Appellate practice.

Where the issues raised on the appeal from so much of an order as denied that branch of the motion for leave to renew could not have been raised on the prior appeal, the Appellate Division will not dismiss the appeal from that portion of the order.

2005-2011 Realty, LLC v. Brailovskiy, NY Slip Op -4722 (2d Dep't August 26, 2020)

Here is the decision.

Common law indemnification.

Common-law, or implied, indemnification allows one who has been compelled to pay for another's wrong  to recover from the wrongdoer the damages it paid to the injured party. Common-law indemnification is warranted where a defendant's role in causing the plaintiff's injury is solely passive, and thus its liability is only vicarious. A party who has itself actually participated in the wrongdoing cannot receive the benefit of indemnification.

Hamed v. City of New York, NY Slip Op 04540 (2d Dep't August 19, 2020)

Here is the decision.

Moving for summary judgment in a negligence action.

The burden is on the defendant to establish that he was not at fault in the happening of the accident.

Flores v. Westchester County Bee Line, NY Slip Op 04538 (2d Dep't August 19, 2020)

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CPLR 3101(d)(1).

A treating physician is permitted to testify at trial regarding causation notwithstanding the failure to provide notice, and even if the physician had expressed no opinion regarding causation in a previously exchanged medical report.

Duman v. Scharf, NY Slip Op 04537 (2d Dep't August 19, 2020)

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CPLR 4404(a).

A trial court has the discretion to order a new trial in the interest of justice. The motion encompasses errors in the trial court's rulings on the admissibility of evidence, mistakes in the charge, misconduct, newly discovered evidence, and surprise. In considering the motion, the trial judge must decide whether substantial justice has been done and whether it is likely that the verdict has been affected. In arriving at the decision, the judge must look to common sense, experience, and a sense of fairness, rather than to precedents.

Duman v. Scharf, NY Slip Op 04537 (2d Dep't August 19, 2020)

Here is the decision.

An action to foreclose on a mortgage.

Actions to foreclose on a mortgage are governed by a six-year statute of limitations, pursuant to CPLR 213[4]. When the mortgage is payable in installments, as is the typical practice, an acceleration of the entire amount due begins the running of the statute of limitations on the entire debt. However, a party purporting to accelerate the debt must establish standing by demonstrating that, at the time the action was commenced, it was either the holder or an assignee of the underlying note.

Deutsche Bank Trust Co. Ams. v. Marous,  NY Slip Op 04536 (2d Dep't August 19, 2020)

Here is the decision.

Appellate practice.

The appeal must be dismissed because the right of direct appeal terminated with the entry of the order and judgment of foreclosure and sale.

Deutsche Bank Trust Co. Ams. v. Marous, NY Slip Op -4535 (2d Dep't August 19, 2020)

Here is the decision.

Preliminary injunctions.

In order to obtain a preliminary injunction, the movant must demonstrate a likelihood of success on the merits, irreparable injury absent the injunction, and a balancing of the equities in the movant's favor, pursuant to CPLR 6301. In deciding the motion, the court must be mindful that the injunction's purpose is to maintain the status quo, and not to determine the parties' ultimate rights. The decision to grant or deny the injunction lies within the sound discretion of the Supreme Court, and, absent unusual or compelling circumstances, the Appellate Division is reluctant to disturb the decision.

538 Morgan Ave. Props., LLC v. 538 Morgan Realty, LLC, NY Slip Op 04530 (2d Dep't August 19, 2020)

Here is the decision.

Motions to dismiss.

On a motion to dismiss for failure to state a claim, pursuant to CPLR 3211(a)(7), the court must afford the pleadings a liberal construction, pursuant to CPLR 3026, take the allegations in the complaint as true, and afford the plaintiff the benefit of every possible favorable inference. A motion court must only determine whether the facts, as alleged, fit within any cognizable legal theory. Whether a plaintiff can ultimately establish its allegations should not be considered in determining a motion to dismiss. Under CPLR 3211(a)(1), dismissal is warranted only if the documentary evidence conclusively establishes, as a matter of law, a defense to the asserted claims.

Charles Schwab Corp. v. Goldman Sachs Group, Inc., NY Slip Op 04520 (1st Dep't August 13,2020)

Here is the decision.

CPLR 3101(d)(1)(i).

The Supreme Court properly exercised its discretion in denying the plaintiffs' motion, made mid-trial, to preclude the defendants' expert from testifying about theories of causation not specifically referenced in the defendants' expert disclosure statement. The basis of the plaintiffs' objection to the expert disclosure was readily apparent from the face of the disclosure and could have been raised, and potentially cured, prior to trial.

Goldsmith v. Kipnis, NY Slip Op 04461 (2d Dep't August 12, 2020)

Here is the decision.

A claim of adverse possession.

To establish the claim, the occupation of the property must be hostile and under a claim of right, that is, a reasonable basis for believing that the property belongs to a particular party; actual; open and notorious; exclusive; and continuous for at least the statutory period of 10 years. The character of the possession must be such that it would give the owner a cause of action in ejectment against the occupier. In addition, where the claim of right is not founded upon a written instrument, the party asserting title by adverse possession must establish that the land was usually cultivated or improved or protected by a substantial inclosure. Because the acquisition of title by adverse possession is not favored under the law, the elements must be proven by clear and convincing evidence.

Blake Rising, LLC v. Atlantic Collision, Inc., NY Slip Op 04450 (2d Dep't August 12, 2020)

Here is the decision.