Plaintiff has not shown that the post-note of issue discovery directed by the Supreme Court caused him prejudice or was otherwise an improvident exercise of that court's broad discretion in supervising disclosure ( see 22 NYCRR 202.21[d]; Cuprill v Citywide Towing & Auto Repair Servs., 149 A.D.3d 442 , 443 [1st Dept 2017]; Those Certain Underwriters at Lloyds, London v Occidental Gems, Inc., 11 N.Y.3d 843 , 845 [2008]).
DECISION AND ORDER GERALD LEBOVITS , J.S.C. Defendant Cameron Wendt moves under CPLR 306-b, 308, 313, and 3211(a)(5), (a)(7), and (a)(8) for an order dismissing all causes of action against himself. Plaintiffs, Tratado de Libre Comercio, LLC, and Pedro Chavez, cross-move for an order under CPLR 2215, 7503, and 2201 to stay the proceedings or, in the alternative, a traverse hearing to address service of process. Wendt's CPLR 3211(a)(7) motion is granted. Plaintiffs' cross-motion is denied....
Ordered that the sentence is affirmed. The sentence imposed was not excessive ( see People v Suitte, 90 A.D.2d 80 [1982]).
An appeal having been taken to this Court by the above-named appellant, rendered February 7, 2017, said appeal having been argued by counsel for the respective parties, due deliberation having been had thereon, and finding the sentence not excessive, it is unanimously ordered that the judgment so appealed from be and the same is hereby affirmed.
The complaint alleges that defendant Dr. Stephen Mezzafonte committed malpractice between January 15-21, 2013 "and prior and subsequent thereto." The bill of particulars alleges that he failed to properly interpret decedent's echocardiogram (EC) on January 18, 2013, which showed a more dilated aorta than a prior EC taken on August 8, 2011 and interpreted by defendant on August 16, 2011. Both the original and purported supplemental bills of particulars allege that defendant's negligent acts "...
The motion court properly dismissed the complaints as plaintiffs failed to set forth any cognizable legal theories or claims ( see generally Nonnon v City of New York, 9 N.Y.3d 825 [2007]). Defendants had accepted Dr. Malik onto their health care provider panel and had no duty to protect him from third parties harming him with fraudulent claims filed in his name by performing handwriting or other analyses of those claims ( see Purdy v Public Adm'r of County of Westchester, 72 N.Y.2d 1 [...
Contrary to defendant Banfill's contention, the Board is not precluded from seeking the appointment of a temporary receiver before answering the complaint ( see CPLR 6401). The motion court's appointment of a temporary receiver in this mortgage foreclosure action was a provident exercise of discretion. Both Real Property Law 339-aa and the condominium bylaws provide for the appointment of a receiver in a lien foreclosure action to collect the reasonable rent for the use and occupancy of a...
The first cause of action in plaintiffs' complaint alleges legal malpractice with respect to defendants representation of plaintiffs in two underlying actions—the 304 W 18th Street matter and the 175 W 12th Street matter. Contrary to defendants' argument, the malpractice cause of action with respect to the 175 W 12th Street matter is not time-barred by the three-year statute of limitations applicable to legal malpractice claims (CPLR 214[6]). Defendants failed to demonstrate that the attorney-...
Defendant did not fully substantiate his claim that his counsel provided constitutionally deficient advice regarding the immigration consequences of defendant's guilty plea ( see Padilla v Kentucky, 559 U.S. 356 , 367-369 [2010]; People v McDonald, 1 N.Y.3d 109 , 113-114 [2003]; People v Doumbia, 153 A.D.3d 1139 , 1140 [1st Dept 2017]), and, as such, a hearing on that issue is required ( see CPL 440.30[3][c]). As to the prejudice prong of his claim, which requires proof that he would...
Garry , P.J. Petitioner, a public utility corporation, owns utility lines, mains, tanks and other equipment and structures that constitute special franchise property for tax purposes ( see RPTL 102 [12][h]; [17]). As required by the Real Property Tax Law, respondent State Board of Real Property Services (hereinafter the Board) 1 certified the tentative full value of petitioner's special franchise property in New York City for each of the tax years 2009, 2010, 2011 and 2012 and, upon...
