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.

The continuous representation doctrine.

Under the doctrine, tolling of the limitations period ends once the client is informed or otherwise put on notice of the attorney's withdrawal from representation.

RJR Mech. Inc. v. Revoldt, NY Slip Op 01844 (1st Dep't March 14, 2019)

Here is the decision.

Opposing summary judgment.

A defendant may not use uncertified documents to raise triable issues of fact in opposition to a motion for summary judgment.

Garcia v. McCrea, NY Slip Op 01842 (1st Dep't March 14, 2019)

Here is the decision.

Confessions of judgment.

Pursuant to CPLR 3218[a][1], an affidavit of a confession of judgment must state the sum for which judgment may be entered.  If the judgment is for money due or to become due, 3218[a][2] requires that the affidavit state the facts out of which the debt arose and that the sum confessed is justly due or to become due.

Parker Waichman, LLP v. Getreu, NY Slip Op 01783 (2d Dep't March 13, 2019)

Here is the decision.

Taxis, seatbelts, and liability.

The failure to provide seatbelts in a taxicab is a violation of Vehicle and Traffic Law § 383, and constitutes negligence as a matter of law. Where the injured plaintiff failed to wear an available seatbelt, that failure goes to damages, not liability. However, that is not the case where the vehicle owner did not provide seatbelts in the first place.

Grant v. AAIJ African Mkt. Corp., NY Slip Op 01823 (1st Dep't March 14, 2019)

Here is the decision.

Rule of Professional Conduct 1.5(g)(1) and splitting fees.

A lawyer may not divide a fee for legal services with another lawyer who is not associated with the same firm unless the division is in proportion to the services performed by each, and, by a writing given to the client, each lawyer assumes joint responsibility for the representation.

O'Dwyer v. Law Offs. of Rex E. Zachofsky, PLLC, NY Slip Op 01728 (March 12, 2019)

Here is the decision.

Retainer agreements and legal fees.

An attorney's failure to comply with the letter of engagement rule, codified at 22 NYCRR 1215.1, does not preclude the recovery of legal fees under a theory of account stated.

Carling v. Peters, NY Slip Op 01713 (1st Dep't March 12, 2019)

Here is the decision.

Limitations on liability.

While contractual limitations on liability are enforceable, they do not, as a matter of public policy, extend to conduct that is grossly negligent.

S.A. De Obras y Servicios, COPASA v. Bank of Nova Scotia, NY Slip Op 01706 (March 12, 2019)

Here is the decision.

Indemnification.

The principle of common-law, or implied, indemnification permits one who has been compelled to pay for the wrong of another to recover from the wrongdoer the damages it paid to the injured party. The party seeking indemnification must have delegated exclusive responsibility for the duties giving rise to the loss to the party from whom indemnification is sought, and must not have committed any actual wrongdoing itself. Common-law indemnification is warranted where a defendant's role in causing the plaintiff's injury is solely passive, and thus its liability is purely vicarious. Since the predicate of common-law indemnity is vicarious liability, a party who has itself actually participated to some degree in the wrongdoing cannot invoke the doctrine.

Board of Mgrs. of Olive Park Condominium v. Maspeth Props., LLC, NY Slip Op 01554 (2d Dep't March 6, 2019)

Here is the decision.

Vacating a default.

Where a defendant seeking to vacate a default judgment raises a jurisdictional objection pursuant to CPLR 5015(a)(4), and seeks a discretionary vacatur pursuant to CPLR 5015(a)(1), the court must resolve the jurisdictional question before determining whether it is appropriate to grant a discretionary vacatur.

Bedessee Imports, Inc. v. Najjar, NY Slip Op 01552 (2d Dep't March 6, 2019)

Here is the decision.

CPLR 5515[1].

The Appellate Division cannot consider an issue that is not specified in the notice of appeal.

McCabe v. Consulate Gen. of Can., NY Slip Op 01651 (1st Dep't March 7, 2019)

Here is the decision.

CPLR 2014.

Unless the settlement agreement is made in open court, it is binding only if it is in a writing subscribed by an attorney or reduced to the form of an order and entered.

Amerally v. Liberty King Produce, Inc., NY Slip Op 01550 (2d Dep't March 6, 2019)

Here is the decision.

Proximate cause and intervening acts.

The issue is whether the intervening act is a normal or foreseeable consequence of the situation created by the defendant's negligence. The mere fact that other persons share some responsibility for the plaintiff's harm does not absolve the defendant from liability because there may be more than one proximate cause of an injury.

Demetro v. Dormitory Auth. of the State of N.Y., NY Slip Op 01642 (1st Dep't March 7, 2019)

Here is the decision.

CPLR 3025(b).

In the complaint, the plaintiff inadvertently alleged that the accident involved a slip and fall in the parking lot instead of on the sidewalk in front of the premises. When the defendant moved to dismiss on the basis of the error, the plaintiff sought leave to amend. Leave was granted absent any prejudice to the defendant resulting from the pleading mistake. The motion papers included the proposed pleading and sufficiently specified the changes to be made, and the proposed amendment was clearly not patently insufficient or devoid of merit.

Yu Tian Li v. Louie & Chan Rest., NY Slip Op 01529 (1st Dep't March 5, 2019)

Here is the decision.

Waiver of a claim in equity.

Where a contract specifies that any claims shall be based on the contract and the contract price, a claim for unjust enrichment is waived and will be dismissed.

Federated Fire Protection Sys. Corp. v. 56 Leonard St., LLC, NY Slip Op 01538 (1st Dep't March 5, 2019)

Here is the decision.

CPLR 4518[a].

The movant must provide a sufficient foundation for the motion court to consider the documents submitted as business records.

A&W Egg Co., Inc. v. Tufo's Wholesale Dairy, Inc., NY Slip Op 01498 (1st Dep't February 28, 2019)

Here is the decision.

Labor Law §§ 240(1) and 241(6).

The owners of one-family and two-family dwellings who contract for but do not direct or control the work are specifically exempted from statutory liability.

Hannan v. Freeman, NY Slip Op 01396 (2d Dep't February 27, 2019)

Here is the decision.

CPLR 4518[a].

An uncertified police accident report submitted in opposition to a summary judgment motion is not admissible.

Han Ho Huang v. John Doe, NY Slip Op 01395 (2d Dep't February 27, 2019)

Here is the decision.

Defaults.

Where the allegations in a complaint or affidavit of facts fail to establish a prima facie case, the applicant is not entitled to relief, even on a default.

Wynkoop v. 662A President St. Owners Corp., NY Slip 01450 (2d Dep't February 27, 2019)

Here is the decision.

Lack of standing.

A plaintiff's lack of standing at the commencement of the action is not cured by the subsequent assignment of the claim.

Rizack v. Signature Bank, N.A., NY Slip Op 01494 (1st Dep't February 28, 2019)

Here is the decision.

Service on a foreign LLC.

Service on a foreign limited liability company by personal delivery to its authorized agent is proper under CPLR 311-a.

Wilmington Trust, N.A. v. Pape, NY Slip Op 01449 (2d Dep't February 27, 2019)

Here is the decision.