Defaults.

By failing to answer, the defaulting defendants are deemed to have admitted the factual allegations in the complaint.

State Farm Fire & Cas. Co. v. Axial Chiropractic, P.C., NY Slip Op 03487 (1st Dep't May 31, 2022)

Here is the decision.

Failure-to-warn liability.

Liability is intensely fact-specific, with issues including, but not limited to, the feasibility and difficulty of issuing warnings in the circumstances; the obviousness of the risk from actual use of the product; the user's knowledge of the product; and proximate cause. Recovery may properly be denied to a product user who was fully aware of the hazard through general knowledge, observation, or common sense. For that reason, courts could decide, as a matter of law, that a manufacturer's warning would have been superfluous given the injured party's actual knowledge of the specific hazard that caused the injury. However, even if a product user has some degree of knowledge of the potential hazards in the use of a product, summary judgment will not lie where reasonable minds might disagree as to the extent of that knowledge.

Vasquez v. Ridge Tool Pattern Co., NY Slip Op 03488 (1st Dep't May 31, 2022)

Here is the decision.

CPLR 3126.

The motion court considered plaintiff's objections to discovery demands and found them inadequate, given that there are two inconsistent documents in the record. Further, plaintiff had not provided an affidavit concerning its search for documents, and had not produced a witness for deposition. After issuing a conditional order of dismissal, the motion court does not have to inquire into whether plaintiff's noncompliance with discovery was willful. 

Wilmington Sav. Fund Socy, FSB v. Donaldson, NY Slip Op 03465 (1st Dep't May 26, 2022)

Here is the decision.

CPLR 213[4].

An action to foreclose a mortgage is subject to a six-year statute of limitations. The limitations period begins to run from the due date of each unpaid installment, from the date the mortgagee is entitled to demand full payment, or from the date the mortgage debt has been accelerated.

Bank of Am., N.A. v. Scher, NY Slip Op 03365 (2d Dep't May 25, 2022)

Here is the decision.

 

An untimely notice of claim.

The notice of claim, filed without leave of court, is a nullity.

Umeh v. New York City Health & Hosps. Corp., NY Slip Op 03358 (1st Dep't May 24, 2022)

Here is the decision.

A motion for leave to enter a default judgment.

The applicant must submit proof of service of the summons and complaint or summons and notice, proof of the facts constituting the cause of action, and proof of the defaulting defendant's failure to answer or appear, pursuant to CPLR 3215[f]. In order to demonstrate the facts constituting the cause of action, the plaintiff need only submit sufficient proof to enable a court to determine if the cause of action is viable, since defaulters are deemed to have admitted all factual allegations contained in the complaint and all reasonable inferences that flow from them.

Banks v. 110-18 198th St. Corp., NY Slip Op 03222 (2d Dep't May 18, 2022)

Here is the decision

CPLR 2309(c) and 2001.

In deciding defendant's motion to dismiss the complaint, the motion court properly considered defendant's sworn affidavit attaching the contract at issue, even though it lacked the required certificate of conformity. The absence of such a certificate is a mere irregularity and not a fatal defect. The motion court properly disregarded the irregularity because plaintiff does not allege that it prejudiced her.

Sebrow v. Sebrow, NY Slip Op 03337 (1st Dep't May 19, 2022)

Here is the decision.