Civil contempt.

In order to prevail on a motion to hold a party in civil contempt, the movant must establish, by clear and convincing evidence, the following: (1) that a lawful order of the court was in effect, clearly expressing an unequivocal mandate; (2) the appearance, with reasonable certainty, that the order was disobeyed; (3) that the party to be held in contempt had knowledge of the court's order; and (4) prejudice to the right of a party to the litigation. If the movant makes the requisite showing, the burden shifts to the alleged contemnor to refute the movant's evidence, or to offer evidence of a defense, such as an inability to comply with the order. A hearing is required only if there is a factual dispute which cannot be resolved on the papers alone.

Anonymous 2011-3 v. Anonymous 2011-4, NY Slip Op 04183 (2d Dep't August 9 2023)

Here is the decision.

A defamation claim.

The claim is dismissed to the extent that the particular words complained of are not set forth in the complaint, as required by CPLR 3016[a]. Plaintiff's contention that the statements that were published in the New York Post had been incorporated into the complaint is unavailing, since the article was not annexed to the pleading. 

Hammond v. Equinox Holdings LLC, NY Slip Op 04257 (1st Dep't August 10, 2023)

Here is the decision.

Contrract law.

The burden of proving the existence, terms, and validity of a contract rests on the party seeking to enforce it. This requires, in the first instance, authentication of the purported writing. Authentication may be effected by various means, including, for example, by certificate of acknowledgment, pursuant to CPLR 4538, by comparison of handwriting, pursuant to CPLR 4536, or by the testimony of a person who witnessed the signing of the document. If the signature is forged, the contract is void ab initio.

Knight v. New York & Presbyt. Hosp., NY Slip Op 04258 (1st Dep't August 10, 2023)

Here is the decision.

Contractual forum selection clauses.

Where no material facts are in dispute, a contractual forum selection clause is prima facie valid and enforceable, absent a showing that the provision is unreasonable, unjust, in contravention of public policy, invalid due to fraud or overreaching, or that a trial in the designated forum would be so difficult as to deprive the challenging party of its day in court.

Knight v. New York & Presbyt. Hosp., NY Slip Op 04258 (1st Dep't August 10, 2023)

Here is the decision.

Affidavits as hearsay.

An affiant's assertion, without the business records upon which he relied in making the assertion, constitutes inadmissible hearsay. Here, the plaintiff acknowledges that it did not produce the business records regarding the defendant's payment history until it moved for a judgment of foreclosure and sale. Thus, the plaintiff's motion for summary judgment was supported only by an affiant's bare assertion that the defendant was in default. This was inadmissible hearsay.

Bank of N.Y. Mellon v. Giammona, NY Slip Op 04099 (2d Dep't August 2, 2023)

Here is the decision.

Motions for leave to renew.

A motion for leave to renew which is not based upon a change in the law must be based upon new facts that were not offered on the prior motion and that would change the prior determination, and must contain a reasonable justification for the failure to present such facts on the prior motion, pursuant to CPLR 2221[e][2].

Bockstruck v. Town of Islip, NY Slip Op 04100 (2d Dep't August 2, 2023)

Here is the decision.

Notice requirement in a foreclosure action.

RPAPL 1304(1) provides that "at least ninety days before a lender, an assignee or a mortgage loan servicer commences legal action against the borrower, . . . including mortgage foreclosure, such lender, assignee or mortgage loan servicer shall give notice to the borrower." Strict compliance with the statutory notice provision is a condition precedent to the commencement of a foreclosure action. Proof of mailing is established with proof of the actual mailings, such as affidavits of mailing or domestic return receipts with attendant signatures, or proof of a standard office mailing procedure designed to ensure that the items are properly addressed and mailed, sworn to by someone with personal knowledge of the procedure. Here, the plaintiff established that the requisite notice was sent to the defendant in the prescribed manner by submitting the affidavit of an employee of the plaintiff's loan servicer, who had knowledge of the loan servicer's standard office procedures for mailing RPAPL 1304 notices and described those notices, and, by reference to business records annexed to the affidavit, which confirmed that those procedures were adhered to in this case. In opposition, the defendant's bare denial of receipt of the notice was insufficient to raise a triable issue of fact.

Bank of Am., N.A. v. Gonzalez, NY Slip Op 04098 (2d Dep't August 2, 2023)

Here is the decision.

Dismissal after a default.

Pursuant to CPLR 3215(c), "[i]f the plaintiff fails to take proceedings for the entry of judgment within one year after the default, the court shall not enter judgment but shall dismiss the complaint." In order to avoid dismissal, it is not necessary that the plaintiff actually obtain a default judgment within one year of the default. In fact, the plaintiff is not even required to seek a default judgment within a year. The case is not subject to dismissal as long as the plaintiff is taking proceedings that manifest an intent not to abandon the case but, instead, to seek a judgment. In addition, where an action is subject to a mandatory settlement conference, pursuant to CPLR 3408), the one-year deadline imposed by CPLR 3215(c) is tolled.

Bank of Am. N.A. v. Bhola, NY Slip Op 04097 (2d Dep't August 2, 2023)

Here is the decision.

Limitations period on a foreclosure action.

An action to foreclose a mortgage is subject to a six-year statute of limitations, pursuant to CPLR 213[4]. Once a mortgage debt is accelerated, the entire amount is due and the Statute of Limitations begins to run on the entire debt. The filing of a verified foreclosure complaint may evince an election to accelerate. Lenders may revoke the acceleration of the full mortgage loan balance, so long as the revocation is accomplished by an affirmative act occurring within six years of the earlier acceleration. 

Abadin v. HSBC Bank USA, N.A., NY Slip Op 04095 (2d Dep't August 2, 2023)

Here is the decision.

Terminating a probationary teacher.

A probationary teacher may be terminated during the probationary period for any reason, or no reason at all, and without a hearing, unless the teacher establishes that employment was terminated for a constitutionally impermissible purpose, in violation of a statutory proscription, or in bad faith. The petitioner bears the burden of establishing, by competent evidence, bad faith or illegal reasons. Here, the evidence demonstrates that the petitioner received multiple letters to file, that she received an unsatisfactory observation rating, and that she lacked professionalism during her probationary employment. This evidence demonstrated that the respondent denied the petitioner tenure and discontinued her probationary employment in good faith.

Matter of Terelle v. New York City Dept. of Educ., NY Slip Op 03921 (2d Dep't July 26, 2023)

Here is the decision.

Appellate practice.

An order denying a motion to compel a witness to answer questions propounded at an examination before trial is similar to a ruling made in the course of the examination itself, and is not appealable as of right, even where it was made upon a full record and on the plaintiffs' motion to compel responses. Neither is an order granting a motion for a protective order precluding certain questioning of a witness at a deposition appealable as of right. Here, the plaintiffs sought leave to appeal after their appeal was perfected. Leave is denied.

Martino v. Jae Ho Lee, NY Slip Op 03915 (2d Dep't July 26, 2023)

Here is the decision.