Summary jdugement and discovery.

The Appellate Division rejected defendant's argument that summary judgment was premature on the ground that additional discovery was necessary. The action was commenced in 2017, and defendant did not move to strike the note of issue that was filed in 2019. Discovery is closed, and, in any event, the record supports plaintiff's assertion that defendant was afforded every opportunity to engage in meaningful discovery, but chose not to do so.

Signature Fin. LLC v. Garber, NY Slip Op 06784 (1st Dep't December 2, 2021)

Here is the decision.

Appellate practice.

Plaintiff's claims are not reviewable because he expressly abandoned them, on the record in open court and in a submission required by the court during motion practice. 

Sitt v. Sitt, NY Slip Op 06785 (1st Dep't December 2, 2021)

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A defendant's motion to exclude the testimony of plaintiff's expert.

The motion is denied because the objections to the expert's qualifications and conclusions go to the weight and not the admissibility of the expert's testimony.

SQN Asset Servicing, LLC v. Shunfeng Intl. Clean Energy Ltd., NY Slip Op 06786 (1st Dep't December 2, 2021)

Here is the decision.

The best evidence rule.

The rule requires the production of an original writing where its contents are in dispute and sought to be proven. Under an exception to the rule, secondary evidence of the contents of an unproduced original may be admitted if the trial court finds that the proponent has sufficiently explained the unavailability of the original and that the secondary evidence reliably and accurately portrays the original. The fact-finder will determine the weight to be given to the secondary evidence. 

Casanas v. Carlei Group, LLC, NY Slip Op 06787 (1st Dep't December 2, 2021)

Here is the decision.

Proper service.

A process server's affidavit constitutes a prima facie showing of proper service. However, when a defendant submits a sworn denial of receipt of service containing specific facts to refute the statements in the affidavit, the prima facie showing is rebutted and the plaintiff must establish personal jurisdiction by a preponderance of the evidence at a hearing. Here, the affidavit reflects that the defendant was served pursuant to CPLR 308(2)  by delivery of the summons and complaint to a person of suitable age and discretion at the mortgaged premises, followed by the required mailing to the address of the premises. The affidavit sets forth a detailed description of the person of suitable age and discretion, and states that the person represented to the process server that the premises was the defendant's "dwelling house." The defendant rebutted the presumption of valid service with an affidavit in which he averred that the premises was not his dwelling house or usual place of abode, and that his residence was located at a different specified address. He further averred that he had no knowledge of anyone being served on his behalf, and that he had not received a copy of the summons and complaint. Under these circumstances, a hearing on the issue of whether the defendant was properly served is warranted.

Bank of N.Y. v. Dutan, NY Slip Op 06668 (2d Dep't December 1, 2021)

Here is the decision.

CPLR 5015(a)(4).

Although a party moving to vacate a default must normally demonstrate a reasonable excuse and a meritorious defense, the movant is relieved of that obligation when lack of personal jurisdiction is asserted as the ground for vacatur.

Bank of N.Y. v. Dutan, NY Slip Op 06668 (2d Dep't December 1, 2021)

Here is the decision.

CPLR 3215(c).

"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." A defendant may waive the right to seek dismissal by serving an answer or taking any other steps which may be viewed as a formal or informal appearance. Here, the defendant waived the right to seek dismissal by cross-moving for a declaration that she was not in default and for leave to file a late answer, without seeking to dismiss the complaint as abandoned.

HSBC Bank USA, N.A. v. Ranasinghe, NY Slip Op 06610 (2d Dep't November 24, 2021)

Here is the decision.

December 7, 1941.

CPLR 5001(a).

The statute requires that there be a "sum awarded" upon which interest can be calculated. However, a replevin plaintiff may recover both possession of his property and damages for its wrongful detention, and where the property is merchandise kept for sale which has not depreciated in value, the measure of damages is interest on the value from the time of the wrongful taking. The rationale for awarding interest is that if the defendant had not taken the plaintiff's property, the plaintiff could have sold it at any time and then he would have had its value and whatever he could have earned on that value.

Reif v. Nagy, NY Slip Op 06659 (1st Dep't November 30, 2021)

Here is the decision.

CPLR 5511.

Defendant's failure to submit timely papers in opposition to plaintiff's motion for summary judgment, or obtain permission to submit late papers, is a default on the motion. The remedy is not an appeal, but a motion to vacate the default.

U.S. Bank N.A. v. Tiburcio, NY Slip Op 06662 (1st Dep't November 30, 2021)

Here is the decision.

CPLR 3211(a)(7).

Where evidentiary material is submitted and considered on a motion to dismiss for failure to state a claim, and the motion is not converted into one for summary judgment, the question is whether the plaintiff has a cause of action, not whether the plaintiff has stated one. The motion will be denied absent a showing that a material fact as claimed by the plaintiff is not a fact, and unless the purported fact is undisputed.

Halo v. Schmidt, NY Slip Op 06609 (2d Dep't November 24, 2021)

Here is the decision.