A motion to vacate a default.

The Appellate Division unanimously affirmed the Order which denied the motion to vacate and to compel plaintiff to accept defendant's answer, finding that defendant failed to proffer a reasonable excuse for the default, pursuant to CPLR 5015[a][1]. A party seeking to vacate a default judgment must demonstrate a reasonable excuse for the default and a meritorious defense. Absent a reasonable excuse, vacatur is not appropriate regardless of whether defendant has a meritorious defense. Defendant's excuse that her attorney failed to file a timely answer on her behalf does not constitute a reasonable excuse because she failed to set forth any details or evidence in support of her allegation, including who her former attorney was, when she retained that attorney, or why that attorney failed to file an answer. As defendant is not entitled to vacatur of the default judgment, plaintiff cannot be compelled to accept service of her late answer, pursuant to CPLR 3012[d].

U.S. Bank Trust N.A. v. Rivera, NY Slip Op 06040 (1st Dep't October 22, 2020)

Here is the decision.

A dispute over a purported gift.

Plaintiff alleges that defendants were unjustly enriched by keeping money that defendants claim was a gift. Defendants seek to show that the money was a gift by pointing to plaintiff's gifts to his nephew, his loan to a friend, which defendants allege was mostly forgiven and, therefore, was essentially a gift, and the fact that he may have allowed one defendant to buy plaintiff's house for less than fair market value. However, in a civil case, a party's character may not be used to raise an inference that he acted in conformity therewith on the occasion at issue.

Vlachos v. Thomas, NY Slip Op 06041 (1st Dep't October 22 2020)

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A judgment of foreclosure and sale.

The Appellate Division vacated the judgment, denied plaintiff's motion to confirm the referee's report of the amount due to plaintiff, and remanded for a new report computing the amount due. The referee relied on an affidavit of an assistant vice president of plaintiff's loan servicer, who asserted that, according to plaintiff's books and records pertaining to defendant's loan and payment history, defendant had been in default, and owed plaintiff the amount stated. However, because the books and records were not submitted to the court, the affiant's assertions are inadmissible hearsay. Neither did the affiant lay a foundation for the introduction of the books and records as a business record, pursuant to CPLR 4518[a].

Deutsche Bank Nat'l Trust Co. v. Kirschenbaum, NY Slip Op 05849 (1st Dep't October 20, 2020)

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Dismissal of a non-resident's claims.

The Appellate Division affirmed dismissal of the claims as against this plaintiff who states that he lived in Texas and worked in his home office there. He reported to managers based in New York, served clients mostly based in New York, and travelled to New York State and City two to three times a year, for two to three days each visit, in order to meet with supervisors and service clients. Plaintiff's presence in New York is not sufficient to vest New York's courts with subject matter jurisdiction over his claims under the New York State and City Human Rights Laws. Since plaintiff's cause of action under Labor Law § 215 is premised almost exclusively on work performed outside of this State, he has failed to state a claim under that statute. As plaintiff is a Texas resident, and his sole remaining retaliation claim is asserted under a section of the Texas Labor Law, the motion court providently exercised its discretion in dismissing that claim on the ground of forum non conveniens, pursuant to CPLR 327[a].

Kingston v. International Business Machs. Corp., NY Slip Op 05856 (1st Dep't October 20, 2020)

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Venue.

The Appellate Division unanimously affirmed the Order which denied defendants' motion to change venue from New York County to Oneida County. Plaintiffs commenced this medical malpractice action in New York County, alleging that, in its certificate of incorporation, one of the defendants, Emergency Physician Services of New York (EPSNY), designated New York County as its principal office. In moving to change venue, defendants argued that EPSNY's most recent biennial statements, submitted in accordance with Business Corporations Law § 408, reflected its current corporate residence as Woodbury, New Jersey. The Appellate Division found that plaintiffs properly commenced the action in New York County, as, for venue purposes, the designation of New York County in EPSNY's papers filed with the Secretary of State controlled, even if it did not actually have an office in New York County. The principal executive office noted in a corporation's biennial statement does not determine corporate residence for venue purposes, since it is not contained in either a certificate of incorporation or an amended certificate.

Sultana v. St. Elizabeth Med. Ctr., NY Slip Op 05873 (1st Dep't October 20, 2020)

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Res ipsa.

