Article 78 proceedings.

The court's inquiry is limited to the question of whether the arbiter's determination is arbitrary, capricious, or lacking a rational basis.

Matter of Prismatic Dev. Corp. v. New York City Tr. Auth., NY Slip Op 07072 (1st Dep't December 16, 2021)

Here is the decision.

Bills of particulars.

What the plaintiff styles as a supplemental bill of particulars asserting a new theory of liability is actually an amended bill of particulars. It is a nullity because it was served after note of issue, after defendant filed its summary judgment motion, and without leave of court.

Stovall v. Lenox Hill Hosp., NY Slip Op 07004 (1st Dep't December 16, 2021)

Here is the decision.

Common-law indemnification.

A party who is held vicariously liable for another party's negligence may seek to recover damages from the wrongdoer. 

Cobblestone Foods, LLC v. Branded Concept Dev., Inc., NY Slip Op 06984 (2d Dep't December 15, 2021)

Here is the decision.

Statutory interpretation.

The primary consideration is to discern and give effect to the Legislature's intention, and the statutory text is the surest indicator of legislative intent. Courts should construe unambiguous language so as to give effect to its plain meaning. When the plain language of the statute is precise and unambiguous, it is determinative.

Bank of Am., N.A. v. Kessler, NY Slip Op 06979 (2d Dep't December 15, 2021)

Here is the decision.

Civil usury.

A person may not charge, take, or receive any money as interest on a loan at a rate exceeding the maximum permissible interest rate of 16% per year. A usurious contract is void and relieves the borrower of the obligation to repay principal and interest thereon.

Adler v. Marzario, NY Slip Op 06977 (2d Dep't December 15, 2021)

Here is the decision.

CPLR 2221[e][2].

A motion for leave to renew will be denied where the purported new facts are not material and would not change the prior determination.

Casillas-Reyes v. John, NY Slip Op 06943 (1st Dep't December 14, 2021)

Here is the decision.

Christmas 1943.

Christmas Eve 1964.

Limitations period on an incidental claim.

Plaintiff's claim for fraud is incidental to his conversion claim, and so it is subject to the three-year limitations period as applicable to the conversion claim.

Lyman v. J.P. Morgan Chase & Co., NY Slip Op 06954 (1st Dep't December 14, 2021)

Here is the decision.

CPLR 3123.

A notice to admit is limited to admissions regarding facts as to which the party requesting the admission reasonably believes there can be no substantial dispute.

Marchese v. Aston, NY Slip Op 06959 (1st Dep't December 14, 2021)

Here is the decision.

Indemnification.

A party may not recover in common-law indemnity for its own breach of contract. 

Shah v. 20 E. 64th St., LLC, NY Slip Op 06071 (1st Dep't December 14, 2021)

Here is the decision.

A dismissed trip and fall action.

The City established prima facie that it adequately designed, constructed, and maintained its roadway in a reasonably safe condition, including the median barrier at issue. Plaintiff's expert opined that good and accepted engineering and transportation industry safety practices required that the barrier have reflective tape or paint on it and that the opening be enlarged or the crosswalk narrowed. However, the opinion is unsupported by a published standard or evidence that the practices are generally accepted. Moreover, plaintiff's photograph, which purported to show the lighting conditions on the night of the accident, was unauthenticated, as plaintiff failed to aver that the photograph was taken at the actual location, he had disclaimed having any photographs of the location at his deposition 18 months after the accident, and another witness testified that he was unsure which intersection was depicted.

Warshak v. City of New York, NY Slip Op 06974 (1st Dep't December 14, 2021)

Here is the decision.

CPLR 309.

"Personal service upon an infant shall be made by personally serving the summons within the state upon a parent or any guardian or any person having legal custody or, if the infant is married, upon an adult spouse with whom the infant resides, or, if none are within the state, upon any other person with whom he resides, or by whom he is employed." Here, the process server attested that he served the infant-defendant pursuant to CPLR 308(2) by delivering a copy of the summons and complaint to the housekeeper at the infant's dwelling place and then completing the requisite mailing. Thus, the action is jurisdictionally defective as against the infant. Because the Supreme Court never had personal jurisdiction over the infant, it was improper to amend the summons and complaint to substitute the guardian, in her representative capacity, as a party-defendant in the infant's place.

US Bank N.A. v. McGown, NY Slip Op 06879 (2d Dep't December 8, 2021)

Here is the decision.

Apellate practice.

The Appellate Division will not consider an argument that presents factual issues that were not submitted to the motion court.

Hess v. EDR Assets LLC, NY Slip Op 06920 (1st Dep't December 9, 2021)

Here is the decision.

Arbitrability.

The courts will decide the issue of arbitrability unless there is a clear and unmistakable agreement to arbitrate the issue. Here, there is such an agreement because the parties incorporated the American Arbitration Association's rules into their arbitration provision.

Schindler v. Cellco Partnership, NY Slip Op 06931 (1st Dep't December 9, 2021)

Here is the decision.

Vacating an arbitration award.

A court may vacate the award only if it violates strong public policy, is irrational, or exceeds a specifically enumerated limitation on the arbitrator's power, pursuant to CPLR 7511[b][1] [iii]. Under the Federal Arbitration Act (FAA), the arbitrator may be deemed to have exceeded his powers by manifestly disregarding the law, but only where some egregious impropriety is apparent.

Matter of Anderson v. AHS (At Home Solutions, LLC), NY Slip Op 06917 (1st Dep't December 9, 2021)

Here is the decision.

Implied easements.

The easement may be implied from pre-existing use on a showing of three elements: 1) unity and subsequent separation of title; (2) prior to separation, the claimed easement must have been so long continued and obvious or manifest as to show that it was meant to be permanent; and (3) the use must be necessary to the beneficial enjoyment of the land retained, and not merely convenient. The law does not favor implied easements.

Bonadio v. Bonadio, NY Slip Op 06830 (2d Dep't December 8, 2021)

Here is the decision.

Summary jdugement and discovery.

The Appellate Division rejected defendant's argument that summary judgment was premature on the ground that additional discovery was necessary. The action was commenced in 2017, and defendant did not move to strike the note of issue that was filed in 2019. Discovery is closed, and, in any event, the record supports plaintiff's assertion that defendant was afforded every opportunity to engage in meaningful discovery, but chose not to do so.

Signature Fin. LLC v. Garber, NY Slip Op 06784 (1st Dep't December 2, 2021)

Here is the decision.

Appellate practice.

Plaintiff's claims are not reviewable because he expressly abandoned them, on the record in open court and in a submission required by the court during motion practice. 

Sitt v. Sitt, NY Slip Op 06785 (1st Dep't December 2, 2021)

Here is the decision.

A defendant's motion to exclude the testimony of plaintiff's expert.

The motion is denied because the objections to the expert's qualifications and conclusions go to the weight and not the admissibility of the expert's testimony.

SQN Asset Servicing, LLC v. Shunfeng Intl. Clean Energy Ltd., NY Slip Op 06786 (1st Dep't December 2, 2021)

Here is the decision.

The best evidence rule.

The rule requires the production of an original writing where its contents are in dispute and sought to be proven. Under an exception to the rule, secondary evidence of the contents of an unproduced original may be admitted if the trial court finds that the proponent has sufficiently explained the unavailability of the original and that the secondary evidence reliably and accurately portrays the original. The fact-finder will determine the weight to be given to the secondary evidence. 

Casanas v. Carlei Group, LLC, NY Slip Op 06787 (1st Dep't December 2, 2021)

Here is the decision.

Proper service.

A process server's affidavit constitutes a prima facie showing of proper service. However, when a defendant submits a sworn denial of receipt of service containing specific facts to refute the statements in the affidavit, the prima facie showing is rebutted and the plaintiff must establish personal jurisdiction by a preponderance of the evidence at a hearing. Here, the affidavit reflects that the defendant was served pursuant to CPLR 308(2)  by delivery of the summons and complaint to a person of suitable age and discretion at the mortgaged premises, followed by the required mailing to the address of the premises. The affidavit sets forth a detailed description of the person of suitable age and discretion, and states that the person represented to the process server that the premises was the defendant's "dwelling house." The defendant rebutted the presumption of valid service with an affidavit in which he averred that the premises was not his dwelling house or usual place of abode, and that his residence was located at a different specified address. He further averred that he had no knowledge of anyone being served on his behalf, and that he had not received a copy of the summons and complaint. Under these circumstances, a hearing on the issue of whether the defendant was properly served is warranted.

Bank of N.Y. v. Dutan, NY Slip Op 06668 (2d Dep't December 1, 2021)

Here is the decision.

CPLR 5015(a)(4).

Although a party moving to vacate a default must normally demonstrate a reasonable excuse and a meritorious defense, the movant is relieved of that obligation when lack of personal jurisdiction is asserted as the ground for vacatur.

Bank of N.Y. v. Dutan, NY Slip Op 06668 (2d Dep't December 1, 2021)

Here is the decision.

CPLR 3215(c).

