Time-bar in a mortgage foreclosure action.

Plaintiff's predecessor failed to mail defendant a notice of default in accordance with the terms of the mortgage agreement, a condition precedent to accelerating the debt. Because that purported acceleration was a nullity, the statute of limitations never accrued and, therefore, the present foreclosure action, commenced after the proper mailing of a default notice, was timely. Given the timeliness of the foreclosure action, defendant's action to quiet title cannot be maintained.

1900 Capital Trust III v Guaman, NY Slip Op 02075 (1st Dep't April 25, 2023)

Here is the decision.

Service of process.

The court does not have personal jurisdiction over a defendant when the plaintiff fails to properly serve process, and any subsequent proceedings are null and void. A process server's affidavit of service establishes a prima facie case as to the method of service, and gives rise to a presumption of proper service.  In order to vacate a default judgment under CPLR 5015(a)(4), the defendant must overcome the presumption raised by the process server's affidavit. Although bare and unsubstantiated denials are insufficient to rebut the presumption of service, a sworn denial of service containing specific facts generally rebuts the presumption of proper service established by the affidavit of service and necessitates a hearing.

Here, the defendant offered no specific facts or documentary or other evidence demonstrating that he did not reside at the address where service was effected. Therefore, his affidavit was insufficient to rebut the presumption of proper service established by the affidavit of service. 

Deutsche Natl. Bank Trust Co. v. Williams, NY Slip Op 01982 (2d Dep't April 19, 2023)

Here is the decision.

Dismissal on the ground of documentary evidence.

A motion to dismiss the complaint on the ground that the action is barred by documentary evidence, pursuant to CPLR 3211(a)(1), may be granted only where the documentary evidence utterly refutes the plaintiff's factual allegations, thereby conclusively establishing, as matter of law, a defense to the action.

Buchanan v. Law Offs. of Sheldon E. Green, P.C., NY Slip Op 01979 (2d Dep't April 19, 2023)

Here is the decision.

Waiver of arbitration.

Defendant waived its contractual right to arbitrate the dispute by participating in the litigation over an 18-month period, during which defendant requested an extension of time to answer the complaint, filed an answer, appeared at a preliminary conference, and agreed to a discovery schedule.

Hoffman v. AKT in Motion, Inc., NY Slip Op 02062 (1st Dep't April 20, 2023)

Here is the decision.

Failure to state a cause of action.

On a motion to dismiss a complaint for failure to state a cause of action, pursuant to CPLR 3211(a)(7),  the court must afford the pleading a liberal construction, accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal theory. The test of the sufficiency of the complaint is whether it gives sufficient notice of the transactions, occurrences, or series of transactions or occurrences intended to be proved and whether the requisite elements of any cause of action known to our law can be discerned from its averments. Whether the plaintiff can ultimately establish its allegations is not a part of the calculus, and any deficiencies in the complaint may be amplified by supplemental pleadings and other evidence.

Cabrera v. Rallye Motors, LLC, NY Slip Op 01885 (2d Dep't April 12, 2023)

Here is the decision.

Res judicata.

Pursuant to the doctrine of res judicata, or claim preclusion, 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 either was raised or could have been raised in the prior proceeding.  The doctrine may be applied even if the litigation is based upon different theories or if seeking a different remedy than in the prior proceeding.

Brody v. RBC Mtge. Co., NY Slip Op 01883 (2d Dep't April 12, 2023)

Here is the decision.

Summary judgment on a sexual harassment claim under the City's Human Rights Law.

The statute does not differentiate between sexual harassment and other forms of gender discrimination, but, instead, considers sexual harassment as one species of sex- or gender-based discrimination.  Therefore, the court cannot grant the defendant's motion on the gender discrimination claim while denying the motion with respect to the hostile work environment and sexual harassment claim. Plaintiff can make out a prima facie case in the absence of an adverse employment action. In deciding the motion, defendant bore the burden of showing that, based on the record evidence and drawing all reasonable inferences in plaintiff's favor, no jury could find defendant liable for gender-based discrimination. Plaintiff submits sufficient evidence to support her assertions that, after she rejected her supervisor's sexual advances, she was unjustifiably criticized for her work product and attendance by her supervisors and was stripped of her assignments, which permits a finding that she was treated less well based on her gender. 

Bond v. New York City Health & Hosps. Corp., NY Slip Op 01939 (1st Dep't April 13, 2023)

Here is the decision.

