Foreclosures.

An action to foreclose a mortgage is governed by a six-year statute of limitations, However even if a mortgage is payable in installments, once a mortgage debt is accelerated, the entire amount is due and the statute of limitations begins to run on the entire debt. The entire mortgage debt will be deemed to have been accelerated by, as relevant here, the commencement of a mortgage foreclosure action in which the complaint seeks payment of the full outstanding loan balance.

A person having an estate or an interest in real property subject to a mortgage can seek to cancel and discharge of record that encumbrance where the period allowed by the applicable statute of limitations for the commencement of an action to foreclose the mortgage has expired, provided that the mortgagee or its successor was not in possession of the subject real property at the time the action to cancel and discharge of record the mortgage was commenced.

2078 Mgt., LLC v. US Bank Trust, N.A., NY Slip Op 03870 (2d Dep't July 24, 2024)

Here is the decision.

Intentional infliction of emotional distress.

First recognized as a cognizable cause of action in 1978, the tort is designed to provide a remedy to an individual who suffers severe emotional distress after being subjected to extreme and outrageous conduct by another who intends to cause that distress or does so recklessly.

The cause of action action has four elements: (1) extreme and outrageous conduct; (2) intent to cause, or disregard of a substantial probability of causing, severe emotional distress; (3) a causal connection between the conduct and [plaintiff's] injury; and (4) severe emotional distress.

Extreme and outrageous conduct is that which goes beyond all possible bounds of decency, so as to be regarded as atrocious, and utterly intolerable in a civilized community.

Brown v. Riverside Church in the City of N.Y., NY Slip Op 03927 (1st Dep't July 25, 2024)

Here is the decision.

Notices of claim.

The court providently exercised its discretion by denying plaintiff's motion for leave to file a late notice of claim on defendants New York City Health & Hospitals Corporation (HHC) and Bellevue Hospital, pursuant to General Municipal Law § 50-e[5]. The court properly determined that it could not grant leave as to the medical malpractice and negligence claims alleged in the complaint because the one-year and 90-day statute of limitations for those claims expired before the motion was made. Moreover, the complaint does not expressly assert a cause of action for wrongful death and fails to allege the required element that the decedent's estate had distributees who could have suffered pecuniary loss by reason of her death.

Axisa v. New York City Health & Hosps. Corp., NY Slip Op 038=926 (1st Dep't July 25, 2024)

Here is the decision.

Premises liability.

Owners and lessees are under a duty to maintain their property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk. In order for a defendant charged with maintaining a property to be liable in tort as a result of an allegedly defective condition upon the property, it must be established that the defendant affirmatively created the condition or had actual or constructive notice of it. A defendant has constructive notice of a defect when the defect is visible and apparent, and existed for a sufficient length of time before the accident that it could have been discovered and corrected. In addition, a defendant who has actual knowledge of a particular ongoing and recurring hazardous condition may be charged with constructive notice of each specific reoccurrence of that condition. A defendant will be deemed to have constructive notice where there is evidence of an ongoing and recurring dangerous condition in the area of the accident which was routinely left unaddressed. Mere notice of a general or unrelated problem is not enough; the particular defect that caused the damage must have been apparent.

Graham v. New York City Hous. Auth., NY Slip Op 03810 (2d Dep't July 17, 2024)

Here is the decision.

Motion practice.

In the exercise of its discretion, a court may grant relief not specifically requested in the notice of motion, pursuant to a general prayer for relief contained in the notice of motion, if the relief is warranted by the facts plainly appearing on the papers on both sides, and if the relief granted is not too dramatically unlike the relief sought, the proof offered supports it, and there is no prejudice to any party.

Here, the defendant, in its answer, pled statute of limitations as an affirmative defense but did not move to dismiss on that ground pursuant to CPLR 3211(a). The Supreme Court did not improvidently exercise its discretion in declining to dismiss the complaint on statute of limitations grounds.

Caesar v. Metropolitan Transportation. Auth., NY Slip Op 03807 (2d Dep't July 17, 2024)

Here is the decision.

Condominium boards.

In reviewing a condominium board's actions, courts should apply the business judgment rule, under which the court's inquiry is limited to whether the board acted within the scope of its authority under the by-laws and whether the action was taken in good faith to further a legitimate interest of the condominium. Absent a showing of fraud, self-dealing, or unconscionability, the court will not inquire as to the wisdom or soundness of the business decision.

Board of Mgrs. of Oceanview Condominium v. Riccardi, NY Slip Op 03806 (2d Dep't July 17, 2024)

Here is the decision.

Mortgage law.

