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)

Premises liability.

Liability may attach to an out-of-possession landowner who has affirmatively created a dangerous condition or defect. However, here plaintiff provided nothing more than conjecture concerning allegedly improper building construction. She presented no evidence that any code or regulation was violated by the building's construction or design, that any violations were issued based on improper drainage, or that there were any prior accidents or complaints of water or ice accumulation in the parking area. Moreover, the fact witness who made these claims had no demonstrated expertise in this area, which is not within the ambit of common experience. The complaint is dismissed.

Maignan v. Watsky & Damm, Inc., NY Slip Op 00398 (1st Dep't January 28, 2025)

Here is the decision.

Contract law.

The lease provides for attorneys' fees regardless of default or merit, in a dispute between a residential co-op and a shareholder tenant. This provision is unenforceable as unconscionable. Enforcing such a provision would produce an unjust result because it would dissuade aggrieved parties from pursuing litigation and preclude tenant-shareholders from making meaningful decisions about how to vindicate their rights in legitimate instances of landlord default.

Kasowitz, Benson, Torres & Friedman, LLP v. JPMorgan Chase Bank, N.A., NY Slip Op 00396 (1st Dep't January 28,. 2024)

Here is the decision.

Court holiday.

Freedom of Information Law (FOIL).

In order to promote open government and public accountability, FOIL imposes a broad duty on government to make its records available to the public. To this end, FOIL provides that all records of a public agency are presumptively open to public inspection and copying unless otherwise specifically exempted,

Here, the Appellate Division determined that the Supreme Court erred in dismissing this proceeding on the basis that it was rendered academic by the dismissal of a separate CPLR article 78 proceeding in which the petitioner was one of the parties seeking to annul an agency determination. FOIL does not require that the party requesting records make any showing of need, good faith, or legitimate purpose. The underlying premise is that the public is vested with an inherent right to know and that official secrecy is antithetical to our form of government. The standing of one who seeks access to records under FOIL is as a member of the public, and is neither enhanced nor restricted because the person also is a litigant or a potential litigant.

FOIL exemptions are construed narrowly, and an agency has the burden of demonstrating that an exemption applies by articulating a particularized and specific justification for denying access. When relying upon an exemption, it is the agency's burden to demonstrate that the requested material falls squarely within a FOIL exemption. In order to meet its burden, the party seeking exemption must present specific, persuasive evidence that the material falls within the exemption. Conclusory assertions that are not supported by any facts are insufficient.

Matter of Supinsky v. Town of Huntington, NY Slip Op 00324 (2d Dep't January 22, 2024)

Here is the decision.

Striking an errata sheet.

Defendant's motion to strike plaintiff's errata sheet is granted. Plaintiff's proffered corrections are critical, substantive changes that may materially alter plaintiff's original deposition testimony as to the basis for defendant's alleged negligence, specifically, liquid on the floor causing plaintiff to slip.

Moore-Reason v. Manhattan Coll., NY Slip Op 00403 (1st Dep't January 28, 2024) 

Here is the decision.

Appellate practice.

The order at issue is an evidentiary ruling from which there is no intermediate appeal. In addition, since the initial briefing on the appeal, a final judgment has been entered, which moots the appeal from this intermediate order.

Moghtaderi v. Apis Capital Advisors, LLC, NY Slip Op 00402 (1st Dep't January 28, 2024)

Here is the decision.

Fraud claims.

The elements of a cause of action for fraud are a material misrepresentation of a fact, knowledge of its falsity, an intent to induce reliance, justifiable reliance by the plaintiff, and damages. Where a fraud cause of action is based on an omission or concealment of material fact, the plaintiff must also allege that the defendant had a duty to disclose material information and failed to do so. The elements of a cause of action to recover for constructive fraud are the same as those to recover for actual fraud, with the crucial exception that the element of the defendant's knowledge of the falsity of his representation is replaced by the plaintiff's proving the existence of a fiduciary or confidential relationship warranting the trusting party to repose his confidence in the defendant, and, therefore, to relax the care and vigilance that he would otherwise exercise. A cause of action sounding in fraud must be pleaded with particularity, pursuant to CPLR 3016(b). CPLR 3016(b) is satisfied when the facts suffice to permit a reasonable inference of the alleged misconduct.

