CPLR 3211(a), (e), (f).

Service of a notice of motion to dismiss a complaint extends the defendant's time to answer. In order to be timely, the motion must be made before service of the responsive pleading is required.

21st Mtge. Corp. v. Raghu, NY Slip Op 05016 (2d Dep't September 22, 2021)

Here is the decision.

A defendant's appearance.

After having been served with process, a defendant must respond in a proper and timely manner in order to avoid a default.  The defendant must appear within 20 days of service of a summons, or within 30 days of service where service was made by delivering the summons "to an official of the state authorized to receive service in his behalf," pursuant to CPLR 320[a]. The CPLR sets forth three ways that a defendant may appear: [1] by serving an answer, or [2] by serving a notice of appearance, or [3] by making a motion to extend the time to answer. The defendant's failure to respond to a summons and complaint in one of these three ways constitutes a failure to appear, pursuant to CPLR 3215.

21st Mtge. Corp. v. Raghu, NY Slip Op 05016 (2d Dep' September 22, 2021)

Here is the decision.

The doctrine of judicial estoppel.

A party whose interests have changed is precluded from taking a position which is contrary to the position it took in a prior proceeding.

Morin v. Morin, NY Slip Op 04973 (2d Dep't September 15, 2021)

Here is the decision.

Marital and separate property.

Marital property includes "all property acquired by either or both spouses during the marriage and before the execution of a separation agreement or the commencement of a matrimonial action, regardless of the form in which title is held," pursuant to Domestic Relations Law § 236[B][1][c]. Separate property includes "property acquired before marriage or property acquired by bequest, devise, or descent, or gift from a party other than the spouse," pursuant to § 236[B][1][d][1]. Property acquired during the marriage is presumed to be marital property, and the party seeking to overcome the presumption has the burden of proving that it is separate property.

Silvers v. Silvers, NY Slip Op 04987 (2d Dep't September 15, 2021)

Here is the decision.

The collateral estoppel doctrine.

Collateral estoppel, or issue preclusion, precludes a party from relitigating in a subsequent action or proceeding an issue that was clearly raised in a prior action or proceeding and decided against that party or those in privity. The doctrine gives conclusive effect to prior determinations when two conditions are met: (1) there must be an identity of issue which has necessarily been decided in the prior action and is decisive of the present action, and (2) there must have been a full and fair opportunity to contest the decision now said to be controlling. The determination of whether a party had a full and fair opportunity to litigate in the prior proceeding requires a practical inquiry into the realities of the prior litigation. The burden of proof is on the proponent to establish the duplicative identity of the party against whom the doctrine is sought to be applied and the issues of the two proceedings, but the party seeking to avoid application of the doctrine has the ultimate burden of establishing the absence of a full and fair opportunity to have litigated the earlier matter.

Lennon v. 56th & Park (NY) Owner, LLC, NY Slip Op 04972 (2d Dep't September 15, 2021)

Here is the decision.

Calendar calls.

Pursuant to 22 NYCRR 202.27, the court may dismiss a complaint when the plaintiff fails to appear or is not ready to proceed at the call of the trial calendar. To be relieved of the default, the plaintiff must demonstrate both a reasonable excuse for the default and a potentially meritorious cause of action, pursuant to CPLR 5015[a][1].

Sutton v. Metropolitan Tr. Auth. Bus Co., NY Slip Op 04988 (2d Dep't September 15, 2021)

Here is the decision.

The governmental function immunity defense.

Government action, if discretionary, may not be a basis for liability, while ministerial actions may be, but only if they violate a special duty owed to the plaintiff, apart from any duty to the public in general.

Santaiti v. Town of Ramapo, NY Slip Op 04986 (2d Dep't September 15, 2021)

Here is the decision.

The issue of standing in a mortgage foreclosure action.

Where the defendant raises the issue, the plaintiff must prove its standing in order to be entitled to relief. A plaintiff has standing where it is the holder or assignee of the underlying note at the time the action is commenced. A holder is the person in possession of a negotiable instrument that is payable either to the bearer or to an identified person that is the person in possession.

Ridgewood Sav. Bank v. Glickman, NY Slip Op 04985 (2d Dep't September 15, 2021)

Here is the decision.

Appellate practice.

Where the Supreme Court reviews the merits of a party's contentions on the branch of its motion which is for leave to reargue, the court, in effect, granted reargument. Therefore, the portion of an order which is made, in effect, upon reargument is appealable.

Nationstar Mtge., LLC v. Jong Sim, NY Slip Op 04979 (2d Dep't September 15, 2021)

Here is the decision.

Mandamus.

The extraordinary remedy of mandamus will lie only to compel the performance of a ministerial act, and, then, only where there is a clear legal right to the relief sought.

Matter of Weaver v. Cohen, NY Slip Op 04977 (2d Dep't September 15, 2021)

Here is the decision.

A cause of action for breach of fiduciary duty.

The elements are (1) the existence of a fiduciary relationship; (2) the defendant's misconduct; and (3) damages directly caused by the defendant's misconduct. The proponent must, at a minimum, establish that the offending parties' actions were a substantial factor in causing an identifiable loss.

Ali v. Chaudry, NY Slip Op 04900 (2d Dep't September 1, 2021)

Here is the decision.