Appellate practice.

An order that is not made upon notice is not appealable as of right, pursuant to CPLR 5701(a). However, the Appellate Division may deem a notice of appeal a request for leave to appeal and grant leave, in the interest of justice, for a determination on the merits, pursuant to CPLR 5701(c).

Zubillaga v. Findlay Teller Hous. Dev. Fund Corp., NY Slip Op 04687 (1st Dep't August 12, 2021)

Here is the decision.

Tomorrow's issue: CPLR 3218(a)(2).

Summary judgment on a legal malpractice claim.

In order to succeed on the motion, the defendant must present, in admissible form, evidence that at least one of the claims essential elements cannot be satisfied: (1) the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession and (2) the attorney's breach of this duty proximately caused the plaintiff to sustain actual and ascertainable damages. The causation element requires a showing that, but for the lawyer's negligence, the injured party would have prevailed in the underlying action or would not have incurred any damages. The defendant must affirmatively demonstrate the absence of one of the elements of legal malpractice, rather than merely pointing out gaps in the plaintiff's proof.

Aqua-Trol Corp. v. Wilentz, Goldman & Spitzer, P.A.NY Slip Op 04652 (2d Dep't August 11, 2021)

Here is the decision.

Tomorrow's issue: Appellate practice.

Labor Law.

Labor Law § 200 codifies the common-law duty imposed on an owner or a general contractor to provide construction site workers with a safe place to work. Where a plaintiff's claims implicate the means and methods of the work, an owner or a contractor will not be held liable under the statute unless it had the authority to supervise or control the performance of the work. General supervisory authority to oversee the progress of the work is insufficient to impose liability.

Labor Law § 241(6) imposes a nondelegable duty upon owners and contractors to provide construction workers with reasonable and adequate protection. In order to establish statutory liability, a plaintiff must demonstrate that his injuries were proximately caused by a violation of an applicable Industrial Code provision.

Kefaloukis v. Mayer, NY Slip Op 04601 (2d Dep't August 4, 2021)

Tomorrow's issue: Summary judgment on a legal malpractice claim.

CPLR 308(5).

A court may permit service by publication, upon motion without notice, if traditional service is "impracticable." The impracticability standard does not require the applicant to satisfy the more stringent standard of due diligence under CPLR 308(4). Neither does it require the applicant to make an actual showing that service has been attempted pursuant to CPLR 308(1), (2), and (4).

JP Morgan Chase Bank, N.A. v. Perkin, NY Slip Op 04600 (2d Dep't August 4, 2021)

Here is the decision.

Tomorrow's issue:  Labor Law.

CPLR 3211(a)(1).

A motion to dismiss the complaint on the ground of documentary evidence may only be granted where the  evidence utterly refutes the plaintiff's factual allegations, conclusively establishing a defense as a matter of law, The defendant bears the burden of demonstrating that the proffered evidence conclusively refutes the plaintiff's factual allegations. In order to be considered "documentary," the evidence must be unambiguous and of undisputed authenticity. Judicial records, as well as documents reflecting out-of-court transactions such as mortgages, deeds, contracts, and any other papers, the contents of which are essentially undeniable, may qualify as documentary evidence.

Giambrone v. Arnone, Lowth, Wilson, Leibowitz, Adriano & Greco, NY Slip Op 04597 (2d Dep't August 4, 2021)

Here is the decision.

Tomorrow's issue:  CPLR 308(5).

CPLR 3018[b].

The Statute of Limitations is a personal defense which is waived if it is not affirmatively pled.

Emigrant Bank v. McDonald, NY Slip Op 04594 (2d Dep't August 4, 2021)

Here is the decision.

Tomorrow's issue:  CPLR 3211(a)(1).

CPLR 5015[a][1].

A party seeking to vacate a default in appearing on the return date of a motion must demonstrate both a reasonable excuse for the default and a potentially meritorious cause of action or defense. A court may accept law office failure as a reasonable excuse, pursuant to CPLR 2005, but the claim must be specific, detailed, and corroborated.

Bank of Am., N.A. v. Russell, NY Slip Op 04592 (2d Dep't July 29, 2021)

Here is the decision.

Tomorrow's issue:  CPLR 3018(b).

CPLR 1012(a)(3).

The statute provides that, on a timely motion, any person may intervene, as of right, "when the action involves the disposition or distribution of, or the title or a claim for damages for injury to, property and the person  may be affected adversely by the judgment." In considering whether the motion to intervene is timely, courts do not merely measure time, but, instead, consider whether the delay in seeking intervention delay in resolution of the action, or otherwise prejudice a party.

1077 Madison St., LLC v. Dickerson, NY Slip Op 04591 (2d Dep't August 4, 2021)

Here is the decision.

Tomorrow's issue:  CPLR 5015[a][1].

Appellate practice.

An argument that does not constitute a purely legal issue that is apparent on the face of the record may not be raised for the first time on appeal.

Residential Bd. of Millennium Point v. Condominium Bd. of Millennium Point, NY Slip Op 04649 (1st Dep't August 5, 2021)

Here is the decision.

Tomorrow's issue: CPLR 1012(a)(3).

CPLR 3215(c).

The statute  provides that "[i]f the plaintiff fails to take proceedings for the entry of judgment within one year after [a] default, the court shall not enter judgment but shall dismiss the complaint as abandoned, without costs, upon its own initiative or on motion, unless sufficient cause is shown why the complaint should not be dismissed." "It is not necessary for a plaintiff to actually obtain a default judgment within one year of the default in order to avoid dismissal pursuant. As long as the plaintiff has initiated proceedings for the entry of a judgment within one year of the default, there is no basis for dismissal of the complaint.

1077 Madison St., LLC v. Dickerson, NY Slip Op 04590 (2d Dep't August 4, 2021)

Here is the decision.

Tomorrow's issue: Appellate practice.

An action to foreclose a mortgage.

The action is properlyaddressed to a court of equity, which will determine the parties' rights according to equity and good conscience. Here, the Appellate Division affirmed the Supreme Court's determination that a "fifty-percent shareholder causing the entity to forego recovery on its only remaining asset goes against every principle of equity."

True Gate Holding, Ltd. v. Baroukhian, NY Slip Op 04588 (1st Dep't July 29, 2021)

Here is the decision.

Tomorrow's issue:  CPLR 3215(c).