A person may not charge, take, or receive any money as interest on a loan at a rate exceeding the maximum permissible interest rate of 16% per year. A usurious contract is void and relieves the borrower of the obligation to repay principal and interest thereon.
Adler v. Marzario, NY Slip Op 06977 (2d Dep't December 15, 2021)
A motion for leave to renew will be denied where the purported new facts are not material and would not change the prior determination.
Casillas-Reyes v. John, NY Slip Op 06943 (1st Dep't December 14, 2021)
Plaintiff's claim for fraud is incidental to his conversion claim, and so it is subject to the three-year limitations period as applicable to the conversion claim.
Lyman v. J.P. Morgan Chase & Co., NY Slip Op 06954 (1st Dep't December 14, 2021)
A notice to admit is limited to admissions regarding facts as to which the party requesting the admission reasonably believes there can be no substantial dispute.
Marchese v. Aston, NY Slip Op 06959 (1st Dep't December 14, 2021)
A party may not recover in common-law indemnity for its own breach of contract.
Shah v. 20 E. 64th St., LLC, NY Slip Op 06071 (1st Dep't December 14, 2021)
The City established prima facie that it adequately designed, constructed, and maintained its roadway in a reasonably safe condition, including the median barrier at issue. Plaintiff's expert opined that good and accepted engineering and transportation industry safety practices required that the barrier have reflective tape or paint on it and that the opening be enlarged or the crosswalk narrowed. However, the opinion is unsupported by a published standard or evidence that the practices are generally accepted. Moreover, plaintiff's photograph, which purported to show the lighting conditions on the night of the accident, was unauthenticated, as plaintiff failed to aver that the photograph was taken at the actual location, he had disclaimed having any photographs of the location at his deposition 18 months after the accident, and another witness testified that he was unsure which intersection was depicted.
Warshak v. City of New York, NY Slip Op 06974 (1st Dep't December 14, 2021)
"Personal service upon an infant shall be made by personally serving the summons within the state upon a parent or any guardian or any person having legal custody or, if the infant is married, upon an adult spouse with whom the infant resides, or, if none are within the state, upon any other person with whom he resides, or by whom he is employed." Here, the process server attested that he served the infant-defendant pursuant to CPLR 308(2) by delivering a copy of the summons and complaint to the housekeeper at the infant's dwelling place and then completing the requisite mailing. Thus, the action is jurisdictionally defective as against the infant. Because the Supreme Court never had personal jurisdiction over the infant, it was improper to amend the summons and complaint to substitute the guardian, in her representative capacity, as a party-defendant in the infant's place.
US Bank N.A. v. McGown, NY Slip Op 06879 (2d Dep't December 8, 2021)
The Appellate Division will not consider an argument that presents factual issues that were not submitted to the motion court.
Hess v. EDR Assets LLC, NY Slip Op 06920 (1st Dep't December 9, 2021)
The courts will decide the issue of arbitrability unless there is a clear and unmistakable agreement to arbitrate the issue. Here, there is such an agreement because the parties incorporated the American Arbitration Association's rules into their arbitration provision.
Schindler v. Cellco Partnership, NY Slip Op 06931 (1st Dep't December 9, 2021)