Excusable defaults.

Pursuant to CPLR 5015(a)(1), a court may relieve a party from a judgment or order on the ground of excusable default, if a motion for that relief is made within one year after service of a copy of the judgment or order with written notice of entry. Even after expiration of the one-year limitations period set forth in the statute, a court may vacate its own judgment for sufficient reason and in the interests of substantial justice.

Here, the motion to vacate the default was untimely since it was not made within one year after service of a copy of the order with written notice of entry.  There was no basis for an extension of the one-year period in the exercise of discretion, since the defendant failed to demonstrate a reasonable excuse for his lengthy delay in moving to vacate the default.

Bank of N.Y. Mellon v. Geffrard, NY Slip Op 01882 (2d Dep't April 12, 2023_

Here is the decision.

Abandoning an action.

The action was not rendered a nullity by plaintiff's withdrawal of his initial summons and motion for summary judgment in lieu of a complaint, pursuant to CPLR 3213, as the parties' course of conduct reflected an understanding that plaintiff was not discontinuing or abandoning the action. Plaintiff withdrew the summons and motion "without prejudice" after reaching a settlement agreement with defendant, but the agreement expressly stated that the matter would be discontinued "with prejudice" upon defendant's full and complete compliance with its payment obligations. After defendant defaulted, plaintiff and defendant participated in further settlement discussions, court conferences, and motion practice for years before defendant invoked the argument that the action had been discontinued or abandoned.

Rizzo v. Progressive Capital Solutions, LLC, NY Slip Op 01948 (1st Dep't April 13, 2023)

Here is the decision.

Motions for summary judgment.

Pursuant to CPLR 3212(b), the motion must be supported by an affidavit made by a person with knowledge of the facts. Here, plaintiff failed to submit an affidavit.  Plaintiff submitted his attorney's affirmation, but such an affirmation is of no evidentiary value. Plaintiff's complaint is not verified, and so it cannot be used in lieu of an affidavit.

Tribbs v. 326-338 E 100th LLC, NY Slip Op 01950 (1st Dep't April 13, 2023)

Here is the decision.

Dismissal on the ground of failure to prosecute.

A court may not dismiss an action based on neglect to prosecute unless CPLR 3216's preconditions are met.  Here, the Supreme Court failed to serve a written demand upon the plaintiff to resume prosecution of the action and serve and file a note of issue within 90 days of receipt of the demand, pursuant to CPLR 3216[b][3]. Since at least one precondition set forth in CPLR 3216 was not met, the court was without power to direct dismissal of the complaint pursuant to that statute. 

Deutsche Bank Trust Co. Ams. v. Gonzales, NY Slip Op 01778 (2d Dep't April 5, 2023)

Here is the decision.

A motion for contractual and common-law indemnification.

Absent a showing that the movant was free of negligence, the motion will be denied.

Attia v. Slazer Enters., LLC, NY Slip Op 01834 (1st Dep't April 6, 2023)

Here is the decision.

Dismissal on the ground of statute of limitations.

In determining the applicable limitations period, the court must look to the substance of the allegations rather than to the parties' characterization of those allegations. On a motion to dismiss a cause of action pursuant to CPLR 3211(a)(5) as barred by the applicable statute of limitations, the defendant bears the initial burden of demonstrating, prima facie, that the time within which to commence the cause of action has expired.  Once that showing has been made, the burden shifts to the plaintiff to raise a question of fact as to whether the statute of limitations is tolled or is otherwise inapplicable.

Haddad v. Muir, NY Slip Op 01780 (2d Dep't April 5, 2023)

Here is the decision.

Defalut judgments.

A plaintiff must move for a default judgment within one year of the defendant's default or face dismissal, pursuant to CPLR 3215(c). Here, the plaintiffs' time in which to seek a default judgment is measured from the default in responding to the amended complaint, which was served less than a year after the service of the original complaint.  The amended pleading superseded the original complaint and became the only complaint in the case, restarting the clock on plaintiffs' one-year period in which to move for a default judgment.

NYCTL 2017-A Trust v. Heirs-at-Law of John Ghiselli, NY Slip Op 01845 (1st Dep't April 6, 2023)

Here is the decision.

Discontinuance.

An action is not automatically terminated by agreement except on a showing that the parties have executed an express and unconditional stipulation of discontinuance.

Conroy v. Conroy, NY Slip Op 01776 (2d Dep't April 5, 2023)

Here is the decision.