"If the plaintiff fails to take proceedings for the entry of judgment within one year after the default, the court shall not enter judgment but shall dismiss the complaint as abandoned, without costs, upon its own initiative or on motion, unless sufficient cause is shown why the complaint should not be dismissed." A defendant may waive the right to seek dismissal by serving an answer or taking any other steps which may be viewed as a formal or informal appearance. Here, the defendant waived the right to seek dismissal by cross-moving for a declaration that she was not in default and for leave to file a late answer, without seeking to dismiss the complaint as abandoned.

HSBC Bank USA, N.A. v. Ranasinghe, NY Slip Op 06610 (2d Dep't November 24, 2021)

Here is the decision.

December 7, 1941.

CPLR 5001(a).

The statute requires that there be a "sum awarded" upon which interest can be calculated. However, a replevin plaintiff may recover both possession of his property and damages for its wrongful detention, and where the property is merchandise kept for sale which has not depreciated in value, the measure of damages is interest on the value from the time of the wrongful taking. The rationale for awarding interest is that if the defendant had not taken the plaintiff's property, the plaintiff could have sold it at any time and then he would have had its value and whatever he could have earned on that value.

Reif v. Nagy, NY Slip Op 06659 (1st Dep't November 30, 2021)

Here is the decision.

CPLR 5511.

Defendant's failure to submit timely papers in opposition to plaintiff's motion for summary judgment, or obtain permission to submit late papers, is a default on the motion. The remedy is not an appeal, but a motion to vacate the default.

U.S. Bank N.A. v. Tiburcio, NY Slip Op 06662 (1st Dep't November 30, 2021)

Here is the decision.

CPLR 3211(a)(7).

Where evidentiary material is submitted and considered on a motion to dismiss for failure to state a claim, and the motion is not converted into one for summary judgment, the question is whether the plaintiff has a cause of action, not whether the plaintiff has stated one. The motion will be denied absent a showing that a material fact as claimed by the plaintiff is not a fact, and unless the purported fact is undisputed.

Halo v. Schmidt, NY Slip Op 06609 (2d Dep't November 24, 2021)

Here is the decision.

CPLR 317.

A defendant who has been served with a summons and complaint other than by personal delivery may defend the action upon the court's finding that the defendant did not personally receive notice of the summons and complaint in time to defend and has a potentially meritorious defense. The mere denial of receipt of the summons and complaint is insufficient to establish lack of actual notice.

Citimortgage v. Stuckova, NY Slip Op 06605 (2d Dep't November 24, 2021)

Here is the decision.

A motion to vacate a stipulation of settlement.

The motion court providently exercised its discretion in denying plaintiff's motion. The record includes a so-ordered stipulation signed by counsel following an allocution by plaintiff. In support of the motion, plaintiff only offers self-serving affidavits that he was debilitated when he entered into the settlement. Plaintiff's motion papers include a surgical report showing that he was debilitated when he received emergency medical treatment, five weeks after entering into the settlement. The report is neither admissible nor probative, as it is unaffirmed and uncertified, and it offers no opinion as to whether plaintiff was debilitated at the time of the settlement. There is nothing in the allocution transcript to indicate that plaintiff did not understand the proceedings.

Sultan v. Connery, NY Slip Op 06567 (1st Dep't November 23, 2021)

Here is the decision.

A special employer's liability on a Labor Law claim.

The action, as against a special employer, is barred by Workers' Compensation Law §§ 11 and 29. There is a rebuttable presumption against special employment. In order to rebut the presumption, the defendant must show  conclusively that it had assumed exclusive control over the manner, details, and ultimate result of the employee's work.

Winkler v. Halmar Intl., LLC, NY Slip Op 06569 (1st Dep't November 23, 2021)

Here is the decision.

CPLR 5001(a).

Where plaintiff commenced the action seeking equitable relief, he is not entitled to interest as if he had asserted a breach of contract claim.

Vogel v. Vogel, NY Slip Op 06568 (1st Dep't November 23, 2021)

Here is the decision.

A claim of tortious interference with contract.

The essential elements are: (1) the existence of a valid contract between plaintiff and a third party; (2) the defendant's knowledge of that contract; (3) the defendant's intentional procuring of the breach; and (4) damages.

DeLibero v. Duloc, NY Slip Op 06571 (1st Dep't November 23, 2021)

Here is the decision.

The merger doctrine in a real estate transaction.

Contractual provisions do not survive closing and transfer of the deed unless the agreement expressly states otherwise.

19 Stanton St. LLC v. 19 Stanton Realty LLC, NY Slip Op 06533 (1st Dep't November 23, 2021)

Here is the decision.

CPLR 3215(c).

The language of the statute is not discretionary, but mandatory, as it states that courts "shall" dismiss as abandoned claims for which a default judgment is not sought within the requisite one-year period. 

Deutsche Bank Natl. Trust Co. v. Watson, NY Slip Op 06340 (2d Dep't November 17, 2021)

Here is the decision.

CPLR 3215[f].

A movant for a default judgment must submit proof of service of the summons and complaint, proof of the facts constituting the claim, and proof of the defendant's failure to answer or appear. In order to defeat the motion, the defendant must show either that there was no default, or that it has a reasonable excuse for its delay and a potentially meritorious defense.

Deutsche Bank Natl. Trust Co. v. Pezzola, NY Slip Op 06339 (2d Dep't November 17, 2021)

Here is the decision.

Thanksgiving 1943.

Family Ct Act § 812 (2)(b).

"[A] family court proceeding is a civil proceeding and is for the purpose of attempting to stop the violence, end the family disruption and obtain protection." In order to support a finding that a respondent has committed a family offense, the petitioner must prove the allegations by a fair preponderance of the evidence. In deciding a motion to dismiss a petition, the allegations in the petition, as well as the petitioner's evidence, must be accepted as true and given the benefit of every reasonable inference which may be drawn therefrom.

Matter of Phillip D.S. v. Shamel B., NY Slip Op 06460 (1st Dep't November 18, 2021)

Here is the decision.

Contract law.

A contract is voidable on the ground of duress when it is established that the party making the claim was forced to agree to the contract by means of a wrongful threat precluding the exercise of free will. In order to rescind an agreement on the ground of overreaching, a plaintiff must demonstrate both overreaching and unfairness. In determining whether there has been overreaching, the court may examine the terms of the agreement and the surrounding circumstances. However, if the execution of the agreement is fair, no further inquiry will be made.

Barone v. Barone, NY Slip Op 06338 (2d Dep't November 17, 2021)

Here is the decision.

A Labor Law § 240(1) cause of action.

A fall from a scaffold, in and of itself, does not establish that the plaintiff was not provided with proper protection. Here, the plaintiff relies solely on his General Municipal Law § 50-h hearing testimony and his deposition testimony, which merely establish that he fell from a scaffold. The plaintiff fails to address whether there were scaffold rails, possible tie-off points for a harness, or some alternative fall protection. Without more, the plaintiff's testimony that he "moved [his] foot" to the left, causing him to step off of the scaffold and into an "empty space," and that "there was nothing there because [he] stepped on it and . . . thought it was something solid" is insufficient.

Torres v. New York City Hous. Auth., NY Slip Op 06207 (2d Dep't November 10, 2021)

Here is the decision.

General Municipal Law § 50-e.

As a prerequisite to suing individual municipal employees, they must be named in the notice of claim.

Wiggins v. City of New York, NY Slip Op 06035 (1st Dep't November 16, 2021)

Here is the decision.

CPLR 2221(e).

Plaintiff's motion for leave to renew was denied because the purported new facts on which the motion was based was a notice of appearance that had been filed four years earlier by defendant's prior attorney, who was suspended and then disbarred. Plaintiff offered no reasonable justification for its failure to find and timely present this document, which was a matter of public record in the court file, in opposition to defendant's underlying motion to dismiss.

NRZ Pass-Through Trust IV v. Rouge, NY Slip Op 06095 (1st Dep't November 9, 2021)

Here is the decision.

CPLR 511(a).

The defendant shall serve with the answer, or prior to service of the answer, a demand for a change of place of trial on the ground that the designated county is not a proper county. Subsection (b) permits the defendant to move to change the place of trial within fifteen days after service of the demand. Where the defendant fails to make a timely demand for a change of venue on the ground that the venue designated by the plaintiff was improper, or to make a timely motion on that ground, the defendant is not entitled to a change of venue as of right, and the motion is addressed to the court's discretion.

Suki Bus., Inc. v. East Coast Realtors, Inc., NY Slip Op 06205 (2d Dep't November 10, 2021)

Here is the decision.

A claim for negligent hiring and training.

A necessary element of the cause of action is that the employer knew or should have known of the employee's propensity for the conduct which caused the injury.

Sheppard v. United States Tennis Assn. Inc., NY Slip Op 06204 (2d Dep't November 10, 2021)

Here is the decision.

CPLR 2104.

Emails which reduce the parties' settlement agreement to a writing are "subscribed" within the meaning of the statute, and, therefore, constitute a binding stipulation. The sender is identifiable, and there is no contention that defendant's counsel did not intentionally send the emails.

Rawald v. Dormitory Auth. of the State of N.Y., NY Slip Op 06109 (1st Dep't November 9, 2021)

Here is the decision.

CPLR 3212(f).

Plaintiff's assertion that the motion to dismiss is premature because additional discovery is necessary is unavailing. Plaintiff fails to offer anything other than conjecture to support this position.

