Proper service.

A process server's affidavit constitutes prima facie evidence of proper service. To vacate a default judgment under CPLR 5015(a)(4), a defendant must overcome the presumption raised by the affidavit. A sworn denial of receipt of service containing detailed and specific contradiction of the allegations in the process server's affidavit may be sufficient to defeat the presumption of proper service.

HSBC Bank USA v. Whitter, NY Slip Op 02146 (2d Dep't March 28, 2018)

Here is the decision.

Statute of limitations.

The statute of limitations is not tolled during the period between a defendant's demand for a hearing pursuant to General Municipal Law § 50-h and the hearing.

Mourato v. Suffolk County Water Auth., NY Slip Op 01912 (2d Dep't March 21, 2018)

Here is the decision.

Defamation actions and common-law malice.

A plaintiff cannot raise an issue of fact as to common-law malice if the defendant's statement was made in his own self-interest, and, thus, protected by a qualified privilege. The fact that the defendant may have harbored ill will toward the plaintiff is immaterial.

Glazier v. Harris, NY Slip Op 02025 (1st Dep't March 22, 2018)

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Motions to reargue.

The motion will be denied unless there has been a change in the controlling law, or there is new evidence that would warrant a different result. Denial of the motion is not appealable.

Koplowitz v. King, NY Slip Op 0202 (1st Dep't March 22, 2018

Here is the decision.

Vacating, modifying, and confirming arbitration awards.

Pursuant to CPLR 7510, the court must confirm the award unless it is vacated or modified on a ground specified in CPLR 7511.

Matter of Granet & Assoc., Inc. v. Thom Filicia, Inc., NY Slip Op 02017 (1st Dep't March 22, 2018)

Here is the decision.

Vacating a default in opposing a motion.

In order to vacate a default in opposing a motion pursuant to CPLR 5015(a)(1), the moving party is required to demonstrate a reasonable excuse for the default and a potentially meritorious opposition to the motion.  The motion to vacate must be made within one year after the movant has been served a copy of the judgment or order with written notice of entry.

Chase Home Fin., LLC v. Weinfeld, NY Slip Op 01899 (2d Dep't March 21, 2018)

Here is the decision.

Filing an RJI in a mortgage foreclosure action.

While 22 NYCRR 202.12-a(b)(1) states that at the time that proof of service of a summons and complaint is filed with the clerk, a plaintiff in a mortgage foreclosure action shall file a specialized RJI applicable to the action, it does not provide that the failure to do so will result in dismissal of the action.

BAC Home Loans Servicing, L.P. v. Jackson, NY Slip Op 01896 (2d Dep't March 21, 2018)

Here is the decision.

Jurisdictional discovery.

Plaintiff's request for jurisdictional discovery pursuant to CPLR 3211(d) will be denied in the absence of a showing of the possible existence of essential jurisdictional facts that are not yet known.

Davis v. Scottish Re Group Ltd., NY Slip Op 01867 (1st Dep't March 20, 2018)

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Improperly pled claims.

The court will not consider a claim that was pled only in opposition to the defendant's summary judgment motion, and not in a pleading or an amended pleading.

Demetriades v Royal Abstract Deferred, LLC, NY Slip Op 01640 (1st Dep't March 15, 2018)

Here is the decision.

A defendant's burden on summary judgment in a slip and fall action.

The prima facie showing required of the defendant is determined by plaintiff's allegations of liability. If the complaint does not allege, and the opposition to the motion does not argue, a recurring condition at the site of the accident, the defendant does not have to make a showing as to lack of a recurring condition.

Bader v. River Edge at Hastings Owners Corp., NY Slip Op 01588 (2d Dep't March 14, 2018)

Here is the decision.

A motion for leave to amend the complaint.

The court may overlook plaintiffs' failure to submit a copy of a proposed amended complaint since the proposed amendment was adequately described in their notice of motion and the attorney affirmation.

Dogwood Residential, LLC v. Stable 49, Ltd., NY Slip Op 01574 (1st Dep't March 13, 2018)

Here is the decision.