Proper service.

A process server's affidavit of service constitutes prima facie evidence of proper service. On a motion to vacate a default judgment under CPLR 5015(a)(4), the defendant must overcome the presumption raised by the affidavit of service. Bare and unsubstantiated denials are insufficient to rebut the presumption of service, but a sworn denial of service containing specific facts generally rebuts the presumption of proper service and necessitates an evidentiary hearing. Minor discrepancies between the appearance of the person allegedly served and the description of the person in the affidavit of service are insufficient to raise an issue of fact warranting a hearing. The discrepancies must be substantiated by something more than a claim by the parties allegedly served that the descriptions of their appearances were incorrect.

TD Bank, N.A. v. Turbo Group, Inc., NY Slip Op 02217 (2d Dep't April 24, 2024)

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Appellate practice.

A factual argument that is raised for the first time on appeal is unpreserved for appellate review.

Marcal Fin. SA v. Sutton, NY Slip Op 02258 (1st Dep't April 25, 2024)

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Tax liens.

Under both the federal and state constitutions, the State may not deprive a person of property without due process of law. Both the initial notice of tax lien sale and the subsequent notice to redeem must meet constitutional due process requirements. The requirements of due process are satisfied where notice is reasonably calculated to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.

Pekich v. Membreno, NY Slip Op 02206 (2d Dep't April 24, 2024)

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Frivolous claims.

While public policy generally mandates free access to the courts, a party may forfeit that right if he abuses the judicial process by engaging in meritless litigation motivated by spite or ill will.

Svatovic v. Shabot, NY Slip Op 02266 (1st Dep't April 25, 2024)

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Legal Brief

Leave to amend.

The Appellate Division determined that the motion court providently denied plaintiff's motion under CPLR 3025(b) and 5015(a)(3) to amend the third amended complaint to revive previously dismissed parties and claims and to assert new claims against new parties based on newly discovered evidence. The Appellate Division has previously affirmed the dismissal of the claims which plaintiff seeks to reassert. 

Plaintiff failed to establish that the new evidence was not merely cumulative and that it would have changed the result of the motion court or the Appellate Division's previous orders. On appeal, plaintiff does not address how the new evidence fulfills the elements of any particular cause of action, nor does he provide a basis for reviving the previously dismissed claims or adding new parties and claims to this 2014 action. In addition, given the late stage in the litigation of this matter, the amendments would have necessitated no small measure of additional discovery.

Simon v. FrancInvest, S.A., NY Slip Op 02157 (1st Dep't April 23, 2024)

Here is the decision.

Legal Brief

CPLR 3215(c).

The motion  to vacate the judgment and dismiss the action against defendan-borrower as abandoned is granted. Plaintiff did not commence proceedings for entry of a judgment within one year of default, but waited almost four years to seek a default judgment, and it fails to provide sufficient cause for the delay.

Wells Fargo Bank, N.A. v. Gwebu, NY Slip Op 02160 (1st Dep't April 23, 2024)

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Legal Brief

Service of process.

An objection that the summons and complaint was not properly served is waived if, having raised such an objection in a pleading, the objecting party does not move for judgment on that ground within 60 days after serving the pleading, unless the court extends the time upon the ground of undue hardship.

US Bank, N.A. v. Orlando, NY Slip Op 02078 (2d Dep't April 17, 2024)

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Legal Brief

Vacating a default.

Defendant sufficiently demonstrated a reasonable excuse in support of its motion to vacate the default judgment entered against it. Its counsel abandoned his duties to file an answer and respond to the default judgment motion, despite having advised defendant that he was being paid by defendant's surety to appear on defendant's behalf. The record does not indicate a pattern of willful default and neglect, and there is no claim of prejudice.

JDS Constr. Group LLC v. Copper Servs., LLC, NY Slip Op 02097 (1st Dep't April 18, 2024)

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Legal Brief

Foreclosure sales.

Pursuant to CPLR 2103, parties who have appeared in an action involving the sale of real property pursuant to a judgment, and who have not waived service, are entitled to service of all papers, including a notice of sale. However, a party who defaults in appearing in a foreclosure action is not entitled to notice of a judicial sale, and, therefore, the lack of notice is not the basis for a motion to vacate and set aside a foreclosure sale.

