CPLR 3215(f).

Where a foreclosure complaint is not verified, an application for a judgment by default must include an affidavit that sets forth proof of the facts, the default, and the amount due. Here, in support of its motion, the plaintiff submitted an affidavit of merit executed by a "Document Execution Specialist" who was employed by the plaintiff's servicing agent. The affiant asserted that she had personal knowledge of the merits of the plaintiff's cause of action based upon her review of various business records. However, since the plaintiff failed to attach the business records upon which the affiant relied, her factual assertions based on those records constitutes inadmissible hearsay, and her affidavit is insufficient to demonstrate proof of the facts constituting the claim.

Deutsche Natl. Bank Trust Co. v. Hossain, NY Slip Op 04480 (2d Dep't July 21, 2021)

Here is the decision.

Tomorrow's issue:  A prior property owner's liability.

Appellate practice.

Although no appeal lies from a judgment entered upon the default of an appealing party, pursuant to CPLR 5511, the appeal from such a judgment brings up for review those matters which were the subject of contest before the Supreme Court.

Deutsche Natl. Bank Trust Co. v. Hossain, NY Slip Op 04480 (2d Dep't July 21, 2021)

Here is the decision.

Tomorrow's issue:  CPLR 3215(f).

The doctrines of res judicata and collateral estoppel

Under the doctrine of res judicata, a disposition on the merits bars litigation between the same parties, or those in privity with them, of a cause of action arising out of the same transaction or series of transactions as a cause of action that was raised, or could have been raised, in the prior proceeding. The doctrine of collateral estoppel, which applies only to parties who were either a party, or in privity with a party, to a prior action or proceeding, also bars relitigation of an issue which has necessarily been decided in that prior action or proceeding and is determinative of the issues disputed in the present action, provided that there was a full and fair opportunity to contest the decision now alleged to be controlling. In order to establish privity with respect to either res judicata or collateral estoppel, the connection between the parties must be such that the interests of the nonparty can be said to have been represented in the prior proceeding. Although relationship alone is not sufficient to support preclusion, privity includes those who are successors to a property interest, those who control an action although not formal parties to it, and  those whose interest are represented by a party to the action. The party asserting the conclusive effect of a prior judgment has the burden to establish it.

Bravo v. Atlas Capital Group, LLC, NY Slip Op 04478 (1st Dep't July 21, 2021)

Here is the decision.

Tomorrow's issue: Appellate practice.

CPLR 4528.

The plaintiff commenced this action to recover damages for personal injuries that she allegedly sustained when she slipped and fell on ice on a curb.  The defendant moved for summary judgment dismissing the complaint, invoking the storm in progress doctrine. The Supreme Court granted the motion, and the Appellate Division reversed, finding that the defendant failed to meet its initial burden as the movant. Contrary to the defendant's contention, the three pages of climatological data that it submitted in support of its motion should have been authenticated because these pages themselves did not indicate that the data contained therein was "taken under the direction of the United States weather bureau," as the statute requires.

Beaton v. City of New York, NY Slip Op 04477 (2d Dep't July 21, 2021)

Here is the decision.

Tomorrow's issue:  The doctrines of res judicata and collateral estoppel.

Dismissal of a claim as duplicative.

A claim will be dismissed as duplicative where the cause of action arises from the same facts as another cause of action and does not allege distinct damages.

Steven B. v. Westchester Day Sch., NY Slip Op 04476 (2d Dep't July 21, 2021)

Here is the decision.

Subject matter waiver of a privilege.

There is a waiver when a party affirmatively puts the subject matter of its own privileged communication at issue in the litigation, so that invasion of the privilege is required to determine the validity of a claim or defense of the party asserting the privilege, and application of the privilege would deprive the adversary of vital information. However, the fact that privileged communications may contain information that is relevant to issues that are being litigated does not, without more, put the contents of the privileged communication itself at issue.

U.S. Bank Natl. Assn. v. Lightstone Holdings LLC, NY Slip Op 04537 (1st Dep't July 22, 2021)

Here is the decision.

Tomorrow's issue:  Dismissal of a claim as duplicative.

CPLR 3211(a)(7).

