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.
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 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.
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.
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.
In a dramatic case, a Suffolk County judge has cancelled a valid and existing note and mortgage. During the course of a foreclosure action, the bank, Indymac Bank, refused to cooperate in reasonable settlement negotiations, engaged in misleading tactics, could not establish the amount that was owed, and demanded full payment of the loan or foreclosure of the property. The court found such conduct to not be in good faith, particularly because an outcome that would have benefitted both the owner and bank was possible under the circumstances yet refused by the bank. Finding the bank’s conduct to be so egregious, the court cancelled the note and mortgage and barred the bank from ever again seeking to collect on the loan.
Claimant sought $5,000 from the City of New York for flooding in her home. The City claimed that it was not negligent in maintaining the sewer system, and that no matter what the cause, because of the torrential rain, any flooding was an act of G-d, excusing any misconduct by the City. The court found the City liable because it performed no inspection even though the City, as a municipality, had an obligation to periodically inspect the sewer and keep it clear from obstruction.
Plaintiff bank sued to collect on a note. Defendant claimed that a bank official orally extended the maturity date on its loan for an additional year so that defendant was not in default. Without denying the oral promise and the fact that negotiations had been undertaken, plaintiff claimed that the loan documents did not allow oral modifications. The court agreed with plaintiff and refused to consider the alleged oral extension of the note’s deadline. The court also decided that plaintiff did not waive the note’s maturity date, regardless of the alleged oral promises.
Plaintiff purchased a used car from a dealer. At the time of purchase, the car was already in need of servicing, and in the week that followed, additional problems arose. Plaintiff took the car to a local repair shop, which informed plaintiff that the car had many problems and was unsafe to drive. Plaintiff returned the car to the dealer for repairs. After the dealer returned the car to the plaintiff, the car was inspected by the same local repair shop that diagnosed the problems. Major problems were still found by the repair shop. Over a period of less than four weeks, repairs were made, but ultimately, the car required a new engine. At each stage of the repairs, plaintiff notified the dealer, but the dealer made no effort to make repairs and expressed no desire to assist the plaintiff. Unable to pay for the new engine, plaintiff sold the car for less than half of its purchase price. In plaintiff’s lawsuit against the dealer, the court determined that at the time that the car was sold it was not fit for its ordinary use and would fail to provide satisfactory and adequate service. The court found that the car had zero value at the time it was sold, and awarded the plaintiff the cost of the car plus plaintiff’s expenses.
Defendant was stopped by store security and charged with larceny after putting a number of items in her bag and then going to a different floor in the store without first paying for those items. Defendant argued, among other things, that there was no indication that she had any intent to steal or otherwise remove the items from the store. The court, critical of the store’s conduct, and noting the absence of any sign restricting the movement of goods between floors, agreed with the defendant and dismissed the charges.