Defendant's argument that plaintiffs and the third-party defendant failed to timely object to their discovery demands is unpreserved for review, as it was never raised before the motion court. Moreover, the timeliness of plaintiffs' and the third-party defendant's objections is not a pure question of law appearing on the face of the record, which could not have been avoided if raised at the proper juncture.
McMahon v. Cobbletsone Lofts Condominium, NY Slip Op 07317 (1st Dep't December 8, 2020)
This action for damages resulting from a fall on the premises of an outdoor music festival is not barred by the release allegedly obtained by defendants in connection with the online ticket purchase. The release is void and unenforceable, pursuant to General Obligations Law § 5-326. The grounds on which the music festival was held were a place of amusement or recreation or a similar establishment, and plaintiff paid a fee to the owners and operators of the event to participate in the festival.
Nicaj v. Bethel Woods Ctr. for the Arts, Inc., NY Slip Op 07318 (1st Dep't December 8, 2020)
The Appellate Division unanimously affirmed the Order which, to the extent appealed from as limited by the briefs, after a non-jury trial, found and declared defendant liable for breach of contract for terminating the parties' management agreement without providing notice and an opportunity to cure, and awarded plaintiffs nominal damages and reasonable attorneys' fees. The Appellate Division unanimously affirmed the Order, of the same court and Justice, which denied defendant's motion pursuant to CPLR 4404(b) to vacate the award of attorneys' fees.
The trial court properly awarded attorneys' fees to plaintiffs pursuant to the parties' management agreement. The gravamen of the original complaint was that defendant had improperly terminated the management agreement without providing plaintiffs with sufficient notice and an opportunity to cure. On pretrial motions, the motion court repeatedly found that plaintiffs' alleged breaches were curable, and the Appellate Division affirmed those findings. The trial court's finding that defendant breached the management agreement solidified plaintiffs' status as the prevailing party. Plaintiffs also successfully defended against the affirmative defenses. The fact that plaintiffs recovered only nominal damages does not affect their status as prevailing party.
The trial court correctly found that defendant breached the contract by improperly terminating the management agreement. Defendant argues that it was not liable for breach because plaintiffs' own breaches were so dishonest and outrageous that they were incapable of being cured. However, in a prior appeal, the Appellate Division affirmed the ruling that plaintiffs' breaches were curable, and further inquiry into this issue is foreclosed by the law of the case doctrine.
The trial court correctly concluded that plaintiffs failed to prove actual damages, and, therefore, were entitled to nominal damages only. The Appellate Division found no reason to disturb the court's determination that plaintiffs' proof of lost profits was too speculative or that their expert's conclusions and projections were not credible.
Quik Park W. 57 LLC v. Bridgewater Operating Corp., NY Slip Op 07323 (1st Dep't December 8, 2020)
The Appellate Division unanimously affirmed, with costs, the Order which granted plaintiff's motion to confirm the Special Referee's report, after a traverse hearing, concluding that service was properly made on defendan, and denied defendant's cross motion to reject the report and dismiss the complaint for lack of personal jurisdiction. The Referee's conclusion that plaintiff met its burden of proving proper service, pursuant to CPLR 308(2), was supported by the record. The Referee found the process server's testimony, supported by her logbook and GPS photographs of the house, to be credible, and, by contrast, defendant's testimony contained unexplained discrepancies with her prior sworn statement concerning her place of residence.
Due to the physical features of the house, which was a legal one-family premises with no indicia from the front that there was a separate basement apartment, the process server could not reasonably have ascertained that there was such a separate unit, and that it was accessible from a side street, or that defendant resided there. Accordingly, substitute service made upon the person who answered the front door of the home satisfied the statutory requirements, and personal jurisdiction was obtained over defendant.
U.S. Bank N.A. v. Olatunji, NY Slip Op 07327 (1st Dep't Deceember 8, 2020)
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)
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)
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)
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)
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)
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)
