A Yellowstone injunction.

The Appellate Division affirmed the Order which granted plaintiff's application. Contrary to defendant's contention, plaintiff fulfilled the four criteria for Yellowstone relief, namely, that (1) it holds a commercial lease; (2) it received from the landlord either a notice of default, a notice to cure, or a threat of termination of the lease; (3) it requested injunctive relief prior to the termination of the lease; and (4) it is prepared and maintains the ability to cure the alleged default by any means short of vacating the premises.

80 Broad Relief Assoc., LLC v. BSD 80 Broad LLC, NY Slip Op 05805 (1st Dep't October 15, 2020)

Here is the decision.

An alleged oral agreement.

Because the terms of the alleged agreement are not definite, the complaint and supporting materials fail to plead the existence of an enforceable oral contract. The consideration owed to a non-party is described inconsistently, and the arrangement between plaintiff and the non-party is described in different ways in emails among plaintiff, the non-party, and defendant.

Streit v. Bombart, NY Slip Op 05706 (1st Dep't October 13, 2020)

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A motion to disqualify an arbitrator.

The Appellate Division affirmed the  Order which denied defendant's motion to disqualify the arbitrator and vacate his rulings. Defendant failed to demonstrate implicit gender bias against its female sole general partner in the arbitrator's comments in an email and throughout the course of the proceedings. The Appellate Division noted that plaintiff's principal and representative in the arbitration proceeding are women.

Vitra, Inc. v. Ninety-Five Madison Co., L.P., NY Slip 05709 (1st Dep't October 13, 2020)

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Appellate practice.

While discovery determinations rest with the sound discretion of the motion court, the Appellate Division is  vested with corresponding power to substitute its own discretion for that of the trial court, even in the absence of abuse of discretion. Here, the Appellate Division declined to disturb the motion court's determination. Plaintiff failed to demonstrate that its discovery requests would yield information that was material and necessary to its defense against the counterclaims asserted against it.

Monitronics Intl, Inc. v. NorthStar Alarm Servs., LLC, NY Slip Op 05584 (1st Dep't October 8, 2020)

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A claim for an accounting.

The Appellate Division affirmed the Supreme Court's determination granting that branch of the defendants' motion which was to dismiss the cause of action for an accounting, as the allegations of the complaint indicate that the relationship between plaintiff and defendant was not fiduciary in nature.

Board of Mgrs. of the Bayard Views Condominium v. FPG Bayard, LLC, NY Slip Op 05481 (2d Dep't October 7, 2020)

Here is the decision.

Claims for fraud and tortious interference.

The claim for fraud and negligent misrepresentation was properly dismissed, as it duplicates the breach of contract claims. It does not allege breach of a duty independent from the parties' agreements, and, instead, alleges that defendants falsely represented that they would abide by those agreements. The motion court properly dismissed the claim for tortious interference with prospective economic advantage on grounds that it lacked specificity and was speculative. Plaintiff simply alleged an existing reasonable expectation of receiving an economic advantage from his clients, with which defendants wrongfully and intentionally interfered, causing him financial harm, but he failed to identify any particular relationships or explain how defendants interfered with them.

Matter of Soames v. 2LS Eng'g, D.P.C., NY Slip Op 05607 (1st Dep't October 8, 2020)

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A striking hazard on a public sidewalk.

The Appellate Division affirmed the granting of plaintiffs' motion for partial summary judgment on liability for personal injuries sustained when a door in a construction fence opened out onto the sidewalk and struck plaintiff. As a matter of law, the door was negligently installed insofar as it swung outward and was not recessed back from the sidewalk. Administrative Code of City of NY § 7-210 imposes a nondelegable duty on a property owner to maintain the sidewalk abutting its property in a reasonably safe condition. The striking hazard posed by a door opening across a sidewalk implicates this provision.

Spielmann v. 170 Broadway NYC LP, NY Slip Op 05608 (1st Dep't October 8, 2020)

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Appellate practice.

The Appellate Division reversed the order which, on defendants' motion, directed that the entire file be sealed, denied the motion, vacated the sealing order, and directed that the order dismissing the action be unsealed. Although the action was dismissed after the appeal was perfected, the appeal, which addresses the propriety of the sealing order, is not moot to the extent that the dismissal order, which is on appeal, is under seal pursuant to the sealing order.

Vergara v. Mission Capital Advisors. LLC, NY Slip Op 05610 (1st Dep't October 8, 2020)

Here is the decision.

Appellate practice.

The appeals from the intermediate orders must be dismissed because the right of direct appeal therefrom terminated with the entry of the order and judgment of foreclosure and sale. 

Bank of Am., N.A. v. Palacio, NY Slip Op 05480 (2nd Dep't October 7, 2020)

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A motion to restore the case and extend time.

The Appellate Division affirmed the denial of plaintiff's motions to restore the case to active status and extend its time to file a note of issue, and to vacate a prior order dismissing the complaint. The court providently exercised its discretion in dismissing the complaint after plaintiff, over a period of 1 1/2 years, violated multiple orders to produce documentary discovery, and, finally, failed to comply with the orders even after the court had, over defendants' rigorous objections, given him "one last chance." Plaintiff failed to support either his motion to restore or his motion to vacate with an excuse for his repeated failure to comply, or a demonstration of a meritorious claim.

White v. City of New York, NY Slip Op 05477 (1st Dep't October 6, 2020)

Here is the decision.

Summary judgment on a claim for specific performance.

The Appellate Division affirmed denial of plaintiff's motion. He failed to establish, prima facie, that he substantially performed his contract obligations and was willing and able to perform his remaining obligations, and that defendants were able to convey the property. Plaintiff submitted no proof that he possessed the financial means to close the sale, and he submitted no proof that the individual defendant, who signed the contract of sale in his personal capacity, was able to transfer the property, which the record shows was owned by the corporate defendant.

Ahsanuddin v. Carde, NY Slip Op 05442 (1st Dep't October 6, 2020)

Here is the decision.