A cause of action for breach of contract.

The essential elements of a breach of contract cause of action are the existence of a contract, the plaintiff's performance under the contract, the defendant's breach of that contract, and resulting damages. Here, the plaintiff was not a party to, or intended beneficiary of, the escrow agreement, and, therefore, cannot recover for its alleged breach.

Blank v. Petrosyants, NY Slip Op 01283 (2d Dep't March 2, 2022)

Here is the decision.

CPLR 7502[a][i].

Venue is proper in the county where at least one of the parties is doing business.

Matter of Finkelstein v. Finkelstein, NY Slip Op 01268 (1st Dep't March 1, 2022)

Here is the decision.

CPLR 3213.

The action for summary judgment in lieu of complaint was appropriately commenced because the instruments sued upon were for the payment of money only and required no reference to external documents to determine their clear and material terms.

YH Lex Estates LLC v. H F Z Capital Group LLC, NY Slip Op 01282 (1st Dep't March 1, 2022)

Here is the decision.

CPLR 5015[a][1].

A party seeking to vacate a default judgment must demonstrate both a reasonable excuse for the default and a meritorious defense. Here, the defendant failed to proffer a reasonable excuse for the default in responding to the plaintiff's motion for summary judgment. Although, on the motion's return date, the defendant's counsel was moving his office to a new location, the defendant gives no reason why counsel could not have responded to the motion prior to the move. Counsel took no action for three weeks after receiving notice of the motion. The Appellate Division notes that this default was not an isolated incident on the defendant's part.

Aetna Life Ins. Co. v. UTA of KJ Inc., NY Slip Op 01266 (1st Dep't March 1, 2022)

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Appellate practice.

The Appellate Division declines to consider the defendant's argument that is improperly raised for the first time on appeal.

10E53 Owner LLC v. Bruderman Asset Mgt., NY Slip Op 01228 (1st Dep't February 24, 222)

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CPLR 304.

Where a case is marked off the calendar and not restored within one year, there is a rebuttable presumption that it is abandoned. If the presumption of abandonment is not rebutted, the case will be dismissed.

Wells Fargo Bank, N.A. v. Yoo Mi Min, NY Slip Op 01265 (1st Dep't February 24, 2022)

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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)

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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)

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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)

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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.