Court holiday.

Out-of-state notarizations.

In support of its motion for summary judgment, the plaintiff submitted an affidavit that was notarized outside of New York State and that was not accompanied by a certificate in conformity pursuant to CPLR 2309(c). This is not a fatal defect,  as it may be corrected nunc pro tunc, or pursuant to CPLR 2001, which permits trial courts to disregard mistakes, omissions, defects, or irregularities at any time during an action where a substantial right of a party is not prejudiced. 

American Express Natl. Bank v. Hoffman, NY Slip Op 06779 (2d Dep't November 30, 2022)

Here is the decision.

Legal malpractice.

Recovery for legal malpractice is limited to pecuniary damages.

Broomes v. Legal Aid Socy. of N.Y. City, Inc., NY Slip 06101 (2d Dep't Novembee 2, 2022)

Here is the decision.

A motion to vacate a default.

Respondent failed to demonstrate a reasonable excuse for its default, pursuant to CPLR 5015 [a] [1], as it did not submit proof sufficient to support its contention that it was never served with the order to show cause. Petitioner submitted an affidavit of service and documentary evidence establishing that the order to show cause was served by certified mail and delivered to an individual at respondent's address. Respondent did not proffer any evidence controverting this proof of service, but merely submitted self-serving statements. The motion is denied.

Matter of Pizzarotti, LLC v. New York Concrete Washout Sys., Inc., NY Slip Op 06182 (1st Dep't November 3, 2022)

Here is the decision.

Court holiday.

Specific jurisction.

A New York court may exercise specific jurisdiction over a foreign defendant pursuant to CPLR 302, which is New York's long-arm statute. CPLR 302(a)(1) provides that "a court may exercise personal jurisdiction over any non-domiciliary . . . who in person or through an agent . . . transacts any business within the state or contracts anywhere to supply goods or services in the state[.]" This jurisdictional inquiry is twofold: under the first prong the defendant must have conducted sufficient activities to have transacted business in New York, and under the second prong, the claims must arise from the transactions. In order to satisfy the second prong, the statute requires an articulable nexus or substantial relationship between the cause of action sued upon, or an element thereof, and the defendants' business transactions in New York.  The inquiry is relatively permissive, and does not require causation. There must at least be a relatedness between the transaction and the legal claim such that the latter is not completely unmoored from the former, regardless of the ultimate merits of the claim. Therefore, under CPLR 302(a)(1), jurisdiction is proper even though the defendant never enters New York, so long as the defendant's activities here were purposeful and there is a substantial relationship between the transaction and the claim pled. Where this necessary relatedness is lacking, the claim as too attenuated  from the transaction, or merely coincidental with it.

Aybar v. US Tires & Wheels of Queens, LLC, NY Slip Op 06099 (2d Dep't November 2, 2022)

Here is the decision.

A motion for jurisdictional discovery.

The motion will be denied in the absence of tangible evidence constituting a "sufficient start" to a showing that jurisdiction could exist against the defendant. 

Taxi Tours Inc. v. Go N.Y. Tours, Inc., NY Slip Op 06186 (1st Dep't November 3, 2022)

Here is the decision.

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.