CPLR 213[4].

An action to foreclose a mortgage is subject to a six-year statute of limitations. The limitations period begins to run from the due date of each unpaid installment, from the date the mortgagee is entitled to demand full payment, or from the date the mortgage debt has been accelerated.

Bank of Am., N.A. v. Scher, NY Slip Op 03365 (2d Dep't May 25, 2022)

Here is the decision.

 

An untimely notice of claim.

The notice of claim, filed without leave of court, is a nullity.

Umeh v. New York City Health & Hosps. Corp., NY Slip Op 03358 (1st Dep't May 24, 2022)

Here is the decision.

A motion for leave to enter a default judgment.

The applicant must submit proof of service of the summons and complaint or summons and notice, proof of the facts constituting the cause of action, and proof of the defaulting defendant's failure to answer or appear, pursuant to CPLR 3215[f]. In order to demonstrate the facts constituting the cause of action, the plaintiff need only submit sufficient proof to enable a court to determine if the cause of action is viable, since defaulters are deemed to have admitted all factual allegations contained in the complaint and all reasonable inferences that flow from them.

Banks v. 110-18 198th St. Corp., NY Slip Op 03222 (2d Dep't May 18, 2022)

Here is the decision

CPLR 2309(c) and 2001.

In deciding defendant's motion to dismiss the complaint, the motion court properly considered defendant's sworn affidavit attaching the contract at issue, even though it lacked the required certificate of conformity. The absence of such a certificate is a mere irregularity and not a fatal defect. The motion court properly disregarded the irregularity because plaintiff does not allege that it prejudiced her.

Sebrow v. Sebrow, NY Slip Op 03337 (1st Dep't May 19, 2022)

Here is the decision.

Appellate practice.

The evidentiary rulings challenged by defendant are the functional equivalent of rulings on a partial summary judgment motion determining the scope of issues to be tried, and thus involve the merits of the dispute. As a result, the rulings affect a substantial right and are directly appealable before any trial order or judgment.

Shyer v. Shyer, NY Slip Op 03338 (1st Dep't May 19, 2022)

Here is the decision.

A legal malpractice action.

Plaintiff claims that defendants negligently failed to advise it that an amendment to a commercial lease would extinguish its purchase option upon sale of the premises, and that, but for defendants' negligence, it would not have signed the amendment but would have exercised its purchase option as of right between 2023 and 2024, acquiring the premises for no more than $11.4 million. It is undisputed that after the amendment was executed, the landlord received a bona fide third-party purchase offer and plaintiff exercised its right of first refusal, purchasing the premises in 2016 for $14.5 million.

Defendants motion for summary judgment dismissing the claim is denied. Defendants' email attaching a marked-up copy of the relevant lease section does not establish, as a matter of law, that defendants advised plaintiff as to the meaning of the amendment, and the parties dispute the oral advice that was provided by defendants. The fact that plaintiff's agent read the amendment does not establish, as a matter of law, that defendants were not negligent. Any evidence that plaintiff's agent, a sophisticated businessman, knew or should have known that the amendment was substantive despite defendants' advice that it was "housekeeping" does not disprove defendants' negligence. It is evidence that can be offered in mitigation of damages.

Alrose Steinway, LLC v. Jaspan Schlesinger, LLP, NY Slip Op 03310 (1st Dep't May 19, 2022)

Here is the decision.

CPLR 501.

 "A written agreement fixing place of trial, made before an action is commenced, shall be enforced upon a motion for change of place of trial." Based on the express statutory language, the enforcement of a contractual venue selection clause may not be raised sua sponte, but must be raised by motion or otherwise settled on consent of the parties.

Allen v. Morningside Acquisition I, LLC, NY Slip Op 03219 (2d Dep't May 18, 2022)

Here is the decision.

CPLR 3101(a).

The statute directs that "[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action." However, a party is not entitled to unlimited, uncontrolled, and unfettered disclosure. Since a party does not waive the physician-patient privilege with respect to unrelated illnesses or injuries, the defendant was not entitled to authorizations for the release of the injured plaintiff's medical records pertaining to a prior automobile accident and stroke. The defendant did not show that the injuries and illness were related to the accident at issue, and so the defendant failed to meet its initial burden of demonstrating that those records were relevant to the issues in controversy, and material and necessary to the defense of this action. 

