tag:blogger.com,1999:blog-76386914326914981562024-03-19T04:09:12.797-04:00NEW YORK PRACTICEfor New York practitioners
and students of New York practice.Unknownnoreply@blogger.comBlogger5035125tag:blogger.com,1999:blog-7638691432691498156.post-16396576316914624992024-03-19T00:01:00.001-04:002024-03-19T00:01:00.128-04:00Artibration.<p>A party moving to compel arbitration, pursuant to CPLR 7503, has the burden of establishing the existence of a valid agreement.</p><p><i>Lisi v. Nw York Ctr. for Rehabilitation & Nursing</i>, 01171 (2d Dep't March 6, 2024)</p><p><a href="https://www.nycourts.gov/reporter/3dseries/2024/2024_01171.htm">Here is the decision.</a></p>Unknownnoreply@blogger.comtag:blogger.com,1999:blog-7638691432691498156.post-81232469247168473212024-03-18T00:06:00.001-04:002024-03-18T00:06:00.245-04:00Guarantors' liability.<p>An unconditional guarantor cannot allege a mutual mistake defense regarding the underlying contracts.</p><p><i>Valley Natl. Bank v. TDS Cab Corp.</i>, NY Slip Op 01264 (1st Dep't March 7, 2024)</p><p><a href="https://www.nycourts.gov/reporter/3dseries/2024/2024_01264.htm">Here is the decision.</a><br /></p>Unknownnoreply@blogger.comtag:blogger.com,1999:blog-7638691432691498156.post-61713136759794150632024-03-17T00:08:00.002-04:002024-03-17T00:08:00.137-04:00Motions to disniss.<p>A motion to dismiss on the ground that the action is barred by documentary evidence, pursuant to CPLR 3211(a)(1), may be granted only where the documentary evidence utterly refutes the plaintiff's factual allegations, conclusively establishing, as a matter of law, a defense to the action.</p><p><i>Cunningham v. Cunningham</i>, NY Slip Op 01168 (2d Dep't March 6, 2024)</p><p><a href="https://www.nycourts.gov/reporter/3dseries/2024/2024_01168.htm">Here is the decision.</a><br /></p>Unknownnoreply@blogger.comtag:blogger.com,1999:blog-7638691432691498156.post-29950807841093516262024-03-16T00:09:00.000-04:002024-03-16T00:09:00.136-04:00Summary judgment on a guaranty.<p>Plaintiff demonstrated entitlement to its unopposed motion for summary judgment as to liability on its claim for amounts due under defendant's guaranty by establishing the existence of an absolute and unconditional guaranty, the underlying debt, and the guarantor's failure to perform under the guaranty.</p><p><i>3 E. 54th N.Y. LLC v. Chatiris</i>, NY Slip Op 01244 (1st Dep't March 7, 2024)</p><p><a href="https://www.nycourts.gov/reporter/3dseries/2024/2024_01244.htm">Here is the decision.</a><br /></p>Unknownnoreply@blogger.comtag:blogger.com,1999:blog-7638691432691498156.post-83158070062896222052024-03-15T00:03:00.001-04:002024-03-15T00:03:00.134-04:00Service of process.<p>Pursuant to CPLR 317, a party that was not personally served may defend against an action if it demonstrates that it did not have notice of the action and that it has a meritorious defense. Service upon a corporation through delivery of the summons and complaint to the Secretary of State is not personal delivery to the corporation.</p><p><i>Borohov v. Queens Fresh Meadows, LLC</i>, NY Slip Op 01167 (2d Dep't March 6, 2024)</p><p><a href="https://www.nycourts.gov/reporter/3dseries/2024/2024_01167.htm">Here is the decision.</a><br /></p>Unknownnoreply@blogger.comtag:blogger.com,1999:blog-7638691432691498156.post-80905895323669171682024-03-14T00:02:00.002-04:002024-03-14T05:45:37.434-04:00Usury laws.<p>General Obligations Law § 5-501(2) provides that "[n]o person or corporation shall, directly or indirectly, charge, take or receive any money, goods or things in action as interest on the loan or forbearance of any money, goods or things in action at a rate exceeding the [maximum permissible interest] rate." Under General Obligations Law § 5-521(1), the defense of usury is not available to corporations, but this bar does not preclude a corporate borrower from raising the defense of criminal usury, that is, interest over 25%, in a civil action. However, civil and criminal usury laws do not apply to any loan or forbearance in the amount of $2,500,000 or more, pursuant to General Obligations Law § 5-501[6][b].</p><p><i>Alleon Capital Partners v. Choudhry</i>, NY Slip Op 01165 (2d Dep't March 6, 2024)</p><p><a href="https://www.nycourts.gov/reporter/3dseries/2024/2024_01165.htm">Here is the decision.