Appellate practice.

No appeal lies from an order entered upon the default of the appealing party.

Hilton Wiener, LLC v. Anderson, NY Slip Op 02195 (1st Dep't March 31, 2022)

Here is the decision.

Leave to amend a bill of particulars.

Ordinarily leave is to be freely given in the absence of prejudice or surprise, but once discovery has been completed and the case has been certified as ready for trial, an amendment will not be permitted except upon a showing of special and extraordinary circumstances. Where the application for leave is made long after the action has been certified for trial, judicial discretion in allowing an amendment should be discrete, circumspect, prudent, and cautious. Moreover, where there has been an inordinate delay in seeking leave to amend to include a new injury, a plaintiff must establish a reasonable excuse for the delay and show that the proposed amendment has merit.

Blumenthal v. 1979 Marcus Ave. Assoc., LLC, NY Slip Op 02107 (2d Dep't March 30, 2022)

Here is the decision.

Defective service of process.

Because the process server's affidavit was filed more than 120 days after the service date, service was not timely completed under CPLR 306-b. As to the individual defendants, the affidavit of service does not list the names of the persons purportedly served and does not state that an additional copy of the papers was mailed to each of them, rendering incomplete the purported service via a person of suitable age and discretion, pursuant to CPLR 308[2]. As to the corporate and limited liability company defendants, the affidavit of service does not state that the receptionist who accepted service at the management office is an officer, authorized agent, or member of the defendant entities so as to constitute proper service under CPLR 311 or 311-a. Because the plaintiff is a party, her service of papers is prohibited under CPLR 2103(a).

Commissiong v. Mark Greenberg Real Estate Co. LLC, NY Slip Op 02192 (1st Dep't March 31, 2022)

Here is the decision.

CPLR 3215(c).

In order to avoid dismissal of the complaint as abandoned, a plaintiff must initiate proceedings for the entry of a judgment within one year of the defendant's default.

Bank of N.Y. v. Ilonzeh, NY Slip Op 02106 (2d Dep't March 30, 2022)

Here is the decision.

Waiver of the right to a jury trial.

The fact that the plaintiff is seeking money damages does not, in and of itself, guarantee entitlement to a jury trial. When the complaint either joins legal and equitable causes of action arising out of the same alleged wrong or seeks both legal and equitable relief, the plaintiff waives the right to a jury trial. Where the note of issue characterizes the action as sounding in equity, the plaintiff waives his right to a jury trial.

Aroch v. 391 Broadway LLC, NY Slip Op 02187 (1st Dep't March 31, 2022)

Here is the decision.

CPLR 3215(f).

Where a foreclosure complaint is not verified, an application for a default judgment must include an affidavit setting forth proof of the facts constituting the claim, the default, and the amount due.

799 Crown St., LLC v. Leblanc, NY Slip Op 09105 (2d Dep't March 30, 2022)

Here is the decision.

Injunctive relief.

An injunction will not issue in an action where the plaintiff can be fully compensated by a monetary award, because, as a matter of law, there will be no irreparable harm in the absence of injunctive relief.

Medallion Fin. Corp. v. Tsitiridis, NY Slip Op 02090 (1st Dep't March 29, 2022)

Here is the decision.

Affidavits of service.

A process server's affidavit of service constitutes prima facie evidence of proper service and, therefore, gives rise to a presumption of proper service. A mere conclusory denial of service is insufficient to rebut the presumption. In order to warrant a hearing, the denial of service must be substantiated by specific, detailed facts that contradict the affidavit of service. Here, the affidavit of service reflects that the defendant was personally served at his home and sets forth in detail a physical description of the defendant. The defendant attempted to rebut the presumption of proper service with an affidavit averring that he left a friend's house approximately 30 minutes prior to the alleged time of service, and that no one was at the defendant's home. The defendant failed to address the detailed physical description of him set forth in the affidavit of service. The Appellate Division affirmed the trial court's determination that the "defendant's assertion that there was not proper service is conclusory, self-serving and not credible." Thus, the trial court providently exercised its discretion in denying that branch of the defendant's motion which was pursuant to CPLR 5015(a)(4) to vacate the judgment of foreclosure and sale.

Wilmington Trust, NA v. Daddi, NY Slip Op 02040 (2d Dep't March 23, 2022)

Here is the decision.

Preclusion.

The trial court abused its discretion in precluding defendants from using a deposition given by plaintiff in a prior personal injury action. Plaintiff could not have been surprised by defendants' use of her deposition testimony, as she was obviously aware that she had given the deposition, and she had received a copy of the transcript, pursuant to CPLR 3101[e]. Plaintiff's prior deposition testimony was directly relevant to the injuries for which she sought damages in this action. In addition, plaintiff's counsel concedes that plaintiff would not have been prejudiced by defendants' failure to produce the documents at issue if she had been represented by the same counsel in this action and in the prior personal injury action. However, plaintiff was represented in this action by her counsel in the prior personal injury action on the date that the court's scheduling order required defendant to turn over any statements made by plaintiff. Therefore, defendants should not be penalized for not having done so.

Miller v. Camelot Communications Group, Inc., NY Slip Op 02091 (1st Dep't March 29, 2022)

Here is the decision.

CPLR 3213.

Summary judgment in lieu of complaint is limited to actions that are based upon instruments for the payment of money only.

Bank of Am., N.A. v. Filho, NY Slip Op 02055 (1st Dep't March 24, 2022)

Here is the decision.

CPLR 317.

A defaulting defendant that was served with a summons other than by personal delivery may be permitted 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 meritorious defense. Service on a limited liability company through the Secretary of State does not constitute personal delivery. The mere denial of receipt of the summons and complaint is not sufficient to establish lack of actual notice of the action in time to defend.

Andrews v. Wartburg Receiver, LLC, NY Slip Op 01980 (2d Dep't March 23, 2022)

Here is the decision.