Defaulting on a motion.

A party seeking to vacate a default in appearing on the return date of a motion must demonstrate both a reasonable excuse for the default and a potentially meritorious cause of action or defense.

Deutsche Bank Natl. Trust Co. v. Moses, NY Slip Op 00294 (2d Dep't January 24, 2024)

Here is the decision.

Proof of proper service.

A process server's affidavit of service constitutes prima facie evidence that the defendant was validly served. However, when a defendant submits a sworn denial of receipt of service containing specific facts to refute the statements in the affidavit of the process server, the prima facie showing is rebutted and the plaintiff must establish personal jurisdiction by a preponderance of the evidence at a hearing. Bare and unsubstantiated denials of service are insufficient to rebut the presumption of proper service created by a duly executed affidavit of service, and a hearing is not required where the defendant fails to swear to specific facts rebutting the statements in the process server's affidavit.

Deutsche Bank Natl. Trust Co. v. Moses, NY Slip Op 00294 (2d Dep't January 24, 2024)

Here is the decsion.

Summary judgment.

While an affidavit is generally considered competent and sufficient evidence on a motion for summary judgment, an affidavit that is conclusory and without specific factual basis does not establish the prima facie burden of a proponent of a motion for summary judgment.

Carboni v. Alfa Romeo USA, NY Slip Op 00351 (1st Dep't January 15, 2024)

Here is the decision.

Service of process.

Valid service pursuant to CPLR 308(2) may be made by delivery of the summons to a person of suitable age and discretion at a defendant's actual place of business. There is no requirement that delivery is to someone who is somehow authorized to accept service on the defendant's behalf.

Carpio v. Morris, NY Slip Op 00293 (2d Dep't January 14, 2024)

Here is the decision.

The doctrine of res judicata.

Under the doctrine of res judicata, once a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if they are based upon different theories or seek a different remedy. Dismissal of a federal action without prejudice, including a dismissal on jurisdictional grounds, has no preclusive effect on a subsequent state action. However, a stipulation of discontinuance with prejudice has the same preclusive effect as a judgment on the merits. A voluntary discontinuance with prejudice is narrowly interpreted when the interests of justice or the particular equities involved warrant such an interpretation.

Busher v. Barry, NY Slip Op 00292 (2d Dep't January 24, 2024)

Here is the decision.

Motions to dismiss.

Pursuant to CPLR 3211(a)(7), the court must accept as true the facts as alleged in the pleading, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory.  Where evidentiary material is considered and the motion has not been converted to one for summary judgment, the criterion is whether the non-moving party has a cause of action, not whether he has stated one.

Burton v. Porcelain, NY Slip Op 00291 (2d Dep't January 24, 2024)

Here is the decision.

Pre-action discovery.

Before an action is commenced, disclosure to aid in bringing the action, to preserve information, or to aid in arbitration may be obtained, but only by court order, pursuant to CPLR 3102[c]. In order to obtain pre-action disclosure, the petitioner must show that it has sufficient factual basis to plead a meritorious cause of action, and that the information sought is material and necessary to the actionable wrong. Pre-action disclosure is not allowed for the purpose of determing whether there are facts that can support a cause of action.

Matter of Khorassani v. Financial Indus. Regulatory Auth., NY Slip Op 00354 (1st Dep't January 25, 2023)

Here is the decision.

Landowners' duty of care.

A landowner's duty to take minimal security precautions does not extend to exterior public areas, including walkways and vestibules.

Abdulfattaah v. Riverbay Corp., NY Slip Op 00258 (1st Dep't January 23, 2024)

Here is the decision.

Summary judgment motions.

A plaintiff may use its reply affidavit to clarify an issue that was raised for the first time in opposition to its motion, but it may not use the reply to correct a defect in its prima facie case.

5AIF Sycamore 2, LLC v 201 EB Dev. III, NY Slip Op 00257 (1st Dep't January 23, 2024)

Here is the decision.

Rear-end collisions.

A defendant moving for summary judgment in a negligence action has the burden of establishing, prima facie, that he was not at fault in the happening of the accident. Not every rear-end collision is the exclusive fault of the trailing driver. The driver in front also has the duty not to stop suddenly or slow down without proper signaling so as to avoid a collision.

Gomez v. Pechman, NY Slip Op 00182 (2d Dep't January 17, 2024)

Here is the decision.

Summary judgment motions.

Plaintiff failed to demonstrate that, pursuant to CPLR 3212 [f], the motion should be denied as premature because of facts within defendants' exclusive knowledge and control. The motion is granted.

Tour Cent. Park Inc. v. Thor 38 Park Row LLC, NY Slip Op 00252 (1st Dep't January 18, 2024)

Here is the decision.