</a><br /></p>Unknownnoreply@blogger.comtag:blogger.com,1999:blog-7638691432691498156.post-41994196843067478412024-03-13T00:02:00.000-04:002024-03-13T11:38:04.228-04:00Summary judgment on a personal guaranty.<p>In order to obtain summary judgment on a personal guaranty, a plaintiff must show an absolute and unconditional guaranty, the underlying debt, and the guarantor's failure to perform under the guaranty.</p><p><i>Consorcia Mgt., LLC v. Mushahwar</i>, NY Slip Op 01156 (1st Dep't March 5, 2024)</p><p><a href="https://www.nycourts.gov/reporter/3dseries/2024/2024_01156.htm">Here is the decision.</a><br /></p>Unknownnoreply@blogger.comtag:blogger.com,1999:blog-7638691432691498156.post-12553246013069555332024-03-12T00:03:00.000-04:002024-03-12T00:03:00.136-04:00Contract law.<p>A claim for reformation of a contract, including reformation based on a scrivener's error, is governed by the six-year statute of limitations, which begins to run on the date that the mistake is made, pursuant to CPLR 213[6].</p><p><i>NCCMI, Inc. v. Bersin Props., LLC</i>, NY Slip Op 01161 (1st Dep't March 5, 2024)</p><p><a href="https://www.nycourts.gov/reporter/3dseries/2024/2024_01161.htm">Here is the decision.</a><br /></p>Unknownnoreply@blogger.comtag:blogger.com,1999:blog-7638691432691498156.post-17533475346116099012024-03-11T00:02:00.002-04:002024-03-11T00:02:00.251-04:00Penal statutes and private causes of action.<p>A private cause of action may be implied from a penal statute only where the plaintiff is one of the class for whose particular benefit the statute was enacted. Here, the claim based on an alleged violation of the reckless endangerment statute is dismissed because the statute was enacted for the benefit of the general public, not for the particular benefit of a class to which the plaintiff belongs.</p><p><i>Alfonso v. Trucar Leasing Corp.</i>, NY Slip Op 01154 (1st Dep't March 5, 2024)</p><p><a href="https://www.nycourts.gov/reporter/3dseries/2024/2024_01154.htm">Here is the decision.</a></p>Unknownnoreply@blogger.comtag:blogger.com,1999:blog-7638691432691498156.post-4523262456231294952024-03-10T00:06:00.001-05:002024-03-10T00:06:00.143-05:00New York's choice of law rules.<p>Under New York's choice of law rules, malicious prosecution claims are governed by the law of the state where the underlying proceeding took place. Here, the arbitration that gave rise to plaintiffs' malicious prosecution claim was held in California. Therefore, the court properly applied California law, which bars plaintiffs' malicious prosecution claim because the claim arises from a contractually agreed upon arbitration.</p><p><i>Zeetogroup, LLC v. Baker Hostetler, LLP</i>, Slip Op 00992 (1st Dep't February 27, 2024)</p><p><a href="https://www.nycourts.gov/reporter/3dseries/2024/2024_00992.htm">Here is the decision.</a><br /></p>Unknownnoreply@blogger.comtag:blogger.com,1999:blog-7638691432691498156.post-69980944943906261672024-03-09T00:05:00.001-05:002024-03-09T00:05:00.247-05:00Personal jurisdiction.<p>An action may be dismissed for lack of personal jurisdiction, pursuant to CPLR 3211[a][8]. The affirmative defense of lack of personal jurisdiction is waived if it is not raised in the answer or a pre-answer motion to dismiss, pursuant to CPLR 3211[e]. However, the defense is not waived if the defendant corrects the omission before the expiration of the time to amend the answer without leave of court. </p><p><i>Manfredo v. 100-106 LLC</i>, NY Slip Op 01115 (1st Dep't February 29, 2024)</p><p><a href="https://www.nycourts.gov/reporter/3dseries/2024/2024_01115.htm">Here is the decision.</a><br /></p>Unknownnoreply@blogger.comtag:blogger.com,1999:blog-7638691432691498156.post-73302244754871039472024-03-08T00:02:00.001-05:002024-03-08T00:02:00.141-05:00Vacating a default.<p>A party seeking to vacate a default must establish a reasonable excuse for the default, as well as a potentially meritorious claim or defense, pursuant to CPLR 5015[a][1].</p><p><i>Matter of Dublin v Morris</i>, NY Slip Op 01009 (2d Dep't February 28, 2024)</p><p><a href="https://www.nycourts.gov/reporter/3dseries/2024/2024_01009.htm">Here is the decision.