CPLR 603.

The order which granted plaintiffs' motion to sever their declaratory judgment claim from defendant's counterclaims was affirmed.  Most of the plaintiffs in this action are not counterclaim defendants, and they would be prejudiced if severance were denied.

Spicer v. Garda World Consulting (UK) Ltd., NY Slip Op 05681 (1st Dep't October 19, 2021)

Here is the decision.

Establishing standing in a foreclosure action.

The plaintiff establishes standing by showing that it had either a written assignment or physical possession of the underlying note and mortgage prior to commencement. A conclusory statement in an affidavit will not suffice when standing is raised as a defense. Here, the affiant's bare claim that plaintiff "has been in continuous possession of the Note and Mortgage prior to referring the Loan to be foreclosed" is not sufficient to establish standing.

U.S. Bank Trust, N.A. v. Francis, NY Slip Op 05655 (1st Dep't October 14, 2021)

Here is the decision.

Res ipsa loquitur in a defective sidewalk action.

The Appellate Division affirmed the order which denied defendant's motion for summary judgment dismissing the complaint. Plaintiff's failure to specifically plead res ipsa loquitur does not bar her from invoking the doctrine where, as here, the facts warrant its application. A sidewalk collapse is not the type of incident which ordinarily occurs in the absence of negligence, and defendant failed to show that it did not have exclusive control over the maintenance and repair of the sidewalk slab which collapsed.  In addition, defendant did not demonstrate that plaintiff's own negligence caused the collapse. 

Williams v. Forward Realty Corp., NY Slip Op 05658 (1st Dep't October 14, 2021)

Here is the decision.

CPLR 3215(c).

Pursuant to the statute, "If the plaintiff fails to take proceedings for the entry of judgment within one year after the default, the court shall not enter judgment but shall dismiss the complaint as abandoned, without costs, upon its own initiative or on motion, unless sufficient cause is shown why the complaint should not be dismissed."  In order to establish sufficient cause, the party opposing dismissal must demonstrate that it had a reasonable excuse for the delay in taking proceedings for entry of a default judgment and that it has a potentially meritorious action. The determination of whether an excuse is reasonable is committed to the sound discretion of the motion court, and reversal is warranted if that discretion is improvidently exercised.

Deutsch Bank Nattl. Trust Co. v. Bakarey, NY Slip Op 05543 (2d Dep't October 13, 2021)

Here is the decision.

Appellate practice.

In an action to foreclose a mortgage, the plaintiff appeals from the order which granted the defendant's motion, pursuant to CPLR 3211(a)(5), to dismiss the complaint as time-barred. The Supreme Court determined that the action was untimely, as the entire mortgage debt had been accelerated more than six years before the action was commenced. The court rejected the plaintiff's contention that certain monthly invoices sent to the defendant's lawyer had been effective to de-accelerate the outstanding mortgage debt. The court set forth two alternative grounds for its determination: (1) the invoices were not sent to the proper address as specified in the mortgage, and (2) the invoices failed to constitute clear and unequivocal notice of the plaintiff's election to de-accelerate the outstanding mortgage debt.

On appeal, the plaintiff does not contend that the invoices were sent to the proper address in accordance with the terms of the mortgage. The only argument made by the plaintiff that relates to the first alternative ground set forth in the order appealed from is raised for the first time on appeal and is not properly before the Appellate Division. The Appellate Division need not address the plaintiff's remaining contentions, as they all relate to the second alternative ground set forth in the order appealed from.

Deutsche Bank Natl. Trust Co. v. 9th St, LLC, NY Slip Op 05542 (2d Dep't October 13, 2021)

Here is the decision.

CPLR 5015(a)(3).

The court may relieve a party from a judgment or order upon the ground of fraud, misrepresentation, or other misconduct of an adverse party. 

Citimortgage, Inc. v. Zagoory, NY Slip Op 05541(2d Dep't October 13, 2021)

Here is the decision.

The Pothole Law.

Pursuant to Administrative Code of the City of New York § 7-201(c)(2), commonly known as the Pothole Law, no civil action may be maintained against the City for personal injuries resulting from an alleged dangerous condition in the roadway unless written notice of the defective condition was actually given to the appropriate person authorized to receive such notice, or there is a written acknowledgment from the City of the defective condition, and the City failed to repair it within 15 days of the notice. The prior written notice is a condition precedent which a plaintiff must plead and prove. The only recognized exceptions to the statutory notice requirement involve situations in which the municipality created the defect or hazard through an affirmative act of negligence, or where a special use confers a benefit upon the municipality. The affirmative act of negligence exception is limited to work that immediately results in a dangerous condition.

Caballero v. City of New York, NY Slip Op 05540 (2d Dep't October 13, 2021)

Here is the decision.

Expert opinion in a defective design action.

The Appellate Division dismissed the claim because plaintiff failed to rebut defendant's prima facie showing that the van was not negligently designed. Where a qualified expert opines that a particular product is defective or dangerous, describes why it is dangerous, explains how it can be made safer, and concludes that it is feasible to do so, it is for the jury to make the required risk-utility analysis and decide whether the product was reasonably safe. However, an expert cannot raise an issue of fact to avoid summary judgment when the opinion consists of bare conclusory allegations of alleged defects or industry-wide knowledge. Here, plaintiffs' expert's assertions were unsupported by any data concerning the testing he purportedly performed, and which he described in conclusory terms and general statements. Plaintiffs pointed to reports concerning the alleged propensity of 15-passenger vans to roll over, but such reports are hearsay In addition, the tests performed in connection with those reports were computerized models of a generic passenger van, results rebutted by defendant in an on-track study showing that its van did not behave as the generic computerized model did. 

Richards v. Ford Motor Co., NY Slip Op 05469 (1st Dep't October 12, 2021)

Here is the decision.

Contract law and cure provisions.

A party's termination is ineffective where the contract provides for a notice-to-cure and notice is not given. There are limited circumstances where, despite being contractually required, notice is not necessary, such as where the other party expressly repudiates the contract or abandons performance. Notice is not required where the breach is impossible to cure, or so substantial that it undermines the entire contractual relationship such that it cannot be cured. This is based on the common law contract principle that a material breach that goes to the root of the matter or the essence of the contract constitutes grounds for rescission without opportunity to cure.

East Empire Constr. Inc. v. Borough Constr. Group LLC, NY Slip Op 05455 (1st Dep't October 12, 2021)

Here is the decision.

Sanctions for frivolous conduct.

Pursuant to 22 NYCRR 130-1.1, sanctions may be imposed against a party or the party's attorney for frivolous conduct. Conduct is frivolous if (1) it is completely without merit in law, and cannot be supported by a reasonable argument for an extension, modification, or reversal of existing law; (2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or (3) it asserts material factual statements that are false.  A party seeking the imposition of sanctions or an award of attorney's fees has the burden of proof.

Glaubach v. Slifkin, NY Slip Op 05323 (2d Dep't October 6, 2021)

Here is the decision.

CPLR 3215(g)(3)(i).

The Appellate Division reversed the order which denied the individual defendant's motion to vacate a default judgment as against him, and granted the motion. The plaintiff mailed the summons to the defendant's places of business, not his place of residence, and failed to state that the place of residence was unknown. The burden is on the plaintiff to show that he did not know the defendant's place of residence, not on the defendant to prove that the plaintiff knew the place of residence.

Thomas v. Karen's Body Beautiful, LLC, NY Slip Op 05408 (1st Dep't October 7, 2021)

Here is the decision.