Failure to appear at a scheduled conference.

Pursuant to 22 NYCRR 202.27, upon a party's failure to appear at a scheduled conference, the court may note the default on the record, and, where the plaintiff appears but the defendant does not, enter an order granting judgment by default or order an inquest, or, where the defendant appears but the plaintiff does not, dismiss the action. In order to vacate a default in appearing at a conference, the defaulting party must demonstrate both a reasonable excuse for the default and a potentially meritorious cause of action or defense to the action. The determination of whether an excuse is reasonable lies within the sound discretion of the trial court.

126 Henry St., Inc. v. Cater, NY Slip Op 04629 (2d Dep't August 18 2021)

Here is the decision.

Tomorrow's issue: CPLR 3215(c).

CPLR 3211(a)(7).

On a motion to dismiss the complaint for failure to state a claim, the standard is whether the pleading states a cause of action. When the movant offers evidence, the motion must be denied unless the evidence establishes conclusively that the plaintiff has no cause of action.

Francisco v. Kiara Foods, Inc., NY Slip Op 04662 (2d Dep't August 11, 2021)

Here is the decision.

Tomorrow's issue: Failure to appear at a scheduled conference.

CPLR 3215(c).

Pursuant to the statute, where a plaintiff fails to take proceedings for the entry of judgment within one year after a default, the court will dismiss the complaint as abandoned.  The one exception to the otherwise mandatory statutory language is that the failure to timely seek a default on an unanswered complaint or counterclaim may be excused if 'sufficient cause is shown why the complaint should not be dismissed. The Second Department interprets this language as requiring both a reasonable excuse for the delay in timely moving for a default judgment, plus a demonstration that the cause of action is potentially meritorious. The determination of whether an excuse is reasonable in any given instance is committed to the sound discretion of the motion court.

Deutsche Bank Nat'l Trust Co. v. Brathwaite, NY Slip Op 04659 (2d Dep't August 11, 2021)

Here is the decision.

Tomorrow's issue: CPLR 3211(a)(7).

CPLR 213(2).

The statute of limitations for an action to recover on a promissory note is six years.

Carpenito v. Linksman, NY Slip Op 04657 (2d Dep't August 11, 2021)

Here is the decision.

Tomorrow's issue: CPLR 3215(c).

A motion for summary judgment in an action to foreclose a mortgage.

The plaintiff has the burden of establishing, by proof in admissible form, its prima facie entitlement to judgment as a matter of law. The plaintiff meets its burden by producing the mortgage, the unpaid note, and evidence of default. An affidavit based on personal knowledge may establish the default.

Bank of N.Y Mellon v. DeLoney, NY Slip Op 04655 (2d Dep't August 11, 2021)

Here is the decision.

Tomorrow's issue: CPLR 213(2).

CPLR 3218(a)(2).

The statutory requirement that an affidavit of confession of judgment must state concisely the facts out of which the debt arose and show that the sum confessed is justly due is meant to protect innocent third parties who might be prejudiced in the event that a collusively confessed judgment is entered, not the party who signed the confession of judgment. Therefore, the defendant was foreclosed from challenging the confession of judgment on this ground.

Balahtsis v. Shakola, NY Slip Op 04653 (2d Dep't August 11, 2021)

Here is the decision.

Tomorrow's issue: A motion for summary judgment in an action to foreclose a mortgage.

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).