Service of process.

Pursuant to CPLR 317, a party that was not personally served may defend against an action if it demonstrates that it did not have notice of the action and that it has a meritorious defense. Service upon a corporation through delivery of the summons and complaint to the Secretary of State is not personal delivery to the corporation.

Borohov v. Queens Fresh Meadows, LLC, NY Slip Op 01167 (2d Dep't March 6, 2024)

Here is the decision.

Usury laws.

General Obligations Law § 5-501(2) provides that "[n]o person or corporation shall, directly or indirectly, charge, take or receive any money, goods or things in action as interest on the loan or forbearance of any money, goods or things in action at a rate exceeding the [maximum permissible interest] rate." Under General Obligations Law § 5-521(1), the defense of usury is not available to corporations, but this bar does not preclude a corporate borrower from raising the defense of criminal usury, that is, interest over 25%, in a civil action. However, civil and criminal usury laws do not apply to any loan or forbearance in the amount of $2,500,000 or more, pursuant to General Obligations Law § 5-501[6][b].

Alleon Capital Partners v. Choudhry, NY Slip Op 01165 (2d Dep't March 6, 2024)

Here is the decision.

Summary judgment on a personal guaranty.

In order to obtain summary judgment on a personal guaranty, a plaintiff must show an absolute and unconditional guaranty, the underlying debt, and the guarantor's failure to perform under the guaranty.

Consorcia Mgt., LLC v. Mushahwar, NY Slip Op 01156 (1st Dep't March 5, 2024)

Here is the decision.

Contract law.

A claim for reformation of a contract, including reformation based on a scrivener's error, is governed by the six-year statute of limitations, which begins to run on the date that the mistake is made, pursuant to CPLR 213[6].

NCCMI, Inc. v. Bersin Props., LLC, NY Slip Op 01161 (1st Dep't March 5, 2024)

Here is the decision.

Penal statutes and private causes of action.

A private cause of action may be implied from a penal statute only where the plaintiff is one of the class for whose particular benefit the statute was enacted. Here, the claim based on an alleged violation of the reckless endangerment statute is dismissed because the statute was enacted for the benefit of the general public, not for the particular benefit of a class to which the plaintiff belongs.

Alfonso v. Trucar Leasing Corp., NY Slip Op 01154 (1st Dep't March 5, 2024)

Here is the decision.

New York's choice of law rules.

Under New York's choice of law rules, malicious prosecution claims are governed by the law of the state where the underlying proceeding took place. Here, the arbitration that gave rise to plaintiffs' malicious prosecution claim was held in California. Therefore, the court properly applied California law, which bars plaintiffs' malicious prosecution claim because the claim arises from a contractually agreed upon arbitration.

Zeetogroup, LLC v. Baker Hostetler, LLP,  Slip Op 00992 (1st Dep't February 27, 2024)

Here is the decision.

Personal jurisdiction.

An action may be dismissed for lack of personal jurisdiction, pursuant to CPLR 3211[a][8]. The affirmative defense of lack of personal jurisdiction is waived if it is not raised in the answer or a pre-answer motion to dismiss, pursuant to CPLR 3211[e]. However, the defense is not waived if the defendant corrects the omission before the expiration of the time to amend the answer without leave of court. 

Manfredo v. 100-106 LLC, NY Slip Op 01115 (1st Dep't February 29, 2024)

Here is the decision.

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)

Here is the decision.