Restrictive covenants.

New York favors free and unencumbered use of real property, and covenants restricting a property's use are strictly construed against those seeking to enforce them.  A restrictive covenant may not be given an interpretation extending beyond the clear meaning of its terms. However, where proved by clear and convincing evidence, the covenant will be enforced pursuant to its clear meaning.

Ezekills Constr., LLC v. Saskas, NY Slip Op 04576 (2d Dep't September 13, 2023)

Here is the decision.

Premature motions for summary judgment.

Pursuant to CPLR 3212[f], party who contends that a summary judgment motion is premature must demonstrate that discovery might lead to relevant evidence or that the facts essential to justify opposition to the motion were exclusively within the movant's knowledge and control. Here, the defendants' professed need to conduct depositions did not warrant denial of summary judgment. Since the defendants already had personal knowledge of the relevant facts, the mere hope or speculation that evidence might be uncovered is insufficient.

Elfe v. Roman, NY Slip Op 04575 (2d Dep't September 13, 2023)

Here is the decision.

Indemnification.

Where the contract relates to the construction of a building, a provision purporting to indemnify or hold harmless the promisee against liability for bodily injury caused by the promisee's negligence is unenforceable, pursuant to General Obligations Law § 5-322.1[1].

Cedillo v. Nautilus Realty Ltd. Partnership, NY Slip Op 04571 (2d Dep't September 13, 2023)

Here is the decision.

A time-barred foreclosure action.

The defendant established, prima facie, that this action to foreclose a mortgage was untimely by submitting the complaint in a prior action to foreclose the mortgage, which established that the statute of limitations expired before this action was commenced. 

Deutsche Bank Natl. Trust Co. v. Swinson, NY Slip Op 04573 (2d Dep't September 13, 2023)

Here is the decision.

Service of process.

It is axiomatic that a court lacks personal jurisdiction over a defendant when the plaintiff fails to properly effectuate service of process. Service upon a natural person must be made in strict compliance with the methods of service set forth in CPLR 308. There are circumstances in which a defendant may be estopped from challenging the location or propriety of service, such as when the defendant willfully misrepresents his address, or engages in conduct calculated to prevent the plaintiff from learning his actual place of residence. A defendant in a vehicular accident case may be precluded from contesting service at a former address where the defendant failed to fulfill the statutory obligation of timely notifying the Division of Motor Vehicles of an address change.

Castillo-Florez v. Charlecius, NY Slip Op 04570 (2d Dep't September 13, 2023)

Here is the decision.

The enforceability of a release.

A valid release constitutes a complete bar to an action on a claim which is the subject of the release. A release that, on its face, is complete, clear, and unambiguous must be enforced according to the plain meaning of its terms. Where the release is unambiguous, a court may not look to extrinsic evidence to determine the parties' intent. 

Rafailova v. Leading Ins. Group Ins. Co., Ltd., (2d Dep't August 30, 2023)

Here is the decision.

Granting relief from an order.

CPLR 5015(a)(5) permits a court which rendered an order to relieve a party from the order where there has been a "reversal, modification or vacatur of a prior judgment or order upon which it is based." In addition, a court has the inherent power to grant a motion to vacate its own judgment or order for sufficient reason, in furtherance of justice.

BSD 253, LLC v. Wilmington Sav. Fund Socy., FSB, NY Slip Op 04430 (2d Dep't August 30, 2023) 

Here is the decision.

A default in opposing a motion.

The plaintiff commenced this action to cancel and discharge a mortgage on certain real property. After issue was joined, the plaintiff moved for summary judgment on the complaint. The Supreme Court granted the plaintiff's motion upon the defendant's failure to file opposition papers. The defendant thereafter moved for leave to renew the plaintiff's unopposed motion. The court denied the defendant's motion for leave to renew, and the defendant appeals. The defendant's motion for leave to renew was properly denied, as there was no opposition to the plaintiff's motion that could have been renewed The proper procedure to cure a default in opposing a motion is to move pursuant to CPLR 5015(a) to vacate the default, and, if necessary, to appeal from a denial of that motion.

BSD 253, LLC v. Wilmington Sav. Fund Socy., FSB, NY Slip Op 04429 (2d Dep't August 30, 2023)

Here is the decision.

Orders of reference.

A referee's authority derives from a court's order of reference. The referee's jurisdiction is limited to those matters that are expressly specified in the order of reference.

Wachovia Mtge., FSB v. Galiani, NY Slip Op 04428 (2d Dep't August 30, 2023)

Here is the decision.

Leave to renew.

A motion for leave to renew based upon an alleged change in the law must demonstrate that there has been a change in the law that would change the prior determination, pursuant to CPLR 2221[e][2].

U.S. Bank N.A. v. Valencia, NY Slip Op 04426 (2d Dep't August 30, 2023)

Here is the decision.

Leave to amend a pleading.

In the absence of prejudice or surprise to the opposing party, a motion to amend should be granted unless the proposed amendment is palpably insufficient or patently devoid of merit.

Kennedy v. Bracey, NY Slip Op 04425 (2d Dep't August 30, 2023)

Here is the decision.