CPLR 3404.

A case marked off or struck from the trial calendar or unanswered on a clerk's calendar call, and not restored within one year thereafter, is deemed abandoned and will be dismissed for neglect to prosecute. A plaintiff seeking to restore a case to the trial calendar more than one year after it has been marked off must demonstrate a potentially meritorious cause of action, a reasonable excuse for the delay in prosecuting the action, a lack of intent to abandon the action, and a lack of prejudice to the defendant. All four components of the test must be satisfied before the dismissal can be vacated and the action restored.

Patriarca v. Oreckinto, NY Slip Op 03795 (2d Dep't July 8, 2020)

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Agency.

An agent acting on behalf of a disclosed principal is not liable for breach of contract in the absence of clear and explicit evidence of the agent's intention to be bound.

Overbay, LLC v. Berkman, Henoch, Peterson, Peddy & Fenchel, P.C., NY Slip Op 03794 (2d Dep't July 8, 2020)

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Vacatur of a default.

The court providently exercised its discretion in denying defendant's motion to vacate. After failing to oppose plaintiff's motion for summary judgment on its mortgage foreclosure complaint and its subsequent motion for the entry of a judgment of foreclosure and sale, defendant moved to vacate the judgment and the underlying order. However, she failed to appear for oral argument, and the motion was denied. Defendant then appealed from the denial of the motion to vacate the order that denied her first motion to vacate. The Appellate Division noted that, in support of the motion, defendant failed to demonstrate any excuse, much less a reasonable excuse, for her failure to contest the dispositive motions. In the absence of a reasonable excuse, the Appellate Division did not consider whether defendant demonstrated a meritorious defense.

U.S. Bank N.A. v. Hattim, NY Slip Op 03856 (1st Dep't July 9, 2020)

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Contracts.

A material breach is a failure to do something that is so fundamental that the failure to perform the obligation defeats the essential purpose of the contract. Here, defendants breached the agreement's explicit terms by missing the installment payments. The court rejected the argument that the provision of an interest penalty if a payment is not timely made precludes a finding of breach, and that defendants were entitled to pay at an undisclosed later date, is unavailing, as it would allow defendants never to pay.

Feldmann v. Scepter Group, Pte. Ltd., NY Slip Op 03855 (1st Dep't July 9, 2020)

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Appellate practice.

The arguments concerning so much of the order as granted defendant's motion for summary judgment dismissing the complaint insofar as predicated on its violation of a common-law duty are not properly before the court. Despite being aggrieved thereby, the plaintiff did not appeal from that part of the order.

E.B.-W v. New York City Hous. Auth., NY Slip Op 03865 (1st Dep't July 9, 2020)

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CPLR 5015 .

Since the order granting summary judgment dismissing the complaint was granted on default, the court properly denied plaintiff's motion to renew and reargue. The proper remedy for plaintiff was to move to vacate the default.

Luciano v. Felix, NY Slip Op 03878 (1st Dep't July 9, 2020)

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Dismissal for failure to comply with court orders.

The Appellate Division determined that the IAS court did not improvidently exercise  its discretion by dismissing this action after the plaintiff failed to comply with two so-ordered stipulations and a conditional order that gave him a final chance to comply. Plaintiff was warned that, if he did not comply strictly and completely, defendant could move to dismiss. A pro se plaintiff cannot ignore court orders.

Wyatt v. Sutton, NY Slip Op 03734 (1st Dep't July 2, 2020)

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Negligent hiring and negligent entrustment.

The plaintiff wa injured when the driver-defendant struck her with his livery cab. The corporate defendant's motion to dismiss the negligentl entrustment and negligent hiring claims was denied. The Appellate Division reversed.

A motor vehicle's owner may be liable for negligent entrustment if it was negligent in entrusting it to a person it knew, or in the exercise of ordinary care should have known, was not competent to operate it. Here, the plaintiff alleged that the driver-defendant owned the car, and she did not allege, even in a conclusory fashion, that he was not competent to drive, or that the corporate defendant knew or should have known of any incompetence. The plaintiff's bare pleading of the corporate defendant's control  and the failure to allege its knowledge of any incompetence require dismissal.

The claim alleging negligent hiring, training, and retention must be dismissed because the complaint fails to allege that the driver-defendant had a propensity to drive negligently, and that the corporate defendant, when it retained him as a driver, knew, or should have known, of any such propensity.

While the plaintiff argues that dismissal is premature, in her opposition to the motion to dismiss she did not make any additional submissions to cure the pleading deficiencies or to establish that additional discovery is necessary. The corporate defendant responded to her outstanding discovery demands concerning the factual bases for her negligence claims while the motion was pending, and the plaintiff did not object to the adequacy of those responses.

Kornfeld v. Zheng, NY Slip Op 03732 (1st Dep't July 2, 2020)

Here is the decision.

A forum selection clause.

As a matter of law, the forum selection clause of the parties' Repurchase Agreement does not apply to their Separation Agreement. The agreements do not constitute a single, integrated agreement, since the two agreements were not executed for the same purpose and do not concern the same subject matter or arise from the same transaction. While the parties executed both agreements, and the agreements refer to each other, they are not interdependent. The Repurchase Agreement memorializes a one-time repurchase transaction, while the Separation Agreement memorializes a discrete, ongoing, and conditional transaction with a different purpose. Specifically, in the Separation Agreement plaintiff acknowledges his obligation to comply with certain specified protective covenants, and defendant agreed to pay him a bonus if he did so.

Cernich v. Athene Holding Ltd., NY Slip Op 03724 (1st Dep't July 2, 2020)

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A motion for a judgment of foreclosure and sale.

The attachment of the note to the verified complaint is sufficient to establish that the lender had physical possession of the note prior to commencement of the action.

Ocwen Loan Servicing LLC v. Siame, NY Slip Op 03719 (1st Dep't July 2, 2020)

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CPLR 4518.

Dental records created in the regular course of business are admissible as business records to the extent they are germane to the diagnosis and treatment of the patient.

Viera v. Khasden, NY Slip Op 03717 (1st Dep't July 2, 2020)

Here is the decision.