Commencing a foreclosure action

RPAPL 1304(1) provides that, "at least ninety days before a lender, an assignee or a mortgage loan servicer commences legal action against the borrower, including mortgage foreclosure, such lender, assignee or mortgage loan servicer shall give notice to the borrower."  Pursuant to 1304(2), the notice must be sent by registered or certified mail and by first-class mail to the borrower's last known address. Proper service of notice is a condition precedent to the commencement of the action, and the plaintiff has the burden of establishing satisfaction of this condition.

Bank of Am., N.A. v. Wheatley, NY Slip Op 01175 (2d Dep't February 21, 2018)

Here is the decision.

Standing.

The Appellate Division affirmed dismissal of the complaint alleging that defendant's delivery trucks were blocking designated bicycle lanes. Plaintiff lacked standing to bring the suit, as he failed to sufficiently demonstrate special injury beyond that sustained by the community at large.

Bell v. United Parcel Serv., Inc., NY Slip Op 01252 (1st Dep't February 22, 2018)

Here is the decision.

The statute of limitations bar.

A defendant who moves to dismiss a complaint pursuant to CPLR 3211(a)(5) on the ground that it is barred by the statute of limitations bears the initial burden of proving, prima facie, that the time in which to sue has expired. On a proper showing, the burden shifts to the nonmoving party to raise a question of fact as to whether there is an applicable exception to the statute; as to whether the statute was tolled; or as to whether the action was actually commenced within the applicable statutory period.

Berger v. Stolzenberg, NY Slip Op 01176 (2d Dep't February 2, 2018)

Personal jursdiction.

The Appellate Division affirmed the motion court's determination that there is personal jurisdiction  over the defendant, pursuant to CPLR 302(a)(1). The complaint, as supplemented by plaintiff's affidavit and the contracts at issue, alleges that the defendant breached an employment agreement that was substantially negotiated in New York, where defendant's principal place of business was located. While the plaintiff was based in Boston, he regularly traveled to New York in the discharge of his duties pursuant to the employment agreement, including reporting to the defendant's chair and controlling shareholder who was based in New York.

Popescu, George-Alex v. Forexware, LLC, NY Slip Op 01159 (1st Dep't February 20, 2018)

Here is the decision.

Transfers to a lower court.

An action may be transferred from the court in which it is pending to a lower court, pursuant to CPLR 325[d]. Where the transfer is on consent of the parties, they are bound by the monetary jurisdictional limits of the transferee court, pursuant to 325[c].  If the transfer is not on consent, the transferee court may render a verdict or judgment to the extent of the monetary jurisdiction of the transferor court, pursuant to 325[d]. If it turns out that the action was transferred to a lower court that lacks subject matter jurisdiction, a transfer back is appropriate, pursuant to 325[b].

Caffrey v. North Arrow Abstract & Settlement Servs., Inc., NY Slip Op 01043 (2d Dep't February 14, 2018)

Here is the decision.

Extensions of time.

CPLR 2004 provides that, "[e]xcept where otherwise expressly prescribed by law, the court may extend the time fixed by any statute, rule or order for doing any act, upon such terms as may be just and upon good cause shown, whether the application for extension is made before or after the expiration of the time fixed." Given the strong public policy favoring  resolution on the merits, the court may order a plaintiff to accept an untimely answer where there was only a short delay in appearing or answering; there was no willfulness on the part of the defendant; there would be no prejudice to the plaintiff; and there is a potentially meritorious defense.

Baldwin Rte. 6, LLC v. Bernad Creations, Ltd., NY Slip Op 01039 (2d Dep't February 14, 2018)

Here is the decision.

Negligence claims.

Allegations of negligence, even if provable, are insufficient to establish liability in the absence of proof that the negligence was a proximate cause of the plaintiff's injury.

Lebron v. New York City Hous. Auth., NY Slip Op 01116 (1st Dep't February 15, 2018)

Here is the decision.

Court holiday.

Claims against corporate directors.

There is no claim against the individual directors in the absence of allegations that they committed independent tortious acts.

Avramides v. Moussa, NY Slip Op 01035 (1st Dep't February 13, 2018)

Here is the decision.

Labor Law § 240(1).

 A fall through an unguarded opening in the floor of a construction site constitutes a statutory violation only where a safety device adequate to prevent such a fall was not provided.  A safety line and harness may be an adequate safety device for a person working over an open area or near an elevated edge.

Guaman v. City of New York, NY Slip Op 01025 (1st Dep't February 13, 2018)

Here is the decision.

Reply papers.

Practice point:  The function of reply papers is to address arguments made in opposition to the movant's position.  

The motion court properly considered a renewed power of attorney submitted by the plaintiff in reply to the appellants' opposition to the motion. The renewed power of attorney was offered in response to the appellants' argument that the plaintiff's affidavit of merit was invalid because it was signed after expiration of the originally submitted power of attorney. The renewed power of attorney merely clarified that, at the time the affidavit was signed, the affiant continued to have the authority to act on the plaintiff's behalf.

Bank of N.Y. Mellon v. Hoshmand, NY Slip Op 00818 (2d Dep't February 7, 2018)

Here is the decision.