A legal malpractice action.

Plaintiff claims that defendants negligently failed to advise it that an amendment to a commercial lease would extinguish its purchase option upon sale of the premises, and that, but for defendants' negligence, it would not have signed the amendment but would have exercised its purchase option as of right between 2023 and 2024, acquiring the premises for no more than $11.4 million. It is undisputed that after the amendment was executed, the landlord received a bona fide third-party purchase offer and plaintiff exercised its right of first refusal, purchasing the premises in 2016 for $14.5 million.

Defendants motion for summary judgment dismissing the claim is denied. Defendants' email attaching a marked-up copy of the relevant lease section does not establish, as a matter of law, that defendants advised plaintiff as to the meaning of the amendment, and the parties dispute the oral advice that was provided by defendants. The fact that plaintiff's agent read the amendment does not establish, as a matter of law, that defendants were not negligent. Any evidence that plaintiff's agent, a sophisticated businessman, knew or should have known that the amendment was substantive despite defendants' advice that it was "housekeeping" does not disprove defendants' negligence. It is evidence that can be offered in mitigation of damages.

Alrose Steinway, LLC v. Jaspan Schlesinger, LLP, NY Slip Op 03310 (1st Dep't May 19, 2022)

Here is the decision.

CPLR 501.

 "A written agreement fixing place of trial, made before an action is commenced, shall be enforced upon a motion for change of place of trial." Based on the express statutory language, the enforcement of a contractual venue selection clause may not be raised sua sponte, but must be raised by motion or otherwise settled on consent of the parties.

Allen v. Morningside Acquisition I, LLC, NY Slip Op 03219 (2d Dep't May 18, 2022)

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CPLR 3101(a).

The statute directs that "[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action." However, a party is not entitled to unlimited, uncontrolled, and unfettered disclosure. Since a party does not waive the physician-patient privilege with respect to unrelated illnesses or injuries, the defendant was not entitled to authorizations for the release of the injured plaintiff's medical records pertaining to a prior automobile accident and stroke. The defendant did not show that the injuries and illness were related to the accident at issue, and so the defendant failed to meet its initial burden of demonstrating that those records were relevant to the issues in controversy, and material and necessary to the defense of this action. 

Fitzpatrick v. Consolidated Resistance Co. of Am., Inc., NY Slip Op 03097 (2d Dep't May 11, 2022)

Here is the decision.

A time-barred Article 78 petition.

The Appellate Division affirmed the denial of the petition brought to expunge the May 6, 2019 disciplinary letter from petitioner's personnel file. As the four-month statute of limitations began to run when the letter was placed in petitioner's file, and this proceeding was not commenced until January 13, 2021, the court should not have considered the letter.

Matter of Connors v. City of New York, NY Slip Op 03209 (1st Dep't May 17, 2022)

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CPLR 5001.

The motion court properly awarded statutory interest on the amount owed by the LLC defendants. The fact that the borrower must pay contractual interest on the underlying loan does not preclude the court's imposition of statutory interest on the amount that the LLC defendants owe under separately executed guaranties.

Talos Capital Designated Activity Co. v. 257 Church Holdings LLC, NY Slip Op 03186 (1st Dep't May 12, 2022)

Here is the decision.

Constructive notice of a hazardous condition.

A defendant has constructive notice of a hazardous condition on property when the condition is visible and apparent, and has existed for a sufficient length of time prior to the accident so as to afford the defendant a reasonable opportunity to discover and remedy it. To meet its burden on the issue of constructive notice, the defendant must offer evidence as to when the accident site was last inspected relative to the time when the plaintiff fell.

 Ferrer v. 120 Union Ave., LLC, NY Slip Op 03096 (2d Dep't May 11 2022)

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CPLR 5015(a)(3).

A defendant moving to vacate a default based on intrinsic fraud, that is, on the basis that the plaintiff's allegations in the complaint are false, must establish both a reasonable excuse for the default and a potentially meritorious defense to the action.

3331 102 St. LLC v. Newport Beach Holdings LLC, NY Slip Op 03170 (1st Dep't May 12, 2022)

Here is the decision.

Affidavits of service.

A process server's affidavit of service establishes a prima facie case as to the method of service and, therefore, gives rise to a presumption of proper service. A defendant's sworn denial of receipt of service generally rebuts the presumption and necessitates an evidentiary hearing. However, no hearing is required where the defendant fails to swear to specific facts to rebut the statements in the affidavit. 

Federal Natl. Mtge. Assn v. Grossman, NY Slip Op 03095 (2d Dep't May 11, 2022)

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CPLR 1024.

The motion to dismiss the complaint is denied where plaintiff made diligent efforts to ascertain the defendant's identity prior to filing the complaint, and the complaint adequately described the defendant so as to apprise him that he was the intended defendant.

Strautmanis v. GMDC Two Corp., NY Slip Op 03092 (1st Dep't May 10, 2022)

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Res judicata as a bar to a claim.

The claim is not barred by the doctrine of res judicata, because the New Jersey appellate court's dismissal was without prejudice, and, therefore, was not a final determination on the merits.

Wormser Corp. v. L'Oréal USA, Inc., NY Slip Op 03093 (1st Dep't May 10, 2022)

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Tenants in common.

Where parties hold property as tenants in common, occupancy by one tenant is presumed to be possession by and for the benefit of all other cotenants, unless the possessing tenant commits acts constituting ouster, at which point, the possessing tenant may commence to hold adversely to the cotenants. The ouster can be actual, where a cotenant expressly communicates an intention to exclude or to deny the rights of cotenants, or, it can be implied, where the acts of the possessing cotenant are so openly hostile that the nonpossessing cotenants can be presumed to know that the property is being adversely possessed against them. Title by adverse possession is acquired when possession is hostile and under claim of right, actual, open and notorious, exclusive, and continuous for the statutory period of 10 years after the ouster.

Belli v. Paul Belli, LLC, NY Slip Op 02973 (2d Dep't May 4, 2022)

Here is the decision.