CPLR 213(4).

The six-year limitations period applicable to a mortgage foreclosure action begins to run against the entire outstanding principal as of the date of the acceleration of the loan.

U.S. Bank N.A. v. Garcia, NY Slip Op 02988 (1st Dep't May 21, 2020)

Here is the decision.

Non-signatories to a forum selection clause.

The provision may be binding on a non-signatory where it and a contracting party have such a close relationship that it is foreseeable that the forum selection clause will be enforced against the non-signatory. The rationale for binding non-signatories is that forum selection clauses promote stable and dependable trade relations, and that it would be contrary to public policy not to enforce a forum selection clause against non-signatory entities through which a party acts.

Highland Crusader Offshore Partners, L.P. v. Targeted Delivery Tech. Holdings, Ltd., NY Slip Op 02991 (1st Dep't May 21, 2020)

Here is the decision.

Spoliation sanctions.

Sanctions are available whether the evidence was destroyed intentionally, willfully, or negligently. In seeking sanctions, the movant must show that the party with control over the evidence had an obligation to preserve it; that the evidence was destroyed with a culpable state of mind; and that the evidence was relevant to the party's case such that the trier of fact could find that the evidence would support the movant's claim or defense. If the destruction of the evidence was intentional or willful, relevance is presumed. If the destruction was negligent, relevance must be established.

China Dev. Indus. Bank v. Morgan Stanley & Co. Inc., NY Slip Op 02987 (1st Dep't May 21, 2020)

Here is the decision.

Tax estoppel.

Under the doctrine, the defendants' act of filing corporate tax returns, signed by one of the defendants, which contained factual statements regarding the plaintiff's ownership interest during the time at issue precludes defendants from taking a contrary position in this litigation.

PH-105 Realty Corp. v. Elayaan, NY Slip Op 02971 (1st Dep't May 21, 2020)

Here is the decision.

A conversion claim.

The claim will be dismissed where it is predicated on the breach of a contract, and the plaintiff alleges no independent facts that are sufficient to give rise to tort liability.

Prospect Funding Holdings, LLC v. Paiz, NY Slip Op 02967 (1st Dep't May 21, 2020)

Here is the decision.

A tortious interference claim.

To support the claim, New York law requires that the contract would not have been breached "but for" the defendant's conduct. If the breach occurs before the defendant's purported inducement, the inducement could not have caused the breach.  A plaintiff's conclusory allegations that the defendant knew about the underlying agreement are insufficient.

Wiesen v. Verizon Communications, Inc., NY Slip Op 02965 (1st Dep't May 21, 2020)

Here is the decision.

CPLR 308(4).

Plaintiff failed to satisfy the statutory requirement of due diligence. The process server attempted to effect service twice at an address that was not defendant's "actual place of business, dwelling place or usual place of abode within the state."  Defendant had moved to Mexico almost a year before service was attempted, and defendant had no contractual obligation to notify plaintiff that his address changed.

Roc-Lafayette Assoc., LLC v. Reuter, NY Slip Op 02885 (1st Dep't May 14, 2020)

Here is the decision.

CPLR 3215(f).

The denial of plaintiff's summary judgment motion extends to plaintiff's motion for a default judgment against the non-appearing defendant-guarantor.

104 Second Realty, LLC v. Beer Factory LLC, NY Slip Op 02886 (1st Dep't May 14, 2020)

Here is the decision.

Motions for summary judgment.

The court may providently exercise its discretion in denying the motion as premature if it is filed while depositions and other discovery remain outstanding.

Cruz v. City of New York, NY Slip Op 02887 (1st Dep't May 14, 2020)

Here is the decision.

An insufficient claim for breach of fiduciary relationship.

The claim is properly dismissed, as defendant never held funds belonging to plaintiff, but was supposed to enter into a contract with plaintiff so that plaintiff could submit bills to defendant. This does not create a fiduciary relationship.

East of Hudson Rail Frgt. Task Force, Inc. v. Port Auth. of N.Y. & N.J., NY Slip Op 02870 (1st Dep't May 14, 2020)

Here is the decision.

Motion practice.

Defendant is not bound by statements in the court's prior orders on the motions for summary judgment by two co-defendants, as he had no interest in those motions. Law of the case does not apply.

Rotter v. Ripka, NY Slip Op 02859 (1st Dep't May 14, 2020)

Here is the decision.

Notices to admit.

The notice may not be used for the purpose of compelling admissions of fundamental and material issues or ultimate facts.

MTGLQ Invs., LP v. Collado, NY Slip Op 02723 (1st Dep't May 7, 2020)

Here is the decision.

An insufficient opposition to summary judgment.

The defendant's affidavit is inconsistent with the police report and with the motor vehicle accident report that he had filed six days after the accident. Due to these inconsistencies, the affidavit raises feigned issues of fact, and is insufficient to defeat the motion. In addition, the affidavit fails to raise a triable issue as to whether there was a nonnegligent explanation for the accident, as it does not indicate that plaintiff was outside the crosswalk or that she did not have the light in her favor.

Curl v. Schiffman, NY Slip Op 02725 (1st Dep't May 7, 2020)

Here is the decision.

Successive motions for summary judgment.

The motion court may providently consider a successive motion where doing so would clearly enhance judicial efficiency.

MTGLQ Invs., LP v. Collado, NY Slip Op 02723 (1st Dep't May 7, 2020)

Here is the decision.

CPLR 317.

The defendant failed to rebut plaintiff's proof that defendant had received actual notice of the action in time to defend. The summons and complaint, with the motion for default judgment, were sent to defendant's president, and the order granting the default and directing an inquest was sent to the president at the same address. The affidavit of defendant's president claiming not to have received the complaint or default order was merely conclusory.