</a><br /></p>Unknownnoreply@blogger.comtag:blogger.com,1999:blog-7638691432691498156.post-42092905899244002082024-03-07T00:02:00.002-05:002024-03-07T15:09:18.907-05:00Forum non conveniens.<p>CPLR 327(a) codifies the common-law doctrine of forum non conveniens as follows:</p><p>"When the court finds that in the interest of substantial justice the action should be heard in another forum, the court, on the motion of any party, may stay or dismiss the action in whole or in part on any conditions that may be just. The domicile or residence in this state of any party to the action shall not preclude the court from staying or dismissing the action."</p><p>A plaintiff's choice of forum should rarely be disturbed, even when plaintiff is not a New York resident. So, a defendant seeking dismissal on forum non conveniens grounds has a heavy burden of establishing that New York is an inconvenient forum and that a substantial nexus between New York and the action is lacking.</p><p><i>Bangladesh Bank v. Rizal Commercial Banking Corp.</i>, NY Slip Op 01112 (1st Dep't February 29, 2024)</p><p><a href="https://www.nycourts.gov/reporter/3dseries/2024/2024_01112.htm">Here is the decision.</a></p>Unknownnoreply@blogger.comtag:blogger.com,1999:blog-7638691432691498156.post-7469257001147782002024-03-06T00:05:00.003-05:002024-03-06T00:05:00.252-05:00Negligence claims.<p>In order to establish a cause of action sounding in negligence, a plaintiff must establish the existence of a duty on defendant's part to plaintiff, breach of the duty, and damages. On a claim of negligent supervision of a child, the plaintiff must establish that the defendant had sufficiently specific knowledge or notice of the dangerous conduct which caused injury; that is, that the third-party acts could reasonably have been anticipated. In order to establish a cause of action based on negligent hiring, negligent retention, or negligent supervision of an employee, it must be shown that the employer knew, or should have known, of the employee's propensity for the conduct which caused the injury. On a claim of negligent failure to warn, the plaintiff must also establish that the employer was aware of the offending employee's propensity to engage in the complained-of conduct.</p><p><i>Brophy v. Big Bros. Big Sisters of Am., Inc.</i>, NY Slip Op 00993 (2d Dep't February 28, 2024)</p><p><a href="https://www.nycourts.gov/reporter/3dseries/2024/2024_00993.htm">Here is the decision.</a></p>Unknownnoreply@blogger.comtag:blogger.com,1999:blog-7638691432691498156.post-41146592673207518322024-03-05T00:01:00.001-05:002024-03-05T00:01:00.137-05:00Appellate practice.<p>No appeal lies from an order denying reargument.</p><p><i>Christiana Trust v. Victor</i>, NY Slip 00994 (2d Dep't February 24, 2024)</p><p><a href="https://www.nycourts.gov/reporter/3dseries/2024/2024_00994.htm">Here is the decision.</a><br /></p>Unknownnoreply@blogger.comtag:blogger.com,1999:blog-7638691432691498156.post-77867861961940547882024-03-04T00:03:00.001-05:002024-03-04T00:03:00.126-05:00Personal jurisdiction.<p>A defendant's appearance in an action is deemed to be the equivalent of personal service of a summons, and, in the absence of an objection to jurisdiction by way of a motion or answer, the appearance confers personal jurisdiction over that defendant, pursuant to CPLR 320[b]. In addition, a defendant may appear informally by actively litigating the action before the court. Here, the defendant waived the defense of lack of personal jurisdiction by filing a notice of appearance and opposing the plaintiff's motions to confirm the referee's report without simultaneously asserting an affirmative objection to jurisdiction. </p><p><i>U.S. Bank N.A. v. Jong Shin</i>, NY Slip Op 01029 (2d Dep't February 28, 2024)</p><p><a href="https://www.nycourts.gov/reporter/3dseries/2024/2024_01029.htm">Here is the decision.</a></p>Unknownnoreply@blogger.comtag:blogger.com,1999:blog-7638691432691498156.post-78249503333336723622024-03-03T00:02:00.001-05:002024-03-03T00:02:00.152-05:00Motions to dismiss.