CPLR 5015 and vacating a default on the motion.

Pursuant to CPLR 5015(a)(1), the movant must demonstrate a reasonable excuse for the default and a potentially meritorious opposition to the motion.

Practice point:  The vague and unsubstantiated claim of law office failure is insufficient to establish a reasonable excuse for the default.

Bank of N.Y. Mellon v. Rici, NY Slip Op 00252 (2d Dep't January 16, 2019)

Here is the decision.

A landowner's liability.

Practice point:  Where a license agreement grants only a license to use the premises, and not a leasehold interest, the landowner remains in presumptive control of its property, and is subject to the obligations of ownership, including the duty to maintain the property in a reasonably safe condition.

Student note:  Courts uniformly hold that control is the test to measure the property owner's responsibility in tort.

Agbosasa v. City of New York, NY Slip Op 00250 (2d Dep't January 16, 2019)

Here is the decision.

CPLR 203(b) and the relation-back doctrine.

In order for a cause of action against a new defendant to relate back to the date of a claim against another defendant, the plaintiff must establish: (1) that the cause of action arises out of the same conduct, transaction, or occurrence; (2) that the additional party is united in interest with the original party; and (3) that the additional party knew or should have known that, but for the plaintiff's mistake as to the identity of the proper parties, the action would have been brought against the additional party as well.

Practice point:  In a medical malpractice action, the defendants are considered united in interest when one is vicariously liable for the acts of the other.

Ferrera v. Jerome Zisfein, NY Slip 00096 (2d Dep't January 9, 2019)

Here is the decision.

CPLR 317 and 5015.

Practice point:  The defense otherwise afforded by CPLR 317 is unavailable where the defendant's cursory denials fail to rebut the presumption of notice of the action created by the emails and proof of mailings submitted by the plaintiff. Where the defendant fails to raise an issue of fact as to service, vacatur for lack of jurisdiction under CPLR 5015(a)(4) will be denied. Where the defendant's only excuse is lack of service, and there is no issue of fact as to service, vacatur for excusable default under CPLR 5015(a)(1) will be denied.

Student note:  A process server's affidavit constitutes prima facie evidence of proper service.

Thomas v. Karen's Body Beautiful LLC, NY Slip Op 00241 (1st Dep't January 15, 209)

Here is the decision.

Rent regulation and CPLR 203-a.

Practice point:  Fraud is the only exception to the four year look-back period to determine the legally regulated rent on the base date.

Reich v. Belnord Partners, LLC, NY Slip Op 00220 (1st Dep't January 15, 2019)

Here is the decision.

The issue of standing on a summary judgment motion.

Practice point:  The burden is on the moving defendant to establish, prima facie, the plaintiff's lack of standing, rather than on the plaintiff to affirmatively establish its standing.

Cenlar FSB v. Lanzbom, NY Slip Op 00092 (2d Dep't January 9, 2019)

Here is the decision.

A landlord's duty to protect.

Practice point:  Landlords have a common-law duty to take minimal precautions to protect tenants and their guests from foreseeable harm, including a third party's foreseeable criminal conduct. A plaintiff's recovery requires a showing that the landlord's negligence was a proximate cause of the injury.

Student note: In premises security cases, the necessary causal link can be established only if the assailant was an intruder who gained access to the premises through a negligently maintained entrance.

Aminova v. New York City. Hous. Auth., NY Slip Op 00083 (2d Dep't January 9, 2018)

Here is the decision.

An involuntary dissolution.

Practice point:  In determining whether, under section 1104-a of the Business Corporation Law, the dissolution is warranted, a court must consider (1) whether liquidation is the only feasible means whereby the petitioner may reasonably expect to obtain a fair return on the petitioner's investment,  and (2) whether liquidation is reasonably necessary for the protection of the rights and interests of the petitioner or a substantial number of shareholders.  The court has discretion to deny the petition on a showing of shareholder oppression, provided the respondent shows that there is an adequate, alternative remedy, such as a buy-out, that would provide a fair return on the corporate investment.

Campbell v. McCall's Bronxwood Funeral Home, Inc., NY Slip Op 00182 (1st Dep't January 10, 2019)

Here is the decision.

Remedial affidavits.

Practice point:  In determining whether the pleading states a cause of action, a court may freely consider affidavits submitted by the plaintiff to remedy any defects in the complaint.

A. Servidone, Inc./B. Anthony Constr. Corp., J.V. v. State of New York, NY Slip Op 00082 (2d Dep't January 9, 2019)

Here is the decision.

Unjust enrichment.

Practice point:  To sufficiently plead the cause of action, a plaintiff must show that the defendant was enriched at the plaintiff's expense, and that it is against equity and good conscience to permit the defendant to keep what the plaintiff seeks to recover.

Student note:  Although the plaintiff does not have to allege privity, there must be a connection or relationship between the parties that could have caused reliance or inducement on the plaintiff's part.

McMurray v. Hye Won Jun, NY Slip Op 00065 (1st Dep't January 8, 2019)

Here is the decision.

CPLR 202.

Practice point:  This is New York's borrowing statute, which requires a claim to be timely under both the New York limitations period and that of the jurisdiction where the claim is alleged to have arisen.

Soloway v. Kane Kessler, PC, NY Slip Op 00026 (1st Dep't January 3, 2019)

Here is the decision.