Proper service.

A process server's affidavit of service constitutes prima facie evidence of proper service. On a motion to vacate a default judgment under CPLR 5015(a)(4), the defendant must overcome the presumption raised by the affidavit of service. Bare and unsubstantiated denials are insufficient to rebut the presumption of service, but a sworn denial of service containing specific facts generally rebuts the presumption of proper service and necessitates an evidentiary hearing. Minor discrepancies between the appearance of the person allegedly served and the description of the person in the affidavit of service are insufficient to raise an issue of fact warranting a hearing. The discrepancies must be substantiated by something more than a claim by the parties allegedly served that the descriptions of their appearances were incorrect.

TD Bank, N.A. v. Turbo Group, Inc., NY Slip Op 02217 (2d Dep't April 24, 2024)

Here is the decision.

Appellate practice.

A factual argument that is raised for the first time on appeal is unpreserved for appellate review.

Marcal Fin. SA v. Sutton, NY Slip Op 02258 (1st Dep't April 25, 2024)

Here is the decision.

Tax liens.

Under both the federal and state constitutions, the State may not deprive a person of property without due process of law. Both the initial notice of tax lien sale and the subsequent notice to redeem must meet constitutional due process requirements. The requirements of due process are satisfied where notice is reasonably calculated to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.

Pekich v. Membreno, NY Slip Op 02206 (2d Dep't April 24, 2024)

Here is the decision.

Frivolous claims.

While public policy generally mandates free access to the courts, a party may forfeit that right if he abuses the judicial process by engaging in meritless litigation motivated by spite or ill will.

Svatovic v. Shabot, NY Slip Op 02266 (1st Dep't April 25, 2024)

Here is the decision.

Legal Brief

Leave to amend.

The Appellate Division determined that the motion court providently denied plaintiff's motion under CPLR 3025(b) and 5015(a)(3) to amend the third amended complaint to revive previously dismissed parties and claims and to assert new claims against new parties based on newly discovered evidence. The Appellate Division has previously affirmed the dismissal of the claims which plaintiff seeks to reassert. 

Plaintiff failed to establish that the new evidence was not merely cumulative and that it would have changed the result of the motion court or the Appellate Division's previous orders. On appeal, plaintiff does not address how the new evidence fulfills the elements of any particular cause of action, nor does he provide a basis for reviving the previously dismissed claims or adding new parties and claims to this 2014 action. In addition, given the late stage in the litigation of this matter, the amendments would have necessitated no small measure of additional discovery.

Simon v. FrancInvest, S.A., NY Slip Op 02157 (1st Dep't April 23, 2024)

Here is the decision.

Legal Brief

CPLR 3215(c).

The motion  to vacate the judgment and dismiss the action against defendan-borrower as abandoned is granted. Plaintiff did not commence proceedings for entry of a judgment within one year of default, but waited almost four years to seek a default judgment, and it fails to provide sufficient cause for the delay.

Wells Fargo Bank, N.A. v. Gwebu, NY Slip Op 02160 (1st Dep't April 23, 2024)

Here is the decision.

Legal Brief

Service of process.

An objection that the summons and complaint was not properly served is waived if, having raised such an objection in a pleading, the objecting party does not move for judgment on that ground within 60 days after serving the pleading, unless the court extends the time upon the ground of undue hardship.

US Bank, N.A. v. Orlando, NY Slip Op 02078 (2d Dep't April 17, 2024)

Here is the decision.

Legal Brief

Vacating a default.

Defendant sufficiently demonstrated a reasonable excuse in support of its motion to vacate the default judgment entered against it. Its counsel abandoned his duties to file an answer and respond to the default judgment motion, despite having advised defendant that he was being paid by defendant's surety to appear on defendant's behalf. The record does not indicate a pattern of willful default and neglect, and there is no claim of prejudice.

JDS Constr. Group LLC v. Copper Servs., LLC, NY Slip Op 02097 (1st Dep't April 18, 2024)

Here is the decision.

Legal Brief

Foreclosure sales.

Pursuant to CPLR 2103, parties who have appeared in an action involving the sale of real property pursuant to a judgment, and who have not waived service, are entitled to service of all papers, including a notice of sale. However, a party who defaults in appearing in a foreclosure action is not entitled to notice of a judicial sale, and, therefore, the lack of notice is not the basis for a motion to vacate and set aside a foreclosure sale.

U.S. Bank N.A. v. Ashon, NY Slip Op 0277 (2d Dep't April 17, 2024)

Here is the decision.

Legal Brief

Collateral estoppel.

Plaintiff previously litigated whether defendants were entitled to a fee in her matrimonial action. In support of her motion to vacate defendants' charging lien, plaintiff asserted that defendants' failure to present expert evidence regarding domestic abuse and the valuation of the family's closely held company constituted malpractice. At the hearing on the motion, plaintiff agreed by stipulation to withdraw with prejudice her motion to vacate the charging lien and to authorize the fee at issue to be withdrawn from counsel's Divorce IOLA account. However, in her amended complaint in this action, plaintiff reasserted the claim for malpractice. Where a client has challenged and lost on the issue of whether counsel is entitled to a fee, that determination collaterally estops a subsequent claim for legal malpractice. The resolution of the matter by stipulation does not make a difference because a withdrawal with prejudice has preclusive effect.

Rothman v. Sandra Radna, P.C., NY Slip Op 02102 (1st Dep't April 18, 2024)

Here is the decision.

Consolidation.

When one action sounds in contract and the other in tort, the court should not grant consolidation. Here, the breach of contract and fraudulent conveyance actions present different questions of law and fact. Moreover, the fraudulent conveyance action will be moot if plaintiffs fail to win the breach of contract action. Finally, the two actions are at different stages, so that consolidation would lead to a delay in trying the breach of contract action.

3B Assoc. LLC v. Ecommission Solutions, LLC, NY Slip Op 02086 (1st Dep't April 18, 2024)

Here is the decision.