CPLR 3216 and 90-day demands.

Practice point:  After having been served with the demand, pursuant to 3216(b), a plaintiff must timely file a note of issue or move to vacate the demand or to extend the 90-day period. Vacatur of a default requires a reasonable excuse and a potentially meritorious cause of action.

Student note:  CPLR 3216  authorizes, but does not require, dismissal of an action based on the plaintiff's unreasonable neglect to proceed.

Angamarca v. 47-51 Bridge St. Prop., LLC, NY Slip 08273 (2d Dep't December 5, 2018)

Here is the decision.

A defense of unconscionability.

Practice point:  The defense requires a showing that the defendant did not have a meaningful choice in entering into the agreement. and that the agreement's terms were unreasonably favorable to the plaintiff.

Cash4Cases, Inc. v. Brunetti, NY Slip Op 08360 (1st Dep't December 6, 2018)

Here is the decision.

The Court of Claims Act.

Practice point:  For purposes of the statute, a claim accrues when damages are reasonably ascertainable.

Student note:  Compliance with the filing deadlines set forth in § 10 is jurisdictional, and the deadlines must be strictly construed.

Mills v. City Univ. of N.Y., NY Slip Op 08355 (1st Dep't December 6, 2018)

Here is the decision.

Easements by grant and prescription.

Practice point:  An easement by grant is construed to give effect to the parties' intent, as manifested by the grant's language. For an easement by prescription, the standard is clear and convincing proof of the adverse, open and notorious, continuous, and uninterrupted use of the property for the prescriptive period.

Student note:  Where the easement provides for the ingress and egress of motor vehicles, it extends to any reasonable use necessary and convenient for the purpose for which it is created.

DiDonato v. Dyckman, NY Slip Op 08113 (2d Dep't November 28, 2018)

Here is the decision.

Equitable remedies.

Practice point:  The court may issue a permanent injunction even if the parties' agreement does not specify it as a remedy.

Student note:  A complete bar to equitable relief requires explicit contractual language, such as a provision that liquidated damages will be the sole and exclusive remedy.

Nelson v. Rosenkranz, NY Slip Op 08177 (1st Dep't November 29, 2018)

Here is the decision.

The right to a trial by jury.

Practice point:  The guarantee to a right to a trial by jury under the Seventh Amendment to the United States Constitution differs from the protections afforded the right to a jury trial in civil cases in New York.

Student note:  The Seventh Amendment is not applicable to cases tried in state courts.

Marko v. Korf, NY Slip Op 08089 (1st Dep't November 27, 2018)

Here is the decision.

Moot questions.

Practice point:  Courts may not pass on academic, hypothetical, or otherwise abstract questions that have no practical effect on the parties.

Student note:  As a matter of jurisdiction, a court's power to declare the law derives from, and is limited to, determining issues relating to persons who are rightly parties in a particular case.

Berger v. Prospect Park Residence, LLC, NY Slip Op 08110 (2d Dep't November 28, 2018)

Here is the decision.

Service of process.

Practice point:  An affidavit of service is prima facie evidence that the defendant was properly served with the summons and complaint, pursuant to CPLR 308(2).  In order to rebut the prima facie showing, the defendant must submit a sworn, nonconclusory denial of service, or swear to specific facts to rebut the statements in the process server's affidavit.

Student note:  A defendant's mere assertion that he was never served is insufficient to rebut the presumption  of proper service.

JP Morgan Chase Bank v. Dennis, NY Slip Op 08070 (1st Dep't November 27, 2018)

Here is the decision.

Expert opinons.

Practice point:  The opinion is without probative value if it is based on purported facts that are flatly contradicted by the evidence of record.

Holmes v. New York City Tr. Auth., NY Slip Op 08069 (1st Dep't November 27, 2018)

Here is the decision

Immunity from service of process.

Practice point:  Nondomiciliaries are immune from civil process when they voluntarily appear in New York to participate in any legal proceeding.

Student note: For immunity to attach, there must be no available means of acquiring jurisdiction over the person other than personal service in New York.

Sandella v. Hill, NY Slip Op 08051 (2d Dep't November 21, 2018)

Here is the decision.

Motions to consolidate.

Practice point:  The motion will be granted where the actions arise from the same transaction, concern the same parties, and involve common questions of law and fact.

Student note:  Consolidation is appropriate where it will avoid unnecessary duplication of trials; save unnecessary costs and expense; and prevent any injustice which would result from divergent decisions based on the same set of facts. The motion, which is left to the sound discretion of the trial court, should be granted absent a showing of prejudice to the non-movant, pursuant to CPLR 602(a).

Rhoe v. Reid, NY Slip Op 08049 (2d Dep't November 21, 2018)

Here is the decision.