Defendant's failure to submit timely papers in opposition to plaintiff's motion for summary judgment, or obtain permission to submit late papers, is a default on the motion. The remedy is not an appeal, but a motion to vacate the default.
U.S. Bank N.A. v. Tiburcio, NY Slip Op 06662 (1st Dep't November 30, 2021)
Where evidentiary material is submitted and considered on a motion to dismiss for failure to state a claim, and the motion is not converted into one for summary judgment, the question is whether the plaintiff has a cause of action, not whether the plaintiff has stated one. The motion will be denied absent a showing that a material fact as claimed by the plaintiff is not a fact, and unless the purported fact is undisputed.
Halo v. Schmidt, NY Slip Op 06609 (2d Dep't November 24, 2021)
A defendant who has been served with a summons and complaint other than by personal delivery may defend the action upon the court's finding that the defendant did not personally receive notice of the summons and complaint in time to defend and has a potentially meritorious defense. The mere denial of receipt of the summons and complaint is insufficient to establish lack of actual notice.
Citimortgage v. Stuckova, NY Slip Op 06605 (2d Dep't November 24, 2021)
The motion court providently exercised its discretion in denying plaintiff's motion. The record includes a so-ordered stipulation signed by counsel following an allocution by plaintiff. In support of the motion, plaintiff only offers self-serving affidavits that he was debilitated when he entered into the settlement. Plaintiff's motion papers include a surgical report showing that he was debilitated when he received emergency medical treatment, five weeks after entering into the settlement. The report is neither admissible nor probative, as it is unaffirmed and uncertified, and it offers no opinion as to whether plaintiff was debilitated at the time of the settlement. There is nothing in the allocution transcript to indicate that plaintiff did not understand the proceedings.
Sultan v. Connery, NY Slip Op 06567 (1st Dep't November 23, 2021)
The action, as against a special employer, is barred by Workers' Compensation Law §§ 11 and 29. There is a rebuttable presumption against special employment. In order to rebut the presumption, the defendant must show conclusively that it had assumed exclusive control over the manner, details, and ultimate result of the employee's work.
Winkler v. Halmar Intl., LLC, NY Slip Op 06569 (1st Dep't November 23, 2021)
Where plaintiff commenced the action seeking equitable relief, he is not entitled to interest as if he had asserted a breach of contract claim.
Vogel v. Vogel, NY Slip Op 06568 (1st Dep't November 23, 2021)
The essential elements are: (1) the existence of a valid contract between plaintiff and a third party; (2) the defendant's knowledge of that contract; (3) the defendant's intentional procuring of the breach; and (4) damages.
DeLibero v. Duloc, NY Slip Op 06571 (1st Dep't November 23, 2021)
Contractual provisions do not survive closing and transfer of the deed unless the agreement expressly states otherwise.
19 Stanton St. LLC v. 19 Stanton Realty LLC, NY Slip Op 06533 (1st Dep't November 23, 2021)
The language of the statute is not discretionary, but mandatory, as it states that courts "shall" dismiss as abandoned claims for which a default judgment is not sought within the requisite one-year period.
Deutsche Bank Natl. Trust Co. v. Watson, NY Slip Op 06340 (2d Dep't November 17, 2021)
A movant for a default judgment must submit proof of service of the summons and complaint, proof of the facts constituting the claim, and proof of the defendant's failure to answer or appear. In order to defeat the motion, the defendant must show either that there was no default, or that it has a reasonable excuse for its delay and a potentially meritorious defense.
Deutsche Bank Natl. Trust Co. v. Pezzola, NY Slip Op 06339 (2d Dep't November 17, 2021)
