"He is risen."

Vigil.

Stabat Mater.

"Quid est veritas?"

Spy Wednesday.

Contract law.

It is well-settled in New York that merger clauses preclude consideration of prior oral contracts regarding the same subject matter as the written agreement. 

Behler v. Kai-Shing Tao, NY Slip Op 01337 (1st Dep't March 14, 2024)

Here is the decision.

Appellate practice.

The defendant did not seek sanctions before the Supreme Court, and the Appellate Division declines to impose sanctions upon the plaintiffs relating to this appeal, pursuant to 22 NYCRR 130-1.1[c].

150A 30 St. Trust, Israel Grossman Trustee v. Barca Dev., LLC, NY Slip Op 01283 (2d Dep't March 13, 2024)

Here is the decision.

Palm Sunday.

Mandamus.

The extraordinary remedy of mandamus is available, in limited circumstances, only to compel the performance of a purely ministerial act which does not involve the exercise of official discretion or judgment, and only when there is a showing of a clear legal right to the relief.

Matter of Harper v. Neary, NY Slip Op 01176 (2d Dep't March 6, 2024)

Here is the decision.

Motions for leave to renew.

The motion is denied where the movant fails to establish a reasonable justification for not having offered the alleged new facts in the original moving papers.

Mollema v. Citigroup, Inc., NY Slip Op 01281 (1st Dep't March 12, 2024)

Here is the decision.

Summary judgment.

The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any triable issues of fact. The failure to make a prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers. In determining a motion for summary judgment, evidence must be viewed in the light most favorable to the non-moving party, and all reasonable inferences must be resolved in favor of the non-moving party.  The court's function on a motion for summary judgment is not to resolve issues of fact or to determine matters of credibility, but merely to determine whether such issues exist.

Moonilal v. Roman Catholic Church of St. Mary Gate of Heaven, NY Slip Op 01172 (2d Dep't March 6, 2024)

Here is the decision.

Appellate practice.

The record does not reflect that the defendant moved to set aside or vacate the judgment of foreclosure and sale. As a result, this fact-based argument is unpreserved.

Taylor, Bean & Whitaker Mtge. Corp. v. Daniel, NY Slip Op 01262 (1st Dep't March 7, 2024)

Here is the decision.

Artibration.

A party moving to compel arbitration, pursuant to CPLR 7503, has the burden of establishing the existence of a valid agreement.

Lisi v. Nw York Ctr. for Rehabilitation & Nursing, 01171 (2d Dep't March 6, 2024)

Here is the decision.

Guarantors' liability.

An unconditional guarantor cannot allege a mutual mistake defense regarding the underlying contracts.

Valley Natl. Bank v. TDS Cab Corp., NY Slip Op 01264 (1st Dep't March 7, 2024)

Here is the decision.

Motions to disniss.

A motion to dismiss 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, conclusively establishing, as a matter of law, a defense to the action.

Cunningham v. Cunningham, NY Slip Op 01168 (2d Dep't March 6, 2024)

Here is the decision.

Summary judgment on a guaranty.

Plaintiff demonstrated entitlement to its unopposed motion for summary judgment as to liability on its claim for amounts due under defendant's guaranty by establishing the existence of an absolute and unconditional guaranty, the underlying debt, and the guarantor's failure to perform under the guaranty.

3 E. 54th N.Y. LLC v. Chatiris, NY Slip Op 01244 (1st Dep't March 7, 2024)

Here is the decision.

Service of process.

Pursuant to CPLR 317, a party that was not personally served may defend against an action if it demonstrates that it did not have notice of the action and that it has a meritorious defense. Service upon a corporation through delivery of the summons and complaint to the Secretary of State is not personal delivery to the corporation.

Borohov v. Queens Fresh Meadows, LLC, NY Slip Op 01167 (2d Dep't March 6, 2024)

Here is the decision.

Usury laws.

General Obligations Law § 5-501(2) provides that "[n]o person or corporation shall, directly or indirectly, charge, take or receive any money, goods or things in action as interest on the loan or forbearance of any money, goods or things in action at a rate exceeding the [maximum permissible interest] rate." Under General Obligations Law § 5-521(1), the defense of usury is not available to corporations, but this bar does not preclude a corporate borrower from raising the defense of criminal usury, that is, interest over 25%, in a civil action. However, civil and criminal usury laws do not apply to any loan or forbearance in the amount of $2,500,000 or more, pursuant to General Obligations Law § 5-501[6][b].

Alleon Capital Partners v. Choudhry, NY Slip Op 01165 (2d Dep't March 6, 2024)

Here is the decision.

Summary judgment on a personal guaranty.

In order to obtain summary judgment on a personal guaranty, a plaintiff must show an absolute and unconditional guaranty, the underlying debt, and the guarantor's failure to perform under the guaranty.

Consorcia Mgt., LLC v. Mushahwar, NY Slip Op 01156 (1st Dep't March 5, 2024)

Here is the decision.

Contract law.

A claim for reformation of a contract, including reformation based on a scrivener's error, is governed by the six-year statute of limitations, which begins to run on the date that the mistake is made, pursuant to CPLR 213[6].

NCCMI, Inc. v. Bersin Props., LLC, NY Slip Op 01161 (1st Dep't March 5, 2024)

Here is the decision.

Penal statutes and private causes of action.

A private cause of action may be implied from a penal statute only where the plaintiff is one of the class for whose particular benefit the statute was enacted. Here, the claim based on an alleged violation of the reckless endangerment statute is dismissed because the statute was enacted for the benefit of the general public, not for the particular benefit of a class to which the plaintiff belongs.

