Appellate practice.

A sua sponte order is not appealable as of right.

Matter of Ramirez v. Selective Advisors Group, LLC, NY Slip Op 01134 (1st Dep't February 22, 2022)

Here is the decision.

Appellate practice.

The Appellate Division may take judicial notice of papers that are e-filed via NYSCEF. 

1591 Second Ave. LLC v. Metropolitan Transp. Auth., NY Slip Op 01113 (1st Dep't February 22, 2022)

Here is the decision.

Motion practice.

The moton court is not required to consider a reply submission to remedy a deficiency in the moving papers.

Iacovacci v. Brevet Holdings, LLC, NY Slip Op 01099 (1st Dep't February 17, 2022)

Here is the decision.

Demonstrating standing in a mortgage foreclosure action.

The plaintiff has standing where it is the holder or assignee of the underlying note at the time the action is commenced. Either a written assignment or the physical delivery of the note prior to commencement of the action is sufficient to transfer the obligation, and the mortgage passes with the debt as an inseparable incident. The assignment of a note and mortgage need not be in writing, and can be effectuated by physical delivery. Here, the plaintiff demonstrated that it had standing by attaching to the complaint a copy of the note, with an allonge endorsing the note in blank.

Bayview Loan Servicing, LLC v. Caracappa, NY Slip Op 00997 (2d Dep't February 16, 2022)

Here is the decision.

CPLR 3215(c).

"If 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."  In order to establish sufficient cause within the meaning of the statute, 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.

Bank of N.Y. Mellon Trust Co. v. Kyung Soon Lee, NY Slip Op 00996 (2d Dep't February 16, 2022)

Here is the decision.

Service of process.

Because the defendant failed to notify the Department of Motor Vehicles of his change of address, as required by Vehicle and Traffic Law § 505(5), he is estopped from challenging service at his former address.

Perlbinder Holdings LLC v. Patel, NY Slip Op 01106 (1st Dep't February 17, 2022)

Here is the decision.

The doctrine of governmental function immunity.

The State's providing security measures at the Bronx Psychiatric Campus (BPC) involves a governmental function and the discretionary allocation of resources. In the absence of facts establishing a special relationship between the State and the claimant and the performance of ministerial acts by the State, neither of which is present here, the BPC is immune from liability for the alleged sexual assault of claimant at the BPC.

T.R. v. State of New York, NY Slip Op 01110 (1st Dep't February 17, 2022)

Here is the decision.

Court holiday.

An Article 75 petition to vacate or modify a mediator's award.

The parties unequivocally agreed, in writing, to submit their contract dispute to the mediator, and that they would be "bound by" the mediator's decision. They further agreed to "waive any right to review or appeal from such decision." The plain language of the parties' agreements precludes judicial review.

Matter of Trebuchet Capital Mgt., LP v. Prelude Opportunity Fund, LP, NY Slip Op 00991 (1st Dep't February 15, 2022)

Here is the decision.

The doctrine of judicial estoppel.

A party is judicially estopped from arguing a particular position only if it is truly inconsistent with the party's prior position.

White Rock Ins. Co. PCC Ltd. v. Lloyd's Syndicate 4242, NY Slip Op 00993 (1st Dep't February 15, 2022)

Here is the decision.

CPLR 3217.

A plaintiff may voluntarily discontinue an action by serving and filing a notice of discontinuance, by filing a written stipulation that is signed by the parties' attorneys of record, or by obtaining a court order discontinuing the action.

Bank of Am., N.A. v. Ali, NY Slip Op 00838 (2d Dep't February 9, 2022)

Here is the decision.

CPLR 7504.

The court has authority to designate an arbitral forum, since the defendant, even after arguing on a prior motion that the parties were required to arbitrate their dispute, refused to submit the dispute to binding arbitration before any forum.

Meckler v. Molner, NY Slip Op 00943 (1st Dep't February 10, 2022)

Here is the decision.

A Labor Law § 240(1) cause of action.

Where the plaintiff is the sole witness to the accident and his credibility is placed in issue, the granting of summary judgment on the issue of liability is inappropriate.

Alvarez v. 2455 8 Avenue, LLC, NY Slip Op 00837 (2d Dep't February 9, 2022)

Here is the decision.

CPLR 2221[e].

Defendant's motion for leave to renew based on new evidence is denied because the documentary evidence submitted does not conclusively establish, as a matter of law, a defense to the asserted claims, and would not change the prior determination.

Sotheby's, Inc. v. Chowaiki, NY Slip Op 00955 (1st Dep't February 10, 2022)

Here is the decision.

An arbitrator's award of attorneys' fees.

The arbitrator's authority extends only to those issues that are expressly presented by the parties, and, therefore, the award of fees must be demanded. A prayer for such other relief as is just and proper is not a demand for fees. 

Matter of 544 Bloomrest, LLC v. Harding, NY Slip Op 00936 (1st Dep't February 10, 2022)

Here is the decision.

Appellate practice.

The Appellate Division will not consider arguments that are raised for the first time on appeal.

Newport E. Inc. v. Sviba Floral Decorators, Inc., NY Slip Op 00819 (1st Dep't February 8, 2022)

Here is the decision.