In considering a motion to dismiss a complaint for failure to state a claim upon which relief can be granted, the court must afford the pleading a liberal construction, accept all facts as alleged in the complaint as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory.

Steven B. v. Westchester Day Sch., NY Slip Op 04476 (2d Dep't July 21, 2021)

Here is the decision.

Tomorrow's issue:  Subject matter waiver of a privilege.

A claim for tortious interference with contract.

The cause of action requires the existence of a valid contract between the plaintiff and a third party, defendant's knowledge of that contract, defendant's intentional procurement, without justification, of the third-party's breach of the contract, actual breach of the contract, and damages resulting therefrom, New York law also recognizes the tort of interference with prospective contracts.

MUFG Union Bank, N.A. v. Axos Bank, NY Slip Op 04414 (1st Dep't July 15, 2021)

Here is the decision.

Tomorrow's issue:  CPLR 3211(a)(7).

A claim for fraudulent misrepresentation.

No fraud action may be maintained against a defendant for an alleged misrepresentations made by the defendant to a third party where the third party did not communicate any negative information to the plaintiff. 

Loreley Fin. (Jersey) No. 28, Ltd. v. Merrill Lynch, Pierce, Fenner & Smith Inc., NY Slip Op 04413 (1st Dep't July 15, 2021)

Here is the decision.

Tomorrow's issue:  A claim for tortious interference with contract.

CPLR 5015(a)(3).

On a motion to vacate a default based on intrinsic fraud, that is, on the basis that the allegations in the complaint are false, the defendant must establish both a reasonable excuse for the default and a potentially meritorious defense to the action.

JPMorgan Chase Bank, N.A. v. Multani, NY Slip Op 04346 (2d Dep't July 14, 2021)

Here is the decision.

Tomorrow's issue:  A claim for fraudulent misrepresentation.

Contract law and lost profits.

Lost profits may be either general or consequential damages, depending on whether the non-breaching party bargained for the profits and they are the direct and immediate fruits of the contract at issue. Lost profits qualify as general or direct damages when they are the natural and probable consequence of the breach. Lost profits are consequential damages when, as a result of the breach, the non-breaching party suffers loss of profits on collateral business arrangements.

MUFG Union Bank, N.A. v. Axos Bank, NY Slip Op 04414 (1st Dep't July 15, 2021)

Here is the decision.

CPLR 3025[b].

Absent prejudice or surprise resulting directly from the delay in seeking leave, an application to amend or supplement a pleading is to be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit. The party opposing the motion has the burden of demonstrating prejudice or surprise, or that the proposed amendment is palpably insufficient or patently devoid of merit.

Oppedisano v. D'Agistino, NY Slip Op 04223 (2d Dep't July 7, 2021)

Here is the decision.

Tomorrow's issue:  Contract law and lost profits.

General Municipal Law § 50-e[5].

In determining whether to grant a petition for leave to serve a late notice of claim or to deem a late notice of claim as timely, nunc pro tunc, the court must consider all relevant circumstances, including whether the public corporation acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter, whether the delay would substantially prejudice the public corporation in its defense, and whether the claimant demonstrates a reasonable excuse for the failure to serve a timely notice.  The lack of a reasonable excuse is not dispositive where, as here, there is actual notice and an absence of prejudice.

Matter of Duke v. Westchester Med. Ctr., NY Slip Op 04223 (2d Dep't July 7, 2021)

Here is the decision.

Tomorrow's issue:  CPLR 3025[b].

The doctrine of collateral estoppel.

Under the doctrine, a party is precluded 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, whether or not the court or the causes of action are the same. The doctrine applies if the issue in the second action or proceeding is identical to a material issue which was raised and necessarily decided in the first action or proceeding, and the plaintiff had a full and fair opportunity to litigate the issue in the earlier action or proceeding. Here, in a prior action, neither the Appellate Division nor the Supreme Court decided the issue raised in this proceeding, namely, whether the New York City Board of Standards and Appeals acted arbitrarily or capriciously in rendering its determinations regarding the issuance of certain building permits. Consequently, the doctrine of collateral estoppel does not preclude the petitioner from raising that issue in this proceeding.

Matter of Arcamone-Makinano v. Perlmutter, NY Slip Op 04222 (2d Dep't July 7, 2021)

Here is the decision.

