Moving to vacate a default.

A party is precluded from moving to vacate its default on grounds asserted in a prior motion that was denied, and from which no appeal was taken, or on grounds that were apparent when the party made the prior motion but which were not asserted therein.

A.G. Parker, Inc. v. 246 Rochester Partners, LLC, NY Slip Op 06711 (2d Dep't October 11, 2018)

Here is the decision.

Adverse possession.

In order to establish adverse possession, a plaintiff must demonstrate, by clear and convincing evidence, that its possession has been adverse, under claim of right, open and notorious, continuous, exclusive, and actual for a period of 10 years, pursuant to RPAPL 501[2] and CPLR 212[a].

168-170 Flushing Ave, LLC v. February 22, LLC, NY Slip Op 06710 (2d Dep't October 10, 2018)

Here is the decision.

Skiing accidents.

 General Obligations Law § 18-107 states that, "[u]nless otherwise specifically provided in this article, the duties of skiers, passengers, and ski operators shall be governed by common law."  The common law applies where plaintiffs allege inadequate padding of defendant's snowmaking pole, as the statute does not specifically address this circumstance.

Madsen v. Catamount Ski Resort, NY Slip Op 06794 (1st Dep't October 11, 2018)

Here is the decision.

Ambiguous contracts.

If the contract is ambiguous, it cannot be construed as a matter of law, and a summary judgment motion will be denied.

Funk v. Seligson, Rothman & Rothman, Esqs., NY Slip Op 06614 (1st Dep't October 4, 2018)

Here is the decision.

Discovery of tax returns.

A party seeking disclosure of tax returns must make a strong showing that the information contained in the returns is necessary and unavailable from other sources.  However, the underlying financial information which is contained in documents other than tax returns, such as in Form K-1s, is discoverable.

Norddeutsche Landesbank Girozentrale v. Tilton, NY Slip Op 06633 (1st Dep't October 4, 2018)

Here is the decision.

The doctrine of equitable mortgage.

The doctrine is inapplicable where there is a legal written mortgage.

21st Mtge. Corp. v. Nweke, NY Slip Op 06509 (2d Dep't October 3, 2018)

Here is the decision.

Service of process.

Ordinarily, a process server's affidavit of service constitutes prima facie evidence of proper service. However, the affidavit must be an affidavit of service, and not just an affidavit of due diligence in attempting service. Absent service, a default judgment is a nullity.

2004 McDonald Ave. Corp. v. KGYM Holdings Group, Inc., NY Slip Op 06508 2d Dep't (October 3, 2018)

Here is the decision.

Court holiday.

Discovery sanctions.

The order granting plaintiffs' motion to the extent of deeming all liability issues resolved in their favor was reversed, and the motion denied. Plaintiffs failed to establish that defendants' conduct during discovery was willful, contumacious, or in bad faith. When the motion was made, defendants were in violation of a single court order.  The court improvidently exercised its discretion in imposing the sanction nine months after plaintiffs brought the motion, when discovery had been completed and the note of issue had been filed.

Butler v. Knights Collision Experts, Inc., NY Slip Op 06474 (1st Dep't October 2, 2018)

Here is the decision.

The doctrine of judicial estoppel.

A party who assumed a certain position in a prior proceeding and secured a favorable ruling may not advance a contrary position in another action simply because its interests have changed.

Herman v. 36 Gramercy Park Realty Assoc., LLC, NY Slip Op 06473 (1st Dep't October 2, 2018)

Here is the decision.

A dismissed claim of promissory estoppel.

The claim is barred by the alleged existence of a contract.

ID Beauty S.A.S. v. Coty Inc. Headquarters, NY Slip Op 06322 (1st Dep't September 27, 2018)

Here is the decision.