Vacatur of default based on intrinsic fraud.

The defendants' contentions that the plaintiff fraudulently robosigned allonges to the note and failed to comply with RPAPL 1304 amount to allegations of intrinsic fraud. A defendant seeking to vacate a default pursuant to CPLR 5015(a)(3) based on intrinsic fraud must establish a reasonable excuse for the default and a potentially meritorious defense to the action. Since the defendants failed even to allege any reasonable excuse for either one of their defaults, the court denied that branch of their motion to vacate the order and judgment of foreclosure and sale.

Bank of Am., N.A. v. Anderson, NY Slip Op 02635 (2d Dep't May 17, 2023)

Here is the decision.

Quasi contract claims.

The Appellate Division affirmed the granting of defendants' motion which was pursuant to CPLR 3211(a)(7) to dismiss the cause of action alleging unjust enrichment. The existence of a valid contract governing the subject matter precludes recovery in quasi contract for events arising out of the same subject matter. An unjust enrichment claim is not available where it simply duplicates, or replaces, a conventional contract or tort claim. Here, recovery on an unjust enrichment theory is precluded, since that cause of action arises out of the same subject matter as the breach of contract cause of action, which remains a viable part of this case despite the denial of summary judgment to the plaintiff on the issue of liability.

Avery v. WJM Dev. Corp., NY Slip Op 02634 (2d Dep't May 17, 2023)

Here is the decision.

Liability for open and obvious hazards.

The court rejected defendant's contention that she cannot be held liable as a matter of law because the pile of snow and ice that caused plaintiff's accident was open and obvious. An open and obvious condition only relieves a property owner of its duty to warn, and not the duty to ensure that the premises is maintained in a reasonably safe condition.

Martinez v. Contreras, NY Slip Op 02742 (1st Dep't May 18, 2023)

Here is the decision.

Vacatur of a dismissal of the complaint.

Plaintiff is not entitled to vacatur of the order and judgment of dismissal on the ground of excusable default, pursuant to CPLR 5015[a][1], since they were not entered on her default. Her counsel appeared in court on the return date, participated in the argument and discussion, and submitted papers, and there is nothing in the court's order or judgment to indicate that the motions were granted on plaintiff's default. In any event, plaintiff did not move within the statutorily prescribed one-year time limit and failed to present a valid excuse for her failure to do so.

Matter of Duval v. Centerlight Health Sys., Inc., NY Slip Op 02740 (1st Dep't May 18, 2023)

Here is the decision.

Motions to dismiss.

When a party moves to dismiss a complaint pursuant to CPLR 3211(a)(7), the standard is whether the pleading states a cause of action.  In considering the motion, the court must accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory. Affidavits submitted by a defendant will almost never warrant dismissal under CPLR 3211 unless they establish conclusively that the plaintiff has no cause of action. Where the movant relies upon evidence beyond the four corners of the complaint, the motion must be denied unless it has been shown that a material fact as claimed by the plaintiff is not a fact at all and unless it can be said that no significant dispute exists regarding it.

808 Union St., LLC v. J. Lehman Park Slope, LLC, NY Slip Op 02632 (2d Dep't May 17, 2023)

Here is the decision.

Specific performance of a contract for the sale of real property.

A party seeking specific performance of a contract for the sale of real property must establish not only that he was ready, willing, and able to close on the scheduled closing date, but also that the other party was in default.  Here, since there was never a time of the essence closing, nor even a future scheduled closing date, neither element is established. The cause of action is dismissed. 

141 Park Ave. Realties, Inc. v. 141 Park Ave. Holdings, LLC, NY Slip Op 02631 (2d Dep't May 17, 2023)

Here is the decision.

Breach of contract.

The plaintiff's' claim is dismissed because the complaint fails to allege, in nonconclusory language, the essential terms of the parties' purported contract, including the specific provisions upon which liability is predicated.

Unobagha v. Hilton Garden Inn Times Sq. N., NY Slip Op 02629 (1st Dep't May 16, 2023)

Here is the decision.

Service of process.

Service pursuant to CPLR 308(4) may be effected by affixing the summons to the door of either the actual place of business, dwelling place, or usual place of abode within the state of the person to be served and by either mailing the summons to such person at his last known residence or by mailing the summons by first class mail to the person to be served at his actual place of business. Ordinarily, a process server's affidavit of service constitutes prima facie evidence that the defendant was validly served. However, when the defendant submits a sworn denial of receipt of service containing specific facts to refute the statements in the affidavit, the prima facie showing is rebutted and the plaintiff must establish personal jurisdiction by a preponderance of the evidence at a hearing.

Aurora Loan Servs., LLC v. Simon, NY Slip Op 02485 (2d Dep't May 10, 2023)

Here is the decision.

Time-barred libel claims.

The complaint is time-barred insofar as it alleges statements made in June and July 2019. The statute of limitations for libel and slander runs from the date of publication, regardless of the fact that the libel may not have been discovered until later.  Plaintiff''s bare legal conclusion that the purported defamation continued into 2022 is insufficient to save the claims. Plaintiff's equitable estoppel argument fails, as he does not allege any subsequent and specific actions that kept him from timely bringing suit. In any event, even if plaintiff's claims were not time-barred, he fails to state a claim for defamation, as the complaint does not allege the exact words complained of or the time, place, and manner of the alleged defamation.

Biaggi v. O'Flynn, NY Slip Op 02584 (1st Dep't May 11, 2023)

Here is the decision.

A cause of action for negligent infliction of emotional distress.

The complaint must be premised upon the breach of a duty owed to the plaintiff which either unreasonably endangers the plaintiff's physical safety or causes the plaintiff to fear for his own safety. Here, the plaintiff seeks to hold the defendant vicariously liable its employee's conduct, and the complaint only alleges intentional conduct by the employee. Therefore, there is no basis for a cause of action sounding in negligence. The claim is dismissed.  

Aklipi v. American Med. Alert Corp., NY Slip Op 02483 (2d Dep't May 10, 2023)

Here is the decision.

Discovery motions.

Pursuant to 22 NYCRR 202.7(a)(2), a motion relating to discovery must be accompanied by an affirmation from moving counsel attesting that he has conferred with opposing counsel in a good faith effort to resolve the issues raised by the motion. The affirmation must specify the time, place, and nature of the conference, the issues discussed, and the result, or must state good cause why no such conference was held. Here, the affirmation referred to letter communications between the parties as well as conferences held with the Supreme Court, thereby evincing a diligent effort to resolve the dispute.

Adler v. Oxford Health Plans (NY), Inc., NY Slip Op 02482 (2d Dep't May 10, 2023)

Here is the decision.