The issue of standing in a mortgage foreclosure action.

Where the defendant's answer raises the issue, the plaintiff must prove its standing as part of its prima facie showing on a motion for summary judgment. The plaintiff established, prima facie, that it had standing to foreclose by attaching a copy of the note endorsed in blank to the summons and complaint when the action was commenced. The plaintiff also produced a copy of the mortgage, a copy of the unpaid note, and evidence of default. In opposition, the defendants failed to raise a triable issue of fact. The defendants' contentions regarding the validity of various note and mortgage assignments are irrelevant to the issue of the plaintiff's standing. Where the note is attached to the complaint, it is unnecessary to give factual details of the delivery in order to establish that possession was obtained before a particular date. 

Bank of N.Y. Mellon v. Swift, NY Slip Op 00404 (2d Dep't February 1, 2023)

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The doctrine of collateral estoppel.

Plaintiff's argument that the doctrine does not apply because the earlier action involved different claims is unavailing. The determination of an essential issue is binding in a subsequent action, even if it recurs in the context of a different claim.

Hong Hui Kuang v. Jie Wen Zhou, NY Slip Op 00397 (1st Dep't January 31, 2023)

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Appellate practice.

The Appellate Division may consider at argument raised for the first time on appeal where it is a purely legal argument that appears on the face of the record and could not have been avoided had it been raised before the Supreme Court.

SyndiGate Media, Inc. v. Comtex News Network, Inc., NY Slip Op 00401 (1st Dep't January 31, 2023)

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An alleged violation of the State Constitution.

There is no private right of action to recover damages for a violation of the New York State Constitution where the alleged wrong could be redressed by a common-law claim.

Berrio v. City of New York, NY Slip Op 00388 (1st Dep't January 31, 2023)

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Prosecuting an action anonymously.

In determining whether to grant a plaintiff's motion to proceed anonymously, the court must use its discretion in balancing the plaintiff's privacy interest against the presumption in favor of open trials and against any potential prejudice to the defendant. Among the factors the court should consider are: (1) whether the plaintiff is challenging governmental activity or an individual's actions; (2) whether the action requires disclosure of information of the utmost intimacy; (3) whether identification would put the plaintiff or an innocent third-party at risk of physical or mental injury; (4) whether the defendant would be prejudiced by allowing the plaintiff to proceed anonymousl; and (5) the public interest in guaranteeing open access to proceedings without denying litigants access to the justice system.

Roe v. Harborfields Cent. Sch. Dist., NY Slip Op 00341 (2d Dep't January 25 2023)

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The timing of a summary judgment motion.

The motion is not premature where the information at issue is within the non-movant's own knowledge.

Reyes v. Gropper, NY Slip Op 00383 (1st Dep't January 26, 2023)

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A motion to renew and reargue.

The Appellate Division affirmed the denial of petitioner's motion to renew and reargue the petition to extend the time to file a spousal election pursuant to EPTL 5-1.1. The petitioner failed to point to new facts that would change the result, pursuant to CPLR 2221[e][2], [3], and he did not demonstrate that the interests of justice required renewal. As the court noted in the original motion, petitioner did not show reasonable cause for his failure to elect in a timely fashion, pursuant to EPTL 5-1.1-A[d][2]. Nothing he presented on renewal would change that result. The court properly concluded that petitioner was aware that he was required to make an election within a stated time period, and that despite his alleged infirmities and difficulties, he was able to challenge respondent's petition to probate a 2015 instrument that benefited decedent's siblings and to petition for the probate of a 2016 instrument that benefited himself. No appeal lies from denial of a motion for reargument.

Matter of Penick, NY Slip Op 00386 (1st Dep't January 26, 2023)

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Statute of frauds.

The statute of frauds, codified at General Obligations Law § 5-701[a][1], requires agreements to be in writing when, by their very terms, there is absolutely no possibility in fact and law of full performance within one year. Here, the alleged agreement between the parties, by its terms, could have been terminated or completed within one year, however unlikely that might have been. Therefore, the agreement does not fall within the ambit of the statute.

Basal Trading & Sons Ltd. v. M&G Diamonds, Inc., NY Slip Op 00369 (1st Dep't January 26, 2023)

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A landlord's strict liability for dog bites.

In order to recover against a landlord for injuries caused by a tenant's dog on a theory of strict liability, the plaintiff must demonstrate that the landlord: (1) had notice that a dog was being harbored on the premises; (2) knew or should have known that the dog had vicious propensities; and (3) had sufficient control of the premises to allow the landlord to remove or confine the dog. Vicious propensities include the propensity to do any act that might endanger the safety of the persons and property of others. Evidence tending to prove that a dog has vicious propensities includes a prior attack, or the dog's tendency to growl, snap, or bare its teeth.

Quintanilla v. Schutt, NY Slip Op 00339 (2d Dep't January 25, 2023)

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Forbearance agreements.

If the agreement is unambiguous, it will be enforced according to its terms. In the forbearance agreement at issue here, the defendant waived all defenses to foreclosure and consented to the entry of a judgment of foreclosure and sale.

3052 Brighton 1st St. II, LLC v. 3052 Brighton First, LLC, NY Slip Op 00197 (2d Dep't January 18, 2023)

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The assignment of claims.

A corporation may assign its claims to an individual plaintiff in order to evade a CPLR 3211(a) motion to dismiss. However, here the purported assignment was ineffective because it expressly stated that it did not assign any claims to the plaintiff.

Matter of Nieblas-Love v. New York City Hous. Auth., NY Slip Op 00240 (1st Dep't January 19, 2023)

Here is the decision.