CPLR 3211[f].

The plaintiff failed to establish that the defendants were in default, as the plaintiff did not assert that he had served the order, with notice of entry, denying the defendants' motion to dismiss. Absent service of the order with notice of entry, the time within which the defendants were required to answer the complaint did not begin to run.

Citibank, N.A. v. Brooks, NY Slip Op 01142 (2d Dep't February 19, 2020)

Here is the decision.

CPLR 3211[c].

The Supreme Court may convert a defendant's motion to dismiss into a motion for summary judgment after providing the parties with notice of its intent to treat the motion as one for summary judgment and the opportunity to make supplemental submissions.

Gottlieb v. Colonel, NY Slip Op 01149 (2d Dep't February 19, 2020)

Here is the decision.

Special Referees.

It is well settled that the Special Referee's report will be confirmed when the findings contained therein are supported by the record, the issues are clearly defined, and matters of credibility have been resolved.

Busche v. Grover, NY Slip Op 01255 (1st Dep't February 20, 2020)

Here is the decision.

A claim of employment discrimination.

A plaintiff can establish a prima facie case of discrimination by showing that: (1) he is a member of a protected class; (2) he was qualified to hold the position; (3) he was terminated from employment; and (4) the discharge occurred under circumstances giving rise to an inference of discrimination. In moving for summary judgment, a defendant need only establish, prima facie, the absence of any of these elements. Regarding the fourth element, the defendant can demonstrate that the termination did not occur under circumstances giving rise to an inference of discrimination by providing a legitimate, nondiscriminatory reason for the termination, and demonstrating the absence of a material issue of fact as to whether its reason for termination was merely pretextual.

Averbeck v. Culinary Inst. of Am., NY Slip Op 01139 (2d Dep't February 19, 2020)

Here is the decision.

A motion to dismiss for failure to state a cause of action.

When assessing a CPLR 3211(a)(7) motion to dismiss, the pleading is afforded a liberal construction, the facts as alleged in the complaint are accepted as true, the plaintiff is accorded the benefit of every possible favorable inference, and the court determines only whether the facts as alleged fit within any cognizable legal theory. The court may freely consider affidavits submitted by the plaintiff to remedy any defects in the complaint, and the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one.

Grassi & Co., CPAS, P.C. v. Honka, NY Slip Op 01262 (1st Dep't February 20, 2020)

Here is the decision.

A motion to compel.

The motion court did not improvidently exercise its discretion in denying defendants' motion to compel plaintiff to produce authorizations for his primary care providers, various specific medical providers, and his pharmacy records on the ground that plaintiff's allegations placed his entire medical condition in issue. Defendants failed to adduce any evidence showing that plaintiff sought treatment from his primary care physician or the named providers for the body parts that plaintiff alleges were injured in the accident at issue. Defendants also failed to adduce any evidence showing that plaintiff received prescriptions to treat those body parts. Although defendants claim they are entitled to medical records relating to the aggravation of injuries sustained in a prior motor vehicle accident, they did not tailor their demands accordingly.

Lafata v. Verizon Communications Inc., NY Slip Op 01272 (1st Dep't February 20, 2020)

Here is the decision.

The judicial proceedings privilege.

The allegedly defamatory statements about plaintiff made by defendant in affidavits in support of her motion for summary judgment in lieu of complaint are not "obviously impertinent" to the judicial proceedings in which they were made, and are absolutely protected by the privilege.

Peck v. Peck, NY Slip Op 01254 (1st Dep't February 20, 2020)

Here is the decision.

The doctrine of res ipsa.

An injured plaintiff seeking to apply res ipsa loquitur must establish, among other things, that the accident was caused by an instrumentality within the defendant's exclusive control.

Bunn v. City of New York, NY Slip Op 01247 (1st Dep't February 20, 2020)

Here is the decision.

Court of Claims.

The Court of Claims is a court of limited jurisdiction determined by the Constitution and statute. Its jurisdiction is generally limited to money damage awards against the State. Whether the essential nature of the claim is to recover money, or whether the monetary relief is incidental to the primary claim, is dependent upon the facts and issues presented in a particular case.

Aliksanyan v. State of New York, NY Slip Op 01137 (2d Dep't February 19, 2020)

Here is the decision.

CPLR 3213.

An absolute and unconditional guarantee of payment qualifies as an instrument for the payment of money only under CPLR 3213.

Punch Fashion, LLC v. Merchant Factors Corp., NY Slip Op 01121(1st Dep't February 18, 2020)

Here is the decision.

A motion to renew.

The court providently exercised its discretion in granting defendants' motion to renew their summary judgment motion, in order to correct a procedural error by the court, which had overlooked a prior order by another justice precluding plaintiff from submitting opposition papers. Contrary to plaintiff's contention, defendants had a right to enforce the preclusion order, which had been served upon her with notice of entry.

Ortiz v. Mar-Can Transp. Co., Inc., NY Slip Op 01036 (1st Dep't February 13, 2020)

Here is the decision.