In this personal injury action, the affirmative defense based on the plaintiff's culpable conduct is dismissed because the record bears no indication that the plaintiff contributed in any way to the accident.
Walcott v. Wheels, Inc., NY Slip Op 01073 (1st Dep't February 25, 2025)
CPLR 5015(d) provides that, "[w]here a judgment or order is set aside or vacated, the court may direct and enforce restitution in like manner and subject to the same conditions as where a judgment is reversed or modified on appeal." Thus, CPLR 5015[d] empowers a court that has set aside a judgment or order to restore the parties to the position they were in prior to its rendition, consistent with the court's general equitable powers. The essential inquiry for a court addressing a request for the equitable remedy of restitution is whether it is against equity and good conscience to permit a party to retain the money that is sought to be recovered. The determination whether to award restitution is committed to the trial court's discretion.
Hamway v. Sutton, NY Slip Op 01062 (1st Dep't February 25, 2025)
Pursuant to CPLR 3211(a)(5), a party may move to dismiss a cause of action based on the doctrine of res judicata or collateral estoppel. 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. The doctrine of collateral estoppel, a narrower species of res judicata, precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action and decided against that party or those in privity, whether or not the tribunals or causes of action are the same.
Here, the issues raised in the instant action as to the defendants' alleged violation of Judiciary Law § 487 could not have been raised in a prior action between the parties and were not necessarily decided in the prior action. Thus, neither res judicata nor collateral estoppel bars the plaintiffs from litigating the instant Judiciary Law § 487 cause of action.
A motion pursuant to CPLR 3211(a)(1) to dismiss the complaint on the ground that the action is barred by documentary evidence may be granted only where the documentary evidence utterly refutes the plaintiff's factual allegations, thereby conclusively establishing a defense as a matter of law. Under Judiciary Law § 487(1), an attorney who is guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party is guilty of a misdemeanor and may be liable to the injured party for treble damages in a civil action. Here, the defendants' evidentiary submissions failed to utterly refute the plaintiffs' factual allegations that the defendants violated Judiciary Law § 487.
Altman v. Orseck, NY Slip Op 00940 (2d Dep't February 19, 2025)
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)
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)
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)
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)
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)
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)
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)
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)
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)
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)
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)
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)
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)
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)
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)
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)
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)
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)
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)
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)
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)
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)
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)
