Blog

No right to appeal.

Matter of State of New York v Richard TT., 2015 NY Slip Op 03591 (2d Dept. 2015)
“It is well settled that “[n]o appeal lies from a vacated judgment or order”
Just a reminder when an order is vacated on reargument or renewal.

The dismissal should have been without prejudice

GMAC Mtge., LLC v Guccione, 2015 NY Slip Op 03500 (2d Dept. 2015)
“On September 19, 2011, the Supreme Court, on the record, directed the dismissal of the complaint in this mortgage foreclosure action with prejudice, based upon both the plaintiff’s failure to appear at a court conference

CPLR 308(2) in action – the successful traverse

Washington Mut. Bank v Murphy, 2015 NY Slip Op 03520 (2d Dept. 2015)
(1) “According to the affidavit of service, a copy of the summons and complaint was served at the Noyack property upon ” JOHN DOE’ (NAME REFUSED), CO-TENANT” on May 26, 2007, which was the Saturday of Memor

Progressive cannot prove they mailed documents

Progressive Cas. Ins. Co. v Infinite Ortho Prods., Inc., 2015 NY Slip Op 03340 (2d Dept. 2015)
Assuming this is the standard affidavit, problems have arisen
“The defendant contends that the plaintiffs failed to establish, prima facie, that the denials of claims were timely and properly mailed

The hospital record admission is admissible (not necessarily as a business record)

Robles v Polytemp, Inc., 2015 NY Slip Op 03341 (2d Dept. 2015)
“The plaintiff contends that the Supreme Court erred in denying his request, made at the outset of the trial on the issue of damages, to redact entries in his hospital records which indicated that he was not wearing a seat belt at

The missing witness charge

Alli v Full Serv. Auto Repair, LLC, 2015 NY Slip Op 03308 (2d Dept. 2015)
The missing witness charge
“The plaintiff requested that the Supreme Court deliver a missing witness charge because of the failure of the defense to call Chinsamy as a witness. This request was refused and no such charg

Watering down 4518(a) to historic lows

Portfolio Recovery Assoc., LLC v Lall, 2015 NY Slip Op 03284 (1st Dept. 2015)
For anyone who is worried about what a reversal of Vivanne Etienne and the professional affidavit signing doctor could mean, you only need to read Portfolio to see what CPLR 4518(a) really means in the world of assigned d

MVAIC: you must provide coverage

Matter of Alam v Motor Veh. Acc. Indem. Corp., 2015 NY Slip Op 03298 (1st Dept. 2015)
“Petitioner was injured after being struck by a vehicle while crossing the street as he headed to his mosque for a prayer service. The driver pulled over, exited the vehicle, and approached petitioner. In re

Where venue motion is to be brought

“Where a demand to change venue claiming the designation of an improper county is opposed by a plaintiff, any subsequent motion to transfer venue must be made within 15 days after service of the demand, in the county designated by plaintiff (CPLR 511[b])”
“Here, after defendants&#8

Proofs insufficient under PA law

Quality Psychological Servs. v Infinity Prop. & Cas. Co., 2015 NY Slip Op 50645(U)(App. Term 1st Dept. 2015)
“While defendant-insurer submitted proof indicating that it properly rescinded the underlying insurance policy pursuant to Pennsylvania law based upon misrepresentations made by th