Leave to renew.

The Supreme Court properly denied the defendant's cross-motion for leave to renew her opposition to those branches of the plaintiff's prior motion which were for summary judgment on the complaint insofar as asserted against her and for an order of reference, since the defendant failed to demonstrate that there had been a change in the law that would have altered the prior determination, pursuant to CPLR 2221[e].

Bank of Am. N.A. v. Bente, NY Slip Op 02304 (2d Dep't April 23, 2025)

Here is the decision.

Abuse of process.

The mere commencement of an action is not an abuse of process.

Sharp v. Bar Fluid, LLC, NY Slip Op 02429 (1st Dep't April 24, 2025)

Here is the decision.

Discovery.

After the note of issue is filed, further discovery will be permitted if the defendant demonstrates unusual or unanticipated circumstances subsequent to the filing, pursuant to 22 NYCRR 202.21[d].

Armor v. 501 EMR, LLC, NY Slip Op 02302 (2d Dep't April 23, 2025)

Here is the decision.

Contract law.

A contract is to be construed in accordance with the parties' intent, which is discerned from the four corners of the document itself. Consequently, a written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms.

Albert  v. Afanador, NY Slip Op 02301 (2d Dep't April 23, 2025)

Here is the decision.

Moving for default judgment.

Plaintiff was not entitled to a default judgment, as it failed to take any action for entry of the judgment within one year after default, as required by CPLR 3215(c).

371-381 PAS Assoc., LLC v. Moss & Moss LLP, NY Slip Op 02295 (1st Dep't April 22, 2025)

Here is the decision.

Vacating a default judgment.

Defendant's affidavit denying notice of the defect that allegedly caused plaintiff's injury shows a meritorious defense as to the motion to vacate the default judgment, given the preference for determining actions on the merits.

Corley v. 337 W. 138 St. Holdings, LLC, NY Slip Op 02298 (1st Dep't April 22, 2025)

Here is the decision.

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)

Here is the decision.

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)

Here is the decision.

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)

Here is the decision.

"He is not here."

Vigil.