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.

Admissibility of documentary evidence.

To be considered on a motion for summary judgment, documentary evdience must be in admissible form. Records that are not certified are inadmissible hearsay, as are unsworn letters from attorneys.

Atlantic Fin., LLC v. Xinlei Lin, NY Slip Op 00817 (2d Dep't February 7 2018)

Here is the decision.

Court holiday.

Slips and falls.

Practice point:  The mere placement of a wet floor warning sign does not automatically absolve a defendant of negligence.

Case:  Hamilton v 3339 Park Dev. LLC, NY Slip Op 00799 (1st Dep't February 6, 2018)

Here is the decision.

Venue.

Pursuant to CPLR 503(a), "the place of trial shall be in the county in which one of the parties resided when [the action] was commenced." For venue purposes, a residence is where a party stays for some time with a bona fide intent to retain the place as a residence for some length of time and with some degree of permanency. Residence means living in a particular place, while domicile means living in that locality with the intent to make it a fixed and permanent home. For the purpose of determining venue, a party may have more than one residence .

To prevail on a motion to change venue, pursuant to CPLR 510(1), the defendant must show that the plaintiff's choice of venue is improper, and that the defendant's choice of venue is proper.

Pursuant to CPLR 510(3), the court, on notice of motion, may change the venue of an action where "the convenience of material witnesses and the ends of justice will be promoted by the change."  The movant must provide information about the prospective witnesses, including, but not limited to, their names and addresses, disclose the facts about which the proposed witnesses will testify at the trial, represent that the prospective witnesses are willing to testify, and state that, absent a change, the witnesses would be inconvenienced.

Case:  Bikel v. Bakertown Realty Group, Inc., NY Slip Op 00540 (2d Dep't January 31, 2018)

Here is the decision.

A late notice of claim in a medical malpractice action.

Under General Municipal Law § 50-e(1)(a), the notice must be served on the public corporation within 90 days after the claim arises, but a court may, in its discretion, permit a plaintiff to serve a late notice of claim. In making this determination, the court may consider, among other things, whether the defendant had actual knowledge of the essential facts constituting the claim within the statutory period, or a reasonable time thereafter. It is not necessary that the defendant had knowledge of a specific legal theory. A plaintiff will not be penalized for waiting for medical records to file a complete and accurate notice of claim.

Case:  Matter of Townson v. New York City Health & Hosps. Corp., NY Slip Op 00607 (1st Dep't February 1 2018)

Here is the decision. 

An out-of-possession landlord's liability.

An out-of-possession landlord that has assumed the obligation to make repairs to its property cannot be held liable for injuries caused by a defective condition at the property unless it either created the condition or had actual or constructive notice of it.

Case:  Amster v. Kromer, NY Slip Op 00538 (2d Dep't January 31, 2018)

Here is the decision.

Inconvenient forum (CPLR 327).

The Appellate Division affirmed denial of defendants' motion to dismiss, pursuant to CPLR 327(a), in this action that arises from a bus-pedestrian accident that occurred in New York.  All the parties are New Jersey residents, but plaintiff received medical treatment, both emergency and continuing, in New York. Proposed witnesses, including eyewitnesses, are New York residents, as is the responding police officer. Given the relative proximity between New York and New Jersey, and the regularity with which defendants cross from one state to the other, no hardship will result from litigating the action in New York.

Case:  Hull v. Camacho, NY Slip Op 00621(1st Dep't February 1, 2018)

Here is the decision.

Causes of action for declaratory judgment and breach of contract.

Practice point:  These two causes of action implicate different legal concepts involving different alleged harm and different forms of relief. The purpose of the declaratory judgment action is to declare parties' rights and other legal relations in a justiciable controversy, so as to stabilize their legal relationship. If the plaintiff is not entitled to the declaration sought, the remedy is not a dismissal of the complaint, but a declaration of the rights of the parties, whatever those rights may be. By contrast, a breach of contract action calls upon the court to determine questions of breach, liability, and, in the event of liability, money damages. Although the prayers for relief are different for declaratory judgment and breach of contract actions, both grounds may be pursued by a plaintiff in a single complaint, as CPLR 3014 permits the pleading of alternative and inconsistent causes of action.

Case:  159 MP Corp. v. Redbridge Bedford, LLC, NY Slip Op 00537 (2d Dep't January 31, 2018)

Here is the decision.

An insufficient fraud claim.

Practice point:  A cause of action for fraud is not sufficiently stated where the only alleged fraud relates to a breach of contract.

Case:  Springut Law PC v. Rates Tech. Inc. NY Slip Op 00525 (1st Dep't January 30, 2018)

Here is the decision.