Motions to dismiss.

The single motion rule does not bar a defendant from moving to dismiss the new claim asserted in the amended complaint.

Zaiger, LLC v. Bucher Law, PLLC, NY Slip Op 03268 (1st Dep't May 29, 2025)

Here is the decision.

Service.

Any purported error in the service of the amended pleading upon was not jurisdictional in nature and, in the absence of any apparent prejudice to the defendant, can and should be ignored by the court, pursuant to  CPLR 3012[a].

399 Broadway Holdings, LLC v. Das, NY Slip Op 03172 (2d Dep't May 28, 2025)

Here is the decision.

Foreclosure.

An action to foreclose a mortgage is governed by a six-year statute of limitations, pursuant to CPLR 213[4]. 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. Acceleration occurs by the commencement of a foreclosure action wherein the holder of the note elects in the complaint to call due the entire amount secured by the mortgage.

Deutsche Bank Nat'l Trust Co. v. Sylvestre, NY Slip Op 03039 (2d Dep't May 21, 2025)

Here is the decision.

Contract law.

Expectation damages is the general measure of damages in a breach of contract case under New York law.

Telefonico S.A. v. Millicom Intl. Cellular S.A., NY Slip Op 03153 (1st Dep't May 22, 2025)

Here is the decision.

Vacating a default.

A defendant seeking to vacate a default and to compel the plaintiff to accept an untimely answer must show both a reasonable excuse for the default and the existence of a potentially meritorious defense. The determination of what constitutes a reasonable excuse lies within the trial court's discretion.

Here, service was made by delivering copies of the summons and complaint to the Secretary of State, and evidence in admissible form from the defendant's affidavit established that the default was caused by the Secretary of State's delay in forwarding the copies of the summons and complaint to the defendants. The Secretary of State's delay in forwarding the papers is a reasonable excuse for the default.

BJ Integra Affordable, LLC v. Vanmew,Hous. Dev. Fund Corp.,  NY Slip Op 03035 (2d Dep't May 21, 2025)

Here is the decision.

Memorial Day.

Memorial Weekend.

Memorial Weekend.

Memorial Weekend.

Failure to plead.

Parties must plead all matters which if not pleaded would take the adverse party by surprise or would raise an issue of fact not appearing on the face of a prior pleading, pursuant to CPLR 3018[b].  The failure to plead a defense that must be pleaded affirmatively under CPLR 3018(b) is a waiver of that defense.  However, an unpleaded defense may serve as the basis for granting summary judgment in the absence of surprise or prejudice to the opposing party. The burden of demonstrating prejudice or surprise is on the party opposing the motion.

Babakhanov v Diaz Austin Assoc., L.P., NY Slip Op 03032 (2d Dep't May 21, 2025)

Here is the decision.

Contract law.

Only a stranger to the contract can be liable for tortious interference with a contract.

Beast Invs. LLC  v. Celebrity Virtual Dining, LLC, NY Slip Op 03012 (1st Dep't May 20, 2025)

Here is the decision.

Actions to quiet title.

CPLR 212(a) provides that "[a]n action to recover real property or its possession cannot be commenced unless the plaintiff, or his predecessor in interest, was seized or possessed of the premises within ten years before the commencement of the action." However, CPLR 212 (a) must be read together with RPAPL 311, which provides that "the person who establishes a legal title to the premises is presumed to have been possessed thereof within the time required by law; and the occupation of the premises by another person is deemed to have been under and in subordination to the legal title unless the premises have been held and possessed adversely to the legal title for ten years before the commencement of the action."

Canty v. Burns, NY Slip Op 02903 (2d Dep't May 14, 2025)

Here is the decision.

Vacatur.

A party is precluded from moving to vacate a default on grounds asserted in a prior motion to vacate that had been previously denied in an order from which that party took no appeal or on grounds that were apparent at the time that the party made the prior motion but were not asserted therein.

Bank of Am., N.A. v. Farkas, NY Slip Op 02900 (2d Dep't May 14, 2025)

Here is the decision.

