Appellate practice.

An order denying a motion to compel a witness to answer questions propounded at a deposition is effectively a ruling made in the course of the deposition itself, and is not appealable as of right.

Gargano v. Langman, NY Slip Op 04923 (2d Dep't September 16, 2020)

Here is the decision.

Appellate practice.

The limited appeal from the order must be dismissed, pursuant to CPLR 5511, on the ground that the defendant-appellant is not aggrieved by the portion of the order appealed from. While the Supreme Court denied several branches of the defendant's motion, the appeal is based solely on the branch of the motion that the court granted. As the successful party, the defendant obtained the full relief sought in that branch of his motion, and, therefore, has no grounds to appeal from that portion of the order.

Federal Natl. Mtge. Assn. v. Lautman, NY Slip Op  04921 (2d Dep't September 16, 2020)

Here is the decision.

A general release and waiver of liability.

The defendant established its prima facie entitlement to judgment as a matter of law dismissing the complaint by presenting a general release and waiver of liability signed by the plaintiff. If the language of the release is clear and unambiguous, it is binding on the parties and is a complete bar to an action on a claim which is the subject of the release. 

Durand v. Salvation Army, NY Slip Op 04919 (2d Dep't September 16, 2020)

Here is the decision.

CPLR 305(c).

In the exercise of its discretion, the court may allow a summons or proof of service of a summons to be amended in the absence of prejudice to a substantial right of a party against whom the summons issued. The motion to cure a misnomer in the description of a party-defendant should be granted, even if the statute of limitations has run, where (1) there is evidence that the correct defendant has been properly served, and (2) the correct defendant would not be prejudiced by allowing the amendment.

Duncan v. Emerald Expositions, LLC, NY Slip Op 04918 (2d Dep't September 16, 2020)

Here is the decision.

Constructive trusts.

The purpose of a constructive trust is to prevent unjust enrichment. It is an equitable remedy that may be imposed when property has been acquired in such circumstances that the holder of the legal title may not in good conscience retain the beneficial interest.

Derosa v. Estate of Iannazzo, NY Slip Op 04917 (2d Dep't September 16, 2020)

Here is the decision.

A late notice of claim.

The Appellate Division affirmed the denial of the plaintiffs' cross motion for leave to amend the notice of claim or to serve a late notice of claim. The plaintiffs' proposed amendments add substantive new facts and new theories of liability not set forth in the original notice of claim and which are not permitted as late filed amendments to a notice of claim under General Municipal Law § 50-e(6).

C. D. v. Goshen Cent. Sch. Dist., NY Slip Op 04916 (2d Dep't September 16, 2020)

Here is the decision.

Rulings, decisions, and orders.

A decision resolves an issue on its merits, but does not order any party to do or refrain from doing anything. An order implements a decision by requiring a party to act or refrain from acting consistent with the decision. Decisions may not be appealed, although appeals may be taken from orders and final judgments, pursuant to  CPLR 5501[a] and 5512[a]. A ruling is not a product of a motion made on notice, but a mere determination of an issue made during depositions, trials, or other proceedings. Rulings are not appealable, but rulings that have been objected to and preserved may be reviewed on an appeal from a final judgment, pursuant to 5501[a][3].

Charalabidis v. Elnagar, NY Slip Op 04913 (2d Dep't September 16, 2020)

Here is the decision.

Failure to appear at a calendar call.

Where the plaintiff appears but the defendant does not, the court may grant judgment by default or order an inquest, pursuant to 22 NYCRR 202.27[a]. Where the defendant appears but the plaintiff does not, the court may dismiss the action and order a severance of counterclaims or cross claims, pursuant to 202.27[b]. If neither party appears, the court may make such an order as it deems just, pursuant to 202.27[c].

Charalabidis v. Elnagar, NY Slip Op 04912 (2d Dep't September 16, 2020)

Here is the decision.

Leave to amend a pleading.

The motion should be freely granted, absent prejudice or surprise directly resulting from the delay in seeking leave, unless the proposed amendment is palpably insufficient or patently devoid of merit, pursuant to CPLR 3025(b).

Bridgehampton Nat'l Bank v. D & G Partners, L.P., NY Slip Op 04911 (2d Dep't September 16, 2020)

Here is the decision.

Conditions precedent.

A condition precedent is an act or event, other than a lapse of time, which, unless the condition is excused, must occur before there is a duty to perform a promise set forth in the agreement. Here, there is a condition precedent to the formation or existence of the contract itself, so that there is no contract unless and until the condition occurs.

