22 NYCRR 202.27.

When plaintiff fails to appear for a mandatory court conference, regardless of whether the court issues an order of dismissal, the action is dismissed. 

HSBC Mtge. Corp. (USA) v. Marble Hill at 29, Inc., NY Slip Op 05922 (1st Dep't October 28, 2021)

Here is the decision.

Service of process and personal jurisdiction.

The court does not have personal jurisdiction over a defendant when a plaintiff fails to properly effect service of process. Where process has not been served upon a defendant, all subsequent proceedings are rendered null and void.

Wang v. Stony Brook Univ. Hosp., NY Slip Op 05891 (2d Dep't October 27, 2021)

Here is the decision.

The continuous treatment doctrine.

In order to implicate the tolling provision, the understanding that treatment is ongoing must be shared by both physician and patient.

Caraballo v New York Presbyt. Hosp./Weill Cornell Med. Ctr., NY Slip Op 05920 (1st Dep't October 28, 2021)

Here is the decision.

A default on a real estate contract.

This action is brought by plaintiff-buyer, who entered into a written agreement to purchase a cooperative apartment from defendants-sellers. Plaintiff seeks the return of a down payment that plaintiff paid to secure her performance under the parties' contract. Defendants retained the deposit when plaintiff failed to close. Supreme Court granted plaintiff's motion for summary judgment in order to prevent unjust enrichment. The Appellate Division reversed. A claim for unjust enrichment will not stand in the face of the written agreement. An appeal to equity is unavailing, since it is settled law that a vendee who defaults on a real estate contract without lawful excuse cannot recover the down payment.

Jennings v. Silfen, NY Slip Op 05923 (1st Dep't October 28, 2021)

Here is the decision.

Referees.

Referees derive their authority from an order of reference by the court, which can be only be made upon the parties' consent. Absent consent, the referee has the power only to hear and report his findings. CPLR 4403 requires a motion to reject a referee's report to be made within 15 days of the filing of the report, while 22 NYCRR 202.44(a) requires the defendant to move to confirm or reject the report within 30 days after notice of the filing of the report.

HSBC Bank USA, N.A.. v. Sewell, NY Slip Op 05850 (2d Dep't October 27, 2021)

Here is the decision.

Appellate practice.

No appeal lies from an order denying reargument.

Bank of Am., N.A. v. Alrasheed, NY Slip Op 05848 (2d Dep't October 27, 2021)

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Inadmissible hearsay.

The court refused to admit into evidence three statements allegedly made by plaintiff and recorded in his hospital records about the manner in which his accident happened. These statements are not admissible as admissions against interest, since the evidence adduced outside the jury's presence failed to establish that plaintiff was the source of the information contained in one of the statements, and defendants failed to produce the interpreters through whom the other two statements were made to confirm that they were objective and competent and that their interpretations were accurate. The statements are not admissible under the business records exception to the hearsay rule, since they are not germane to the treatment or diagnosis of plaintiff's injuries. 

Nassa v. 1512 LLC, NY Slip Op 05927 (1st Dep't October 28, 2021)

Here is the decision.

Forum selection clauses.

Where the record reflects a sufficiently close relationship among defendants so as to make the application of the clause foreseeable, a separate minimum-contacts analysis is unnecessary.

Oberon Sec., LLC v. Titanic Entertainment Holdings LLC, NY Slip Op 05929 (1st Dep't October 28, 2021)

Here is the decision.

The initial burden on a summary judgment motion.

Where the movant fails to satisfy its prima facie burden of establishing entitlement to judgment as a matter of law, it is unnecessary to consider the sufficiency of the opposition papers. 

Lampert v. County of Suffolk, NY Slip Op 05852 (2d Dep't October 27, 2021)

Here is the decision.

CPLR 3211(a)(5).

In opposition to the motion to dismiss, a plaintiff may submit affidavits to remedy defects in the complaint and preserve claims that are inartfully pleaded but potentially meritorious.

Jacobson Dev. Group, LLC v. Grossman, NY Slip Op 05851 (2d Dep't October 27, 2021)

Here is the decision.