Constructive notice of a hazardous condition.

A defendant has constructive notice of a hazardous condition on property when the condition is visible and apparent, and has existed for a sufficient length of time prior to the accident so as to afford the defendant a reasonable opportunity to discover and remedy it. To meet its burden on the issue of constructive notice, the defendant must offer evidence as to when the accident site was last inspected relative to the time when the plaintiff fell.

 Ferrer v. 120 Union Ave., LLC, NY Slip Op 03096 (2d Dep't May 11 2022)

Here is the decision.

CPLR 5015(a)(3).

A defendant moving to vacate a default based on intrinsic fraud, that is, on the basis that the plaintiff's allegations in the complaint are false, must establish both a reasonable excuse for the default and a potentially meritorious defense to the action.

3331 102 St. LLC v. Newport Beach Holdings LLC, NY Slip Op 03170 (1st Dep't May 12, 2022)

Here is the decision.

Affidavits of service.

A process server's affidavit of service establishes a prima facie case as to the method of service and, therefore, gives rise to a presumption of proper service. A defendant's sworn denial of receipt of service generally rebuts the presumption and necessitates an evidentiary hearing. However, no hearing is required where the defendant fails to swear to specific facts to rebut the statements in the affidavit. 

Federal Natl. Mtge. Assn v. Grossman, NY Slip Op 03095 (2d Dep't May 11, 2022)

Here is the decision.

CPLR 1024.

The motion to dismiss the complaint is denied where plaintiff made diligent efforts to ascertain the defendant's identity prior to filing the complaint, and the complaint adequately described the defendant so as to apprise him that he was the intended defendant.

Strautmanis v. GMDC Two Corp., NY Slip Op 03092 (1st Dep't May 10, 2022)

Here is the decision.

Res judicata as a bar to a claim.

The claim is not barred by the doctrine of res judicata, because the New Jersey appellate court's dismissal was without prejudice, and, therefore, was not a final determination on the merits.

Wormser Corp. v. L'Oréal USA, Inc., NY Slip Op 03093 (1st Dep't May 10, 2022)

Here is the decision.

Tenants in common.

Where parties hold property as tenants in common, occupancy by one tenant is presumed to be possession by and for the benefit of all other cotenants, unless the possessing tenant commits acts constituting ouster, at which point, the possessing tenant may commence to hold adversely to the cotenants. The ouster can be actual, where a cotenant expressly communicates an intention to exclude or to deny the rights of cotenants, or, it can be implied, where the acts of the possessing cotenant are so openly hostile that the nonpossessing cotenants can be presumed to know that the property is being adversely possessed against them. Title by adverse possession is acquired when possession is hostile and under claim of right, actual, open and notorious, exclusive, and continuous for the statutory period of 10 years after the ouster.

Belli v. Paul Belli, LLC, NY Slip Op 02973 (2d Dep't May 4, 2022)

Here is the decision.

A petition to vacate an arbitration award.

The court will deny the petition if there is a rational basis for the arbitrator's award. 

Matter of Rivera v. New York City Tr. Auth., NY Slip Op 03061 (1st Dep't May 5, 2022)

Here is the decision.

Appellate practice.

The Appellate Division's resolution of an issue on a prior appeal constitutes the law of the case and is binding on the Supreme Court, as well as on an appellate court.

862 Second Ave. LLC v. 2 DAG Hammarskjold Plaza Condominium, NY Slip Op 03047 (1st Dep't May 5, 2022)

Here is the decision.

CPLR 302(a)(1).

In order to establish personal jurisdiction over defendants under New York's long-arm statute, the plaintiff must establish that defendants engaged in purposeful activities in New York, conducted or transacted business in this state, or availed themselves of the benefits of New York law. Placing allegedly defamatory content on the internet and making it accessible to the public does not constitute the transaction of business in New York, even when it is likely that the material will be read by New Yorkers. 

Kingstown Capital Mgt. L.P. v. CPI Prop. Group, S.A., NY Slip Op 03064 (1st Dep't May 5, 2022)

Here is the decision.

CPLR 3211(a)(5).

On a motion to dismiss a cause of action on the ground that it is barred by the statute of limitations, the defendant bears the initial burden of establishing, prima facie, that the time in which to sue has expired. The burden then shifts to the plaintiff to present admissible evidence establishing that the action was timely or to raise a question of fact as to whether the action was timely.

Bank of N.Y. Mellon v. Muriqi, NY Slip Op 02970 (2d Dep't May 4, 2022)

Here is the decision.

An unverified foreclosure complaint.

Where the complaint is not verified, upon any application for a default judgment, proof of the facts constituting the claim, the default, and the amount due must be set forth in an affidavit made by the party, pursuant to CPLR 3215(f).  Here, the plaintiff submitted an affidavit of merit executed by a vice president of its purported loan servicer. However, there is no evidence in the record demonstrating that this individual had the authority to act on behalf of the plaintiff. Plaintiff's motion for leave to enter a default judgment is denied. 

Aurora Loan Servs., LLC v. Jemal, NY Slip Op 02970 (2d Dep't May 4, 2022)

Here is the decision.