Ofman v. Richland, NY Slip Op 00327 (2d Dep't January 22, 2024)

Here is the decision.

Failure to state a claim.

On a motion to dismiss pursuant to CPLR 3211(a)(7), the court must afford the pleading a liberal construction, accept the facts as alleged in the pleading to be true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory. Where the plaintiff fails to assert facts in support of an element of the claim, or if the factual allegations and inferences to be drawn from them do not allow for an enforceable right of recovery, dismissal of the cause of action is warranted. Claims consisting of bare legal conclusions with no factual specificity are insufficient to survive a motion to dismiss.

Pinkesz v. Massachusetts Mut. Life Ins. Co., NY Slip Op 00343 (2d Dep't January 22, 2024)

Here is the decision.

Contract law.

The Appellate Division found that Supreme Court properly granted the property owner summary judgment on its cause of action for breach of contract. The owner established that the property manager breached its obligations under the parties' management agreement by failing to take steps that would have prevented commercial tenants from receiving electricity at the owner's expense for a period of multiple years in violation of their leases. The agreement's limitation of liability clause, on which the property manager relies, provides that the property manager "shall not be liable to the owner for any loss or damage not caused primarily by the [property manager's] own negligence orfailure to comply with its obligations hereunder." Strictly construing the clause against the property manager, which is the party seeking to avoid liability, the terms of the limited liability clause do not protect it because its own breach of the management agreement was a direct and primary cause of the owner's losses, which would not have occurred but for the property manager's failure to fulfill its contractual obligations.

Furthermore, the property manager did not submit evidence sufficient to warrant dismissal based on the affirmative defense of failure to mitigate damages, as that defense does not preclude the grant of summary judgment to the owner on the issue of liability.

Fourth Ave. Owners Corp. v. Douglas Elliman Prop. Mgt., NY Slip Op 00375 (1st Dep't January 23, 2024)

Here is the decision.

Vacatur after one year.

Even after expiration of the one-year limitations period set forth in CPLR 5015, a court may vacate its own order or judgment for sufficient reason and in the interest of substantial justice. There is no basis for an extension of the one-year period where the party seeking the extension fails to demonstrate a reasonable excuse for a lengthy delay in moving to vacate the order or judgment.

U.S. Bank N.A. v. Tait, NY Slip Op 00344 (2d Dep't January 22, 2024)

Here is the decision.

Premises liability.

Under the storm-in-progress doctrine, a property owner will not be held liable in negligence for a plaintiff's injuries sustained as the result of an icy condition occurring during an ongoing storm or for a reasonable time thereafter.

Wechsler v. Ave. L, LLC, NY Slip Op 00347 (2d Dep't January 22, 2024) 

Here is the decision.

Insufficient affirmative defenses and counterclaims.

In this foreclosure action, the Appellate Division affirmed the granting of plaintiff's motion for summary judgment dismissing defendant's affirmative defenses and counterclaims.

Defendant did not establish that plaintiff or its predecessor lenders or servicers frustrated her performance under the terms of the subject note and mortgage. While she may have experienced frustration in dealing with various lenders and servicers, she proffers no evidence that they prevented or frustrated her from making payments on the indebtedness or rejected or returned payments.

Defendant's claim of estoppel is unsubstantiated. In order to establish an estoppel, a party must prove that it relied upon another's actions, its reliance was justifiable, and that, in consequence of such reliance, it prejudicially changed its position. Here, there is nothing in the record that reflects any representation by plaintiff or its predecessors that would have induced defendant's reliance in obtaining a new modification agreement. There are no representations that plaintiff or its predecessors promised to modify her loan, and to the extent defendant claims that delay in processing her loan modification applications increased her indebtedness, any dispute about the amount owed would be resolved by a referee and does not affect the validity of the mortgage. For the same reason, defendant's claim of offset was dismissed.