Fitzpatrick v. Consolidated Resistance Co. of Am., Inc., NY Slip Op 03097 (2d Dep't May 11, 2022)

Here is the decision.

A time-barred Article 78 petition.

The Appellate Division affirmed the denial of the petition brought to expunge the May 6, 2019 disciplinary letter from petitioner's personnel file. As the four-month statute of limitations began to run when the letter was placed in petitioner's file, and this proceeding was not commenced until January 13, 2021, the court should not have considered the letter.

Matter of Connors v. City of New York, NY Slip Op 03209 (1st Dep't May 17, 2022)

Here is the decision.

CPLR 5001.

The motion court properly awarded statutory interest on the amount owed by the LLC defendants. The fact that the borrower must pay contractual interest on the underlying loan does not preclude the court's imposition of statutory interest on the amount that the LLC defendants owe under separately executed guaranties.

Talos Capital Designated Activity Co. v. 257 Church Holdings LLC, NY Slip Op 03186 (1st Dep't May 12, 2022)

Here is the decision.

Constructive notice of a hazardous condition.

A defendant has constructive notice of a hazardous condition on property when the condition is visible and apparent, and has existed for a sufficient length of time prior to the accident so as to afford the defendant a reasonable opportunity to discover and remedy it. To meet its burden on the issue of constructive notice, the defendant must offer evidence as to when the accident site was last inspected relative to the time when the plaintiff fell.

 Ferrer v. 120 Union Ave., LLC, NY Slip Op 03096 (2d Dep't May 11 2022)

Here is the decision.

CPLR 5015(a)(3).

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

3331 102 St. LLC v. Newport Beach Holdings LLC, NY Slip Op 03170 (1st Dep't May 12, 2022)

Here is the decision.

Affidavits of service.

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

Federal Natl. Mtge. Assn v. Grossman, NY Slip Op 03095 (2d Dep't May 11, 2022)

Here is the decision.

CPLR 1024.

The motion to dismiss the complaint is denied where plaintiff made diligent efforts to ascertain the defendant's identity prior to filing the complaint, and the complaint adequately described the defendant so as to apprise him that he was the intended defendant.

Strautmanis v. GMDC Two Corp., NY Slip Op 03092 (1st Dep't May 10, 2022)

Here is the decision.

Res judicata as a bar to a claim.

The claim is not barred by the doctrine of res judicata, because the New Jersey appellate court's dismissal was without prejudice, and, therefore, was not a final determination on the merits.

Wormser Corp. v. L'Oréal USA, Inc., NY Slip Op 03093 (1st Dep't May 10, 2022)

Here is the decision.

Tenants in common.

Where parties hold property as tenants in common, occupancy by one tenant is presumed to be possession by and for the benefit of all other cotenants, unless the possessing tenant commits acts constituting ouster, at which point, the possessing tenant may commence to hold adversely to the cotenants. The ouster can be actual, where a cotenant expressly communicates an intention to exclude or to deny the rights of cotenants, or, it can be implied, where the acts of the possessing cotenant are so openly hostile that the nonpossessing cotenants can be presumed to know that the property is being adversely possessed against them. Title by adverse possession is acquired when possession is hostile and under claim of right, actual, open and notorious, exclusive, and continuous for the statutory period of 10 years after the ouster.

Belli v. Paul Belli, LLC, NY Slip Op 02973 (2d Dep't May 4, 2022)

Here is the decision.

A petition to vacate an arbitration award.

The court will deny the petition if there is a rational basis for the arbitrator's award. 

Matter of Rivera v. New York City Tr. Auth., NY Slip Op 03061 (1st Dep't May 5, 2022)

Here is the decision.

Appellate practice.

The Appellate Division's resolution of an issue on a prior appeal constitutes the law of the case and is binding on the Supreme Court, as well as on an appellate court.

862 Second Ave. LLC v. 2 DAG Hammarskjold Plaza Condominium, NY Slip Op 03047 (1st Dep't May 5, 2022)

Here is the decision.

