Vacating a deault.

A party seeking to vacate a default in opposing a motion must demonstrate both a reasonable excuse for the default and a potentially meritorious opposition to the motion, pursuant to CPLR 5015[a]. The determination of what constitutes a reasonable excuse lies within the sound discretion of the trial court. In excusing its discretion, the court may excuse delay or default resulting from law office failure, pursuant to  CPLR 2005.

Biotek Servs., LLC v. South Is. Med. Assoc., P.C., NY Slip Op 02775 (2d Dep't May 24, 2023)

Here is the decision.

Judgments as a matter of law.

Pursuant to CPLR 4401, a motion for judgment as a matter of law may be made at the close of an opposing party's case, or at any time on the basis of admissions. A motion made prior to the close of the opposing party's case will be denied, even if the opposing party's ultimate success in the action is improbable.

Bank of N.Y. Mellon v. Waheed, NY Slip Op 02774 (2d Dep't May 24, 2023)

Here is the decision.

 

Pleading quasi contract claims in the alternative.

The causes of action for promissory estoppel and unjust enrichment are properly pleaded in the alternative to the breach of contract cause of action, as the matter presents a bona fide dispute as to the existence of a valid contract.

Tahari v. Narkis, NY Slip Op 02772 (1st Dep't May 23, 2023)

Here is the decision.

Vacatur of default based on intrinsic fraud.

The defendants' contentions that the plaintiff fraudulently robosigned allonges to the note and failed to comply with RPAPL 1304 amount to allegations of intrinsic fraud. A defendant seeking to vacate a default pursuant to CPLR 5015(a)(3) based on intrinsic fraud must establish a reasonable excuse for the default and a potentially meritorious defense to the action. Since the defendants failed even to allege any reasonable excuse for either one of their defaults, the court denied that branch of their motion to vacate the order and judgment of foreclosure and sale.

Bank of Am., N.A. v. Anderson, NY Slip Op 02635 (2d Dep't May 17, 2023)

Here is the decision.

Quasi contract claims.

The Appellate Division affirmed the granting of defendants' motion which was pursuant to CPLR 3211(a)(7) to dismiss the cause of action alleging unjust enrichment. The existence of a valid contract governing the subject matter precludes recovery in quasi contract for events arising out of the same subject matter. An unjust enrichment claim is not available where it simply duplicates, or replaces, a conventional contract or tort claim. Here, recovery on an unjust enrichment theory is precluded, since that cause of action arises out of the same subject matter as the breach of contract cause of action, which remains a viable part of this case despite the denial of summary judgment to the plaintiff on the issue of liability.

Avery v. WJM Dev. Corp., NY Slip Op 02634 (2d Dep't May 17, 2023)

Here is the decision.

Liability for open and obvious hazards.

The court rejected defendant's contention that she cannot be held liable as a matter of law because the pile of snow and ice that caused plaintiff's accident was open and obvious. An open and obvious condition only relieves a property owner of its duty to warn, and not the duty to ensure that the premises is maintained in a reasonably safe condition.

Martinez v. Contreras, NY Slip Op 02742 (1st Dep't May 18, 2023)

Here is the decision.

Vacatur of a dismissal of the complaint.

Plaintiff is not entitled to vacatur of the order and judgment of dismissal on the ground of excusable default, pursuant to CPLR 5015[a][1], since they were not entered on her default. Her counsel appeared in court on the return date, participated in the argument and discussion, and submitted papers, and there is nothing in the court's order or judgment to indicate that the motions were granted on plaintiff's default. In any event, plaintiff did not move within the statutorily prescribed one-year time limit and failed to present a valid excuse for her failure to do so.

Matter of Duval v. Centerlight Health Sys., Inc., NY Slip Op 02740 (1st Dep't May 18, 2023)

Here is the decision.

Motions to dismiss.

When a party moves to dismiss a complaint pursuant to CPLR 3211(a)(7), the standard is whether the pleading states a cause of action.  In considering the motion, the court must accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory. Affidavits submitted by a defendant will almost never warrant dismissal under CPLR 3211 unless they establish conclusively that the plaintiff has no cause of action. Where the movant relies upon evidence beyond the four corners of the complaint, the motion must be denied unless it has been shown that a material fact as claimed by the plaintiff is not a fact at all and unless it can be said that no significant dispute exists regarding it.

808 Union St., LLC v. J. Lehman Park Slope, LLC, NY Slip Op 02632 (2d Dep't May 17, 2023)

Here is the decision.