The Appellate Division has no discretionary authority to reach an unpreserved issue in the interest of justice in an article 78 proceeding challenging an administrative determination.
Matter of Tsevilsky v. New York State Div. of Hous. & Community Renewal, NY Slip Op 00282 (1st Dep't January 16, 2024)
The purpose of CPLR 5003-a is to encourage the prompt payment of damages in settled actions. Under CPLR 5003-a(b), when "the settling defendant is a municipality or any subdivision thereof . . . , it shall pay all sums due to any settling plaintiff within ninety days of tender, by the settling plaintiff to it, of duly executed release and a stipulation discontinuing action executed on behalf of the settling plaintiff." If the settling defendant fails to pay the sum due under the settlement agreement within 90 days of tender of the required documents, the plaintiff may, without further notice, pursue the entry of a judgment in the amount of the settlement, plus interest, costs, and disbursements. A judgment predicated upon a defendant's failure to make timely payment may not be entered where the plaintiff tenders a defective general release or a defective stipulation of discontinuance following the settlement.
Here, the general releases provided by the plaintiffs were defective. Therefore, the releases were insufficient to trigger the 90-day period within which the defendants were required to make payment of the settlement amount, and, accordingly, the plaintiffs were not entitled to seek a judgment including interest, costs, and disbursements based on nonpayment under CPLR 5003-a(e).
Raymond v. City of New York, NY Slip Op 00120 (2d Dep't January 8, 2024)
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)
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)
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)
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)
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)
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)
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)
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)