A mortgagee's interest in the property is protected unless it has notice of a previous fraud affecting the title of its grantor. The mortgagee is under a duty to make an inquiry where it is aware of facts 'that would lead a reasonable, prudent lender to make inquiries of the circumstances of the transaction at issue. A mortgagee who fails to make such an inquiry is not a bona fide encumbrancer for value. The question of what constitutes fair consideration is generally one of fact, to be determined under the circumstances of the particular case.

Baldeo v. HSBC Bank USA, NA, NY Slip Op 03805 (2d Dep't July 17, 2024)

Here is the decision.

Motions to dismiss.

When seeking a CPLR 3211 dismissal, a defendant can submit evidence, such as affidavits or testimony, attacking a well-pleaded cognizable claim.  Such submission change the CPLR 3211 inquiry from whether the pleader has stated a cause of action to whether the pleader has a cause of action amenable to relief, or whether the defendant has a complete defense to the claims. Any such evidence must conclusively establish, as a matter of law, a defense to the plaintiff's claims.

Holder v. Jacob, NY Slip Op[ 03864 (1st Dep't July 18, 2024)

Here is the decision.

Contract law.

The defendant's motion to dismiss the causes of action alleging breach of contract and unjust enrichment pursuant to CPLR 3211(a)(7) is granted. The asset purchase agreement constituted a voluntary prospective arrangement for the splitting of fees in violation of the Education Law because it required the defendant to pay the plaintiff a percentage of revenue generated by the plaintiff's practice and, under certain conditions, the defendant's own separate dental practice. A party to an illegal contract cannot ask a court of law to help him carry out an illegal object. Neither can the party plead or prove in any court a case in which setting forth or proving the claim would reveal its illegal purpose. 

Advanced Dental of Ardsley, PLLC v. Brown, NY Slip Op 03804 (2d Dep't July 17, 2024)

Here is the decision.

Vacating a default.

A party seeking to vacate an order entered upon a default in opposing a motion must demonstrate a reasonable excuse for the default and a potentially meritorious opposition to the motion. A conclusory and unsubstantiated claim of ill health is not a reasonable excuse.  The absence of a reasonable excuse for the default renders it unnecessary to determine whether the movant demonstrated the existence of a potentially meritorious opposition to the motion.

Fuchs-Goren v. Goren, NY Slip Op 03736 (2d Dep't July 10, 2024)

Here is the decision.

Contract law.

A contract is to be construed in accordance with the intent of the parties, and the best evidence of their intent is what they express in their written contract. Clear, complete, and unambiguous contractual terms are to be enforced according to their plain meaning, and every aspect of the contract must be accorded meaning and effect. Where the contract was negotiated and relied upon by experienced, sophisticated business actors represented by counsel, the parties are entitled to the commercial certainty that flows from the enforcement of the plain meaning of their unambiguous agreement.

Iberdrola Energy Projects v. Oaktree Capital Mgt. L.P., NY Slip Op 03798 (1st Dep't July 11, 2024)

Here is the decision.

CPLR 3215(c).

Pursuant to CPLR 3215(c), "[i]f the plaintiff fails to take proceedings for the entry of judgment within one year after the default, the court shall not enter judgment but shall dismiss the complaint as abandoned . . . unless sufficient cause is shown why the complaint should not be dismissed." When an action is subject to a mandatory settlement conference, pursuant to CPLR 3408), motions shall be held in abeyance while conferences are held and the one-year deadline imposed by CPLR 3215(c) is tolled.

Federal Nat. Mtge. Assn. v. Vivenzio, NY Slip Op 03734 (2d Dep't July 10, 2024)

Here is the decision.

Medical malpractice.

The essential elements of a medical malpractice cause of action are (1) a deviation or departure from accepted medical practice, and (2) evidence that such departure was a proximate cause of injury. When moving for summary judgment, the defendant .has the burden of establishing the absence of any departure from good and accepted medical practice or that the plaintiff was not injured thereby. In order to sustain this burden, the defendant must address and rebut any specific allegations of malpractice set forth in the plaintiff's bill of particulars. Then, it is the plaintiff's burden to raise a triable issue of fact regarding the element or elements on which the defendant has made its prima facie showing.

Summary judgment is not appropriate where the parties adduce conflicting expert opinions. However, general and conclusory allegations of malpractice, unsupported by competent evidence tending to establish the essential elements, are insufficient to defeat a defendant physician's summary judgment motion. The plaintiff's expert must specifically address the defense expert's allegations.

Fairchild v. Lerner, NY Slip Op 03733 (2d Dep't July 10, 2024)

Here is the decision.

