An action to foreclose the mortgage on a home loan.

RPAPL 1304 requires at least 90 days notice to the borrower before a lender, an assignee, or a mortgage loan servicer commences the action. The statute provides the required content for the notice and provides that the notice must be sent by registered or certified mail and also by first-class mail to the last known address of the borrower. Strict compliance with the statutory notice is a condition precedent to commencing the action, and the plaintiff has the burden of establishing satisfaction of this condition.

Federal Natl. Mtge. Assn. v. Young, NY Slip Op 04292 (2d Dep't July 6, 2022)

Here is the decision.

Contract law and illiteracy.

A claim of illiteracy in the English language is insufficient to avoid the rule that a party who signs a contract without any valid excuse for having failed to read it is conclusively bound by its terms. A party who cannot read English must make an effort to have the document read to him. 

Emigrant Mtge. Co., Inc. v. Public Adm'r of Kings County, NY Slip Op 04291 (2d Dep't July 6, 2022)

Here is the decision.

The Workers' Compensation Law.

Pursuant to the statute, an employee's recovery of workers' compensation benefits is the exclusive remedy against his employer or coworkers for injuries sustained in the course of employment. Here, summary judgment dismissing the complaint is denied because the defendants submitted conflicting evidence regarding the identity of the plaintiff's employer.

Calixte v. City of New York, NY Slip Op 04286 (2d Dep't July 6, 2022)

Here is the decision.

CPLR 3012(d).

On the application of a party, the court may extend the time to appear or plead, or compel the acceptance of a pleading untimely served. Here, in order to compel the plaintiff to accept her untimely answer, the defendant was required to demonstrate both a reasonable excuse for the delay and a potentially meritorious defense. The determination of what constitutes a reasonable excuse lies within the sound discretion of the Supreme Court. The Appellate Division held that the Supreme Court improvidently exercised its discretion in finding that the defendant proffered a reasonable excuse for her untimely answer. The bare allegation by the defendant's attorney that the delay was caused by the defendant's insurance carrier is insufficient to excuse the delay in answering the complaint. The absence of a reasonable excuse for the default renders it unnecessary to determine whether she demonstrated the existence of a potentially meritorious defense. 

Goldstein v Ilaz, NY Slip Op 04154 (2d Dep't June 29, 2022)

Here is the decision.

An insufficient slip-and-fall claim.

The plaintiff's inability to identify the cause of the fall is fatal to the cause of action, because a finding that the defendant's negligence, if any, proximately caused the plaintiff's injuries would be based on speculation.

Barnett v. Fusco, NY Slip Op 04147 (2d Dep't June 29, 2022)

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CPLR 3101(a).

Parties are entitled to full disclosure of all matter that is material and necessary in the prosecution or defense of the action. The supervision of discovery, and the setting of reasonable terms and conditions for disclosure, are within the sound discretion of the trial court.

Andrade v. Frog Hollow Indus., Inc., NY Slip Op 04146 (2d Dep't June 29, 2022)

Here is the decision.

Default judgment is denied.

The trial court properly denied plaintiff's motion for a default judgment. Defendants were technically in default when they failed to timely answer or move to dismiss after they filed their notice of appearance. However, as the trial court noted in the order on appeal, in an earlier hearing on the motion, the court had sua sponte allowed plaintiff to file a late proof of service. At the same time, the court granted defendants a 30-day extension to respond to the complaint, as of the date of the hearing. As the case docket makes clear, defendants responded to the complaint within that period. In addition, New York has a strong policy in favor of litigating matters on the merits.

MLS Real Estate Consultants, Inc. v. Eisenberg, NY Slip Op 04224 (1st Dep't June 30, 2022)

Here is the decision.

Appellate practice.

The Appellate Division has no jurisdiction to entertain defendant's arguments in support of reversing the part of the order that denied his cross motion for consolidation, because his notice of appeal limited the appeal to the specific part of the order that granted plaintiff's summary judgment motion, pursuant to CPLR 5515[1].

Vandergrand Props. Co., L.P. v. Warnock, NY Slip Op 04229 (1st Dep't June 30, 2022)

Here is the decision.

CPLR 3211(7)(a).

Upon a motion to dismiss for failure to state a claim, the court may reach the merits of a properly pleaded cause of action for a declaratory judgment where no questions of fact are presented by the controversy. In that case, the motion to dismiss should be treated as one seeking a declaration in the defendant's favor and decided accordingly.

50 Clarkson Partners, LLC v Old Republic Natl. Tit. Ins. Co. NY Slip Op 04144 (2d Dep't June 29, 2022)

Here is the decision.

Appellate practice.

There is no appeal as of right from a sua sponte order. The proper course is to move the motion court to vacate the order or to seek leave to appeal from the Appellate Division. Here, in light of counsel's repeated failure to properly prosecute this action, which would largely benefit his law firm, the Appellate Division declines to deem the notice of appeal a motion for leave to appeal in the interest of justice.

Beltran v. Commercial Bldg. Maintenance Corp., NY Slip Op 04115 (1st Dep't June 28, 2022)

Here is the decision.