Vacatur of a default for law office failure.

The Appellate Division unanimously reversed, on the law, the facts, and in the exercise of its discretion, the Order which denied defendant's motion to vacate a prior order of the same court and Justice, which had struck defendant's answer and granted judgment to plaintiff. In this action to recover on a personal guaranty of a promissory note, defendant failed to appear for a conference after the case was referred to mandatory mediation, and then did not appear at a preliminary conference on the adjourned date for the conference, resulting in entry of a default judgment in favor of plaintiff, pursuant to NYCRR 202.27[a]). Defendant moved, pursuant to CPLR 5015(a)(1), to vacate the default judgment, asserting that defendant's failures to appear were not willful, but, instead, were the result of law office failure. Specifically, defense counsel failed to appear at the mediation conference because he inadvertently overlooked the scheduled date on the fifth page of the administrative order/mediation intake forms, and then was not aware of the scheduled preliminary conferences because a Notice of Preliminary Conference was never electronically filed on the New York State Electronic Filing System and he had not yet signed up for e-track notifications because the case was at its inception.

The Appellate Division found that defendant offered a reasonable excuse for failing to appear at the mediation and the conferences. Defendant showed an intent to appear and litigate on the merits by timely answering the complaint, having the case transferred to New York County, and then timely responding to plaintiff's discovery demand. Accordingly, defendant demonstrated that his failure to appear was neither willful nor part of a pattern of dilatory behavior, but was purely the result of inadvertent law office failure. Moreover, the short delay caused by the default, the prejudice to defendant, and the lack thereof to plaintiff, and the strong public policy concerns favoring adjudicating matters on their merits, all militate in favor of vacating the default, even when the excuse of law office failure is not especially compelling.

Ageits SMB Fund II, L.P. v. Rosenfeld, NY Slip Op 07309 (1st Dep't December 8, 2020)

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Accounting malpractice.

In order to succeed on a claim for accounting malpractice, a plaintiff must demonstrate a departure from accepted standards of practice and that the departure was a proximate cause of injury. Injury is an essential element of the cause of action  

Alskom Realty, LLC v. Baranik, NY Slip Op 07153 (2d Dep't December 2, 2020)

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Motions to dismiss.

Under CPLR 3211(a)(1), a dismissal is warranted only if the documentary evidence submitted conclusively establishes, as a matter of law, a defense to the asserted claims. In assessing a motion under CPLR 3211(a)(7), however, the court may freely consider affidavits submitted by the plaintiff to remedy any defects in the complaint, and the standard is whether the pleading's proponent has a cause of action, not whether he has stated one. Where the plaintiff elects to stand on its pleading, the plaintiff may not be penalized because it has not made an evidentiary showing in support of the complaint. 

106 N. Broadway v. Lawrence, NY Slip Op 07151 (2d Dep't December 2, 2020)

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"[A]lways will our whole Nation remember the character of the onslaught against us." FDR, December 8, 1941.

A motion to vacate a stay.

The Appellate Division unanimously reversed, on the law and the facts and in the exercise of discretion, the Order which denied plaintiffs' motion to vacate a previously imposed stay. There is no basis for a stay of this action pursuant to CPLR 2201, as the decision in the federal action will not determine all of the questions in this action.

Matter of Qudian Sec. Litig., NY Slip Op 07290 (1st Dep't December 3, 2020)

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Defamation.

The Appellate Division affirmed the Order which, to the extent appealed from as limited by the briefs, granted defendants' motion to dismiss the defamation claims. The complaint fails to state a cause of action for slander or libel per se, as none of the allegedly defamatory statements made by defendants accuse plaintiff of ineptitude in her profession, and the complaint does not allege how, if at all, plaintiff's professional reputation was damaged by the offending statements. The Appellate Division rejected plaintiff's contention that the motion court improperly determined on a motion to dismiss that the remarks were not defamatory. Whether particular words are defamatory presents a legal question to be resolved, in the first instance, by the court.

Savitt v. Cantor, NY Slip Op 07305 (1st Dep't December 4, 2020)

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Tortious interference.

A claim of tortious interference with contract requires that a plaintiff plead four elements: (1) the existence of a valid contract between plaintiff and a third party; (2) the defendant's knowledge of the contract; (3) the defendant's intentional procuring of a breach; and (4) damages. In order to establish a corporate officer's liability for inducing a breach of a contract between the corporation and a third party, the complaint must allege that the officer's acts were outside the scope of his employment, or that the officer personally profited from his acts.

Shear Enters., LLC v. Cohen, NY Slip Op 07149 (1st Dep't December 1, 2020)

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Summary judgment on a Labor Law claim.

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)

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Discovery of an attorney's time records.

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)

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Compliance with discovery orders.

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)

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Writs of mandamus.

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)

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