Friday, June 10, 2016

A fatally flawed motion for summary judgment in lieu of complaint.

Practice point:  The plaintiffs commenced this action to recover on a promissory note by motion for summary judgment in lieu of complaint pursuant to CPLR 3213. However, they made the motion returnable on a date prior to the expiration of the time within which the defendant had to appear in the action, which was a fatal jurisdictional defect.  The Appellate Division determined that the Supreme Court properly granted that branch of the defendant's motion which was to dismiss the action.

Student note:   The Appellate Division will not consider an appellant's contentions that are raised for the first time on appeal.

Case:  Bhanti v. Jha, NY Slip Op 04166 (2d Dep't June 1, 2016)

Here is the decision. 

Monday's issue:  An ineffective employment agreement and post-termination commissions.