The Appellate Division unanimously reversed the Order which granted defendant's motion for summary judgment dismissing the complaint, and denied the motion. In this action, plaintiff investigated a hissing sound coming from the electrical circuit box in her apartment, and, as she drew close to the circuit box, it suddenly burst into flame, burning her right arm. Plaintiff may raise res ipsa loquitur in opposition to defendant's motion without having alleged the doctrine in her notice of claim or complaint, as it is not a separate theory of liability, but, rather, an evidentiary rule that involves a common sense application of the probative value of circumstantial evidence. Plaintiff's evidence raised triable issues as to application of the doctrine, as it showed that she had resided in the apartment for 19 years, she would contact defendant's employees to remedy any issues with the circuit box, and defendant's employees handled the inspection, maintenance, and repair of the circuit box. To the extent that defendant argues the lack of notice of the alleged dangerous condition, there is a triable issue of fact regarding the applicability of the res ipsa doctrine, and, under the doctrine, proof of notice may be inferred.

Townsend v. New York City Hous. Auth., NY Slip Op 05874 (1st Dep't October 20,2020)

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A motion to vacate a default judgment.

The Appellate Division affirmed the Order which denied the motion. Defendant failed to demonstrate a reasonable excuse for his default and a meritorious defense to the action because he submitted his motion without an affidavit by someone with personal knowledge of the pertinent facts, namely, defendant himself. The affirmation by his counsel, who lacked personal knowledge, was insufficient for this purpose. Regardless, defendant's incarceration does not constitute a reasonable excuse for his default, given that he does not contest the receipt of service and he was afforded six months to respond to plaintiff's motion. Defendant did not  demonstrate a meritorious defense by arguing that a subsequent consulting agreement with plaintiff's son, who is not a party to the sued-upon note, superseded his obligations to plaintiff under the note.

Yaffe v. Shkreli, NY Slip Op 05875 (1st Dep't October 202020)

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Failure to comply with discovery obligations.

The Appellate Division found that the motion court providently exercised its discretion in dismissing the complaint, pursuant to CPLR 3126. based on plaintiff's failure to comply with her discovery obligations. While asserting that she complied with her obligations, plaintiff failed to respond to defendants' specific allegations of deficiencies. The record shows that some discovery was provided belatedly or in improper form, items are missing, and depositions have not been completed. Moreover, plaintiff's noncompliance was the subject of multiple prior motions to dismiss, good faith letters, and discovery stipulations and orders, and so willfulness may be inferred.

Ruiz v. Selzer, NY Slip Op 05835 (1st Dep't October 15, 2020)

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Summary judgment in a slip-and-fall action.

Defendant submitted the affidavits of its building manager and a porter, who both stated that it was defendant's practice to clean the stairwell twice a day, and that the porter cleaned the stairwell on the day of the accident and prior to plaintiff's fall and did not see any debris on the staircase. These affidavits cannot be considered because defendant only identified those witnesses after it filed its motion, despite plaintiffs' prior request that defendant identify all employees with knowledge of the facts and circumstances of the accident, and numerous court orders directing defendant to do so.

Verges v. Concourse Residential Hotel, Inc., NY Slip Op 05708 (1st Dep't October 13, 2020)

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A promissory estoppel claim.

The claim fails, as there is neither a clear and unambiguous statement nor any detrimental reliance.

Weisenfeld v. Iskander, NY Slip Op 05710 (1st Dep't October 13, 2020)

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A slip-and-fall claim.

The Appellate Division reversed the Order which granted defendant's motion for summary judgment dismissing the complaint, and denied the motion.  In this action where plaintiff alleges that she slipped and fell on grease as she descended the stairs in defendant's building, defendant failed to establish its prima facie entitlement to summary judgment. Defendant did not demonstrate that it lacked constructive notice of the grease, as it failed to show when the stairwell was last cleaned or inspected. Proof of a regular maintenance schedule does not suffice for the purpose of showing that it was followed, and since the superintendent was due to clean the hallways and stairs on the day of the accident, plaintiff's observation of debris on the stairs shows that no such maintenance was done prior to her fall. Because defendant did not meet its initial burden of showing, as a matter of law, that it lacked constructive notice of the alleged defective condition, the burden never shifted to plaintiff to demonstrate how long the condition existed.

White v. MP 40 Realty Mgt. LLC, NY Slip Op 05838 (1st Dep't October 15, 2020)

Here is the decision.