Affirming an arbitration award.

The Appellate Division affirmed the Judgment, to the extent appealed from, confirming so much of an arbitration award as awarded prejudgment interest at the rate of 3% per annum, rather than 9%, and required the parties to split the administrative fees and arbitration expenses. Petitioner failed to demonstrate any of the statutory grounds for vacating an arbitration award, pursuant to CPLR 7511[b]. The arbitrator's determination to impose 3% pre-award interest was neither a computational error subject to vacatur under CPLR 7511(c)(1), nor in excess of the arbitrator's authority under CPLR 7511(b)(1)(iii). The arbitrator's determination to allocate arbitration costs and fees between the parties was not in excess of his authority. Although the parties' employment agreement and the applicable rules of the American Arbitration Association specified that the costs of arbitration would be borne by respondent, the arbitrator also had before him respondent's claims based on a promissory note providing that petitioner, as borrower, is responsible for attorneys' fees and the costs of collection upon his breach of the note. Even if the arbitrator made a mistake of fact or law, or disregarded the plain words of the parties' agreement, the award is not subject to vacatur because it is not totally irrational or violative of a strong public policy.

Matter of Mora v. Macquarie Holdings (USA) Inc., NY Slip Op 02876 (1st Dep't May 6, 2021)

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A slip and fall action.

The Appellate Division reversed the Order which denied defendants' motion for summary judgment dismissing the complaint and any cross claims against them, and granted the motion. Defendants established prima facie that they did not have actual or constructive notice of the water on their lobby floor that plaintiff alleges caused her to slip and fall. Their property manager stated in an affidavit that she conducted a search of defendants' records for complaints about water on the lobby floor between January 1, 2015 and July 14, 2015, the date of plaintiff's accident, and found none except for the complaint made by plaintiff after she fell. That someone fell in the lobby while it was raining after stepping off a mat about a year before plaintiff's accident does not raise an issue of fact as to whether defendants had actual notice of the water that caused plaintiff to fall. Plaintiff's own testimony established prima facie that defendants did not have constructive notice of water on the lobby floor; she testified that it was sunny when she left for lunch, that it did not start raining that day until about five minutes before she reentered the building, and that she did not see the water until after she fell.

Practice point:  A general awareness that the lobby floor could become wet during inclement weather is insufficient to raise a triable issue of fact as to whether defendants had constructive notice of the specific condition that caused plaintiff's fall.

Barreto v. 750 Third Owner, LLC, NY Slip Op 02868 (1st Dep't May 6, 2021)

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Appellate practice.

This appeal from a decision of Supreme Court, New York County, which granted plaintiff's motion to consolidate this action with an action from the Kings County Supreme Court was dismissed as taken from a nonappealable paper. The lack of an appealable paper deprives the Appellate Division of jurisdiction and requires dismissal of the appeal.

Sanchez v. MJ-MC Home Health Care Agency, Inc., NY Slip Op 02883 (1st Dep't May 6, 2021)

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A motion to renew.

The Appellate Division affirmed the denial of the motion as the newly proffered emails were previously available at the time plaintiffs submitted their initial opposition to defendants' motion to dismiss, and the unexplained failure to incorporate the emails into the opposition papers was not supported by a reasonable excuse.

Ubiles v. Ngardingabe, NY Slip Op 02772 (1st Dep't May 4, 2021)

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Breach of contract.

The Appellate Division affirmed, with costs, the Order which denied defendant's motion to dismiss the cause of action for breach of contract. On March 31, 2015, the parties entered into a 10-year lease for retail premises. The lease provided that the "Grand Opening Date" was "[e]stimated" to be October 8, 2015, and that defendant "shall endeavor" to give plaintiff an estimated delivery date at least 270 days prior to the expected delivery date of the premises. Plaintiff commenced this action in October 2019, alleging that defendant breached the lease by failing to provide an estimated delivery date, complete construction work specified in the lease, and deliver the premises.

The Appellate Division determined that giving plaintiff an estimated delivery date was not a condition precedent to delivery, but, rather, an independent obligation under lease. Since the provision did not specify a date by which to satisfy the obligation, defendant was obligated to provide an estimated delivery date within a reasonable time after the lease was executed. While the lease contemplated some delays between execution of the lease and delivery of the premises, plaintiff sufficiently alleged that the delays that actually occurred were unreasonable. Indeed, the lease was to run for only 10 years from delivery, and yet, nearly five years after the lease was executed, defendant was still unable to provide an estimated delivery date.

