Summary judgment.

The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case. The failure to make this showing requires denial of the motion, regardless of the sufficiency of the opposing papers. A defendant moving for summary judgment dismissing a complaint cannot satisfy its initial burden merely by pointing to gaps in the plaintiff's case.

Bourne v. Martin Dev. & Mgt., LLC, NY Slip Op 04297 (2d Dep't August 16, 2023)

Here is the decision.

Untimely pleadings.

In order to compel a party to accept an untimely pleading, the movant must demonstrate both a reasonable excuse for its delay and a potentially meritorious defense to the claims to which it is responding  The lack of an explanation for the delay warrants denial of the motion.

Bank of N.Y. Mellon v. Norton, NY Slip Op 04295 (2d Dep't August 16, 2023)

Here is the decision.

Pleading equity in the alternative.

Because plaintiffs allege that the brokerage agreement is void and unenforceable, they may assert a claim for unjust enrichment in the alternative to recover the brokerage commission that they had paid defendant.

SL 4000 Conn. LLC v. CBRE, Inc., NY Slip 04350 (1st Dep't August 17 2023) 

Here is the decision.

Service of process.

At a hearing to determine the validity of service of process, the burden of proving personal jurisdiction is upon the party asserting it, and that party must sustain that burden by a preponderance of the credible evidence. Where a process server has no independent recollection of events, the process server's logbook may be admitted in evidence as a business record. Mailing may be proved by any number of documents meeting the requirements of the business records exception to the hearsay rule under CPLR 4518. 

Bank of N.Y. Mellon v. Chaudhury, NY Slip Op 04294 (2d Dep't August 16, 2023)

Here is the decision.

Contract law.

When the language of a contract is ambiguous, its construction presents a question of fact that may not be resolved by the court on a motion for summary judgment.  A contract is ambiguous if its terms are susceptible to more than one reasonable interpretation.

Hong v. Renval Constr., LLC, NY Slip Op 04196 (2d Dep't August 9 2023)

Here is the decision.

Motions to dismiss.

A motion to dismiss 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, thus conclusively establishing a defense as a matter of law. On a motion to dismiss for failure to state a cause of action, pursuant to CPLR 3211(a)(7), the court must afford the complaint a liberal construction, accept the facts as alleged in the complaint as true, accord the plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory. 

Gold v. 22 St. Felix, LLC, NY Slip Op 04194 (2d Dep't August 9, 2023)

Here is the decision.

Dismissal for failure to serve a complaint.

In order to avoid dismissal of an action for failure to serve a complaint after a demand for the complaint has been made pursuant to CPLR 3012(b), the plaintiff must demonstrate both a reasonable excuse for the delay in serving the complaint and a potentially meritorious cause of action. The determination of what constitutes a reasonable excuse for a delay in serving the complaint is within the discretion of the court. When exercising its discretion, the court should consider the extent of the delay, the prejudice to the opposing party, and the lack of an intent to abandon the action.

Fox v. Gross, NY Slip Op 04192 (2d Dep't August 9, 2023)

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CPLR 3215(c).

The statute generally provides that if the plaintiff fails to take proceedings for the entry of judgment within one year after a default, the court shall not enter judgment but shall dismiss the complaint as abandoned, upon its own initiative or on motion, unless sufficient cause is shown why the complaint should not be dismissed. A motion by a defendant to dismiss the complaint as abandoned pursuant to the statute is untimely when it is made after the entry of a judgment of foreclosure and sale.

Federal Natl. Mtge. Assn. v. Marty, NY Slip Op 04191 (2d Dep't August 9, 2023)

Here is the decision.

Contract law.

Parol evidence, or evidence outside the four corners of the document, is admissible only if the court finds an ambiguity in the contract.

Del Vecchio v. Del Vecchio, NY Slip Op 04189 (2d Dep't August 9 2023)

Here is the decision.

Failure to oppose a motion.

A party seeking to vacate an order entered upon its failure to oppose a motion must demonstrate both a reasonable excuse for the default and the existence of a potentially meritorious opposition to the motion. The determination of what constitutes a reasonable excuse lies within the Supreme Court's discretion. In making its determination, the court should consider factors such as the extent of the delay; prejudice or lack of prejudice to the opposing party; whether there has been willfulness; and the strong public policy in favor of resolving cases on the merits.

Codispoti v. Beth Israel Med. Ctr., NY Slip Op 04187 (2d Dep't August 9, 2023)

Here is the decision.

Arguments raised for the first time in reply papers.

The Appellate Division affirmed the Supreme Court's denial of the plaintiff's motion, pursuant to CPLR 306-b, to extend the time to serve the summons and complaint upon the defendant. Contrary to the plaintiff's contention, an extension of time was not warranted in the interest of justice. The plaintiff did not  raise in its main brief its contention that an extension of time was warranted for good cause. As a result, the plaintiff abandoned any argument it may have had in that regard, despite its attempt to raise the issue in its reply brief. 

Christiana Trust v. Leriche, NY Slip Op 04186 (2d Dep't August 9, 2023)

Here is the decision.