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THE PROCESS SERVER IN THIS FORECLOSURE ACTION MET THE DUE DILIGENCE REQUIREMENTS OF CPLR 308 (4); THE COMPLAINT SHOULD NOT HAVE BEEN DISMISSED FOR LACK OF PERSONAL JURISDICTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants’ motion to dismiss for lack of personal jurisdiction should not have been granted. The process server for the bank in this foreclosure action satisfied the due diligence requirement for service pursuant to CPLR 308 (4):

There were four attempts to serve the defendants at their residence at times when they could reasonably have been expected to be found there, including attempts on a late weekday evening, an early weekday morning, a weekend evening, and a weekday afternoon … . As the plaintiff established by a preponderance of the credible evidence that personal jurisdiction was acquired over the defendants, the Supreme Court should have denied the defendants’ motion to dismiss the complaint insofar as asserted against them … and decided the plaintiff’s motion, inter alia, for summary judgment on the merits instead of, in effect, denying it as academic. Wilmington Trust Co. v Gewirtz, 2021 NY Slip Op 02562, Second Dept 4-28-21

 

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POLICY EXCLUSION WAS AMBIGUOUS, INSURER HAD A DUTY TO DEFEND.
DEFENDANT WAS ENTITLED TO NOTICE THE PEOPLE WERE GOING TO PRESENT EVIDENCE SHE TYPED IN THE COMBINATION TO A SAFE IN RESPONSE TO A REQUEST FROM A DETECTIVE, NEW TRIAL ORDERED (SECOND DEPT).
NO ONE WITNESSED FOUR-YEAR-OLD’S INJURY, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT PROPERLY GRANTED, PLAINTIFFS COULD NOT IDENTIFY THE CAUSE OF THE INJURY, INFANT PLAINTIFF SAID SHE WAS INJURED ON AN INFLATABLE SLIDE (SECOND DEPT).
ALTHOUGH THE CLADDING AND DRIP EDGE PLAINTIFF INSTALLED ON A PARTY WALL WAS A TRESPASS, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED ON THE DEFENDANT’S REQUEST FOR AN INJUNCTION DIRECTING THE REMOVAL OF THE CLADDING AND DRIP EDGE (SECOND DEPT).
JUDGE’S SUA SPONTE DISMSSAL OF THE COMPLAINT IN THIS FORECLOSURE ACTION DEPRIVED PLAINTIFF OF NOTICE AND A CHANCE TO BE HEARD, A VIOLATION OF DUE PROCESS (SECOND DEPT).
DEFENDANT SCHOOL DISTRICT DID NOT DEMONSTRATE IT DID NOT HAVE CONSTRUCTIVE NOTICE OF THE TEACHER’S PROPENSITY FOR SEXUAL ABUSE OR THE REPEATED, LONG-TERM ABUSE OF PLAINTIFF STUDENT (SECOND DEPT).
BY SUBMITTING PLAINTIFF’S DEPOSITION TESTIMONY IN SUPPORT OF DEFENDANT’S SUMMARY JUDGMENT MOTION DEFENDANT FAILED TO MAKE OUT A PRIMA FACIE CASE IN THIS SLIP AND FALL CASE, THE MOTION WAS PROPERLY DENIED WITHOUT CONSIDERATION OF THE OPPOSING PAPERS (SECOND DEPT).
SEPARATE COUNTS FOR A CONTINUING OFFENSE RENDERED INDICTMENT MULTIPLICITOUS.

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SUPREME COURT SHOULD NOT HAVE, SUA SPONTE, DETERMINED DEFENDANT IN THIS FORECLOSURE... PETITIONER’S APPLICATION FOR ACCESS TO RESPONDENT’S NEIGHBORING...