Contract law.

Defendants' cross-motion for summary judgment is granted. Plaintiff's argument that the parties' letter agreement gave it an exclusive right to sell is unavailing. In order to create an exclusive right to sell, a contract must clearly and expressly provide that a commission is due upon sale by the owner or exclude the owner from independently negotiating a sale. Here, the agreement lacks express language excluding a direct conveyance by defendants, nor is that a necessary implication of its terms. The agreement's language requiring defendants to "inform" plaintiff if contacted about potential transactions is insufficient to create an exclusive right to sell. Moreover, plaintiff fails to show that the agreement's tail provision, entitling plaintiff to a fee for efforts at procuring a transaction during its engagement even if the transaction were completed only after the termination of that engagement, necessarily implied that the parties intended to create an exclusive right to sell.

Plaintiff's alternative argument that it procured the investment in the equity raise that occurred is also unavailing. Plaintiff fails to establish a direct and proximate link between its efforts and the consummated deal, as opposed to an indirect and remote link.

Cantor Fitzgerald & Co. v. ObvioHealth Pte Ltd., NY Slip Op 06421 (1st Dep't December 19, 2024)

Here is the decision.

Leave to renew.

A motion for leave to renew shall be based upon new facts not offered on the prior motion that would change the prior determination, and shall contain reasonable justification for the failure to present such facts on the prior motion, or shall demonstrate that there has been a change in the law that would change the prior determination, pursuant to CPLR 2221[e][2], [3]. A motion to renew is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation.

U.S. Bank, N.A. v. Cuencas, NY Slip Op 06373 (2d Dep't December 18, 2024)

Here is the decision.

Plaintiff's motion for leave to renew is granted. Since the plaintiff's prior motion for summary judgment had been denied without prejudice to renewal, plaintiff was not required to demonstrate a reasonable justification for its failure to submit sufficient evidence of the defendants' default on the prior motion.

Wells Fargo Bank, N.A. v. Coulstring, NY Slip Op 06374 (2d Dep't December 18, 2024)

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Appellate practice.

Having consented to the order at issue, the appellant is not an aggrieved party within the meaning of CPLR 5511. The order is not appealable.

Matter of Marquise T.S. v. Shantae R.R., NY Slip Op 06316 (1st Dep't December 17, 2024)

Here is the decision.

Vacating a default.

A party seeking to vacate a default is required to demonstrate both a reasonable excuse for the default and a potentially meritorious defense. The determination of what constitutes a reasonable excuse lies within the sound discretion of the trial court. In making its determination, the court may excuse default resulting from law office failure, pursuant to CPLR 2005.

Selene Fin., L.P. v. Beltran, NY Slip Op 06230 (2d Dep't December 11, 2024)

Here is the decision.

Notices of claim.

General Municipal Law § 50-e(7) provides that all applications for leave to serve a late notice of claim "shall be accompanied by a copy of the proposed notice of claim."  However, failure to submit a copy of the proposed notice is a technical defect that a court may overlook in its discretion, pursuant to CPLR 2001. 

S.A.N. v. New York City Hous. Auth., NY Slip Op 06317 (1st Dep't December 17, 2024)

Here is the decision.

Statute of Limitations.

Under CPLR 203(d), claims and defenses that arise out of the same transaction as a claim asserted in the complaint are not barred by the Statute of Limitations, even though an independent action by defendant might have been time-barred at the time the action was commenced. Here, since both the plaintiff's claims and the defendant's counterclaims allege breaches of the employment agreements, the defendant's counterclaims arose from the same transactions and occurrences as the plaintiff's claims and, therefore, are timely.

R & G Brenner Income Tax Consultants v. Gilmartin, NY Slip Op 06229 (2d Dep't December 11, 2024)

Here is the decision.

Judgments of foreclosure and sale.

Where a judgment of foreclosure and sale is reversed on appeal, the successful appellant may seek restitution of the real property lost by the judgment, pursuant to CPLR 5015[d] and 5523. However, where the real property was sold pursuant to the judgment of foreclosure and sale, and the title is held by a purchaser in good faith and for value, recovery is limited to the value of the real property. In the absence of a stay of the sale or an outstanding notice of pendency, title of the purchaser in good faith and for value is insulated from the effects of an appellate reversal.

Puretz v. Mae, NY Slip Op 06227 (2d Dep't December 11, 2024)

Here is the decision.

Premises liability.

A property owner has a duty to maintain its premises in a reasonably safe condition, which may include the duty to warn of a dangerous condition. However, there is no duty to protect or warn against conditions that are open and obvious and not inherently dangerous. In moving for summary judgment in a slip-and-fall case, the defendant has the burden of establishing, prima facie, that it neither created the hazardous condition which caused the plaintiff's injury nor had actual or constructive notice of the condition, or, alternatively, that the condition was both open and obvious and not inherently dangerous. The issue of whether a condition is open and obvious and not inherently dangerous is case-specific, and usually is a question of fact for a jury. Whether a condition is open and obvious is relevant to a plaintiff's comparative fault, but does not negate liability. Similarly, whether a defendant has provided warnings of a dangerous condition is relevant to a plaintiff's comparative fault, but does not negate liability.

Naftaliyeva v. Shoprite of Avenue I, NY Slip Op 06207 (2d Dep't December 11, 2024)

Here is the decision.

Relief from a judgment.

Pursuant to CPLR 5015(a)(1), a court may relieve a party from a judgment on the ground of excusable default, if a motion for that relief is made within one year after service of a copy of the judgment with written notice of entry. Even after expiration of the one-year limitations period set forth in CPLR 5015, a court may vacate its own judgment for sufficient reason and in the interest of substantial justice.

Deutsche Bank Natl. Trust Co. v. Vega, NY Slip Op 06025 (2d Dep't December 4, 2024)

Here is the decision.

Membership in a private association.

At issue here is a decision to temporarily revoke petitioner's general pediatrics certification. Whether a private association's determination of an individual's eligibility for membership is subject to judicial review is contingent upon a showing of economic necessity for membership and monopoly power over the profession. Here, petitioner failed to adequately allege either element. Accordingly, the petition does not sufficiently allege that respondent's determination temporarily revoking petitioner's certification constitutes state action. The cause of action alleging a violation of the right to due process is dismissed.

Matter of Wildfeuer v. American Bd. of Pediatrics, Inc., NY Slip Op 06144 (1st Dep't December 5, 2024)

Here is the decision.

Notices of pendency.

Pursuant to CPLR 6501, the filing of a notice of pendency provides constructive notice of an action in which the judgment demanded may affect the title to real property. The statute further provides that a person whose conveyance is recorded after the filing of a notice of pendency is bound by all proceedings taken in the action after such filing to the same extent as if he were a party.

Bank of Am, , N.A. v. Burton, NY Slip Op 06022 (2d Dep't December 4, 2024)

Here is the decision.