An untimely answer.

In order to compel the plaintiff to accept an untimely answer, the defendant must demonstrate that there is a reasonable excuse for the delay and a potentially meritorious defense to the action. As an exercise of its discretion, the court may accept law office failure as a reasonable excuse, where there is a detailed and credible explanation. However, a pattern of willful default and neglect will not be excused.

Hingorani v. Venus Enters. 11 Corp., NY Slip Op 05206 (2d Dep't September 21, 2022)

Here is the decision.

Appellate practice.

The appeal must be dismissed because the right of direct appeal therefrom terminated with the entry of the order and judgment of foreclosure and sale in the action. The issues raised on the appeal are brought up for review on the appeal from that order and judgment.

Green Tree Servicing, LLC v. Fernando. NY Slip 05205 (2d Dep't September 21, 2022)

Here is the decision.

Vacatur of a default based on lack of notice.

A defendant may move to vacate the default on the ground of a lack of notice of the action, pursuant to CPLR 5015(a)(1). Pursuant to CPLR 317, if service was by means other than personal delivery, the defendant may be permitted to defend the action upon the court's finding that the defendant did not receive notice of the summons in time to defend and has a potentially meritorious defense. However, a conclusory and unsubstantiated denial of receipt of the summons and complaint is insufficient to establish lack of notice.

Gray v. Goodluck-Hedge, NY Slip Op 05204 (2d Dep't September 21, 2022)

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Preliminary injunctions.

In order to succeed, the movant must establish (1) a probability of success on the merits, (2) a danger of irreparable injury in the absence of an injunction, and (3) a balance of the equities in the movant's favor. The decision whether to grant or deny a preliminary injunction is a matter which lies within the sound discretion of the Supreme Court.

Grassfield v. JUPT, Inc., NY Slip Op 05203 (2d Dep't September 21, 2022)

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Claim preclusion.

Under the doctrine of res judicata, or claim preclusion, a valid final judgment bars future actions between the same parties on the same cause of action, as well as all other claims arising out of the same transaction or series of transactions, even if based upon different theories or if seeking a different remedy. 

Here, the Supreme Court incorrectly determined that this action constituted an improper collateral attack on the order and judgment of foreclosure and sale. This action does not challenge that order and judgment, but, instead, concerns the subsequent sale conducted pursuant to the order and judgment. Thus, the granting of the requested relief in the present action would not destroy or impair the rights established by the order and judgment of foreclosure and sale in the prior action.

Fernando v. Wilmington Sav. Fund Socy., NY Slip Op 05202 (2d Dep't September 21, 2022)

Here is the decision.

Limitations period on a claim for wrongful death.

The plaintiffs' proposed cause of action to recover damages for wrongful death is barred by the two-year statute of limitations, pursuant to EPTL 5-4.1. The limitations period is not tolled during the pendency of the application for letters of administration.

Byner v. Murray-Taylor, NY Slip Op 05201 (2d Dep't September 21, 2022)

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Defaults and personal jurisdiction.

Where a defendant seeking to vacate a default raises a jurisdictional objection, pursuant to CPLR 5015(a)(4), the court must resolve the jurisdictional question before determining whether it is appropriate to grant a discretionary vacatur of the default. The plainttiff has the burden of proving that the court has personal jurisdiction over the defendant.  

Deutsche Bank Natl. Trust Co. v. Fernandez, NY Slip Op 05150 (2d Dep't September 14, 2022)

Here is the decision.

Appellate practice.

In this action to recover damages for breach of contract, the Supreme Court did not explain how it calculated the damages award to the plaintiff, and it is not apparent from the record. Therefore, the Appellate Division remits the matter to the Supreme Court to set forth its calculations and the specific evidence it relied upon in determining the damages award. The appeal is held in abeyance in the interim, and the Supreme Court shall file its report with all convenient speed.

C.D.S. Home Improvement Corp. v. Adegoke, NY Slip Op 05149 (2d Dep't September 14, 2022)

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Res ipsa loquitur.

Res ipsa loquitur is an evidentiary doctrine that, under appropriate circumstances, may be invoked to allow the factfinder to infer negligence from the mere happening of an event. The doctrine follows from the understanding that some events ordinarily do not occur in the absence of negligence. A plaintiff must establish that the injury was caused by an agent or instrumentality within the defendant's exclusive control, and that no act or negligence on the plaintiff's part contributed to the happening of the event. 

Berlich v. Maimonides Med. Ctr., NY Slip Op 05148 (2d Dep't September 14, 2022)

Here is the decision.

The doctrine of primary assumption of risk.

The doctrine applies only where the issue is the absolution of  duty, such as personal injury claims arising from sporting events, sponsored athletic and recreative activities, or athletic and recreational pursuits that take place at designated venues. Here, the infant plaintiff was injured while using a trampoline in the yard of the defendants' private residence, not in a designated athletic or recreational venue, and the defendants did not actively sponsor or promote the activity. As such, the doctrine is not a bar to liability.

Bell-Moran v. Pena, NY Slip Op 05147 (2d Dep't September 14, 2022)

Here is the decision.

Appellate practice.

The Appellate Division may consider an argument raised for the first time on appeal if the legal issue is determinative and the record on appeal is sufficient to permit review.

Rosa v. 47 E. 34th St. (NY), L.P., NY Slip Op 05144 (September 13, 2022)

Here is the decision.