Settlement agreements.

The court found that the parties entered into a binding settlement agreement at the conclusion of mediation, the terms of which were embodied in an e-mail agreement. The e-mail correspondence is sufficient to embody a settlement agreement since it was authentic and sets forth all material terms. The settlement agreement specifically states that it is "subject to a formalized Settlement Agreement." In analyzing such language, courts must determine whether the parties have merely come to a preliminary agreement to agree, which is not enforceable, or a binding agreement, by determining whether there has been an explicit reservation that there would be no contract until the full formal document is completed and executed.

The parties' use of the phrase "subject to," standing alone, does not amount to an express reservation of the right not to be bound or a condition precedent to the formation of a binding contract. Instead,  the "subject to" language indicates the parties' expectation that they would come to a final agreement as a mere formality, not as a condition precedent to a binding settlement agreement. The parties' subsequent actions - including their correspondence with each other, their co-counsel, and the court - all indicate their respective understandings that the parties had come to a final settlement agreement resolving the related action in federal court.

Go N.Y. Tours, Inc. v. Tour Cent. Park Inc., NY Slip Op 02457 (1st Dep't May 9, 2023)

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Vacating a default.

In order to vacate a default in appearing at a conference, the defaulting party must demonstrate both a reasonable excuse and a potentially meritorious cause of action or defense to the action. The determination of whether an excuse is reasonable lies within the sound discretion of the trial court. A court has discretion to accept law office failure as a reasonable excuse where the claim is supported by a detailed and credible explanation. However, law office failure should not be excused where the default results not from an isolated, inadvertent mistake, but from repeated neglect, or where the allegation of law office failure is vague, conclusory, and unsubstantiated.

Beach 28 RE, LLC v. Somra, N.Y. Slip Op 02295 (2d Dep't May 3 2023)

Here is the decision.

Disclosure of settlement agreements.

After a gas explosion, New York City and Con Ed, among other entities, were named as defendants in a number of actions. The City and Con Ed also asserted various claims against each other for property damage, indemnification, and contribution. At a court-ordered mediation, the City and Con Ed reached an agreement on the allocation of liability between them, and plaintiff seeks disclosure of their agreement.

When a nonsettling party seeks disclosure of the terms of a settlement agreement, the terms of the agreement must be material and necessary to the non-settling party's case.  After in camera review of the agreement, disclosure of its terms is prohibited. The agreement is not improper, as it does not demonstrate collusion or undermine the adversarial process because plaintiff may pursue discovery from both defendants.

Matter of Barrios v. Consolidated Edison Co. of N.Y., Inc., NY Slip Op 02378 (1st Dep't May 4, 2023)

Here is the decision.

Dismissed as abandoned.

CPLR 3215(c) provides that "[i]f the plaintiff fails to take proceedings for the entry of judgment within one year after the default, the court shall not enter judgment but shall dismiss the complaint as abandoned, without costs, upon its own initiative or on motion, unless sufficient cause is shown why the complaint should not be dismissed." The statutory language is strictly construed, as it is mandatory that the court dismiss such claims. Where an action is subject to a mandatory settlement conference, pursuant to CPLR 3408, the one-year deadline is tolled while settlement conferences are pending.

Bank of N.Y. Mellon v. Toscano, NY Slip Op 02294 (2d Dep't May 3, 2023)

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Real property and liability.

Liability for a dangerous condition on real property must be predicated upon ownership, occupancy, control, or special use of the property, and any one of these elements gives rise to a duty of care. However, liability can also be imposed upon a party that creates a dangerous or defective condition.

Abramson v. Janowski's Hamburgers, Inc., NY Slip Op 02293 (2d Dep't May 3, 2023)

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Equitable estoppel.

Equitable estoppel is an extraordinary remedy which applies where a party is prevented from filing an action within the statute of limitation due to his reasonable reliance on deception, fraud, or misrepresentations by the other party. Plaintiff has the burden of establishing that defendant engaged in affirmative misconduct that prevented it from timely asserting its claims. Here, the amended complaint alleges that defendant refused to negotiate towards resolution of the parties' dispute. However, there is no evidence or even an allegation that defendant lulled plaintiff into inaction in order to allow the limitations period to lapse.

MRE Tech. Solutions LLC v. Smiths Detection, Inc., NY Slip Op 02387 (1st Dep't May 4, 2023)

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Amending a complaint.

Plaintiff is entitled to amend his complaint, pursuant to CPLR 3025(b), as the claims are not devoid of merit or palpably insufficient. Although the proposed amendment is verified only by counsel, the existence of the relevant contracts is within counsel's knowledge since the contracts are attached as exhibits.

Smith v. Founders Entertainment LLC, NY Slip Op 02291 (1st Dep't May 2, 2023)

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Common-law indemnification.

Common-law indemnification is not available unless the petitioner has been held to be vicariously liable without proof of any negligence or actual supervision on its own part.

176 W. 87th St. Owners Corp. v. Guercio, NY Slip Op 02277 (1st Dep't May 2, 2023)

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The continuing violation doctrine.

The doctrine does not apply to plaintiff's claims for disability discrimination under the New York State and New York City Human Rights Laws because the complaint does not allege facts comprising a single continuing pattern of unlawful conduct, but, instead, alleges discrete events, involving different actors.

Lasher v. New York City Dept. of Educ., NY Slip Op 02179 (1st Dep't April 27, 2023)

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A petition to vacate an arbitration award.

The parties' arbitration agreement provided that judicial review of an award would be pursuant to the requirements of the Federal Arbitration Act, at 9 USC §§ 9, 10. The grounds for vacatur at 9 USC § 10(a) are analogous to those specified in CPLR 7511(b)(1). The award addressed each of petitioner's substantive claims and undermines petitioner's arguments that the award reflected a manifest disregard of the law. There is nothing in the record to support petitioner's allegations that the presentment of her case was prejudiced by the arbitrator's decisions regarding discovery and procedure. There is no evidence to support petitioner's claim that the arbitrator exceeded his powers in rendering the award, as the arbitrator enforced the rules and procedures in the arbitration agreement and answered the claims as framed by the parties. By participating in the arbitration, petitioner waived her claim that the arbitrator was biased, and, in any event, the claim is based on speculation that is unsupported by objective facts inconsistent with impartiality. The petition is denied.

Matter of Pezhman v. Bloomingdales, Inc., NY Slip Op 02196 (1st Dep't April 27, 2023)

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Summary judgment in a premises liability action.

The defendant-movant has the initial burden of making a prima facie showing that it neither created the allegedly dangerous or defective condition nor had actual or constructive notice of it. The defendant also may establish its prima facie entitlement to judgment as a matter of law by submitting evidence that the plaintiff cannot identify the cause of his injury without engaging in speculation.

Bayer v. Savan Hospitality Corp., NY Slip Op 02096 (2d Dep't April 26, 2023)

Here is the decision.