Equitable estoppel.

The doctrine of equitable estoppel is not applicable where the defendants did not act in a wrongful or negligent manner or engage in any affirmative misconduct upon which plaintiff reasonably relied.

Cruz v. Ajim, NY Slip Op 06062 (1st Dep't October 27, 2022)

Here is the decision.

An action to foreclose a mortgage.

The action is governed by a six-year statute of limitations, pursuant to CPLR 213[4]. Even if the mortgage is payable in installments, once the debt is accelerated, the entire amount is due and the statute of limitations begins to run on the entire debt. The commencement of the action accelerates the debt. The lender may revoke its election to accelerate the mortgage, but it must do so by an affirmative act of revocation occurring during the six-year statute of limitations period subsequent to the initiation of the foreclosure action.

Bank of N.Y. Mellon v. Conforti, NY Slip Op 05973 (2d Dep't October 26, 2022)

Here is the decision.

A purported gift of shares in a cooperative apartment.

Plaintiff argues that his deceased brother, who was the sole proprietary lessee of a cooperative apartment  made an inter vivos gift of the apartment to plaintiff.  However, there was no valid inter vivos gift, as the statute of frauds applies to the sale of stock in a housing cooperative and there was no writing to effect the transfer.  Plaintiff's claim further fails as a matter of law, as the decedent failed to follow the transfer provisions of the proprietary lease, which requires a written assignment of shares signed by the shareholder and the approval of defendant's board of directors to make a valid transfer of the shares to the apartment within the decedent's lifetime.

Rivera v. 98-100 Ave. C Hous. Dev. Fund Corp., NY Slip Op 06074 (1st Dep't October 27, 2022)

Here is the decision.

Default judgment in a foreclosure action.

On a motion for leave to enter a default judgment, pursuant to CPLR 3215, for the defendant's failure to answer or appear, the plaintiff must submit proof of service of the summons and complaint, proof of the facts constituting the cause of action, and proof of the defendant's default.  In order to defeat the motion, the defendant must show either that there was no default, or that there is a reasonable excuse for the delay and a potentially meritorious defense. The plaintiff is not required to demonstrate that it had standing to commence the action in order to establish its prima facie entitlement to a default judgment, as standing is not an essential element of a cause of action to foreclose a mortgage.

Bank of N.Y. Mellon Trust Co., N.A. v. Barone, NY Slip Op 05972 (2d Dep't October 26, 2022)

Here is the decision.

The limitations period on an Article 78 petition.

The petition must be filed within four months of the agency's decision that is being questioned, pursuant to CPLR 217[1]. The limitations period is not extended by the petitioner's eventual pursuit of administrative remedies.

Matter of Campbell-Lui v. New York City Dept. of Educ., NY Slip Op 05946 (1st Dep't October 25, 2022)

Here is the decision.

A defamation claim.

Plaintiffs, an orthodontist and his professional corporation, allege that defendants - a former minor patient and the patient's parents - defamed them in an unfavorable review posted online.  The review contains elements of both fact and opinion, but it is not actionable, because it is beyond the court's province to sift throught the review to isolate and identify factual assertions. Instead, the court may only consider the overall context in which the communication was made. Here, it was an anonymous online review of plaintiff's services. A reasonable reader would understand the review to be pure opinion based on the context in which it was posted and its hyperbolic tone. In addition,  New York courts have held that readers give less credence to allegedly defamatory remarks published online than to similar remarks made in other contexts. The claim is dismissed.

DeRicco v. Maidman, NY Slip Op 05921 (1st Dep't October 20, 2022)

Here is the decision.

Discovery.

Defendants are entitled to copies of their emails, correspondence, and texts in plaintiff's possession because they are discoverable party statements, pursuant to CPLR 3101[e].  However, plaintiff is not obligated to produce the medical records of his treatment with defendants, as they made no showing that those records, created and maintained by them, were unavailable to them. As to defendants' demand for the names and addresses of any and all individuals who were witnesses to the medical conditions alleged in the complaint, this request is palpably improper as overbroad and burdensome, particularly where no depositions have been held. Defendants are not entitled to authorizations releasing plaintiff's employment records, as plaintiff had withdrawn all of his claims for lost earnings, and defendants did not make a sufficient showing as to how those records were material or necessary to their defense, pursuant to CPLR 3101[a]. Defendants may renew their request for employment records if plaintiff's deposition testimony makes them relevant.

Fusco v. Mace Ave. Med., P.C., NY Slip Op 05922 (1st Dep't October 20, 2022)

Here is the decision.

Appellate practice.

The Appellate Division declines to consider whether the trial court properly determined that plaintiffs could pursue and adequately alleged alter ego or veil piercing as separate theories, as defendants did not challenge those rulings in their opening appellate brief.

Alesco Preferred Funding VIII, Ltd v. ACP Re, Ltd, NY Slip Op 05920 (1st Dep't October 20, 2022)

Here is the decision.

The evidentiary value of business records.

While the foundation for the admission of a business record may be provided by the testimony of the record's custodian, it is the business record itself, not the foundational affidavit, that serves as proof of the matter asserted.

Bank of N.Y. Mellon Trust Co., N.A. v. Andersen, NY Slip Op 05827 (2d Dep't October 19, 2022)

Here is the decision.

A motion to vacate a default.

A default judgment was entered against defendants after they failed to comply with court orders directing them to answer the third and fourth amended verified complaints, or risk being held in default. Defendants did not oppose plaintiff's motion for a default judgment against them, although properly served with notice of the motion. The court denied defendants' motions to vacate the default judgment pursuant to CPLR 5015(a)(1), which were made outside the one-year time limitation, and without a valid excuse.  The court rejected defendants' alternative argument that they are entitled to vacatur under CPLR 5015(a)(4), based on lack of jurisdiction. Defendants did not move on that basis, but improperly raised the issue for the first time in their reply papers.

TGT, LLC v. Advance Entertainment, LLC, NY Slip Op 05818 (1st Dep't October 18, 2022)

Here is the decision.

Privileged attorney work product.

The absolute privilege under CPLR 3101(c) is limited to materials prepared by an attorney, while acting as an attorney, which contain the attorney's legal analysis, conclusions, theory, or strategy. Materials or documents that could have been prepared by a layperson do not fall within the attorney work product exception.

Bent-Anderson v. Singh, NY Slip Op 05676 (2d Dep't October 12, 2022)

Here is the decision.