Motions to dismiss.

Under CPLR 3211(a)(1), dismissal is warranted only if 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, the evidence must be unambiguous and of undisputed authenticity, that is, it must be essentially unassailable. Judicial records, as well as documents reflecting out-of-court transactions such as mortgages, deeds, contracts, and any other papers, the contents of which are essentially undeniable, qualify as documentary evidence. However, affidavits and letters are not documentary evidence.

On a motion pursuant to CPLR 3211(a)(7), the court must liberally construe the complaint, accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit of every favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory. The motion must be denied unless it has been shown that a material fact as claimed by the pleader to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it.

Atlasman v. Korol, NY Slip Op 02898 (2d Dep't May 14, 2025)

Here is the decision.

Jurisdiction in equity.

A court will not exercise jurisdiction in equity where there is an adequate remedy at law.

Aerogen, LLC v. Tapjets Holdings, Inc., NY Slip Op 02990 (1st Dep't May 15, 2025)

Here is the decision.

Leave to amend.

Leave to amend a pleading under CPLR 3025(b) should be freely granted unless the proposed amendment would unfairly prejudice or surprise the opposing party, or is palpably insufficient or patently devoid of merit. A determination whether to grant leave is within the Supreme Court's broad discretion, and the exercise of that discretion will not be lightly disturbed on appeal. In exercising its discretion, the court should consider how long the party seeking the amendment was aware of the facts upon which the motion is predicated and whether there is a reasonable excuse for the delay.

Askari v. McDermott, Will & Emery, LLP, NY Slip Op 02897 (2d Dep't May 14, 2025)

Here is the decision.

Contract law.

The parties do not have to wait until the summary judgment stage for a court to interpret a contract as courts routinely interpret contracts on CPLR 3211(a)(7) motions.

South32 Chile Copper Holdings Pty Ltd v. Sumitomo Metal Min. Co., Ltd., NY Slip Op 02892 (1st Dep't May 13, 2025)

Here is the decision.

Landlord-tenant.

Where the original lease includes an option to renew, the tenant's exercise of it does not create a new lease; rather, it is a prolongation of the original agreement for a further period.

3604 Jerome, LLC v. NYC Health & Hosps. Corp., NY Slip Op 02864 (1st Dep't May 13, 2025)

Here is the decision.

Premises liability.

Liability for a dangerous condition on real property must be predicated on ownership, occupancy, control, or special use of the property, any one of which is sufficient to give rise to a duty of care. In the absence of one of these predicates, a party cannot be held liable for injuries caused by the dangerous or defective condition of the property.

Annabi v. BJ's Wholesale Club, Inc., NY Slip Op 02751 (2d Dep't May 7, 2025)

Here is the decision.

Summary judgment in lieu of complaint.

Plaintiff established prima facie that the parties' settlement agreement constituted an instrument for the payment of money only and that defendants defaulted by failing to make payment under its terms, pursuant to CPLR 3213. On its motion, plaintiff submitted the settlement agreement, the amount due, and an affirmation of its general counsel, who swore to the loan history under penalty of perjury and stated that he was familiar with the facts through his "review of the records and documents kept in the file maintained by [plaintiff] with respect to this matter." The settlement agreement, which was signed by plaintiff and defendants, provided that defendants owed $7,900,000 as of October 12, 2012; that the maturity date was October 12th, 2017, the fifth anniversary date of the settlement agreement; that the interest rate was 0% a year for the first 18 months and then 5% a year thereafter, without compounding interest; and that upon default, interest was to accrue at the rate of 12% per annum.

In opposition, defendants failed to raise a triable issue as to a defense to the instrument. In light of defendants' express waiver of defenses in the loan agreement and their acknowledgement that their repayment obligation was unconditional, their potential counterclaims and affirmative defenses did not preclude CPLR 3213 relief. In addition, the settlement agreement specifies that default interest accrues on default and that payment is due on demand. The settlement agreement does not require that notice of demand be sent to the borrower.

