Service on a foreign corporation.

Pursuant to CPLR 311(a)(1), service upon a foreign corporation shall be made by delivering the summons "to an officer, director, managing or general agent, or cashier or assistant cashier or to any other agent authorized by appointment or by law to receive service."  In addition, service may be made upon someone whom the corporation cloaks with authority. The burden of proving that personal jurisdiction has been acquired over a defendant rests with the plaintiff. The court does not have personal jurisdiction over a defendant when a plaintiff fails to properly effectuate service of process. In those instances in which process has not been served upon a defendant, all subsequent proceedings will be rendered null and void.

Bold Broadcasting, LLC v. Wawaloam Reservation, Inc., NY Slip Op 05196 (2d Dep't October 23, 2024)

Here is the decision.

Standing in a mortgage foreclosure action.

The subject note, and the allonges attached to each note, which were dated and specifically endorsed to each respective assignee, were sufficient to establish plaintiff's standing to foreclose.

Defendants, in turn, failed to raise a triable issue of fact as to standing. Uniform Commercial Code § 3-202(2) provides that "[a]n endorsement must be written by or on behalf of the holder on the instrument or on a paper so firmly affixed thereto as to become a part thereof." Contrary to defendants' contention, counsel's sworn affidavit of regularity, in which he averred that upon receipt of the original trust file, the file contained the original note and mortgage, that the original allonges were stapled to the original note, and the original trust file containing the original note and mortgage remained in counsel's possession and would be provided upon request, was sufficient to meet this burden.

U.S. Bank N.A. v. Mave Hotel Invs. LLC, NY Slip Op 05195 (1st Dep't October 22, 2024)

Here is the decision.

Accelerated judgment.

CPLR 3213 provides a means of obtaining an accelerated judgment where a defendant's liability is premised upon an instrument for the payment of money only, such as an unconditional guaranty. In order to recover on a guaranty, a plaintiff must establish that payment on the underlying debt was due.  A defendant can defeat a CPLR 3213 motion by offering evidentiary proof sufficient to raise a triable issue of fact. Averments merely stating conclusions of fact or law are insufficient to defeat summary judgment.

Whitestone Plaza, LLC v. You Lin Shen, NY Slip Op 05129 (2d Dep't October 16, 2024)

Here is the decision.

Service of process.

The individual defendant - a partner of the defendant law firm - was properly served, and, thus, the law firm was properly served. While the process server did not reach the individual defendant's actual place of business, pursuant to CPLR 308[2], because the building where defendants are located did not allow the process server to go to the defendant firm's floor, the building's concierge told the process server to deliver the summons to the "Building Mailroom Clerk." Under these circumstances the outer bounds of the individual defendant's actual place of business is deemed to extend to the location at which the process server was stopped.

Nath v. Chemtob Moss Forman & Beyda, LLP, NY Slip 05061 (1st Dep't October 15, 2024)

Here is the decision.

The admissibility of business records.

Although the foundation for admission of a business record usually is provided by the testimony of the custodian, the author, or some other witness familiar with the practices and procedures of the particular business, it is the business record itself, not the foundational affidavit, that serves as proof of the matter asserted. Without the introduction of the records themselves, a witness's testimony as to the contents of the records is inadmissible hearsay.

Bank of N.Y. v. Levy, NY Slip Op 05085 (2d Dep't October 16, 2024)

Here is the decision.

Appellate practice.

Defendant's appeal is based on the issue of standing. While that defense is contained in her answer, defendant did not raise the issue in any of the numerous dispositive motions that she made in Supreme Court. Accordingly, the Appellate Division declines to reach the issue for the first time on appeal.

U.S. Bank Trust, N.A. v. Stewart, NY Slip Op 05150 (1st Dep't October 17, 2024)

Here is the decision.

Quasi-contractual claims.

Because the subject matter of the loan at issue and the terms of its repayment are governed by a promissory note - a written agreement whose validity and enforceability is not in dispute - quasi-contractual claims based on the same subject matter will not lie, even against a nonparty to the promissory note.

