A defendant can only move to dismiss a cause of action where that cause of action is actually asserted against the moving defendant.
Grocery Leasing Corp v. P&C Merrick Realty Co., LLC, NY Slip Op 04702 (2d Dep't August 18, 2021)
Tomorrow's issue: Notices of claim.
The Appellate Division will not consider plaintiff's arguments that are outside the scope of the notice of appeal and amended notice of appeal, pursuant to CPLR 5515[1].
Grocery Leasing Corp. v. P & C Merrick Realty Co, LLC, NY Slip Op 04701 (2d Dep't August 18, 2021)
Tomorrow's issue: CPLR 3211(a).
"]f the plaintiff fails to take proceedings for the entry of judgment within one year after the default, the court shall not enter judgment but shall dismiss the complaint as abandoned . . . unless sufficient cause is shown why the complaint should not be dismissed." In order to avoid dismissal, it is not necessary for a plaintiff to actually obtain a default judgment within one year of the default, or to specifically seek the entry of a judgment within one year. As long as'proceedings are undertaken, and these proceedings manifest an intent not to abandon the case but to seek a judgment, the case should not be subject to dismissal. Furthermore, where an action is subject to a mandatory settlement conference, pursuant to CPLR 3408, the one-year deadline is tolled while settlement conferences are pending.
Deutsche Natl. Bank Trust Co. v. Attard, NY Slip Op 04698 (2d Dep't August 18, 2021)
Tomorrow's issue: Appellate practice.
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)
Tomorrow's issue: CPLR 3215(c).
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)
Tomorrow's issue: Failure to appear at a scheduled conference.
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)
Tomorrow's issue: CPLR 3211(a)(7).
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)
Tomorrow's issue: CPLR 3215(c).
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)
Tomorrow's issue: CPLR 213(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)
Tomorrow's issue: A motion for summary judgment in an action to foreclose a mortgage.
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)
Tomorrow's issue: CPLR 3218(a)(2).
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)
Tomorrow's issue: Appellate practice.