Appellate practice.

The appellant seeks to argue the merits of the complaint and defendants' cross claims. However, the complaint was stricken for discovery violations and a default judgment was entered on the cross claims. Having failed to move to vacate the default on the cross claims, the appellant is deemed to have admitted all factual allegations contained therein.  Consequently, the appellant's arguments are not properly before the Appellate Division and the order appealed from is affirmed.

Honghui Kuang v. MetLife, NY Slip Op 04908 (2d Dep't September 1, 2021)

Here is the decision.

Tomorrow's issue: Leave to amend a pleading.

CPLR 3215.

A plaintiff seeking leave to enter a default judgment must file proof of (1) service of a copy of the summons and complaint; (2) the facts constituting the claim; and (3) the defendant's default.  In order to defeat a facially sufficient motion, the defendant must show either that there was no default, or that there is a reasonable excuse for the delay and a potentially meritorious defense.

Citimortgage, Inc. v. Weaver, NY Slip Op 04903 (2d Dep't September 1, 2021)

Here is the decision.

Tomorrow's issue: Appellate practice.

Tenants-in-common and adverse possession.

Under the common law, tenants-in-common are afforded a measure of extra protection from adverse possession claims asserted by their cotenants. In a tenancy- in-common, each cotenant has an equal right to possess and enjoy all or any portion of the property as if he were the sole owner. Consequently, nonpossessory cotenants do not relinquish any of their rights as tenants-in-common when another cotenant assumes exclusive possession of the property. In New York, nonpossessory cotenants are protected by a common-law rule that presumes a cotenant's possession is possession by and for the benefit of all other cotenants. This common-law rule is codified in RPAPL 541. The statute, however, also limits the presumption by providing that it "shall cease after the expiration of ten years of continuous exclusive occupancy by such tenant, personally or by his [or her] servant or by his tenant, or immediately upon an ouster by one tenant of the other and such occupying tenant may then commence to hold adversely to his  cotenant."

169 MLS Realty Corp. v. One 69 Skill Corp., NY Slip Op 04898 (2d Dep't September 1, 2021)

Here is the decision.

Tomorrow's issue: CPLR 3215.

Summary judgment in a residential foreclosure action.

Pursuant to RPAPL 1304(1), "at least ninety days before a lender, an assignee or a mortgage loan servicer commences legal action against the borrower. . . , including mortgage foreclosure, such lender, assignee or mortgage loan servicer shall give notice to the borrower." The notice "shall be sent by such lender, assignee . . . or mortgage loan servicer to the borrower, by registered or certified mail and also by first-class mail to the last known address of the borrower, and to the residence that is the subject of the mortgage," pursuant to § 1304[2]. A plaintiff demonstrates compliance with the statute by proof of the requisite mailing, such as affidavits of mailing or domestic return receipts with signatures, or proof of a standard office mailing procedure designed to ensure that items are properly addressed and mailed, sworn to by someone with personal knowledge of the procedure. 

U.S. Bank N.A. v. Pickering-Robinson, NY Slip Op 04775 (2d Dep't August 25, 2021)

Here is the decision.

Tomorrow's issue: Tenants-in-common and adverse possession.

The doctrine of primary assumption of risk.

A voluntary participant in a sporting or recreational activity consents to the commonly appreciated risks that are inherent in and arise out of the nature of the sport and flow from participation. Inherent risks are those which are known, apparent, natural, or reasonably foreseeable consequences of participation, including the construction of the field and any open and obvious conditions thereon. Assumption of risk is not an absolute defense, but a measure of the defendant's duty of care. The defendant's duty is to exercise care to make the conditions as safe as they appear to be. 

Schwartz v. Ramapo, NY Slip Op 04773 (2d Dep't August 25, 2021)

Here is the decision.

Tomorrow's issue: Summary judgment in a residential foreclosure action.

CPLR 1001(a).

Necessary parties are persons who might be inequitably affected by a judgment in the action and must be made plaintiffs or defendants.

Sacasa v. David Trust, NY Slip Op 04772 (2d Dep't August 25, 2021)

Here is the decision.

Tomorrow's issue: Doctrine of primary assumption of risk.

The enforcement of settlements.

Releases are governed by the principles of contract law, and a release that is complete, clear, and unambiguous on its face must be enforced according to the plain meaning of its terms.

Mesivta & Yeshiva Gedolah of Manhattan Beach v. VNB N.Y., LLC, NY Slip Op 04751 (2d Dep't August 25, 2021)

Here is the decision.

Tomorrow's issue:  CPLR 1001(a).

Extinguished agreements.

Where the parties clearly express their intention that a subsequent agreement supersedes a prior agreement, the remedy for breach is to sue on the subsequent agreement.

Kefalas v. Valiotis, NY Slip Op 04750 (2d Dep't August 25, 2021)

Here is the decision.

Tomorrow's issue: The enforcement of settlements.

Appellate practice.

The plaintiff moved, pursuant to CPLR 3126, to strike the defendant's answer and for leave to enter a default judgment based on willful noncompliance with court-ordered discovery. The defendant opposed the motion. In an order dated February 22, 2016, the Supreme Court granted the plaintiff's motion. In March 2018, the defendant moved for leave to reargue its opposition to the plaintiff's motion and, alternatively, pursuant to CPLR 5015(a)(1), to vacate the February 22, 2016 order. In the order appealed from, the court denied the defendant's motion. The Appellate Division affirmed that the Supreme Court properly denied the motion to vacate the February 22, 2016 order. Since the plaintiff's motion to strike the answer and for leave to enter a default judgment was opposed on the merits, the order granting that motion was appealable, and the defendant's motion to vacate it was procedurally improper.

Hinds v. 33rd St. Astoria, LLC, NY Slip Op 04749 (2d Dep't August 25, 2021)

Here is the decision.

Tomorrow's issue: Extinguished agreements.

Defective sidewalks.

Administrative Code of the City of New York § 7-210, which became effective September 14, 2003, shifts tort liability for injuries arising from a defective sidewalk from the City to the abutting property owner. Section 7-210[a] directs landowners to maintain their abutting sidewalks in a "reasonably safe condition." However, this provision does not apply to one-, two- or three-family residential property that is  owner-occupied, and used exclusively as a residence.

Blaise v. Guleria, NY Slip Op 04745 (2d Dep't August 25, 2021)

Here is the decision.

Tomorrow's issue: Appellate practice.

Vacating a default in answering.

A motion to vacate on the basis of excusable default, pursuant to CPLR 5015[a][1], and to compel the plaintiff to accept an untimely answer, pursuant to CPLR 3012[d], requires a reasonable excuse for the default and a potentially meritorious defense. Law office failure may be a reasonable excuse, but mere neglect is not. Here, it is not reasonable that defendant did not appoint an attorney until several months after the default.

Biskra, Inc. v. U.S. Bank N.A., NY Slip Op 04744 (2d Dep't August 25, 2021)

Here is the decision.

Tomorrow's issue: Defective sidewalks.