Defendant's claim that plaintiff or its predecessors violated General Business Law § 349 is likewise unavailing. An act or practice is consumer-oriented when it has a broader impact on consumers at large. Conduct must extend beyond a particular contractual relationship, because the consumer-oriented element precludes a General Business Law § 349 claim based on private contract disputes, unique to the parties. Defendant alleges only purported actions taken against her related to her loan, not actions that were recurring and harmful to the public at large.

Nor has defendant raised any triable issues of fact with respect to her claim that plaintiff or its predecessors breached the terms of the note and mortgage. The correspondence submitted in support of her claim reflects that plaintiff and its predecessors explained changes in monthly payments and provided loan payment histories and escrow statements. The motion court's dismissal of both the breach of contract claim and the breach of the covenant of good faith and fair dealing defense was likewise not in error, as the allegations for each were duplicative and similarly unavailing.

Nor does the defense of unclean hands survive. Even accepting the truth of defendant's allegations, plaintiff was under no obligation to modify the loan or respond to defendant's questions consistent with her time frame, and there is nothing immoral or unconscionable about its decision to proceed with foreclosure.

Defendant's fraud defense, in which she claims that plaintiff told her that her loan modification would be reviewed, inducing her reliance on a timely response and foreclosing opportunities to obtain other financing, lacks evidentiary support that plaintiff made any specific representations to her in that regard, much less any material misrepresentations of fact, a necessary component of a fraud claim.

As defendant's counterclaims are largely reflective of her affirmative defenses, they suffer from the same issues, and were also properly dismissed.

Deutsche Bank Natl. Trust Co. v. Marino, NY Slip Op 00374 (1st Dep't January 23, 2024)

Here is the decision.

Spoliation.

Under the common-law doctrine of spoliation, when a party negligently loses or intentionally destroys key evidence, the responsible party may be sanctioned under CPLR 3126. The Supreme Court has broad discretion in determining what, if any, sanction should be imposed for spoliation of evidence. A party that seeks sanctions for spoliation of evidence must show that the party having control over the evidence possessed an obligation to preserve it at the time of its destruction, that the evidence was destroyed with a culpable mind, and that the destroyed evidence was relevant to the party's claim or defense such that the trier of fact could find that the evidence would support that claim or defense. A culpable state of mind for the purposes of a spoliation sanction includes ordinary negligence. However, in the absence of pending litigation of notice of a specific claim, a defendant should not be sanctioned for discarding items in good faith and pursuant to its normal business practices.

Gordon v. Field, NY Slip Op 00308 (2d Dep't January 22, 2024)

Here is the decision.

Expert opinions.

The parties' conflicting expert affidavits raise issues of fact and credibility that cannot be resolved on a motion for summary judgment.

Legrand v. USC-NYCON, LLC, NY Slip Op 00379 (1st Dep't January 23, 2024)

Here is the decision.

Extending time.

Pursuant to CPLR 306-b, a court may, in the exercise of discretion, grant a motion for an extension of time to effect service for good cause shown or in the interest of justice. In order to establish good cause, a plaintiff must demonstrate reasonable diligence in attempting service. If good cause for an extension is not established, courts must consider the broader interest of justice standard of CPLR 306-b. Under the interest of justice standard, the court may consider diligence, or lack thereof, along with any other relevant factor, including expiration of the Statute of Limitations, the meritorious nature of the cause of action, the length of delay in service, the promptness of a plaintiff's request for the extension of time, and prejudice to defendant.

21st Mtge. Corp. v. Akter, NY Slip Op 00413 (2d Dep't January 29, 2024)

Here is the decision.

Property law.

As a general rule, when lands described in a conveyance are bounded by a street, highway or road, the conveyance is deemed to pass title to the center of the abutting roadway. The centerline presumption can be rebutted by a showing that the grantor intended to limit the grant to the edge of the road. An instrument creating or transferring an estate or interest in real property must be construed according to the parties' intent, so far as it can be gathered from the whole instrument and is consistent with the rules of law. Where the language used in a deed is ambiguous so that it is susceptible of more than one interpretation, the courts will look beyond the written instrument to the surrounding circumstances.

