George Washington's Inauguration New York 1789

Arbitrability.

The arbitration clause in the parties' agreement provided that "any unresolved controversy or claim shall be decided by arbitration administered by the American Arbitration Association [AAA], or such other arbitrator as the parties may mutually agree to use." This language, which indicates that the parties did not specifically select the AAA, let alone incorporate its rules, does not demonstrate that the parties clearly and unmistakably submitted the question of arbitrability to an arbitrator, and so the court makes the determination.

Provenance Hotel Partners Fund I, LLC v. GCKC Provenance, LLC, NY Slip Op 00201 (1st Dep't January 14 2024)

Here is the decision.

Avoiding service.

Defendants' motion to vacate the default judgments against them is denied, in accordance with CPLR 317. Defendants failed to update their registered forwarding and office addresses with the Secretary of State, even after they were named as defendants and failed to appear in another action in which they were served in accordance with Business Corporation Law § 306, as they were in this action. These facts give rise to an inference that defendants were deliberately attempting to avoid notice of this action.

Moreover, defendants did not demonstrate a meritorious defense to the action in relying on a general release provision in a confidential agreement that settled claims in a California action. That provision released only claims between defendants and plaintiff, who collectively were the defendants in that action, and the claimants in the California action. The release did not apply to claims between plaintiff and defendants themselves.

Any failure by plaintiff to comply with the additional service requirements under CPLR 3215(g)(4)(i) and (ii) does not compel vacatur of the default judgments, as defendants failed to provide grounds for vacatur.

C3 Data, LLC v. 212 Media Group, Inc., NY Slip Op 00182 (1st Dep't January 9, 2024)

Here is the decision.

Appellate practice.

As a general rule, the Appellate Division does not consider an issue on a subsequent appeal that was raised, or could have been raised, on an earlier appeal that was dismissed for failure to perfect, although it has the inherent jurisdiction to do so.

Taunton Metals of Fla, Inc. v. Solutions in Stainless, Inc., NY Slip Op 00121 (2d Dep't January 8, 2024)

Here is the decision.

Equitable actions.

Foreclosure actions are equitable in nature and trigger the equitable powers of the court. Once equity is invoked, the court's power is as broad as equity and justice require. In an action of an equitable nature, the recovery of interest is within the court's discretion. The exercise of that discretion will be governed by the particular facts in each case, including any wrongful conduct by either party. Here, the Supreme Court providently exercised its discretion in denying that branch of the defendant's cross-motion which was to reduce the accrual of interest on the mortgage loan. The defendant failed to demonstrate that the plaintiff delayed in prosecuting the action and, therefore, that the defendant was entitled to a reduction of the accrual of interest on the mortgage loan,

Wells Fargo Bank, N.A. v. O'Brien, NY Slip Op 00122 (2d Dep't January 8, 2024)

Here is the decision.

Prima facie tort.

The elements of a cause of action to recover damages for prima facie tort are (1) the intentional infliction of harm, (2) which results in special damages, (3) without any excuse or justification, (4) by an act or series of acts which would otherwise be lawful. In order to sufficiently plead prima facie tort, the complaint must allege the defendant's malicious intent or disinterested malevolence as the sole motive for the challenged conduct.

25-86 41st St., LLC v. Guzman, NY Slip Op 00075 (2d Dep't January 8, 2024)

Here is the decision.

Civil conspiracy.

Although New York does not recognize civil conspiracy to commit a tort as an independent cause of action, a plaintiff may plead the existence of a conspiracy in order to connect the actions of the individual defendants with an actionable, underlying tort, and establish that those actions were part of a common scheme. In order to properly plead a cause of action to recover damages for civil conspiracy, the plaintiff must allege a cognizable tort, coupled with an agreement between the conspirators regarding the tort, and an overt action in furtherance of the agreement.

A theory of concerted action liability rests upon the principle that all those who, in pursuance of a common plan or design to commit a tortious act, actively take part in it, or further it by cooperation or request, or who lend aid or encouragement to the wrongdoer, or ratify and adopt his acts done for their benefit, are equally liable with him. As with conspiracy, the concerted action theory requires that there be an independent tort as a basis for liability.

25-86 41st St., LLC v. Guzman, NY Slip Op 00075 (2d Dep't January 8, 2024)

Here is the decision.

Judgments.

 It is improper to include findings of fact or conclusions of law in the judgment.

23 E. 39th St. Mgt. Corp. v. 23 E. 39th St. Devs., LLC, NY Slip Op 00145 (1st Dep't January 9, 2024)

Here is the decision.

A cause of action for unjust enrichment.

Plaintiffs' cause of action for unjust enrichment is not viable because there is a valid contract, and that precludes recovery in quasi contract for events arising out of the subject matter of the contract. 

Kwan v. HFZ Capital Group, LLC, NY Slip Op 00074 (1st Dep't January 7, 2024)

Here is the decision.

Judgment creditors and judgment debtors.

CPLR 5225(a) provides that a judgment creditor may make a motion in a pending action where a judgment was entered "where it is shown that the judgment debtor is in the possession or custody of money or other personal property in which he has an interest." CPLR 5225(a) also provides that the court shall order the judgment debtor to "pay the money, or so much of it as is sufficient to satisfy the judgment, to the judgment creditor." By contrast, CPLR 5225(b) provides that when the property sought is not in the possession of the judgment debtor, the judgment creditor is to commence a separate special proceeding "against a person in possession or custody of money or other personal property in which the judgment debtor has an interest . . . where it is shown that the judgment debtor is entitled to the possession of such property or that the judgment creditor's rights to the property are superior to those of the transferee." The most significant difference between the subdivisions is that CPLR 5225(a) is invoked by a motion made by the judgment creditor, whereas CPLR 5225(b) requires a special proceeding brought by the judgment creditor against the garnishee. There is this procedural distinction because the garnishee, not being a party to the main action, has to be independently subjected to the court's jurisdiction.

The plain terms of the relevant CPLR provisions are dispositive. CPLR 5201 provides that "[a] money judgment may be enforced against any property which could be assigned or transferred, whether it consists of a present or future right or interest and whether or not it is vested" However, when a judgment debtor's property is physically held by a third party, the applicable provision is CPLR 5225(b), and a special proceeding is required. It is only when the property is held by the judgment debtor himself that the judgment creditor may proceed by motion pursuant to CPLR 5225(a).

AC Penguin Prestige Corp. v. Two Thousand Fifteen Artisanal LLC, NY Slip Op 06536 (1st Dep't December 24, 2024)

Here is the decision.

Motions to dismiss.

In considering a motion pursuant to CPLR 3211(a)(7) to dismiss a complaint for failure to state a cause of action, the court must afford the pleading a liberal construction, accept the facts as alleged in the pleading as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory. However, allegations consisting of bare legal conclusions are not entitled to any such consideration. Although inartfully pleaded, a claim should not be dismissed when the facts stated are sufficient to make out a cause of action. Whether the complaint will later survive a motion for summary judgment, or whether the plaintiff will ultimately be able to prove its claims plays no part in the determination of a motion to dismiss. In other words, whether a plaintiff can ultimately establish his allegations is not part of the calculus. Moreover, New York's pleading standard is embodied in CPLR 3013, which provides that "[s]tatements in a pleading shall be sufficiently particular to give the court and parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved and the material elements of each cause of action or defense." Absent a statutory heightened pleading requirement, New York courts apply the liberal notice pleading standard of CPLR 3013 when construing the pleading sufficiency of federal causes of action, not federal pleading standards.

Pressley v. City of New York, NY Slip Op 06563 (2d Dep't December 24, 2024)

Here is the decision.