On May 28, 2019 Justice Knipel of the Kings County Commercial Division issued a decision in Hargrove v. Hargrove-Boynton, 2019 NY Slip Op. 31632(U), dismissing a GBL 13 claim for malicious service on the sabbath for lack of allegations of malice, explaining: Contrary to defendant’s contention, she is not entitled to a hearing on whether... Read more »
Blogs
Posts Categorized: Court Rules/Procedures
Justice Friedman Updates Part Rules
Justice Marcy S. Friedman of the New York County Commercial Division recently updated her individual practices.
Remedy for Motion Court’s Refusal to Sign Order to Show Cause is Appeal, Not Re-submission to a Different Judge
On June 12, 2019, the Second Department issued a decision in Cypress Hills Mgt., Inc. v. Lempenski, 2019 NY Slip Op. 04677, holding that a litigant’s remedy if a judge refuses to sign an order to show cause is an appeal, not to resubmit the order to a different judge, explaining: After defaulting in this... Read more »
Court Should Have Vacated Note of Issue Where Discovery Not Complete
On June 7, 2019, the Fourth Department issued a decision in Backer & Assoc., LLC v. PPB Eng’g & Sys. Design, Inc., 2019 NY Slip Op. 04541, holding that a court should have vacated a Note of Issue because discovery was not complete, explaining: We agree with defendants that Supreme Court erred in denying that... Read more »
Action Properly Dismissed in Favor of Prior Pending Action
On May 29, 2019, the Second Department issued a decision in JPMorgan Chase Bank, N.A. v. Luxama, 2019 NY Slip Op. 04149, holding that an action was properly dismissed in favor of a prior pending action, explaining: Pursuant to CPLR 3211(a)(4), a court has broad discretion in determining whether an action should be dismissed based... Read more »
Court Should Not Have Sua Sponte Dismissed Action for Want of Prosecution
On April 10, 2019, the Second Department issued a decision in Marinello v. Marinello, 2019 NY Slip Op. 02697, holding that trial court should not have sua sponte dismissed an action for want of prosecution, explaining: The Supreme Court should not have, in effect, pursuant to CPLR 3216, sua sponte, dismissed the amended complaint, as the... Read more »
Judicial Estoppel Bars Defendant From Taking Factual Position Different From That Taken in Earlier Actions or Proceedings
On February 28, 2019, Justice Platkin of the Albany County Commercial Division issued a decision in Whiteman Osterman & Hanna, LLP v. Preserve Assoc., LLC, 2019 NY Slip Op. 29056, holding that judicial estoppel barred a defendant from taking factual position different from that taken in earlier actions or proceedings, explaining: An estoppel rests upon the... Read more »
Action Dismissed For Failure Timely to Serve Summons and Complaint
On February 7, 2019, Justice Platkin of the Albany County Commercial Division issued a decision in Plank, LLC v. Dutch Vil., LLC, 2019 NY Slip Op. 50188(U), dismissing an action for failure timely to serve the summons and complaint, explaining: CPLR 306-b requires service of process to be made within 120 days of the filing of... Read more »
A Lawyer’s Failure to Have an Office in New York Does Not Doom Cases Filed by That Lawyer
On February 14, 2019, the Court of Appeals issued a decision in Arrowhead Capital Fin., Ltd. v. Cheyne Specialty Fin. Fund L.P., 2019 NY Slip Op. 01124, holding that a lawyer’s failure to have an office in New York does not render void actions filed by that lawyer, explaining: An attorney who is regularly admitted... Read more »
Third-Party Complaint Improper When Third-Party Defendants Not Liable for all or Part of Plaintiff’s Claims Against Defendant
On December 12, 2018, Justice Grays of the Queens County Commercial Division issued a decision in Rubinoff v Yunatanov, 2018 NY Slip Op. 33482(U),dismissing a third-party complaint because the third-party defendants were not allged to be liable for all or pat of the plaintiff’s claims against the defendant, explaining: The plaintiffs began the instant action... Read more »