A process server's affidavit.

Ordinarily, the affidavit establishes a prima facie case as to the method of service, and gives rise to a presumption of proper service. However, when the defendant submits a sworn denial of receipt of service containing specific facts to refute the statements in the process server's affidavit, the prima facie showing is rebutted. The plaintiff must establish personal jurisdiction by a preponderance of the evidence at a hearing.

Bank of N.Y.Mellon v. Ortiz, NY Slip Op 05378 (2d Dep't July 3, 2019)

Here is the decision.

Contracts for the sale of real property.

To satisfy the statute of frauds, a memorandum evidencing the contract and subscribed by the party to be charged must designate the parties, identify and describe the subject matter, and state all of the essential terms of a complete agreement.

443 Jefferson Holdings, LLC v. Sosa, NY Slip Op 05376 (2d Dep't July 3, 2019)

Here is the decision.

A dismissed malpractice claim.

Since damages in a legal malpractice case are designed to make the injured client whole, a plaintiff who fails to plead actual damages fails to state a claim.

Miami Capital, LLC v. Hurwitz, NY Slip Op 05332 (1st Dep't July 2, 2019)

Here is the decision.

A guarantor's liability.

The guarantee states that it is absolute and unconditional, and that, in pertinent part, it "shall be unconditional and irrevocable, irrespective of . . . (a) the genuineness, validity or enforceability of any of the Loan Documents . . . or (g) any other circumstance, occurrence or condition . . . which might otherwise constitute a legal or equitable defense."  The guarantor-defendant's claim of fraud in the inducement is barred.

Suttongate Holdings Ltd. v. Lanconm Mgt. N.V., NY Slip Op 05196 (1st Dep't June 27, 2019)

Here is the decision.

Long-arm jurisdiction.

California has jurisdiction over the non-resident defendants, based on their soliciting plaintiff in California by phone, exchanging drafts of the investor agreement by email, emailing status reports of the proposed venture, and flying to California to meet with the plaintiff.

Brothers Pac Four, LLC v. War Entertainment, LLC, NY Slip Op 05195 (1st Dep't June 27, 2019)

Here is the decision.

An alleged violation of disciplinary rules.

There is no private right of action against an attorney or law firm for alleged violations of the Code of Professional Responsibility or the disciplinary rules.

Karimian v. Karlin, NY Slip Op 05193 (1st Dep't June 27, 2019)

Here is the decision.

A landowner's duty of care.

While the landowner has a duty to exercise reasonable care in maintaining the property in a safe condition, there is no duty to protect or warn against an open and obvious condition which, as a matter of law, is not inherently dangerous. Neither is there a duty where the allegedly dangerous condition can be recognized simply as a matter of common sense, or where the condition is inherent or incidental to the nature of the property, and can reasonably be anticipated by its users.

Cerrato v. Jacobs, NY Slip Op 05105 (2d Dep't June 26, 2019)

Here is the decision.

CPLR 3016(b).

Vague and general allegations that a defendant misled the plaintiff about the defendant's financial abilities and defendant's intent to consummate the transaction are conclusory, and, as such, they are insufficient to plead fraud.

Meiterman v. Corporate Habitat, NY Slip Op 05078 (1st Dep't June 25, 2019)

Here is the decision.

CPLR 3025(b).

Pursuant to the statute, leave to amend a pleading "shall be freely given."  The motion should be granted where the amendment is neither palpably insufficient nor patently devoid of merit, and the delay in seeking amendment does not prejudice or surprise the opposing party.

Bargil Assoc., LLC v. Crites, NY Slip Op 04902 (2d Dep't June 19, 2019)

Here is the decision.

Res judicata.

A dismissal based on the statute of limitations is a determination on the merits, and so the dismissal of the prior lawsuit precludes a subsequent action in which the issues are identical to those sought to be litigated in plaintiffs' earlier action.

Cohen v. Glass, NY Slip Op 05065 (1st Dep't June 25, 2019)

Here is the decision.