CPLR 308(4).

Plaintiff failed to satisfy the statutory requirement of due diligence. The process server attempted to effect service twice at an address that was not defendant's "actual place of business, dwelling place or usual place of abode within the state."  Defendant had moved to Mexico almost a year before service was attempted, and defendant had no contractual obligation to notify plaintiff that his address changed.

Roc-Lafayette Assoc., LLC v. Reuter, NY Slip Op 02885 (1st Dep't May 14, 2020)

Here is the decision.

CPLR 3215(f).

The denial of plaintiff's summary judgment motion extends to plaintiff's motion for a default judgment against the non-appearing defendant-guarantor.

104 Second Realty, LLC v. Beer Factory LLC, NY Slip Op 02886 (1st Dep't May 14, 2020)

Here is the decision.

Motions for summary judgment.

The court may providently exercise its discretion in denying the motion as premature if it is filed while depositions and other discovery remain outstanding.

Cruz v. City of New York, NY Slip Op 02887 (1st Dep't May 14, 2020)

Here is the decision.

An insufficient claim for breach of fiduciary relationship.

The claim is properly dismissed, as defendant never held funds belonging to plaintiff, but was supposed to enter into a contract with plaintiff so that plaintiff could submit bills to defendant. This does not create a fiduciary relationship.

East of Hudson Rail Frgt. Task Force, Inc. v. Port Auth. of N.Y. & N.J., NY Slip Op 02870 (1st Dep't May 14, 2020)

Here is the decision.

Motion practice.

Defendant is not bound by statements in the court's prior orders on the motions for summary judgment by two co-defendants, as he had no interest in those motions. Law of the case does not apply.

Rotter v. Ripka, NY Slip Op 02859 (1st Dep't May 14, 2020)

Here is the decision.

Notices to admit.

The notice may not be used for the purpose of compelling admissions of fundamental and material issues or ultimate facts.

MTGLQ Invs., LP v. Collado, NY Slip Op 02723 (1st Dep't May 7, 2020)

Here is the decision.

An insufficient opposition to summary judgment.

The defendant's affidavit is inconsistent with the police report and with the motor vehicle accident report that he had filed six days after the accident. Due to these inconsistencies, the affidavit raises feigned issues of fact, and is insufficient to defeat the motion. In addition, the affidavit fails to raise a triable issue as to whether there was a nonnegligent explanation for the accident, as it does not indicate that plaintiff was outside the crosswalk or that she did not have the light in her favor.

Curl v. Schiffman, NY Slip Op 02725 (1st Dep't May 7, 2020)

Here is the decision.

Successive motions for summary judgment.

The motion court may providently consider a successive motion where doing so would clearly enhance judicial efficiency.

MTGLQ Invs., LP v. Collado, NY Slip Op 02723 (1st Dep't May 7, 2020)

Here is the decision.

CPLR 317.

The defendant failed to rebut plaintiff's proof that defendant had received actual notice of the action in time to defend. The summons and complaint, with the motion for default judgment, were sent to defendant's president, and the order granting the default and directing an inquest was sent to the president at the same address. The affidavit of defendant's president claiming not to have received the complaint or default order was merely conclusory.

Frazier v. 811E. 178th St. Realty Corp., NY Slip Op 02722 (1st Dep't May 7, 2020)

Here is the decision.

22 NYCRR 202.21.

The trial court properly denied plaintiff's motion to strike defendants' pleadings or preclude defendants from calling witnesses on the ground of their alleged failure to provide discovery, as, by filing a note of issue, plaintiff waived her entitlement to any further discovery.

Hu-Lin Wu v. City of New York, NY Slip Op 02721 (1st Dep't May 7, 2020)

Here is the decision.

The doctrine of res judicata.

Under res judicata, or claim preclusion, a valid final judgment bars future actions between the same parties, or those in privity with them, on any claims arising out of the same transaction or series of transactions, even if the action is based on a different theory or is seeking different relief. Here, the plaintiff, as a successor to the same property interest, is in privity with the prior owner of the apartment at issue, and this action is barred.

East Hampton Capital LLC v. Fergusson, NY Slip Op 02718 (1st Dep't May 7, 2020)

Here is the decision.