Frazier v. 811E. 178th St. Realty Corp., NY Slip Op 02722 (1st Dep't May 7, 2020)

Here is the decision.

22 NYCRR 202.21.

The trial court properly denied plaintiff's motion to strike defendants' pleadings or preclude defendants from calling witnesses on the ground of their alleged failure to provide discovery, as, by filing a note of issue, plaintiff waived her entitlement to any further discovery.

Hu-Lin Wu v. City of New York, NY Slip Op 02721 (1st Dep't May 7, 2020)

Here is the decision.

The doctrine of res judicata.

Under res judicata, or claim preclusion, a valid final judgment bars future actions between the same parties, or those in privity with them, on any claims arising out of the same transaction or series of transactions, even if the action is based on a different theory or is seeking different relief. Here, the plaintiff, as a successor to the same property interest, is in privity with the prior owner of the apartment at issue, and this action is barred.

East Hampton Capital LLC v. Fergusson, NY Slip Op 02718 (1st Dep't May 7, 2020)

Here is the decision.

CPLR 5015(a)(1).

On a motion to vacate a default, the standard is a reasonable excuse; plausibility is insufficient. Here, the moving defendant's one-sided understanding that plaintiffs would refrain from prosecuting their lawsuit while another defendant negotiated its sale is not a reasonable excuse for failing to answer.

Kowal v. JackFromBrooklyn Inc., NY Slip Op 02715 (1st Dep't May 7, 2020)

Here is the decision.

CPLR 2101[f].

Supreme Court providently exercised its discretion in denying respondent's motion for a default judgment on his counterclaim, as he waived any objection to the timeliness of petitioners' reply by failing to object to it within 15 days.

Matter of CUCS Hous. Dev. Fund Corp. IV v. Aymes, NY Slip Op 02711 (1st Dep't May 7, 2020)

Here is the decision.

Forum non conveniens.

The court did not abuse its discretion in dismissing the case pursuant to CPLR 327.  Even though the case is relatively simple and not unduly burdensome to New York's courts, there is only a minimal connection between the action and New York. There is no indication that any relevant events occurred in New York, and both the defendant and the sole non-party witness reside in Switzerland.

Trimarco v. Edwards, NY Slip Op 02709 (1st Dep't May 7, 2020)

Here is the decision.

Expert opinions based on hearsay.

The opinion may be received in evidence even though some of the information on which it is based is inadmissible hearsay, if the hearsay is of a kind accepted in the profession as reliable in forming a professional opinion, or if it comes from a witness subject to cross-examination at trial.

East Fordham DE LLC  v. U.S. Bank N.A., NY Slip Op 02547 (1st Dep't April 30, 2020)

Here is the decision.

An improper opposition to a motion for summary judgment.

In its opposition, a plaintiff' cannot raise for the first time a new theory of liability that had not been set forth in the complaint or in the bill of particulars.

Silber v. Sullivan Props., L.P., NY Slip Op 02538 (1st Dep't April 30, 2020)

Here is the decision.

CPLR 202.

Since plaintiff is a resident of Illinois and it allegedly suffered damage in Illinois, where it does business, New York's borrowing statute applies for the purpose of the statute of limitations.

Errant Gene Therapeutics, LLC v. Sloan-Kettering Inst. for Cancer Research, NY Slip Op 02534 (1st Dep't April 30, 2020)

Here is the decision.

A motion to confirm a referee's report.

The motion is properly denied, as the referee's determination is unsupported by the record, which contains documentary evidence that contradicts and renders incredible certain testimony offered by the defendants.

Toobian-Sani Enters., Inc. v. Bronfman Fisher Real Estate Holdings, LLC, NY Slip Op 02532 (1st Dep't April 30, 2020)

Here is the decision.

CPLR 302[a][3].

New York's long-arm jurisdiction statute does not serve as a basis for jurisdiction. In the context of commercial torts, where the damages are purely economic, the situs of the injury is the location where the event giving rise to the injury occurred, and not where the resulting damages occurred.

U.S. Immigration Fund LLC v. Litowitz, NY Slip Op 02533 (1st Dep't April 30.2020)

Here is the decision.

Denial of a motion for leave to renew.

A motion to renew is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation. Here, the purported new facts were available to the defendant at the time he opposed the plaintiff's motion for summary judgment, and he failed to demonstrate a reasonable justification for failing to submit them, pursuant to CPLR 2221[e][3].  In any event, the purported new facts would not have changed the prior determination.

Ascentium Capital, LLC v. Empire Med. Servs. of Long Is., P.C., NY Slip Op 02450 (2d Dep't April 29, 2020)

Here is the decision.

Appellate practice.

Where an order, sua sponte, dismissed the complaint, that portion of the order is not appealable as of right. However, in the interest of deciding appeals on the merits, the Appellate Division may deem the notice of appeal to be a motion for leave to appeal, and grant leave.

BAC Home Loan Servicing, LP v. Moreno, NY Slip Op 02377 (1st Dep't April 23, 2020)

Here is the decision.

CPLR 5015[a][2].

Defendants failed to demonstrate their entitlement to relief from the judgment on the ground of newly discovered evidence that could not have been discovered before the entry of the judgment, as their submissions consisted of tax maps and floor plans that were publicly filed years before plaintiff moved for summary judgment.

P360 Spaces, LLC v. Orlando, NY Slip Op 02384 (1st Dep't April 23,2020)

Here is the decision.