Default judgments.

Practice point: A defendant who has failed to appear or answer the complaint must provide a reasonable excuse for the default and demonstrate a meritorious defense to the action to avoid the entering of a default judgment or to extend the time to answer.

Student note:  Defendants’ contention that their insurance company delayed in informing them that it would not defend them is an insufficient excuse for their default.

Case: Integon Natl. Ins. Co. v. Noterile, NY Slip Op 07005 (2d Dept. 2011).

Here is the decision.

Monday’s issue: Labor Law.

Foreclosure actions.

Practice point: In order to commence the action, a plaintiff must have a legal or equitable interest in the mortgage. A plaintiff has standing where it is the holder or assignee of both the subject mortgage and of the underlying note at the time the action is commenced.

Student note: An assignment of a mortgage without assignment of the underlying note or bond is a nullity, and no interest is acquired thereby.

Case: Deutsche Bank Natl. Trust Co. v. Barnett, NY Slip Op 06995 (2d Dept. 2011).

Here is the decision.

Tomorrow’s issue: Default judgments.

Right to a jury trial.

Practice point: The deliberate joinder of claims for legal and equitable relief arising out of the same transaction amounts to a waiver of the right to demand a jury trial.

Student note: Once the right has been so lost, it will not be revived by any subsequent dismissal, settlement or withdrawal of the equitable claims.

Case: Bryant v. Broadcast Music, Inc., NY Slip 06991 (2d Dept. 2011).

Here is the decision.

Tomorrow’s issue: Foreclosure actions.

Piercing the corporate veil.

Practice point: A plaintiff must show that complete domination was exercised over a corporation with respect to the transaction attacked, and that such domination was used to commit a fraud or wrong against the plaintiff, resulting in plaintiff’s injury.

Student note:  The corporate veil will be pierced to achieve equity, even absent fraud, when a corporation has been so dominated by an individual or another corporation and its separate entity so ignored that it primarily transacts the dominator's business instead of its own and can be called the other's alter ego.

Case: Campone v. Pisciotta Servrs., Inc., NY Slip Op 06819 (2d Dept. 2011).

Here is the decision.

Tomorrow’s issue: Right to a jury trial.

Court holiday.

The courts are closed today and so there is no post on NEW YORK LAW NOTES.

Tomorrow's issue: Piercing the corporate veil.

Declaratory judgments.

Practice point: On a motion to dismiss a declaratory judgment action prior to service of an answer, the only issue is whether a cause of action for declaratory relief is set forth, not whether the plaintiff is entitled to a favorable declaration.

Student note: A court may reach the merits of a properly pleaded cause of action for a declaratory judgment upon a motion to dismiss for failure to state a cause of action where no questions of fact are presented. The motion will be taken as one for a declaration in the defendant's favor.

Case: Tilcon v. Town of Poughkeepsie, NY Slip Op 06849 (2d Dept. 2011).

Here is the decision.

Tuesday’s issue:Piercing the corporate veil.

Appealable papers.

Practice point: The fact that an order appealed from contains language or reasoning that a party deems adverse to its interests does not furnish a basis for standing to take an appeal.

Student note: Despite the dicta that the plaintiffs deem contrary to their interests, they are not aggrieved thereby and, therefore, may not challenge that portion of the order. 

Case: Blum v. Valentine, NY Slip Op 06817 (2d Dept. 2011).

Here is the decision.

Tomorrow’s issue: Declaratory judgments.

Bus injuries.

Practice point: To establish a prima facie case of negligence against a common carrier for injuries sustained by a passenger when the vehicle comes to a halt, the plaintiff must establish that the stop caused a jerk or lurch that was unusual and violent.

Student note:  The plaintiff's proof must consist of more than a mere characterization of the stop in those terms by the plaintiff.

Case: Black v. County of Dutchess, NY Slip Op 06816 (2d Dept. 2011).

Here is the decision. 

Tomorrow’s issue:  Appealable papers.

Sidewalk defects.

Practice point: Prior written notice of the defect is a condition precedent which a plaintiff is required to plead and prove to maintain an action against the City, pursuant to Administrative Code of City of NY § 7-201[c][2].

Student note: Big Apple maps are independent records and the notice must be traced to the map that is closest in time to the date a defect is alleged to have caused an accident.

Case: Adamson v. City of New York, NY Slip Op 06812 (2d Dept. 2011).

Here is the decision. 

Tomorrow’s issue: Bus injuries.

Parental rights.

Practice point: The petitioner established that the mother abandoned the child by failing to visit or maintain contact with the child for six months prior to the filing of the petition to terminate her parental rights, pursuant to Social Services Law § 384-b.

Student note:  The fact that the mother maintained communication with the petitioner regarding her other children, whom she continued to visit, did not negate the petitioner's showing that the mother intended to forgo her parental rights and obligations with respect to the child in question.

Case: Matter of Amaru M. v. Kizwana M., NY Slip Op 06561 (2d Dept. 2011).

Here is the decision.

Tomorrow’s issue: Sidewalk defects.

Service of process.

Practice point: The method of service provided for in an order to show cause is jurisdictional in nature and must be strictly complied with.

Student note: Where the court orders service by a particular date, all components of service must be accomplished by that date.

Case: Matter of Sharma v. New, NY Slip Op 06563 (2d Dept. 2011).

Here is the decision.

Monday’s issue: Parental rights.