The admissibility of police reports.

Pursuant to CPLR 4518(a), a police accident report is admissible as a business record as long as the report is made based on the officer's personal observations, and while carrying out police duties. Where information is not based on the officer's personal observations, it may be admissible as a business record if the person giving the information to the officer was under a business duty to relate the facts to the officer, or if the statement qualifies under another hearsay exception, such as an admission. Each person in the chain producing the record, from the initial declarant to the final entrant, must be acting within the course of regular business conduct, or the declaration must meet the test of some other hearsay exception.

Country-Wide Ins. Co. v. Lobello, NY Slip Op 04836 (2d Dep't September 2, 2020)

Here is the decision.

Article 78.

Prohibition is an extraordinary remedy that is available only where there is a clear legal right, and then only when a court - in cases where judicial authority is challenged - acts or threatens to act either without jurisdiction or in excess of its authorized powers. The extraordinary remedy of mandamus will lie only to compel the performance of a ministerial act, and only where there exists a clear legal right to the relief.

Abdul-Malik v. Livote, NY Slip Op 04834 (2d Dep't September 2, 2020)

Here is the decision.

A motion for leave to renew.

The motion must be based on new facts not offered on the prior motion which would change the prior determination, and the movant must submit a reasonable justification for the failure to present such facts on the prior motion, pursuant to CPLR 2221[e][2]. A motion for leave to renew is not a second chance freely given to a party who has not exercised due diligence in making its first factual presentation.

Leader v. Steinway, Inc., NY Slip Op 04833 (2d Dep't September 2, 2020)

Here is the decision.

CPLR 317.

A defendant who has been served with a summons other than by personal delivery but who has not appeared may be allowed to defend the action upon a finding that it did not personally receive notice of the summons and complaint in time to defend and that it has a potentially meritorious defense. Service on a corporation through delivery of process to the Secretary of State is not personal delivery to the corporation.  A defendant moving pursuant to CPLR 317 to vacate a default need not establish a reasonable excuse for the delay in answering or appearing.

Leader v. Steinway, Inc., NY Slip Op 04832 (2d Dep't September 2, 2020)

Here is the decision.

Appellate practice.

The appeal from so much of the order as granted that branch of the defendant's motion which was for summary judgment dismissing the complaint insofar as asserted against it must be dismissed. The plaintiff failed to oppose that motion and, therefore, is precluded from challenging the propriety of that order on appeal.

Leader v. Steinway, Inc., NY Slip Op 04831 (2d Dep't September 2, 2020)

Here is the decision.

Appellate practice.

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

Leader v. Steinway, Inc., NY Slip Op 04831 (2d Dep't September 2, 2020)

Here is the decision.

Appellate practice.

Intermediate orders that necessarily affected the final judgment are brought up for review and may be considered on the appeal.

Goshen Mtge., LLC v. DePalma, NY Slip Op 04830 (2d Dep't September 2, 2020)

Here is the decision.

Extending the time for service of process.

While CPLR 306-b requires that service be effected within 120 days of the commencement of the action, it also 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." A motion to extend the time for service may be granted on good cause shown or in the interest of justice, which are separate and independent standards. To establish good cause, a plaintiff must demonstrate reasonable diligence in attempting service. If good cause for an extension is not established, a court must consider the broader interest of justice standard. In applying that standard, the court must analyze the factual setting and the parties' competing interests.  It may also consider diligence, or the lack thereof, along with any other relevant factor in making its determination, including expiration of the Statute of Limitations, the meritorious nature of the cause of action, the length of delay in service, the promptness of a plaintiff's request for the extension of time, and prejudice to the defendant.

Fink v. Dollar Mart, NY Slip Op (2d Dep't September 2, 2020)

Here is the decision.

Discovery disputes.

The resolution of discovery disputes is within the sound discretion of the motion court. Striking a pleading may be appropriate where there is a clear showing that the failure to comply with discovery demands is willful or contumacious, pursuant to  CPLR 3126[3]. Willful and contumacious conduct may be inferred from a party's repeated failure to comply with court-ordered discovery, coupled with inadequate explanations for the failures to comply, or a failure to comply with court-ordered discovery over an extended period of time.

Ewa v. City of New York, NY Slip Op 04825 (2d Dep't September 2, 2020)

Here is the decision.

Appellate practice.

No appeal lies as of right from an order that does not decide a motion made on notice, pursuant to CPLR 5701(a)(2).

Deutsche Bank Natl. Trust Co. v. Brown, NY Slip Op 04824 (2d Dep't September 2, 2020)

Here is the decision.

Inquests.

At the inquest, the sole issue is the extent of plaintiff's damages, and the inquest court should not consider the question of whether the defsndant caused the damages. At an inquest to ascertain damages upon a defendant's default, the plaintiff may submit proof by written sworn statements of the witnesses, pursuant to  CPLR 3215[b] and 22 NYCRR 202.46[b]. However, if the defaulting defendant gives notice that he will appear at the inquest, the plaintiff must make the witnesses available for cross-examination.

Castaldini v. Walsh, NY Slip Op 04822 (2d Dep't September 2, 2020)

Here is the decision.