Vacating a default.

A defendant moving pursuant to CPLR 5015(a)(1) to vacate a default in appearing or answering the complaint must provide a reasonable excuse for the default and demonstrate a potentially meritorious defense to the action. The determination of what constitutes a reasonable excuse lies within the sound discretion of the trial court.

A defendant may be entitled to relief under CPLR 317 on a showing that he did not receive actual notice of the summons and complaint in time to defend the action.

1KB & MS, LLC v. Happy Living Constr., LLC, NY Slip Op 03023 (2d Dep't June 5, 2024)

Here is the decision.

Preliminary injunctions.

The purpose of a preliminary injunction is to maintain the status quo and prevent the dissipation of property that could render a judgment ineffectual. In order to establish the right to a preliminary injunction, the movant must demonstrate (1) the likelihood of success on the merits; (2) irreparable injury absent the injunction; and (3) that the equities balance in the movant's favor. The decision to grant or deny provisional relief is committed to the sound discretion of the Supreme Court.

17455 128 Ave., Inc. v.HSBC Bank USA, N.A., NY Slip Op 03022 (2d Dep't June 5, 2024

Here is the decision.

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.