Appellate practice.

An argument that is not raised before Supreme Court is not preserved for appellate review.

35th St. Assoc. v. Sasson, NY Slip Op 05353 (1st Dep't October 24, 2023)

Here is the decision.

Court holiday.

Settlement agreements.

The plaintiff commenced this action to recover damages for personal injuries she allegedly sustained when she tripped and fell at premises owned by the defendant. The defendant moved pursuant to CPLR 2104 to enforce a purported settlement agreement between the parties, contending that the parties had reached a settlement that was memorialized in an email message. The Supreme Court denied the defendant's motion, determining that "there was no meeting of the minds or the creation of a settlement that is legally enforceable." The defendant appealed.

Pursuant to CPLR 2104, a settlement agreement is binding upon a party if it is in a writing subscribed either by the party or by the party's attorney. In order to be enforceable, the agreement must set forth all material terms, and there must be clear mutual accord between the parties.  An email that merely confirms a purported settlement is not necessarily sufficient to bring the purported settlement into the scope of CPLR 2104.

Here, the email purportedly confirming the agreement stated that it was memorializing the "tentative resolution" of the case, and it was sent by counsel for the defendant, which is the party seeking to enforce the agreement. There is no confirming email subscribed by the plaintiff or the attorney for the plaintiff, who is the party to be charged.

The order is affirmed, with costs.

Vlastakis v. Mannix Family Mkt. @ Veteran's Rd., LLC, NY Slip Op 05287 (2d Dep't October 18, 2023)

Here is the decision.

Contract law.

In New York, all contracts imply a covenant of good faith and fair dealing,  which, broadly stated, constitutes a pledge that neither party will do anything which will have the effect of destroying or injuring the other party's right to receive the fruits of the contract. The covenant requires the parties to perform under the contract in a reasonable way.

Mahope Family L.P. v. Avgush, NY Slip Op 05253 (2d Dep't October 18, 2023)

Here is the decision.

Court holiday.

Contract law.

An oral agreement cannot survive the subsequent execution of a written agreement which contains a merger clause.

IBT Media Inc. v. Pragad, NY Slip Op 05315 (1st Dep't October 19, 2023)

Here is the decision.

Appellate practice.

An issue that is raised for the first time in the appellant's reply brief is not properly before the Appellate Division.

513 W. 26th Realty LLC v. George Billis Galleries, Inc., NY Slip Op 05308 (1st Dep't October 19, 2023)

Here is the decision.

The advocate-witness rule.

The disqualification of an attorney is a matter which rests within the sound discretion of the trial court. A party's entitlement to be represented in ongoing litigation by counsel of its own choosing is a valued right which should not be abridged absent a clear showing that disqualification is warranted, and the movant bears the burden on the motion.  A party moving to disqualify counsel on the ground that he may be called as a witness must demonstrate that (1) the testimony of the opposing party's counsel is necessary to its case, and (2) the testimony would be prejudicial to the opposing party. Testimony may be relevant and even highly useful but still not strictly necessary. A finding of necessity takes into account such factors as the significance of the matters, weight of the testimony, and availability of other evidence.

Gamez v. Lopez, NY Slip Op 05250 (2d Dep't October 18, 2023)

Here is the decision.

Appellate practice.

Although landlord purports to appeal from Supreme Court's denial of its motion to dismiss the affirmative defense of tenant harassment, it offers no argument in support of its position on this issue. Therefore, it has abandoned its appeal on this issue.

Westman Realty Co., LLC v. Nettles, NY Slip Op 05346 (1st Dep't October 19, 2023)

Here is the decision.