Default judgments.

In order to be awarded a default judgment, pursuant to CPLR 3215(f), the plaintiff must submit proof of service of the summons and the complaint, proof of the defendant's default, and proof of the alleged facts constituting the claim. In order to vacate the judgment, the defendant must give a reasonable excuse for its default and demonstrate a potentially meritorious defense to the claim.

195-197 Hewes, LLC v. Citimortgage, Inc., NY Slip Op 05065 (2d Dep't August 31, 2022)

Here is the decision.

Appellate practice.

Prior to answering the complaint, the defendant moved pursuant to CPLR 3211(a)(1) to dismiss the complaint. However, the defendant failed to appear in court on the return date, and the motion was marked off the calendar. Thereafter, the defendant moved to vacate its default in appearing on the return date and to restore its motion to the calendar. The Supreme Court granted the defendant's motion, and the plaintiff appeals. The Appellate Division affirms, but notes that, contrary to the defendant's contention, the Supreme Court's denial of the defendant's motion to dismiss the complaint, in a subsequent order, does not render this appeal academic. 

195-197 Hewes, LLC v. Citimortgage, Inc., NY Slip Op 05064 (2d Dep't August 31, 2022)

Here is the decision.

Contract interpretation.

The best evidence of what parties to a written agreement intend is what they say in their writing. The contract should be read as a harmonious and integrated whole, and each and every part should be given effect. Courts may not, through their interpretation of a contract, add or excise terms or distort the meaning of any particular words or phrases. Neither should an agreement be read to produce a result that is absurd, commercially unreasonable, or contrary to the reasonable expectations of the parties.

Here, the contractual provision that "[t]he Trustee agrees to . . . exercise the rights referred to above for the benefit of all present and future [certificateholders]" imposes an express duty on the trustees to enforce the repurchase protocol for the benefit of the investors. This express language is not discretionary, even though the provision does not use the language "shall" or "must."  The provision employs the language "agrees to," which is also language of commitment. 

IKB Intl., Inc., S.A. v. Wells Fargo Bank, N.A., NY Slip Op 05058 (1st Dep't August 30, 2022)

Here is the decision.

A parent's liability.

As a general rule, parents are not liable for the torts of their children. However, a parent may be held liable where the parent's alleged negligence consists entirely of the failure reasonably to restrain the child from vicious conduct endangering others, when the parent has knowledge of the child's propensity toward such conduct. 

Levine v. George, NY Slip Op 05032 (2d Dep't August 24, 2022)

Here is the decision.

Summary judgment in a negligence action.

There can be more than one proximate cause of an accident, and a defendant moving for summary judgment must show that it is free from fault. Generally, it is for the trier of fact to determine the issue of proximate cause. Here, the defendant failed to establish, prima facie, that the injured plaintiff's action was the sole proximate cause of the incident and that the defendant's employee was free from fault. The motion is denied, without considering the sufficiency of the plaintiffs' opposing papers.

Fiorentino v. Uncle Giuseppe's of Port Wash., Inc., NY Slip Op 05023 (2d Dep't August 24, 2022)

Here is the decision.

A motion to extend time to serve process.

Pursuant to CPLR 306-b, the court may extend the time for service "upon good cause shown or in the interest of justice." "'Good cause" and "interest of justice" are separate and independent statutory standards. In this action, the plaintiffs seek the extension in the interest of justice.

In deciding whether to grant a motion to extend the time for service in the interest of justice, the court must analyze the factual setting of the case and balance the competing interests presented by the parties. Unlike an extension request premised on good cause, a plaintiff need not establish reasonably diligent efforts at service as a threshold matter. However, the court may consider diligence, or the lack thereof, along with any other relevant factor in making its determination, including expiration of the Statute of Limitations, the meritorious nature of the cause of action, the length of delay in service, the promptness of the plaintiff's motion, and prejudice to the defendant

Here, the plaintiffs demonstrated that the action was timely commenced; that service was timely attempted and was believed by the plaintiffs to have been made within 120 days after the commencement of the action but was subsequently found to be defective; that the plaintiffs have a potentially meritorious cause of action; that the statute of limitations has expired; and that the extension of time does not prejudice the defendant.

The motion is granted.

Edwards v. Brooklyn Hosp. Ctr., NY Slip Op 05022 (2d Dep't August 24, 2022)

Here is the decision.

Summary judgment motions.

A party who contends that a summary judgment motion is premature, pursuant to CPLR 3212(f), must demonstrate that discovery might lead to relevant evidence or that the facts essential to justify opposition to the motion were exclusively within the knowledge and control of the movant. Here, the affirmation of the plaintiff's counsel failed to establish either basis. The mere hope or speculation that evidence sufficient to defeat a motion for summary judgment may be uncovered during the discovery process is an insufficient basis for denying the motion. 

Dalrymple v. Morocho, NY Slip Op 05020 (2d Dep't August 24, 2022)

Here is the decision.

Summary judgment motions.

Where the defendant, in its moving papers, fails to establish its prima facie entitlement to judgment as a matter of law dismissing the complaint, it is unnecessary to consider the sufficiency of the papers submitted in opposition,

Colletti v. City of New York, NY Slip Op 05019 (2d Dep't August 24, 2022)

Here is the decision.

A motion to discharge a mechanic's lien.

The defendant's failure to file proof of service of the notice of the lien within 35 days of filing it, as required by Lien Law § 11, automatically terminated the notice as a lien. The plaintiff's motion is granted.

Christopulos v. Christopulos, NY Slip Op 05018 (2d Dep't August 24, 202)

Here is the decision.

Appellate practice.

The appeal from so much of the order as directed a hearing is dismissed. There is no appeal as of right from an order which merely directs a hearing to aid in the disposition of a motion, as it does not decide the motion, and does not affect a substantial right, pursuant to CPLR 5701[a][2][v]. Leave to appeal has not been granted.

Christopulos v. Christopulos, NY Slip Op 05017 (2d Dep't August 24, 2022)

Here is the decision.

Claims for negligent hiring, retention, and supervision.

There is no statutory requirement that a plaintiff plead these causes of action with particularity.

Boyle v. North Salem Cent. Sch. Dist., NY Slip Op 05014 (2d Dep't August 24, 2022)

Here is the decision.