Motion practice.

Pursuant to the Uniform Civil Rules for the Supreme Court and the County Court, at 22 NYCRR 202.8-b[a], [c], moving papers must include a word-count certification. Failure to submit the certification is a technical defect that the motion court should overlook.  However, failure to comply with the requirements of 22 NYCRR 202.7 cannot be overlooked. Pursuant to that rule, a discovery motion must be accompanied by moving counsel's affirmation that he or she has conferred with opposing counsel in a good-faith effort to resolve the issues raised by the motion. The purpose of this rule is to avoid the unnecessary expenditure of limited judicial resources in circumstances where, through constructive dialogue, the attorneys could resolve the issues that otherwise would be raised in a motion. The affirmation must indicate the time, place, and nature of the consultation and the issues discussed and their resolution, or good cause why no such conferral was held.  The failure to submit the affirmation warrants denial of the motion.

Anuchina v. Marine Transp. Logistics, Inc., NY Slip Op 02858 (2d Dep't May 31, 2023)

Here is the decision.

Default judgments.

Pursuant to CPLR 3215(f), an applicant for a default judgment against a defendant must submit proof of service of the summons and complaint, proof of the facts constituting the claim, and proof of the defaulting defendant's failure to answer or appear. In order to demonstrate the facts constituting the claim, the movant need only submit sufficient proof to enable a court to determine that there is a viable cause of action. In opposition to a motion for leave to enter a default judgment, the defendant who has failed to timely appear or answer the complaint must provide a reasonable excuse for the default and demonstrate a potentially meritorious defense to the action.  Whether a proffered excuse is reasonable is a sui generis determination to be made by the court based on all relevant factors, including the extent of the delay, whether there has been prejudice to the opposing party, whether there has been willfulness, and the strong public policy in favor of resolving cases on the merits. The determination of what constitutes a reasonable excuse lies within the discretion of the motion court. Where the defendant fails to demonstrate a reasonable excuse for its default, the court need not consider whether the defendant possesses a potentially meritorious defense to the action.  

Cartessa Aesthetics, LLC v. Demko, NY Slip Op 03328 (2d Dep't June 21, 2023)

Here is the decision.

Liquidated damages.

Whether an early termination fee is an enforceable liquidation of damages or an unenforceable penalty is a question of law, giving due consideration to the nature of the contract and the circumstances. A liquidated damages clause is enforceable if the amount liquidated bears a reasonable proportion to the probable loss and the amount of actual loss is incapable or difficult of precise estimation. The burden is on the party seeking to avoid liquidated damages to show that the stated damages are, in fact, a penalty. This burden is met with evidence establishing that actual damages were readily ascertainable at the time the contract was entered into or that the liquidated damages are conspicuously disproportionate to foreseeable or probable losses.

Pool Doctor Mgt. Serv., Inc. v. Board of Mgrs. of the Meadowlands Estates Condominium, Inc., NY Slip Op 02800 (2d Dep't May 24, 2023)

Here is the decision.

Specific performance.

There is no automatic contractual right to specific performance; it is an equitable remedy for a breach of contract. The grant of specific performance is a matter of judicial discretion, which is controlled by the established doctrines and settled principles of equity. A court reviewing an agreement that provides for specific performance should accord deference to the parties' manifest intent, unless enforcement of the provision would produce an inequitable result. Parties are bound to the terms of their contracts, including their remedies.

A party that is contractually entitled to specific performance must demonstrate that it substantially performed its contractual obligations, that the breaching party was able to convey, and that there is no adequate remedy at law.

301 E. 60th St. LLC v. Competitive Solutions LLC, NY Slip Op 02842 (1st Dep't May 30, 2023)

Here is the decision.

Notices of claim.

In determining whether to grant leave to serve a late notice of claim or to deem a late notice of claim timely served nunc pro tunc under General Municipal Law § 50-e(5), the court, in its discretion, must consider all relevant facts and circumstances, including, but not limited to, whether (1) the claimant demonstrated a reasonable excuse for the failure to serve a timely notice of claim, (2) the public corporation acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter, and (3) the delay would substantially prejudice the public corporation in its defense. No single factor is determinative, but the timing of the public corporation's actual knowledge of the essential facts constituting the claim is of great importance. In order for medical records to establish actual knowledge within the meaning of the statute, the records must establish that the medical staff, by its acts or omissions, inflicted an injury on the plaintiff.

Santos v. Westchester Med. Ctr., NY Slip Op 02802 (2d Dep't May 24, 2023)

Here is the decision.

June 6, 1944.

Appellate practice.

An argument is not properly before the Appellate Division if it is raised for the first time on appeal or if it relies on matters outside the record. 

Matter of Casanas, NY Slip Op 02826 (1st Dep't May 25, 2023)

Here is the decision.

Discovery demands.

An order striking the answer was entered after the court found that defendant failed to comply with the provisions of a conditional order striking the answer unless defendant complied with specified discovery demands within a specified time. The conditional order was issued following a prolonged period in which defendant provided partial but inadequate responses to outstanding discovery demands and orders, as well as a stipulation entered into between the parties. CPLR 3126 authorizes trial courts to craft self-executing orders that impose discovery sanctions on a party unless that party submits to the disclosure within a specified time. Conditional orders become absolute upon failure to fully comply wih them. Defendant's arguments that its noncompliance was not willful or contumacious is irrelevant because, where a litigant fails to comply with a conditional order, the court is not required to find that its failure to comply was willful. Relief from a conditional order requires a reasonable excuse for the failure to produce the requested items and the showing of a meritorious defense. Defendant's argument that plaintiff's document demands were improper and should not have been enforced by the court is unavailing since it failed to timely object to the document demands and never sought a protective order pursuant to CPLR 3103.

Citizen Watch Co. of Am., Inc. v. Zapco 1500 Inv., L.P., NY Slip Op 02823 (1st Dep't May 25, 2023)

Here is the decision.

Claims against the State.

Pursuant to Court of Claims Act § 11(b), a claim against New York State must specify (1) the nature of the claim; (2) the time when it arose; (3) the place where it arose; (4) the items of damage or injuries claimed to have been sustained; and (5) the total sum claimed. Noncompliance with the statutory requirements is a jurisdictional defect that requires dismissal of the claim. A sufficiently detailed description of the claim's particulars is necessary in order to enable the State to investigate and promptly ascertain the existence and extent of its liability. Because suits against the State are allowed only by the State's waiver of sovereign immunity and in derogation of the common law, statutory requirements conditioning suit must be strictly construed. However, absolute exactness is not required, so long as the claim's particulars are detailed in a manner sufficient to permit investigation. 

Wimbush-Burkett v. State of New York, NY Slip Op 02804 (2d Dep't May 24, 2023)

Here is the decision.

Appellate practice.

An order that does not decide a motion made on notice is not appealable as of right under CPLR 5701(a)(2). However, the Appellate Division may deem the notice of appeal from the order to be a motion for leave to appeal, and may grant the motion so as to hear the appeal.

Moye v. Mount Sinai Hosp., NY Slip Op 02828 (1st Dep't May 25, 2023)

Here is the decision.

Damages for fraud.

Damages resulting from fraudulent inducement are meant to indemnify a plaintiff for the actual pecuniary loss sustained as the direct result of the fraud. Damages are calculated so as to compensate the plaintiff for what was lost because of the fraud, not for what might have been gained in the absence of any fraud. Damages are limited to the amount necessary to restore the plaintiff to its position before the fraud was committed. 

NMR e-Tailing LLC v. Oak Inv. Partners, NY Slip Op 02830 (1st Dep't May 25, 2023)

Here is the decision.