U.S. Bank N.A. v. Ashon, NY Slip Op 0277 (2d Dep't April 17, 2024)

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Legal Brief

Collateral estoppel.

Plaintiff previously litigated whether defendants were entitled to a fee in her matrimonial action. In support of her motion to vacate defendants' charging lien, plaintiff asserted that defendants' failure to present expert evidence regarding domestic abuse and the valuation of the family's closely held company constituted malpractice. At the hearing on the motion, plaintiff agreed by stipulation to withdraw with prejudice her motion to vacate the charging lien and to authorize the fee at issue to be withdrawn from counsel's Divorce IOLA account. However, in her amended complaint in this action, plaintiff reasserted the claim for malpractice. Where a client has challenged and lost on the issue of whether counsel is entitled to a fee, that determination collaterally estops a subsequent claim for legal malpractice. The resolution of the matter by stipulation does not make a difference because a withdrawal with prejudice has preclusive effect.

Rothman v. Sandra Radna, P.C., NY Slip Op 02102 (1st Dep't April 18, 2024)

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Consolidation.

When one action sounds in contract and the other in tort, the court should not grant consolidation. Here, the breach of contract and fraudulent conveyance actions present different questions of law and fact. Moreover, the fraudulent conveyance action will be moot if plaintiffs fail to win the breach of contract action. Finally, the two actions are at different stages, so that consolidation would lead to a delay in trying the breach of contract action.

3B Assoc. LLC v. Ecommission Solutions, LLC, NY Slip Op 02086 (1st Dep't April 18, 2024)

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Stipulations of settlement.

Stipulations of settlement are favored by the courts and are not lightly set aside.  A stipulation of settlement that is fair on its face will be enforced according to its terms unless there is proof of fraud, duress, overreaching, or unconscionability. The stipulation will not be vacated simply because, after the fact, a party believes that the agreement was improvident in some respect or that it constituted a bad bargain.

Tsikhiseli v. Colombo, NY Slip Op 02075 (2d Dep't April 17, 2024)

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Default judgments.

The default judgment was not vacated pursuant to CPLR 5015(a)(1) because defendant failed to establish a reasonable excuse for its default. The withdrawal order at issue was properly served on the Secretary of State as defendant's agent, pursuant to LLC Law § 303[a]. The failure to keep a current address on file with the Secretary of State is not a reasonable excuse for a default. Defendant concedes that the order was sent to its representative's correct email address. The ensuing default order and judgment were mailed to defendant at its admitted address. Its failure to take any steps to vacate the default until over three months later, after its assets were restrained, is not excusable.

San-Dar Assoc. v. Corporate Habitat NY, LLC, NY Slip Op 02028 (1st Dep't April 16, 2024)

Here is the decision.

Piercing the corporate veil.

A plaintiff seeking to pierce the corporate veil must show that (1) the owners exercised complete domination of the corporation in respect to the transaction attacked; and (2) that the domination was used to commit a fraud or wrong against the plaintiff, resulting an injury to the plaintiff. In addition to complete domination of the corporation, the pleading must allege abuse of the privilege of doing business in the corporate form to perpetrate a wrong or injustice. Thus, in order to survive a motion to dismiss the complaint pursuant to CPLR 3211(a)(7), the plaintiff must allege facts that, if taken as true and accorded every favorable inference, would support a finding that the defendant abused the corporate form, such as the failure to adhere to corporate or LLC formalities, inadequate capitalization, commingling of assets, or the personal use of corporate or LLC funds.

Board of Mgrs. of the Brighton Tower II Condominium v. Brighton Bldr., LLC, NY Slip Op 01903 (2d Dep't April 10, 2024)

Here is the decision.

Contract law.

The favorable allocation of risks to one party is not an implied duty inherent in an agreement, nor would it be reasonable for a promisee to believe that allocating risks in its favor is an inherent obligation of a promisor. Any claim concerning the allocation of the risk of a plaintiff's up-front investment costs could arise only from a negotiated contractual term or some other legal basis for undertaking the obligation. 

Mayville Engg. Co., Inc. v. Peloton Interactive, Inc., NY Slip Op 01990 (1st Dep't April 11, 2024)

Here is the decision.

