Foreclosure actions.

RPAPL 1304(1) provides that "with regard to a home loan, at least ninety days before a lender, an assignee or a mortgage loan servicer commences legal action against the borrower, or borrowers at the property address and any other address of record, including mortgage foreclosure, such lender, assignee or mortgage loan servicer shall give notice to the borrower."  The statute further provides the required content for the notice and provides that the notice must be sent by registered or certified mail and also by first-class mail to the borrower's last known address. Strict compliance with RPAPL 1304 notice to the borrower or borrowers is a condition precedent to the commencement of a foreclosure action. A plaintiff can establish strict compliance with RPAPL 1304 by submitting domestic return receipts, proof of a standard office procedure designed to ensure that items are properly addressed and mailed, or an affidavit from someone with personal knowledge that the mailing of the RPAPL 1304 notice actually happened. Moreover, in order to establish entitlement to a judgment of foreclosure and sale, a plaintiff must show that it complied with any conditions precedent to commencing the action contained in the mortgage agreement itself.

Bank of N.Y. Mellon v. Dilavore, NY Slip Op 06562 (2d Dep't December 24, 2024)

Here is the decision.

Piercing the veil.

A plaintiff seeking to pierce the corporate veil must show that: (1) the owners exercised complete domination of the corporation in respect to the transaction attacked; and (2) their domination was used to commit a fraud or wrong against the plaintiff, resulting in plaintiff's injury.

FX Funding, LLC v. Fox RX, Inc., NY Slip Op 06539 (1st Dep't December 24, 2024)

Here is the decision.

Fraud.

The elements of a cause of action sounding in fraud are a material misrepresentation of an existing fact, made with knowledge of the falsity, an intent to induce reliance thereon, justifiable reliance upon the misrepresentation, and damages. A representation of opinion or a prediction of something which is hoped or expected to occur in the future will not sustain an action for fraud. In order to recover damages for fraudulent misrepresentation, a plaintiff must prove: (1) a misrepresentation or an omission of material fact which was false and known to be false by the defendant; (2) the misrepresentation was made for the purpose of inducing the plaintiff to rely upon it; (3) the plaintiff's justifiable reliance on the misrepresentation or material omission; and (4) injury.

Davidoff v. Hershfield, NY Slip Op 06560 (2d Dep't December 24, 2024)

Here is the decision.

The death of a party and substitution therefor.

The death of a party divests the court of jurisdiction and stays the proceedings until a proper substitution has been made, pursuant to CPLR 1015 (a), and any determination rendered without such substitution will generally be deemed a nullity. The death of a party also terminates an attorney's authority to act on behalf of the deceased party.

The determination of a motion for substitution pursuant to CPLR 1021 brought by the successors or representatives of a party or by any party is an exception to the court's lack of jurisdiction upon the death of a party. CPLR 1021 provides that a motion for substitution may be made by any party to the action, and that such a motion must be made within a reasonable time. The determination of reasonableness requires consideration of several factors, including the diligence of the party seeking substitution, the prejudice to the other parties, and whether it has been shown that the action or defense has potential merit. Even if the explanation for the delay is not satisfactory, the court may grant the motion for substitution if there is no showing of prejudice and there is potential merit to the action or defense, in light of the strong public policy in favor of disposing of matters on the merits.

Lee v. Leeds, Morelli & Brown, P.C., NY Slip Op 06624 (2d Dep't December 24, 2024)

Here is the decision.

Appellate practice.

It is well-settled that the mootness doctrine enjoins appellate review of academic questions.  Appellate review of this matter would neither alter the order as appealed from nor directly affect a substantial right or interest of a party to the appeal. Therefore, the appeal must be dismissed as academic.

Davidoff v. Hershfield, NY Slip Op 06559 (2d Dep't December 24, 2024)

Here is the decision.

Attorneys' fees.

The determination of what constitutes a reasonable attorney's fee is a matter within the sound discretion of the Supreme Court. The attorney bears the burden of establishing the reasonable value of the services rendered through contemporaneous time records specifying the date, hours expended, and nature of the work performed. If the documentation is inadequate, the court may reduce the award accordingly.

Hershfield v. Davidoff, NY Slip Op 06558 (2d Dep't December 24, 2024)

Here is the decision.

Summary judgment.

The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any triable issues of fact. The failure to make such a prima facie showing requires denial of the motion, regardless of the sufficiency of the opposing papers. If there is any doubt as to the existence of a triable issue of fact, the motion for summary judgment must be denied.

Basil v. Renny, NY Slip Op 06324 (2d Dep't December 18, 2024)

Here is the decision.

Appellate practice.

Defendant's constitutional arguments are beyond consideration by the Appellate Division because they are raised for the first time on appeal. In addition, they are barred by the law of the case, as the precise restrictions in the permanent injunction about which he complains have been affirmed by the Appellate Division.

60 E. 9th St. Owners Corp. v. Zihenni, NY Slip Op 06647 (1st Dep't December 31, 2024)

Here is the decision.

Holy, Healthy, and Happy New Year.

Discovery abuses.

The Appellate Division affirmed the imposition of a $10,000 sanction against defendants for discovery abuses, pursuant to CPKR 3126. Based on the court's admonition at a discovery conference, both parties were on actual notice that the non-prevailing party on a discovery-related motion would be responsible for the legal fees of the prevailing party. In granting plaintiff's motion to compel access to his upstairs neighbor's apartment to perform a water test to determine the source of a persistent leak, the court credited plaintiff's position that the condominium's governing documents vested defendants with the authority to access the unit for inspection and testing when a condition in one unit is causing damage in another unit. Defendants refused to exercise that authority, even after the court noted that the request was proper, requiring plaintiff to have to move to compel discovery. The $10,000 sanction was appropriate.

Etkin v, Sherwood Residential Mgt. LLC, NY Slip Op 06424 (1st Dep't December 19m 2024)

Here is the decision.

Invalidating a release.

A valid release constitutes a complete bar to an action on a claim which is the subject of the release. However, a release may be invalidated for any of the traditional bases for setting aside written agreements, namely, duress, illegality, fraud, or mutual mistake. In addition, a release may be set aside on the ground that it was not fairly and knowingly made. This basis for setting aside a release may be applied in situations falling far short of actual fraud' such as when, because the releasor has had little time for investigation or deliberation, or because of overreaching or unfair circumstances, it was deemed inequitable to allow the release to serve as a bar to the claim of an injured party. Although a defendant has the initial burden of establishing that it has been released from any claims, a signed release shifts the burden going forward to the plaintiff to show that there has been fraud, duress, or some other fact which will be sufficient to void the release.

Applewhite v. 112 Liberty Assoc., LLC, NY Slip Op 06323 (2d Dep't December 18, 2024)

Here is the decision.