Easements.

Where a written instrument granting the easement is unambiguous, the parties' intent must be found within the four corners of the document, and the question is one of law, which may be decided on a motion for summary judgment.  Once an easement for ingress and egress is definitively located by grant, its location cannot be changed unilaterally by either party, and the servient landowner is not free to unilaterally designate the particular path that may be used for ingress and egress.  Where an easement is granted in general terms, without limitation, and the right-of-way is described by its metes and bounds, the dominant estate is entitled to a right-of-way over the entirety of the described area.

Acosta v. Vincenti, NY Slip Op 03882 (2d Dep't July 16, 2020)

Here is the decision.

CPLR 5015(a)(1).

A defendant's unspecified problems with mail and its bare denial of receipt of the complaint do not constitute a reasonable excuse for a default.

Jansons Associated Inc. v. 112 E. 72nd LLC, NY Slip Op 04003 (1st Dep't July 16, 2020)

Here is the decision.

Appellate practice.

Plaintiffs' motion, denominated as one for leave to renew and reargue, is not based on new facts unavailable at the time of defendants' motion, and, therefore, is a motion to reargue, the denial of which is not appealable.

Alfani v. Rivercross Tenants Corp., NY Slip Op 03994 (1st Dep't July 16, 2020)

Here is the decision.

A disqualification motion.

The basis for the motion is the alleged breach of the fiduciary duty owed by an attorney to a current or former client. When the law firm targeted by the motion has never represented the moving party, the firm owes no duty to that party. So, in the absence of an attorney-client relationship with the firm, a plaintiff has no standing to bring a motion to disqualify.

HSBC Bank USA, N.A. v. Santos, NY, Slip Op 03976 (1st Dep't July 16, 2020)

Here is the decision.

A property owner's liability.

 The owner is not iable for trivial defects, not constituting a trap or nuisance, over which a pedestrian might merely stumble, stub a toe, or trip.  In determining whether the defect is trivial, the court must examine all of the facts presented, including the width, depth, elevation, irregularity, and appearance of the defect, as well as the time, place, and circumstances of the incident.. In moving to dismiss the complaint, the defendant may submit photographs which fairly and accurately represent the accident site.

Acevedo v. City of Yonkers, NY Slip Op 03881 (2d Dep't July 15, 2020)

Here is the decision.

CPLR 3404.

A case marked off or struck from the trial calendar or unanswered on a clerk's calendar call, and not restored within one year thereafter, is deemed abandoned and will be dismissed for neglect to prosecute. A plaintiff seeking to restore a case to the trial calendar more than one year after it has been marked off must demonstrate a potentially meritorious cause of action, a reasonable excuse for the delay in prosecuting the action, a lack of intent to abandon the action, and a lack of prejudice to the defendant. All four components of the test must be satisfied before the dismissal can be vacated and the action restored.

Patriarca v. Oreckinto, NY Slip Op 03795 (2d Dep't July 8, 2020)

Here is the decision.

Agency.

An agent acting on behalf of a disclosed principal is not liable for breach of contract in the absence of clear and explicit evidence of the agent's intention to be bound.

Overbay, LLC v. Berkman, Henoch, Peterson, Peddy & Fenchel, P.C., NY Slip Op 03794 (2d Dep't July 8, 2020)

Here is the decision.

Vacatur of a default.

The court providently exercised its discretion in denying defendant's motion to vacate. After failing to oppose plaintiff's motion for summary judgment on its mortgage foreclosure complaint and its subsequent motion for the entry of a judgment of foreclosure and sale, defendant moved to vacate the judgment and the underlying order. However, she failed to appear for oral argument, and the motion was denied. Defendant then appealed from the denial of the motion to vacate the order that denied her first motion to vacate. The Appellate Division noted that, in support of the motion, defendant failed to demonstrate any excuse, much less a reasonable excuse, for her failure to contest the dispositive motions. In the absence of a reasonable excuse, the Appellate Division did not consider whether defendant demonstrated a meritorious defense.

U.S. Bank N.A. v. Hattim, NY Slip Op 03856 (1st Dep't July 9, 2020)

Here is the decision.

Contracts.

A material breach is a failure to do something that is so fundamental that the failure to perform the obligation defeats the essential purpose of the contract. Here, defendants breached the agreement's explicit terms by missing the installment payments. The court rejected the argument that the provision of an interest penalty if a payment is not timely made precludes a finding of breach, and that defendants were entitled to pay at an undisclosed later date, is unavailing, as it would allow defendants never to pay.

Feldmann v. Scepter Group, Pte. Ltd., NY Slip Op 03855 (1st Dep't July 9, 2020)

Here is the decision.

Appellate practice.

The arguments concerning so much of the order as granted defendant's motion for summary judgment dismissing the complaint insofar as predicated on its violation of a common-law duty are not properly before the court. Despite being aggrieved thereby, the plaintiff did not appeal from that part of the order.

E.B.-W v. New York City Hous. Auth., NY Slip Op 03865 (1st Dep't July 9, 2020)

Here is the decision.

CPLR 5015 .

Since the order granting summary judgment dismissing the complaint was granted on default, the court properly denied plaintiff's motion to renew and reargue. The proper remedy for plaintiff was to move to vacate the default.

Luciano v. Felix, NY Slip Op 03878 (1st Dep't July 9, 2020)

Here is the decision.