Usurious loans.

A loan that is usurious at its inception is void and unenforceable, but an obligation that is valid at its inception is not invalidated by a subsequent usurious transaction. The invalidity of the final modification does not extinguish the borrower's liability under the original contract and cannot taint the original agreement, regardless of whether the usury is criminal or civil, A one-year statute of limitations is applicable to usury actions, pursuant to CPLR 215[6].

Welz v. Brown, NY Slip Op 03021 (1st Dep't June 4, 2024)

Here is the decision.

Landlord-tenant.

Defendant-tenant's cross-motion for summary judgment dismissing the ejectment complaint, is granted.

A landlord's mere receipt of rent checks after the purported termination of a tenancy but before commencement of the action does not alone serve to vitiate a predicate notice, especially where the landlord promptly returns the checks uncashed, or where the rent checks, although cashed, were accepted inadvertently and the landlord promptly explains the inadvertence to the tenant. However, where the landlord receives rent checks and does not immediately return them or claim and explain any inadvertence, the retention of the checks constitutes acceptance sufficient to vitiate the predicate notice.

Here, the notice purported to terminate tenant's tenancy on January 31, 2022, yet the landlord did not serve tenant with the complaint until April 22, 2022. In the meantime, tenant tendered rent checks for February, March, and April, all dated before service of the complaint. Moreover, landlord's managing member acknowledged receiving the rent checks contemporaneously but admitted that landlord did not return the checks until June 3, 2022.

Landlord argues that it informed tenant in December 2021 that it would not accept payment after termination of the tenancy at the end of January 2022. Landlord also argues that it never sent tenant a rent bill or an offer to renew the lease. Significantly, however, landlord's managing member does not give any explanation as to why landlord delayed in returning the checks until June 2022. Thus, the receipt and retention of multiple rent checks for several months, without explanation, vitiated the predicate notices.

591 Realty LLC v. Curanaj, NY Slip Op 03007 (1st Dep't June 4, 2024)

Here is the decision.

Appellate practice.

Only an aggrieved party or a person substituted for him may appeal from an appealable judgment, order, or final order, pursuant to CPLR 5511. A person is aggrieved when he asks for relief but that relief is denied in whole or in part, or when someone asks for relief against him, which the person opposes, and the relief is granted in whole or in part.

Matter of Rooney v. Salem, NY Slip Op 03006 (2d Dep't June 3, 2024)

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Cross motions.

The plain language of CPLR 2215 states that where a litigant cross-moves, it may request "alternative" or "different types" of relief, and the "relief need not be responsive to that demanded by the moving party."

Starr Indem. & Liab. Co. v. Monte Carlo, LLC, NY Slip Op 02999 (1st Dep't May 30, 2024)

Here is the decision.

1944.

Premises liability.

The owners of a private residential apartment have no duty to conduct periodic inspections of the fixtures in the apartment.

Albert M. Watson Photography Inc. v, Kartheiser, NY Slip Op 03003 (1st Depot May 30, 2024)

Here is the decision.

Motion for a renewal judgment.

The plaintiff failed to establish its prima facie entitlement to a renewal judgment, as it did not submit evidentiary proof that it was the assignee of the original judgment creditor prior to the commencement of this action, pursuant to CPLR 5014[1]. The affidavit of the plaintiff's president, submitted in support of the motion, fails to establish the date and circumstances of the assignment, if any, of the original judgment.

Accounts Retrievable Sys., LLC v. McKiernan, NY Slip Op 02899 (2d Dep't May 29, 2024)

Here is the decision.

Contract law.

Once the contractual cure period ended without a cure, the event of default became "continuing,"

Matter of Citibank, N.A. v. N/A, NY Slip Op 02975 (1st Depot May 430, 2024)

Here is the decision.

Defaults.

Pursuant to CPLR 317, a defaulting defendant who was served with a summons other than by personal delivery may be permitted to defend the action upon a finding by the court that the defendant did not personally receive notice of the summons in time to defend and has a potentially meritorious defense.  A motion pursuant to CPLR 3012(d) to extend the time to answer the complaint requires the movant to establish a reasonable excuse for the delay and demonstrate a potentially meritorious defense to the action,

Funding NY , LLC v. 1237 Dean Street Corp., NY Slip Op 02904 (2d Dep't May 29, 2024)

Here is the decision.

Appellate practice.

On appeal, the record relied upon by the plaintiff does not include various papers relied upon by the Supreme Court, including the pleadings or any of the other papers submitted in support of, or in opposition to, the defendant's motion for summary judgment. Since these omissions have rendered meaningful review of the court's order virtually impossible, dismissal of the appeal is the appropriate disposition.

Fitzpatrick v. Affairs & Banquets Floral Servs., Inc., NY Slip Op 02798 (2d Dep't May 22, 2024)

Here is the decision.