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).