Alfonso v. Trucar Leasing Corp., NY Slip Op 01154 (1st Dep't March 5, 2024)

Here is the decision.

New York's choice of law rules.

Under New York's choice of law rules, malicious prosecution claims are governed by the law of the state where the underlying proceeding took place. Here, the arbitration that gave rise to plaintiffs' malicious prosecution claim was held in California. Therefore, the court properly applied California law, which bars plaintiffs' malicious prosecution claim because the claim arises from a contractually agreed upon arbitration.

Zeetogroup, LLC v. Baker Hostetler, LLP,  Slip Op 00992 (1st Dep't February 27, 2024)

Here is the decision.

Personal jurisdiction.

An action may be dismissed for lack of personal jurisdiction, pursuant to CPLR 3211[a][8]. The affirmative defense of lack of personal jurisdiction is waived if it is not raised in the answer or a pre-answer motion to dismiss, pursuant to CPLR 3211[e]. However, the defense is not waived if the defendant corrects the omission before the expiration of the time to amend the answer without leave of court. 

Manfredo v. 100-106 LLC, NY Slip Op 01115 (1st Dep't February 29, 2024)

Here is the decision.

Vacating a default.

A party seeking to vacate a default must establish a reasonable excuse for the default, as well as a potentially meritorious claim or defense, pursuant to CPLR 5015[a][1].

Matter of Dublin v Morris, NY Slip Op 01009 (2d Dep't February 28, 2024)

Here is the decision.

Forum non conveniens.

CPLR 327(a) codifies the common-law doctrine of forum non conveniens as follows:

"When the court finds that in the interest of substantial justice the action should be heard in another forum, the court, on the motion of any party, may stay or dismiss the action in whole or in part on any conditions that may be just. The domicile or residence in this state of any party to the action shall not preclude the court from staying or dismissing the action."

A plaintiff's choice of forum should rarely be disturbed, even when plaintiff is not a New York resident. So, a defendant seeking dismissal on forum non conveniens grounds has a heavy burden of establishing that New York is an inconvenient forum and that a substantial nexus between New York and the action is lacking.

Bangladesh Bank v. Rizal Commercial Banking Corp., NY Slip Op 01112 (1st Dep't February 29, 2024)

Here is the decision.

Negligence claims.

In order to establish a cause of action sounding in negligence, a plaintiff must establish the existence of a duty on defendant's part to plaintiff, breach of the duty, and damages. On a claim of negligent supervision of a child, the plaintiff must establish that the defendant had sufficiently specific knowledge or notice of the dangerous conduct which caused injury; that is, that the third-party acts could reasonably have been anticipated. In order to establish a cause of action based on negligent hiring, negligent retention, or negligent supervision of an employee, it must be shown that the employer knew, or should have known, of the employee's propensity for the conduct which caused the injury. On a claim of negligent failure to warn, the plaintiff must also establish that the employer was aware of the offending employee's propensity to engage in the complained-of conduct.

Brophy v. Big Bros. Big Sisters of Am., Inc., NY Slip Op 00993 (2d Dep't February 28, 2024)

Here is the decision.

Appellate practice.

No appeal lies from an order denying reargument.

Christiana Trust v. Victor, NY Slip 00994 (2d Dep't February 24, 2024)

Here is the decision.

Personal jurisdiction.

A defendant's appearance in an action is deemed to be the equivalent of personal service of a summons, and, in the absence of an objection to jurisdiction by way of a motion or answer, the appearance confers personal jurisdiction over that defendant, pursuant to CPLR 320[b]. In addition, a defendant may appear informally by actively litigating the action before the court. Here, the defendant waived the defense of lack of personal jurisdiction by filing a notice of appearance and opposing the plaintiff's motions to confirm the referee's report without simultaneously asserting an affirmative objection to jurisdiction. 

U.S. Bank N.A. v. Jong Shin, NY Slip Op 01029 (2d Dep't February 28, 2024)

Here is the decision.

Motions to dismiss.

Under CPLR 3211(a)(1), dismissal is warranted only if the documentary evidence utterly refutes plaintiff's factual allegations, conclusively establishing a defense as a matter of law. The defendant bears the burden of demonstrating that the proffered documentary evidence conclusively refutes the plaintiff's factual allegations. Here, the cause of action alleging fraud was barred by the specific terms of the contract of sale  of a commercial property. The contract of sale utterly refuted the plaintiff's factual allegations and conclusively established a defense to the complaint as a matter of law.

Arco Acquisitions, LLC v. Tiffany Plaza, LLC, NY Slip Op 00888 (2d Dep't February 21, 2024)

Here is the decision.

Contract law.

A party repudiates a contract where, before the time of performance, that party puts it out of his power to keep the agreement. Besides giving the non-repudiating party an immediate right to sue for damages for total breach, the repudiation discharges the non-repudiating party's obligations to render performance in the future. 

EPAC Tech., Inc. v. John Wiley & Sons, Inc., NY Slip Op 00933 (1st Dep't February 22, 2024)

Here is the decision.

Statutes of limitations.

An action to foreclose a mortgage is governed by a six-year statute of limitations, pursuant to CPLR 213[4]. Where the mortgage debt is accelerated, the entire balance of the debt accrues, and the statute of limitations begins to run on the entire debt.

Wilmington Trust Co. v. Yonkus, NY Slip Op 00925 (2d Dep't February 21, 2024)

Here is the decision.