A general release and waiver of liability.

The defendant established its prima facie entitlement to judgment as a matter of law dismissing the complaint by presenting a general release and waiver of liability signed by the plaintiff. If the language of the release is clear and unambiguous, it is binding on the parties and is a complete bar to an action on a claim which is the subject of the release. 

Durand v. Salvation Army, NY Slip Op 04919 (2d Dep't September 16, 2020)

Here is the decision.

CPLR 305(c).

In the exercise of its discretion, the court may allow a summons or proof of service of a summons to be amended in the absence of prejudice to a substantial right of a party against whom the summons issued. The motion to cure a misnomer in the description of a party-defendant should be granted, even if the statute of limitations has run, where (1) there is evidence that the correct defendant has been properly served, and (2) the correct defendant would not be prejudiced by allowing the amendment.

Duncan v. Emerald Expositions, LLC, NY Slip Op 04918 (2d Dep't September 16, 2020)

Here is the decision.

Constructive trusts.

The purpose of a constructive trust is to prevent unjust enrichment. It is an equitable remedy that may be imposed when property has been acquired in such circumstances that the holder of the legal title may not in good conscience retain the beneficial interest.

Derosa v. Estate of Iannazzo, NY Slip Op 04917 (2d Dep't September 16, 2020)

Here is the decision.

A late notice of claim.

The Appellate Division affirmed the denial of the plaintiffs' cross motion for leave to amend the notice of claim or to serve a late notice of claim. The plaintiffs' proposed amendments add substantive new facts and new theories of liability not set forth in the original notice of claim and which are not permitted as late filed amendments to a notice of claim under General Municipal Law § 50-e(6).

C. D. v. Goshen Cent. Sch. Dist., NY Slip Op 04916 (2d Dep't September 16, 2020)

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Rulings, decisions, and orders.

A decision resolves an issue on its merits, but does not order any party to do or refrain from doing anything. An order implements a decision by requiring a party to act or refrain from acting consistent with the decision. Decisions may not be appealed, although appeals may be taken from orders and final judgments, pursuant to  CPLR 5501[a] and 5512[a]. A ruling is not a product of a motion made on notice, but a mere determination of an issue made during depositions, trials, or other proceedings. Rulings are not appealable, but rulings that have been objected to and preserved may be reviewed on an appeal from a final judgment, pursuant to 5501[a][3].

Charalabidis v. Elnagar, NY Slip Op 04913 (2d Dep't September 16, 2020)

Here is the decision.

Failure to appear at a calendar call.

Where the plaintiff appears but the defendant does not, the court may grant judgment by default or order an inquest, pursuant to 22 NYCRR 202.27[a]. Where the defendant appears but the plaintiff does not, the court may dismiss the action and order a severance of counterclaims or cross claims, pursuant to 202.27[b]. If neither party appears, the court may make such an order as it deems just, pursuant to 202.27[c].

Charalabidis v. Elnagar, NY Slip Op 04912 (2d Dep't September 16, 2020)

Here is the decision.

Leave to amend a pleading.

The motion should be freely granted, absent prejudice or surprise directly resulting from the delay in seeking leave, unless the proposed amendment is palpably insufficient or patently devoid of merit, pursuant to CPLR 3025(b).

Bridgehampton Nat'l Bank v. D & G Partners, L.P., NY Slip Op 04911 (2d Dep't September 16, 2020)

Here is the decision.

Conditions precedent.

A condition precedent is an act or event, other than a lapse of time, which, unless the condition is excused, must occur before there is a duty to perform a promise set forth in the agreement. Here, there is a condition precedent to the formation or existence of the contract itself, so that there is no contract unless and until the condition occurs.

Bedoya v. Rodriguez, NY Slip Op 04910 (2d Dep't September 16, 2020)

Here is the decision.

Summary judgment in a mortgage foreclosure action.

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)

Here is the decision.

Proper service.

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)

Here is the decision.

Attorneys' fees.

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)

Here is the decision.