Appellate practice.

The appeal from so much of the order as granted that branch of the defendant's motion which was for summary judgment dismissing the complaint insofar as asserted against it must be dismissed. The plaintiff failed to oppose that motion and, therefore, is precluded from challenging the propriety of that order on appeal.

Leader v. Steinway, Inc., NY Slip Op 04831 (2d Dep't September 2, 2020)

Here is the decision.

Appellate practice.

No appeal lies from an order entered upon the default of the appealing party, pursuant to CPLR 5511.

Leader v. Steinway, Inc., NY Slip Op 04831 (2d Dep't September 2, 2020)

Here is the decision.

Appellate practice.

Intermediate orders that necessarily affected the final judgment are brought up for review and may be considered on the appeal.

Goshen Mtge., LLC v. DePalma, NY Slip Op 04830 (2d Dep't September 2, 2020)

Here is the decision.

Extending the time for service of process.

While CPLR 306-b requires that service be effected within 120 days of the commencement of the action, it also provides that "[i]f service is not made upon a defendant within the time provided in this section, the court, upon motion, shall dismiss the action without prejudice as to that defendant, or upon good cause shown or in the interest of justice, extend the time for service." A motion to extend the time for service may be granted on good cause shown or in the interest of justice, which are separate and independent standards. To establish good cause, a plaintiff must demonstrate reasonable diligence in attempting service. If good cause for an extension is not established, a court must consider the broader interest of justice standard. In applying that standard, the court must analyze the factual setting and the parties' competing interests.  It may also consider diligence, or the lack thereof, along with any other relevant factor in making its determination, including expiration of the Statute of Limitations, the meritorious nature of the cause of action, the length of delay in service, the promptness of a plaintiff's request for the extension of time, and prejudice to the defendant.

Fink v. Dollar Mart, NY Slip Op (2d Dep't September 2, 2020)

Here is the decision.

Discovery disputes.

The resolution of discovery disputes is within the sound discretion of the motion court. Striking a pleading may be appropriate where there is a clear showing that the failure to comply with discovery demands is willful or contumacious, pursuant to  CPLR 3126[3]. Willful and contumacious conduct may be inferred from a party's repeated failure to comply with court-ordered discovery, coupled with inadequate explanations for the failures to comply, or a failure to comply with court-ordered discovery over an extended period of time.

Ewa v. City of New York, NY Slip Op 04825 (2d Dep't September 2, 2020)

Here is the decision.

Appellate practice.

No appeal lies as of right from an order that does not decide a motion made on notice, pursuant to CPLR 5701(a)(2).

Deutsche Bank Natl. Trust Co. v. Brown, NY Slip Op 04824 (2d Dep't September 2, 2020)

Here is the decision.

Inquests.

At the inquest, the sole issue is the extent of plaintiff's damages, and the inquest court should not consider the question of whether the defsndant caused the damages. At an inquest to ascertain damages upon a defendant's default, the plaintiff may submit proof by written sworn statements of the witnesses, pursuant to  CPLR 3215[b] and 22 NYCRR 202.46[b]. However, if the defaulting defendant gives notice that he will appear at the inquest, the plaintiff must make the witnesses available for cross-examination.

Castaldini v. Walsh, NY Slip Op 04822 (2d Dep't September 2, 2020)

Here is the decision.

Collateral estoppel.

Collateral estoppel precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party or those in privity, regardless of whether the courts or the causes of action are the same. Collateral estoppel allows the determination of an issue of fact or law raised in a subsequent action by reference to a previous judgment on a different cause of action in which the same issue was necessarily raised and decided.

Broder v. Pallotta & Assoc. Dev., Inc., NY Slip Op 04821 (2d Dep't September 2, 2020)

Here is the decision.

Appellate practice.

On an appeal from a final judgment, the Appellate Division may review any intermediate order which necessarily affects the judgment, including any order that was adverse to the respondent on appeal and which, if reversed, would entitle the respondent to prevail, pursuant to  CPLR 5501[a][1].

Badr v. Blumberg, NY Slip Op 04819 (2d Dep't September 2, 2020)

Here is the decision.

Trusts.

Pursuant to § 17(e) of the Restatement (Second) of Trusts, a trust may be created by "a promise by one person to another person whose rights thereunder are to be held in trust for a third person."

Zachariou v. Manios, NY Slip Op 04811 (1st Dep't August 27, 2020)

Here is the decision.

Choice of law.

Choice of law provisions typically apply to substantive issues, not procedural ones. However, the question of whether a plaintiff has standing is a procedural matter, and procedural matters are governed by the law of the forum state. Here, the motion court properly applied New York law to determine whether plaintiff has standing.

Zachariou v. Manios, NY Slip Op 04811 (1st Dep't August 27, 2020)

Here is the decision.