Service of process.

The plaintiff had the burden of proving that jurisdiction was obtained over the defendant by proper service of process. A process server's affidavit of service constitutes prima facie proof of service.

Chase Home Fin., LLC v. Kahana, NY Slip Op 05022 (2d Dep't September 22, 2021)

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Summary judgment in a medical malpractice action.

A physician moving for summary judgment dismissing the complaint must establish, prima facie, either that there was no departure from accepted standards of medical care, or that any departure was not a proximate cause of the plaintiff's injuries. On this showing, the burden shifts to the plaintiff to submit evidentiary facts or materials to rebut the defendant's prima facie showing, but only as to those elements on which the defendant met the prima facie burden.

G. M. C. v. O'Sullivan, NY Slip Op 05020 (2d Dep't September 22 2021)

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Contractual indemnification in a personal injury action.

The party seeking contractual indemnification must prove itself free from negligence, because to the extent its negligence contributed to the accident, it cannot be indemnified therefor.

Barcliff v. Schindler El. Corp., NY Slip Op 05019 (2d Dep't September 22, 2021)

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CPLR 3126(3).

A court may impose discovery sanctions, including the striking of a pleading, where a party "refuses to obey an order for disclosure or willfully fails to disclose information which the court finds ought to have been disclosed."  The nature and degree of a statutory penalty for discovery violations is addressed to the court's discretion. While public policy strongly favors the resolution of actions on the merits, the court may resort to the drastic remedies of striking a pleading or precluding evidence upon a clear showing that a party's failure to comply with a disclosure order was the result of willful and contumacious conduct. The court can infer that a party is acting willfully and contumaciously through the party's repeated failure to adequately respond to discovery demands or to comply with discovery orders.

Ambroise v. Palmana Realty Corp., NY Slip Op 05018 (2d Dep't September 22, 2021)

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Appellate practice.

Where the Appellate Division affirms the granting of plaintiff's motion for summary judgment in a declaratory judgment action, the matter must be remitted to the Supreme Court for the entry of a judgment as to the declaration.

23A Vernon, LLC v. Oneal, NY Slip Op 05017 (2d Dep't September 22, 2021)

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CPLR 3215(a).

A party may make an application for a default judgment when the defendant has failed to appear, plead, or proceed to trial of an action called for trial, or when the court orders a dismissal for any other neglect to proceed. The statute sets forth two separate procedures for securing a default judgment: (1) entry by the clerk, and (2) entry by a judge. If the plaintiff's claim is for a sum certain or for a sum which can by computation be made certain, application may be made to the clerk within one year after the default. The term "sum certain" in this context contemplates a situation in which, once liability has been established, there can be no dispute as to the amount due, as in actions on money judgments and negotiable instruments. Where the case is not one in which the clerk can enter judgment, the plaintiff shall apply to the court for judgment. The applicant, by affidavit, must file proof of service of the summons and complaint, the facts constituting the claim, the default, and the amount due.

21st Mtge. Corp. v. Raghu, NY Slip Op 05016 (2d Dep't September 22, 2021)

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CPLR 3211(a), (e), (f).

Service of a notice of motion to dismiss a complaint extends the defendant's time to answer. In order to be timely, the motion must be made before service of the responsive pleading is required.

21st Mtge. Corp. v. Raghu, NY Slip Op 05016 (2d Dep't September 22, 2021)

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A defendant's appearance.

After having been served with process, a defendant must respond in a proper and timely manner in order to avoid a default.  The defendant must appear within 20 days of service of a summons, or within 30 days of service where service was made by delivering the summons "to an official of the state authorized to receive service in his behalf," pursuant to CPLR 320[a]. The CPLR sets forth three ways that a defendant may appear: [1] by serving an answer, or [2] by serving a notice of appearance, or [3] by making a motion to extend the time to answer. The defendant's failure to respond to a summons and complaint in one of these three ways constitutes a failure to appear, pursuant to CPLR 3215.

21st Mtge. Corp. v. Raghu, NY Slip Op 05016 (2d Dep' September 22, 2021)

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The doctrine of judicial estoppel.

A party whose interests have changed is precluded from taking a position which is contrary to the position it took in a prior proceeding.

Morin v. Morin, NY Slip Op 04973 (2d Dep't September 15, 2021)

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Marital and separate property.

Marital property includes "all property acquired by either or both spouses during the marriage and before the execution of a separation agreement or the commencement of a matrimonial action, regardless of the form in which title is held," pursuant to Domestic Relations Law § 236[B][1][c]. Separate property includes "property acquired before marriage or property acquired by bequest, devise, or descent, or gift from a party other than the spouse," pursuant to § 236[B][1][d][1]. Property acquired during the marriage is presumed to be marital property, and the party seeking to overcome the presumption has the burden of proving that it is separate property.

Silvers v. Silvers, NY Slip Op 04987 (2d Dep't September 15, 2021)

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The collateral estoppel doctrine.

Collateral estoppel, or issue preclusion, precludes a party from relitigating in a subsequent action or proceeding an issue that was clearly raised in a prior action or proceeding and decided against that party or those in privity. The doctrine gives conclusive effect to prior determinations when two conditions are met: (1) there must be an identity of issue which has necessarily been decided in the prior action and is decisive of the present action, and (2) there must have been a full and fair opportunity to contest the decision now said to be controlling. The determination of whether a party had a full and fair opportunity to litigate in the prior proceeding requires a practical inquiry into the realities of the prior litigation. The burden of proof is on the proponent to establish the duplicative identity of the party against whom the doctrine is sought to be applied and the issues of the two proceedings, but the party seeking to avoid application of the doctrine has the ultimate burden of establishing the absence of a full and fair opportunity to have litigated the earlier matter.

Lennon v. 56th & Park (NY) Owner, LLC, NY Slip Op 04972 (2d Dep't September 15, 2021)

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