Calendar calls.

Pursuant to 22 NYCRR 202.27, the court may dismiss a complaint when the plaintiff fails to appear or is not ready to proceed at the call of the trial calendar. To be relieved of the default, the plaintiff must demonstrate both a reasonable excuse for the default and a potentially meritorious cause of action, pursuant to CPLR 5015[a][1].

Sutton v. Metropolitan Tr. Auth. Bus Co., NY Slip Op 04988 (2d Dep't September 15, 2021)

Here is the decision.

The governmental function immunity defense.

Government action, if discretionary, may not be a basis for liability, while ministerial actions may be, but only if they violate a special duty owed to the plaintiff, apart from any duty to the public in general.

Santaiti v. Town of Ramapo, NY Slip Op 04986 (2d Dep't September 15, 2021)

Here is the decision.

The issue of standing in a mortgage foreclosure action.

Where the defendant raises the issue, the plaintiff must prove its standing in order to be entitled to relief. A plaintiff has standing where it is the holder or assignee of the underlying note at the time the action is commenced. A holder is the person in possession of a negotiable instrument that is payable either to the bearer or to an identified person that is the person in possession.

Ridgewood Sav. Bank v. Glickman, NY Slip Op 04985 (2d Dep't September 15, 2021)

Here is the decision.

Appellate practice.

Where the Supreme Court reviews the merits of a party's contentions on the branch of its motion which is for leave to reargue, the court, in effect, granted reargument. Therefore, the portion of an order which is made, in effect, upon reargument is appealable.

Nationstar Mtge., LLC v. Jong Sim, NY Slip Op 04979 (2d Dep't September 15, 2021)

Here is the decision.

Mandamus.

The extraordinary remedy of mandamus will lie only to compel the performance of a ministerial act, and, then, only where there is a clear legal right to the relief sought.

Matter of Weaver v. Cohen, NY Slip Op 04977 (2d Dep't September 15, 2021)

Here is the decision.

A cause of action for breach of fiduciary duty.

The elements are (1) the existence of a fiduciary relationship; (2) the defendant's misconduct; and (3) damages directly caused by the defendant's misconduct. The proponent must, at a minimum, establish that the offending parties' actions were a substantial factor in causing an identifiable loss.

Ali v. Chaudry, NY Slip Op 04900 (2d Dep't September 1, 2021)

Here is the decision.

The issue of standing in a contracts action.

The plaintiff lacks standing to assert the claim for an alleged breach, as, on the date of the closing, it assigned its rights in and to the purchase agreement to a nonparty. Therefore, the plaintiff is no longer the real party in interest. However, contrary to the defendant's contention, the plaintiff had standing to assert the remaining causes of action, as it only assigned its rights in the purchase agreement.

298 Humboldt, LLC v. Torres, NY Slip Op 04899 (2d Dep't September 1, 2021)

Here is the decision.

An action to foreclose a reverse mortgage.

The plaintiff establishes its prima facie entitlement to judgment as a matter of law by producing the reverse mortgage, the unpaid note, and evidence of the decedent's death, which constitutes a ground for acceleration of the debt under the terms of the instrument.

James B. Nuttter & Co. v. John Doe 1, NY Slip Op 04910 (2d Dep't September 1, 2021)

Here is the decision.

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.