Defendant's argument that the no-damages-for-delay clause bars rescission of the lease for the delays caused by circumstances outside its control is unavailing. The clause provides that defendant is not liable for any damages incurred as a result of its failure to "make the Premises available within the time and/or in the condition provided" in the lease. It makes no mention of defendant's obligation to provide an estimated delivery date. In any event, intentional acts that caused delays, such as plaintiff alleges, would not fall with the ambit of the exculpatory clause.

Victoria's Secret Stores, LLC v. New WTC Retail Owner LLC, NY Slip Op 02773 (1st Dep't May 4, 2021)

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CPLR 103(c).

Plaintiff brought this special proceeding to enforce a charging lien. Regardless of whether the parties consented to convert the proceeding to a plenary action, the court's determination to do so pursuant to the statute was a sound exercise of discretion. Based on the record, there are numerous unresolved factual issues that warrant discovery concerning the amount of attorney's fees, if any, that petitioner is entitled to recover on a quantum meruit basis. The Appellate Division notes that, as a general matter, a claim for quantum meruit recovery, as opposed to a claim on a charging lien, should be brought as a plenary action. Upon converting the proceeding to an action, the court properly deemed the petition to be converted to a complaint, and the language permitting the petition to be withdrawn was superfluous.

Matter of David H. Berg & Assoc. v. Weksler, NY Slip Op 02489 (1st Dep't April 27, 2021)

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Dismissal of a defamation claim.

The Appellate Division modified the Order insofar as it denied defendants' motion to dismiss the defamation claim, and granted the motion. The claim must be dismissed as against all defendants, because the only statements found actionable by the motion court were made to plaintiff's paralegal, that is., plaintiff's representative, and not to a third party. The defamation per se claim is included, since no harm can be presumed to result to plaintiff from statements made to its own representative. Contrary to plaintiff's contention, the court did not "infer" that defamatory statements were made to its clients. It ruled that statements made to plaintiff's clients were nonactionable because they were pleaded without the requisite particularity and/or time-barred, pursuant to CPLR 3016[a].

Ginarte Gallardo Gonzalez & Winograd v. Schwitzer, NY Slip Op 02492 (1st Dep't April 27, 2021)

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Permanent injunctions.

A plaintiff cannot demonstrate the essential element of irreparable injury where its alleged damages are compensable in money and are able to be calculated.

Mintz Fraade Law Firm, P.C. v. Federal Ins. Co., NY Slip Op 02607 (1st Dep't April 29, 2021)

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Striking of pleadings.

The court, on its own motion, struck defendant's pleadings for failure to comply with several earlier orders, including a conditional order, and properly denied defendant's motion for renewal. The conditional order required defendant to provide responses by certain dates, and stated that failure to provide discovery as required "will result" in the striking of its answer and third-party complaint. The court struck defendant's pleadings after a hearing. Defendant did not submit new facts on renewal requiring a different result. The Appellate Division determined that the court acted within its discretion in enforcing the conditional order strictly, as there was outstanding discovery well after the deadline and defendant did not offer a reasonable excuse for its default in compliance.

ZDG LLC v. 310 Group LLC, NY Slip Op 02622 (1st Dep't April 29, 2021)

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Summary judgment in a slip and fall action.

The Appellate Division unanimously the Order which granted defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs. Defendant established prima facie that the complaint should be dismissed by showing that it had no actual or constructive notice of the wet condition of the stairs that plaintiff alleges caused her to slip and fall. Defendant submitted testimony by the supervisor of its building caretakers, evidence of the janitorial cleaning schedules for the building, and an affidavit by the building's caretaker that she fulfilled her regularly scheduled cleaning duties in the late afternoon of the day before plaintiff's accident, as well as the morning of the accident at about the time of the accident, that during each inspection she found the staircase clean, dry, and free of debris, and that otherwise she would have immediately addressed any dangerous condition she observed. In opposition, plaintiff failed to raise an issue of fact via her expert opinion, prepared four years after the action was commenced, which introduced new theories of liability notwithstanding her testimony that she believed that the alleged water hazard was the sole cause of the accident.  Even if, as plaintiff's expert contends, the stairs were otherwise defective, defendants are entitled to summary judgment, because there is no evidence that these defects contributed to the accident.

Villar v. New York City Hous. Auth., NY Slip Op 02505 (1st Dep't April 27, 20210

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Vicarious liability in a medical malpractice action.

The defendant-hospital cannot be held vicariously liable for any acts or omissions of the nonparty-physician who plaintiff failed to identify in his complaint or bill of particulars as a person for whose negligence the hospital could be liable.

Gambacorta v. Giordano, NY Slip Op 02454 (1st Dep't April 22, 2021)

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