Rios v. City of New York, NY Slip Op 06110 (NY Slip Op 06110 (1st Dep't November 9, 2021)

Here is the decison.

Appellate practice.

In this Article 78 action, petitioner's claim of agency bias is unpreserved, and the Appellate Divison has no discretionary authority or interest of justice jurisdiction in reviewing the agency's determination.

Matter of 383 8th LLC v. City of New York, NY Slip Op 06027 (1st Dep't November 4, 2021)

Here is the decision.

The doctrine of governmental immunity.

The New York State Division of Human Rights' investigation of the disability discrimination complaint constitutes a quasi-judicial discretionary action taken during the performance of governmental functions, and, therefore, the agency is shielded from liability.

Meehan of Huntington, Inc. v. State of New York, NY Slip Op 05778 (1st Dep't October 21, 2021)

Here is the decision.

22 NYCRR 202.27.

When plaintiff fails to appear for a mandatory court conference, regardless of whether the court issues an order of dismissal, the action is dismissed. 

HSBC Mtge. Corp. (USA) v. Marble Hill at 29, Inc., NY Slip Op 05922 (1st Dep't October 28, 2021)

Here is the decision.

Service of process and personal jurisdiction.

The court does not have personal jurisdiction over a defendant when a plaintiff fails to properly effect service of process. Where process has not been served upon a defendant, all subsequent proceedings are rendered null and void.

Wang v. Stony Brook Univ. Hosp., NY Slip Op 05891 (2d Dep't October 27, 2021)

Here is the decision.

The continuous treatment doctrine.

In order to implicate the tolling provision, the understanding that treatment is ongoing must be shared by both physician and patient.

Caraballo v New York Presbyt. Hosp./Weill Cornell Med. Ctr., NY Slip Op 05920 (1st Dep't October 28, 2021)

Here is the decision.

A default on a real estate contract.

This action is brought by plaintiff-buyer, who entered into a written agreement to purchase a cooperative apartment from defendants-sellers. Plaintiff seeks the return of a down payment that plaintiff paid to secure her performance under the parties' contract. Defendants retained the deposit when plaintiff failed to close. Supreme Court granted plaintiff's motion for summary judgment in order to prevent unjust enrichment. The Appellate Division reversed. A claim for unjust enrichment will not stand in the face of the written agreement. An appeal to equity is unavailing, since it is settled law that a vendee who defaults on a real estate contract without lawful excuse cannot recover the down payment.

Jennings v. Silfen, NY Slip Op 05923 (1st Dep't October 28, 2021)

Here is the decision.

Referees.

Referees derive their authority from an order of reference by the court, which can be only be made upon the parties' consent. Absent consent, the referee has the power only to hear and report his findings. CPLR 4403 requires a motion to reject a referee's report to be made within 15 days of the filing of the report, while 22 NYCRR 202.44(a) requires the defendant to move to confirm or reject the report within 30 days after notice of the filing of the report.

HSBC Bank USA, N.A.. v. Sewell, NY Slip Op 05850 (2d Dep't October 27, 2021)

Here is the decision.

Appellate practice.

No appeal lies from an order denying reargument.

Bank of Am., N.A. v. Alrasheed, NY Slip Op 05848 (2d Dep't October 27, 2021)

Here is the decision.

Inadmissible hearsay.

The court refused to admit into evidence three statements allegedly made by plaintiff and recorded in his hospital records about the manner in which his accident happened. These statements are not admissible as admissions against interest, since the evidence adduced outside the jury's presence failed to establish that plaintiff was the source of the information contained in one of the statements, and defendants failed to produce the interpreters through whom the other two statements were made to confirm that they were objective and competent and that their interpretations were accurate. The statements are not admissible under the business records exception to the hearsay rule, since they are not germane to the treatment or diagnosis of plaintiff's injuries. 

Nassa v. 1512 LLC, NY Slip Op 05927 (1st Dep't October 28, 2021)

Here is the decision.

Forum selection clauses.

Where the record reflects a sufficiently close relationship among defendants so as to make the application of the clause foreseeable, a separate minimum-contacts analysis is unnecessary.

Oberon Sec., LLC v. Titanic Entertainment Holdings LLC, NY Slip Op 05929 (1st Dep't October 28, 2021)

Here is the decision.

The initial burden on a summary judgment motion.

Where the movant fails to satisfy its prima facie burden of establishing entitlement to judgment as a matter of law, it is unnecessary to consider the sufficiency of the opposition papers. 

Lampert v. County of Suffolk, NY Slip Op 05852 (2d Dep't October 27, 2021)

Here is the decision.

CPLR 3211(a)(5).

In opposition to the motion to dismiss, a plaintiff may submit affidavits to remedy defects in the complaint and preserve claims that are inartfully pleaded but potentially meritorious.

Jacobson Dev. Group, LLC v. Grossman, NY Slip Op 05851 (2d Dep't October 27, 2021)

Here is the decision.

CPLR 3025.

A party may amend a pleading, by leave of court, at any time, before or after judgment, so as to conform the pleading to the evidence. Applications to amend pleadings are within the sound discretion of the court, and leave shall be freely given upon such terms as may be just, even if the amendment substantially alters the theory of recovery.

Americore Drilling & Cutting, Inc. v. EMB Contr. Corp., NY Slip Op 05845 (2d Dep't October 27, 2021)

Here is the decision.

Derivative claims.

Defendant's motion to dismiss the complaint was granted on the ground that plaintiff lacks standing to assert the claims because they are derivative, not direct. Under New York law, a shareholder lacks standing to pursue a direct cause of action to redress wrongs suffered by the corporation. Such claims must be asserted as derivative claims, for the benefit of the corporation. In determining whether a claim is derivative or direct, a court should consider (1) whether the corporation or the individual shareholders suffered the alleged harm,  and (2) whether the corporation or the individual shareholders would receive the benefit of any recovery or other remedy.

Sajust, LLC v. Mendelow, NY Slip Op 05835 (1st Dep't October 26, 2021)

Here is the decision.

Jury verdicts.

A verdict for the defendant may not be set aside as contrary to the weight of the evidence unless the evidence preponderates so heavily in the plaintiff's favor that it could not have been reached on any fair interpretation of the evidence. Issues of credibility are for the jury, and the jury's resolution of those issues is given deference. Where there is conflicting expert testimony, the jury is entitled to accept one expert's opinion and reject that of another expert.

Abbene v. Conetta, NY Slip Op 05682 (2d Dep't October 20, 2021)

Here is the decision.

CPLR 3012(d).

The statute authorizes an extension of time to appear and plead upon such terms as may be just, and upon a showing of reasonable excuse for the delay or default. Here, the delay in filing an answer was occasioned by law office failure, which constitutes good cause. Defendant showed an intent to defend when it sought to extend its time to answer by stipulation. Plaintiff has not shown that he would be prejudiced, and New York has a strong policy in favor of litigating matters on the merits. 

Velasquez v. New York City Tr. Auth./MTA, NY Slip Op 05803 (1st Dep't October 21, 2021)

Here is the decision.

CPLR 2001.

At any stage in an action, the court may permit a mistake, omission, defect, or irregularity to be corrected upon such terms as may be just, or, if a party's substantial right is not prejudiced, the mistake, omission, defect, or irregularity shall be disregarded. 

Wilmington Sav. Fund Socy., FSB v. Matamoro, NY Slip Op 05741 (2d Dep't October 20, 2021)

Here is the decision.

Contract interpretation.

Plaintiff's motion to dismiss so much of the counterclaim as sought damages in excess of $2 million and third-party defendants' motion to dismiss the third-party complaint were granted. The contractual provision that, in the event of plaintiff's default, defendants are entitled to retain the deposit as liquidated damages unambiguously refers to the deposit already made and held in escrow, as a party cannot retain something that it has not already acquired. As to the third-party complaint against plaintiff's members in their individual capacities, the pleadings fail to allege facts sufficient to demonstrate the inequity, fraud, or malfeasance necessary to sustain a claim to pierce the corporate veil.  The third-party complaint also fails to plead any facts to substantiate the conclusory allegations of a scheme to undercapitalize plaintiff. To the extent that the third-party complaint alleges that plaintiff is undercapitalized and might not be able to pay a judgment, third-party plaintiffs could not be damaged by such a scheme, as the contractual remedy is to retain the deposit already held in escrow. 

138 Bruckner Owner LLC v. Anjost Corp., NY Slip Op 05768 (1st Dep't October 21, 2021)

Here is the decision.

CPLR 3102(c).

The petition is denied to the extent that it seeks a pre-action order to preserve and disclose video camera recordings taken on the bus involved in petitioner's trip-and-fall. The petition demonstrates that petitioner knows the date of the accident, the place of the accident, the individuals or entities involved in the accident, and the alleged cause of the accident. Therefore, she is in possession of facts sufficient to frame her complaint, and the only purpose of reviewing the video camera recordings would be to explore whether there are additional causes of action or alternative theories of liability. This is not a proper purpose for invoking the statute.

Matter of White v. New York City Tr. Auth., NY Slip Op 05805 (1st Dep't October 21, 2021)

Here is the decision.

