An action to foreclose a mortgage is subject to a six-year statute of limitations. The limitations period begins to run from the due date of each unpaid installment, from the date the mortgagee is entitled to demand full payment, or from the date the mortgage debt has been accelerated.
Bank of Am., N.A. v. Scher, NY Slip Op 03365 (2d Dep't May 25, 2022)
The notice of claim, filed without leave of court, is a nullity.
Umeh v. New York City Health & Hosps. Corp., NY Slip Op 03358 (1st Dep't May 24, 2022)
The applicant must submit proof of service of the summons and complaint or summons and notice, proof of the facts constituting the cause of action, and proof of the defaulting defendant's failure to answer or appear, pursuant to CPLR 3215[f]. In order to demonstrate the facts constituting the cause of action, the plaintiff need only submit sufficient proof to enable a court to determine if the cause of action is viable, since defaulters are deemed to have admitted all factual allegations contained in the complaint and all reasonable inferences that flow from them.
Banks v. 110-18 198th St. Corp., NY Slip Op 03222 (2d Dep't May 18, 2022)
In deciding defendant's motion to dismiss the complaint, the motion court properly considered defendant's sworn affidavit attaching the contract at issue, even though it lacked the required certificate of conformity. The absence of such a certificate is a mere irregularity and not a fatal defect. The motion court properly disregarded the irregularity because plaintiff does not allege that it prejudiced her.
Sebrow v. Sebrow, NY Slip Op 03337 (1st Dep't May 19, 2022)
The evidentiary rulings challenged by defendant are the functional equivalent of rulings on a partial summary judgment motion determining the scope of issues to be tried, and thus involve the merits of the dispute. As a result, the rulings affect a substantial right and are directly appealable before any trial order or judgment.
Shyer v. Shyer, NY Slip Op 03338 (1st Dep't May 19, 2022)
Plaintiff claims that defendants negligently failed to advise it that an amendment to a commercial lease would extinguish its purchase option upon sale of the premises, and that, but for defendants' negligence, it would not have signed the amendment but would have exercised its purchase option as of right between 2023 and 2024, acquiring the premises for no more than $11.4 million. It is undisputed that after the amendment was executed, the landlord received a bona fide third-party purchase offer and plaintiff exercised its right of first refusal, purchasing the premises in 2016 for $14.5 million.
Defendants motion for summary judgment dismissing the claim is denied. Defendants' email attaching a marked-up copy of the relevant lease section does not establish, as a matter of law, that defendants advised plaintiff as to the meaning of the amendment, and the parties dispute the oral advice that was provided by defendants. The fact that plaintiff's agent read the amendment does not establish, as a matter of law, that defendants were not negligent. Any evidence that plaintiff's agent, a sophisticated businessman, knew or should have known that the amendment was substantive despite defendants' advice that it was "housekeeping" does not disprove defendants' negligence. It is evidence that can be offered in mitigation of damages.
Alrose Steinway, LLC v. Jaspan Schlesinger, LLP, NY Slip Op 03310 (1st Dep't May 19, 2022)
"A written agreement fixing place of trial, made before an action is commenced, shall be enforced upon a motion for change of place of trial." Based on the express statutory language, the enforcement of a contractual venue selection clause may not be raised sua sponte, but must be raised by motion or otherwise settled on consent of the parties.
Allen v. Morningside Acquisition I, LLC, NY Slip Op 03219 (2d Dep't May 18, 2022)
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