The admissibility of business records.

Although the foundation for admission of a business record usually is provided by the testimony of the custodian, the author, or some other witness familiar with the practices and procedures of the particular business, it is the business record itself, not the foundational affidavit, that serves as proof of the matter asserted. Without the introduction of the records themselves, a witness's testimony as to the contents of the records is inadmissible hearsay.

Bank of N.Y. v. Levy, NY Slip Op 05085 (2d Dep't October 16, 2024)

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Appellate practice.

Defendant's appeal is based on the issue of standing. While that defense is contained in her answer, defendant did not raise the issue in any of the numerous dispositive motions that she made in Supreme Court. Accordingly, the Appellate Division declines to reach the issue for the first time on appeal.

U.S. Bank Trust, N.A. v. Stewart, NY Slip Op 05150 (1st Dep't October 17, 2024)

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Quasi-contractual claims.

Because the subject matter of the loan at issue and the terms of its repayment are governed by a promissory note - a written agreement whose validity and enforceability is not in dispute - quasi-contractual claims based on the same subject matter will not lie, even against a nonparty to the promissory note.

A.N.L.Y.H. Invs. LP v. JDS Principal Highline LLC, NY Slip Op 05133 (1st Dep't October 17, 2024)

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A motion to preclude witnesses at trial.

The trial court providently exercised its discretion in precluding seven witnesses listed on plaintiff's witness list from testifying at trial. Plaintiff exhibited a lack of diligence and noncompliance with court orders requiring him to respond to discovery demands, including interrogatories asking him to identify witnesses. Further, plaintiff did not provide a reasonable explanation for his failure to disclose those witnesses earlier in this 10-year-old litigation.

Gerasimowicz  v. Delis, NY Slip Op 05050 (1st Dep't October 15, 2024)

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Motions to dismiss.

Under CPLR 3211(a)(1), a dismissal is warranted only where the documentary evidence utterly refutes the plaintiff's factual allegations, conclusively establishing a defense as a matter of law. On a motion pursuant to CPLR 3211(a)(7), the complaint is to be afforded a liberal construction, the facts alleged are presumed to be true, the plaintiff is afforded the benefit of every favorable inference, and the court is to determine only whether the facts as alleged fit within any cognizable legal theory. Where evidentiary material is submitted and considered on a motion pursuant to CPLR 3211(a)(7) 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 and, unless it has been shown that a material fact as claimed by the plaintiff to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it, dismissal shall not be granted. On a motion pursuant to CPLR 3211(a)(5) based on the statute of frauds, the court is required to accept the facts as alleged in the complaint as true and accord the plaintiff the benefit of every possible favorable inference.

374-76 Prospect Place Tenants Assn., Inc. v. City of New York, NY Slip Op 05082 (2d Dep't October 16, 2024)

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Vacating a default.

Defendants' motion to vacate the default judgment is granted in the interest of justice. Although defendants have a history of defaults and delays, many were readily excusable and the motion court was entitled, in its discretion, to accept their proffered excuse of law office failure, especially considering the stipulation to adjourn the motion for a default judgment. In affirming, the Appellate Division noted the policy of deciding actions on the merits, the existence of potentially meritorious defenses, the extreme prejudice to defendants if vacatur is denied, the comparatively lesser prejudice to be suffered by plaintiff if the default is vacated, and the court's efforts to mitigate such prejudice by awarding plaintiff a trial preference and monetary sanctions, pursuant to CPLR 2005.

Walton v. Perez, NY Slip Op 05081 (1st Dep't October 15, 2024)

Here is the decision.

Dismissal by the court.

A court may not dismiss an action based on neglect to prosecute unless the CPLR 3216 statutory preconditions to dismissal are met. Here, the Supreme Court failed to serve a written demand upon the plaintiff to resume prosecution of the action and to serve and file a note of issue within 90 days of receipt of the demand, pursuant to CPLR 3216[b][3]. Since at least one precondition set forth in CPLR 3216 was not met, the court was without power to direct dismissal of the complaint pursuant to that statute.

Pursuant to 22 NYCRR 202.27, a court has discretion to dismiss an action where a plaintiff fails to appear at any scheduled call of a calendar or at any conference. In this case, however, the court attorney referee did not recommend dismissal of the complaint based upon a failure to appear at a conference, but, rather, for failure to move for an order of reference by a date certain without good cause shown. Thus, the dismissal order, which confirmed the report of the court attorney referee, did not direct dismissal of the complaint based upon a default in appearing at a scheduled conference or calendar call, and 22 NYCRR 202.27 could not have provided the basis for dismissal of the complaint.

In addition, a court's power to dismiss a complaint, sua sponte, is to be used sparingly and only when extraordinary circumstances warrant dismissal. Here, the plaintiff's failure to comply with a court conference order directing the plaintiff to move for an order of reference was not a sufficient ground upon which to direct dismissal of the complaint.

Bank of Am., N.A. v. Banu, NY Slip Op 04940 (2d Dep't October 9, 2024)

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Appellate practice.

Plaintiff's motion for sanctions was granted on default and, as such, was non-appealable, pursuant to CPLR 5511. Defendant's one-page email to plaintiff's counsel discussing various housekeeping issues, with a mention of the pending discovery dispute, which was never filed, did not constitute opposition to the motion for sanctions. In addition, it did it comply with the court's order to respond to the motion.

LW Holdco V, LLC v. Puls, NY Slip Op 05026 (1st Dep't October 10, 2024)

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Court holiday.

Contract law.

In order to invoke the doctrine of frustration of purpose, the frustrated purpose must be so completely the basis of the contract that, as both parties understood, without it, the transaction would have made little sense. Frustration of purpose is found where there is a change in circumstances making one party's performance virtually worthless to the other, thus frustrating that party's purpose in making the contract. A contractual party cannot rely on the failure of another to perform a condition precedent where that party has frustrated or prevented the occurrence of the condition.

Matter of Fein v. Langer, NY Slip Op 04906 (1st Dep't October 8, 2024)

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Extensions of time to answer.

A motion pursuant to CPLR 3012(d) to extend the time to answer a complaint requires the movant to demonstrate both a reasonable excuse for its delay and a potentially meritorious defense to the claims to which it is responding. The determination of what constitutes a reasonable excuse lies within the sound discretion of the Supreme Court. In making that discretionary determination, the court should consider relevant factors, such as the extent of the delay, prejudice or lack of prejudice to the opposing party, whether there has been willfulness, and the strong public policy in favor of resolving cases on the merits.

209 Barbey St. Trust v. Scotland, NY Slip Op 04938 (2d Dep't October 9, 2024)

Here is the decision.