Leave to amend.

The Appellate Division unanimously affirmed, with costs, the Order granting defendant Clarke's motion for summary judgment dismissing the breach of contract claim against it, denied plaintiff's motion to amend the complaint, and dismissed the complaint in its entirety as against Clarke. As Clarke was not a signatory to the agreements, no cause of action for breach of contract can be asserted against it. Each agreement plainly states it is between plaintiff and defendant Drescher, and contains a signature block for Drescher individually. Moreover, the first operative clause of the agreements makes clear that they are assignments of seller's - defined as Drescher - "rights, title and interest in and to" commissions upon closings of transactions with the identified companies. Leave to amend a pleading should be freely granted in the absence of prejudice or surprise, as long as the proposed amendment is not palpably insufficient as a matter of law. Here, the proposed amended complaint is palpably insufficient, as it alleges in conclusory fashion that Drescher acted on behalf of Clarke as its agent or alter ego.

Mashinsky v. Drescher, NY Slip Op 06397 (1st Dep't November 10, 2020).

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Vacatur based on law office failure.

The Appellate Division unanimously affirmed the Order which, to the extent appealed from, vacated an order, entered on default, that dismissed the severed third-party action.  Plaintiff established that its default was attributable to law office failure by submitting its counsel's affirmation explaining that the lawyer who had been handling the case left the firm and failed to pass her work on to the firm's two partners. The Appellate Division said that plaintiff should not be deprived of its day in court on account of its attorney's neglect or inadvertent error. 

Morales v. Marion Ave. Mgt. LLC, NY Slip Op 06399 (1st Dep't November 10, 2020)

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Premises liability.

Whether there is a dangerous or defective condition on the property so as to create liability depends on the peculiar facts and circumstances of each case, and, generally, is a question of fact for the jury to decide.  A defendant seeking dismissal on the basis that the alleged defect is trivial must make a prima facie showing that, under the circumstances, the defect is physically insignificant, and that the defect's characteristics or the surrounding circumstances do not increase the risks it poses. Only then does the burden shift to the plaintiff to establish an issue of fact. There is no minimal dimension test or per se rule that a defect must be of a certain minimum height or depth in order to be actionable, and summary judgment may not be granted to a defendant exclusively on the dimensions of the defect.

Arpa v. 245 E. 19 Realty LLC, NY Slip Op 06444 (1st Dep't November 12, 2020)

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Disqualification of a law firm.

Although an associate at plaintiffs' law firm was previously an associate with the firm that currently represents the defendants, disqualification is not required, as defendants fail to show that the issues in the matters are identical or essentially the same. Defendants fail to identify any material confidential information that the associate obtained from the defendants during the prior matters, referencing only generic legal documents and activities. The associate left the previous firm a year before the alleged malpractice that forms the basis of this claim.

Patane v. Tan, NY Slip Op 06458 (1st Dep't November 12, 2020)

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Attorney's fees.

The Appellate Division affirmed the Order which granted defendants' motion for fees. The motion court applied the correct standard for determining the "prevailing party" under a contractual fees clause, namely, success on the central claims in the action. Plaintiff failed to show any injury from defendants' representations to the court that plaintiff would not be prejudiced by bringing new claims in a new action. The court had already ruled that the defects in the existing case would not be remedied by amendment, and, sua sponte, modified its order to reflect that the new claims were to be brought in a new action. The Appellate Division rejected plaintiff's argument that half of the fees do not pertain to the motion to dismiss, and, therefore, are not recoverable. The parties' agreement entitles the prevailing party to all fees "in connection" with the action, and plaintiff has failed to point to any fees not incurred in connection with the action.

Zamir v. Ben-Harosk, NY Slip Op 06475 (1st Dep't November 12, 2020)

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Discovery of nonprivileged information.