Ordered that the judgment is affirmed, with costs. The plaintiff is a licensed home care service agency which provides home health aides and personal care aides. The defendant Gamzel NY, Inc. (hereinafter the defendant), is a certified home health agency which provides home health care services to patients. In 2004, the plaintiff and the defendant entered into a service agreement, which was amended in 2006, whereby the plaintiff agreed to provide the defendant with home health aides for the...
The argument advanced by Mark, Management, and defendant Lisa Aronson (Lisa) (collectively, respondents) that Yitzhak and Menachem lack standing to appeal is unavailing ( see Pastreich v Pastreich, 2019 NY Slip Op 68780[U] [1st Dept 2019]; Pastreich v Pastreich, 2019 NY Slip Op 68781[U] [1st Dept 2019]; Pastreich v Pastreich, 2019 NY Slip Op 68782[U] [1st Dept 2019]). We reverse the grant of summary judgment to respondents Mark and Management on their affirmative defense of equitable...
Ordered that the order is affirmed insofar as appealed from, with one bill of costs to the respondents. Gemma Dan (hereinafter the appellant) and Evelyn D. were the owners of certain real property located in Queens as joint tenants with a right of survivorship. In October 2011, Patricia W. was appointed conservator for Evelyn D. (hereinafter the conservatee),by the Probate Court of Gwinnett County in the State of Georgia. In May 2017, the Georgia court granted a petition brought by Patricia...
It is hereby ordered that the order so appealed from is unanimously affirmed without costs. Memorandum: Defendants Fuller Road Management Corporation (Fuller) and M+W U.S., Inc. (MWI) appeal from an order that, inter alia, denied the cross motion of Fuller and MWI seeking summary judgment on their cross claim for indemnification against defendant Arrow Sheet Metal Works, Inc. We affirm. Supreme Court properly denied the cross motion of Fuller and MWI inasmuch as it was untimely. In a...
It is hereby ordered that the order so appealed from is unanimously affirmed without costs. Same memorandum as in Giambrone v Niagara Mohawk Power Corp. ([appeal No. 1] 175 A.D.3d 1808 [4th Dept 2019]).
It is hereby ordered that the order so appealed from is unanimously affirmed without costs. Memorandum: Plaintiffs Jeannette C. Giambrone and Nino E. Giambrone (Giambrones) commenced an action to recover damages for injuries sustained by Jeannette Giambrone (plaintiff) as the result of a motor vehicle accident that occurred when the vehicle operated by plaintiff collided with a utility truck owned by defendant Niagara Mohawk Power Corporation, doing business as National Grid (National Grid),...
Ordered that the order is affirmed insofar as appealed from, with costs. In 2010, the defendants entered into two leases for commercial space in two adjoining buildings, one for a retail space and the other for a storage space (hereinafter together the subject premises), with the plaintiffs' predecessor-in-interest. Each lease contained a provision giving the plaintiffs, as landlord, the right to access the subject premises to make repairs, replacements, and improvements. In June 2016, the...
The party seeking a preliminary injunction must make a "clear showing of a likelihood of success on the merits, irreparable harm if the injunction [i]s not granted, and a balance of the equities in its favor" (Sterling Fifth Assoc. v Carpentille Corp., 5 A.D.3d 328 , 329 [1st Dept 2004]). Plaintiff failed to make such a showing. To show a likelihood of success on the merits, plaintiff had to demonstrate that the restrictive covenant signed by Gorenstein was enforceable (see Buchanan...
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and those branches of the defendant's motion which were for summary judgment dismissing the second through fourth causes of action are granted. The plaintiff commenced this action, inter alia, to recover damages for nuisance and trespass against the Town of Southampton, alleging that the Town's work on roads near the plaintiff's property had the effect of redirecting the flow of storm water runoff onto the...
Ordered that the judgment is affirmed. On October 11, 2015, the 18-month-old infant victim died after sustaining multiple blunt force injuries to his head, chest cavity, and abdominal cavity, including a lacerated liver, a broken rib, significant internal bleeding, and several contusions and abrasions to his head and chest, while in the care of the defendant. The defendant was arrested and charged, inter alia, with manslaughter in the second degree. He was later convicted, upon a jury...