2832 Linden Blvd. Realty, LLC v. Health Ins. Plan of Greater N.Y., NY Slip Op 00302 (2d Dep't January 22, 2024)

Here is the decision.

Sidewalk defects.

Plaintiff failed to demonstrate prima facie that defendants had constructive notice of the alleged defect in the sidewalk abutting their building, since plaintiff and representatives of defendant all testified that they never noticed any sidewalk defect in the four years before plaintiff's accident. Plaintiff testified that certain photographs accurately depicted the condition in the area of her accident at the time she tripped and fell, rendering those photographs admissible. The parties' testimony and the photographs, which show a visible line or gap across the sidewalk, thus present an issue of fact as to whether the alleged sidewalk defect was sufficiently visible and apparent to permit defendant's employees to discover and remedy it. The court properly declined to consider Google map photos taken two or more years before the accident, absent any evidence that those photos represent the condition of the sidewalk on the date of the accident.

The court denied plaintiff's motion to strike the affirmative defense of comparative negligence. In light of plaintiff's testimony that she did not see the sidewalk because she was looking straight ahead, it is for the jury to consider whether plaintiff failed to see the sidewalk defect, thereby contributing to her accident.

Plaintiff's motion for summary judgment on the issue of liability is denied.

Yanky v. 2839 Bainbridge Ave. Assoc., LLC, NY Slip Op 00301 (1st Dep't January 21, 2024)

Here is the decision.

Medical malpractice.

The elements of a medical malpractice cause of action are (1) a deviation or departure from accepted community standards of practice and (2) that the departure was a proximate cause of the plaintiff's injuries. When moving for summary judgment, a defendant has the burden of establishing the absence of any departure from good and accepted medical practice or that the plaintiff was not injured thereby. If the defendant makes that showing, the plaintiff, in opposition, must submit evidentiary facts or materials to rebut the defendant's prima facie showing, but only as to those elements on which the defendant met the prima facie burden.

Chillious v. Edouard, NY Slip Op 00209 (2d Dep't January 15, 2024)

Here is the decision.

Account stated.

An account stated is an agreement between parties to an account based upon prior transactions between them with respect to the correctness of the account items and balance due. An agreement may be implied where a defendant retains bills without objecting to them within a reasonable period of time, or makes partial payment on the account.

Here, the plaintiff established its prima facie entitlement to judgment as a matter of law on the second and fourth causes of action, seeking recovery on an account stated, by submitting evidence that the defendant received and retained, without objection, the invoices that the plaintiff sent to him seeking payment for professional services rendered, setting forth the billable hours expended, and identifying the services rendered. In opposition, the defendant failed to raise a triable issue of fact.

Steven Cohn, P.C. v. Freedman, NY Slip Op 00242 (2d Dep't January 15, 2024)

Here is the decision,.

Age discrimination claims.

The Appellate Division affirmed the denial of defendants' motion for summary judgment dismissing plaintiff's City Human Rights Law claim based on age discrimination, as the evidence, including plaintiff's own testimony as corroborated by three witnesses, raises issues of fact as to whether plaintiff was treated differently or less well than other employees because of her age. Contrary to defendants' contention, plaintiff does not need to show an adverse employment action in order to establish a prima facie case of discrimination under the City Human Rights Law.

Lopez v. Trahan, NY Slip Op 00274 (1st Dep't January 16, 2024)

Here is the decision.

Discovery disputes.

The resolution of discovery disputes and the nature and degree of the penalty to be imposed pursuant to CPLR 3126 are matters within the sound discretion of the motion court. Pursuant to CPLR 3126(3), "[i]f any party . . . refuses to obey an order for disclosure or willfully fails to disclose information which the court finds ought to have been disclosed[,] the court may make such orders with regard to the failure or refusal as are just," including dismissal of the action. This statute broadly empowers a trial court to craft a conditional order, which imposes a sanction, unless, within a specified time, the resisting party submits to the disclosure. If a party fails to comply with the order by the specified date, the conditional order becomes absolute, In order to be relieved of the impact of a conditional order issued pursuant to CPLR 3126, a party must demonstrate a reasonable excuse for their failure to comply with the conditional order and the existence of a meritorious claim or defense.

