Appellate practice.

In this action arising from an auto accident, the defendant-driver and owner ask the Appellate Division to search the record and grant them summary judgment. However, they failed to raise this issue or seek this relief before the motion court, and the Appellate Division declines to grant that relief.

Betances v. DJB Intl. Ltd, NY Slip Op 06160 (1st Dep't November 3, 2022)

Here is the decision.

Collateral estoppel.

Collateral estoppel, otherwise known as issue preclusion, precludes a party from relitigating in a subsequent action or proceeding an issue that was clearly raised in a prior action or proceeding and decided against that party regardless of whether the court or the causes of action are the same. The party invoking estoppel has the burden of demonstrating the identity of the issues in the present litigation and the prior determination, and the party seeking to defeat its application has the burden of establishing the absence of a full and fair opportunity to litigate the issue in the prior action.

9th St., LLC v. Deutsche Bank Natl. Trust Co., NY Slip Op 06097 (2d Dep't November 2, 2022)

Here is the decision.

The limitations period in a mortgage foreclosure action.

The statute of limitations began to run on November 20, 2009, upon the prior mortgagee's commencement of the initial foreclosure action and acceleration of the loan. However, plaintiff, who is the assignee of the mortgage, clearly and validly revoked the acceleration of the loan on November 19, 2015, when it sent a letter informing the mortgagor that the loan was "hereby de-accelerated" and that "immediate payment of all sums owed is hereby withdrawn and the Loan is re-instituted as an installment loan." As the action was commenced within six years of the de-acceleration of the loan, the action  is timely, pursuant to CPLR 213(4). The affirmative defense is dismissed.

21st Mtge. Corp. v. Jin Lin, NY Slip Op 06076 (1st Dep't November 1, 2022)

Here is the decision.

Waiver of a jurisdictional objection.

An objection that the summons and complaint was not properly served is waived if, after raising the objection in a pleading, the defendant does not move for judgment on that ground within sixty days after serving the pleading, unless the court extends the time upon the ground of undue hardship, pursuant to CPLR 3211[e].

Bank of N.Y. Mellon v. Shurko, NY Slip Op 05975 (2d Dep't October 26, 2022)

Here is the decision.

An action to quiet title.

In order to obtain summary judgment in an action to quiet title pursuant to RPAPL article 15, the movant must establish, prima facie, that it holds title, or that the nonmovant's title claim is without merit.

702 DeKalb Residence, LLC v. SSLiberty, Inc., NY Slip Op 05971 (2d Dep't October 26, 2022)

Here is the decision.

Equitable estoppel.

The doctrine of equitable estoppel is not applicable where the defendants did not act in a wrongful or negligent manner or engage in any affirmative misconduct upon which plaintiff reasonably relied.

Cruz v. Ajim, NY Slip Op 06062 (1st Dep't October 27, 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 the debt is accelerated, the entire amount is due and the statute of limitations begins to run on the entire debt. The commencement of the action accelerates the debt. The lender may revoke its election to accelerate the mortgage, but it must do so by an affirmative act of revocation occurring during the six-year statute of limitations period subsequent to the initiation of the foreclosure action.

Bank of N.Y. Mellon v. Conforti, NY Slip Op 05973 (2d Dep't October 26, 2022)

Here is the decision.

A purported gift of shares in a cooperative apartment.

Plaintiff argues that his deceased brother, who was the sole proprietary lessee of a cooperative apartment  made an inter vivos gift of the apartment to plaintiff.  However, there was no valid inter vivos gift, as the statute of frauds applies to the sale of stock in a housing cooperative and there was no writing to effect the transfer.  Plaintiff's claim further fails as a matter of law, as the decedent failed to follow the transfer provisions of the proprietary lease, which requires a written assignment of shares signed by the shareholder and the approval of defendant's board of directors to make a valid transfer of the shares to the apartment within the decedent's lifetime.

Rivera v. 98-100 Ave. C Hous. Dev. Fund Corp., NY Slip Op 06074 (1st Dep't October 27, 2022)

Here is the decision.

Default judgment in a foreclosure action.

On a motion for leave to enter a default judgment, pursuant to CPLR 3215, for the defendant's failure to answer or appear, the plaintiff must submit proof of service of the summons and complaint, proof of the facts constituting the cause of action, and proof of the defendant's default.  In order to defeat the motion, the defendant must show either that there was no default, or that there is a reasonable excuse for the delay and a potentially meritorious defense. The plaintiff is not required to demonstrate that it had standing to commence the action in order to establish its prima facie entitlement to a default judgment, as standing is not an essential element of a cause of action to foreclose a mortgage.

Bank of N.Y. Mellon Trust Co., N.A. v. Barone, NY Slip Op 05972 (2d Dep't October 26, 2022)

Here is the decision.

The limitations period on an Article 78 petition.

The petition must be filed within four months of the agency's decision that is being questioned, pursuant to CPLR 217[1]. The limitations period is not extended by the petitioner's eventual pursuit of administrative remedies.

Matter of Campbell-Lui v. New York City Dept. of Educ., NY Slip Op 05946 (1st Dep't October 25, 2022)

Here is the decision.

A defamation claim.

Plaintiffs, an orthodontist and his professional corporation, allege that defendants - a former minor patient and the patient's parents - defamed them in an unfavorable review posted online.  The review contains elements of both fact and opinion, but it is not actionable, because it is beyond the court's province to sift throught the review to isolate and identify factual assertions. Instead, the court may only consider the overall context in which the communication was made. Here, it was an anonymous online review of plaintiff's services. A reasonable reader would understand the review to be pure opinion based on the context in which it was posted and its hyperbolic tone. In addition,  New York courts have held that readers give less credence to allegedly defamatory remarks published online than to similar remarks made in other contexts. The claim is dismissed.

DeRicco v. Maidman, NY Slip Op 05921 (1st Dep't October 20, 2022)

Here is the decision.