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.