In order to succeed on a motion to vacate an order or judgment on the ground of newly discovered evidence, pursuant to CPLR 5015(a)(2), the movant must establish that the evidence could not have been discovered earlier through the exercise of due diligence and that the newly discovered evidence probably would have produced a different result.
Chase Bank USA, N.A. v. Laroche, NY Slip Op 05073 (2d Dep't August 31, 2022)
Thre is no appeal from a judgment entered upon the default of the appealing party, pursuant to CPLR 5511. However, an appeal from a judgment entered upon the default of the appealing party brings up for review those matters which were the subject of contest before the Supreme Court. As a general rule, the Appellate Division will not consider issues raised on a subsequent appeal that were raised, or could have been raised, on an earlier appeal which was dismissed for lack of prosecution, although it has inherent jurisdiction to do so.
275 Clermont, LLC v. Johnson, NY Slip Op 05070 (2d Dep't August 31, 2022)
The fundamental, neutral precept of contract interpretation is that agreements are construed in accord with the parties' intent, and the best evidence the contracting parties' intent is what they say in their writing. The parties' words and phrases must, as in all cases involving contract interpretation, be given their plain meaning. Where a contract was negotiated between sophisticated, counseled business people negotiating at arm's length, courts should be especially reluctant to interpret an agreement as impliedly stating something which the parties specifically did not include. Where the contract's terms are clear and unambiguous, the parties' intent must be found within the contract's four corners, giving a practical interpretation to the language employed and reading the contract as a whole. Where a contract fails to specify the time for performance, the law will imply a reasonable time.
255 Butler Assoc., LLC v. 255 Butler, LLC, NY Slip Op 05068 (2d Dep't August 31, 2022)
Pursuant to CPLR 3126, a court may impose discovery sanctions, including the striking of a pleading, where a party refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed. The resolution of discovery disputes and the nature and degree of the penalty to be imposed are matters within the sound discretion of the motion court. Absent an improvident exercise of discretion, the determination to impose sanctions for conduct that frustrates the purpose of the CPLR should not be disturbed.
Before imposing the drastic remedy of striking a pleading, there must be a clear showing that a party's failure to comply with discovery is willful and contumacious. Such conduct may be inferred from a party's repeated failure to comply with court-ordered discovery, coupled with inadequate explanations for the failures to comply, or a failure to comply with court-ordered discovery over an extended period of time.
255 Butler Assoc., LLC v. 255 Butler, LLC, NY Slip Op 05067 (2d Dep't August 31, 2022)
The injunction stays a landlord's termination of a leasehold while the propriety of the underlying default is litigated. The injunction does not nullify the remedies to which a landlord is otherwise entitled under the parties' contract. Instead, it maintains the status quo so that a commercial tenant, when confronted by a threat of termination of its lease, may protect its investment in the leasehold by obtaining a stay tolling the cure period so that upon an adverse determination on the merits the tenant may cure the default and avoid a forfeiture. In order t o obtain a Yellowstone injunction, the tenant 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 both the termination of the lease and the expiration of the cure period set forth in the lease and the landlord's notice to cure; and (4) it is prepared and maintains the ability to cure the alleged default by any means short of vacating the premises.
255 Butler Assoc., LLC v. 255 Butler, LLC, NY Slip Op 05066 (2d Dep't August 31, 2022)
In order to be awarded a default judgment, pursuant to CPLR 3215(f), the plaintiff must submit proof of service of the summons and the complaint, proof of the defendant's default, and proof of the alleged facts constituting the claim. In order to vacate the judgment, the defendant must give a reasonable excuse for its default and demonstrate a potentially meritorious defense to the claim.
195-197 Hewes, LLC v. Citimortgage, Inc., NY Slip Op 05065 (2d Dep't August 31, 2022)
Prior to answering the complaint, the defendant moved pursuant to CPLR 3211(a)(1) to dismiss the complaint. However, the defendant failed to appear in court on the return date, and the motion was marked off the calendar. Thereafter, the defendant moved to vacate its default in appearing on the return date and to restore its motion to the calendar. The Supreme Court granted the defendant's motion, and the plaintiff appeals. The Appellate Division affirms, but notes that, contrary to the defendant's contention, the Supreme Court's denial of the defendant's motion to dismiss the complaint, in a subsequent order, does not render this appeal academic.
195-197 Hewes, LLC v. Citimortgage, Inc., NY Slip Op 05064 (2d Dep't August 31, 2022)
The best evidence of what parties to a written agreement intend is what they say in their writing. The contract should be read as a harmonious and integrated whole, and each and every part should be given effect. Courts may not, through their interpretation of a contract, add or excise terms or distort the meaning of any particular words or phrases. Neither should an agreement be read to produce a result that is absurd, commercially unreasonable, or contrary to the reasonable expectations of the parties.
Here, the contractual provision that "[t]he Trustee agrees to . . . exercise the rights referred to above for the benefit of all present and future [certificateholders]" imposes an express duty on the trustees to enforce the repurchase protocol for the benefit of the investors. This express language is not discretionary, even though the provision does not use the language "shall" or "must." The provision employs the language "agrees to," which is also language of commitment.
IKB Intl., Inc., S.A. v. Wells Fargo Bank, N.A., NY Slip Op 05058 (1st Dep't August 30, 2022)
As a general rule, parents are not liable for the torts of their children. However, a parent may be held liable where the parent's alleged negligence consists entirely of the failure reasonably to restrain the child from vicious conduct endangering others, when the parent has knowledge of the child's propensity toward such conduct.
Levine v. George, NY Slip Op 05032 (2d Dep't August 24, 2022)
There can be more than one proximate cause of an accident, and a defendant moving for summary judgment must show that it is free from fault. Generally, it is for the trier of fact to determine the issue of proximate cause. Here, the defendant failed to establish, prima facie, that the injured plaintiff's action was the sole proximate cause of the incident and that the defendant's employee was free from fault. The motion is denied, without considering the sufficiency of the plaintiffs' opposing papers.
Fiorentino v. Uncle Giuseppe's of Port Wash., Inc., NY Slip Op 05023 (2d Dep't August 24, 2022)
Pursuant to CPLR 306-b, the court may extend the time for service "upon good cause shown or in the interest of justice." "'Good cause" and "interest of justice" are separate and independent statutory standards. In this action, the plaintiffs seek the extension in the interest of justice.
In deciding whether to grant a motion to extend the time for service in the interest of justice, the court must analyze the factual setting of the case and balance the competing interests presented by the parties. Unlike an extension request premised on good cause, a plaintiff need not establish reasonably diligent efforts at service as a threshold matter. However, the court may consider diligence, or the lack thereof, along with any other relevant factor in making its determination, including expiration of the Statute of Limitations, the meritorious nature of the cause of action, the length of delay in service, the promptness of the plaintiff's motion, and prejudice to the defendant
Here, the plaintiffs demonstrated that the action was timely commenced; that service was timely attempted and was believed by the plaintiffs to have been made within 120 days after the commencement of the action but was subsequently found to be defective; that the plaintiffs have a potentially meritorious cause of action; that the statute of limitations has expired; and that the extension of time does not prejudice the defendant.
The motion is granted.
Edwards v. Brooklyn Hosp. Ctr., NY Slip Op 05022 (2d Dep't August 24, 2022)