CPLR 3211[a][3] and 3018[b].

Standing is in the nature of an affirmative defense to be pleaded and proved. There is no requirement that a plaintiff allege standing in the complaint.

Wilmington Sav. Fund Socy., FSB v. Matamoro, NY Slip Op 05741 (2d Dep't October 20, 2021)

Here is the decision.

CPLR 603.

The order which granted plaintiffs' motion to sever their declaratory judgment claim from defendant's counterclaims was affirmed.  Most of the plaintiffs in this action are not counterclaim defendants, and they would be prejudiced if severance were denied.

Spicer v. Garda World Consulting (UK) Ltd., NY Slip Op 05681 (1st Dep't October 19, 2021)

Here is the decision.

Establishing standing in 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. A conclusory statement in an affidavit will not suffice when standing is raised as a defense. Here, the affiant's bare claim that plaintiff "has been in continuous possession of the Note and Mortgage prior to referring the Loan to be foreclosed" is not sufficient to establish standing.

U.S. Bank Trust, N.A. v. Francis, NY Slip Op 05655 (1st Dep't October 14, 2021)

Here is the decision.

Res ipsa loquitur in a defective sidewalk action.

The Appellate Division affirmed the order which denied defendant's motion for summary judgment dismissing the complaint. Plaintiff's failure to specifically plead res ipsa loquitur does not bar her from invoking the doctrine where, as here, the facts warrant its application. A sidewalk collapse is not the type of incident which ordinarily occurs in the absence of negligence, and defendant failed to show that it did not have exclusive control over the maintenance and repair of the sidewalk slab which collapsed.  In addition, defendant did not demonstrate that plaintiff's own negligence caused the collapse. 

Williams v. Forward Realty Corp., NY Slip Op 05658 (1st Dep't October 14, 2021)

Here is the decision.

CPLR 3215(c).

Pursuant to the statute, "If the plaintiff fails to take proceedings for the entry of judgment within one year after the default, the court shall not enter judgment but shall dismiss the complaint as abandoned, without costs, upon its own initiative or on motion, unless sufficient cause is shown why the complaint should not be dismissed."  In order to establish sufficient cause, the party opposing dismissal must demonstrate that it had a reasonable excuse for the delay in taking proceedings for entry of a default judgment and that it has a potentially meritorious action. The determination of whether an excuse is reasonable is committed to the sound discretion of the motion court, and reversal is warranted if that discretion is improvidently exercised.

Deutsch Bank Nattl. Trust Co. v. Bakarey, NY Slip Op 05543 (2d Dep't October 13, 2021)

Here is the decision.

Appellate practice.

In an action to foreclose a mortgage, the plaintiff appeals from the order which granted the defendant's motion, pursuant to CPLR 3211(a)(5), to dismiss the complaint as time-barred. The Supreme Court determined that the action was untimely, as the entire mortgage debt had been accelerated more than six years before the action was commenced. The court rejected the plaintiff's contention that certain monthly invoices sent to the defendant's lawyer had been effective to de-accelerate the outstanding mortgage debt. The court set forth two alternative grounds for its determination: (1) the invoices were not sent to the proper address as specified in the mortgage, and (2) the invoices failed to constitute clear and unequivocal notice of the plaintiff's election to de-accelerate the outstanding mortgage debt.

On appeal, the plaintiff does not contend that the invoices were sent to the proper address in accordance with the terms of the mortgage. The only argument made by the plaintiff that relates to the first alternative ground set forth in the order appealed from is raised for the first time on appeal and is not properly before the Appellate Division. The Appellate Division need not address the plaintiff's remaining contentions, as they all relate to the second alternative ground set forth in the order appealed from.

Deutsche Bank Natl. Trust Co. v. 9th St, LLC, NY Slip Op 05542 (2d Dep't October 13, 2021)

Here is the decision.

CPLR 5015(a)(3).

The court may relieve a party from a judgment or order upon the ground of fraud, misrepresentation, or other misconduct of an adverse party. 

Citimortgage, Inc. v. Zagoory, NY Slip Op 05541(2d Dep't October 13, 2021)

Here is the decision.

The Pothole Law.

Pursuant to Administrative Code of the City of New York § 7-201(c)(2), commonly known as the Pothole Law, no civil action may be maintained against the City for personal injuries resulting from an alleged dangerous condition in the roadway unless written notice of the defective condition was actually given to the appropriate person authorized to receive such notice, or there is a written acknowledgment from the City of the defective condition, and the City failed to repair it within 15 days of the notice. The prior written notice is a condition precedent which a plaintiff must plead and prove. The only recognized exceptions to the statutory notice requirement involve situations in which the municipality created the defect or hazard through an affirmative act of negligence, or where a special use confers a benefit upon the municipality. The affirmative act of negligence exception is limited to work that immediately results in a dangerous condition.

Caballero v. City of New York, NY Slip Op 05540 (2d Dep't October 13, 2021)

Here is the decision.

Expert opinion in a defective design action.

The Appellate Division dismissed the claim because plaintiff failed to rebut defendant's prima facie showing that the van was not negligently designed. Where a qualified expert opines that a particular product is defective or dangerous, describes why it is dangerous, explains how it can be made safer, and concludes that it is feasible to do so, it is for the jury to make the required risk-utility analysis and decide whether the product was reasonably safe. However, an expert cannot raise an issue of fact to avoid summary judgment when the opinion consists of bare conclusory allegations of alleged defects or industry-wide knowledge. Here, plaintiffs' expert's assertions were unsupported by any data concerning the testing he purportedly performed, and which he described in conclusory terms and general statements. Plaintiffs pointed to reports concerning the alleged propensity of 15-passenger vans to roll over, but such reports are hearsay In addition, the tests performed in connection with those reports were computerized models of a generic passenger van, results rebutted by defendant in an on-track study showing that its van did not behave as the generic computerized model did. 

Richards v. Ford Motor Co., NY Slip Op 05469 (1st Dep't October 12, 2021)

Here is the decision.

Contract law and cure provisions.

A party's termination is ineffective where the contract provides for a notice-to-cure and notice is not given. There are limited circumstances where, despite being contractually required, notice is not necessary, such as where the other party expressly repudiates the contract or abandons performance. Notice is not required where the breach is impossible to cure, or so substantial that it undermines the entire contractual relationship such that it cannot be cured. This is based on the common law contract principle that a material breach that goes to the root of the matter or the essence of the contract constitutes grounds for rescission without opportunity to cure.

East Empire Constr. Inc. v. Borough Constr. Group LLC, NY Slip Op 05455 (1st Dep't October 12, 2021)

Here is the decision.

Sanctions for frivolous conduct.

Pursuant to 22 NYCRR 130-1.1, sanctions may be imposed against a party or the party's attorney for frivolous conduct. Conduct is frivolous if (1) it is completely without merit in law, and cannot be supported by a reasonable argument for an extension, modification, or reversal of existing law; (2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or (3) it asserts material factual statements that are false.  A party seeking the imposition of sanctions or an award of attorney's fees has the burden of proof.

Glaubach v. Slifkin, NY Slip Op 05323 (2d Dep't October 6, 2021)

Here is the decision.

CPLR 3215(g)(3)(i).

The Appellate Division reversed the order which denied the individual defendant's motion to vacate a default judgment as against him, and granted the motion. The plaintiff mailed the summons to the defendant's places of business, not his place of residence, and failed to state that the place of residence was unknown. The burden is on the plaintiff to show that he did not know the defendant's place of residence, not on the defendant to prove that the plaintiff knew the place of residence.

Thomas v. Karen's Body Beautiful, LLC, NY Slip Op 05408 (1st Dep't October 7, 2021)

Here is the decision.

The implied covenant of good faith and fair dealing.

Where the express terms of a contract allow one party to terminate it in "its sole discretion" or "for any reason whatsoever," the covenant cannot serve to negate that provision.

Vendome v. Oldenburg, NY Slip Op 05409 (1st Dep't October 7, 2021)

Here is the decision.

A cause of action for breach of fiduciary duty.

The plaintiff must prove the existence of a fiduciary relationship, misconduct by the defendant, and damages that were directly caused by the defendant's misconduct.

Glaubach v. Slifkin, NY Slip Op 05322 (2d Dep't October 6, 2021)

Here is the decision.

CPLR 5015(a)(3).

In order to prevail on a motion to vacate an order awarding summary judgment in a foreclosure action, the proponent must establish that the opponent procured the order by fraud, misrepresentation, or other misconduct. Broad, conclusory, and unsubstantiated allegations of fraud are insufficient. 

Deutsche Bank Natl. Trust Co. v. Le-Mond, NY Slip Op 05319 (2d Dep't October 6, 2021)

Here is the decision.

Admissibility of medical records in a personal injury action.

The defendant waived his right to object to the admission of the records as business records, as he failed to timely object after having been served with the plaintiff's notice of her intention to enter the documents into evidence, pursuant to CPLR 3122-a. The testimony of the office manager laid a proper foundation for the admission of the records, pursuant to CPLR 4518[a].

Benguigui v. Racer, NY Slip Op 05318 (2d Dep't October 6, 2021)

Here is the decision.

Termination of an at-will employee.

