CPLR 3211[e].

A defense of lack of standing is waived if not asserted in an answer or a pre-answer motion to dismiss.

Castaldi v. Syosset Cent. Sch. Dist., NY Slip Op 01285 (2d Dep't March 2, 2022)

Here is the decision.

CPLR 2104.

A stipulation of settlement may be evinced by multiple writings. However, where those writings, taken together, do not show agreement on all material terms, the alleged agreement is unenforceable.

Xhepexhiu v. Mitaj, NY Slip Op 04109 (1st Dep't March 2, 2022)

Here is the decision.

Summary judgment.

Summary judgment is inappropriate where, in order to decide the motion, the court must make a factual finding.

Aviation Distribs. Inc., Formed May 1945 v. Aviation Distribs. Inc., Formed 2014, NY Slip Op 01378 (1st Dep't March 3, 2022)

Here is the decision.

Contractual indemnification.

The right to contractual indemnification depends upon the specific language of the contract. A promise to indemnify will not be found unless it can be clearly implied from the language and purpose of the entire agreement and the surrounding circumstances. A party that moves for summary judgment dismissing a claim for contractual indemnification must make a prima facie showing that it was not contractually obligated to indemnify the party asserting the indemnification claim. This may be accomplished by showing that, under the circumstances, an indemnification clause in a contract between the parties either was not triggered or was otherwise inapplicable.

Burgos v. 14 E. 44 St., LLC, NY Slip Op 01284 (2d Dep't March 2, 2022)

Here is the decision.

A cause of action for breach of contract.

The essential elements of a breach of contract cause of action are the existence of a contract, the plaintiff's performance under the contract, the defendant's breach of that contract, and resulting damages. Here, the plaintiff was not a party to, or intended beneficiary of, the escrow agreement, and, therefore, cannot recover for its alleged breach.

Blank v. Petrosyants, NY Slip Op 01283 (2d Dep't March 2, 2022)

Here is the decision.

CPLR 7502[a][i].

Venue is proper in the county where at least one of the parties is doing business.

Matter of Finkelstein v. Finkelstein, NY Slip Op 01268 (1st Dep't March 1, 2022)

Here is the decision.

CPLR 3213.

The action for summary judgment in lieu of complaint was appropriately commenced because the instruments sued upon were for the payment of money only and required no reference to external documents to determine their clear and material terms.

YH Lex Estates LLC v. H F Z Capital Group LLC, NY Slip Op 01282 (1st Dep't March 1, 2022)

Here is the decision.

CPLR 5015[a][1].

A party seeking to vacate a default judgment must demonstrate both a reasonable excuse for the default and a meritorious defense. Here, the defendant failed to proffer a reasonable excuse for the default in responding to the plaintiff's motion for summary judgment. Although, on the motion's return date, the defendant's counsel was moving his office to a new location, the defendant gives no reason why counsel could not have responded to the motion prior to the move. Counsel took no action for three weeks after receiving notice of the motion. The Appellate Division notes that this default was not an isolated incident on the defendant's part.

Aetna Life Ins. Co. v. UTA of KJ Inc., NY Slip Op 01266 (1st Dep't March 1, 2022)

Here is the decision.

Appellate practice.

The Appellate Division declines to consider the defendant's argument that is improperly raised for the first time on appeal.

10E53 Owner LLC v. Bruderman Asset Mgt., NY Slip Op 01228 (1st Dep't February 24, 222)

Here is the decision.

CPLR 304.

Where a case is marked off the calendar and not restored within one year, there is a rebuttable presumption that it is abandoned. If the presumption of abandonment is not rebutted, the case will be dismissed.

Wells Fargo Bank, N.A. v. Yoo Mi Min, NY Slip Op 01265 (1st Dep't February 24, 2022)

Here is the decision.

Summary judgment in a legal malpractice action.

In order to succeed on the motion, the defendant must present evidence, in admissible form, establishing that at least one of the essential elements of the cause of action cannot be satisfied:  (1) the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession, and (2) the attorney's breach of this duty proximately caused the plaintiff to sustain actual and ascertainable damages. The causation element requires a showing that, but for the defendant's negligence, the injured party would have prevailed in the underlying action, or would not have incurred any damages. The defendant must affirmatively demonstrate the absence of one of the elements, rather than merely point out gaps in the plaintiff's proof.

Schmidt v. Burner, NY Slip Op 01191 (2d Dep't February 23, 2022)

Here is the decision.