Appellate practice.

While, generally, an argument may not be raised for the first time on appeal, the Court may review a question of law presented for the first time on appeal if it appears on the face of the record and could not have been avoided if it had been raised at the proper juncture. Here, there is case law supporting the proposition that a plaintiff moving for summary judgment on the issue of liability on a cause of action alleging a violation of section BC 3309.4 must show, prima facie, that the plaintiff granted the requisite license for the defendant to access, inspect, and protect its property. As the defendants, in effect, are challenging the plaintiffs' legal showing on their summary judgment motion, as opposed to challenging the sufficiency of the plaintiffs' evidence in support of their motion, the defendants' argument is reviewable, even though it is raised for the first time on appeal.

211-12 N. Blvd. Corp. v. LIC Contr., Inc., NY Slip Op 04134

Here is the decision.

Orders of preclusion.

Where plaintiff violated the court's conditional order of preclusion by failing to produce a witness for a scheduled deposition, and failed to demonstrate either a reasonable excuse for the failure to comply or a meritorious claim, the court may deny plaintiff's motion to allow the deposition to proceed. The court is not required to find that the failure to comply was willful.

Center Sheet Metal v. Cannon Design, Inc., NY Slip Op 04010 (1st Dep't July 15, 2020)

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22 NYCRR 202.27.

In order to vacate a dismissal based on being unprepared to proceed with trial at a calendar call, a plaintiff must demonstrate both a reasonable excuse for the default and a potentially meritorious cause of action. The determination of whether an excuse is reasonable lies within the sound discretion of the court.

Bank of Am., N.A. v. Wood, NY Slip Op 03885 (2d Dep't July 16, 2020)

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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)

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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)

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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)

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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)

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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)

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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)

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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.