Winters v. City of New York, NY Slip Op 00245 (2d Dep't January 15, 2024)

Here is the decision.

Nondisclosure agreements.

Supreme Court properly concluded that terms of the nondisclosure agreement (NDA) covered all of plaintiff's claims. The language of the NDA is unambiguous as to whether plaintiff agreed to waive future claims, as it expressly specified that plaintiff was releasing claims "arising prior to the signing" of the agreement and claims arising at "any time in the future after the signing" of the agreement. Despite plaintiff's position otherwise, a clause releasing future claims as to the very matter in controversy does not contravene public policy.

Even supposing that the NDA was signed under duress, plaintiff ratified the document by accepting its benefits over a five-and-a-half-year period. As the motion court found, plaintiff received approximately $9 million from defendant after signing the NDA, including a $100,000 stipend that plaintiff received every month throughout the life of the NDA. Plaintiff accepted each payment without protest and only commenced this action seeking to disaffirm the NDA three months after the payments ceased. To this date, plaintiff has not returned any portion of the benefits she received under the NDA.

Ganieva v. Black, NY Slip Op 00271 (1st Dep't January 16, 2024)

Here is the decision.

Contract law.

Where a defendant-seller is the party moving for summary judgment dismissing a cause of action for specific performance of a contract for the sale of real property, he has the burden of demonstrating the absence of a triable issue of fact regarding whether the plaintiff buyer was ready, willing, and able to close. In addition, the defendant-seller must demonstrate, prima facie, that the plaintiff buyer was in default.

534 Flatbush Holdings, LLC v. Solaris Props., LLC, NY Slip Op 00207 (2d Dep't January 15, 2024)

Here is the decision.

Appellate practice.

The Appellate Division has no discretionary authority to reach an unpreserved issue in the interest of justice in an article 78 proceeding challenging an administrative determination.

Matter of Tsevilsky v. New York State Div. of Hous. & Community Renewal, NY Slip Op 00282 (1st Dep't January 16, 2024)

Here is the decision.

Payment on settled actions.

The purpose of CPLR 5003-a is to encourage the prompt payment of damages in settled actions. Under CPLR 5003-a(b), when "the settling defendant is a municipality or any subdivision thereof . . . , it shall pay all sums due to any settling plaintiff within ninety days of tender, by the settling plaintiff to it, of duly executed release and a stipulation discontinuing action executed on behalf of the settling plaintiff." If the settling defendant fails to pay the sum due under the settlement agreement within 90 days of tender of the required documents, the plaintiff may, without further notice, pursue the entry of a judgment in the amount of the settlement, plus interest, costs, and disbursements. A judgment predicated upon a defendant's failure to make timely payment may not be entered where the plaintiff tenders a defective general release or a defective stipulation of discontinuance following the settlement.

Here, the general releases provided by the plaintiffs were defective. Therefore, the releases were insufficient to trigger the 90-day period within which the defendants were required to make payment of the settlement amount, and, accordingly, the plaintiffs were not entitled to seek a judgment including interest, costs, and disbursements based on nonpayment under CPLR 5003-a(e).

Raymond v. City of New York, NY Slip Op 00120 (2d Dep't January 8, 2024)

Here is the decision.

George Washington's Inauguration New York 1789

Arbitrability.

The arbitration clause in the parties' agreement provided that "any unresolved controversy or claim shall be decided by arbitration administered by the American Arbitration Association [AAA], or such other arbitrator as the parties may mutually agree to use." This language, which indicates that the parties did not specifically select the AAA, let alone incorporate its rules, does not demonstrate that the parties clearly and unmistakably submitted the question of arbitrability to an arbitrator, and so the court makes the determination.

Provenance Hotel Partners Fund I, LLC v. GCKC Provenance, LLC, NY Slip Op 00201 (1st Dep't January 14 2024)

Here is the decision.

