A defendant cannot defeat the motion by citing factual disputes that do not relate to material issues. Even if plaintiff were the only witness to the accident, he would be entitled to summary judgment where nothing in the record controverts his account of the accident or calls his credibility into question.
Valdez v. City of New York, NY Slip Op 07150 (1st Dep't December 1, 2020)
Plaintiff seeks production of presumptively privileged attorney time records from a nonparty law firm on the belief that if there are no attorney billable time entries on dates when defendants have logged a communication as privileged, it is evidence that the communication was made in connection with the attorney's purported business representation, and not legal representation. A party seeking an attorney's legal bills must establish their relevance, and hypothetical speculation calculated to justify a fishing expedition is improper. Here, plaintiff's assumption that attorney time records would ferret out presumptively nonprivileged documents is entirely speculative. This is particularly so when the law firm was representing defendants without any expectation of or intent to seek payment. In addition, plaintiff's only remaining cause of action is to enforce a charitable trust, which provides no independent basis for production of the time records.
Leventhal v. Bayside Cemetery, NY Slip Op 06955 (1st Dep't November 24, 2020)
The Appellate Division unanimously affirmed the Orders which denied defendants' motions to dismiss the complaint or preclude plaintiff from offering evidence at trial for failure to comply with discovery orders. The court was not bound by a prior order that warned that failure to comply would be construed as willful and contumacious but was not a conditional order that would have obviated the need for a determination of willfulness. Further, the history of this litigation establishes that any non-compliance on plaintiff's part was not willful, contumacious, or in bad faith. More often than not, plaintiff complied with the court's discovery orders by providing timely responses that generally evidenced a good-faith effort to address outstanding discovery meaningfully.
Lyoussi v. Etufugh, NY Slip Op 06956 (1st Dep't November 24, 2020)
The writ lies only to enforce a clear legal right where a public official has failed to perform a duty that is enjoined by law. It will not be awarded in order to compel an act in respect to which the official may exercise judgment or discretion.
Matter of Martinez v. DiFiore, NY Slip Op 06958 (1st Dep't November 24, 2020)
The court properly considered some of the medical records submitted in opposition to plaintiff's motion, in which plaintiff also provided inconsistent accounts of how the accident occurred. Even assuming that the descriptions of the accident contained in plaintiff's medical records were not germane to his treatment and diagnosis, the entries in at least three of the records were directly attributable to plaintiff so as to constitute admissions. Even assuming that these entries constituted hearsay, they may be submitted in opposition to plaintiff's motion and properly considered in conjunction with the other evidence in the record, which provided different descriptions of the accident.
Pina v. Arthur Clinton Hous. Dev. Fund Corp., NY Slip Op 06968 (1st Dep't November 24, 2020)
The doctrine holds that, absent a fiduciary relationship between parties, there is a duty to disclose when one party's superior knowledge of essential facts renders a transaction, without disclosure, inherently unfair. The essential facts must not have been discoverable through the exercise of ordinary intelligence. Here, there are triable issues regarding whether defendant had a duty to disclose that it had granted an exclusive license to another company.
Sports Tech. Applications, Inc. v. MLB Advanced Media, L.P., NY Slip Op 06973 (1st Dep't November 24, 2020)
The claim is sufficiently stated where the allegations indicate that the parties have reached an oral agreement and, unknown to either, the signed writing does not express that agreement.
106 Spring St. Owner LLC v. Workspace, Inc., NY Slip Op 06942 (1st Dep't November 24, 2020)
The Appellate Division unanimously affirmed the Order which denied plaintiff's motion for a default judgment. As it is undisputed that plaintiff did not make a reasonable attempt to personally serve defendants, in accordance with CPLR 308, service was improper. Because jurisdiction was not obtained over defendants, they were not required, in response to plaintiff's motion for a default judgment, to demonstrate a reasonable excuse for their default in answering the complaint, or a meritorious defense.
Matter of Petre v. Lucia, NY Slip Op 06873 (1st Dep't November 19, 2020)
Plaintiff was entitled to summary judgment, as it submitted documentary evidence showing that defendant had received and retained the invoices without objection. Defendant's own written statements refute his argument that plaintiff was unauthorized to represent him, and that, when he terminated plaintiff, he had had objected to plaintiff's work. The termination, which occurred prior to defendant's receipt of the invoices, was rescinded by defendant shortly thereafter. Despite regular correspondence between plaintiff and defendant during the following months, there is no indication that he objected to plaintiff's invoices or continued representation. The legal malpractice counterclaims are not sufficiently intertwined with the account stated claim so as to preclude summary judgment.
Schlam Stone & Dolan LLP v. Toussie, NY Slip Op 06874 (1st Dep't November 19, 2020)
As the individual defendant signed the original agreement in his corporate capacity, on behalf of the corporate defendant, he ordinarily would not be personally liable under the agreement. However, his signature without reference to his corporate capacity in the extension of the original agreement creates a fact issue as to the capacity in which he signed each agreement, as well as a fact issue as to whether the corporate defendant is liable under the agreements.
Inbar Group, Inc. v. St. Mark's World, Inc., NY Slip Op 06879 (1st Dep't November 19, 2020)
