Summary judgment in a negligence action.

A defendant moving for summary judgment in a negligence action has the burden of establishing, prima facie, that he was not at fault in the happening of the accident. Here, in its moving papers, the defendant submitted deposition testimony which provided conflicting evidence as to the facts surrounding the incident. Viewing the evidence in the light most favorable to the plaintiff, as the nonmoving party, the defendant failed to satisfy the prima facie burden. The motion is denied, without considering the sufficiency of the opposing papers. 

Wiessner v. Phillips, NY Slip Op 00216 (2d Dep't January 2, 2022)

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The tort of conversion.

The cause of action is established where the plaintiff owns and has a right to possession of personal property and proves that the property is in the unauthorized possession of the defendant who has acted to exclude the plaintiff's ownership rights.

Dragons 516 Ltd. v. GDC 138 E 50 LLC, NY Slip Op 00121 (1st Dep't January 11, 2022)

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CPLR 302(a)(3).

In the context of a commercial tort, where the damage is solely economic, the situs of commercial injury is where the original critical events associated with the action or dispute took place, not where any financial loss or damages occurred.

Quad Capital Portfolio A LLC v. AbbVie Inc., NY Slip Op 00065 (1st Dep't January 6, 2022)

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CPLR 3215(c).

The statute provides that if a plaintiff fails to "take proceedings" for the entry of judgment within one year after the defendant's default, the court shall not enter judgment, but shall dismiss the complaint as abandoned. In this action to foreclose a mortgage, the Second Department addresses for the first time whether the presentment to the court of a proposed ex parte order to show cause for an order of reference, which is rejected by the court for defects inherent in the papers, qualifies as a taking of proceedings within the meaning of the statute. The Second Department holds that it does qualify.

Citibank, N.A. v. Kerszko, NY Slip Op 00032 (2d Dep't January 5, 2022)

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CPLR 2001.

At any stage of the litigation, a court may permit a mistake, omission, defect, or irregularity to be corrected, upon such terms as may be just. If a party's substantial right is not prejudiced, the mistake, omission, defect, or irregularity shall be disregarded.

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

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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)

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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)

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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)

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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)

Here is the decision.