<p>Under CPLR 3211(a)(1), dismissal is warranted only if the documentary evidence utterly refutes plaintiff's factual allegations, conclusively establishing a defense as a matter of law. The defendant bears the burden of demonstrating that the proffered documentary evidence conclusively refutes the plaintiff's factual allegations. Here, the cause of action alleging fraud was barred by the specific terms of the contract of sale of a commercial property. The contract of sale utterly refuted the plaintiff's factual allegations and conclusively established a defense to the complaint as a matter of law.</p><p><i>Arco Acquisitions, LLC v. Tiffany Plaza, LLC</i>, NY Slip Op 00888 (2d Dep't February 21, 2024)</p><p><a href="https://www.nycourts.gov/reporter/3dseries/2024/2024_00888.htm">Here is the decision.</a><br /></p>Unknownnoreply@blogger.comtag:blogger.com,1999:blog-7638691432691498156.post-3981146610192603692024-03-02T00:06:00.004-05:002024-03-02T00:06:00.272-05:00Contract law.<p>A party repudiates a contract where, before the time of performance, that party puts it out of his power to keep the agreement. Besides giving the non-repudiating party an immediate right to sue for damages for total breach, the repudiation discharges the non-repudiating party's obligations to render performance in the future. </p><p><i>EPAC Tech., Inc. v. John Wiley & Sons, Inc.</i>, NY Slip Op 00933 (1st Dep't February 22, 2024)</p><p><a href="https://www.nycourts.gov/reporter/3dseries/2024/2024_00933.htm">Here is the decision.</a></p>Unknownnoreply@blogger.comtag:blogger.com,1999:blog-7638691432691498156.post-20988417316076747612024-03-01T00:02:00.000-05:002024-03-01T00:02:00.137-05:00Statutes of limitations.<p>An action to foreclose a mortgage is governed by a six-year statute of limitations, pursuant to CPLR 213[4]. Where the mortgage debt is accelerated, the entire balance of the debt accrues, and the statute of limitations begins to run on the entire debt.</p><p><i>Wilmington Trust Co. v. Yonkus</i>, NY Slip Op 00925 (2d Dep't February 21, 2024)</p><p><a href="https://www.nycourts.gov/reporter/3dseries/2024/2024_00925.htm">Here is the decision.</a><br /></p>Unknownnoreply@blogger.comtag:blogger.com,1999:blog-7638691432691498156.post-56500066791789436582024-02-29T00:04:00.000-05:002024-02-29T00:04:00.127-05:00Assumption of the risk.<p>Under the doctrine of primary assumption of risk, a voluntary participant in a sport or recreational activity is deemed to have consented to the commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation. Risks inherent in a sporting activity are those which are known, apparent, natural, or reasonably foreseeable consequences of participation. As a general rule, application of assumption of the risk should be limited to cases appropriate for absolution of duty, such as personal injury claims arising from sporting events, sponsored athletic and recreative activities, or athletic and recreational pursuits that take place at designated venues.</p><p><i>Alfieri v. State of New York</i>, NY Slip Op 00886 (2d Dep't February 21, 2024)</p><p><a href="https://www.nycourts.gov/reporter/3dseries/2024/2024_00886.htm">Here is the decision.</a></p>Unknownnoreply@blogger.comtag:blogger.com,1999:blog-7638691432691498156.post-24058467775006667512024-02-28T00:04:00.001-05:002024-02-28T00:04:00.149-05:00Comparative negligence.<p>In order to be entitled to summary judgment on the issue of a defendant's liability, the plaintiff does not bear the burden of establishing the absence of his own comparative negligence. However, the issue of the plaintiff's comparative negligence may be decided in the context of a summary judgment motion where the plaintiff moves for summary judgment dismissing a defendant's affirmative defense alleging comparative negligence.</p><p><i>Abramov v. Martinez</i>, NY Slip Op 00885 (2d Dep't February 21, 2024)</p><p><a href="https://www.nycourts.gov/reporter/3dseries/2024/2024_00885.htm">Here is the decision.</a><br /></p>Unknownnoreply@blogger.comtag:blogger.com,1999:blog-7638691432691498156.post-61375808677758961472024-02-27T00:08:00.003-05:002024-02-27T00:08:00.138-05:00Leave to enter a default judgment.