The Appellate Division affirmed, with costs, the order that granted the defendants' motion for summary judgment, dismissing the complaint. The plaintiff applied for a job at the defendants' restaurant, and was offered paid training sessions in contemplation of potential employment. The plaintiff alleges that she was wrongfully discharged when the defendants cancelled the training sessions. It is well-settled in New York that there is no cause of action for an at-will employee's wrongful discharge unless the termination of employment is constitutionally impermissible or statutorily proscribed, or unless there is an express limitation in an employment contract. Here, the defendants established  their prima facie entitlement to judgment as a matter of law by demonstrating that the plaintiff was, at best, an at-will employee and that her employment was not impermissibly terminated. In opposition, the plaintiff failed to raise a triable issue of fact.

Babalola v. Terry Vegetarian, LLC, NY Slip Op 05317 (2d Dep't October 6, 2021)

Here is the decision.

CPLR 3101(c).

Records which are attorney work product are specifically protected from disclosure. The records cannot be redacted under the Freedom of Information Law (FOIL), which permits redactions of records only under the personal privacy exemption.

Here is the decision.

A nonjusticiable controversy under the First Amendment.

The Appellate Division affirmed dismissal of this action.  Although the plaintiff contends that the $230,000 payment she made to defendants five years before the action was commenced should not be considered a tithe, the record shows that the payment was, in fact, a tithe, and that plaintiff made it voluntarily. The $230,000 check made out to the defendant stated "tithe" in the memo section. The issues of the plaintiff's motivation for tithing and the proper amount of the tithe necessarily implicate the interpretation of religious doctrine ,and cannot be resolved through the application of neutral principles of law.

Wilson v. Christ Alive Christian Ctr., NY Slip Op 05315 (1st Dep't October 5, 2021)

Here is the decision.

A cause of action for conversion.

The plaintiff must show (1) legal ownership or an immediate right of possession to tangible personal property or specific money, and (2) that the defendant exercised an unauthorized dominion over the thing in question to the exclusion of the plaintiff's right. There is conversion when funds designated for a particular purpose are used for an unauthorized purpose.

Alpha/Omega Concrete Corp. v. Ovation Risk Planners, Inc., NY Slip Op 05113 (2d Dep't September 29, 2021)

Here is the decision.

Appellate practice.

The appeal from the order which granted plaintiff's motion to proceed pseudonymously was dismissed.  The death of a party divests a court of jurisdiction to conduct proceedings in an action until a proper substitution has been made pursuant to CPLR 1015(a). While the parties need not renew their motions, proper substitution of a defendant must be made before the motion is decided. Since the order was issued after a defendant's death and without proper substitution, the Appellate Division does not have jurisdiction to hear and determine the appeal.

Thomas v. Rubin, NY Slip Op 05112 (1st Dep't September 28, 2021) 

Here is the decision.

CPLR 3215(c).

As set forth in the statute, "[i]f the plaintiff fails to take proceedings for the entry of judgment within one year after the default, the court shall not enter judgment but shall dismiss the complaint as abandoned, without costs, upon its own initiative or on motion, unless sufficient cause is shown why the complaint should not be dismissed. A motion by the defendant under this subdivision does not constitute an appearance in the action." The purpose of CPLR 3215(c) is to prevent parties who have asserted claims from unreasonably delaying the termination of actions, and to avoid inquests on stale claims.

Federal Natl. Mtge.Assn. v. Kahana, NY Slip Op 05024 (2d Dep't September 22, 2021)

Here is the decision.

CPLR 2214(b).

The defendant's opposition to the plaintiffs summary judgment motion was due to be served no later than seven days prior to the return date, but the defendant served his opposition six days after the return date. The Appellate Division determined that the Supreme Court providently exercised its discretion in declining to consider the defendant's opposition, as the defendant failed to provide a valid excuse for the late service.

Deutsche Bank Natl. Trust Co. v. McEnery, NY Slip Op 05023 (2d Dep't September 22, 2021)

Here is the decision.

Service of process.

The plaintiff had the burden of proving that jurisdiction was obtained over the defendant by proper service of process. A process server's affidavit of service constitutes prima facie proof of service.

Chase Home Fin., LLC v. Kahana, NY Slip Op 05022 (2d Dep't September 22, 2021)

Here is the decision.

Summary judgment in a medical malpractice action.

A physician moving for summary judgment dismissing the complaint must establish, prima facie, either that there was no departure from accepted standards of medical care, or that any departure was not a proximate cause of the plaintiff's injuries. On this showing, the burden shifts to the plaintiff to submit evidentiary facts or materials to rebut the defendant's prima facie showing, but only as to those elements on which the defendant met the prima facie burden.

G. M. C. v. O'Sullivan, NY Slip Op 05020 (2d Dep't September 22 2021)

Here is the decision.

Contractual indemnification in a personal injury action.

The party seeking contractual indemnification must prove itself free from negligence, because to the extent its negligence contributed to the accident, it cannot be indemnified therefor.

Barcliff v. Schindler El. Corp., NY Slip Op 05019 (2d Dep't September 22, 2021)

Here is the decision.

CPLR 3126(3).

A court may impose discovery sanctions, including the striking of a pleading, where a party "refuses to obey an order for disclosure or willfully fails to disclose information which the court finds ought to have been disclosed."  The nature and degree of a statutory penalty for discovery violations is addressed to the court's discretion. While public policy strongly favors the resolution of actions on the merits, the court may resort to the drastic remedies of striking a pleading or precluding evidence upon a clear showing that a party's failure to comply with a disclosure order was the result of willful and contumacious conduct. The court can infer that a party is acting willfully and contumaciously through the party's repeated failure to adequately respond to discovery demands or to comply with discovery orders.

Ambroise v. Palmana Realty Corp., NY Slip Op 05018 (2d Dep't September 22, 2021)

Here is the decision.

Appellate practice.

Where the Appellate Division affirms the granting of plaintiff's motion for summary judgment in a declaratory judgment action, the matter must be remitted to the Supreme Court for the entry of a judgment as to the declaration.

23A Vernon, LLC v. Oneal, NY Slip Op 05017 (2d Dep't September 22, 2021)

Here is the decision.

CPLR 3215(a).

A party may make an application for a default judgment when the defendant has failed to appear, plead, or proceed to trial of an action called for trial, or when the court orders a dismissal for any other neglect to proceed. The statute sets forth two separate procedures for securing a default judgment: (1) entry by the clerk, and (2) entry by a judge. If the plaintiff's claim is for a sum certain or for a sum which can by computation be made certain, application may be made to the clerk within one year after the default. The term "sum certain" in this context contemplates a situation in which, once liability has been established, there can be no dispute as to the amount due, as in actions on money judgments and negotiable instruments. Where the case is not one in which the clerk can enter judgment, the plaintiff shall apply to the court for judgment. The applicant, by affidavit, must file proof of service of the summons and complaint, the facts constituting the claim, the default, and the amount due.

21st Mtge. Corp. v. Raghu, NY Slip Op 05016 (2d Dep't September 22, 2021)

Here is the decision.

CPLR 3211(a), (e), (f).

Service of a notice of motion to dismiss a complaint extends the defendant's time to answer. In order to be timely, the motion must be made before service of the responsive pleading is required.

21st Mtge. Corp. v. Raghu, NY Slip Op 05016 (2d Dep't September 22, 2021)

Here is the decision.

A defendant's appearance.

After having been served with process, a defendant must respond in a proper and timely manner in order to avoid a default.  The defendant must appear within 20 days of service of a summons, or within 30 days of service where service was made by delivering the summons "to an official of the state authorized to receive service in his behalf," pursuant to CPLR 320[a]. The CPLR sets forth three ways that a defendant may appear: [1] by serving an answer, or [2] by serving a notice of appearance, or [3] by making a motion to extend the time to answer. The defendant's failure to respond to a summons and complaint in one of these three ways constitutes a failure to appear, pursuant to CPLR 3215.

21st Mtge. Corp. v. Raghu, NY Slip Op 05016 (2d Dep' September 22, 2021)

Here is the decision.

The doctrine of judicial estoppel.

A party whose interests have changed is precluded from taking a position which is contrary to the position it took in a prior proceeding.

Morin v. Morin, NY Slip Op 04973 (2d Dep't September 15, 2021)

Here is the decision.

Marital and separate property.

Marital property includes "all property acquired by either or both spouses during the marriage and before the execution of a separation agreement or the commencement of a matrimonial action, regardless of the form in which title is held," pursuant to Domestic Relations Law § 236[B][1][c]. Separate property includes "property acquired before marriage or property acquired by bequest, devise, or descent, or gift from a party other than the spouse," pursuant to § 236[B][1][d][1]. Property acquired during the marriage is presumed to be marital property, and the party seeking to overcome the presumption has the burden of proving that it is separate property.

Silvers v. Silvers, NY Slip Op 04987 (2d Dep't September 15, 2021)

Here is the decision.

The collateral estoppel doctrine.