Appellate practice.

Rulings directed to an examination before trial, whether made upon motion papers or not, are not appealable as of right.

Ward v. City of New York, NY Slip Op 02001 (1st Dep't April 11, 2024)

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Expert witnesses.

A court has the inherent power to disqualify an expert witness in order to preserve the fairness and integrity of the judicial process. Disqualification based on a conflict of interest is required when the court finds both: (1) that it was objectively reasonable for a party claiming to have initially retained the expert to conclude that a confidential relationship existed between them, and (2) that confidential or privileged information was disclosed by the party to the expert.

Here, Supreme Court providently exercised its discretion in granting the motion to disqualify plaintiff's damages expert, due to the conflict of interest created when his firm hired an employee who worked for defendants' expert during the pendency of this action. Defendants demonstrated that the employee actively participated in the preparation of defense litigation strategies. The employee admittedly reviewed and analyzed plaintiff's documents on defendants' behalf, prepared or had input in drafting documents summarizing plaintiff's financial data, and communicated with and attended meetings with defendants' counsel. Accordingly, defendants had a reasonable expectation of a confidential relationship with the employee, and confidences were actually exchanged with him, satisfying both prongs of the disqualification test.

Manna Amsterdam Ave. LLC v. West 73rd Tenants Corp., NY Slip Op 01892 (1st Dep't April 9, 2024)

Here is the decision.

Documentary evidence.

Under CPLR 3211(a)(1), dismissal based on documentary evidence is warranted only if the evidence utterly refutes plaintiff's factual allegations, conclusively establishing a defense as a matter of law. The burden is on the defendant to demonstrate that the evidence is documentary. In order to be considered documentary, the evidence must be unambiguous and of undisputed authenticity, such that it is unassailable. Judicial records, as well as documents reflecting out-of-court transactions such as mortgages, deeds, and unambiguous contracts may qualify as documentary evidence. 

7 Mansion, LLC v. Calvano, NY Slip Op 01900 (2d Dep't April 10, 2024)

Here is the decision.

Injunctions.

Supreme Court providently exercised its discretion in granting plaintiff's motion for a preliminary injunction. Contrary to defendants' contention, the motion was not one for mandatory injunctive relief, as no affirmative action was required of them. The injunction merely enjoined defendants from interfering with or diverting monies that plaintiff was contractually entitled to receive. Plaintiff established the essential element of irreparable harm with its affidavit that, unless defendants were enjoined from diverting collections to themselves, it likely would default on its obligations to its lenders and go out of business.

BFG 104 LLC v. Greenwich Business Capital, LLC, NY Slip Op 01890 (1st Dep't April 9, 2024)

Here is the decision.

SLAPP suits.

A SLAPP suit (Strategic Lawsuit Against Public Participation), typically sounding in defamation, is brought to intimidate or silence a person who has spoken out about a matter of public interest. The anti-SLAPP law, at Civil Rights Law §§ 70-a, 76-a, is designed to deter such suits and thus protect the free exercise of speech, petition, and association.

The anti-SLAPP law creates an accelerated summary dismissal procedure, which applies when a SLAPP suit defendant moves to dismiss pursuant to CPLR 3211(a)(7). Upon such a motion, the defendant bears the initial burden of showing that the action or claim actually is a SLAPP suit, pursuant to CPLR 3211[g][1]. If the defendant meets its burden, the burden shifts to the plaintiff to demonstrate that the claim has a substantial basis, which is a showing of such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact. If the claim is dismissed, the defendant recovers a mandatory award of attorneys' fees.

Karl Reeves, C.E.I.N.Y. Corp. v. Associated Newspapers, Ltd., NY Slip Op 01898 (1st Dep't April 9, 2024)

Here is the decision.

Comparative fault.

A plaintiff is no longer required to show freedom from comparative fault in establishing a prima facie case against a defendant on the issue of that defendant's liability.

Burton v. Virk, NY Slip Op 01792 (2d Dep't Apri 3, 2024)

Here is the decision.

Affirmative defenses.

