Service of process.

The process server's affidavit of service gives rise to a presumption of proper service, and the plaintiff's conclusory and unsupported statements in his affidavit are insufficient to rebut the presumption.

Green Tree Servicing, LLC v. Ferando, NY Slip Op 03770 (2d Dep't May 15, 2019)

Here is the decision.

Contract construction.

Where the parties' agreements are complete, clear and unambiguous on their face, they must be enforced according to the plain meaning of their terms.

Teledata Tech. Solutions, Inc. v. Sandton Fund Assignments, LLC, NY Slip Op 03889 (1st Dep't May 16, 2019)

Here is the decision.

Summary judgment in a personal injury action.

A plaintiff is not required to show freedom from comparative fault in order to establish prima facie entitlement to judgment as a matter of law on the issue of liability.

Catanzaro v. Edery, NY Slip Op 03762 (2d Dep't May 15, 2019)

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CPLR 3126(3).

When a party fails to comply with a court order and frustrates the disclosure scheme set forth in the CPLR, it is within the court's discretion to strike or dismiss a pleading. The drastic remedy of dismissing a complaint is granted only where the plaintiff's conduct is willful and contumacious. Such conduct may be inferred from the repeated failure to comply with court-ordered discovery, coupled with inadequate explanations for the failures to comply, or a failure to comply over an extended period of time.

Empire Enters. I.J.J.A., Inc. v Daimler Buses of N. Am., Inc., NY Slip Op 03570 (2d Dep't May 8, 2019)

Here is the decision.

Summary judgment motions.

In granting the defendant-owner's motion, the court properly considered the homeowners' exemption to liability, even though the defendant-owner did not plead it as an affirmative defense. The plaintiff was not surprised by the defense, and fully opposed the motion.

 Urquiza v. Park & 76th St., Inc., NY Slip Op 03477 (1st Dep't May 14, 2019)

Here is the decision.

Entry of a default judgment.

The Appellate Division affirmed the Supreme Court's denial of the plaintiff's motion for leave to enter a default judgment, because the plaintiff failed to submit proof of service of the summons and complaint.  While the plaintiff's attorney submitted an affirmation stating that an affidavit of service of the summons and complaint had previously been e-filed, the affirmation failed to give the docket numbers on the e-filing system corresponding to the previously e-filed affidavit of service, as required by CPLR 2214(c). The plaintiff thus failed to establish its entitlement to a default judgment pursuant to CPLR 3215(f).

Eastern Funding LLC v. San Jose 63 Corp., NY Slip Op 03569 (2d Dep't May 8, 2019)

Here is the decision.

CPLR 503(a).

Venue is proper in the county in which a party resides at the time the action is commenced.

Hakanjin v. Lincare, Inc., NY Slip Op 03677 (1st Dep't May 9, 2019)

Here is the decision.

Restoring a case to the trial calendar.

In order to vacate a dismissal based upon being unprepared to proceed with trial, a plaintiff must demonstrate a reasonable excuse for the default and a potentially meritorious cause of action, pursuant to CPLR 5015[a][1] and 22 NYCRR 202.27[a]. Whether an excuse is reasonable is a determination within the sound discretion of the trial court. Here, the plaintiff had a reasonable excuse not to proceed to trial given his unrefuted assertion that he was not given timely notice of the scheduling and commencement of the trial by his former counsel, and that the plaintiff's concerns over notice had led to a breakdown of his relationship with his former counsel.

Crevecouer v. Mattam, NY Slip Op 03566 (2d Dep't May 8, 2019)

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CPLR 5701.

No appeal lies from an order that denies leave to reargue, pursuant to 5701(a)(2)(viii).

Liberty on Warren LLC v. Dragon Estates Condo, NY Slip Op 03666 (1st Dep't May 9, 2019)

Here is the decision.

Timely service.

Once an action is dismissed, a plaintiff can no longer seek an extension of time to effect service. Instead of merely opposing the motion to dismiss for lack of proper service, the plaintiff should, at least in the alternative, cross-move for an extension of time to serve.

One West Bank, FSB v. Barbosa, NY Slip Op 03673 (1st Dep't May 9, 2019)

Here is the decision.

Discontinuances.

A notice of discontinuance occurs at the time the notice is served, not at the time it is filed, pursuant to CPLR 3217[a]. A discontinuance by stipulation occurs when the stipulation is filed with the court, pursuant to CPLR 3217[a][2]).

Bayview Loan Servicing, LLC v. Windsor, NY Slip Op 03560 (2d Dep't May 8, 2019)

Here is the decision.