Collateral estoppel, or issue preclusion, precludes a party from relitigating in a subsequent action or proceeding an issue that was clearly raised in a prior action or proceeding and decided against that party or those in privity. The doctrine gives conclusive effect to prior determinations when two conditions are met: (1) there must be an identity of issue which has necessarily been decided in the prior action and is decisive of the present action, and (2) there must have been a full and fair opportunity to contest the decision now said to be controlling. The determination of whether a party had a full and fair opportunity to litigate in the prior proceeding requires a practical inquiry into the realities of the prior litigation. The burden of proof is on the proponent to establish the duplicative identity of the party against whom the doctrine is sought to be applied and the issues of the two proceedings, but the party seeking to avoid application of the doctrine has the ultimate burden of establishing the absence of a full and fair opportunity to have litigated the earlier matter.

Lennon v. 56th & Park (NY) Owner, LLC, NY Slip Op 04972 (2d Dep't September 15, 2021)

Here is the decision.

Calendar calls.

Pursuant to 22 NYCRR 202.27, the court may dismiss a complaint when the plaintiff fails to appear or is not ready to proceed at the call of the trial calendar. To be relieved of the default, the plaintiff must demonstrate both a reasonable excuse for the default and a potentially meritorious cause of action, pursuant to CPLR 5015[a][1].

Sutton v. Metropolitan Tr. Auth. Bus Co., NY Slip Op 04988 (2d Dep't September 15, 2021)

Here is the decision.

The governmental function immunity defense.

Government action, if discretionary, may not be a basis for liability, while ministerial actions may be, but only if they violate a special duty owed to the plaintiff, apart from any duty to the public in general.

Santaiti v. Town of Ramapo, NY Slip Op 04986 (2d Dep't September 15, 2021)

Here is the decision.

The issue of standing in a mortgage foreclosure action.

Where the defendant raises the issue, the plaintiff must prove its standing in order to be entitled to relief. A plaintiff has standing where it is the holder or assignee of the underlying note at the time the action is commenced. A holder is the person in possession of a negotiable instrument that is payable either to the bearer or to an identified person that is the person in possession.

Ridgewood Sav. Bank v. Glickman, NY Slip Op 04985 (2d Dep't September 15, 2021)

Here is the decision.

Appellate practice.

Where the Supreme Court reviews the merits of a party's contentions on the branch of its motion which is for leave to reargue, the court, in effect, granted reargument. Therefore, the portion of an order which is made, in effect, upon reargument is appealable.

Nationstar Mtge., LLC v. Jong Sim, NY Slip Op 04979 (2d Dep't September 15, 2021)

Here is the decision.

Mandamus.

The extraordinary remedy of mandamus will lie only to compel the performance of a ministerial act, and, then, only where there is a clear legal right to the relief sought.

Matter of Weaver v. Cohen, NY Slip Op 04977 (2d Dep't September 15, 2021)

Here is the decision.

A cause of action for breach of fiduciary duty.

The elements are (1) the existence of a fiduciary relationship; (2) the defendant's misconduct; and (3) damages directly caused by the defendant's misconduct. The proponent must, at a minimum, establish that the offending parties' actions were a substantial factor in causing an identifiable loss.

Ali v. Chaudry, NY Slip Op 04900 (2d Dep't September 1, 2021)

Here is the decision.

The issue of standing in a contracts action.

The plaintiff lacks standing to assert the claim for an alleged breach, as, on the date of the closing, it assigned its rights in and to the purchase agreement to a nonparty. Therefore, the plaintiff is no longer the real party in interest. However, contrary to the defendant's contention, the plaintiff had standing to assert the remaining causes of action, as it only assigned its rights in the purchase agreement.

298 Humboldt, LLC v. Torres, NY Slip Op 04899 (2d Dep't September 1, 2021)

Here is the decision.

An action to foreclose a reverse mortgage.

The plaintiff establishes its prima facie entitlement to judgment as a matter of law by producing the reverse mortgage, the unpaid note, and evidence of the decedent's death, which constitutes a ground for acceleration of the debt under the terms of the instrument.

James B. Nuttter & Co. v. John Doe 1, NY Slip Op 04910 (2d Dep't September 1, 2021)

Here is the decision.

A dog- bite case.

Since the plaintiff's expert was not a treating physician, the testimony as to the plaintiff's description of how the incident occurred is inadmissible hearsay.

Wilt v. Montvel-Cohen, NY Slip Op 04925 (2d Dep't September 1, 2021)

Here is the decision.

Appellate practice.

There is no appeal as of right from an order which does not determine a motion made on notice, pursuant to CPLR 5701[a][2]. 

Ziegler v. O'Neill, NY Slip Op 04926 (2d Dep't September 1, 2021)

Here is the decision.

CPLR 4401 and 4404.

A motion for judgment as a matter of law may be granted only when the trial court determines that, based on the evidence presented, there is no valid line of reasoning and permissible inferences that could possibly lead rational persons to the jury's conclusion, and no rational process by which the jury could find in favor of the nonmoving party. The trial court must afford the motion's opponent every inference which could properly be drawn from the facts presented, and the facts must be considered in a light most favorable to the nonmovant.

Wasserberg v. Menorah Ctr. for Rehabilitation & Nursing Care, NY Slip Op 04923 (2d Dep's September 1, 2021)

Here is the decision.

Tomorrow's issue: Appellate practice.

CPLR 213(4).

An action to foreclose a mortgage is subject to a six-year statute of limitations, which begins to run on the entire debt once the debt is accelerated. Even if the mortgage is payable in installments, once the debt is accelerated, the entire amount is due and the statute of limitations begins to run on the entire debt.

Persaud v. U.S. Bank N.A., NY Slip Op 04920 (2d Dep't September 1, 2021)

Here is the decision.

Tomorrow's issue: CPLR 4401 and 4404.

Executive Law § 298 and CPLR article 78.

Where the respondent New York State Division of Human Rights, without holding a hearing, renders a determination of no probable cause for a finding of discriminatory conduct, the proper standard of appellate review is whether the determination was arbitrary and capricious or lacked a rational basis.

Matter of Ackerman v. New York State Div. of Human Rights, NY Slip Op 04912 (2d Dep't September 1, 2021

Here is the decision.

Tomorrow's issue: CPLR 213(4).

Contract law and tort liability.

A contractual obligation, standing alone, will generally not give rise to tort liability in favor of a third party. However, A contractor may be said to have assumed a duty of care and, thus, be potentially liable in tort, to third persons when the contracting party, in failing to exercise reasonable care in the performance of its duties, launches a force or instrument of harm.

Santibanez v. North Shore Land Alliance, Inc., NY Slip Op 04921 (2d Dep't September 1, 2021)

Here is the decision.

Tomorrow's issue: Executive Law § 298 and CPLR article 78.

Leave to amend a pleading.

Leave to amend a pleading should be freely given absent prejudice or surprise, and the court should not examine the merits or legal sufficiency of the proposed amendment unless it is palpably insufficient or patently devoid of merit on its face. The burden of demonstrating prejudice or surprise, or that a proposed amendment is palpably insufficient or patently devoid of merit, is on the nonmoving party.

HSBC Bank USA, N.A. v. Lien Thi Ngo,  Slip Op 04909 (2d Dep't September 1, 2021)

Here is the decision.

Tomorrow's issue: Contract law and tort liability.

Appellate practice.

The appellant seeks to argue the merits of the complaint and defendants' cross claims. However, the complaint was stricken for discovery violations and a default judgment was entered on the cross claims. Having failed to move to vacate the default on the cross claims, the appellant is deemed to have admitted all factual allegations contained therein.  Consequently, the appellant's arguments are not properly before the Appellate Division and the order appealed from is affirmed.

Honghui Kuang v. MetLife, NY Slip Op 04908 (2d Dep't September 1, 2021)

Here is the decision.

Tomorrow's issue: Leave to amend a pleading.

CPLR 3215.

A plaintiff seeking leave to enter a default judgment must file proof of (1) service of a copy of the summons and complaint; (2) the facts constituting the claim; and (3) the defendant's default.  In order to defeat a facially sufficient motion, the defendant must show either that there was no default, or that there is a reasonable excuse for the delay and a potentially meritorious defense.

Citimortgage, Inc. v. Weaver, NY Slip Op 04903 (2d Dep't September 1, 2021)

Here is the decision.

Tomorrow's issue: Appellate practice.

Tenants-in-common and adverse possession.

Under the common law, tenants-in-common are afforded a measure of extra protection from adverse possession claims asserted by their cotenants. In a tenancy- in-common, each cotenant has an equal right to possess and enjoy all or any portion of the property as if he were the sole owner. Consequently, nonpossessory cotenants do not relinquish any of their rights as tenants-in-common when another cotenant assumes exclusive possession of the property. In New York, nonpossessory cotenants are protected by a common-law rule that presumes a cotenant's possession is possession by and for the benefit of all other cotenants. This common-law rule is codified in RPAPL 541. The statute, however, also limits the presumption by providing that it "shall cease after the expiration of ten years of continuous exclusive occupancy by such tenant, personally or by his [or her] servant or by his tenant, or immediately upon an ouster by one tenant of the other and such occupying tenant may then commence to hold adversely to his  cotenant."

169 MLS Realty Corp. v. One 69 Skill Corp., NY Slip Op 04898 (2d Dep't September 1, 2021)

Here is the decision.

