Motions to dismiss and summary judgment.

The defendant moved pursuant to CPLR 3211(a)(7) to dismiss the complaint for failure to state a cause of action, or, in the alternative, for summary judgment dismissing the complaint. The Supreme Court treated the motion as one for summary judgment, and granted the motion. The Appellate Division affirmed the determination to treat the defendants motion solely as one for summary judgment, as the parties' submissions demonstrated that they were laying bare their proof and deliberately charting a summary judgment course.

Ain v. Allstate Ins. Co., NY Slip Op 02042 (2d Dep't March 25, 2020)

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Standing in a mortgage foreclosure action.

A plaintiff's filing of a copy of the note as an attachment to the complaint is prima facie evidence of the plaintiff's standing. Here, a copy of the note was attached to the certificate of merit, which was filed together with the summons and complaint. This establishes, prima facie, the plaintiff's standing, by demonstrating that it had physical possession of the note when it commenced the action.

Deutsche Bank Nat'l Trust Co., v. Bowens, NY Slip Op 02040 (2d Dep't March 26, 2020)

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CPLR 5015(a).

A defendant seeking to vacate a judgment under this provision must demonstrate a reasonable excuse for the default and a potentially meritorious defense.

Nationstar Mtge., LLC v. Brignol, NY Slip Op 02045 (2d Dep't March 25, 2020)

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The right to a jury trial.

A plaintiff is not entitled to a jury trial where he seeks to enforce a judgment against a party other than the judgment debtor, as that is an equitable claim.

Jonke v. Foot Locker Inc., NY Slip Op 02113 (1st Dep't March 16, 2020)

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A conditional order of dismissal.

Pursuant to CPLR 3126(3), and in light of the plaintiff's history of noncompliance with court orders, the motion court providently exercised its discretion in issuing the order requiring her to appear for a deposition. On her motion to renew, the plaintiff failed to submit new facts, pursuant to CPLR 2221[e][2]), that is., facts that existed but were unknown to her at the time defendants made their motions. Instead, she submitted facts that developed after issuance of the conditional order that decided the prior motions.

Mehler v. Jones, NY Slip Op 02103 (1st Dep't March 26, 2020)

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Sanctions for spoliation.

For sanctions, the movant must establish that the other party had an obligation to preserve the evidence; that the evidence was destroyed with a culpable state of mind; and that the evidcnce was relevant to the party's claim or defense. In the context of spoliation, a party can be deemed to have had a culpable state of mind for ordinary negligence, but the sanction of striking a pleading is not warranted unless the evidence is crucial and the spoliator's conduct evinces some higher degree of culpability. Striking a pleading for spoliation due to ordinary negligence is appropriate where the movant establishes that the evidence was its sole means of defending the claims; its defense was otherwise fatally compromised by the spoliation; or it was prejudiced to the point of not being able to defend.

Rossi v. Doka USA, Ltd., NY Slip Op 02098 (1st Dep't March 26, 2020)

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Property liens.

CPLR 5203(a) gives priority to a judgment creditor over subsequent transferees with regard to the debtor's real property where the judgment was docketed with the county clerk. Pursuant to CPLR 5018(c), a judgment is docketed when the clerk makes an entry "under the surname of the judgment debtor, . . . consist[ing] of . . . the name and last known address of [the] judgment debtor." Once docketed, the judgment becomes a lien on the property. Here, the judgment was not docketed under the correct surnames of the title owners of the property, and, therefore, there is no valid lien.

Kunin v. Guttman, NY Slip Op 02044 (2d Dep't March 25, 2020)

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CPLR 2101 (b).

The statute provides that "[w]here an affidavit or exhibit annexed to a paper served or filed is in a foreign language, it shall be accompanied by an English translation and an affidavit by the translator stating his qualifications and that the translation is accurate." Here, the Appellate Division found that evidence in the record, including the deposition testimony of an interpreter who was hired by the defendants to assist in the preparation of the affidavits of merit, established that those affidavits were not prepared in accordance with the statutory requirements or the decisional law cited in the Supreme Court's order. The Appellate Division affirmed the Supreme Court's determination granting those branches of the plaintiff's motion which were to dismiss the amended counterclaim and to cancel the notice of pendency.

Testa v. Testa, NY Slip Op 01947 (2d Dep't March 18, 2020)

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Excusing a default.

The motion court providently exercised its discretion in denying the motion to dismiss the action pursuant to CPLR 3215(c). Plaintiff provided a reasonable excuse for its delay in seeking a default judgment, namely, an inadvertent error by plaintiff's counsel in moving for a default judgment against the "non-appearing" defendants only. The record otherwise demonstrates that plaintiff did not abandon the action.

Wilmington Sav. Fund Socy. v. Hyo Choong Sung, NY Slip Op 01956 (1st Dep't March 19, 2020)

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Spoliation.

Plaintiff's motion for sanctions was granted to the extent of imposing an adverse inference charge. Defendants had an obligation to preserve the pre-accident audio recordings because the Police Department's nternal report and plaintiff's notice of claim, which attached the public police accident report, put defendants on notice that they would likely assert an emergency operation defense. Therefore, pre-accident audio communication between the dispatcher and the police vehicle or officers involved in the accident should have been preserved in case it was needed for future litigation.

Sanchez v. City of New York, NY Slip Op 01970 (1st Dep't March 19, 2020)

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Contracts and equity.

 A court of equity may rescind a contract for unilateral mistake if the failure to do so would enrich one party at the other's expense, and the parties can be returned to the status quo without prejudice.

Quattro Parent LLC v. Rakib, NY Slip Op 01966 (1st Dep't March 19, 2020)

Here is the decision.