A claim for common-law indemnification.

The claim is actionable only where a party has been found to be vicariously liable, without proof of any negligence on its own part. 

Shivers v. City Smiles Dental, NY Slip Op 01768 (1st Dep't April 4, 2023)

Here is the decision.

A negligence claim against a municipality.

When a negligence claim is asserted against a municipality, the first issue for the court to decide is whether, when the claim arose, the municipal entity was engaged in a proprietary function or acting in a governmental capacity. A government entity performs a purely proprietary role when its activities substitute for or supplement traditionally private enterprises. When a municipality is engaged in a proprietary function, it is subject to suit, if at all, under the ordinary rules of negligence. However, if the municipality is engaged in a governmental function and acting for the protection and safety of the public pursuant to its police powers, the plaintiff must prove the existence of a special duty as an element of the negligence cause of action. 

Canberg v. County of Nassau, NY Slip Op 01658 (2d Dep't March 29 2023)

Here is the decision.

Vacatur and jurisdiction.

When a party seeking to vacate an order entered upon default seeks both a discretionary vacatur pursuant to CPLR 5015(a)(1) and raises a jurisdictional objection under CPLR 5015(a)(4), the jurisdictional question must be resolved before determining the question of vacatur.

Blue Lagoon, LLC v. Reisman, NY Slip Op 01657 (2d Dep't March 29, 2023)

Here is the decision.

A motion for an extension of time.

The determination of whether to grant a request for an extension of time pursuant to CPLR 2004 is addressed to the sound discretion of the trial court. In exercising its discretion, the court may consider such factors as the length of the delay, the reason or excuse for the delay, and any prejudice to the party opposing the motion. 

Bank of Am., N.A. v. Cord, NY Slip Op 01655 (2d Dep't March 29, 2023)

Here is the decision.

Statutory remedies.

Where a statute creates a right and prescribes a remedy for its violation, that remedy is exclusive, and neither an action for damages nor for an injunction can be maintained. Civil Rights Law § 41 prescribes a monetary remedy for violations of Civil Rights Law § 40-b, and so plaintiffs are limited to that remedy. The motion court cannot issue a preliminary injunction.

Hutcher v. Madison Sq. Garden Entertainment Corp., NY Slip Op 01646 (1st Dep't March 28, 2023)

Here is the decision.

Amending the bill of particulars.

 The court may properly exercise its discretion in permitting a plaintiff to amend the bill of particulars before the filing of the note of issue where there is no prejudice or surprise to defendant and the amendment is not palpably insufficient or devoid of merit. 

Miah v. Pipe Dreams Realty V Corp., NY Slip Op 01649 (1st Dep't March 28, 2023)

Here is the decision.

Vigil.

Stabat Mater.

"Quid est veritas?"

Spy Wednesday.

Reformation of a contract.

There is a presumption that the contract's language embodies the parties' true intent, but when a party shows by clear and convincing evidence that the writing memorialized in an agreement is at variance with the parties' intent, reformation will be granted.

Empery Asset Master, Ltd. v. AIT Therapeutics, Inc., NY Slip Op 01585 (1st Dep't March 23, 2023)

Here is the decision.

Challenging a cooperative board's decisions.

A petition to annul the board's decision will be denied if the decision was made in furtherance of a legitimate corporate purpose and was not arbitrary and capricious or an abuse of discretion, pursuant to CPLR 7803[3]. In addition, absent bad faith or discrimination, the board's decision is protected by the business judgment rule.

Matter of McCabe v. 511 W. 232nd Owners Corp., NY Slip Op 01592 (1st Dep't March 23, 2023)

Here is the decision.

Personal jurisdiction.

A defendant may waive the issue of lack of personal jurisdiction by appearing in an action, either formally or informally, without raising the defense of lack of personal jurisdiction in an answer or pre-answer motion to dismiss. A defendant may appear in an action where counsel communicates a clear intent to participate by actively litigating the action or participating in the lawsuit on the merits.

HSBC Bank USA, N.A. v. Whitelock, NY Slip Op 01500 (2d Dep't March 22, 2023)

Here is the decision.

Injunction claims.

The claim will be dismissed where the plaintiff has an available remedy at law that would furnish plain and adequate relief. 

Salitsky v. D'Attanasio, NY Slip Op 01597 (1st Dep't March 23, 2023)

Here is the decision.