Appellate practice.

No appeal lies from an order or judgment granted upon the default of the appealing party, pursuant to CPLR 5511.

Bank of N.Y. Mellon v. Fontana, NY Slip Op 04375 (2d Dep't August 5, 2020)

Here is the decision.

A claim of unlawful retaliation.

Pursuant to Executive Law § 296(1)(e), it is unlawful to retaliate against an employee who opposes discriminatory practices. To set forth a claim of unlawful retaliation, the employee must show that he or she engaged in a protected activity; that the employer was aware that the employee participated in the activity; that the employee suffered an adverse employment action; and that there is a causal connection between the employee's activity and the adverse action. When this initial burden is met, the burden shifts to the employer to present legitimate, independent, and nondiscriminatory reasons for its actions.

Matter of Copiague Union Free Sch. Dist. v. Foster, NY Slip Op 04303 (2d Dep't July 29, 2020)

Here is the decision.

CPLR Article 78 proceedings.

In order to annul an administrative determination made after a hearing, directed by law, at which evidence is taken, a court must conclude that the record lacks substantial evidence to support the determination. "Substantial evidence" is relevant proof that a reasonable mind may accept as adequate to support a conclusion or ultimate fact.

Matter of Batra v. Egan, NY Slip Op 04300 (2d Dep't July 29, 2020)

Here is the decision.

A negligence action.

A plaintiff moving for summary judgment on the issue of liability must establish, prima facie, that the defendant breached a duty owed to the plaintiff, and that the defendant's negligence was a proximate cause of the alleged injuries. While the plaintiff need not establish the absence of comparative fault, the issue of a plaintiff's comparative negligence may be decided on a summary judgment motion where, as here, the plaintiff moves for summary judgment dismissing the defendant's affirmative defense of comparative negligence.

Hai Ying Xiao v. Martinez, NY Slip Op 04295 (2d Dep't July 29, 2020

Here is the decision.

Notices of appearance.

Where the plaintiff's process was a summons with notice, as authorized by CPLR 305(b), the defendant may appear in the action, and avoid a default, by timely serving a notice of appearance.

Deutsche Bank Natl. Trust Co. v. Hall, NY Slip Op 04292 (2d Dep't July 29, 2020)

Here is the decision.

CPLR 3211(a)(7).

On a motion to dismiss, the court merely examines the adequacy of the pleading, unlike a summary judgment motion, where the court searches the record and assesses the sufficiency of the parties' evidence. In considering the motion to dismiss, the court must accept the complaint's factual allegations as true, give the plaintiff the benefit of every favorable inference, and determine only whether the facts, as alleged, fit within any cognizable legal theory. 

Darden v. OneUnited Bank, NY Slip Op 04291 (2d Dep't July 29, 2020)

Here is the decision.

Summary judgment in a slip-and-fall action.

The defendant has the burden of demonstrating, prima facie, that it did not create the alleged dangerous condition, or have actual or constructive notice of it for a sufficient length of time to discover and remedy it. A property owner who has actual knowledge of an ongoing and recurring dangerous condition can be charged with constructive notice of each specific reoccurrence of the condition. A question of fact regarding a recurrent dangerous condition can be established by offering evidence that an ongoing and recurring dangerous condition existed in the area of the accident which was routinely left unaddressed.

Darbinyan v. 1806 Ocean Realty, LLC, NY Slip Op 04290 (2d Dep't July 29, 2020)

Here is the decision.

CPLR 306-b.

After the plaintiff admitted that its original affidavit of service was erroneous and failed to produce its process server when the parties appeared for a hearing to determine the validity of service of process, the Supreme Court denied the plaintiff's motion and granted the defendant's motion to dismiss. The Appellate Division affirmed.

CPLR 306-b provides, in pertinent part, that "[s]ervice of the summons and complaint . . . shall be made within one hundred twenty days after the commencement of the action." The statute further provides that, "[i]f service is not made upon a defendant within the time provided in this section, the court, upon motion, shall dismiss the action without prejudice as to that defendant, or upon good cause shown or in the interest of justice, extend the time for service."

An extension of time for service is a matter within the trial court's discretion. In applying the statutory interest of justice standard, which is distinct from the good cause standard, the court must consider the facts and balance the parties' competing interests. The court may consider diligence, or lack thereof, along with any other relevant factor in making its determination, including the Statute of Limitations, the potentially meritorious nature of the cause of action, the length of the delay in service, the promptness of the plaintiff's request to extend time, and prejudice to the defendant.

Here, the plaintiff's delay of nearly five years between obtaining a default judgment of foreclosure and sale against the defendant and its attempt to enforce that judgment, during which time the statute of limitations expired, weighed against extending the time to serve the defendant with the summons and complaint by approximately nine years. In addition, the court found that the plaintiff was seeking statutory relief in order to avoid the consequences of its inability to produce its process server on the scheduled date of the hearing. 

Chase Home Fin., LLC v. Berger, NY Slip Op 04289 (2d Dep't July 29, 2020)

Here is the decision.

Appellate practice.

The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of the judgment. The issues raised on appeal from the order are brought up for review, and are considered on the appeal from the judgment, pursuant to CPLR 5501[a][1].

Bowers v. Grier, NY Slip Op 04288 (2d Dep't July 29, 2020)

Here is the decision.

CPLR 3215(f).

A plaintiff seeking leave to enter a default judgment must file proof of proper service of the summons and the complaint, the defendant's default, and the facts constituting the claim. In a declaratory judgment action, the judgment will not be granted on the default and the pleadings alone, since the plaintiff must establish its right to the declaration.

Ameriprise Ins. Co. v. Kim, NY Slip Op 04286 (2d Dep't July 29, 2020)

Here is the decision.

CPLR 3211(a)(1).

A claim will be dismissed if the submission of documentary evidence conclusively establishes,  as a matter of law, a defense to the asserted claims. If the motion is not made before an answer is interposed, or preserved in a responsive pleading, it is waived.

M&E 73-75, LLC v. 57 Fusion LLC, NY Slip Op 04372 (1st Dep't July 30, 2020)

Here is the decision.