The Appellate Division modified the Order which, to the extent appealed from as limited by the briefs, denied defendants' motion to compel production of plaintiffs' nonprivileged litigation files in another action, to the extent of granting defendants' motion for discovery, and remanding the matter for further proceedings to narrow the scope of the discovery, and otherwise affirmed. In a partition action against each other, plaintiffs mother and son placed into contention issues of property ownership, economic losses, mismanagement, and lack of property maintenance. As this action gives rise to similar economic issues, defendants are entitled to nonprivileged information contained in that action that is relevant to the defense of this action, since CPLR 3101(a) mandates full disclosure of matters that are material and necessary in the prosecution or defense of an action. The confidentiality order in the partition action cannot operate as a shield to preclude plaintiffs from having to produce relevant documents in this action, especially since they affirmatively place into contention similar economic issues. However, defendants are not entitled to the entirety of the nonprivileged litigation files. To the extent that documents and information contained therein relate exclusively to other properties owned by plaintiffs, and not to the property at issue in this action, the information is not relevant, and plaintiffs are not under an obligation to produce it. 

Rosenblum v. Trinity Hudson Holdings, LLC, NY Slip Op 06407 (1st Dep't November 10, 2020)

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Motions to amend.

The Appellate Division unanimously affirmed the Order which denied defendants' motion to dismiss the complaint, and granted plaintiff's cross motion to amend his pleadings. Contrary to defendants' argument, CPLR 3014 specifically authorizes the pleading of inconsistent theories and defenses. In addition, on a motion for leave to amend, a plaintiff does not have to establish the merit of the proposed new allegations, but, rather, must show that the proffered amendment is not palpably insufficient or clearly devoid of merit.

Sorge v. Gona Realty, LLC, NY Slip Op 06409 (1st Dep't November 10, 2020)

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A motion to renew.

The Appellate Division unanimously affirmed the Order which, to the extent appealed from, denied plaintiff's motion to renew its opposition to defendant's motion to dismiss the fourth cause of action of the amended complaint. The Appellate Division said that the court providently exercised its discretion in denying plaintiff's motion to renew, because neither the new facts nor the case on which plaintiff relies -which was decided after the submission of the original motion - would change the prior determination, pursuant to CPLR 2221[e][2].

Ixis Real Estate Capital Trust 2007-HE1 v. Natixis Real Estate Holdings, LLC, NY Slip Op 06354 (1st Dep't November 5, 2020)

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Consolidation of cases.

The Appellate Division unanimously affirmed the Order which denied defendants' motion for removal of a summary nonpayment proceeding against the subject infant's parents, pending in Civil Court, and consolidation with the infant's personal injury action based on lead paint poisoning, pending in Supreme Court.  The Appellate Division determined that, in light of the strong preference for resolving summary landlord-tenant proceedings in Civil Court, particularly where complete relief is available there, the trial court did not abuse its discretion in denying consolidation. CPLR 602(a) gives the trial court discretion to consolidate actions involving common questions of law or fact.  However, even where there are common questions of law or fact, consolidation of actions is properly denied if the actions are at markedly different procedural stages, and consolidation would result in undue delay in the resolution of either matter. Here, while there are some overlapping facts in each case, those facts do not so predominate as to find an abuse of discretion in denying consolidation. The majority of time during which the infant's parents failed to pay their rent in the summary proceeding occurred in the two-year period after the lead paint abatement when the case was taken off the calendar to make further unexplained repairs.

L.B. v. Stahl York Ave. Co., 06355 (1st Dep't November 5, 2020)

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The single motion rule.

The Appellate Division unanimously reversed, on the law, the Order which, to the extent appealed, denied respondents' cross motion to dismiss the amended petition, granted the cross motion, and dismissed the petition. The Appellate Division found that respondents' documentary evidence, consisting of a series of agreements and modifications to the agreements, conclusively refuted petitioner's contention that certain funds transferred to respondents were property of the judgment debtor. As this was an essential element of petitioner's claims, the petition should have been dismissed. The Appellate Division rejected petitioner's argument that the motion was barred by the single motion rule, because respondents had moved to dismiss the original petition. The rule is not implicated where, as here, the amendment introduced substantial new material.

Matter of 8430985 Can., Inc. v. Frydman, NY Slip Op 06337 (1st Dep't November 5, 2020)

Here is the decision.