Summary judgment in a legal malpractice action.

In order to succeed on the motion, the defendant must present evidence, in admissible form, establishing that at least one of the essential elements of the cause of action cannot be satisfied:  (1) the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession, and (2) the attorney's breach of this duty proximately caused the plaintiff to sustain actual and ascertainable damages. The causation element requires a showing that, but for the defendant's negligence, the injured party would have prevailed in the underlying action, or would not have incurred any damages. The defendant must affirmatively demonstrate the absence of one of the elements, rather than merely point out gaps in the plaintiff's proof.

Schmidt v. Burner, NY Slip Op 01191 (2d Dep't February 23, 2022)

Here is the decision.

Appellate practice.

A sua sponte order is not appealable as of right.

Matter of Ramirez v. Selective Advisors Group, LLC, NY Slip Op 01134 (1st Dep't February 22, 2022)

Here is the decision.

Appellate practice.

The Appellate Division may take judicial notice of papers that are e-filed via NYSCEF. 

1591 Second Ave. LLC v. Metropolitan Transp. Auth., NY Slip Op 01113 (1st Dep't February 22, 2022)

Here is the decision.

Motion practice.

The moton court is not required to consider a reply submission to remedy a deficiency in the moving papers.

Iacovacci v. Brevet Holdings, LLC, NY Slip Op 01099 (1st Dep't February 17, 2022)

Here is the decision.

Demonstrating standing in a mortgage foreclosure action.

The plaintiff has standing where it is the holder or assignee of the underlying note at the time the action is commenced. Either a written assignment or the physical delivery of the note prior to commencement of the action is sufficient to transfer the obligation, and the mortgage passes with the debt as an inseparable incident. The assignment of a note and mortgage need not be in writing, and can be effectuated by physical delivery. Here, the plaintiff demonstrated that it had standing by attaching to the complaint a copy of the note, with an allonge endorsing the note in blank.

Bayview Loan Servicing, LLC v. Caracappa, NY Slip Op 00997 (2d Dep't February 16, 2022)

Here is the decision.

CPLR 3215(c).

"If the plaintiff fails to take proceedings for the entry of judgment within one year after [a] 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 within the meaning of the statute, 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.

Bank of N.Y. Mellon Trust Co. v. Kyung Soon Lee, NY Slip Op 00996 (2d Dep't February 16, 2022)

Here is the decision.

Service of process.

Because the defendant failed to notify the Department of Motor Vehicles of his change of address, as required by Vehicle and Traffic Law § 505(5), he is estopped from challenging service at his former address.

Perlbinder Holdings LLC v. Patel, NY Slip Op 01106 (1st Dep't February 17, 2022)

Here is the decision.

The doctrine of governmental function immunity.

The State's providing security measures at the Bronx Psychiatric Campus (BPC) involves a governmental function and the discretionary allocation of resources. In the absence of facts establishing a special relationship between the State and the claimant and the performance of ministerial acts by the State, neither of which is present here, the BPC is immune from liability for the alleged sexual assault of claimant at the BPC.

T.R. v. State of New York, NY Slip Op 01110 (1st Dep't February 17, 2022)

Here is the decision.

Court holiday.

An Article 75 petition to vacate or modify a mediator's award.

The parties unequivocally agreed, in writing, to submit their contract dispute to the mediator, and that they would be "bound by" the mediator's decision. They further agreed to "waive any right to review or appeal from such decision." The plain language of the parties' agreements precludes judicial review.

Matter of Trebuchet Capital Mgt., LP v. Prelude Opportunity Fund, LP, NY Slip Op 00991 (1st Dep't February 15, 2022)

Here is the decision.

The doctrine of judicial estoppel.

A party is judicially estopped from arguing a particular position only if it is truly inconsistent with the party's prior position.

White Rock Ins. Co. PCC Ltd. v. Lloyd's Syndicate 4242, NY Slip Op 00993 (1st Dep't February 15, 2022)

Here is the decision.