Witness depositions.

Pursuant to CPLR 3117(a)(3)(iii), a witness's deposition may be read at trial if the court determines that the witness is unable to attend or testify because of age, sickness, infirmity, or imprisonment. In exercising its discretion under the statute, the trial court may not act arbitrarily or deprive a litigant of a full opportunity to present its case.

244 Linwood One, LLC v. Tio Deli Grocery Corp., NY Slip Op 01072 (2d Dep't March 1, 2023)

Here is the decision.

Motions for summary judgment.

Tbe motion must be supported by an affidavit by a person having knowledge of the facts, pursuant to CPLR § 3212[b]. An affidavit that is not based on the affiant's personal knowledge may serve to authenticate a document for its admissibility as a business record, as long as the affiant demonstrates sufficient personal knowledge of the document in question, and the affidavit sufficiently establishes that the document falls within the business record exception to the hearsay rule.

Muslar v. Hall, NY Slip Op 01063 (1st Dep't February 28, 2023)

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Venue.

Defendants' motion to change venue from Bronx County to Westchester County is denied as untimely made. Defendants have a reasonable excuse for their failure to make a timely demand to change venue. They learned of plaintiff's Westchester address on April 5, 2022, when they received plaintiff's medical authorizations and a copy of the Aided report, and made a demand to change venue the day the next day.after, on April 6, 2022. However, pursuant to CPLR 511(b), defendants had until April 21, 2022, 15 days after service of their demand, to make the motion. Defendants' motion is untimely, as it was made on April 26, 2022, 20 days after the demand. Defendants offered no explanation for their failure to move within the statutory time-limits.

Gomez v. Cypser, NY Slip Op 01060 (1st Dep't February 28, 2023)

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Default judgments.

A plaintiff seeking leave to enter a default judgment under CPLR 3215 must file proof of: (1) service of the summons and the complaint; (2) the facts constituting the claim; and (3) the defendant's default. The defendant is deemed to have admitted all factual allegations contained in the complaint, and all reasonable inferences that flow from those allegations. However, the court does not have a mandatory or ministerial duty to grant a motion for leave to enter a default judgment, and must exercise its discretion in determining whether the movant has met its burden of stating a viable cause of action.

Alleyne v. Rutland Dev. Group, Inc. NY Slip Op 00976 (2d Dep't February 22, 2023)

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Appellate practice.

Plaintiffs have already appealed an order determining that the law firm representing them was disqualified under Rules of Professional Conduct (22 NYCRR 1200.0) rule 3.7(b), as a partner was to be called as a material witness. The Appellate Division affirmed the order, and both the Appellate Division and the Court of Appeals denied leave to appeal. Since there has been no new evidence discovered after the prior order or any change in the applicable law, resolution of the issue on the prior appeal constitutes the law of the case and forecloses reexamination of the issue. Since the law firm was disqualified from representing plaintiffs in any capacity, it does not have standing to bring the appeal. The appeal must be dismissed.

Applehole v. Wyeth Ayerst Labs., NY Slip Op 01059 (1st Dep't February 28, 2023)

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Dismissal for another action pending.

The tortious interference and fraudulent inducement claims were dismissed on the ground of another action pending, pursuant to CPLR 3211(a)(4). New York follows the first-in-time rule, and as those claims were initially brought in Delaware and the Delaware court took jurisdiction over them, the Delaware court must decide the claims. 

Resort Group, Inc. v. Cerberus Capital Mgt., L.P., NY Slip Op 01071 (1st Dep't February 28, 2023)

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Motions to dismiss.

On a motion to dismiss the complaint for failure to state a cause of action, pursuant to CPLR 3211(a)(7), the court must afford the pleading a liberal construction, accept all facts as alleged in the pleading to be true, give the plaintiff the benefit of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal theory. Where evidentiary material is submitted and the motion is not converted into one for summary judgment, the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one. Unless it is shown that a material fact as claimed by the plaintiff to be one is not a fact and unless it can be said that no there is no significant dispute regarding it, the motion should be denied. If the motion is based on documentary evidence, pursuant to CPLR 3211(a)(1), it may be granted only where the documentary evidence utterly refutes the plaintiff's factual allegations, conclusively establishing a defense as a matter of law.

Alleyne v. Rutland Dev. Group, Inc., NY Slip Op 00975 (2d Dep't February 22, 2023

Here is the decision.

Summary judgment in a mortgage foreclosure action.

In order to establish prima facie entitlement to judgment as a matter of law, the plaintiff must produce the mortgage, the unpaid note, and evidence of the default. Where the answer puts the plaintiff's standing in issue, the plaintiff must prove its standing as part of its prima facie showing. A plaintiff has standing to maintain a mortgage foreclosure action where it is the holder or assignee of the underlying note at the time the action is commenced. The plaintiff meets this burden with proof of either a written assignment of the underlying note or the physical delivery of the note endorsed in blank or specially to it prior to commencing the suit. 

31st St. Funding, LLC v. Majostan Corp., NY Slip Op 00974 (2d Dep't February 22, 2023)

Here is the decision.

Service of process and personal jurisdiction.

Supreme Court providently determined that the summons and complaint had been properly served on defendants, and, therefore, the court had personal jurisdiction over them. The affidavits of plaintiff's process servers constituted prima facie proof of proper service on the individual defendants, pursuant to CPLR 308[2]. Defendants' conclusory denials of receipt were insufficient to raise an issue of fact, warranting a traverse hearing. 

Franpo Realty, LLC v. Power Furniture Inc., NY Slip Op 01050 (February 23, 2023)

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Sanctions for alleged spoliation.

Sanctions will not be imposed on a party that did not discard crucial evidence in an effort to frustrate discovery, and cannot be presumed to be responsible for the disappearance of the evidence.

Auguste v. Edlund Co., LLC, NY Slip Op 00837 (2d Dep't February 15, 2023)

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Appellate practice.

There is no appeal as of right where the judgment was entered subsequent to an Appellate Division order disposing of all the issues in the action, pursuant to CPLR 5701[a][1]. The remittance to Supreme Court does not alter the finality of the order where the remittance involved only the ministerial act of mathematical calculations without requiring any further fact-finding or exercise of judicial discretion. 

Summit Dev. Corp. v. Hudson Meridian Constr. Group LLC, NY Slip Op 00937 (1st Dep't February 16, 2023)

Here is the decision.