Bedoya v. Rodriguez, NY Slip Op 04910 (2d Dep't September 16, 2020)

Here is the decision.

Summary judgment in a mortgage foreclosure action.

In support of its motion, the plaintiff submitted two different versions of the mortgage note, only one of which was indorsed in blank. This evidence is insufficient to establish, prima facie, the plaintiff's standing. The motion is denied.

Bank of N.Y. Mellon v. Itkowitiz, NY Slip Op 04909 (2d Dep't September 16, 2020)

Here is the decision.

Proper service.

A process server's affidavit establishes, prima facie, the method of service, and gives rise to a presumption of proper service. A defendant's sworn statement of specific facts to rebut the statements in the affidavit of service necessitates an evidentiary hearing. However, no hearing is required where the defendant fails to swear to specific facts that rebut the statements in the affidavit of service.

Ahluwalia v. Seecharan, NY Slip Op 04907 (2d Dep't September 16, 2020)

Here is the decision.

Attorneys' fees.

The Supreme Court was not required to hold an evidentiary hearing before awarding attorneys' fees to the plaintiff, as the defendant, pursuant to the parties' stipulation, had consented to the resolution of the issue by motion. By so stipulating, the defendant waived his right to a hearing.

Nieves-Iglesias v. Iglesias, NY Slip Op 04847 (2d Dep't September 2, 2020)

Here is the decision.

The admissibility of police reports.

Pursuant to CPLR 4518(a), a police accident report is admissible as a business record as long as the report is made based on the officer's personal observations, and while carrying out police duties. Where information is not based on the officer's personal observations, it may be admissible as a business record if the person giving the information to the officer was under a business duty to relate the facts to the officer, or if the statement qualifies under another hearsay exception, such as an admission. Each person in the chain producing the record, from the initial declarant to the final entrant, must be acting within the course of regular business conduct, or the declaration must meet the test of some other hearsay exception.

Country-Wide Ins. Co. v. Lobello, NY Slip Op 04836 (2d Dep't September 2, 2020)

Here is the decision.

Article 78.

Prohibition is an extraordinary remedy that is available only where there is a clear legal right, and then only when a court - in cases where judicial authority is challenged - acts or threatens to act either without jurisdiction or in excess of its authorized powers. The extraordinary remedy of mandamus will lie only to compel the performance of a ministerial act, and only where there exists a clear legal right to the relief.

Abdul-Malik v. Livote, NY Slip Op 04834 (2d Dep't September 2, 2020)

Here is the decision.

A motion for leave to renew.

The motion must be based on new facts not offered on the prior motion which would change the prior determination, and the movant must submit a reasonable justification for the failure to present such facts on the prior motion, pursuant to CPLR 2221[e][2]. A motion for leave to renew is not a second chance freely given to a party who has not exercised due diligence in making its first factual presentation.

Leader v. Steinway, Inc., NY Slip Op 04833 (2d Dep't September 2, 2020)

Here is the decision.

CPLR 317.

A defendant who has been served with a summons other than by personal delivery but who has not appeared may be allowed to defend the action upon a finding that it did not personally receive notice of the summons and complaint in time to defend and that it has a potentially meritorious defense. Service on a corporation through delivery of process to the Secretary of State is not personal delivery to the corporation.  A defendant moving pursuant to CPLR 317 to vacate a default need not establish a reasonable excuse for the delay in answering or appearing.

Leader v. Steinway, Inc., NY Slip Op 04832 (2d Dep't September 2, 2020)

Here is the decision.

Appellate practice.

The appeal from so much of the order as granted that branch of the defendant's motion which was for summary judgment dismissing the complaint insofar as asserted against it must be dismissed. The plaintiff failed to oppose that motion and, therefore, is precluded from challenging the propriety of that order on appeal.

Leader v. Steinway, Inc., NY Slip Op 04831 (2d Dep't September 2, 2020)

Here is the decision.

Appellate practice.

No appeal lies from an order entered upon the default of the appealing party, pursuant to CPLR 5511.

Leader v. Steinway, Inc., NY Slip Op 04831 (2d Dep't September 2, 2020)

Here is the decision.

Appellate practice.

Intermediate orders that necessarily affected the final judgment are brought up for review and may be considered on the appeal.

Goshen Mtge., LLC v. DePalma, NY Slip Op 04830 (2d Dep't September 2, 2020)

Here is the decision.

Extending the time for service of process.

