Claims sounding in subornation of perjury in a prior litigation.

The claim is not permitted in a subsequent plenary action.

LabMD, Inc. v. Buchanan, NY Slip Op 04084 (1st Dep't June 24, 2021)

Here is the decision.

Appellate practice.

The appeal from orders which granted defendants' motions to strike the complaint based on plaintiff's failure to provide court-ordered discovery was dismissed, as taken from nonappealable orders. Plaintiff may not appeal from these orders as they were entered upon his default, pursuant to CPLR 5511. Plaintiff's proper recourse is to move to vacate his default and, if necessary, appeal from the denial of that motion.

Manrique v. Delgado, NY Slip Op 04085 (1st Dep't June 24, 2021)

Here is the decision.

CPLR 2214(c).

Plaintiffs sought to recover the security deposit given in connection with their lease of a condominium unit owned by defendants. The court granted plaintiffs' motion to strike defendants' answer for failure to comply with discovery obligations, and thereupon granted judgment in favor of plaintiffs in the amount of the deposit plus statutory interest. Contrary to defendants' arguments, the motion court could consider the lease, even though it was not submitted by plaintiffs in support of their motion to strike, because it had been e-filed in connection with an earlier motion.

Quadracci v. Freeman, NY Slip Op 04094 (1st Dep't June 24, 2021)

Here is the decision.

The continuous treatment doctrine.

Where the medical malpractice claim is predicated on an alleged failure to properly diagnose a condition, the continuous treatment doctrine may apply as long as the symptoms being treated indicate the presence of that condition. However, routine" or diagnostic examinations, even when conducted repeatedly and over a period of time, do not constitute a course of treatment for the purpose of tolling the statute of limitations.

Vines v. New York City Health & Hosps. Corp., NY Slip Op 04096 (1st Dep't June 23, 2021)

Here is the decision.

A cause of action for breach of fiduciary duty.

In order to state the claim, the plaintiff must allege that (1) the defendant owed him a fiduciary duty; (2) the defendant committed misconduct; and (3) the plaintiff suffered damages caused by that misconduct.

Besen v. Farhadian, NY Slip Op 04080 (1st Dep't June 24, 2021)

Here is the decision.

CPLR 301.

Plaintiff failed to show that Defendant is domiciled in New York so as to confer general personal jurisdiction. Defendant is headquartered and has its principal place of business in Dubai, UAE, and it operates flights internationally serving 156 airports in 84 countries. Although Defendant has an office in New York County, it cannot be said that it is 'at home' in New York. In addition, its registration to do business in New York does not constitute consent to submit to general jurisdiction in New York for causes of action that are unrelated to its affiliation with New York.

Okoroafor v. Emirates Airlines, NY Slip Op 03994 (1st Dep't June 22, 2021)

Here is the decision.

Legal malpractice.

The Appellate Division, upon a jury verdict in favor of defendant, and appeal therefrom, affirmed the denial of plaintiff's post-trial motion to set aside the jury's verdict. It is well-settled that in order to recover damages for legal malpractice, a plaintiff must demonstrate that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession and that the attorney's breach of this duty proximately caused plaintiff to sustain actual and ascertainable damages. In order to establish causation, a plaintiff must show that, but for the attorney's negligence, he would have prevailed in the underlying action. Here, the jury's verdict that defendant did not depart from the requisite standard of care by failing to call a surgeon as an expert witness at the trial of plaintiff's medical malpractice action was not utterly irrational or against the weight of the evidence. The record presents a valid line of reasoning and permissible inferences that could have led the jury to find that before defendant rested his case, he informed the trial court that he intended to call the surgeon but could not locate her during the recess. The jury could have reasonably concluded that under the circumstances defendant could not have done more to secure the surgeon's testimony and. therefore, in not calling her before resting, he did not fail to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession.

Warren v. Silas, NY Slip Op 03930 (1st Dep't June 17, 2021)

Here is the decision., 

Equitable estoppel.

When a party with full knowledge, or with sufficient notice of its rights and of all the material facts, freely does what amounts to a recognition or adoption of a contract or transaction as existing, or acts in a manner inconsistent with its repudiation, and so as to affect or interfere with the relations and situation of the parties, that party acquiesces in and assents to it and is equitably estopped from impeaching it, even if it was originally void or voidable. Estoppel is applied in accordance with established general principles, so that the transactions and dealings may result justly and fairly with the parties concerned with them.

Bernard v. Citibank, N.A., NY Slip Op 03822 (2d Dep't June 16, 2021)

Here is the decision.

A deficient notice of claim.

The Appellate Division affirmed the Order which granted defendants' motion for summary judgment dismissing the complaint. Plaintiff concedes that defendants are not liable for her injuries on the ground that they were negligent in failing properly to clear the sidewalk of snow and ice, because at the time she slipped and fell, there was a storm in progress, and therefore they had no legal duty to begin snow and ice removal efforts. Instead, in opposition to defendants' motion, plaintiff argues for the first time that defendants are liable because their employee negligently directed her to walk in an unsafe area. However, nowhere in her notice of claim, the complaint, or the verified bill of particulars does plaintiff allege that the employee directed her to go around his snow blower, causing her to step into an accumulation of snow that obscured the curb, from which she fell into the roadway. Contrary to plaintiff's contention, there is no allegation in her notice of claim, pleadings, or testimony that afforded defendants notice of this new theory of liability. Even if the pleadings and testimony had raised this new theory, plaintiff could not use them to rectify deficiencies in the notice of claim. Moreover, as the new theory would not have been authorized by General Municipal Law § 50-e(6), even if plaintiff had sought to amend the notice of claim, it is irrelevant whether defendants would be prejudiced by it.

Wilson v. City of New York, NY Slip Op 03931 (1st Dep't June 17, 2021)

Here is the decision.

Law of the case.

The prior order, affirmed by the Appellate Division, denying defendant's summary judgment motion, does not establish as law of the case that defendant was required to designate plaintiff as a tenant on the lease for the restaurant operated by defendant pursuant to a management agreement with plaintiff. The denial of the defendant's motion establishes only that there are triable issues of fact.

37 E. 50th St. Corp. v. Restaurant Group Mgt. Servs., LLC, NY Slip Op 03932 (1st Dep't June 17, 2021)

Here is the decision.

New York Supreme's general jurisdiction.

New York Supreme is a court of original, unlimited, and unqualified jurisdiction, pursuant to NY Const, art, VI, § 7[a].

21st Century Pharmacy v. American Intl. Group, NY Slip Op 03820 (2d Dep't June 16, 2021)

Here is the decision.