Tomorrow's issue: CPLR 3215.

Summary judgment in a residential foreclosure action.

Pursuant to RPAPL 1304(1), "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." The notice "shall be sent by such lender, assignee . . . or mortgage loan servicer to the borrower, by registered or certified mail and also by first-class mail to the last known address of the borrower, and to the residence that is the subject of the mortgage," pursuant to § 1304[2]. A plaintiff demonstrates compliance with the statute by proof of the requisite mailing, such as affidavits of mailing or domestic return receipts with signatures, or proof of a standard office mailing procedure designed to ensure that items are properly addressed and mailed, sworn to by someone with personal knowledge of the procedure. 

U.S. Bank N.A. v. Pickering-Robinson, NY Slip Op 04775 (2d Dep't August 25, 2021)

Here is the decision.

Tomorrow's issue: Tenants-in-common and adverse possession.

The doctrine of primary assumption of risk.

A voluntary participant in a sporting or recreational activity consents to the commonly appreciated risks that are inherent in and arise out of the nature of the sport and flow from participation. Inherent risks are those which are known, apparent, natural, or reasonably foreseeable consequences of participation, including the construction of the field and any open and obvious conditions thereon. Assumption of risk is not an absolute defense, but a measure of the defendant's duty of care. The defendant's duty is to exercise care to make the conditions as safe as they appear to be. 

Schwartz v. Ramapo, NY Slip Op 04773 (2d Dep't August 25, 2021)

Here is the decision.

Tomorrow's issue: Summary judgment in a residential foreclosure action.

CPLR 1001(a).

Necessary parties are persons who might be inequitably affected by a judgment in the action and must be made plaintiffs or defendants.

Sacasa v. David Trust, NY Slip Op 04772 (2d Dep't August 25, 2021)

Here is the decision.

Tomorrow's issue: Doctrine of primary assumption of risk.

The enforcement of settlements.

Releases are governed by the principles of contract law, and a release that is complete, clear, and unambiguous on its face must be enforced according to the plain meaning of its terms.

Mesivta & Yeshiva Gedolah of Manhattan Beach v. VNB N.Y., LLC, NY Slip Op 04751 (2d Dep't August 25, 2021)

Here is the decision.

Tomorrow's issue:  CPLR 1001(a).

Extinguished agreements.

Where the parties clearly express their intention that a subsequent agreement supersedes a prior agreement, the remedy for breach is to sue on the subsequent agreement.

Kefalas v. Valiotis, NY Slip Op 04750 (2d Dep't August 25, 2021)

Here is the decision.

Tomorrow's issue: The enforcement of settlements.

Appellate practice.

The plaintiff moved, pursuant to CPLR 3126, to strike the defendant's answer and for leave to enter a default judgment based on willful noncompliance with court-ordered discovery. The defendant opposed the motion. In an order dated February 22, 2016, the Supreme Court granted the plaintiff's motion. In March 2018, the defendant moved for leave to reargue its opposition to the plaintiff's motion and, alternatively, pursuant to CPLR 5015(a)(1), to vacate the February 22, 2016 order. In the order appealed from, the court denied the defendant's motion. The Appellate Division affirmed that the Supreme Court properly denied the motion to vacate the February 22, 2016 order. Since the plaintiff's motion to strike the answer and for leave to enter a default judgment was opposed on the merits, the order granting that motion was appealable, and the defendant's motion to vacate it was procedurally improper.

Hinds v. 33rd St. Astoria, LLC, NY Slip Op 04749 (2d Dep't August 25, 2021)

Here is the decision.

Tomorrow's issue: Extinguished agreements.

Defective sidewalks.

Administrative Code of the City of New York § 7-210, which became effective September 14, 2003, shifts tort liability for injuries arising from a defective sidewalk from the City to the abutting property owner. Section 7-210[a] directs landowners to maintain their abutting sidewalks in a "reasonably safe condition." However, this provision does not apply to one-, two- or three-family residential property that is  owner-occupied, and used exclusively as a residence.

Blaise v. Guleria, NY Slip Op 04745 (2d Dep't August 25, 2021)

Here is the decision.

Tomorrow's issue: Appellate practice.

Vacating a default in answering.

A motion to vacate on the basis of excusable default, pursuant to CPLR 5015[a][1], and to compel the plaintiff to accept an untimely answer, pursuant to CPLR 3012[d], requires a reasonable excuse for the default and a potentially meritorious defense. Law office failure may be a reasonable excuse, but mere neglect is not. Here, it is not reasonable that defendant did not appoint an attorney until several months after the default.

Biskra, Inc. v. U.S. Bank N.A., NY Slip Op 04744 (2d Dep't August 25, 2021)

Here is the decision.

Tomorrow's issue: Defective sidewalks.

Summary judgment in a slip-and-fall case.

The plaintiff's inability to identify the cause of the fall is fatal to the cause of action, because a finding that the defendant's negligence, if any, proximately caused the plaintiff's injuries would be based on speculation.

Hughes v. Tower Crestwood 2015, LLC, NY Slip Op 04705 (2d Dep't August 19, 2021)

Here is the decision.

Tomorrow's issue: Vacating a default in answering.

Notices of claim.

A timely and sufficient notice of claim is a condition precedent to asserting a tort claim against a municipality or public benefit corporation. Pursuant to General Municipal Law § 50-e, the claimant must state the nature of the claim and the time when, the place where, and the manner in which it arose. The purpose of the statutory requirement is to afford the public corporation an adequate opportunity to investigate the circumstances surrounding the claim and to explore its merits while information is still readily available.

Harrison v. City of New York, NY Slip Op 04703 (2d Dep't August 18, 2021)

Here is the decision.

Tomorrow's issue: Summary judgment in a slip-and-fall case.

CPLR 3211(a).

A defendant can only move to dismiss a cause of action where that cause of action is actually asserted against the moving defendant.

Grocery Leasing Corp v. P&C Merrick Realty Co., LLC, NY Slip Op 04702 (2d Dep't August 18, 2021)

Here is the decision.

Tomorrow's issue: Notices of claim.

Appellate practice.

The Appellate Division will not consider plaintiff's arguments that are outside the scope of the notice of appeal and amended notice of appeal, pursuant to CPLR 5515[1].

Grocery Leasing Corp. v. P & C Merrick Realty Co, LLC, NY Slip Op 04701 (2d Dep't August 18, 2021)

Here is the decision.

Tomorrow's issue: CPLR 3211(a).

CPLR 3215(c).

"]f the plaintiff fails to take proceedings for the entry of judgment within one year after the default, the court shall not enter judgment but shall dismiss the complaint as abandoned . . . unless sufficient cause is shown why the complaint should not be dismissed." In order to avoid dismissal, it is not necessary for a plaintiff to actually obtain a default judgment within one year of the default, or to specifically seek the entry of a judgment within one year. As long as'proceedings are undertaken, and these proceedings manifest an intent not to abandon the case but to seek a judgment, the case should not be subject to dismissal. Furthermore, where an action is subject to a mandatory settlement conference, pursuant to CPLR 3408, the one-year deadline is tolled while settlement conferences are pending.

Deutsche Natl. Bank Trust Co. v. Attard, NY Slip Op 04698 (2d Dep't August 18, 2021)

Here is the decision.

Tomorrow's issue: Appellate practice.

Failure to appear at a scheduled conference.

Pursuant to 22 NYCRR 202.27, upon a party's failure to appear at a scheduled conference, the court may note the default on the record, and, where the plaintiff appears but the defendant does not, enter an order granting judgment by default or order an inquest, or, where the defendant appears but the plaintiff does not, dismiss the action. In order to vacate a default in appearing at a conference, the defaulting party must demonstrate both a reasonable excuse for the default and a potentially meritorious cause of action or defense to the action. The determination of whether an excuse is reasonable lies within the sound discretion of the trial court.

126 Henry St., Inc. v. Cater, NY Slip Op 04629 (2d Dep't August 18 2021)

Here is the decision.

Tomorrow's issue: CPLR 3215(c).

CPLR 3211(a)(7).

On a motion to dismiss the complaint for failure to state a claim, the standard is whether the pleading states a cause of action. When the movant offers evidence, the motion must be denied unless the evidence establishes conclusively that the plaintiff has no cause of action.

Francisco v. Kiara Foods, Inc., NY Slip Op 04662 (2d Dep't August 11, 2021)

Here is the decision.

Tomorrow's issue: Failure to appear at a scheduled conference.

CPLR 3215(c).

Pursuant to the statute, where a plaintiff fails to take proceedings for the entry of judgment within one year after a default, the court will dismiss the complaint as abandoned.  The one exception to the otherwise mandatory statutory language is that the failure to timely seek a default on an unanswered complaint or counterclaim may be excused if 'sufficient cause is shown why the complaint should not be dismissed. The Second Department interprets this language as requiring both a reasonable excuse for the delay in timely moving for a default judgment, plus a demonstration that the cause of action is potentially meritorious. The determination of whether an excuse is reasonable in any given instance is committed to the sound discretion of the motion court.

Deutsche Bank Nat'l Trust Co. v. Brathwaite, NY Slip Op 04659 (2d Dep't August 11, 2021)

Here is the decision.

