and obvious and not inherently dangerous or trivial in nature. A defendant seeking summary judgment dismissing a cause of action on the ground that an alleged defect is trivial must make a prima facie showing that the defect is physically insignificant and that the characteristics of the defect or the surrounding circumstances do not increase the risks it poses. A defendant is considered to have constructive notice of a dangerous condition when it is visible and apparent, and has existed for a sufficient length of time prior to the accident to permit the defendant's employees to discover the condition and remedy it.

Bilancione v. Garden Homes Mgt. Corp., NY Slip Op 03157 (2d Dep't June 12, 2024)

Here is the decision.

Appellate practice.

A notice of appeal must be filed and served within 30 days after service by a party of the order and written notice of entry, pursuant to CPLR 5513[a]; 5515[1].

Wells Fargo Bank, N.A. v. Bajana, NY Slip Op 033650 (1st Dep't June 18, 2024)

Here is the decision.

Opposition to summary judgment.

Because plaintiff never amended his complaint to allege that defendants' counterclaims and third-party claims constituted retaliation for his complaint in this action, he may not raise those allegations in opposition to summary judgment.

Caputo v. IESI NY Corp., NY Slip Op 03227 (1st Dep't June 13, 2024)

Here is the decision.