Service of process on a corporation.

Service on a corporation by delivering process to the Secretary of State is not personal delivery to the corporation or to an agent designated under CPLR 318.

Barnett v. Diamond Fin. Co., Inc., NY Slip Op 00648 (2d Dep't February 2, 2022)

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CPLR 317.

A defendant who has been served with a summons other than by personal delivery may be allowed to defend the action upon the court's finding that the defendant did not personally receive notice of the summons in time to defend and has a potentially meritorious defense. However, the mere denial of receipt of service of the summons and complaint does not demonstrate that the defendant did not receive notice of the action in time to defend.

Barnett v. Diamond Fin. Co., Inc., NY Slip Op 00648 (2d Dep't February 2, 2022)

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CPLR 5015(a)(2).

In order to succeed on a motion to vacate an order or judgment on the ground of newly discovered evidence, the movant must establish that the evidence could not have been discovered earlier through the exercise of due diligence, and that the newly discovered evidence would probably have produced a different result.

Abakporo v. Abakporo, NY Slip Op 00647 (2d Dep't February 2, 2022)

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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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