A nonjusticiable controversy under the First Amendment.

The Appellate Division affirmed dismissal of this action.  Although the plaintiff contends that the $230,000 payment she made to defendants five years before the action was commenced should not be considered a tithe, the record shows that the payment was, in fact, a tithe, and that plaintiff made it voluntarily. The $230,000 check made out to the defendant stated "tithe" in the memo section. The issues of the plaintiff's motivation for tithing and the proper amount of the tithe necessarily implicate the interpretation of religious doctrine ,and cannot be resolved through the application of neutral principles of law.

Wilson v. Christ Alive Christian Ctr., NY Slip Op 05315 (1st Dep't October 5, 2021)

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A cause of action for conversion.

The plaintiff must show (1) legal ownership or an immediate right of possession to tangible personal property or specific money, and (2) that the defendant exercised an unauthorized dominion over the thing in question to the exclusion of the plaintiff's right. There is conversion when funds designated for a particular purpose are used for an unauthorized purpose.

Alpha/Omega Concrete Corp. v. Ovation Risk Planners, Inc., NY Slip Op 05113 (2d Dep't September 29, 2021)

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Appellate practice.

The appeal from the order which granted plaintiff's motion to proceed pseudonymously was dismissed.  The death of a party divests a court of jurisdiction to conduct proceedings in an action until a proper substitution has been made pursuant to CPLR 1015(a). While the parties need not renew their motions, proper substitution of a defendant must be made before the motion is decided. Since the order was issued after a defendant's death and without proper substitution, the Appellate Division does not have jurisdiction to hear and determine the appeal.

Thomas v. Rubin, NY Slip Op 05112 (1st Dep't September 28, 2021) 

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CPLR 3215(c).

As set forth in the statute, "[i]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, without costs, upon its own initiative or on motion, unless sufficient cause is shown why the complaint should not be dismissed. A motion by the defendant under this subdivision does not constitute an appearance in the action." The purpose of CPLR 3215(c) is to prevent parties who have asserted claims from unreasonably delaying the termination of actions, and to avoid inquests on stale claims.

Federal Natl. Mtge.Assn. v. Kahana, NY Slip Op 05024 (2d Dep't September 22, 2021)

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CPLR 2214(b).

The defendant's opposition to the plaintiffs summary judgment motion was due to be served no later than seven days prior to the return date, but the defendant served his opposition six days after the return date. The Appellate Division determined that the Supreme Court providently exercised its discretion in declining to consider the defendant's opposition, as the defendant failed to provide a valid excuse for the late service.

Deutsche Bank Natl. Trust Co. v. McEnery, NY Slip Op 05023 (2d Dep't September 22, 2021)

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Service of process.

The plaintiff had the burden of proving that jurisdiction was obtained over the defendant by proper service of process. A process server's affidavit of service constitutes prima facie proof of service.

Chase Home Fin., LLC v. Kahana, NY Slip Op 05022 (2d Dep't September 22, 2021)

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Summary judgment in a medical malpractice action.

A physician moving for summary judgment dismissing the complaint must establish, prima facie, either that there was no departure from accepted standards of medical care, or that any departure was not a proximate cause of the plaintiff's injuries. On this showing, the burden shifts to the plaintiff to submit evidentiary facts or materials to rebut the defendant's prima facie showing, but only as to those elements on which the defendant met the prima facie burden.

G. M. C. v. O'Sullivan, NY Slip Op 05020 (2d Dep't September 22 2021)

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Contractual indemnification in a personal injury action.

The party seeking contractual indemnification must prove itself free from negligence, because to the extent its negligence contributed to the accident, it cannot be indemnified therefor.

Barcliff v. Schindler El. Corp., NY Slip Op 05019 (2d Dep't September 22, 2021)

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CPLR 3126(3).

A court may impose discovery sanctions, including the striking of a pleading, where a party "refuses to obey an order for disclosure or willfully fails to disclose information which the court finds ought to have been disclosed."  The nature and degree of a statutory penalty for discovery violations is addressed to the court's discretion. While public policy strongly favors the resolution of actions on the merits, the court may resort to the drastic remedies of striking a pleading or precluding evidence upon a clear showing that a party's failure to comply with a disclosure order was the result of willful and contumacious conduct. The court can infer that a party is acting willfully and contumaciously through the party's repeated failure to adequately respond to discovery demands or to comply with discovery orders.

Ambroise v. Palmana Realty Corp., NY Slip Op 05018 (2d Dep't September 22, 2021)

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Appellate practice.

Where the Appellate Division affirms the granting of plaintiff's motion for summary judgment in a declaratory judgment action, the matter must be remitted to the Supreme Court for the entry of a judgment as to the declaration.

23A Vernon, LLC v. Oneal, NY Slip Op 05017 (2d Dep't September 22, 2021)

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CPLR 3215(a).

A party may make an application for a default judgment when the defendant has failed to appear, plead, or proceed to trial of an action called for trial, or when the court orders a dismissal for any other neglect to proceed. The statute sets forth two separate procedures for securing a default judgment: (1) entry by the clerk, and (2) entry by a judge. If the plaintiff's claim is for a sum certain or for a sum which can by computation be made certain, application may be made to the clerk within one year after the default. The term "sum certain" in this context contemplates a situation in which, once liability has been established, there can be no dispute as to the amount due, as in actions on money judgments and negotiable instruments. Where the case is not one in which the clerk can enter judgment, the plaintiff shall apply to the court for judgment. The applicant, by affidavit, must file proof of service of the summons and complaint, the facts constituting the claim, the default, and the amount due.

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

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