CPLR 3215(c).

In order to avoid dismissal of the complaint as abandoned, a plaintiff must initiate proceedings for the entry of a judgment within one year of the defendant's default.

Bank of N.Y. v. Ilonzeh, NY Slip Op 02106 (2d Dep't March 30, 2022)

Here is the decision.

Waiver of the right to a jury trial.

The fact that the plaintiff is seeking money damages does not, in and of itself, guarantee entitlement to a jury trial. When the complaint either joins legal and equitable causes of action arising out of the same alleged wrong or seeks both legal and equitable relief, the plaintiff waives the right to a jury trial. Where the note of issue characterizes the action as sounding in equity, the plaintiff waives his right to a jury trial.

Aroch v. 391 Broadway LLC, NY Slip Op 02187 (1st Dep't March 31, 2022)

Here is the decision.

CPLR 3215(f).

Where a foreclosure complaint is not verified, an application for a default judgment must include an affidavit setting forth proof of the facts constituting the claim, the default, and the amount due.

799 Crown St., LLC v. Leblanc, NY Slip Op 09105 (2d Dep't March 30, 2022)

Here is the decision.

Injunctive relief.

An injunction will not issue in an action where the plaintiff can be fully compensated by a monetary award, because, as a matter of law, there will be no irreparable harm in the absence of injunctive relief.

Medallion Fin. Corp. v. Tsitiridis, NY Slip Op 02090 (1st Dep't March 29, 2022)

Here is the decision.

Affidavits of service.

A process server's affidavit of service constitutes prima facie evidence of proper service and, therefore, gives rise to a presumption of proper service. A mere conclusory denial of service is insufficient to rebut the presumption. In order to warrant a hearing, the denial of service must be substantiated by specific, detailed facts that contradict the affidavit of service. Here, the affidavit of service reflects that the defendant was personally served at his home and sets forth in detail a physical description of the defendant. The defendant attempted to rebut the presumption of proper service with an affidavit averring that he left a friend's house approximately 30 minutes prior to the alleged time of service, and that no one was at the defendant's home. The defendant failed to address the detailed physical description of him set forth in the affidavit of service. The Appellate Division affirmed the trial court's determination that the "defendant's assertion that there was not proper service is conclusory, self-serving and not credible." Thus, the trial court providently exercised its discretion in denying that branch of the defendant's motion which was pursuant to CPLR 5015(a)(4) to vacate the judgment of foreclosure and sale.

Wilmington Trust, NA v. Daddi, NY Slip Op 02040 (2d Dep't March 23, 2022)

Here is the decision.

Preclusion.

The trial court abused its discretion in precluding defendants from using a deposition given by plaintiff in a prior personal injury action. Plaintiff could not have been surprised by defendants' use of her deposition testimony, as she was obviously aware that she had given the deposition, and she had received a copy of the transcript, pursuant to CPLR 3101[e]. Plaintiff's prior deposition testimony was directly relevant to the injuries for which she sought damages in this action. In addition, plaintiff's counsel concedes that plaintiff would not have been prejudiced by defendants' failure to produce the documents at issue if she had been represented by the same counsel in this action and in the prior personal injury action. However, plaintiff was represented in this action by her counsel in the prior personal injury action on the date that the court's scheduling order required defendant to turn over any statements made by plaintiff. Therefore, defendants should not be penalized for not having done so.

Miller v. Camelot Communications Group, Inc., NY Slip Op 02091 (1st Dep't March 29, 2022)

Here is the decision.

CPLR 3213.

Summary judgment in lieu of complaint is limited to actions that are based upon instruments for the payment of money only.

Bank of Am., N.A. v. Filho, NY Slip Op 02055 (1st Dep't March 24, 2022)

Here is the decision.

CPLR 317.

A defaulting defendant that was served with a summons other than by personal delivery may be permitted to defend the action upon the court's finding that the defendant did not personally receive notice of the summons in time to defend and has a meritorious defense. Service on a limited liability company through the Secretary of State does not constitute personal delivery. The mere denial of receipt of the summons and complaint is not sufficient to establish lack of actual notice of the action in time to defend.

Andrews v. Wartburg Receiver, LLC, NY Slip Op 01980 (2d Dep't March 23, 2022)

Here is the decision.

Suits against the State.

 In order to timely commence the action, a claimant must meet the requirements of Court of Claims Act § 11, which states, "[t]he claim shall state the time when and place where such claim arose, the nature of same, and the items of damage or injuries claimed to have been sustained." Absolute exactitude is not required, but the notice of claim must be definite enough to enable the State to investigate the claim promptly and to ascertain its liability.

Mindley v. State of New York, NY Slip Op 02069 (1st Dep't March 13, 2022)

Here is the decision.

A motion to quash a subpoena.

Since the plaintiff is trying to enforce a judgment that was issued by Supreme Court, New York County, plaintiff properly issued subpoenas with restraining notices out of that court. A proceeding to vacate the restraining notices must be brought in that court. 

79 Madison LLC v. Ebrahimzadeh, NY Slip Op 02052 (1st Dep't March 24, 2022)

Here is the decision.

Property owners' liability.

Property owners and occupiers owe a duty of reasonable care to keep their premises safe. The scope of that duty is the foreseeability of the possible harm, which can be resolved by the court when only one inference can be drawn from undisputed facts. A landowner is not liable for injuries arising from a condition that is inherent or incidental to the nature of the property, and that could be reasonably anticipated by those using it.

Aloi v. Dubriske, NY Slip Op 01979 (2d Dep't March 23, 2022)

Here is the decision.