Civil contempt.

The Appellate Division affirmed, with costs, the Order which held defendant in civil contempt of court and ordered that he pay a fine of $500 per day until the contempt is purged. Clear and convincing evidence supports the court's entry of the contempt order. The record establishes that defendant disobeyed the plain terms of the court's earlier order requiring compliance with the subpoena, which clearly mandated that he respond to the subpoena "fully, completely, and truthfully" by March 10, 2020. Defendant failed to provide any answers to the subpoena by the deadline, submitting his first responses nearly three months later. When defendant finally did respond to the subpoena in June 2020, he submitted information that was demonstrably incomplete and untruthful. Defendant's reliance on the COVID-19 pandemic as an excuse for his noncompliance is unavailing He was served with the subpoena in June 2019, months before the pandemic. Moreover, not all of the information defendant was ordered to turn over required collection from third parties or outside sources. Finally, his failure to appear at the contempt hearing - despite having been offered the option of attending via videoconference, and being on notice that his failure to appear could result in his arrest - was, in and of itself, sufficient grounds for a finding of contempt.

Sang Cheol Woo v. Spackman, NY Slip Op 04287 (1st Dep't July 8, 2021)

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Leave to amend.

While a motion for leave to amend should not be granted if the nonmoving party would be prejudiced by the delay, the need for additional discovery does not constitute prejudice sufficient to justify denial of an amendment. Here, the parties do not dispute that depositions have not taken place and discovery is not otherwise complete, and the motion is granted.

322 W. 47th Street HDFC v. Tibaldeo, NY Slip Op 04199 (1st Dep't July 6, 2021)

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Alter ego liability.

A party seeking to pierce the corporate veil must establish that (1) the owners exercised complete domination of the corporation with respect to the transaction attacked, and (2) the domination was used to commit a fraud or wrong against the plaintiff which resulted in the plaintiff's injury. As a general rule, a claim for alter ego liability is fact-laden and not well-suited for summary judgment.

Arjumand v. LaGuardia Express, LLC, NY Slip Op 04117 (2d Dep't June 30, 2021)

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CPLR 213[4].

An action to foreclose a mortgage is subject to a six-year statute of limitations which begins to run on the entire debt once the debt is accelerated. Where the maturity of the debt has been validly accelerated by commencement of a foreclosure action, the noteholder's voluntary withdrawal of that action revokes the election to accelerate, absent the noteholder's contemporaneous statement to the contrary.

21st Mtge. Corp. v. Rivera, NY Slip Op 04116 (2d Dep't June 30, 2021)

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A statute of limitations defense.

The doctrine of equitable estoppel does not bar defendants from asserting the defense since nothing in the record shows that any of their acts contributed to the delay in filing the complaint. In fact, the allegations in the complaint show that plaintiffs had or could have obtained with due diligence all the information they needed to bring an action before the limitations period expired. Neither does the continuing wrong doctrine apply to toll the applicable statute of limitations on the cause of action for an accounting since the actual wrongs on which that cause of action is based are defendants' alleged fraud and breach of contract.

Derringer v. F.G.G. Prods. Inc., NY Slip Op 04187 (1st Dep't July 1, 2021)

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Yellowstone injunctions.

The plaintiff must demonstrate that (1) it holds a commercial lease; (2) it received from the landlord either a notice of default, a notice to cure, or a threat of termination of the lease; (3) it requested injunctive relief prior to the termination of the lease; and (4) it can cure the alleged default by any means short of vacating the premises. The First Department interprets the third criterion to require a tenant to move for injunctive relief before the cure period in the landlord's notice expires.

Gap, Inc. v. 170 Broadway Retail Owner, LLC, NY Slip Op 04115 (1st Dep't June 29, 2021)

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CPLR 3213.

The Appellate Division affirmed the Order which granted plaintiff's motion for summary judgment in lieu of complaint and denied defendant's cross motion for summary judgment. The plaintiff made a prima facie showing by proof of the parties' agreement and defendant's failure to make the required payments. The defendant failed to raise an issue of fact as to his defense that the loan is unenforceable under General Obligation Law § 5-413 as a loan made for the purpose of gambling or as a loan with a usurious interest rate. The defendant argued that the plaintiff's motion is premature, citing a need for discovery of a locked flash drive on which plaintiff allegedly maintained a spreadsheet of usurious loans. The Appellate Division rejected the argument, as he failed to explain why he was unable to maintain his own tally of monies loaned, monies paid, and interest rates. 

Bronson v. Jacobs, NY Slip Op 04081 (1st Dep't June 24, 2021)

Here is the decision.