A dog- bite case.

Since the plaintiff's expert was not a treating physician, the testimony as to the plaintiff's description of how the incident occurred is inadmissible hearsay.

Wilt v. Montvel-Cohen, NY Slip Op 04925 (2d Dep't September 1, 2021)

Here is the decision.

Appellate practice.

There is no appeal as of right from an order which does not determine a motion made on notice, pursuant to CPLR 5701[a][2]. 

Ziegler v. O'Neill, NY Slip Op 04926 (2d Dep't September 1, 2021)

Here is the decision.

CPLR 4401 and 4404.

A motion for judgment as a matter of law may be granted only when the trial court determines that, based on the evidence presented, there is no valid line of reasoning and permissible inferences that could possibly lead rational persons to the jury's conclusion, and no rational process by which the jury could find in favor of the nonmoving party. The trial court must afford the motion's opponent every inference which could properly be drawn from the facts presented, and the facts must be considered in a light most favorable to the nonmovant.

Wasserberg v. Menorah Ctr. for Rehabilitation & Nursing Care, NY Slip Op 04923 (2d Dep's September 1, 2021)

Here is the decision.

Tomorrow's issue: Appellate practice.

CPLR 213(4).

An action to foreclose a mortgage is subject to a six-year statute of limitations, which begins to run on the entire debt once the debt is accelerated. Even if the mortgage is payable in installments, once the debt is accelerated, the entire amount is due and the statute of limitations begins to run on the entire debt.

Persaud v. U.S. Bank N.A., NY Slip Op 04920 (2d Dep't September 1, 2021)

Here is the decision.

Tomorrow's issue: CPLR 4401 and 4404.

Executive Law § 298 and CPLR article 78.

Where the respondent New York State Division of Human Rights, without holding a hearing, renders a determination of no probable cause for a finding of discriminatory conduct, the proper standard of appellate review is whether the determination was arbitrary and capricious or lacked a rational basis.

Matter of Ackerman v. New York State Div. of Human Rights, NY Slip Op 04912 (2d Dep't September 1, 2021

Here is the decision.

Tomorrow's issue: CPLR 213(4).

Contract law and tort liability.

A contractual obligation, standing alone, will generally not give rise to tort liability in favor of a third party. However, A contractor may be said to have assumed a duty of care and, thus, be potentially liable in tort, to third persons when the contracting party, in failing to exercise reasonable care in the performance of its duties, launches a force or instrument of harm.

Santibanez v. North Shore Land Alliance, Inc., NY Slip Op 04921 (2d Dep't September 1, 2021)

Here is the decision.

Tomorrow's issue: Executive Law § 298 and CPLR article 78.

Leave to amend a pleading.

Leave to amend a pleading should be freely given absent prejudice or surprise, and the court should not examine the merits or legal sufficiency of the proposed amendment unless it is palpably insufficient or patently devoid of merit on its face. The burden of demonstrating prejudice or surprise, or that a proposed amendment is palpably insufficient or patently devoid of merit, is on the nonmoving party.

HSBC Bank USA, N.A. v. Lien Thi Ngo,  Slip Op 04909 (2d Dep't September 1, 2021)

Here is the decision.

Tomorrow's issue: Contract law and tort liability.

Appellate practice.

The appellant seeks to argue the merits of the complaint and defendants' cross claims. However, the complaint was stricken for discovery violations and a default judgment was entered on the cross claims. Having failed to move to vacate the default on the cross claims, the appellant is deemed to have admitted all factual allegations contained therein.  Consequently, the appellant's arguments are not properly before the Appellate Division and the order appealed from is affirmed.

Honghui Kuang v. MetLife, NY Slip Op 04908 (2d Dep't September 1, 2021)

Here is the decision.

Tomorrow's issue: Leave to amend a pleading.

CPLR 3215.

A plaintiff seeking leave to enter a default judgment must file proof of (1) service of a copy of the summons and complaint; (2) the facts constituting the claim; and (3) the defendant's default.  In order to defeat a facially sufficient motion, the defendant must show either that there was no default, or that there is a reasonable excuse for the delay and a potentially meritorious defense.

Citimortgage, Inc. v. Weaver, NY Slip Op 04903 (2d Dep't September 1, 2021)

Here is the decision.

Tomorrow's issue: Appellate practice.

Tenants-in-common and adverse possession.

Under the common law, tenants-in-common are afforded a measure of extra protection from adverse possession claims asserted by their cotenants. In a tenancy- in-common, each cotenant has an equal right to possess and enjoy all or any portion of the property as if he were the sole owner. Consequently, nonpossessory cotenants do not relinquish any of their rights as tenants-in-common when another cotenant assumes exclusive possession of the property. In New York, nonpossessory cotenants are protected by a common-law rule that presumes a cotenant's possession is possession by and for the benefit of all other cotenants. This common-law rule is codified in RPAPL 541. The statute, however, also limits the presumption by providing that it "shall cease after the expiration of ten years of continuous exclusive occupancy by such tenant, personally or by his [or her] servant or by his tenant, or immediately upon an ouster by one tenant of the other and such occupying tenant may then commence to hold adversely to his  cotenant."

169 MLS Realty Corp. v. One 69 Skill Corp., NY Slip Op 04898 (2d Dep't September 1, 2021)

Here is the decision.

Tomorrow's issue: CPLR 3215.

Summary judgment in a residential foreclosure action.

Pursuant to RPAPL 1304(1), "at least ninety days before a lender, an assignee or a mortgage loan servicer commences legal action against the borrower. . . , including mortgage foreclosure, such lender, assignee or mortgage loan servicer shall give notice to the borrower." The notice "shall be sent by such lender, assignee . . . or mortgage loan servicer to the borrower, by registered or certified mail and also by first-class mail to the last known address of the borrower, and to the residence that is the subject of the mortgage," pursuant to § 1304[2]. A plaintiff demonstrates compliance with the statute by proof of the requisite mailing, such as affidavits of mailing or domestic return receipts with signatures, or proof of a standard office mailing procedure designed to ensure that items are properly addressed and mailed, sworn to by someone with personal knowledge of the procedure. 

U.S. Bank N.A. v. Pickering-Robinson, NY Slip Op 04775 (2d Dep't August 25, 2021)

Here is the decision.

Tomorrow's issue: Tenants-in-common and adverse possession.