CPLR 3211(a)(5).

On a motion to dismiss a cause of action on the ground that it is barred by the statute of limitations, the defendant bears the initial burden of establishing, prima facie, that the time in which to sue has expired. The burden then shifts to the plaintiff to present admissible evidence establishing that the action was timely or to raise a question of fact as to whether the action was timely.

Bank of N.Y. Mellon v. Muriqi, NY Slip Op 02970 (2d Dep't May 4, 2022)

Here is the decision.

An unverified foreclosure complaint.

Where the complaint is not verified, upon any application for a default judgment, proof of the facts constituting the claim, the default, and the amount due must be set forth in an affidavit made by the party, pursuant to CPLR 3215(f).  Here, the plaintiff submitted an affidavit of merit executed by a vice president of its purported loan servicer. However, there is no evidence in the record demonstrating that this individual had the authority to act on behalf of the plaintiff. Plaintiff's motion for leave to enter a default judgment is denied. 

Aurora Loan Servs., LLC v. Jemal, NY Slip Op 02970 (2d Dep't May 4, 2022)

Here is the decision.

Claims for violation of Judiciary Law § 487.

In order to survive dismissal, the plaintiff must show egregious conduct or a chronic and extreme pattern of behavior on the part of the defendant attorneys proximately resulting in damages.

Pruss v. AmTrust N. Am. Inc., NY Slip Op 02884 (1st Dep't April 28, 2022)

Here is the decision.

A movant's reply papers.

While the moving defendants should have submitted the security agreement as part of their moving papers, their submission of it in reply was proper, since it responded to an argument that the plaintiff made in opposition to the moving defendants' cross motion for summary judgment.

140 W. 57th St. Bldg. LLC v. Berrie, NY Slip Op 02935 (1st Dep't May 3,2022)

Here is the decision.

An agent's liability.

The agent for a disclosed principal will not be personally bound unless there is clear and explicit evidence of the agent's intention to substitute his liability for the principal's liability or to superadd his liability to the principal's liability.

Pruss v. AmTrust N. Am. Inc., NY Slip Op 02884 (1st Dep't April 28, 2022)

Here is the decision.

The statute of frauds.

A contract for the sale of real property must be evidenced by a writing which identifies the parties; describes the subject matter; is signed by the party to be charged; and states the essential terms of the agreement. In a real estate transaction, the essential terms of a contract include the purchase price, the time and terms of payment, the required financing, the closing date, the quality of title to be conveyed, the risk of loss during the sale period, and adjustments for taxes and utilities. The writing must set forth the entire contract with reasonable certainty so that the substance thereof appears from the writing alone. If the contract is incomplete and it is necessary to resort to parol evidence to ascertain what was agreed to, the remedy of specific performance is not available.

Cohen v. Holder, NY Slip Op 02778 (2d Dep't April 27, 2022)

Here is the decision.

A cause of action for negligent hiring and retention.

The plaintiff must allege that the employer knew of its employee's harmful propensities, that it failed to take necessary action, and that this failure caused damage to others. The cause of action does not have to be pleaded with specificity.

Waterbury v. New York City Ballet, Inc., NY Slip Op 02890 (1st Dep't April 28, 2022)

Here is the decision.

Judiciary Law § 487.

The statute applies to an attorney acting in his capacity as an attorney, not to a party who is represented by counsel and who, incidentally, is an attorney. Under Judiciary Law § 487(1), an attorney who guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party is liable to the injured party for treble damages.

Altman v. DiPreta, NY Slip Op 02774 (2d Dep't April 27, 2022)

Here is the decision.

Objecting to discovery demands.

A party waives its right to object generally to the demands by failing to respond timely with the requisite particularity, pursuant to CPLR 3122[a][1].

Worldview Entertainment Holdings, Inc. v. Woodrow, NY Slip Op 02891 (1st Dep't April 28, 2022)

Here is the decision.

Confessions of judgment.

A person seeking to vacate a judgment entered upon the filing of an affidavit of confession of judgment must commence a separate plenary action.

Ace Funding Source, LLC v. St. Michael's Urgent Care of Hattiesburg, LLC, NY Slip Op 02773 (2d Dep't April 27, 2022)

Here is the decision.

Claims under the New York City Human Rights Law.

Claims under the New York City Human Rights Law must be analyzed separately and independently from claims under the federal and New York State Human Rights Laws, because of the uniquely broad and remedial purposes of the City's statute.

Russell v. New York Univ., NY Slip Op 02765 (1st Dep't April 26, 2022)

Here is the decision.