Restoring a case to the trial calendar.

In order to vacate a dismissal based upon being unprepared to proceed with trial, a plaintiff must demonstrate a reasonable excuse for the default and a potentially meritorious cause of action, pursuant to CPLR 5015[a][1] and 22 NYCRR 202.27[a]. Whether an excuse is reasonable is a determination within the sound discretion of the trial court. Here, the plaintiff had a reasonable excuse not to proceed to trial given his unrefuted assertion that he was not given timely notice of the scheduling and commencement of the trial by his former counsel, and that the plaintiff's concerns over notice had led to a breakdown of his relationship with his former counsel.

Crevecouer v. Mattam, NY Slip Op 03566 (2d Dep't May 8, 2019)

Here is the decision.

CPLR 5701.

No appeal lies from an order that denies leave to reargue, pursuant to 5701(a)(2)(viii).

Liberty on Warren LLC v. Dragon Estates Condo, NY Slip Op 03666 (1st Dep't May 9, 2019)

Here is the decision.

Timely service.

Once an action is dismissed, a plaintiff can no longer seek an extension of time to effect service. Instead of merely opposing the motion to dismiss for lack of proper service, the plaintiff should, at least in the alternative, cross-move for an extension of time to serve.

One West Bank, FSB v. Barbosa, NY Slip Op 03673 (1st Dep't May 9, 2019)

Here is the decision.

Discontinuances.

A notice of discontinuance occurs at the time the notice is served, not at the time it is filed, pursuant to CPLR 3217[a]. A discontinuance by stipulation occurs when the stipulation is filed with the court, pursuant to CPLR 3217[a][2]).

Bayview Loan Servicing, LLC v. Windsor, NY Slip Op 03560 (2d Dep't May 8, 2019)

Here is the decision.

CPLR 7503(c).

Respondent's service of the demand for arbitration for a second time, more than a year after the original service, did not restart the 20-day period for petitioner to seek a stay of arbitration, and the petition to stay is denied.

Metropolitan Prop. & Cas. Ins. Co. v. Anthony, NY Slip Op 03662 (1st Dep't May 9, 2019)

Here is the decision.

CPLR 3012(d).

A defendant seeking leave to file a late answer must provide a reasonable excuse for the delay and demonstrate a potentially meritorious defense to the action. The determination of what constitutes a reasonable excuse lies within the sound discretion of the Supreme Court. Here, the court finds that the defendants' appearance and participation in mandatory foreclosure settlement conferences and their participation in loan modification negotiations does not constitute a reasonable excuse for their failure to file a timely answer.

Bank of Am., N.A. v. Viener, NY Slip Op 03557 (2d Dep't May 8, 2019)

Here is the decision.

A voluntary payment defense.

The defense is inapplicable where the the record does not demonstrate that plaintiffs made the payments with full knowledge of the facts that would have enabled them to conclude that they were being overcharged by defendants due to a hidden margin fee.

BLT Steak LLC v. Liberty Power Corp., LLC, NY Slip Op 03540 (1st Dep't May 7, 2019)

Here is the decision.

CPLR 2309(c).

Courts do not rigidly apply the statutory requirement of certification for affidavits. If the oath was duly given, authentication of the oathgiver's authority may be secured later, and given effect nunc pro tunc.

Forman v. Whitney Ctr. for Permanent Cosmetics Corp., NY Slip Op 03451 (1st Dep't May 2, 2019)

Here is the decision.

An estate's membership interest in an LLC.

Where plaintiff is a successor in interest to the decedent's membership interest in an LLC, plaintiff is not a member. As successor-in-interest, the estate retains only a right to distributions. Defendants' grant of access to books and records and issuance of a K-1 do not constitute an admission that plaintiff is a member.

Pappas v. 38-40 LLC, NY Slip Op 03447 (1st Dep't May 2, 2019)

Here is the decision.

CPLR 3211(f).

A defendant's time to answer the complaint is extended by virtue of its serving a notice of motion, together with its co-defendants, seeking dismissal of the causes of action asserted against the co-defendants.

Levine v. Singal, NY Slip Op 03438 (1st Dep't May 2, 2019)

Here is the decision.

An insufficient summary judgment motion in a personal injury action.

Summary judgment is denied when the defendant has a duty to keep the parking lot free of snow and ice, but the plaintiff does not allege where the accident occurred.

Neppi v. Fairway Pelham LLC, NY Slip Op 03440 (1st Dep't May 2, 2019)

Here is the decision.