Avoiding service.

Defendants' motion to vacate the default judgments against them is denied, in accordance with CPLR 317. Defendants failed to update their registered forwarding and office addresses with the Secretary of State, even after they were named as defendants and failed to appear in another action in which they were served in accordance with Business Corporation Law § 306, as they were in this action. These facts give rise to an inference that defendants were deliberately attempting to avoid notice of this action.

Moreover, defendants did not demonstrate a meritorious defense to the action in relying on a general release provision in a confidential agreement that settled claims in a California action. That provision released only claims between defendants and plaintiff, who collectively were the defendants in that action, and the claimants in the California action. The release did not apply to claims between plaintiff and defendants themselves.

Any failure by plaintiff to comply with the additional service requirements under CPLR 3215(g)(4)(i) and (ii) does not compel vacatur of the default judgments, as defendants failed to provide grounds for vacatur.

C3 Data, LLC v. 212 Media Group, Inc., NY Slip Op 00182 (1st Dep't January 9, 2024)

Here is the decision.

Appellate practice.

As a general rule, the Appellate Division does not consider an issue on a subsequent appeal that was raised, or could have been raised, on an earlier appeal that was dismissed for failure to perfect, although it has the inherent jurisdiction to do so.

Taunton Metals of Fla, Inc. v. Solutions in Stainless, Inc., NY Slip Op 00121 (2d Dep't January 8, 2024)

Here is the decision.

Equitable actions.

Foreclosure actions are equitable in nature and trigger the equitable powers of the court. Once equity is invoked, the court's power is as broad as equity and justice require. In an action of an equitable nature, the recovery of interest is within the court's discretion. The exercise of that discretion will be governed by the particular facts in each case, including any wrongful conduct by either party. Here, the Supreme Court providently exercised its discretion in denying that branch of the defendant's cross-motion which was to reduce the accrual of interest on the mortgage loan. The defendant failed to demonstrate that the plaintiff delayed in prosecuting the action and, therefore, that the defendant was entitled to a reduction of the accrual of interest on the mortgage loan,

Wells Fargo Bank, N.A. v. O'Brien, NY Slip Op 00122 (2d Dep't January 8, 2024)

Here is the decision.

Prima facie tort.

The elements of a cause of action to recover damages for prima facie tort are (1) the intentional infliction of harm, (2) which results in special damages, (3) without any excuse or justification, (4) by an act or series of acts which would otherwise be lawful. In order to sufficiently plead prima facie tort, the complaint must allege the defendant's malicious intent or disinterested malevolence as the sole motive for the challenged conduct.

25-86 41st St., LLC v. Guzman, NY Slip Op 00075 (2d Dep't January 8, 2024)

Here is the decision.

Civil conspiracy.

Although New York does not recognize civil conspiracy to commit a tort as an independent cause of action, a plaintiff may plead the existence of a conspiracy in order to connect the actions of the individual defendants with an actionable, underlying tort, and establish that those actions were part of a common scheme. In order to properly plead a cause of action to recover damages for civil conspiracy, the plaintiff must allege a cognizable tort, coupled with an agreement between the conspirators regarding the tort, and an overt action in furtherance of the agreement.

A theory of concerted action liability rests upon the principle that all those who, in pursuance of a common plan or design to commit a tortious act, actively take part in it, or further it by cooperation or request, or who lend aid or encouragement to the wrongdoer, or ratify and adopt his acts done for their benefit, are equally liable with him. As with conspiracy, the concerted action theory requires that there be an independent tort as a basis for liability.

25-86 41st St., LLC v. Guzman, NY Slip Op 00075 (2d Dep't January 8, 2024)

Here is the decision.

Judgments.

 It is improper to include findings of fact or conclusions of law in the judgment.

23 E. 39th St. Mgt. Corp. v. 23 E. 39th St. Devs., LLC, NY Slip Op 00145 (1st Dep't January 9, 2024)

Here is the decision.

A cause of action for unjust enrichment.

