CPLR 3012(d).

The statute authorizes an extension of time to appear and plead upon such terms as may be just, and upon a showing of reasonable excuse for the delay or default. Here, the delay in filing an answer was occasioned by law office failure, which constitutes good cause. Defendant showed an intent to defend when it sought to extend its time to answer by stipulation. Plaintiff has not shown that he would be prejudiced, and New York has a strong policy in favor of litigating matters on the merits. 

Velasquez v. New York City Tr. Auth./MTA, NY Slip Op 05803 (1st Dep't October 21, 2021)

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CPLR 2001.

At any stage in an action, the court may permit a mistake, omission, defect, or irregularity to be corrected upon such terms as may be just, or, if a party's substantial right is not prejudiced, the mistake, omission, defect, or irregularity shall be disregarded. 

Wilmington Sav. Fund Socy., FSB v. Matamoro, NY Slip Op 05741 (2d Dep't October 20, 2021)

Here is the decision.

Contract interpretation.

Plaintiff's motion to dismiss so much of the counterclaim as sought damages in excess of $2 million and third-party defendants' motion to dismiss the third-party complaint were granted. The contractual provision that, in the event of plaintiff's default, defendants are entitled to retain the deposit as liquidated damages unambiguously refers to the deposit already made and held in escrow, as a party cannot retain something that it has not already acquired. As to the third-party complaint against plaintiff's members in their individual capacities, the pleadings fail to allege facts sufficient to demonstrate the inequity, fraud, or malfeasance necessary to sustain a claim to pierce the corporate veil.  The third-party complaint also fails to plead any facts to substantiate the conclusory allegations of a scheme to undercapitalize plaintiff. To the extent that the third-party complaint alleges that plaintiff is undercapitalized and might not be able to pay a judgment, third-party plaintiffs could not be damaged by such a scheme, as the contractual remedy is to retain the deposit already held in escrow. 

138 Bruckner Owner LLC v. Anjost Corp., NY Slip Op 05768 (1st Dep't October 21, 2021)

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CPLR 3102(c).

The petition is denied to the extent that it seeks a pre-action order to preserve and disclose video camera recordings taken on the bus involved in petitioner's trip-and-fall. The petition demonstrates that petitioner knows the date of the accident, the place of the accident, the individuals or entities involved in the accident, and the alleged cause of the accident. Therefore, she is in possession of facts sufficient to frame her complaint, and the only purpose of reviewing the video camera recordings would be to explore whether there are additional causes of action or alternative theories of liability. This is not a proper purpose for invoking the statute.

Matter of White v. New York City Tr. Auth., NY Slip Op 05805 (1st Dep't October 21, 2021)

Here is the decision.

CPLR 3211[a][3] and 3018[b].

Standing is in the nature of an affirmative defense to be pleaded and proved. There is no requirement that a plaintiff allege standing in the complaint.

Wilmington Sav. Fund Socy., FSB v. Matamoro, NY Slip Op 05741 (2d Dep't October 20, 2021)

Here is the decision.

CPLR 603.

The order which granted plaintiffs' motion to sever their declaratory judgment claim from defendant's counterclaims was affirmed.  Most of the plaintiffs in this action are not counterclaim defendants, and they would be prejudiced if severance were denied.

Spicer v. Garda World Consulting (UK) Ltd., NY Slip Op 05681 (1st Dep't October 19, 2021)

Here is the decision.

Establishing standing in a foreclosure action.

The plaintiff establishes standing by showing that it had either a written assignment or physical possession of the underlying note and mortgage prior to commencement. A conclusory statement in an affidavit will not suffice when standing is raised as a defense. Here, the affiant's bare claim that plaintiff "has been in continuous possession of the Note and Mortgage prior to referring the Loan to be foreclosed" is not sufficient to establish standing.

U.S. Bank Trust, N.A. v. Francis, NY Slip Op 05655 (1st Dep't October 14, 2021)

Here is the decision.

Res ipsa loquitur in a defective sidewalk action.

The Appellate Division affirmed the order which denied defendant's motion for summary judgment dismissing the complaint. Plaintiff's failure to specifically plead res ipsa loquitur does not bar her from invoking the doctrine where, as here, the facts warrant its application. A sidewalk collapse is not the type of incident which ordinarily occurs in the absence of negligence, and defendant failed to show that it did not have exclusive control over the maintenance and repair of the sidewalk slab which collapsed.  In addition, defendant did not demonstrate that plaintiff's own negligence caused the collapse. 

Williams v. Forward Realty Corp., NY Slip Op 05658 (1st Dep't October 14, 2021)

Here is the decision.

CPLR 3215(c).

Pursuant to the statute, "If 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."  In order to establish sufficient cause, the party opposing dismissal must demonstrate that it had a reasonable excuse for the delay in taking proceedings for entry of a default judgment and that it has a potentially meritorious action. The determination of whether an excuse is reasonable is committed to the sound discretion of the motion court, and reversal is warranted if that discretion is improvidently exercised.

Deutsch Bank Nattl. Trust Co. v. Bakarey, NY Slip Op 05543 (2d Dep't October 13, 2021)

Here is the decision.

Appellate practice.

In an action to foreclose a mortgage, the plaintiff appeals from the order which granted the defendant's motion, pursuant to CPLR 3211(a)(5), to dismiss the complaint as time-barred. The Supreme Court determined that the action was untimely, as the entire mortgage debt had been accelerated more than six years before the action was commenced. The court rejected the plaintiff's contention that certain monthly invoices sent to the defendant's lawyer had been effective to de-accelerate the outstanding mortgage debt. The court set forth two alternative grounds for its determination: (1) the invoices were not sent to the proper address as specified in the mortgage, and (2) the invoices failed to constitute clear and unequivocal notice of the plaintiff's election to de-accelerate the outstanding mortgage debt.

On appeal, the plaintiff does not contend that the invoices were sent to the proper address in accordance with the terms of the mortgage. The only argument made by the plaintiff that relates to the first alternative ground set forth in the order appealed from is raised for the first time on appeal and is not properly before the Appellate Division. The Appellate Division need not address the plaintiff's remaining contentions, as they all relate to the second alternative ground set forth in the order appealed from.

Deutsche Bank Natl. Trust Co. v. 9th St, LLC, NY Slip Op 05542 (2d Dep't October 13, 2021)

Here is the decision.

CPLR 5015(a)(3).

The court may relieve a party from a judgment or order upon the ground of fraud, misrepresentation, or other misconduct of an adverse party. 

Citimortgage, Inc. v. Zagoory, NY Slip Op 05541(2d Dep't October 13, 2021)

Here is the decision.