Tomorrow's issue:  General Municipal Law § 50-e[5].

Real property and the duty of care.

While a possessor of real property has a duty to maintain its premises in a reasonably safe condition, there is no duty to protect or warn against an open and obvious condition which, as a matter of law, is not inherently dangerous.

Morrissette v. Kismat Indian Rest., Inc., NY Slip Op 04220 (2d Dep't July 7, 2021)

Here is the decision.

Tomorrow's issue:  The doctrine of collateral estoppel.

The doctrine of primary assumption of risk.

Under the doctrine, a voluntary participant in a sporting or recreational activity consents to those commonly appreciated risks that are inherent in and arise out of the nature of the sport generally and flow from the participation. Inherent risks in a sporting activity are those which are known, apparent, natural, or reasonably foreseeable consequences of participation, including risks associated with the construction of the playing surface and any open and obvious condition on it. It is not necessary to the application of assumption of risk that the injured plaintiff have foreseen the exact manner in which the injury occurred, so long as the plaintiff is aware of the potential for injury of the mechanism from which the injury results. When a plaintiff assumes the risk of participating in a sporting event, the defendant is relieved of legal duty to the plaintiff; and being under no duty, the defendant cannot be charged with negligence.

Goulet v. Pier 2 Roller Ring at Brooklyn Bridge Park, NY Slip Op 04216 (2d Dep't July 7 2021)

Here is the decision.

Tomorrow's issue:  Real property and the duty of care.

Election of remedies.

Where there is a bona fide dispute as to the existence of a contract, the plaintiff need not elect its remedies and may proceed upon theories of unjust enrichment or quasi-contract.

Emby Hosiery Corp. v. Tawil, NY Slip Op 04214 (2d Dep't July 7, 2021)

Here is the decision.

Tomorrow's issue:  The doctrine of primary assumption of risk.

CPLR 213[4].

An action to foreclose a mortgage is subject to a six-year statute of limitations. Where the mortgage is payable in installments, a separate cause of action accrues for each unpaid installment, and the limitations period begins to run on the due-date of each installment. However, once a mortgage debt is accelerated, the entire amount is due, and the statute of limitations begins to run on the entire debt. Acceleration of a mortgage debt requires an unequivocal overt act, such as the commencement of a foreclosure action which specifically invokes that relief. However, where the acceleration occurred by virtue of the filing of a complaint, the noteholder's voluntary discontinuance of that action constitutes, as a matter of law, an affirmative act of revocation of the acceleration, absent an express, contemporaneous statement to the contrary by the noteholder. 

Citibank, N.A. v. Kletzky, NY Slip Op 04213 (2d Dep't July 7, 2021)

Here is the decision.

Tomorrow's issue:  Election of remedies.

CPLR 3213.

The assertion of a defense based on facts extrinsic to the instrument at issue is insufficient to defeat a motion for summary judgment in lieu of complaint.

Deka Immobilien Inv. GmbH v. Lexington Ave. Hotel, L.P., NY Slip Op 04275 (1st Dep't July 8, 2021)

Here is the decision.

Tomorrow's issue:  CPLR 2314[b].

Email settlements.

The rule in the First Department is that when an attorney hits "Send" with the intention of relaying a settlement offer or acceptance, and the email account is identified in some way as the attorney's own, it is not necessary for the attorney to type his own signature.  However, this does not mean that every email purporting to settle a dispute will be unassailable evidence of a binding settlement. First, because there is a rebuttable presumption that an email from an attorney's account is authentic, a party that claims an email was the product of a hacker may challenge its authenticity. Second, as with all enforceable settlements, an email settlement must set forth every material term. 

Matter of Philadelphia Ins. Indem. Co. v. Kendall, NY Slip Op 04284 (1st Dep't July 8, 2021)

Here is the decision.

Civil contempt.

