Although the sua sponte dismissal of an action is not appealable as of right, pursuant to CPLR 5701[a][2], the Appellate Division may deem the notice of appeal from that portion of an order to be a motion for leave to appeal, and grant such leave.
558 Seventh Ave. Corp. v. Times Sq. Photo Inc., NY Slip Op 03244 (1st Dep't May 20, 2021)
By order, defendants were directed to serve their answer to the amended complaint within 20 days of service of notice of entry of the order. Defendants were served with notice of entry of the order, but they did not move for leave to file a late answer until 35 days later, when plaintiff filed its request to enter a default judgment with the clerk. The court denied defendants' motion for leave to file a late answer on the ground that defendant failed to provide a reasonable excuse for the delay in answering. At the same time, the clerk informed plaintiff that it needed to formally move for a default judgment. Thereafter, plaintiff formally moved for a default judgment and defendants cross-moved to extend their time to answer for the second time.
The Appellate Division determined that the court properly denied defendants' motion for leave to file a late answer based on law of the case. The court initially denied defendants' motion on the ground that defendants failed to provide a reasonable excuse, and defendants never appealed that decision or moved to reargue that decision. Defendants then made a second motion for leave to file a late answer and offered the same excuse for their delay. The Appellate Division determined that, in the alternative, the motion court properly denied defendants' second motion for leave to file a late answer on the ground that defendants failed to put forth a reasonable excuse for their delay in answering the amended complaint. It was not an abuse of discretion for the court to find that defendants' excuse was not reasonable.
2001 Real Estate Space Catalyst, Inc. v. Stone Land Capital, Inc., NY Slip Op 03138 (1st Dep't May 18, 2021)
The Appellate Division modified the order and dismissed the claim, which alleges that defendants agreed to compensate plaintiffs with equity over the course of a 10-year period. The cause of action is barred by the statute of frauds, pursuant to General Obligations Law § 5-701[a][1], and the allegations, which relate to the breach of an oral agreement, are not a proper basis for a quantum meruit/quasi contract claim.
Razzak v. Juno, Inc., NY Slip Op 03153 (1st Dep't May 18, 2021)
Records exchanged during discovery may be used at, and are proper topics of questioning during, examinations before trial. The fact that some documents may be inadmissible at trial does not restrict use of those documents at examinations before trial.
Jones v. FEGS-WeCARE/Human Resources, NYC, NY Slip Op 03116 (1st Dep't May 13, 2021)
At issue here is a Facebook post that states, "Jim is a crook. Worst Company to do business with." As this post is merely an expression of opinion, it is not actionable. There is nothing in the post that implies that there are undisclosed facts to support the opinion, and the complaint is dismissed.
Rowbotham v. Wachenfeld, NY Slip Op 03125 (1st Dep't May 13, 2021)
The Appellate Division affirmed the Order which granted plaintiffs' motion to compel discovery to the extent of directing defendants to comply with certain specified requests and to submit to depositions. Although some of the information plaintiff seeks pre- and post-dates the contracts at issue, the information is material and necessary to its claims, pursuant to CPLR 3101[a], since plaintiffs allege that defendants warranted their financial condition when they entered into the contracts, that they may have misrepresented their financial condition, and that they failed to meet their financial obligations under the contracts. The post-contract events are relevant to plaintiff's claims and potential damages, given conflicting evidence as to whether defendant remained in business or had sold or otherwise transferred its assets to a successor entity, and since the contracts provided that their terms would be binding on the parties' respective successors and assigns.
Strategic Funding Source, Inc. v. Steenbok, Inc., NY Slip Op 03127 (1st Dep't May 13, 2021)
The Appellate Division affirmed the motion court's dismissal of plaintiff's claim for breach of the implied covenant of good faith and fair dealing as duplicative of the breach of contract claim. In support of this claim, plaintiff relies on the same facts that form the basis for the breach of contract claim and seeks the very same damages.
320 W. 115 Realty LLC v. All Bldg. Constr. Corp., NY Slip Op 03107
It is well settled that, absent allegations of a breach of duty independent of the contract, a cause of action based on negligent or grossly negligent performance of a contract is not cognizable. Here, the allegations of negligence relate only to defendants' alleged faulty performance of the construction work, which does not fall outside of the obligations agreed to under the contract. Plaintiff's attempt to rely on NY Lien Law article 3-A in an effort to establish an extra-contractual duty owed to plaintiff is unavailing. The allegations of negligence are not based on a breach of defendants' purported duty to pay subcontractors, but on defendants' alleged failure to perform the work properly. The negligence allegations are duplicative of those asserted in support of plaintiff's claim for breach of contract and the claim is dismissed.
320 W. 115 Realty LLC v. All Bldg. Constr. Corp., NY Slip Op 03107 (May 13, 2021)
Plaintiff alleges that (1) defendants, in order to induce plaintiff to sign the contract, submitted an artificially low price which they never intended to honor, and (2) defendants, from the start, did not intend to perform under the contract. However, a cause of action for breach of contract cannot be converted into one for fraud by merely alleging that defendant did not intend to fulfill the contract. Instead, an actionable claim for fraudulent inducement must allege the representation of present fact, not of future intent. As plaintiff makes no such allegations here, the claim is dismissed.
320 W. 115 Realty LLC v. All Bldg. Constr. Corp., NY Slip Op 03107 (1st Dep't May 13, 2021)
The Appellate Division affirmed the Order which denied defendant's motion to vacate a judgment entered upon her default. Following the adjournments of the pretrial conferences at which defendant failed to appear, the matter was set down for trial on March 21, 2018. Defendant failed to appear for trial due to a snowstorm on that date, and the matter was set down for trial on April 11, 2018 and marked final. Defendant again failed to appear, sending a message to the motion court through her business manager, on the day of trial, that she was ill. Given defendant's failure to make arrangements to appear on the trial date, either in person or through counsel, or in the three weeks thereafter, the motion court providently determined that her unsupported excuse for defaulting was unreasonable. Given this pattern of default, the motion court declined to reach the issue of whether defendant had a meritorious defense to the action, and, for the same reason, the Appellate Division declined to reach the issue.
1032-1034 Lexington Ave., Ltd. v. Rogers, NY Slip Op 02973 (1st Dep't May 11, 2021)
In the severance agreement, plaintiff agrees to release defendant "from any and all causes of action, claims or demands up to the date of this Agreement, known or unknown." This release bars the fraudulent inducement claim based on the allegedly false representation that plaintiff was terminated because of the company's strategic restructuring. In addition, the severance agreement advises plaintiff to consult with an attorney and allows her 45 days to sign and seven days to revoke after signing, undermining plaintiff's claims that the agreement was not fairly and knowingly made.
Evans v. Bloomberg L.P., NY Slip Op 02872 (1st Dep't May 6, 2021)