LFR Collections, LLC. v. Tammy Tran Attorneys at Law, L.P., NY Slip Op 02852 (1st Dep't May 8, 2025)

Here is the decision.

Worksite accidents.

A lack of certainty as to exactly what preceded plaintiff's fall does not raise an issue of fact so as to preclude summary judgment.

Begonja v. Hudson Riv. Park Trust, NY Slip Op 02841 (1st Dep't May 8, 2025)

Here is the decision.

Necessary parties.

Necessary parties are those "who ought to be parties if complete relief is to be accorded between the persons who are parties to the action or who might be inequitably affected by a judgment in the action," pursuant to CPLR 1001[a].

Matter of Wohl v. Bruen, NY Slip Op 02861 (2d Dep't May 9, 2025)

Here is the decision.

Motion to vacate.

A party seeking to vacate an order entered upon a default in opposing a motion must submit evidence in admissible form establishing both a reasonable excuse for the default and a potentially meritorious opposition to the motion. A court has discretion to accept law office failure as a reasonable excuse where the claim is supported by a detailed and credible explanation of the default. Vague, conclusory, and unsubstantiated allegations of law office failure are insufficient.

Agostinacchio v. Jofaz Transp., Inc., NY Slip Op 02750 (2d Dep't May 7, 2025)

Here is the decision.

VE Day. 1945.

Leave to renew.

After entry of a final judgment, a motion for leave to renew pursuant to CPLR 2221(e)(2) based upon a change in the law that would change the prior determination must be made before the time to appeal the final judgment has expired, absent circumstances set forth in CPLR 5015.

Wells Fargo Bank, N.A. v. Eliacin, NY Slip Op 02621 (2d Dep't April 30, 2025)

Here is the decision.

Contract law.

A claim for breach of the implied covenant of good faith and fair dealing may not be used as a substitute for a non-viable contract claim.

Embarq, L.L.C. v. Bank of N.Y. Mellon Trust Co., N.A., NY Slip Op 02643 (1st Dep't May 1, 2025)

Here is the decision.

Failure to warn.

On a failure to warn claim, the defendant may establish its prima facie entitlement to summary judgment by demonstrating that any allegedly inadequate warnings were not a proximate cause of the plaintiff's injuries, that is., that additional or different warnings would not have deterred the plaintiff's misuse of the product. The defendant may meet its burden with testimony establishing that the plaintiff did not read the instructions or the owner's manual.

Ardi v. Miller, NY Slip Op 02641 (1st Dep't May 1, 2025)

Here is the decision.

Judicial estoppel.

Under the doctrine of judicial estoppel, a party who has assumed a certain position in a prior legal proceeding and secured a judgment that endorses the position is precluded from taking a contrary position in another legal proceeding simply because the party's interests have changed.

Wilmington Trust, N.A. v. Kamal, NY Slip Op 02622 (2d Dep't April 30, 2025)

Here is the decision.

Vacatur.

The enumerated categories for vacatur of a judgment pursuant to CPLR 5015(a) are not exhaustive, and courts have the common-law power to grant relief from a judgment in the interest of justice.

Matter of Anderson Ave. Assoc., L.P. v. Fuller, NY Slip Op 02640 (1st Dep't May 1, 2025)

Here is the decision.

CPLR 205,

After the first action was dismissed for plaintiff's lack of capacity to sue, CPLR 205(a) provided a six-month extension of time to commence an action by a proper party. The motion to dismiss the complaint as untimely is denied.

Zak v. Bronx Park Phase I Preserv., LLC, NY Slip Op 02561 (1st Dep't April 29, 2025)

Here is the decision.

Traffic law.

A vehicle operator with the right-of-way may anticipate that other operators will yield, in compliance with the Vehicle and Traffic Law. However, drivers with the right-of-way may be found to have proximately caused the accident if they did not use reasonable care to avoid it.

Bender v. East End Bus Lines, Inc., NY Slip Op 02305 (2d Dep't April 23, 2025)

Here is the decision.