A claim of legal malpractice.

In order to state a cause of action to recover damages for legal malpractice, the plaintiff must allege that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession, and that the attorney's breach of this duty proximately caused the plaintiff to sustain actual and ascertainable damages. In order to establish causation, the plaintiff must plead specific factual allegations demonstrating that, but for the attorney's negligence, the underlying action would have had a more favorable outcome than resulted Conclusory allegations of damages or injuries predicated on speculation cannot suffice for a malpractice action, and dismissal is warranted where the allegations in the complaint are merely conclusory and speculative.

Jean-Paul v. Rosenblatt, NY Slip Op 04958 (2d Dep't August 17, 2022)

Here is the decision.

Appellate practice.

In this action on a promissory note, plaintiffs moved by notice of motion for summary judgment and defendants cross-moved for summary judgment dismissing the complaint for lack of standing. The motion court, by interim order, directed the parties to appear before a court attorney referee to determine if plaintiff had possession of the note when the action was commenced. After a hearing, the referee determined that plaintiffs were in possession of the note. Defendants appeal the referee's determination.

Although captioned "Decision and Order," the referee's decision is not an order determining a motion made on notice, pursuant to CPLR 5701[a][2]. The appeal is dismissed, without prejudice to defendants' taking of an appeal from the ultimate disposition of the summary judgment motions.

Ocwen Loan Servicing, LLC v. Pacheco, NY Slip Op 05009 (1st Dep't August 23, 2022)

Here is the decision.

Notices of claim.

Timely service of a notice of claim is a condition precedent to the commencement of an action sounding in tort against a municipal entity, pursuant to General Municipal Law § 50-e. A petition for leave to serve a late notice of claim upon a public authority may not be made more than one year and 90 days after the event upon which the claim is based, unless the statute of limitations has been tolled. Here, the petitioner timely commenced this proceeding on November 12, 2019, by filing the order to show cause, the affirmation of counsel, and the verified proposed notice of claim. Because the appellants do not claim that a substantial right would be prejudiced, the affirmation and proposed notice of claim are properly viewed as the petition required to commence a special proceeding, pursuant to CPLR 3026. In addition, the statute of limitations was tolled from the time the proceeding was commenced until the date of the order deciding the petition. Therefore, the petition is timely. 

Matter of Cerreta v. County of Suffolk, NY Slip Op 04964 (2d Dep't August 17, 2022)

Here is the decision.

Severability.

Where a contractual provision is unenforceable and there is no severability clause, the entire agreement is unenforceable.

Mercado v. Schwartz, NY Slip Op 04956 (2d Dep't August 17, 2022)

Here is the decision.

An untimely filing of proof of service.

The defendant third-party plaintiff served the third-party defendants pursuant to CPLR 308(2) by delivering the third-party summons and complaint to a person of suitable age and discretion at the address of the third-party defendants' usual place of abode on February 11, 2019, and by mailing copies to the same address the next day. The proofs of service were filed on April 2, 2019, past the 20-day filing period required by CPLR 308(2). The defendant third-party plaintiff moved for leave to enter a default judgment against the third-party defendants, and the third-party defendants opposed the motion on the ground that they had already served a third-party answer. 

While the failure to file a timely proof of service is a curable procedural irregularity, here, the defendant third-party plaintiff did not obtain an order permitting a late filing of proof of service. Accordingly, the late filings were nullities and the third-party defendants' time to answer never began to run. Since the third-party defendants were not in default, the defendant third-party plaintiff's motion for leave to enter a default judgment against the third-party defendants is denied.

K.J. v. Longo, NY Slip Op 04957 (2d Dep't August 17, 2022)

Here is the decision.

Service of process.

Ordinarily, a process server's affidavit establishes a prima facie case as to the method of service. and, therefore, gives rise to a presumption of proper service. Here, the affidavit of service demonstrates, prima facie, that the defendant was served with the summons and complaint pursuant to CPLR 308(4) by affixing a copy of the summons and complaint to the door of his actual dwelling place, and by mailing a copy of the summons and complaint to his last known residence. The defendant argues that he never resided at the address set forth in the affidavit of service. However, the record establishes that the defendant engaged in affirmative conduct which misled the plaintiff into serving process at an incorrect address. Therefore, the defendant is estopped from contending that the address set forth in the affidavit of service is not his dwelling place, pursuant to CPLR 308[2].

Hudson Val. Bank, N.A. v. Eagle Trading, NY Slip Op 04956 (2d Dep't August 17, 2022)

Here is the decision.

Extending the time to answer.

In order to extend the time to answer a complaint and to compel the plaintiff to accept late service of the answer pursuant to CPLR 3012(d), a defendant must submit a reasonable excuse for the default and demonstrate a potentially meritorious defense to the action.  Here, the defendants' excuse that the minimal delay in serving their answer was due to their attorney's illness, as corroborated by medical documentation, is reasonable.

HSBC Bank USA v. Pantel, NY Slip Op 04954 (2d Dep't August 17, 2022)

Here is the decision.

Vacating a default in opposing a motion.

A party seeking to vacate an order or judgment entered upon a default in opposing a motion must demonstrate both a reasonable excuse for the default and a potentially meritorious opposition to the motion, pursuant to CPLR 5015[a][1]. The determination of what constitutes a reasonable excuse is within the sound discretion of the Supreme Court.

Fidelity Bank v. John, NY Slip Op 04952 (2d Dep't August 17, 2022)

Here is the decision.

An action to foreclose a mortgage.

The action is governed by a six-year statute of limitations, pursuant to CPLR 213[4]. Even if the mortgage is payable in installments, once a mortgage debt is accelerated, the entire amount is due and the Statute of Limitations begins to run on the entire debt. However, where the acceleration occurred by virtue of the filing of a complaint, the noteholder's voluntary discontinuance of that action constitutes, as a matter of law, an affirmative act of revocation of the acceleration, absent the noteholder's express and contemporaneous statement to the contrary.

Deutsche Bank Natl. Trust Co. v. Fresca, NY Slip Op 04948 (2d Dep't August 17, 2022)

Here is the decision.

A motion to hold a party in civil contempt.

In order to prevail on the motion, the movant must establish, by clear and convincing evidence (1) that a lawful order of the court was in effect, clearly expressing an unequivocal mandate; (2) the appearance, with reasonable certainty, that the order was disobeyed; (3) that the party to be held in contempt had knowledge of the court's order; and (4) prejudice to the right of a party to the litigation. Wilfulness is not an element of civil contempt, but the party alleged to be in contempt may offer as a defense evidence of his inability to comply with the order or judgment. The motion is entrusted to the sound discretion of the court.

Bauman v. Bauman, NY Slip Op 04945 (2d Dep't August 17, 2022)

Here is the decision.

Sua sponte dismissal.

Pursuant to CPLR 3216, a court, on its own initiative and with notice to the parties, may dismiss a party's pleading when that party unreasonably neglects to proceed in an action. Here, dismissal was not appropriate, as issue had not been joined and the court failed to give notice to the plaintiff to resume prosecution at least 90 days prior to directing dismissal, as required by CPLR 3216[b)(1), (3).

Bankunited v. Kaur, NY Slip Op 04944 (2d Dep't August 17, 2022)

Here is the decision.