Priority of security interests.

Under UCC § 9-330(d), "a purchaser of an instrument has priority over a security interest in the instrument perfected by a method other than possession if the purchaser gives value and takes possession of the instrument in good faith and without knowledge that the purchase violates the rights of the secured party." In the absence of such a purchase, the timing of the filing or perfection of the parties' security interests determines the rank of their priority, pursuant to UCC § 9-322[a][1].

NRT N.Y., LLC v. Middlegate Funding LLC, NY Slip Op 00646 (1st Dep't February 1, 2022)

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CPLR 3212[f].

A summary judgment motion will be denied as premature where there is an evidentiary basis to suggest that additional discovery may lead to relevant evidence, or that facts essential to opposing the motion are exclusively within the knowledge and control of the movant.

Brooklyn Cancer Care Med., P.C. v. Brooklyn Hosp. Ctr., NY Slip Op 00395 (2d Dep't January 26, 2022)

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An untimely motion to change venue.

It is a proper exercise of discretion to grant the motion when the defendant's delay can be attributed to plaintiff's willful omissions or misleading statements and the defendant moves promptly after ascertaining the truth about plaintiff's residence.

Montgomery v. ELRAC, Enter. Holdings, Inc., NY Slip Op 00508 (1st Dep't January 27, 2022)

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CPLR 3215[f].

On a motion for leave to enter a default judgment against a defendant based on the failure to answer or appear, the plaintiff must submit proof of service of the summons and complaint, proof of the facts constituting the cause of action, and proof of the defendant's default. In order to defeat a facially sufficient CPLR 3215 motion, a defendant must show either that there was no default, or that he had a reasonable excuse for his delay and a potentially meritorious defense.

Bank of N.Y. Mellon v. Lee, NY Slip Op 00392 (2d Dep't January 26, 2022)

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Article 78 proceedings.

In an article 78 proceeding, the court may not weigh the evidence or reject the agency's choice where the evidence is conflicting and there is room for choice.

Matter of Reynoso v. New York City Off. of Admin. Trials & Hearings, NY Slip Op 00521 (1st Dep't January 27, 2022)

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Appellate practice.

In reviewing a determination made after a nonjury trial, the power of the Appellate Division is as broad as that of the trial court, and it may render the judgment it finds warranted by the facts, bearing in mind that, in a close case, the trial judge had the advantage of seeing the witnesses.

Baden v. Bregy, NY Slip Op 00391 (2d Dep't January 26, 2022)

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Pre-joinder summary judgment.

The rule barring a pre-joinder motion for summary judgment is strictly applied, and so a motion for summary judgment brought before a defendant has answered the complaint is premature and must be denied.

SHG Resources, LLC v. SYTR Real Estate Holdings LLC, NY Slip Op 00525 (1st Dep't January 27, 2022)

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CPLR 2001.

The motion court properly exercised its discretion in disregarding the fact that the notice of cross motion did not state the grounds for relief, since the grounds were made clear in the supporting affirmation.

Ricciardi v. State of New York, NY Slip Op 00386 (1st Dep't January 25, 2022)

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Medical malpractice.

In order to establish liability, the plaintiff must prove that the physician deviated or departed from accepted community standards of practice, and that the departure was a proximate cause of the plaintiff's injuries. A defendant moving for summary judgment must make a prima facie showing either that there was no departure from the accepted standard of care or that any departure was not a proximate cause of the plaintiff's injuries. Where the defendant meets its prima facie burden as to both elements, the burden shifts to the plaintiff to rebut the defendant's showing by raising a triable issue of fact as to both the departure element and the causation element. While conflicting expert opinions may raise credibility issues which can only be resolved by a jury, expert opinions that are conclusory, speculative, or unsupported by the record are insufficient to raise triable issues of fact. Expert opinions in opposition must address the specific assertions made by the movant's experts, setting forth an explanation of the reasoning and relying on specifically cited evidence in the record. An expert opinion that is contradicted by the record cannot defeat summary judgment.

Audette v. Toussaint-Milord, NY Slip Op 00298 (2d Dep't January 19, 2022)

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CPLR 5015[a][1].

During divorce proceedings, which commenced in 2014, defendant-husband relocated to a former marital property in North Carolina. In April 2017, after the court granted plaintiff-wife a divorce, defendant chose to represent himself for the remainder of the trial on financial issues which was scheduled to begin on August 8, 2017. Supreme Court denied defendant's repeated requests for an adjournment. On July 24, 2017, the court directed defendant to submit an affidavit from his treating physician to support the claim that his medical condition prevented him from proceeding to trial. On August 4, 2017, defendant submitted a note from a physician's assistant at a North Carolina healthcare center stating that he had preexisting medical conditions, including seizures, and that he had been advised to avoid stressors that could trigger seizures, such as travel, pending testing and further evaluation. When defendant failed to appear for trial, Supreme Court determined him to be in default and held an inquest. After the inquest, a judgment of divorce was entered, memorializing the court's decision. Defendant moved to vacate the judgment.

While the motion court did not dispute defendant's medical issues, it observed that defendant was able to participate in the proceedings from June 2016 to August 2017 and that there were no changes in his condition that would render him unable to attend trial as scheduled. Although defendant's new North Carolina care team recommended that he avoid stressors, defendant was not affirmatively told not to travel. Moreover, the care team only began treating defendant after he had repeatedly sought adjournments. There is no basis to disturb the determination that defendant was using his preexisting medical condition to prolong the proceedings. Denial of defendant's motion is affirmed.

Wilson v. Wilson, NY Slip Op 00389 (1st Dep't January 25, 2022)

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CPLR 4404(a).

A motion to set aside a jury verdict and for judgment as a matter of law will be granted only if, based on the evidence presented at trial, there is no valid line of reasoning and permissible inferences which could possibly lead a rational jury to the conclusion it reached.

Anarumo v. Herzog, NY Slip Op 00297 (2d Dep't January 19, 2022)

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