Vacating a default.

Defendant's motion to vacate a default judgment is denied because the moving papers failed to demonstrate a reasonable excuse for the default and a meritorious defense to the action, pursuant to CPLR 5015[a]. Defendant's contention that her counsel neglected the matter does not constitute a reasonable excuse.  Defendant, who appeared pro se, did not submit any documentation that she had actually retained counsel, and no notice of appearance was ever filed. In any event, bare allegations of incompetence by counsel cannot serve as the basis to set aside a default.

Tao Liu v. Sobin Chang, NY Slip Op 02370 (1st Dep't May 2, 2024)

Here is the decision.

Service by email.

In a divorce action, Domestic Relations Law § 232 permits substituted service pursuant to CPLR 308 by court order upon a showing that personal delivery of the summons and complaint upon the defendant could not be effected despite efforts made with due diligence

Here, the plaintiff's affidavit of service shows that the defendant was served via email, rather than by personal delivery. The plaintiff failed to demonstrate that the defendant previously consented to such service. Thus, absent a court order authorizing service by email, the service was ineffective.

Rae v. Marciano, NY Slip Op 02337 (2d Dep't May 1, 2024)

Here is the decision.

Unjust enrichment.

The proposed counterclaim for unjust enrichment is barred because the parties had entered into an agreement that governed the settlement. Although a party generally does not have to elect its remedy as between unjust enrichment or breach of contract at the pleadings stage, all the rights and obligations in dispute between the parties arise from the parties' purchase and sale agreement and the settlement agreements, rendering a counterclaim for unjust enrichment inapposite to the facts.

Walsam 316 v. 316 Bowery Realty Corp. , NY Slip Op 02288 (1st Dep't April 30, 2024)

Here is the decision.

Respondeat superior.

The doctrine of respondeat superior renders a master vicariously liable for a tort committed by a servant within the scope of the servant's employment. Conversely, the general rule is that an employer who hires an independent contractor is not liable for the independent contractor's negligent acts. The critical inquiry in determining whether there is an employment relationship depends on the degree of control exercised by the purported employer over the results produced or the means used to achieve the results. Factors relevant to assessing control include whether the worker (1) worked at his own convenience; (2) was free to engage in other employment; (3) received fringe benefits; (4) was on the employer's payroll; and (5) was on a fixed schedule. The fact that there is a contract designating a person as an independent contractor is to be considered, but it is not dispositive. Whether an actor is an independent contractor or an employee is usually a factual issue for a jury.

Brielmeier v. Leal, NY Slip Op 02163 (2d Dep't April 24, 2024)

Here is the decision.

Appellate practice.

Generally, an appeal from a final judgment brings up for review any non-final judgment or order which necessarily affects the final judgment, pursuant to CPLR 5501[a][1]. However, since no appeal lies from an order denying reargument, the order denying the plaintiff's motion for leave to reargue her opposition to the defendant's motion for summary judgment dismissing the complaint is not brought up for review. 

Rogers v. Stop & Shop Supermarket Co., LLC, NY Slip Op 02216 (2d Dep't April 24, 2024)

Here is the decision.

Proper service.

A process server's affidavit of service constitutes prima facie evidence of proper service. On a motion to vacate a default judgment under CPLR 5015(a)(4), the defendant must overcome the presumption raised by the affidavit of service. Bare and unsubstantiated denials are insufficient to rebut the presumption of service, but a sworn denial of service containing specific facts generally rebuts the presumption of proper service and necessitates an evidentiary hearing. Minor discrepancies between the appearance of the person allegedly served and the description of the person in the affidavit of service are insufficient to raise an issue of fact warranting a hearing. The discrepancies must be substantiated by something more than a claim by the parties allegedly served that the descriptions of their appearances were incorrect.

TD Bank, N.A. v. Turbo Group, Inc., NY Slip Op 02217 (2d Dep't April 24, 2024)

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Appellate practice.

A factual argument that is raised for the first time on appeal is unpreserved for appellate review.

Marcal Fin. SA v. Sutton, NY Slip Op 02258 (1st Dep't April 25, 2024)

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Tax liens.

Under both the federal and state constitutions, the State may not deprive a person of property without due process of law. Both the initial notice of tax lien sale and the subsequent notice to redeem must meet constitutional due process requirements. The requirements of due process are satisfied where notice is reasonably calculated to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.

Pekich v. Membreno, NY Slip Op 02206 (2d Dep't April 24, 2024)

Here is the decision.

Frivolous claims.

While public policy generally mandates free access to the courts, a party may forfeit that right if he abuses the judicial process by engaging in meritless litigation motivated by spite or ill will.

Svatovic v. Shabot, NY Slip Op 02266 (1st Dep't April 25, 2024)

Here is the decision.

Legal Brief

Leave to amend.

The Appellate Division determined that the motion court providently denied plaintiff's motion under CPLR 3025(b) and 5015(a)(3) to amend the third amended complaint to revive previously dismissed parties and claims and to assert new claims against new parties based on newly discovered evidence. The Appellate Division has previously affirmed the dismissal of the claims which plaintiff seeks to reassert. 

Plaintiff failed to establish that the new evidence was not merely cumulative and that it would have changed the result of the motion court or the Appellate Division's previous orders. On appeal, plaintiff does not address how the new evidence fulfills the elements of any particular cause of action, nor does he provide a basis for reviving the previously dismissed claims or adding new parties and claims to this 2014 action. In addition, given the late stage in the litigation of this matter, the amendments would have necessitated no small measure of additional discovery.

Simon v. FrancInvest, S.A., NY Slip Op 02157 (1st Dep't April 23, 2024)

Here is the decision.

Legal Brief

CPLR 3215(c).

The motion  to vacate the judgment and dismiss the action against defendan-borrower as abandoned is granted. Plaintiff did not commence proceedings for entry of a judgment within one year of default, but waited almost four years to seek a default judgment, and it fails to provide sufficient cause for the delay.

Wells Fargo Bank, N.A. v. Gwebu, NY Slip Op 02160 (1st Dep't April 23, 2024)

Here is the decision.

Legal Brief