An action to foreclose a mortgage.

The limitations period is six years, pursuant to CPLR 213[4], and if the mortgage debt is accelerated, the statutory period begins to run on the entire debt. An acceleration of the debt can occur when a creditor commences an action to foreclose upon a note and mortgage, and, in the complaint, seeks payment of the full balance due. However, service of a complaint does not constitute a valid exercise of the option to accelerate a debt where the plaintiff does not have the authority to accelerate the debt or to sue to foreclose at that time.

21st Mtge. Corp. v. Rudman, NY Slip Op 00031 (2d Dep't January 5, 2022)

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CPLR 214(6).

A claim for legal malpractice is subject to a three-year statute of limitations. The malpractice accrues, and the limitation period starts running, when the act, error, or omission occurs.

Morgan & Mendel Genomics, Inc. v. Amster Rothstein & Ebenstein, LLP, NY Slip Op 00048 (1st Dep't January 6, 2022)

Here is the decision.

Appellate practice.

The defendant appeals the order that granted the plaintiff's motion for summary judgment on the complaint and appointed a referee to compute the amount due to the plaintiff. The appeal from the order must be dismissed because the right of direct appeal therefrom terminated with the entry of the order and judgment of foreclosure and sale in the action. The issues raised on the appeal from the order are brought up for review and are considered on the appeal from the order and judgment of foreclosure and sale.

21st Mtge. Corp. v. Rudman, NY Slip Op 00030 (2d Dep't January 5, 2022)

Here is the decision.

An attorney's allegedly defamatory statements.

The statements are afforded the protections of Civil Rights Law § 74, which allows the publication of a fair and true report of any judicial proceeding. The statutory privilege is absolute, and applies even where the plaintiff alleges malice or bad faith.

Weeden v. Lukezic, NY Slip Op 00026 (1st Dep't January 4, 2022)

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CPLR 4106.

The trial court may substitute a regular juror with an alternate juror after deliberations have begun. The court must direct the jury to restart its deliberations from the beginning and disregard and set aside all prior deliberations. 

Caldwell v. New York City Tr. Auth., NY Slip Op 07537 (2d Dep't December 29, 2021)

Here is the decision.

Standing in a mortgage foreclosure action.

The plaintiff has standing where it is the holder or assignee of the underlying note at the time the action is commenced. Either a written assignment of the underlying note or its physical delivery prior to the commencement of the action is sufficient to transfer the obligation, and the mortgage passes with the debt as an inseparable incident. Where, as here, the plaintiff's standing is placed in issue by the defendant's answer, the plaintiff must prove its standing.

Bank of N.Y. Mellon v. Deas, NY Slip Op 07536 (2d Dep't December 29, 2021)

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CPLR 3216.

The court may dismiss a complaint for want of prosecution after the plaintiff is served with a written notice to serve and file a note of issue within 90 days, and stating that noncompliance will serve as the basis for a motion to dismiss. If the plaintiff fails to comply, the court may grant the motion unless the plaintiff shows a justifiable excuse for the delay and a meritorious cause of action. The statute is extremely forgiving, in that it does not require, but merely authorizes, the court to dismiss an action based on the plaintiff's unreasonable neglect to proceed.

Bank of Am., N.A. v. Nicolosi, NY Slip Op 07435 (2d Dep't December 29, 2021)

Here is the decision.

Termination of an at-will employee.

New York does not recognize the tort of wrongful discharge of an at-will employee. Here, the claims for defamation and tortious interference with business relations are so closely related to the plaintiff's termination that they do not sound as distinct causes of action. Those claims are dismissed because a plaintiff cannot subvert the at-will rule by casting the cause of action as a separate tort. 

Winiarski v. Butler, NY Slip Op 07534 (1st Dep't December 28, 2021)

Here is the decision.

The limitations period in a boundary dispute.

A boundary dispute over a party's rights to property is an action seeking to remove a cloud on title, which is an equitable remedy. The action is governed by the 10-year statute of limitations where the owner is out of possession. However, where, as here, the owner is in possession, the right of action to remove a cloud on title is a continuous one accruing from day to day, and this right is not barred by the statute of limitations until the cloud is continued without interruption for a length of time sufficient to effect a change of title as a matter of law.

Liberty Sq. Realty Corp. v. The Doe Fund, Inc., NY Slip Op 07082 (1st Dep't December 21, 2021)

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Article 78 proceedings.

The court's inquiry is limited to the question of whether the arbiter's determination is arbitrary, capricious, or lacking a rational basis.

Matter of Prismatic Dev. Corp. v. New York City Tr. Auth., NY Slip Op 07072 (1st Dep't December 16, 2021)

Here is the decision.