Motions for leave to renew.

The motion is denied where the movant fails to establish a reasonable justification for not having offered the alleged new facts in the original moving papers.

Mollema v. Citigroup, Inc., NY Slip Op 01281 (1st Dep't March 12, 2024)

Here is the decision.

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 demonstrate the absence of any triable issues of fact. The failure to make a prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers. In determining a motion for summary judgment, evidence must be viewed in the light most favorable to the non-moving party, and all reasonable inferences must be resolved in favor of the non-moving party.  The court's function on a motion for summary judgment is not to resolve issues of fact or to determine matters of credibility, but merely to determine whether such issues exist.

Moonilal v. Roman Catholic Church of St. Mary Gate of Heaven, NY Slip Op 01172 (2d Dep't March 6, 2024)

Here is the decision.

Appellate practice.

The record does not reflect that the defendant moved to set aside or vacate the judgment of foreclosure and sale. As a result, this fact-based argument is unpreserved.

Taylor, Bean & Whitaker Mtge. Corp. v. Daniel, NY Slip Op 01262 (1st Dep't March 7, 2024)

Here is the decision.

Artibration.

A party moving to compel arbitration, pursuant to CPLR 7503, has the burden of establishing the existence of a valid agreement.

Lisi v. Nw York Ctr. for Rehabilitation & Nursing, 01171 (2d Dep't March 6, 2024)

Here is the decision.

Guarantors' liability.

An unconditional guarantor cannot allege a mutual mistake defense regarding the underlying contracts.

Valley Natl. Bank v. TDS Cab Corp., NY Slip Op 01264 (1st Dep't March 7, 2024)

Here is the decision.

Motions to disniss.

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, conclusively establishing, as a matter of law, a defense to the action.

Cunningham v. Cunningham, NY Slip Op 01168 (2d Dep't March 6, 2024)

Here is the decision.

Summary judgment on a guaranty.

Plaintiff demonstrated entitlement to its unopposed motion for summary judgment as to liability on its claim for amounts due under defendant's guaranty by establishing the existence of an absolute and unconditional guaranty, the underlying debt, and the guarantor's failure to perform under the guaranty.

3 E. 54th N.Y. LLC v. Chatiris, NY Slip Op 01244 (1st Dep't March 7, 2024)

Here is the decision.

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.