Vacate Default Service
 Hotel’s motion to vacate $5mil default judgment after inquest denied as mere denial that it did not receive notice of the Summons and Complaint served on Secretary of State in time to Answer for CPLR §317 was insufficient. Defendant also failed to show the default motion papers were served on an improper address where served on the address listed in the LLCs biannual statement which was not modified until a year after entry of the judgment and there was no proof defendant gave plaintiff notice of a change of address.
Defendant not entitled to vacate the default in the discretionary interest of substantial justice which should only be exercised “where ‘unique or unusual circumstances . . . warrant such action'” such as judgments procured by ‘[fraud], mistake, inadvertence, surprise, or excusable neglect.’ Gutierrez v Hillside Hotel, LLC ✉
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Note of Issue CPLR 3404 Untimely Reasonable Excuse Meritorious Action Prejudice
Plaintiff’s motion to restore action to active trial calendar, brought 31-months after it had been stricken, providently denied where even if plaintiff’s claim of law office failure for failure to appear at a trial conference could be a reasonable excuse, claims that Covid caused additional delays, and minimal proof of efforts to proceed with EBTs, participate in mediation, and provide medical authorizations were insufficient to justify the 31-month delay in seeking to restore the action. The 7-years delay since the accident showed prejudice to the defendants. Brito v MS/WG 1107 Broadway Owner, LLC ✉
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Malpractice Motion to Dismiss Estate Untimely Reasonable Excuse Meritorious Action Prejudice
 Motion to dismiss decedent’s claims against medical facilities for failure to substitute the administrator, who died 6-years after the action was commenced, within a reasonable time under CPLR §1021 providently granted as §1021 is how the court acquires jurisdiction and is not a mere technicality, neither the substitute administrator nor counsel notified the court of the administrator’s death for more than 14-months, and the substitute administrator applied for letters 26-months after the administrator’s death which was granted 6-months later, after the defendant’s made their motion. Plaintiff failed to show substitution was made within a reasonable time where allegations of due diligence were unsupported and not a reasonable excuse, he provided no affidavit of merit of the claims, and absent these dismissal was warranted without proof of prejudice to defendants. Linyard v Long Is. Coll. Hosp. ✉
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Assault Settlement Interest CPLR § 5003-a General Release NYC
Motion to vacate judgment that granted interest and costs against NYC, firefighters, police officers under CPLR §5003-a for failure to pay agreed-upon settlement within 90-day granted where plaintiffs repeatedly failed to provide NYC’s required closing documents including its general release with language releasing NYC, and ‘its past/present officers, managers, administrators, employees, agents, representatives, and all other individually named defendants and entities represented and/or indemnified by the City.’ Raymond v City of New York ✉
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Premises Liab Motion to Dismiss Duty
Motion to dismiss plaintiff’s claim for slip and fall in hotel room shower by company that provided website to make hotel reservations granted on documentary evidence showing its user agreement clearly stated that it did not own or manage the properties and would not be liable for personal injuries. McWashington v Hyatt Corp. ✉
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Malpractice Accepted Practice Experts Conclusory
Plaintiff’s expert failed to raise an issue in opposition to defendants’ prima facie showing of no departure from accepted practice in repairing hernia with 12 cm surgical mesh with 22 tacks where plaintiff’s expert used incorrect calculation based on 12 cm circumference, not diameter, opinion that mesh was too large was not consistent with the expert’s opinion it required a 2-3 cm margin around the hernia, and opinion as to the location of the tacks was too conclusory and failed to refute defense expert’s opinion that the double crown technique was appropriate. Fadl v Katz ✉
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Malpractice Accepted Practice Causation Experts
Defendants failed to meet burden for summary judgment dismissing plaintiffs’ malpractice claim for a perforated sigmoid colon discovered 5-days after discharge for laparoscopic excisional biopsy of endometrial implants and removal of an intrauterine device where the defendant-surgeon’s testimony they submitted was that standard medical practice required she not be released from the hospital until the return of bowel function evidenced by the passing of gas and plaintiff’s testimony and medical records, submitted by defendants, showing she had not passed gas, was not ambulating well, and had upper abdominal pain before she was discharged, leaving questions of fact for the jury. Buzeska v Crystal Run Healthcare Physicians, LLP ✉
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Malpractice Causation Loss of Chance
Radiologist’s expert orthopedic surgeon raised an issue on causation, disputing plaintiff’s treating orthopedic surgeon’s opinion that the thumb dislocation which was concededly misdiagnosed twice had to be reduced within 7-10 days to avoid permanent damage by opinion that the joint is completely divested of blood on dislocation and there would be no change of outcome regardless of when it was reduced. Mejia v St. Barnabas Hosp. ✉
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Malpractice Motion to Dismiss Vacate Jud Statute of Limitations Continuous Treatement
Doctor’s motion to vacate default judgement against him by pro se plaintiff and for leave to move to dismiss on statute of limitations granted where action was commenced 5-years after the statute of limitation and there was no evidence of continuous treatment. Borek v Seidman ✉
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Premises Liab Stairs Unknown Cause Admissibility
Motion court improvidently declined to consider plaintiffs’ motion papers on the ground they exceeded the word count limit of 22 NYCRR 202.8-b(a) and in deeming plaintiffs to have admitted the facts in defendants’ statement of material facts for failure to submit a counter statement of material facts as per 202.8-g(b) but properly granted defendants summary judgment based on the injured-plaintiff’s testimony she tripped off a one-step riser outside a door, the step had no cracks, dirt, debris, or refuge, and she did not know what caused her to fall. Abramowitz v Stephen P. Esposito, M.D., P.C. ✉
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Building Security Premature Motion Admissibility Survelliance Video Duty Out of Possession Motion to Dismiss
Hotel’s motion for summary judgment denied as premature where discovery was in early stages and likely necessary proof was within the hotel’s exclusive possession. Defendants failed to show they were not negligent by surveillance video not authenticated by someone with personal knowledge to show the parties depicted were the plaintiff and his assailants or that it owed no duty to plaintiff where contracts submitted were not signed by all parties. Agreements showed defendants retained sufficient control of premises to raise issue on out-of-possession owner. Motion to dismiss also denied as the Complaint stated a cause of action. Smith v Kixby Hotel ✉
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Premises Liab Out of Possession Duty
Defendants failed to meet burden for summary judgment on theory of out-of-possession landlord where the lease was ambiguous on landlord’s responsibility to maintain relevant portions of the loading dock where the accident occurred and failed to show they lacked notice based on CFO’s affidavit which did not state it was made on personal knowledge. Irizarry v Pathmark Stores, Inc. ✉
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MVA Notice Admissibility NYC
NYC granted summary judgment dismissing plaintiffs’ claim for collision at intersection with a nonfunctioning traffic signal on traffic maintenance logs, authenticated by record searcher’s affidavit based on personal knowledge, establishing that NYC did not have actual or constructive notice of the nonfunctioning signal. Kirton v City of New York ✉
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MVA Turning Vehicle Emergency Doctrine Speculation
Defendant owner/driver granted summary dismissing plaintiff’s claim for collision at intersection on testimony of both parties establishing plaintiff made a sudden left hand turn in front of defendant’s vehicle in violation of VTL §1141 and defendant did not have enough time to avoid the collision. Plaintiff failed to raise an issue of defendant’s speeding where she testified she did not see the vehicle before impact and her claims that defendant could avoid the accident were speculative. Morante v Blaney ✉
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