Sometimes during the course of litigation, through no fault of a litigant, his, her or their attorney becomes physically, mentally or legally incapable of representing the client. In such circumstances, being forced to proceed without the attorney could be prejudicial. CPLR 321(c) , which addresses such circumstances, provides: Death, removal or disability of attorney. If an attorney dies, becomes physically or mentally incapacitated, or is removed, suspended or otherwise

Summary judgment is a procedural device permitting a litigant to seek judgment without a trial in circumstances where all issues in a case can be decided by a judge as a matter of law. The rules related to motions for summary judgment can be found in CPLR 3212 . The Court of Appeals has described the virtues of summary judgment as follows: Since New York established its summary judgment procedure in 1921, summary judgment has proven a valuable, practical tool for resolving

Today’s Blog relates to extensions of time to serve a defendant under CPLR 306-b, a topic previously addressed by this Blog < HERE =">HERE</a>"> and < HERE =">HERE</a>"> . The background discussion in today’s Blog was taken from one of the linked prior Blogs. Under the present “commencement by filing” system, an action (or proceeding) (collectively, an “Action”) is commenced by filing (CPLR 304(a))the initiatory paper(s) with the “clerk of the court in the county in which

Disclosure in New York State court litigation is governed by Article 31 of the Civil Practice Law and Rules . In general, there “shall be full disclosure of all matters material and necessary in the prosecution or defense of an action, regardless of burden of proof….” CPLR 3101. “The words, ‘material and necessary,’ are … to be interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by shar

Many times, the applicable statute of limitations expires during the pendency of an already commenced action. No problem – right?, While generally speaking such an occurrence should not be a problem, issues may arise when an otherwise timely action is dismissed subsequent to the expiration of the limitations period. Depending on the nature of the dismissal, a plaintiff may be permitted to commence a new action notwithstanding the expiration of the applicable statute of lim

This BLOG has written extensively on issues related to residential mortgage foreclosure actions. Indeed, earlier this month, in “ PRETEXTUAL DE-ACCELERATION OF MORTGAGE DEBT ”, this BLOG provided an overview of the applicable statute of limitations in foreclosure, the calculation of the commencement thereof, and the acceleration and de-acceleration of mortgage debt. The Departments of the Appellate Divisions were not in agreement on some of these related issues and, accordi

If a plaintiff fails to prosecute an action dismissal for “want of prosecution” may be obtained pursuant to CPLR 3216 , which provides, in pertinent part: (a) Where a party unreasonably neglects to proceed generally in an action or otherwise delays in the prosecution thereof against any party who may be liable to a separate judgment, or unreasonably fails to serve and file a note of issue, the court, on its own initiative or upon motion, with notice to the parties, may dismis

Sometimes the Court renders a decision on a motion instead of issuing an order or judgment. In such cases it is often up to the prevailing litigant to take an additional step to effectuate the decision. In cases where Rule 202.48 of the Uniform Civil Rules for the Supreme Court and the County Court is applicable the prevailing party must move quickly or run the risk of losing the benefit of a coveted victory.

This BLOG has previously addressed issues related to Statutes of Limitations. See, among many others, < HERE =">HERE</a>"> , < HERE =">HERE</a>"> , < HERE =">HERE</a>"> , and < HERE =">HERE</a>"> . Earlier this year, this BLOG posted “ Revive A Time-Barred Claim Using § 17-101 of New York’s General Obligations Law ”, in which, in addition tothe renewal of expired Statutes of Limitation under GOL § 17–101, the purpose and history of Statutes of Limitation was addressed. St

CPLR 3215(c) , which encourages the prompt entry of default judgments, provides: If the plaintiff fails to take proceedings for the entry of judgment within one year after the default, the court shall not enter judgment but shall dismiss the complaint as abandoned, without costs, upon its own initiative or on motion, unless sufficient cause is shown why the complaint should not be dismissed.  A motion by the defendant under this subdivision does not constitute an appearance i

In keeping with this BLOG’s efforts to keep abreast of court practices and procedures promulgated to address COVID-19 concerns, practitioners should be aware of new foreclosure sale scheduling rules. By way of background, on July 24, 2020, Chief Administrative Judge Lawrence K. Marks issued Administrative Order 157/20 (“AO 157/20”) < HERE =">HERE</a>"> , which became effective on July 27, 2020 and established certain “procedures and protocols apply to the conduct of resident