Limitations period for medical malpractice.

The action must be commenced within two and one-half years of the alleged act, omission, or failure, or, where there is continuous treatment, the last treatment for the same illness, injury, or condition which gave rise to the alleged act, omission, or failure. Under the continuous treatment doctrine, the limitations period is tolled until the end of the course of treatment on three conditions: (1) the patient continued to seek, and obtained, an actual course of treatment from the defendant during the relevant period; (2) the course of treatment was for the same conditions or complaints underlying the plaintiff's claim; and (3) the treatment is continuous. There may be continuity of treatment when further treatment is explicitly anticipated by both the physician and patient, as manifested in the form of a regularly scheduled appointment for the near future in conformance with the periodic appointments which characterized the treatment in the immediate past. However, a discharge by a physician does not preclude application of the toll if the patient timely initiates a return visit to complain about, and seek further treatment for, conditions related to the earlier treatment.

Chvetsova v. Family Smile Dental, NY Slip Op 00650 (2d Dep't February 2, 2022)

Here is the decision.

Court holiday.

Tax estoppel.

Tax estoppel is applicable where the party seeking to contradict a tax return's factual statements as to ownership of an entity signed the return, and has failed to assert any basis for not crediting the statements.

Tradesman Program Mgrs., LLC v. Doyle, NY Slip Op 00747 (1st Dep't February 3, 2022)

Here is the decision.

Service of process on a corporation.

Service on a corporation by delivering process to the Secretary of State is not personal delivery to the corporation or to an agent designated under CPLR 318.

Barnett v. Diamond Fin. Co., Inc., NY Slip Op 00648 (2d Dep't February 2, 2022)

Here is the decision.

CPLR 317.

A defendant who has been served with a summons other than by personal delivery may be allowed to defend the action upon the court's finding that the defendant did not personally receive notice of the summons in time to defend and has a potentially meritorious defense. However, the mere denial of receipt of service of the summons and complaint does not demonstrate that the defendant did not receive notice of the action in time to defend.

Barnett v. Diamond Fin. Co., Inc., NY Slip Op 00648 (2d Dep't February 2, 2022)

Here is the decision.

CPLR 5015(a)(2).

In order to succeed on a motion to vacate an order or judgment on the ground of newly discovered evidence, the movant must establish that the evidence could not have been discovered earlier through the exercise of due diligence, and that the newly discovered evidence would probably have produced a different result.

Abakporo v. Abakporo, NY Slip Op 00647 (2d Dep't February 2, 2022)

Here is the decision.

Priority of security interests.

Under UCC § 9-330(d), "a purchaser of an instrument has priority over a security interest in the instrument perfected by a method other than possession if the purchaser gives value and takes possession of the instrument in good faith and without knowledge that the purchase violates the rights of the secured party." In the absence of such a purchase, the timing of the filing or perfection of the parties' security interests determines the rank of their priority, pursuant to UCC § 9-322[a][1].

NRT N.Y., LLC v. Middlegate Funding LLC, NY Slip Op 00646 (1st Dep't February 1, 2022)

Here is the decision.

CPLR 3212[f].

A summary judgment motion will be denied as premature where there is an evidentiary basis to suggest that additional discovery may lead to relevant evidence, or that facts essential to opposing the motion are exclusively within the knowledge and control of the movant.

Brooklyn Cancer Care Med., P.C. v. Brooklyn Hosp. Ctr., NY Slip Op 00395 (2d Dep't January 26, 2022)

Here is the decision.

An untimely motion to change venue.

It is a proper exercise of discretion to grant the motion when the defendant's delay can be attributed to plaintiff's willful omissions or misleading statements and the defendant moves promptly after ascertaining the truth about plaintiff's residence.

Montgomery v. ELRAC, Enter. Holdings, Inc., NY Slip Op 00508 (1st Dep't January 27, 2022)

Here is the decision.

CPLR 3215[f].

On a motion for leave to enter a default judgment against a defendant based on the failure to answer or appear, the plaintiff must submit proof of service of the summons and complaint, proof of the facts constituting the cause of action, and proof of the defendant's default. In order to defeat a facially sufficient CPLR 3215 motion, a defendant must show either that there was no default, or that he had a reasonable excuse for his delay and a potentially meritorious defense.

Bank of N.Y. Mellon v. Lee, NY Slip Op 00392 (2d Dep't January 26, 2022)

Here is the decision.

Article 78 proceedings.

In an article 78 proceeding, the court may not weigh the evidence or reject the agency's choice where the evidence is conflicting and there is room for choice.

Matter of Reynoso v. New York City Off. of Admin. Trials & Hearings, NY Slip Op 00521 (1st Dep't January 27, 2022)

Here is the decision.

Appellate practice.

In reviewing a determination made after a nonjury trial, the power of the Appellate Division is as broad as that of the trial court, and it may render the judgment it finds warranted by the facts, bearing in mind that, in a close case, the trial judge had the advantage of seeing the witnesses.

Baden v. Bregy, NY Slip Op 00391 (2d Dep't January 26, 2022)

Here is the decision.