Service of process.

The court does not have personal jurisdiction over a defendant when the plaintiff fails to properly serve process, and any subsequent proceedings are null and void. A process server's affidavit of service establishes a prima facie case as to the method of service, and gives rise to a presumption of proper service.  In order to vacate a default judgment under CPLR 5015(a)(4), the defendant must overcome the presumption raised by the process server's affidavit. Although bare and unsubstantiated denials are insufficient to rebut the presumption of service, a sworn denial of service containing specific facts generally rebuts the presumption of proper service established by the affidavit of service and necessitates a hearing.

Here, the defendant offered no specific facts or documentary or other evidence demonstrating that he did not reside at the address where service was effected. Therefore, his affidavit was insufficient to rebut the presumption of proper service established by the affidavit of service. 

Deutsche Natl. Bank Trust Co. v. Williams, NY Slip Op 01982 (2d Dep't April 19, 2023)

Here is the decision.

Dismissal on the ground of documentary evidence.

A motion to dismiss the complaint on the ground that the action is barred by documentary evidence, pursuant to CPLR 3211(a)(1), may be granted only where the documentary evidence utterly refutes the plaintiff's factual allegations, thereby conclusively establishing, as matter of law, a defense to the action.

Buchanan v. Law Offs. of Sheldon E. Green, P.C., NY Slip Op 01979 (2d Dep't April 19, 2023)

Here is the decision.

Waiver of arbitration.

Defendant waived its contractual right to arbitrate the dispute by participating in the litigation over an 18-month period, during which defendant requested an extension of time to answer the complaint, filed an answer, appeared at a preliminary conference, and agreed to a discovery schedule.

Hoffman v. AKT in Motion, Inc., NY Slip Op 02062 (1st Dep't April 20, 2023)

Here is the decision.

Failure to state a cause of action.

On a motion to dismiss a complaint for failure to state a cause of action, pursuant to CPLR 3211(a)(7),  the court must afford the pleading a liberal construction, accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal theory. The test of the sufficiency of the complaint is whether it gives sufficient notice of the transactions, occurrences, or series of transactions or occurrences intended to be proved and whether the requisite elements of any cause of action known to our law can be discerned from its averments. Whether the plaintiff can ultimately establish its allegations is not a part of the calculus, and any deficiencies in the complaint may be amplified by supplemental pleadings and other evidence.

Cabrera v. Rallye Motors, LLC, NY Slip Op 01885 (2d Dep't April 12, 2023)

Here is the decision.

Res judicata.

Pursuant to the doctrine of res judicata, or claim preclusion, a disposition on the merits bars litigation between the same parties, or those in privity with them, of a cause of action arising out of the same transaction or series of transactions as a cause of action that either was raised or could have been raised in the prior proceeding.  The doctrine may be applied even if the litigation is based upon different theories or if seeking a different remedy than in the prior proceeding.

Brody v. RBC Mtge. Co., NY Slip Op 01883 (2d Dep't April 12, 2023)

Here is the decision.

Summary judgment on a sexual harassment claim under the City's Human Rights Law.

The statute does not differentiate between sexual harassment and other forms of gender discrimination, but, instead, considers sexual harassment as one species of sex- or gender-based discrimination.  Therefore, the court cannot grant the defendant's motion on the gender discrimination claim while denying the motion with respect to the hostile work environment and sexual harassment claim. Plaintiff can make out a prima facie case in the absence of an adverse employment action. In deciding the motion, defendant bore the burden of showing that, based on the record evidence and drawing all reasonable inferences in plaintiff's favor, no jury could find defendant liable for gender-based discrimination. Plaintiff submits sufficient evidence to support her assertions that, after she rejected her supervisor's sexual advances, she was unjustifiably criticized for her work product and attendance by her supervisors and was stripped of her assignments, which permits a finding that she was treated less well based on her gender. 

Bond v. New York City Health & Hosps. Corp., NY Slip Op 01939 (1st Dep't April 13, 2023)

Here is the decision.

Excusable defaults.

Pursuant to CPLR 5015(a)(1), a court may relieve a party from a judgment or order on the ground of excusable default, if a motion for that relief is made within one year after service of a copy of the judgment or order with written notice of entry. Even after expiration of the one-year limitations period set forth in the statute, a court may vacate its own judgment for sufficient reason and in the interests of substantial justice.

Here, the motion to vacate the default was untimely since it was not made within one year after service of a copy of the order with written notice of entry.  There was no basis for an extension of the one-year period in the exercise of discretion, since the defendant failed to demonstrate a reasonable excuse for his lengthy delay in moving to vacate the default.

Bank of N.Y. Mellon v. Geffrard, NY Slip Op 01882 (2d Dep't April 12, 2023_

Here is the decision.

Abandoning an action.

The action was not rendered a nullity by plaintiff's withdrawal of his initial summons and motion for summary judgment in lieu of a complaint, pursuant to CPLR 3213, as the parties' course of conduct reflected an understanding that plaintiff was not discontinuing or abandoning the action. Plaintiff withdrew the summons and motion "without prejudice" after reaching a settlement agreement with defendant, but the agreement expressly stated that the matter would be discontinued "with prejudice" upon defendant's full and complete compliance with its payment obligations. After defendant defaulted, plaintiff and defendant participated in further settlement discussions, court conferences, and motion practice for years before defendant invoked the argument that the action had been discontinued or abandoned.

Rizzo v. Progressive Capital Solutions, LLC, NY Slip Op 01948 (1st Dep't April 13, 2023)

Here is the decision.

Motions for summary judgment.

Pursuant to CPLR 3212(b), the motion must be supported by an affidavit made by a person with knowledge of the facts. Here, plaintiff failed to submit an affidavit.  Plaintiff submitted his attorney's affirmation, but such an affirmation is of no evidentiary value. Plaintiff's complaint is not verified, and so it cannot be used in lieu of an affidavit.

Tribbs v. 326-338 E 100th LLC, NY Slip Op 01950 (1st Dep't April 13, 2023)

Here is the decision.

Dismissal on the ground of failure to prosecute.

A court may not dismiss an action based on neglect to prosecute unless CPLR 3216's preconditions are met.  Here, the Supreme Court failed to serve a written demand upon the plaintiff to resume prosecution of the action and serve and file a note of issue within 90 days of receipt of the demand, pursuant to CPLR 3216[b][3]. Since at least one precondition set forth in CPLR 3216 was not met, the court was without power to direct dismissal of the complaint pursuant to that statute. 

Deutsche Bank Trust Co. Ams. v. Gonzales, NY Slip Op 01778 (2d Dep't April 5, 2023)

Here is the decision.

A motion for contractual and common-law indemnification.

Absent a showing that the movant was free of negligence, the motion will be denied.

Attia v. Slazer Enters., LLC, NY Slip Op 01834 (1st Dep't April 6, 2023)

Here is the decision.