Service of process.

The affidavit of plaintiff's process server demonstrates, prima facie, that service was properly made on defendant, pursuant to CPLR 308(2), by leaving a copy of the summons and complaint with a person of suitable age and discretion at defendant's residence and then mailing a copy to defendant at the same address. Nelson's mere denial of receipt of service is insufficient to rebut the presumption of proper service created by the properly executed affidavit of service.

Thompson v. Nelson, NY Slip Op 02284 (1st Dep't April 17, 2025)

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Traverse hearings.

Plaintiff failed to demonstrate, by a preponderance of the evidence, proper service of the summons and complaint on defendant. At the traverse hearing, plaintiff's process server submitted the affidavit of service and testified that he served defendant by leaving the summons and complaint with defendant's relative at defendant's apartment. Defendant testified that he did not receive process at his residence, as he was at work on the day of the purported service and there was noone in his apartment to receive process at that time. In any event, he would not have allowed the process server into the building through the intercom system.

The court properly identified several reasons to undermine the process server's credibility and to accept defendant's testimony. It was shown that the process server was sanctioned on numerous occasions, and that he admitted to giving false testimony under oath at a prior traverse hearing. The court also properly found that the process server did not prepare affidavits of service with the necessary care and specificity, and that the recipient's physical characteristics, as reflected in the affidavit of service, did not meet defendant's physical description. Based on the foregoing, the court properly credited defendant's testimony and there is no basis to disturb the court's credibility determinations at the traverse hearing, which are entitled to deference.

Bertotti v. Lief, NY Slip Op 02271 (1st Dep't April 17, 2025)

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Personal jurisdiction.

Lack of personal jurisdiction is an affirmative defense that is waived by appearing in an action, either formally or informally, without raising the defense in an answer or pre-answer motion to dismiss. A defendant's participation in a lawsuit on the merits indicates an intention to submit to the court's jurisdiction. 

Matter of Weiss v. County of Suffolk, NY Slip Op 02210 (2d Dep't April 16, 2025)

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"He is not here."

Vigil.

Stabat Mater Dolorosa.

"Quid est veritas?"

Contract law.

A party in breach of its own contractual obligations is not entitled to specific performance on the agreement. 

Jawara v. Araka, NY Slip Op 02130 (1ast Dep't April 10, 2025)

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Summary judgment.

Since a motion for summary judgment must be addressed to specific causes of action or defenses, the court may search the record and award summary judgment for a nonmoving party only as to a cause of action or issue that is the subject of the motion before the court, pursuant to CPLR 3212(b). Apart from considerations of simple fairness, allowing a summary judgment motion by any party to bring up for review every claim and defense asserted by every other party would be tantamount to shifting the well-accepted burden of proof on summary judgment motions.

Gordillo-Jiminez v. Ravagh Persian Grill, Inc., NY Slip Op 02059 (2d Dep't April 9, 2025)

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Attorneys' fees.

Discharge for cause is necessary to warrant the forfeiture of an attorney's fee. 

Thuku v. 324 E. 93, LLC, NY Slip Op 02138 (1st Dep't April 10, 2025)

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Arbitration agreements.

The enforceability of arbitration agreements is governed by the rules applicable to contracts. Although the plaintiff did not sign the agreement in her individual capacity, she is bound by the arbitration clause under the direct benefits theory of estoppel, as the allegations in the complaint show that she knowingly exploited the benefits of the agreement and received benefits flowing directly from that agreement. The defendants did not waive the defense that the parties' dispute was subject to arbitration. The defendants' conduct in appearing in and defending this state court action was not inconsistent with the affirmative defense asserted in their answer that the plaintiff's claims were subject to arbitration.

Belchikov v. XTP Implementation Servs., Inc., NY Slip Op 02054 (2d Dep't April 9, 2025)

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