On September 11, 2019, the Second Department issued a decision in EMC Mtge. Corp. v. Walker, 2019 NY Slip Op. 06474, holding that it was error to vacate a default when there was no reasonable excuse for the default, explaining: In order to vacate a default in appearing at a scheduled court conference, a plaintiff... Read more »
Blogs
Posts Categorized: Court Rules/Procedures
Dismissal of Foreclosure Action for Failure to Prosecute Vacated
On September 11, 2019, the Second Department issued a decision in U.S. Bank Natl. Assn. v. Spence, 2019 NY Slip Op. 06529, vacating the dismissal of a foreclosure action for failure to prosecute, explaining: A pleading cannot be dismissed pursuant to CPLR 3216(a) unless a written demand is served upon the party against whom such... Read more »
Opportunity to Comment on Proposed Changes to Commercial Division Rules
The Office of Court Administration has asked for public comment on three proposed rule changes. First, is a proposed amendment to Commercial Division Rule 1 to facilitate remote video appearances by counsel. E-mail comments on this proposal to rulecomments@nycourts.gov by September 30, 2019. Second, is a proposed amendment to Commercial Division Rule 6 to require... Read more »
Justice Masley Updates Part Rules
Justice Andrea Masley of the New York County Commercial Division recently updated her individual practices.
Out-of-State Business’s Failure to Register in New York Caused it to Lack Standing to Sue
On July 24, 2019 Justice Borrok of the New York County Commercial Division issued a decision in Intelligent Tech. & Design, D.O.O. v. NY Renaissance Corp., 2019 NY Slip Op. 32256(U), holding that an out-of-state business’s failure to register in New York caused it to lack standing to sue, explaining: Section 808(a) of the New York... Read more »
Commercial Division Justice Will Not Stay First-Filed Securities Act Case in Favor of Later-Filed Action in SDNY
On June 21, 2019, Justice Ostrager of the New York County Commercial Division issued a decision in Hoffman v. AT&T Inc., 2019 NY Slip Op. 31811(U), refusing to stay a first-filed Securities Act case in favor of a later-filed Securities Act action in federal court, explaining: Prior to the creation of the Commercial Division of... Read more »
GBL 13 Claim for Malicious Service of Process on the Sabbath Dismissed for Lack of Allegations of Malice
On May 28, 2019 Justice Knipel of the Kings County Commercial Division issued a decision in Hargrove v. Hargrove-Boynton, 2019 NY Slip Op. 31632(U), dismissing a GBL 13 claim for malicious service on the sabbath for lack of allegations of malice, explaining: Contrary to defendant’s contention, she is not entitled to a hearing on whether... Read more »
Justice Friedman Updates Part Rules
Justice Marcy S. Friedman of the New York County Commercial Division recently updated her individual practices.
Remedy for Motion Court’s Refusal to Sign Order to Show Cause is Appeal, Not Re-submission to a Different Judge
On June 12, 2019, the Second Department issued a decision in Cypress Hills Mgt., Inc. v. Lempenski, 2019 NY Slip Op. 04677, holding that a litigant’s remedy if a judge refuses to sign an order to show cause is an appeal, not to resubmit the order to a different judge, explaining: After defaulting in this... Read more »
Court Should Have Vacated Note of Issue Where Discovery Not Complete
On June 7, 2019, the Fourth Department issued a decision in Backer & Assoc., LLC v. PPB Eng’g & Sys. Design, Inc., 2019 NY Slip Op. 04541, holding that a court should have vacated a Note of Issue because discovery was not complete, explaining: We agree with defendants that Supreme Court erred in denying that... Read more »