The Appellate Division affirmed, with costs, the Order which held defendant in civil contempt of court and ordered that he pay a fine of $500 per day until the contempt is purged. Clear and convincing evidence supports the court's entry of the contempt order. The record establishes that defendant disobeyed the plain terms of the court's earlier order requiring compliance with the subpoena, which clearly mandated that he respond to the subpoena "fully, completely, and truthfully" by March 10, 2020. Defendant failed to provide any answers to the subpoena by the deadline, submitting his first responses nearly three months later. When defendant finally did respond to the subpoena in June 2020, he submitted information that was demonstrably incomplete and untruthful. Defendant's reliance on the COVID-19 pandemic as an excuse for his noncompliance is unavailing He was served with the subpoena in June 2019, months before the pandemic. Moreover, not all of the information defendant was ordered to turn over required collection from third parties or outside sources. Finally, his failure to appear at the contempt hearing - despite having been offered the option of attending via videoconference, and being on notice that his failure to appear could result in his arrest - was, in and of itself, sufficient grounds for a finding of contempt.

Sang Cheol Woo v. Spackman, NY Slip Op 04287 (1st Dep't July 8, 2021)

Here is the decision.

Leave to amend.

While a motion for leave to amend should not be granted if the nonmoving party would be prejudiced by the delay, the need for additional discovery does not constitute prejudice sufficient to justify denial of an amendment. Here, the parties do not dispute that depositions have not taken place and discovery is not otherwise complete, and the motion is granted.

322 W. 47th Street HDFC v. Tibaldeo, NY Slip Op 04199 (1st Dep't July 6, 2021)

Here is the decision.

Alter ego liability.

A party seeking to pierce the corporate veil must establish that (1) the owners exercised complete domination of the corporation with respect to the transaction attacked, and (2) the domination was used to commit a fraud or wrong against the plaintiff which resulted in the plaintiff's injury. As a general rule, a claim for alter ego liability is fact-laden and not well-suited for summary judgment.

Arjumand v. LaGuardia Express, LLC, NY Slip Op 04117 (2d Dep't June 30, 2021)

Here is the decision.

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. Where the maturity of the debt has been validly accelerated by commencement of a foreclosure action, the noteholder's voluntary withdrawal of that action revokes the election to accelerate, absent the noteholder's contemporaneous statement to the contrary.

21st Mtge. Corp. v. Rivera, NY Slip Op 04116 (2d Dep't June 30, 2021)

Here is the decision.

A statute of limitations defense.

The doctrine of equitable estoppel does not bar defendants from asserting the defense since nothing in the record shows that any of their acts contributed to the delay in filing the complaint. In fact, the allegations in the complaint show that plaintiffs had or could have obtained with due diligence all the information they needed to bring an action before the limitations period expired. Neither does the continuing wrong doctrine apply to toll the applicable statute of limitations on the cause of action for an accounting since the actual wrongs on which that cause of action is based are defendants' alleged fraud and breach of contract.

Derringer v. F.G.G. Prods. Inc., NY Slip Op 04187 (1st Dep't July 1, 2021)

Here is the decision.

Yellowstone injunctions.

The plaintiff must demonstrate that (1) it holds a commercial lease; (2) it received from the landlord either a notice of default, a notice to cure, or a threat of termination of the lease; (3) it requested injunctive relief prior to the termination of the lease; and (4) it can cure the alleged default by any means short of vacating the premises. The First Department interprets the third criterion to require a tenant to move for injunctive relief before the cure period in the landlord's notice expires.

Gap, Inc. v. 170 Broadway Retail Owner, LLC, NY Slip Op 04115 (1st Dep't June 29, 2021)

Here is the decision.

CPLR 3213.

The Appellate Division affirmed the Order which granted plaintiff's motion for summary judgment in lieu of complaint and denied defendant's cross motion for summary judgment. The plaintiff made a prima facie showing by proof of the parties' agreement and defendant's failure to make the required payments. The defendant failed to raise an issue of fact as to his defense that the loan is unenforceable under General Obligation Law § 5-413 as a loan made for the purpose of gambling or as a loan with a usurious interest rate. The defendant argued that the plaintiff's motion is premature, citing a need for discovery of a locked flash drive on which plaintiff allegedly maintained a spreadsheet of usurious loans. The Appellate Division rejected the argument, as he failed to explain why he was unable to maintain his own tally of monies loaned, monies paid, and interest rates. 

Bronson v. Jacobs, NY Slip Op 04081 (1st Dep't June 24, 2021)

Here is the decision.