Tomorrow's issue: CPLR 3211(a)(7).

CPLR 213(2).

The statute of limitations for an action to recover on a promissory note is six years.

Carpenito v. Linksman, NY Slip Op 04657 (2d Dep't August 11, 2021)

Here is the decision.

Tomorrow's issue: CPLR 3215(c).

A motion for summary judgment in an action to foreclose a mortgage.

The plaintiff has the burden of establishing, by proof in admissible form, its prima facie entitlement to judgment as a matter of law. The plaintiff meets its burden by producing the mortgage, the unpaid note, and evidence of default. An affidavit based on personal knowledge may establish the default.

Bank of N.Y Mellon v. DeLoney, NY Slip Op 04655 (2d Dep't August 11, 2021)

Here is the decision.

Tomorrow's issue: CPLR 213(2).

CPLR 3218(a)(2).

The statutory requirement that an affidavit of confession of judgment must state concisely the facts out of which the debt arose and show that the sum confessed is justly due is meant to protect innocent third parties who might be prejudiced in the event that a collusively confessed judgment is entered, not the party who signed the confession of judgment. Therefore, the defendant was foreclosed from challenging the confession of judgment on this ground.

Balahtsis v. Shakola, NY Slip Op 04653 (2d Dep't August 11, 2021)

Here is the decision.

Tomorrow's issue: A motion for summary judgment in an action to foreclose a mortgage.

Appellate practice.

An order that is not made upon notice is not appealable as of right, pursuant to CPLR 5701(a). However, the Appellate Division may deem a notice of appeal a request for leave to appeal and grant leave, in the interest of justice, for a determination on the merits, pursuant to CPLR 5701(c).

Zubillaga v. Findlay Teller Hous. Dev. Fund Corp., NY Slip Op 04687 (1st Dep't August 12, 2021)

Here is the decision.

Tomorrow's issue: CPLR 3218(a)(2).

Summary judgment on a legal malpractice claim.

In order to succeed on the motion, the defendant must present, in admissible form, evidence that at least one of the claims essential elements cannot be satisfied: (1) the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession and (2) the attorney's breach of this duty proximately caused the plaintiff to sustain actual and ascertainable damages. The causation element requires a showing that, but for the lawyer's negligence, the injured party would have prevailed in the underlying action or would not have incurred any damages. The defendant must affirmatively demonstrate the absence of one of the elements of legal malpractice, rather than merely pointing out gaps in the plaintiff's proof.

Aqua-Trol Corp. v. Wilentz, Goldman & Spitzer, P.A.NY Slip Op 04652 (2d Dep't August 11, 2021)

Here is the decision.

Tomorrow's issue: Appellate practice.

Labor Law.

Labor Law § 200 codifies the common-law duty imposed on an owner or a general contractor to provide construction site workers with a safe place to work. Where a plaintiff's claims implicate the means and methods of the work, an owner or a contractor will not be held liable under the statute unless it had the authority to supervise or control the performance of the work. General supervisory authority to oversee the progress of the work is insufficient to impose liability.

Labor Law § 241(6) imposes a nondelegable duty upon owners and contractors to provide construction workers with reasonable and adequate protection. In order to establish statutory liability, a plaintiff must demonstrate that his injuries were proximately caused by a violation of an applicable Industrial Code provision.

Kefaloukis v. Mayer, NY Slip Op 04601 (2d Dep't August 4, 2021)

Tomorrow's issue: Summary judgment on a legal malpractice claim.

CPLR 308(5).

A court may permit service by publication, upon motion without notice, if traditional service is "impracticable." The impracticability standard does not require the applicant to satisfy the more stringent standard of due diligence under CPLR 308(4). Neither does it require the applicant to make an actual showing that service has been attempted pursuant to CPLR 308(1), (2), and (4).

JP Morgan Chase Bank, N.A. v. Perkin, NY Slip Op 04600 (2d Dep't August 4, 2021)

Here is the decision.

Tomorrow's issue:  Labor Law.

CPLR 3211(a)(1).

A motion to dismiss the complaint on the ground of documentary evidence may only be granted where the  evidence utterly refutes the plaintiff's factual allegations, conclusively establishing a defense as a matter of law, The defendant bears the burden of demonstrating that the proffered evidence conclusively refutes the plaintiff's factual allegations. In order to be considered "documentary," the evidence must be unambiguous and of undisputed authenticity. Judicial records, as well as documents reflecting out-of-court transactions such as mortgages, deeds, contracts, and any other papers, the contents of which are essentially undeniable, may qualify as documentary evidence.

Giambrone v. Arnone, Lowth, Wilson, Leibowitz, Adriano & Greco, NY Slip Op 04597 (2d Dep't August 4, 2021)

Here is the decision.

Tomorrow's issue:  CPLR 308(5).

CPLR 3018[b].

The Statute of Limitations is a personal defense which is waived if it is not affirmatively pled.

Emigrant Bank v. McDonald, NY Slip Op 04594 (2d Dep't August 4, 2021)

Here is the decision.

Tomorrow's issue:  CPLR 3211(a)(1).

CPLR 5015[a][1].

A party seeking to vacate a default in appearing on the return date of a motion must demonstrate both a reasonable excuse for the default and a potentially meritorious cause of action or defense. A court may accept law office failure as a reasonable excuse, pursuant to CPLR 2005, but the claim must be specific, detailed, and corroborated.

Bank of Am., N.A. v. Russell, NY Slip Op 04592 (2d Dep't July 29, 2021)

Here is the decision.

Tomorrow's issue:  CPLR 3018(b).

CPLR 1012(a)(3).

The statute provides that, on a timely motion, any person may intervene, as of right, "when the action involves the disposition or distribution of, or the title or a claim for damages for injury to, property and the person  may be affected adversely by the judgment." In considering whether the motion to intervene is timely, courts do not merely measure time, but, instead, consider whether the delay in seeking intervention delay in resolution of the action, or otherwise prejudice a party.

1077 Madison St., LLC v. Dickerson, NY Slip Op 04591 (2d Dep't August 4, 2021)

Here is the decision.

Tomorrow's issue:  CPLR 5015[a][1].

Appellate practice.

An argument that does not constitute a purely legal issue that is apparent on the face of the record may not be raised for the first time on appeal.

Residential Bd. of Millennium Point v. Condominium Bd. of Millennium Point, NY Slip Op 04649 (1st Dep't August 5, 2021)

Here is the decision.

Tomorrow's issue: CPLR 1012(a)(3).

CPLR 3215(c).

The statute  provides that "[i]f the plaintiff fails to take proceedings for the entry of judgment within one year after [a] default, the court shall not enter judgment but shall dismiss the complaint as abandoned, without costs, upon its own initiative or on motion, unless sufficient cause is shown why the complaint should not be dismissed." "It is not necessary for a plaintiff to actually obtain a default judgment within one year of the default in order to avoid dismissal pursuant. As long as the plaintiff has initiated proceedings for the entry of a judgment within one year of the default, there is no basis for dismissal of the complaint.

1077 Madison St., LLC v. Dickerson, NY Slip Op 04590 (2d Dep't August 4, 2021)

Here is the decision.

Tomorrow's issue: Appellate practice.

An action to foreclose a mortgage.

The action is properlyaddressed to a court of equity, which will determine the parties' rights according to equity and good conscience. Here, the Appellate Division affirmed the Supreme Court's determination that a "fifty-percent shareholder causing the entity to forego recovery on its only remaining asset goes against every principle of equity."

True Gate Holding, Ltd. v. Baroukhian, NY Slip Op 04588 (1st Dep't July 29, 2021)

Here is the decision.

Tomorrow's issue:  CPLR 3215(c).

Premises liability.

Proof that a dangerous condition is open and obvious does not preclude a finding of liability, but, rather, is relevant to the issue of the plaintiff's comparative negligence. In order to succeed on a motion for summary judgment, the defendant must establish that the condition was both open and obvious and, as a matter of law, was not inherently dangerous.

Baran v. Port Auth. of N.Y. & N.J., NY Slip Op 04589 (2d Dep't July 28, 2021)

Here is the decision.

Tomorrow's issue:  An action to foreclose a mortgage.

Collateral estoppel.

The Appellate Division affirmed, with costs, the Order which granted plaintiff's motion for summary judgment and an order of reference, and denied defendants' cross motion to dismiss the complaint. Defendants are collaterally estopped from relitigating the timeliness of the foreclosure action, which was decided in the court's prior order and affirmed on appeal.

True Gate Holding, Ltd. v. Baroukhian, NY Slip Op 04588 (1st Dep't July 29, 2021)

Here is the decision.

Tomorrow's issue:  Premises liability.

Appellate practice.

An appeal from a final judgment brings up for review any non-final judgment or order which necessarily affects the final judgment, provided that such non-final judgment or order has not previously been reviewed by the court to which the appeal is taken, pursuant to CPLR 5501[a][1]. Thus, only an appeal from a final judgment will bring up for review prior nonfinal orders.

Shah v. 20 E. 64th St., LLC, NY Slip Op 04587 (1st Dep't July 29, 2021)

Here is the decision.

Tomorrow's issue:  Collateral estoppel.