Leave to amend a pleading.

The motion should be freely granted, absent prejudice or surprise directly resulting from the delay in seeking leave, unless the proposed amendment is palpably insufficient or patently devoid of merit, pursuant to CPLR 3025(b).

Bridgehampton Nat'l Bank v. D & G Partners, L.P., NY Slip Op 04911 (2d Dep't September 16, 2020)

Here is the decision.

Conditions precedent.

A condition precedent is an act or event, other than a lapse of time, which, unless the condition is excused, must occur before there is a duty to perform a promise set forth in the agreement. Here, there is a condition precedent to the formation or existence of the contract itself, so that there is no contract unless and until the condition occurs.

Bedoya v. Rodriguez, NY Slip Op 04910 (2d Dep't September 16, 2020)

Here is the decision.

Summary judgment in a mortgage foreclosure action.

In support of its motion, the plaintiff submitted two different versions of the mortgage note, only one of which was indorsed in blank. This evidence is insufficient to establish, prima facie, the plaintiff's standing. The motion is denied.

Bank of N.Y. Mellon v. Itkowitiz, NY Slip Op 04909 (2d Dep't September 16, 2020)

Here is the decision.

Proper service.

A process server's affidavit establishes, prima facie, the method of service, and gives rise to a presumption of proper service. A defendant's sworn statement of specific facts to rebut the statements in the affidavit of service necessitates an evidentiary hearing. However, no hearing is required where the defendant fails to swear to specific facts that rebut the statements in the affidavit of service.

Ahluwalia v. Seecharan, NY Slip Op 04907 (2d Dep't September 16, 2020)

Here is the decision.

Attorneys' fees.

The Supreme Court was not required to hold an evidentiary hearing before awarding attorneys' fees to the plaintiff, as the defendant, pursuant to the parties' stipulation, had consented to the resolution of the issue by motion. By so stipulating, the defendant waived his right to a hearing.

Nieves-Iglesias v. Iglesias, NY Slip Op 04847 (2d Dep't September 2, 2020)

Here is the decision.

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.