Plaintiffs' cause of action for unjust enrichment is not viable because there is a valid contract, and that precludes recovery in quasi contract for events arising out of the subject matter of the contract. 

Kwan v. HFZ Capital Group, LLC, NY Slip Op 00074 (1st Dep't January 7, 2024)

Here is the decision.

Judgment creditors and judgment debtors.

CPLR 5225(a) provides that a judgment creditor may make a motion in a pending action where a judgment was entered "where it is shown that the judgment debtor is in the possession or custody of money or other personal property in which he has an interest." CPLR 5225(a) also provides that the court shall order the judgment debtor to "pay the money, or so much of it as is sufficient to satisfy the judgment, to the judgment creditor." By contrast, CPLR 5225(b) provides that when the property sought is not in the possession of the judgment debtor, the judgment creditor is to commence a separate special proceeding "against a person in possession or custody of money or other personal property in which the judgment debtor has an interest . . . where it is shown that the judgment debtor is entitled to the possession of such property or that the judgment creditor's rights to the property are superior to those of the transferee." The most significant difference between the subdivisions is that CPLR 5225(a) is invoked by a motion made by the judgment creditor, whereas CPLR 5225(b) requires a special proceeding brought by the judgment creditor against the garnishee. There is this procedural distinction because the garnishee, not being a party to the main action, has to be independently subjected to the court's jurisdiction.

The plain terms of the relevant CPLR provisions are dispositive. CPLR 5201 provides that "[a] money judgment may be enforced against any property which could be assigned or transferred, whether it consists of a present or future right or interest and whether or not it is vested" However, when a judgment debtor's property is physically held by a third party, the applicable provision is CPLR 5225(b), and a special proceeding is required. It is only when the property is held by the judgment debtor himself that the judgment creditor may proceed by motion pursuant to CPLR 5225(a).

AC Penguin Prestige Corp. v. Two Thousand Fifteen Artisanal LLC, NY Slip Op 06536 (1st Dep't December 24, 2024)

Here is the decision.

Motions to dismiss.

In considering a motion pursuant to CPLR 3211(a)(7) to dismiss a complaint for failure to state a cause of action, the court must afford the pleading a liberal construction, accept the facts as alleged in the pleading as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory. However, allegations consisting of bare legal conclusions are not entitled to any such consideration. Although inartfully pleaded, a claim should not be dismissed when the facts stated are sufficient to make out a cause of action. Whether the complaint will later survive a motion for summary judgment, or whether the plaintiff will ultimately be able to prove its claims plays no part in the determination of a motion to dismiss. In other words, whether a plaintiff can ultimately establish his allegations is not part of the calculus. Moreover, New York's pleading standard is embodied in CPLR 3013, which provides that "[s]tatements in a pleading shall be sufficiently particular to give the court and parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved and the material elements of each cause of action or defense." Absent a statutory heightened pleading requirement, New York courts apply the liberal notice pleading standard of CPLR 3013 when construing the pleading sufficiency of federal causes of action, not federal pleading standards.

Pressley v. City of New York, NY Slip Op 06563 (2d Dep't December 24, 2024)

Here is the decision.

Foreclosure actions.

RPAPL 1304(1) provides that "with regard to a home loan, at least ninety days before a lender, an assignee or a mortgage loan servicer commences legal action against the borrower, or borrowers at the property address and any other address of record, including mortgage foreclosure, such lender, assignee or mortgage loan servicer shall give notice to the borrower."  The statute further provides the required content for the notice and provides that the notice must be sent by registered or certified mail and also by first-class mail to the borrower's last known address. Strict compliance with RPAPL 1304 notice to the borrower or borrowers is a condition precedent to the commencement of a foreclosure action. A plaintiff can establish strict compliance with RPAPL 1304 by submitting domestic return receipts, proof of a standard office procedure designed to ensure that items are properly addressed and mailed, or an affidavit from someone with personal knowledge that the mailing of the RPAPL 1304 notice actually happened. Moreover, in order to establish entitlement to a judgment of foreclosure and sale, a plaintiff must show that it complied with any conditions precedent to commencing the action contained in the mortgage agreement itself.