In order for the conduct of business to proceed in an orderly fashion, folks need to be confident that, in general, the contracts that they enter into, particularly when “the parties set down their agreements in a clear, complete document” will “be enforced according to terms”. 159 MP Corp. v. Redbridge Bedford, LLC , 33 N.Y.3d 353, 358 (2019) (citations and internal quotation marks omitted). This is consistent with the notion that “ n New York, agreements negotiated at ar

Over the years, this Blog has addressed numerous issues involving mortgage foreclosures in New York. < HERE =">HERE</a>"> , < HERE =">HERE</a>"> , < HERE =">HERE</a>"> , < HERE =">HERE</a>"> < HERE =">HERE</a>"> , < HERE =">HERE</a>"> , < HERE =">HERE</a>"> , < HERE =">HERE</a>"> < HERE =">HERE</a>"> , < HERE =">HERE</a>"> , < HERE =">HERE</a>"> , < HERE =">HERE</a>"> , < HERE =">HERE</a>"> , < HERE =">HERE</a>"> , < HERE =">HERE</a>"> , < HERE =">HERE</a>"> , < HERE =">HER

Every now and then a litigant or counsel fails to meet a deadline or otherwise acts in an untimely manner. Sometimes there is a reasonable excuse and sometimes there is not. Several “saving” provisions in the CPLR are available to assist a litigant or counsel when deadlines are missed. Some such provisions are as follows: CPLR 2005 provides that “ pon an application satisfying the requirements of subdivision (d) of section 3012 or subdivision (a) of rule 5015, the court s

On August 19, 2020, District Administrative Judge, Hon. Andrew A. Crecca, issued a Memorandum regarding the “Return to In-Person Operations in the 10 th Judicial District, Suffolk County – Phase 4.1” (the “Memo”) < HERE =">HERE</a></strong>"> . According to the Memo, Phase 4.1 “builds upon our reopening efforts to date by providing for enhanced in-person operations in all courts throughout the District, the continued use of virtual technology where we have found it to be ap

Litigation can be a long and drawn out process. As a result, parties sometimes die during the pendency of a lawsuit. In such a case, CPLR § 1015 – Substitution Upon Death – is instructive and provides: (a) Generally.  If a party dies and the claim for or against him is not thereby extinguished the court shall order substitution of the proper parties. (b) Devolution of rights or liabilities on other parties.  Upon the death of one or more of the plaintiffs or defendants in

Generally, when a loan is made by a lender that is secured by real property, two of the documents delivered to the Lender by the borrower are a promissory note (which evidences the obligation to repay the borrowed sums) and a mortgage (which secures the obligation to repay the note by giving the lender a security interest in real property). If a loan secured by a mortgage goes into default and the lender decides to protect its rights through litigation, a choice must be made

It makes sense that a “plaintiff appears merely by bringing it.” Deutsche Bank Nat. Trust Co. v. Hall , ____ N.Y.S.3d ___, 2020 WL 4342753 (July 29, 2020) (citation and internal quotation marks omitted). Once served with process, a defendant must appear in an action to avoid a default. Section 320(a) of New York’s Civil Practice Law and Rules (the “CPLR”), which sets forth, inter alia, the manner in which a defendant can appear in an action provides that “ he defendant

This Blog has previously addressed “economic duress” and the “voluntary payment doctrine.” < HERE =">HERE</a>"> , < HERE =">HERE</a>"> and < HERE =">HERE</a>"> “Economic duress” is a theory upon which a “complaining party to void a contract and recover damages when it establishes that it was compelled to agree to the contract terms because of a wrongful threat by the other party which precluded the exercise of its free will.” 805 Third Ave. Co. v. M.W. Realty Assoc. , 58 N

On numerous occasions, this Blog has addressed issues surrounding certain notice obligations imposed on mortgage lenders foreclosing on residential property. For example, section 1303 of the Real Property Actions and Proceedings Law (“RPAPL”) requires that, under certain circumstances relating to residential property, a foreclosing mortgagee must send statutory notice to the mortgagor and tenants advising them, among other things, that they are in danger of losing their hom