Commencing a foreclosure action.

The plaintiff establishes standing by showing that it had either a written assignment or physical possession of the underlying note and mortgage prior to commencement. In the absence of a written assignment, a conclusory affidavit is insufficient proof of possession.

Deutsche Bank Natl. Trust Co. v. Guevara, NY Slip Op 02412 (1st Dep't March 28, 2019)

Here is the decision.

A jurisdictional defense.

A defendant who appears without asserting the lack of personal jurisdiction waives the defense.

Aurora Loan Servs., LLC v. Colleluori, NY Slip Op 02305 (2d Dep't March 27, 2019)

Here is the decision.

CPLR 5511.

Since the defendant failed to oppose the plaintiff's motion, the defendant is not aggrieved by the order granting the motion, and is precluded on appeal from challenging the propriety of the order.

179 Ct. St. Holding Corp. v. 127-18 Liberty Ave. Corp., NY Slip Op 02302 (2d Dep't March 27, 2019)

Here is the decision.

Notice in a slip-and-fall action.

A defendant's general awareness that the floor might become wet after inclement weather does not permit an inference of constructive notice.

Diaz-Martinez v. King of Glory Tabernacle, NY Slip Op 02263 (1st Dep't March 26, 2019)

Here is the decision.

CPLR 2221(2), (3).

A motion for leave to renew "shall be based upon new facts not offered on the prior motion that would change the prior determination," and "shall contain reasonable justification for the failure to present such facts on the prior motion."

Baviello v. Patterson Auto Convenience Store, Inc., NY Slip Op 02052 (2d Dep't March 20, 2019)

Here is the decision.

CPLR 4110-b.

Where a defendant does not object to a jury instruction, a challenge to the instruction is not preserved for appellate review.

Stryker Sec. Group Inc. v. Elite Investigations Ltd., NY Slip Op 02162 (1st Dep't March 21, 2019)

Here is the decision.

A defense of lack of standing.

The issue is waived by the defendant's failure to raise it in a pre-answer motion to dismiss, or to serve an answer asserting lack of standing as an affirmative defense.

Bank of N.Y. Mellon Trust Co., N.A. v. Ross, NY Slip Op 02051 (2d Dep't March 20, 2019)

Here is the decision.

Vacating a default on a motion.

A party seeking to vacate a default for failing to oppose a motion must demonstrate a reasonable excuse and a potentially meritorious opposition to the motion. The determination of what constitutes a reasonable excuse is within the sound discretion of the motion court, and will not be disturbed if there is support in the record. In making its determination, the court should consider 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.

Arroyo v. Starrett City, Inc., NY Slip Op 02050 (2d Dep't March 20, 2019)

Here is the decision.

An unpleaded affirmative defense.

The motion court may consider an affirmative defense that was not pleaded in the answer where the facts leading up to the accident are known to the plaintiff based on deposition testimony and materials exchanged during discovery.

Santana v. Metropolitan Transp. Co., NY Slip Op 02158 (1st Dep't March 19, 2019)

Here is the decision.

Spoliation sanctions.

The imposition of sanctions is not limited to cases where the evidence was destroyed willfully or in bad faith, as the negligent loss of evidence can be just as fatal to the other party's ability to present a defense. Where the striking of a pleading would be too severe, an adverse inference charge at trial would be appropriate.

Alphas v. Smith, NY Slip Op 02030 (1st Dep't March 19, 2019)

Here is the decision.

Affidavits.

An affidavit that directly contradicts the affiant's prior testimony creates a feigned issue of fact and is insufficient to defeat a properly supported motion for summary judgment.

Laniox v. City of New York, NY Slip Op 02026 (1st Dep't March 19, 2019)

Here is the decision.