In support of its motion, the plaintiff submitted two different versions of the mortgage note, only one of which was indorsed in blank. This evidence is insufficient to establish, prima facie, the plaintiff's standing. The motion is denied.
Bank of N.Y. Mellon v. Itkowitiz, NY Slip Op 04909 (2d Dep't September 16, 2020)
A process server's affidavit establishes, prima facie, the method of service, and gives rise to a presumption of proper service. A defendant's sworn statement of specific facts to rebut the statements in the affidavit of service necessitates an evidentiary hearing. However, no hearing is required where the defendant fails to swear to specific facts that rebut the statements in the affidavit of service.
Ahluwalia v. Seecharan, NY Slip Op 04907 (2d Dep't September 16, 2020)
The Supreme Court was not required to hold an evidentiary hearing before awarding attorneys' fees to the plaintiff, as the defendant, pursuant to the parties' stipulation, had consented to the resolution of the issue by motion. By so stipulating, the defendant waived his right to a hearing.
Nieves-Iglesias v. Iglesias, NY Slip Op 04847 (2d Dep't September 2, 2020)
Pursuant to CPLR 4518(a), a police accident report is admissible as a business record as long as the report is made based on the officer's personal observations, and while carrying out police duties. Where information is not based on the officer's personal observations, it may be admissible as a business record if the person giving the information to the officer was under a business duty to relate the facts to the officer, or if the statement qualifies under another hearsay exception, such as an admission. Each person in the chain producing the record, from the initial declarant to the final entrant, must be acting within the course of regular business conduct, or the declaration must meet the test of some other hearsay exception.
Country-Wide Ins. Co. v. Lobello, NY Slip Op 04836 (2d Dep't September 2, 2020)
Prohibition is an extraordinary remedy that is available only where there is a clear legal right, and then only when a court - in cases where judicial authority is challenged - acts or threatens to act either without jurisdiction or in excess of its authorized powers. The extraordinary remedy of mandamus will lie only to compel the performance of a ministerial act, and only where there exists a clear legal right to the relief.
Abdul-Malik v. Livote, NY Slip Op 04834 (2d Dep't September 2, 2020)
The motion must be based on new facts not offered on the prior motion which would change the prior determination, and the movant must submit a reasonable justification for the failure to present such facts on the prior motion, pursuant to CPLR 2221[e][2]. A motion for leave to renew is not a second chance freely given to a party who has not exercised due diligence in making its first factual presentation.
Leader v. Steinway, Inc., NY Slip Op 04833 (2d Dep't September 2, 2020)
A defendant who has been served with a summons other than by personal delivery but who has not appeared may be allowed to defend the action upon a finding that it did not personally receive notice of the summons and complaint in time to defend and that it has a potentially meritorious defense. Service on a corporation through delivery of process to the Secretary of State is not personal delivery to the corporation. A defendant moving pursuant to CPLR 317 to vacate a default need not establish a reasonable excuse for the delay in answering or appearing.
Leader v. Steinway, Inc., NY Slip Op 04832 (2d Dep't September 2, 2020)
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)
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)
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)
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)