Foreclosure and sale.

A judgment of foreclosure and sale entered against a defendant is final as to all questions at issue between the parties, and concludes all matters of defense which were or might have been litigated in the foreclosure action. Here, the entry of the judgment of foreclosure and sale bars consideration of the issues raised by the defendant, since those issues either were raised or could have been raised during the pendency of the action.

Deutsche Bank Natl. Trust Co., v. Matheson, NY Slip Op 03732 (2d Dep't July 10, 2024)

Here is the decision.

Appellate practice.

The plaintiff commenced this action to recover damages for breach of an implied contract and unjust enrichment. The defendant moved pursuant to CPLR 3211(a)(1), (3), and (7) to dismiss the complaint. By order dated June 24, 2022, the Supreme Court granted the motion pursuant to CPLR 3211(a)(3) for lack of standing and pursuant to CPLR 3211(a)(7) for failure to state a cause of action. The plaintiff appeals from so much of the order as granted that branch of the motion which was to dismiss the cause of action to recover damages for unjust enrichment.

On appeal, the plaintiff asserts that the Supreme Court improperly granted the branch of the motion pursuant to CPLR 3211(a)(7) for failure to state a cause of action. However, the plaintiff advances no arguments concerning that portion of the order which granted that branch of the motion pursuant to CPLR 3211(a)(3) for lack of standing. As the plaintiff does not challenge the court's determination that the plaintiff lacked standing to assert a cause of action sounding in unjust enrichment, the plaintiff's contention that the cause of action was not subject to dismissal under CPLR 3211(a)(7) is academic. The Appellate Division affirms the order insofar as appealed from without reaching the plaintiff's arguments concerning CPLR 3211(a)(7).

AA Med., P.C. v. Employee Med. Health Plan of Suffolk County, NY Slip Op 03722 (2d Dep't July 10, 2024)

Here is the decision.

Premises liabiliity.

A possessor of real property is under a duty to maintain reasonable security measures to protect those lawfully on the premises from reasonably foreseeable criminal acts of third parties. In order to establish foreseeability, there is no requirement that the past experience of criminal activity be of the same type as that to which the plaintiff was subjected. However, the criminal conduct at issue must be shown to be reasonably predictable based on the prior occurrence of the same or similar criminal activity at a location sufficiently proximate to the location of the incident. Without evidentiary proof of notice of prior criminal activity, the owner's duty reasonably to protect those using the premises from such activity never arises.

Lazarus v. Wildlife Preserves, Inc., NY Slip Op 03685 (2d Dep't July 3, 2024)

Here is the decision.

Premises liability.

While an owner or possessor of real property has a duty to maintain the property in a reasonably safe condition, there is no duty to protect or warn against an open and obvious condition that, as a matter of law, is not inherently dangerous. Here, the defendants failed to establish, prima facie, that the condition of the floor that caused the plaintiff to fall was open and obvious and not inherently dangerous. Surveillance video footage submitted by the defendants reveals that an employee had mopped the floor of the aisle shortly before the plaintiff fell and that the dangerous condition created by the dampness on the floor in that area was not plainly visible. At the time the plaintiff fell, the employee was mopping a separate area behind a booth, not the area of the aisle where the plaintiff fell. The plaintiff testified at deposition that, prior to her fall, she did not observe the employee mopping the floor or any water on the floor. Moreover, contrary to the defendants' contention, they also failed to eliminate all triable issues of fact as to whether they provided adequate warning of a potentially hazardous condition. The surveillance video shows one "Wet Floor" sign located in an area of the restaurant that was a significant distance from the area where the plaintiff fell. While the employee testified at deposition that she placed a sign in the area where the plaintiff fell, the plaintiff testified that she did not see a sign in the area where she fell, and the surveillance video does not clearly depict a sign in that area. Since the defendants failed to establish their prima facie entitlement to judgment as a matter of law, the motion for summary judgment dismissing the complaint is denied, without regard to the sufficiency of the plaintiff's opposition papers.

Hoffman v. Dean C Ltd Partnership, NY Slip Op 03684 (2d Dep't July 3, 2024)

Here is the decision.

Dismissal for failure to state a claim.

On a motion to dismiss pursuant to CPLR 3211(a)(7), the complaint must be afforded a liberal construction, the facts therein must be accepted as true, and the plaintiff must be accorded the benefit of every possible favorable inference. Although the facts pleaded are presumed to be true and are to be accorded every favorable inference, bare legal conclusions as well as factual claims flatly contradicted by the record are not entitled to any such consideration. Where evidentiary material is submitted and considered on a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), and the motion is not converted into one for summary judgment, the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one, and unless it has been shown that a material fact as claimed by the plaintiff to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it, dismissal should not eventuate.  Dismissal of the complaint is warranted if the plaintiff fails to assert facts in support of an element of the claim, or if the factual allegations and inferences to be drawn from them do not allow for an enforceable right of recovery.

