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This is from the NYLJ Case Digest Summary – The Appellate Division remanded this case to consider equitably estopping the biological mother from denying her former partner’s parentage of her son. The former partner wanted access time with AH pendente lite and relied on court’s prior finding interim access was warranted to maintain consistency with AH’s experience with her. Here, the court addressed the interim access petition in view of AH’s best interest “despite absence…
In this case, the parties established a family trust with funds allegedly held  from Wife’s separate accounts and now Wife wants a distribution. With high income or asset families, or with grey divorces, family trusts may be an item to be seriously considered. Oppenheim v Oppenheim, 2019 NY Slip Op 00610, Decided on January 30, 2019, Appellate Division, Second Department: “The defendant’s main contention on this appeal is that the Supreme Court should have awarded…
This mistake was costly as the bank appears to have “waived the waiver.” A drafting suggestion may have been: “The standing defense was waived as defendant did not raise it in a pre-answer motion to dismiss or as an affirmative defense. But if (assuming arguendo) this court does not find the defense waived…. BAC Home Loans Servicing, LP v Alvarado, 2019 NY Slip Op 00584. Decided on January 30, 2019, Appellate Division, Second Department: “The defense…
The rules of evidence apply to motions for summary judgment, Wells Fargo Bank, N.A. v Moran, 2019 NY Slip Op 00637, Decided on January 30, 2019, Appellate Division, Second Department: “Proper service of RPAPL 1304 notice on the borrower or borrowers is a condition precedent to the commencement of a foreclosure action, and the plaintiff has the burden of establishing satisfaction of this condition (see JPMorgan Chase Bank, N.A. v Kutch, 142 AD3d 536
This is an example of where a homeowner won a battle but lost the war. It illustrates a problem of asserting the standing defense. US Bank Trust, N.A. v Williams, 2019 NY Slip Op 00634, Decided on January 30, 2019, Appellate Division, Second Department: “In March 2015, the plaintiff commenced this action to foreclose a mortgage alleging, inter alia, that the defendant Una Williams (hereinafter the defendant) had defaulted in her mortgage payment due July…
Creating a joint tenancy may affect a creditor’s right to enforce a judgment. Matter of New York Community Bank v. Bank of Am. N.A., NYLJ 1/29/19, Date filed: 2019-01-24, Court: Appellate Division, First Department, Case Number: 158084/17: “This appeal requires us to consider whether a presumption of joint tenancy with rights of survivorship in a safety deposit box also extends to its contents where only one of the persons who rented the box is a…
It may be a new name, but it’s the same business trying to avoid debt. Jack Williams Tire Co. v. The Tire Pl. of Queens Ltd., NYLJ 1/24/19, Date filed: 2019-01-15, Court: Supreme Court, Queens, Judge: Justice Robert McDonald, Case Number: 711068/2016: “An action for continuation of successor liability requires a plaintiff to show that the corporation was a mere continuation of its predecessor (see Broadway 26 Waterview, LLC v. Bainton, McCarthy & Siegel, LLC,…
At some point, a choice must be made as to an election of remedies. An unjust enrichment claim, also known as a quasi-contract or an implied contract, is meant to apply where there is no contract between parties, but one party is unfairly benefiting from the efforts of the other without providing compensation. If both claims are made, breach of contract and unjust enrichment, the court is obliged to dismiss either one or the other.…
At some point, a choice must be made as to an election of remedies. An unjust enrichment claim, also known as a quasi-contract or an implied contract, is meant to apply where there is no contract between parties, but one party is unfairly benefiting from the efforts of the other without providing compensation. If both claims are made, breach of contract and unjust enrichment, the court is obliged to dismiss either one or the other.…
A credit card company has two causes of action for credit card debt but when credit card agreements are changed due to mergers, etc., certain defenses may be available for certain causes of actions. Citibank NA v. Geyer, NYLJ 1/17/19, Date filed: 2019-01-14, Court: District Court, Nassau, Judge: Judge Ignatius Muscarella, Case Number: CV-045509-11: “First cause of action: Breach of Contract — It is well settled that a “plaintiff establishes a breach of contract action…