Restoring a case to the calendar.

When a plaintiff has failed to file a note of issue by a court-ordered deadline, restoration of the action to the active calendar is automatic, unless either a 90-day notice has been served pursuant to CPLR 3216 or there has been an order directing dismissal of the complaint pursuant to 22 NYCRR 202.27. In the absence of those two circumstances, the court need not consider whether the plaintiff had a reasonable excuse for failing to timely file a note of issue.

Adams v. Frankel, NY Slip Op 00939 (2d Dep't February 19, 2025)

Here is the decision.

Indemnification and contribution.

Common-law indemnification involves an attempt to shift the entire loss from one who is compelled to pay for a loss, without regard to his own fault, to another person who should more properly bear responsibility for that loss. The key element of a common-law cause of action for indemnification is not a duty running from the indemnitor to the injured party, but, rather, is a separate duty owed to the indemnitee by the indemnitor. The predicate of common-law indemnity is vicarious liability without actual fault on the part of the proposed indemnitee.

In order to sustain a third-party cause of action for contribution, a third-party plaintiff is required to show that the third-party defendant owed it a duty of reasonable care independent of its contractual obligations, if any, or that a duty was owed to the plaintiffs as injured parties and that a breach of that duty contributed to the alleged injuries. Under the latter theory of contribution, all that is required is that two people be held liable for the same injury.

25-86 41st St., LLC v. Chong, NY Slip Op 00938 (2d Dep't February 19, 2025)

Here is the decision.

Attorneys' fees.

Plaintiffs' first cause of action is dismissed to the extent that it seeks attorneys' fees. Plaintiffs may not rely on defendant's confession of judgment, executed on May 28, 2020, to collect attorneys' fees. The instrument confessed judgment for, among other things, "reasonable attorney's fees incurred to enforce the judgment." However, on August 13, 2019, the Legislature amended CPLR 3218 to prohibit a party from enforcing a confession of judgment against a non-resident of New York State such as defendant. The confession also was not an agreement to pay attorneys' fees, but, at most, was merely evidence of an agreement.

Nor may plaintiffs rely on the parties' settlement agreement to obtain attorneys' fees. The agreement provided that in the event of a default of any settlement payment, plaintiffs "may file a confession of judgment" for the amount owed, plus interest, costs, "and reasonable attorney's fees actually incurred to enforce the judgment." Thus, the parties agreed that plaintiffs could receive attorneys' fees through the filing of the confession of judgment, which plaintiffs did not file. Moreover, the settlement agreement contemplated that plaintiffs could obtain attorneys' fees through, and only through, the process of enforcing the confession of judgment. Plaintiffs did not use that process; instead, they brought this plenary action to enforce the settlement agreement. Absent any agreement, statute, or rule allowing plaintiffs to collect attorneys' fees for enforcing the settlement agreement, plaintiffs cannot obtain them.

Upfront Megatainment, Inc. v. Thiam, NY Slip Op 00932 (1st Dep't February 18, 2025)

Here is the decision.

Contract law.

The cause of action for tortious interference with contract is dismissed because there was no breach of contract.

Vigliano Assoc., Ltd. v. Gaines, NY Slip Op 00934 (1st Dep't February 18, 2025)

Here is the decision.

Res judicata.

Under the doctrine of res judicata, or claim preclusion, a disposition on the merits bars litigation between the same parties, or those in privity with them, of a cause of action arising out of the same transaction or series of transactions as a cause of action that either was raised or could have been raised in the prior proceeding. A party seeking to assert res judicata must show the existence of a prior judgment on the merits between the same parties, or those in privity with them, involving the same subject matter. Here, the defendants established, prima facie, that the claims raised by the plaintiff in this action were previously presented in the administrative proceeding and the subsequent CPLR article 78 proceeding. Although the administrative order of disposition was entered upon the defendants' failure to appear at the administrative hearing, a default judgment is a judgment on the merits.

Alarcon v. Henry, NY Slip Op 00838 (2d Dep't February 13, 2025)

Here is the decision.

Motions for recusal.

Allegations that a judge is biased or prejudiced must be based upon something other than rulings in the case.

McNaughton v. 5 W. 14 Owners Corp., NY Slip Op 00831 (1st Dep't February 13, 2025)

Here is the decision.

Vacating a default in opposing a motion.

A party seeking to vacate an order entered upon a default in opposing a motion must demonstrate a reasonable excuse for the default and a potentially meritorious opposition to the motion. Although a court has the discretion to accept law office failure as a reasonable excuse, pursuant to CPLR 2005, law office failure does not constitute a justifiable excuse where there is a pattern of willful default and neglect, or where the allegations of law office failure are conclusory, undetailed, and unsubstantiated.

Adams v. 161 Ct. St., LLC, NY Slip Op 00837 (2d Dep't February 13, 2025)

Here is the decision.

A release provision in a separation agreement.

Order and judgment which granted the petition brought pursuant to CPLR article 75 for a permanent stay of an arbitration proceeding and denied the cross-petition to set aside a separation agreement is affirmed.

The release provision in the separation agreement is clear and unambiguous on its face, encompassing all claims, known or unknown, that the defendant "had, has or may have," arising from her employment with the petitioner, including the discrimination and related claims asserted in her arbitration demand. The separation agreement was knowingly and voluntarily entered into, as the defendant admittedly signed the agreement without giving it more than a glance, even though she was given seven days to review it, consult an attorney, and negotiate material changes. Moreover, the defendant's employment agreement provided for post-termination payments at the petitioner's option, for which a release may be required; the separation agreement expressly advised the defendant to consult an attorney; and sufficient consideration was provided in that the petitioner offered to make over $29,000 in post-termination payments that were not guaranteed by the employment agreement and were not unpaid wages earned while the defendant was employed. To that end, even the $4,640.16 paid after the defendant signed the separation agreement, which were not earned wages, is sufficient consideration for the defendant's release.

Matter of Balyasny Asset Mgt., L.P. v. Liu, NY Slip Op 00822 (1st Dep't February 13, 2025)

Here is the decision.

Court holiday.

A renewed judgment.

Plaintiff's motion for summary judgment in lieu of complaint for a renewed judgment pursuant to CPLR 5014 is granted.  Plaintiff made a prima facie showing of his entitlement to a renewed judgment under CPLR 5014(1) by demonstrating that, to date, only a nominal payment of the underlying debt has been recovered; thus, defendant has not satisfied the judgment.  In opposition, defendant failed to raise an issue of fact.

Zimmerman v, Stephenson, NY Slip Op 00374 (1st Dep't February 6, 2025)

Here is the decision.

Severance of claims.

The court may order a severance of claims in furtherance of convenience or to avoid prejudice, or the court may order a separate trial of any claim or of any separate issue. The grant or denial of a request for severance is a matter of judicial discretion, which should not be disturbed on appeal absent a showing of prejudice to a substantial right of the party seeking severance. Severance has been found appropriate where individual issues predominate concerning particular circumstances applicable to each of a number of plaintiffs and there is the possibility of confusion for the jury.

Here, individual issues predominate concerning the particular circumstances applicable to each of the seven plaintiffs' claims, and a single trial would prove unwieldy and confuse the trier of fact. Accordingly, the defendant's motion which was pursuant to CPLR 603 to sever the causes of action of each of the plaintiffs for trial is granted.

Adamow v. Northport-East Northport Union Free Sch. Dist., NY Slip Op 00643 (2d Dep't February 5, 2025)