<p>Pursuant to CPLR 3215, a plaintiff moving for leave to enter a default judgment must file proof of: (1) service of the summons and the complaint; (2) the facts constituting the claim; and (3) the defendant's default. In order to successfully oppose the motion, the defendant must provide a reasonable excuse for the default and demonstrate the existence of a potentially meritorious defense to the action. A corporation's failure to receive copies of process served upon the Secretary of State due to a breach of its own obligation to keep a current address on file with the Secretary of State does not constitute a reasonable excuse for its delay in appearing or answering the complaint, although there is no per se rule. In determining whether a reasonable excuse was demonstrated, a court should consider, among other factors, the length of time for which the address had not been kept current.</p><p><i>Bachvarov v. Khaimov</i>, NY Slip Op 00753 (2d Dep't February 14, 2024)</p><p><a href="https://www.nycourts.gov/reporter/3dseries/2024/2024_00753.htm">Here is the decision.</a><br /></p>Unknownnoreply@blogger.comtag:blogger.com,1999:blog-7638691432691498156.post-83468706066960479942024-02-26T00:05:00.002-05:002024-02-26T00:05:00.128-05:00A school's duty of care.<p>A school has a duty to exercise the same degree of care toward its students as would a reasonably prudent parent, and it will be held liable for foreseeable injuries proximately related to the absence of adequate supervision. The duty owed derives from the simple fact that the school, in assuming physical custody and control over its students, effectively takes the place of parents and guardians. The standard for determining whether a school has breached its duty is to compare the school's supervision and protection to that of a parent of ordinary prudence, placed in the same situation and armed with the same information.</p><p><i>J.B. v. Monroe-Woodbury Cent. Sch. Dist.</i>, NY Slip Op 00752 (2d Dep't February 14, 2024)</p><p><a href="https://www.nycourts.gov/reporter/3dseries/2024/2024_00752.htm">Here is the decision.</a></p>Unknownnoreply@blogger.comtag:blogger.com,1999:blog-7638691432691498156.post-11001212682372862712024-02-25T00:06:00.003-05:002024-02-25T00:06:00.240-05:00Attorneys' fees.<p>Plaintiff-cooperative owner did not establish its right to recover attorneys' fees from defendants under the commercial proprietary lease. Only a prevailing party is entitled to attorneys' fees, and to prevail, the party seeking fees must be successful on the central relief sought. This determination requires an initial consideration of the true scope of the dispute being litigated, followed by a comparison of what was achieved within that scope. Where the outcome of litigation is mixed and the relief awarded is not substantially favorable to either party, neither party can claim to be the prevailing party. Here, the true scope of the dispute includes both plaintiff's claim to recover past due maintenance and defendants breach of contract and negligence counterclaims which seek to recover substantial damages resulting from plaintiff's alleged failure to address and repair the condition causing the foul odors affecting defendants' unit.</p><p><i>49 E. Owners Corp. v. 825 Broadway Realty, LLC</i>, NY Slip Op 00796 (1st Dep't February 15, 2024)</p><p><a href="https://www.nycourts.gov/reporter/3dseries/2024/2024_00796.htm">Here is the decision</a>.</p>Unknownnoreply@blogger.comtag:blogger.com,1999:blog-7638691432691498156.post-21479846246765676772024-02-24T00:08:00.003-05:002024-02-24T00:08:00.250-05:00Appellate practice.<p>In reviewing a determination made after a nonjury trial, the Appellate Division's power is as broad as that of the trial court, and it may render a judgment that it finds warranted by the facts, bearing in mind that, in a close case, the trial court had the advantage of seeing and hearing the witnesses. Where the trial court's findings of fact rest, in large measure, on considerations relating to the credibility of witnesses, deference is owed to the trial court's credibility determinations.</p><p><i>Ali v. Rahaman</i>, NY Slip Op 00751 (2d Dep't February 14, 2024)</p><p><a href="https://www.nycourts.gov/reporter/3dseries/2024/2024_00751.htm">Here is the decision.</a><br /></p>Unknownnoreply@blogger.com