The statute of limitations is an affirmative defense and, pursuant to CPLR 3211(e), it is waived unless it is raised either in a responsive pleading or by motion prior to the submission of a responsive pleading. A court may not take judicial notice, sua sponte, of the applicability of a statute of limitations if the defense has not been raised.

Associates First Capital Corp. v. Roth, NY Slip Op 01789 (2d Dep't April 3, 2024)

Here is the decision.

CPLR 214-a.

A defendant who seeks dismissal of a cause of action on the ground that it is barred by the statute of limitations bears the initial burden of demonstrating, prima facie, that the time in which to commence the action has expired. The burden then shifts to the nonmoving party to raise a question of fact as to the applicability of an exception to the statute of limitations, as to whether the statute of limitations was tolled, or as to whether the action was actually commenced within the applicable limitations period.

Generally, an action to recover damages for medical malpractice "'must be commenced within two years and six months of the act, omission or failure complained of," pursuant to CPLR 214-a. However, where the action is based upon the alleged negligent failure to diagnose cancer or a malignant tumor, whether by act or omission, the action may be commenced within two years and six months of the time the plaintiff knew or reasonably should have known of such alleged negligent act or omission, pursuant to CPLR 214-a[b].

Ciancarelli v. Timmins, NY Slip Op 01793 (2d Dep't April 3, 2024)

Here is the decision.

General releases.

A valid release constitutes a complete bar to an action on a claim which is the subject of the release. The defendant has the initial burden of establishing that it has been released from any claims, but a signed release shifts the burden of going forward to the plaintiff to show that there has been fraud, duress, or some other fact that is sufficient to void the release. Here, the language of the release clearly and unequivocally expresses the parties' intention to relieve the defendant of liability for personal injuries sustained by the plaintiff during horseback riding lessons. In addition, the release is clear in reciting that the plaintiff was aware of the risks associated with participating in horseback riding lessons and assumed those risks.

Anthony v. Firehock, NY Slip Op 01287 (2d Dep't March 13, 2024)

Here is the decision.

Spoliation.

Plaintiff was the victim of a home invasion of his apartment in a building owned and operated by defendants. Defendants' motion to dismiss is denied, and plaintiff's cross-motion is granted to the extent that it sought a negative inference charge as a result of defendants' spoliation of the building's surveillance footage. The fact that, in response to a subpoena, defendants provided a copy of the video to the New York City Police Department, which did not retain all the footage, did not obviate defendants' responsibility to preserve the evidence.

Cabrera-Perez v. Promesa Hous. Dev. Fund Corp., NY Slip Op 01338 (1st Dep't March 14, 2024)

Here is the decision.

Appellate practice.

As the amended judgment conformed in substance to an earlier judgment entered on consent, defendant-respondent is not an aggrieved party within the meaning of CPLR 5511, and, therefore, lacks standing to appeal. Defendant-respondent did not oppose the petition to confirm the arbitration award, and did not object to entry of the judgment or amended judgment. Any contention that the amended judgment varied from what the parties agreed upon should have been addressed through a motion to vacate the judgment.

Matter of Barclays Capital Inc. v. Carreras, NY Slip Op 01336 (1st Dep't March 14, 2024)

Here is the decision.

Motions for summary judgment.

The affirmation submitted in opposition to the motion must be deemed an effort to create a feigned issue of fact, in light of the affiant's prior contradictory deposition testimony.

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.

Disability discrimination claims.

A defendant will be granted summary judgment on a disability discrimination cause of action pursuant to New York City Human Rights Law where the plaintiff cannot point to any instances where similarly situated employees were treated differently. 

Rodriguez v. New York City Hous. Auth., NY Slip Op 01278 (1st Dep't March 12, 2024)

Here is the decision.

Discovery.

It is within the motion court's discretion to determine whether to impose a discovery penalty and the nature of any penalty that may be imposed.

Huili Ma v. Hui Chen, NY Slip Op 01347 (1st Dep't March 14, 2024)

Here is the decision.

Appellate practice.

The order appealed from is not appealable as of right because it was not made in an action and did not decide a motion made upon notice, pursuant to CPLR 5701[a][2].

Bartlett v. Tribeca Lending Corp., NY Slip Op 01668 (1st Dep't March 26, 2024)

Here is the decision.