Discovery disputes.

The resolution of discovery disputes and the nature and degree of the penalty to be imposed pursuant to CPLR 3126 are matters within the sound discretion of the motion court. Pursuant to CPLR 3126(3), "[i]f any party . . . refuses to obey an order for disclosure or willfully fails to disclose information which the court finds ought to have been disclosed[,] the court may make such orders with regard to the failure or refusal as are just," including dismissal of the action. This statute broadly empowers a trial court to craft a conditional order, which imposes a sanction, unless, within a specified time, the resisting party submits to the disclosure. If a party fails to comply with the order by the specified date, the conditional order becomes absolute, In order to be relieved of the impact of a conditional order issued pursuant to CPLR 3126, a party must demonstrate a reasonable excuse for their failure to comply with the conditional order and the existence of a meritorious claim or defense.

Winters v. City of New York, NY Slip Op 00245 (2d Dep't January 15, 2024)

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Nondisclosure agreements.

Supreme Court properly concluded that terms of the nondisclosure agreement (NDA) covered all of plaintiff's claims. The language of the NDA is unambiguous as to whether plaintiff agreed to waive future claims, as it expressly specified that plaintiff was releasing claims "arising prior to the signing" of the agreement and claims arising at "any time in the future after the signing" of the agreement. Despite plaintiff's position otherwise, a clause releasing future claims as to the very matter in controversy does not contravene public policy.

Even supposing that the NDA was signed under duress, plaintiff ratified the document by accepting its benefits over a five-and-a-half-year period. As the motion court found, plaintiff received approximately $9 million from defendant after signing the NDA, including a $100,000 stipend that plaintiff received every month throughout the life of the NDA. Plaintiff accepted each payment without protest and only commenced this action seeking to disaffirm the NDA three months after the payments ceased. To this date, plaintiff has not returned any portion of the benefits she received under the NDA.

Ganieva v. Black, NY Slip Op 00271 (1st Dep't January 16, 2024)

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Contract law.

Where a defendant-seller is the party moving for summary judgment dismissing a cause of action for specific performance of a contract for the sale of real property, he has the burden of demonstrating the absence of a triable issue of fact regarding whether the plaintiff buyer was ready, willing, and able to close. In addition, the defendant-seller must demonstrate, prima facie, that the plaintiff buyer was in default.

534 Flatbush Holdings, LLC v. Solaris Props., LLC, NY Slip Op 00207 (2d Dep't January 15, 2024)

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Appellate practice.

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)

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Payment on settled actions.

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)

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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)

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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)

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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)

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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)

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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.