Bank of N.Y. Mellon v. Dilavore, NY Slip Op 06562 (2d Dep't December 24, 2024)

Here is the decision.

Piercing the veil.

A plaintiff seeking to pierce the corporate veil must show that: (1) the owners exercised complete domination of the corporation in respect to the transaction attacked; and (2) their domination was used to commit a fraud or wrong against the plaintiff, resulting in plaintiff's injury.

FX Funding, LLC v. Fox RX, Inc., NY Slip Op 06539 (1st Dep't December 24, 2024)

Here is the decision.

Fraud.

The elements of a cause of action sounding in fraud are a material misrepresentation of an existing fact, made with knowledge of the falsity, an intent to induce reliance thereon, justifiable reliance upon the misrepresentation, and damages. A representation of opinion or a prediction of something which is hoped or expected to occur in the future will not sustain an action for fraud. In order to recover damages for fraudulent misrepresentation, a plaintiff must prove: (1) a misrepresentation or an omission of material fact which was false and known to be false by the defendant; (2) the misrepresentation was made for the purpose of inducing the plaintiff to rely upon it; (3) the plaintiff's justifiable reliance on the misrepresentation or material omission; and (4) injury.

Davidoff v. Hershfield, NY Slip Op 06560 (2d Dep't December 24, 2024)

Here is the decision.

The death of a party and substitution therefor.

The death of a party divests the court of jurisdiction and stays the proceedings until a proper substitution has been made, pursuant to CPLR 1015 (a), and any determination rendered without such substitution will generally be deemed a nullity. The death of a party also terminates an attorney's authority to act on behalf of the deceased party.

The determination of a motion for substitution pursuant to CPLR 1021 brought by the successors or representatives of a party or by any party is an exception to the court's lack of jurisdiction upon the death of a party. CPLR 1021 provides that a motion for substitution may be made by any party to the action, and that such a motion must be made within a reasonable time. The determination of reasonableness requires consideration of several factors, including the diligence of the party seeking substitution, the prejudice to the other parties, and whether it has been shown that the action or defense has potential merit. Even if the explanation for the delay is not satisfactory, the court may grant the motion for substitution if there is no showing of prejudice and there is potential merit to the action or defense, in light of the strong public policy in favor of disposing of matters on the merits.

Lee v. Leeds, Morelli & Brown, P.C., NY Slip Op 06624 (2d Dep't December 24, 2024)

Here is the decision.

Appellate practice.

It is well-settled that the mootness doctrine enjoins appellate review of academic questions.  Appellate review of this matter would neither alter the order as appealed from nor directly affect a substantial right or interest of a party to the appeal. Therefore, the appeal must be dismissed as academic.

Davidoff v. Hershfield, NY Slip Op 06559 (2d Dep't December 24, 2024)

Here is the decision.

Attorneys' fees.

The determination of what constitutes a reasonable attorney's fee is a matter within the sound discretion of the Supreme Court. The attorney bears the burden of establishing the reasonable value of the services rendered through contemporaneous time records specifying the date, hours expended, and nature of the work performed. If the documentation is inadequate, the court may reduce the award accordingly.

Hershfield v. Davidoff, NY Slip Op 06558 (2d Dep't December 24, 2024)

Here is the decision.

Summary judgment.

The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any triable issues of fact. The failure to make such a prima facie showing requires denial of the motion, regardless of the sufficiency of the opposing papers. If there is any doubt as to the existence of a triable issue of fact, the motion for summary judgment must be denied.

Basil v. Renny, NY Slip Op 06324 (2d Dep't December 18, 2024)

Here is the decision.

Appellate practice.

Defendant's constitutional arguments are beyond consideration by the Appellate Division because they are raised for the first time on appeal. In addition, they are barred by the law of the case, as the precise restrictions in the permanent injunction about which he complains have been affirmed by the Appellate Division.

60 E. 9th St. Owners Corp. v. Zihenni, NY Slip Op 06647 (1st Dep't December 31, 2024)

Here is the decision.

Holy, Healthy, and Happy New Year.