Gordon v. Vladislav Tsirkin CPA & Co., LLC, NY Slip Op 03682 (2d Dep't July 3, 2024)

Here is the decision.

Expert opinion.

Expert opinion is proper when it would help to clarify an issue calling for professional or technical knowledge, possessed by the expert and beyond the ken of the typical juror. The expert must possess the requisite skill, training, education, knowledge or experience from which it can be assumed that the information imparted or the opinion rendered is reliable. The expert's opinion, taken as a whole, must also reflect an acceptable level of certainty in order to be admissible.

Ghazala v. Shore Haven Apt. Del, LLC, NY Slip Op 03681 (2d Dep't July 3, 2024)

Here is the decision.

Referees' reports.

CPLR 4403 requires a motion to reject a referee's report to be made within 15 days of the filing of the report, while 22 NYCRR 202.44(a) requires the defendant to move to confirm or reject the report within 30 days after notice of the filing of the report.  Here, the referee's report was filed on October 18, 2019, when the plaintiff moved to confirm the report. The defendant's cross-motion was filed on December 11, 2019, more than 30 days later. Therefore, that branch of the defendant's cross-motion which was, in effect, to reject the referee's report was untimely. 

Plaintiff's motion to confirm the referee's report is granted. 

Deutsche Natl. Bank Trust Co. v. Gopaul, NY Slip Op 03679 (2d Dep't July 3, 2024)

Here is the decision.

The storm-in-progress rule.

A property owner will not be held responsible for accidents occurring as a result of the accumulation of snow and ice on its premises until an adequate period of time has passed following the cessation of the storm to allow the owner an opportunity to ameliorate the hazards caused by the storm.

Here, the defendants failed to establish their prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against them. In support of their motion, the defendants submitted climatological records that were not certified and a transcript of the deposition testimony of the plaintiff, which failed to eliminate triable issues of fact as to whether a storm was in progress at the time of the accident and whether the plaintiff slipped and fell on a preexisting condition.

Defendants' motion is denied, without regard to the sufficiency of the plaintiff's opposition papers.

Ahmed v. Fulton Nostrand, LLC, NY Slip Op 03677 (2d Dep't July 3, 2024)

Here is the decision.

Contract law.

The essential elements of a cause of action to recover damages for breach of contract are the existence of a contract, the plaintiff's performance pursuant to the contract, the defendant's breach of its contractual obligations, and damages resulting from the breach. When parties set down their agreement in a clear and complete document, the writing should be enforced according to its terms, This is especially so in real property transactions, where commercial certainty is a paramount concern, and where, as here, the instrument was negotiated between sophisticated, counseled business people negotiating at arm's length. Here, the plaintiff established its prima facie entitlement to judgment as a matter of law, as there is no dispute that the sellers failed to pay the subject fines by the agreed-upon date.

The sellers failed to raise a triable issue of fact in response. The contract provision stating that the sellers "will not be responsible for any work needed to clear the violations of record" and the contract provisions suggesting that the plaintiff was intending to perform construction at the properties do not absolve the sellers from their obligation to pay the fines associated with the open violations. Courts may not by construction add or excise terms, nor distort the meaning of those used and thereby make a new contract under the guise of interpreting the writing.

As there is no ambiguity in the contract provision here, the sellers' attempt to introduce extrinsic evidence to alter or add to the terms of the contract is prohibited by the parol evidence rule, as well as by the contract's merger clause .

410 Lefferts, LLC v. 408 Lefferts, LLC, NY Slip 03676 (2d Dep't July 3, 2024)

Here is the decision.

Negligence.

It is well settled that a finding of negligence requires the breach of a duty because, in the absence of a duty, there is no breach, and, without a breach, there can be no liability. If a defendant owes no duty to a plaintiff, there can be no liability in damages, however careless the conduct or foreseeable the harm. Foreseeability should not be confused with duty and may not be relied on to create a duty. The principle of foreseeability is applicable to determine the scope of the duty only after it has been found to exist, and that if there is no duty, then the principle is inapplicable and the foreseeability of the accident is irrelevant.

Dibrino v. Rockefeller Ctr. North, Inc., NY Slip Op 03558 (1st Dep't July 2 2024)

Here is the decision.

