Vacating a default.

A party seeking to vacate a default must establish a reasonable excuse for the default, as well as a potentially meritorious claim or defense, pursuant to CPLR 5015[a][1].

Matter of Dublin v Morris, NY Slip Op 01009 (2d Dep't February 28, 2024)

Here is the decision.

Forum non conveniens.

CPLR 327(a) codifies the common-law doctrine of forum non conveniens as follows:

"When the court finds that in the interest of substantial justice the action should be heard in another forum, the court, on the motion of any party, may stay or dismiss the action in whole or in part on any conditions that may be just. The domicile or residence in this state of any party to the action shall not preclude the court from staying or dismissing the action."

A plaintiff's choice of forum should rarely be disturbed, even when plaintiff is not a New York resident. So, a defendant seeking dismissal on forum non conveniens grounds has a heavy burden of establishing that New York is an inconvenient forum and that a substantial nexus between New York and the action is lacking.

Bangladesh Bank v. Rizal Commercial Banking Corp., NY Slip Op 01112 (1st Dep't February 29, 2024)

Here is the decision.

Negligence claims.

In order to establish a cause of action sounding in negligence, a plaintiff must establish the existence of a duty on defendant's part to plaintiff, breach of the duty, and damages. On a claim of negligent supervision of a child, the plaintiff must establish that the defendant had sufficiently specific knowledge or notice of the dangerous conduct which caused injury; that is, that the third-party acts could reasonably have been anticipated. In order to establish a cause of action based on negligent hiring, negligent retention, or negligent supervision of an employee, it must be shown that the employer knew, or should have known, of the employee's propensity for the conduct which caused the injury. On a claim of negligent failure to warn, the plaintiff must also establish that the employer was aware of the offending employee's propensity to engage in the complained-of conduct.

Brophy v. Big Bros. Big Sisters of Am., Inc., NY Slip Op 00993 (2d Dep't February 28, 2024)

Here is the decision.

Appellate practice.

No appeal lies from an order denying reargument.

Christiana Trust v. Victor, NY Slip 00994 (2d Dep't February 24, 2024)

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Personal jurisdiction.

A defendant's appearance in an action is deemed to be the equivalent of personal service of a summons, and, in the absence of an objection to jurisdiction by way of a motion or answer, the appearance confers personal jurisdiction over that defendant, pursuant to CPLR 320[b]. In addition, a defendant may appear informally by actively litigating the action before the court. Here, the defendant waived the defense of lack of personal jurisdiction by filing a notice of appearance and opposing the plaintiff's motions to confirm the referee's report without simultaneously asserting an affirmative objection to jurisdiction. 

U.S. Bank N.A. v. Jong Shin, NY Slip Op 01029 (2d Dep't February 28, 2024)

Here is the decision.

Motions to dismiss.

Under CPLR 3211(a)(1), dismissal is warranted only if the documentary evidence utterly refutes plaintiff's factual allegations, conclusively establishing a defense as a matter of law. The defendant bears the burden of demonstrating that the proffered documentary evidence conclusively refutes the plaintiff's factual allegations. Here, the cause of action alleging fraud was barred by the specific terms of the contract of sale  of a commercial property. The contract of sale utterly refuted the plaintiff's factual allegations and conclusively established a defense to the complaint as a matter of law.

Arco Acquisitions, LLC v. Tiffany Plaza, LLC, NY Slip Op 00888 (2d Dep't February 21, 2024)

Here is the decision.

Contract law.

A party repudiates a contract where, before the time of performance, that party puts it out of his power to keep the agreement. Besides giving the non-repudiating party an immediate right to sue for damages for total breach, the repudiation discharges the non-repudiating party's obligations to render performance in the future. 

EPAC Tech., Inc. v. John Wiley & Sons, Inc., NY Slip Op 00933 (1st Dep't February 22, 2024)

Here is the decision.

Statutes of limitations.

An action to foreclose a mortgage is governed by a six-year statute of limitations, pursuant to CPLR 213[4]. Where the mortgage debt is accelerated, the entire balance of the debt accrues, and the statute of limitations begins to run on the entire debt.

Wilmington Trust Co. v. Yonkus, NY Slip Op 00925 (2d Dep't February 21, 2024)

Here is the decision.

Assumption of the risk.

Under the doctrine of primary assumption of risk, a voluntary participant in a sport or recreational activity is deemed to have consented to the commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation. Risks inherent in a sporting activity are those which are known, apparent, natural, or reasonably foreseeable consequences of participation. As a general rule, application of assumption of the risk should be limited to cases appropriate for absolution of duty, such as personal injury claims arising from sporting events, sponsored athletic and recreative activities, or athletic and recreational pursuits that take place at designated venues.

Alfieri v. State of New York, NY Slip Op 00886 (2d Dep't February 21, 2024)

Here is the decision.

Comparative negligence.

In order to be entitled to summary judgment on the issue of a defendant's liability, the plaintiff does not bear the burden of establishing the absence of his own comparative negligence.  However, the issue of the plaintiff's comparative negligence may be decided in the context of a summary judgment motion where the plaintiff moves for summary judgment dismissing a defendant's affirmative defense alleging comparative negligence.

Abramov v. Martinez, NY Slip Op 00885 (2d Dep't February 21, 2024)

Here is the decision.

Leave to enter a default judgment.

Pursuant to CPLR 3215, a plaintiff moving for leave to enter a default judgment must file proof of: (1) service of the summons and the complaint; (2) the facts constituting the claim; and (3) the defendant's default. In order to successfully oppose the motion, the defendant must provide a reasonable excuse for the default and demonstrate the existence of a potentially meritorious defense to the action. A corporation's failure to receive copies of process served upon the Secretary of State due to a breach of its own obligation to keep a current address on file with the Secretary of State does not constitute a reasonable excuse for its delay in appearing or answering the complaint, although there is no per se rule. In determining whether a reasonable excuse was demonstrated, a court should consider, among other factors, the length of time for which the address had not been kept current.

Bachvarov v. Khaimov, NY Slip Op 00753 (2d Dep't February 14, 2024)

Here is the decision.