While CPLR 306-b requires that service be effected within 120 days of the commencement of the action, it also provides that "[i]f service is not made upon a defendant within the time provided in this section, the court, upon motion, shall dismiss the action without prejudice as to that defendant, or upon good cause shown or in the interest of justice, extend the time for service." A motion to extend the time for service may be granted on good cause shown or in the interest of justice, which are separate and independent standards. To establish good cause, a plaintiff must demonstrate reasonable diligence in attempting service. If good cause for an extension is not established, a court must consider the broader interest of justice standard. In applying that standard, the court must analyze the factual setting and the parties' competing interests.  It may also consider diligence, or the lack thereof, along with any other relevant factor in making its determination, including expiration of the Statute of Limitations, the meritorious nature of the cause of action, the length of delay in service, the promptness of a plaintiff's request for the extension of time, and prejudice to the defendant.

Fink v. Dollar Mart, NY Slip Op (2d Dep't September 2, 2020)

Here is the decision.

Discovery disputes.

The resolution of discovery disputes is within the sound discretion of the motion court. Striking a pleading may be appropriate where there is a clear showing that the failure to comply with discovery demands is willful or contumacious, pursuant to  CPLR 3126[3]. Willful and contumacious conduct may be inferred from a party's repeated failure to comply with court-ordered discovery, coupled with inadequate explanations for the failures to comply, or a failure to comply with court-ordered discovery over an extended period of time.

Ewa v. City of New York, NY Slip Op 04825 (2d Dep't September 2, 2020)

Here is the decision.

Appellate practice.

No appeal lies as of right from an order that does not decide a motion made on notice, pursuant to CPLR 5701(a)(2).

Deutsche Bank Natl. Trust Co. v. Brown, NY Slip Op 04824 (2d Dep't September 2, 2020)

Here is the decision.

Inquests.

At the inquest, the sole issue is the extent of plaintiff's damages, and the inquest court should not consider the question of whether the defsndant caused the damages. At an inquest to ascertain damages upon a defendant's default, the plaintiff may submit proof by written sworn statements of the witnesses, pursuant to  CPLR 3215[b] and 22 NYCRR 202.46[b]. However, if the defaulting defendant gives notice that he will appear at the inquest, the plaintiff must make the witnesses available for cross-examination.

Castaldini v. Walsh, NY Slip Op 04822 (2d Dep't September 2, 2020)

Here is the decision.

Collateral estoppel.

Collateral estoppel precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party or those in privity, regardless of whether the courts or the causes of action are the same. Collateral estoppel allows the determination of an issue of fact or law raised in a subsequent action by reference to a previous judgment on a different cause of action in which the same issue was necessarily raised and decided.

Broder v. Pallotta & Assoc. Dev., Inc., NY Slip Op 04821 (2d Dep't September 2, 2020)

Here is the decision.

Appellate practice.

On an appeal from a final judgment, the Appellate Division may review any intermediate order which necessarily affects the judgment, including any order that was adverse to the respondent on appeal and which, if reversed, would entitle the respondent to prevail, pursuant to  CPLR 5501[a][1].

Badr v. Blumberg, NY Slip Op 04819 (2d Dep't September 2, 2020)

Here is the decision.

Trusts.

Pursuant to § 17(e) of the Restatement (Second) of Trusts, a trust may be created by "a promise by one person to another person whose rights thereunder are to be held in trust for a third person."

Zachariou v. Manios, NY Slip Op 04811 (1st Dep't August 27, 2020)

Here is the decision.

Choice of law.

Choice of law provisions typically apply to substantive issues, not procedural ones. However, the question of whether a plaintiff has standing is a procedural matter, and procedural matters are governed by the law of the forum state. Here, the motion court properly applied New York law to determine whether plaintiff has standing.

Zachariou v. Manios, NY Slip Op 04811 (1st Dep't August 27, 2020)

Here is the decision.

Contract damages.

The purpose of contract damages is to put the non-breaching party in the position it would have been in if the other party had performed.

U-Trend N.Y. Inv. L.P. v. US Suite LLC, NY Slip Op 04810 (1st Dep't August 27, 2020)

Here is the decision.

The reckless disregard standard of care.

The reckless disregard standard of care, codified in Vehicle and Traffic Law § 1104(e), applies when a driver of an authorized emergency vehicle involved in an emergency operation engages in the specific conduct exempted from the rules of the road by § 1104(b). Any other injury-causing conduct of such a driver is governed by the principles of ordinary negligence.

Edwards v. Menzil, NY Slip Op 04728 (2d Dep't August 26, 2020)

Here is the decision.