Sua sponte dismissal.

A court's power to dismiss a complaint, sua sponte, is to be used sparingly and only when extraordinary circumstances exist to warrant dismissal.  A court may not sua sponte dismiss a complaint for failure to move for a judgment of foreclosure and sale by an arbitrary date set by the court. In order to obtain appellate review of an order or portion of an order issued sua sponte, a party may move to vacate the order or portion of the order and appeal as of right to the Appellate Division if the motion to vacate is denied. 

James B. Nutter & Co. v. Heirs and Distributees of the Estate of Rose Middleton, NY Slip Op 03472 (2d Dep't June 26, 2024)

Here is the decision.

Premises liability.

A plaintiff may recover in negligence for damages to property when the defendant's failure to maintain real property in a reasonably safe condition proximately caused the plaintiff's damages. A defendant- landowner moving for summary judgment has the burden of establishing, prima facie, that it did not create the alleged dangerous condition or have actual or constructive notice of its existence for a sufficient length of time to have discovered and remedied it. A defendant has constructive notice of a dangerous or defective condition when it is visible and apparent, and has existed for a sufficient length of time to afford the defendant a reasonable opportunity to discover and remedy it. When the defect is latent and would not be discoverable upon a reasonable inspection, constructive notice may not be imputed.

Huang v. Fort Greene Partnership Homes Condominium, NY Slip Op 03471 (2d Dep't June 26, 2024)

Here is the decision.

The death of a party.

The death of a party divests the court of jurisdiction and stays the proceedings until a proper substitution has been made, pursuant to CPLR 1015(a).  Any determination rendered without a substitution will be deemed a nullity.

The death of a party terminates the party's attorney's authority to act on behalf of the deceased. Here, the decedent's former attorneys moved to dismiss the complaint, purportedly on behalf of the decedent. Since the former attorneys lacked the authority to act, the Supreme Court lacked jurisdiction to consider the motion. Accordingly, so much of the order as granted the motion purportedly made on behalf of the decedent is a nullity.

Fazilov v. Acosta, NY Slip Op 03470 (2d Dep't June 26, 2024)

Here is the decision.

Moving for summary judgment.

It is axiomatic that successive summary judgment motions are disfavored. Parties may bot make successive fragmentary attacks upon a cause of action, but must assert all available grounds when moving for summary judgment. There can be no reservation of any issue to be used upon any subsequent motion for summary judgment. A court, upon a motion for summary judgment, must examine all of the facts presented by the affidavits, pleadings, and documents and decide whether the moving papers raise a triable issue is raised. The court may not, on a subsequent motion, consider anything which a party has withheld or failed to urge as a ground for summary judgment theretofore denied.

Priester v. Phanor, NY Slip Op 03554 (1st Dep't June 27, 2024)

Here is the decision.

Motions to dismiss.

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 a defense as a matter of law. in order to be considered documentary, evidence must be unambiguous and of undisputed authenticity.

On a motion to dismiss for failure to state a cause of action pursuant to CPLR 3211(a)(7), the complaint is to be afforded a liberal construction, the facts alleged are presumed to be true, the plaintiff is afforded the benefit of every favorable inference, and the court is to determine only whether the facts as alleged fit within any cognizable legal theory. Upon the submission of evidentiary material in support of such a motion, the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one, and, unless it has been shown that a material fact as claimed by the plaintiff is not a fact at all and unless it can be said that there is no significant dispute exists regarding it, dismissal should not be granted.

B&B Maintenance Servs., Inc. v. Town of Oyster Bay, NY Slip Op[ 03399 (2d Dep't June 20, 2024)

Here is the decision.

Vacatur.

A defendant seeking to vacate a default in answering or appearing pursuant to CPLR 5015(a)(1) must demonstrate a reasonable excuse for the default and a potentially meritorious defense to the action. The determination of what constitutes a reasonable excuse lies within the sound discretion of the Supreme Court.  In determining whether there is a reasonable excuse, a court should consider all the relevant factors, including the extent of the delay, prejudice to the opposing party, whether the default was willful, and the strong public policy in favor of resolving cases on the merits.

Here, the defendant's excuse that he believed that the attorney representing him in separate litigation was addressing this action was unreasonable. Mere neglect is not a reasonable excuse. Likewise, his conclusory and unsubstantiated claim that he was hampered by the restrictions imposed in response to the COVID-19 pandemic does not amount to a reasonable excuse.

American Cancer Socy., Inc. v. Ashby, NY Slip Op 03398 (2d Dep't June 20, 2024)

Here is the decision.