December 2009 Archives

Attempted Service at Foreclosed Property Insufficient

December 20, 2009

Lender's counsel had the defendant served with the summons and complaint at the property that it sought to foreclose and at another address listed with the parking violations bureau. The process server could not locate the defendant at the foreclosed property and, when told that the defendant lived at the second address, sought to serve the defendant at the second address. The defendant was not served personally at either address. The process server had no detailed information concerning the second address and did not serve the defendant at a third address, the address listed on the mortgage. After the time to respond expired, the lender moved for a default judgment. In denying the unopposed motion, the court determined that the process server failed to properly exercise due diligence in serving the summons and complaint. The court also dismissed the case because the lender did not own the note at the time the lawsuit was commenced.

Heart Attack Three Years after Accident Possibly Related

December 18, 2009

In February 2005, plaintiff was hit as he crossed a street. Plaintiff complained of chest pain and was treated for heart-related injures. Plaintiff suffered a heart attack in February 2008 and argued that the accident was the cause of the heart attack. Defendant's doctor stated that the heart attack did not seem related to the accident years earlier, although no cause was determined. Plaintiff's doctor stated that to a reasonable degree of medical certainty, the heart attack was related. The court refused to find that as a matter of fact the heart attack was unrelated to the accident and refused to dismiss the case.

Buyer's Death Requires Heirs to Close

December 15, 2009

Buyer entered into a contract to purchase a co-op. In connection with doing so, the buyer put his $230,000 deposit into escrow. Between his signing of the contract and closing, the buyer died. The seller argued that the contract was binding on the buyer's heirs and demanded that the heirs close. The heirs refused. The court found that the contract was binding on the buyer's heirs, and that no claim of impossibility or frustration of purpose sufficed to excuse performance. The heirs' refusal to closes was deemed a repudiation and breach.

Court Compels Borrower and Lender to "Split the Difference"

December 11, 2009

A foreclosure action reached an impasse when a borrower agreed to pay $2000 per month while the lender would accept no less than $3000. After noting that the court could allow the negotiations to stall, and the foreclosure to continue, the court, suspecting that the lender engaged in discriminatory lending, directed the borrower to pay $2500 per month and the lender to accept it.

Dogs That Attack Neighbor Not Euthanized

December 9, 2009

Town of Hempstead sued to have three dogs that attacked a neighbor deemed dangerous and euthanized. Although the injuries incurred were sever, the court found that they were not "serious" as required by statute, and did not meet other statutory requirements. Thus, although the Court felt that the dogs were dangerous and should be euthanized, it was without authority to order it. Instead, the Court required that the dogs undergo behavior evaluation, be muzzled in public and be treated as dangerous dogs.