Restoring a case to the calendar.

Plaintiff's motion to restore the action to the active calendar is granted. The action was never formally dismissed, as no order was issued directing dismissal of the action under 22 NYCRR 202.27. Accordingly, restoring a case marked inactive is automatic, and plaintiff was not required to establish a reasonable excuse for failing to appear at the status conference.

Simon v. Bryski, NY Slip Op 04033 (2d Dep't July 2, 2025)

Here is the decision.

Foreclosure actions.

An action to foreclose a mortgage is subject to a six-year statute of limitations. When a mortgage is payable in installments, which is the typical practice, an acceleration of the entire amount due begins the running of the statute of limitation on the entire debt. One of the ways to accelerate a mortgage debt is through commencement of a foreclosure action in which the verified complaint includes an election to exercise the mortgagor's contractual right to accelerate under the terms of the note and mortgage. The fact of election should not be confused with the notice of the election. While the act evincing the noteholder's election must be sufficient to constitute notice to all third parties of such a choice, a borrower's lack of actual notice does not, as a matter of law, destroy the effect of the election. Put another way, the point at which a borrower has actual notice of an election to accelerate is not the operative event for purposes of determining when the statute of limitations begins to run. The dispositive question is whether the contractual election was effectively invoked.

Wilmington Sav. Fund Socy., FSB v. Avenue Basin Mgt., Inc., NY Slip Op 04039 (2d Dep't July 2, 2025)

Here is the decision.

Standing.

Only a trustee, as opposed to the trust, may file suit.

J. Carey Smith 2019 Irrevocable Trust v. 11 W. 12 Realty, LLC, NY Slip Op 04045 (1st Dep't July 3, 2025)

Here is the decision.

Motions to dismiss.

A motion to dismiss based on documentary evidence pursuant to CPLR 3211(a)(1) may be granted only where the documentary evidence utterly refutes the plaintiff's factual allegations, resolves all factual issues as a matter of law, and conclusively disposes of the claims at issue. In order to be credited, the evidence submitted in support of a CPLR 3211(a)(1) motion must be unambiguous, authentic, and undeniable.

Arkin, Simon & Simon Partnership v. Rockaway Crossing, LLC, NY Slip Op 03990 (2d Dep't July 2, 2025)

Here is the decision.

Arbitration.

The court will not intervene where there is an arbitration clause in which the parties agree to rules under which the arbitrator decides arbitrability.

Ghatak v. McKinsey & Co., NY Slip Op 04044 (1st Dep't July 3, 2025)

Here is the decision.

Court holiday.

Contract law.

Expert witnesses may not opine as to the parties' legal obligations under a contract; that is an issue for the trial court to decide.

Ametek, Inc. v. Goldfarb, NY Slip Op 03966 (1st Dep't July 1, 2025)

Here is the decision.

Service of process.

Pursuant to CPLR 2101(f), "[t]he party on whom a paper is served shall be deemed to have waived objection to any defect in form unless, within fifteen days after the receipt thereof, the party on whom the paper is served returns the paper to the party serving it with a statement of particular objections." 

Globalized Realty Group, LLC v. Crossroad Realty NY, LLC, NY Slip Op 03797 (2d Dep't June 25, 2025)

Here is the decision.

Bench trials.

A judgment from a non-jury trial should be set aside only where it is not supported by any fair interpretation of the evidence.

American Infertility of N.Y., P.C. v. Kushnir, NY Slip Op 03858 (1st Dep't June 26, 2025)

Here is the decision.

Contract law.

In order to prevail on a cause of action for specific performance of a contract for the sale of real property, a plaintiff-purchaser must establish that it substantially performed its contractual obligations and was ready, willing, and able to perform its remaining obligations, that the vendor was able to convey the property, and that there was no adequate remedy at law.  The plaintiff-purchaser must submit evidence of the financial ability to purchase the property in order to satisfy the ready-willing-able element. Where the contract does not make time of the essence, the law permits a reasonable time in which to tender performance, regardless of whether the contract designates a specific date for performance.

Guzman v. Ramos, NY Slip Op 03798 (2d Dep't June 25, 2025)

Here is the decision.

Leave to renew.

A motion for leave to renew is the appropriate vehicle for seeking relief from a prior order based on a change in the law. A clarification of existing law may constitute a change in law for purposes of a motion for leave to renew.

HSBC Bank USA, N.A. v. Ishmail, NY Slip Op 03799 (2d Dep't June 25, 2025)

Here is the decision.