CPLR 302(a)(1).

In order to establish personal jurisdiction over defendants under New York's long-arm statute, the plaintiff must establish that defendants engaged in purposeful activities in New York, conducted or transacted business in this state, or availed themselves of the benefits of New York law. Placing allegedly defamatory content on the internet and making it accessible to the public does not constitute the transaction of business in New York, even when it is likely that the material will be read by New Yorkers. 

Kingstown Capital Mgt. L.P. v. CPI Prop. Group, S.A., NY Slip Op 03064 (1st Dep't May 5, 2022)

Here is the decision.

CPLR 3211(a)(5).

On a motion to dismiss a cause of action on the ground that it is barred by the statute of limitations, the defendant bears the initial burden of establishing, prima facie, that the time in which to sue has expired. The burden then shifts to the plaintiff to present admissible evidence establishing that the action was timely or to raise a question of fact as to whether the action was timely.

Bank of N.Y. Mellon v. Muriqi, NY Slip Op 02970 (2d Dep't May 4, 2022)

Here is the decision.

An unverified foreclosure complaint.

Where the complaint is not verified, upon any application for a default judgment, proof of the facts constituting the claim, the default, and the amount due must be set forth in an affidavit made by the party, pursuant to CPLR 3215(f).  Here, the plaintiff submitted an affidavit of merit executed by a vice president of its purported loan servicer. However, there is no evidence in the record demonstrating that this individual had the authority to act on behalf of the plaintiff. Plaintiff's motion for leave to enter a default judgment is denied. 

Aurora Loan Servs., LLC v. Jemal, NY Slip Op 02970 (2d Dep't May 4, 2022)

Here is the decision.

Claims for violation of Judiciary Law § 487.

In order to survive dismissal, the plaintiff must show egregious conduct or a chronic and extreme pattern of behavior on the part of the defendant attorneys proximately resulting in damages.

Pruss v. AmTrust N. Am. Inc., NY Slip Op 02884 (1st Dep't April 28, 2022)

Here is the decision.

A movant's reply papers.

While the moving defendants should have submitted the security agreement as part of their moving papers, their submission of it in reply was proper, since it responded to an argument that the plaintiff made in opposition to the moving defendants' cross motion for summary judgment.

140 W. 57th St. Bldg. LLC v. Berrie, NY Slip Op 02935 (1st Dep't May 3,2022)

Here is the decision.

An agent's liability.

The agent for a disclosed principal will not be personally bound unless there is clear and explicit evidence of the agent's intention to substitute his liability for the principal's liability or to superadd his liability to the principal's liability.

Pruss v. AmTrust N. Am. Inc., NY Slip Op 02884 (1st Dep't April 28, 2022)

Here is the decision.

The statute of frauds.

A contract for the sale of real property must be evidenced by a writing which identifies the parties; describes the subject matter; is signed by the party to be charged; and states the essential terms of the agreement. In a real estate transaction, the essential terms of a contract include the purchase price, the time and terms of payment, the required financing, the closing date, the quality of title to be conveyed, the risk of loss during the sale period, and adjustments for taxes and utilities. The writing must set forth the entire contract with reasonable certainty so that the substance thereof appears from the writing alone. If the contract is incomplete and it is necessary to resort to parol evidence to ascertain what was agreed to, the remedy of specific performance is not available.

Cohen v. Holder, NY Slip Op 02778 (2d Dep't April 27, 2022)

Here is the decision.

A cause of action for negligent hiring and retention.

The plaintiff must allege that the employer knew of its employee's harmful propensities, that it failed to take necessary action, and that this failure caused damage to others. The cause of action does not have to be pleaded with specificity.

Waterbury v. New York City Ballet, Inc., NY Slip Op 02890 (1st Dep't April 28, 2022)

Here is the decision.

Judiciary Law § 487.

The statute applies to an attorney acting in his capacity as an attorney, not to a party who is represented by counsel and who, incidentally, is an attorney. Under Judiciary Law § 487(1), an attorney who guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party is liable to the injured party for treble damages.

Altman v. DiPreta, NY Slip Op 02774 (2d Dep't April 27, 2022)

Here is the decision.