A.N.L.Y.H. Invs. LP v. JDS Principal Highline LLC, NY Slip Op 05133 (1st Dep't October 17, 2024)

Here is the decision.

A motion to preclude witnesses at trial.

The trial court providently exercised its discretion in precluding seven witnesses listed on plaintiff's witness list from testifying at trial. Plaintiff exhibited a lack of diligence and noncompliance with court orders requiring him to respond to discovery demands, including interrogatories asking him to identify witnesses. Further, plaintiff did not provide a reasonable explanation for his failure to disclose those witnesses earlier in this 10-year-old litigation.

Gerasimowicz  v. Delis, NY Slip Op 05050 (1st Dep't October 15, 2024)

Here is the decision.

Motions to dismiss.

Under CPLR 3211(a)(1), a dismissal is warranted only where the documentary evidence utterly refutes the plaintiff's factual allegations, conclusively establishing a defense as a matter of law. On a motion pursuant to CPLR 3211(a)(7), the complaint is to be afforded a liberal construction, the facts alleged are presumed to be true, the plaintiff is afforded the benefit of every favorable inference, and the court is to determine only whether the facts as alleged fit within any cognizable legal theory. Where evidentiary material is submitted and considered on a motion pursuant to CPLR 3211(a)(7) and the motion is not converted into one for summary judgment, the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one and, unless it has been shown that a material fact as claimed by the plaintiff to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it, dismissal shall not be granted. On a motion pursuant to CPLR 3211(a)(5) based on the statute of frauds, the court is required to accept the facts as alleged in the complaint as true and accord the plaintiff the benefit of every possible favorable inference.

374-76 Prospect Place Tenants Assn., Inc. v. City of New York, NY Slip Op 05082 (2d Dep't October 16, 2024)

Here is the decision.

Vacating a default.

Defendants' motion to vacate the default judgment is granted in the interest of justice. Although defendants have a history of defaults and delays, many were readily excusable and the motion court was entitled, in its discretion, to accept their proffered excuse of law office failure, especially considering the stipulation to adjourn the motion for a default judgment. In affirming, the Appellate Division noted the policy of deciding actions on the merits, the existence of potentially meritorious defenses, the extreme prejudice to defendants if vacatur is denied, the comparatively lesser prejudice to be suffered by plaintiff if the default is vacated, and the court's efforts to mitigate such prejudice by awarding plaintiff a trial preference and monetary sanctions, pursuant to CPLR 2005.

Walton v. Perez, NY Slip Op 05081 (1st Dep't October 15, 2024)

Here is the decision.

Dismissal by the court.

A court may not dismiss an action based on neglect to prosecute unless the CPLR 3216 statutory preconditions to dismissal are met. Here, the Supreme Court failed to serve a written demand upon the plaintiff to resume prosecution of the action and to serve and file a note of issue within 90 days of receipt of the demand, pursuant to CPLR 3216[b][3]. Since at least one precondition set forth in CPLR 3216 was not met, the court was without power to direct dismissal of the complaint pursuant to that statute.

Pursuant to 22 NYCRR 202.27, a court has discretion to dismiss an action where a plaintiff fails to appear at any scheduled call of a calendar or at any conference. In this case, however, the court attorney referee did not recommend dismissal of the complaint based upon a failure to appear at a conference, but, rather, for failure to move for an order of reference by a date certain without good cause shown. Thus, the dismissal order, which confirmed the report of the court attorney referee, did not direct dismissal of the complaint based upon a default in appearing at a scheduled conference or calendar call, and 22 NYCRR 202.27 could not have provided the basis for dismissal of the complaint.

In addition, a court's power to dismiss a complaint, sua sponte, is to be used sparingly and only when extraordinary circumstances warrant dismissal. Here, the plaintiff's failure to comply with a court conference order directing the plaintiff to move for an order of reference was not a sufficient ground upon which to direct dismissal of the complaint.

Bank of Am., N.A. v. Banu, NY Slip Op 04940 (2d Dep't October 9, 2024)

Here is the decision.