A contract for the purchase of real property.

The Appellate Division unanimously affirmed, with costs, the Order which granted defendant's motion for summary judgment dismissing the complaint, finding that the motion court correctly enforced the contract in accordance with its plain terms. Plaintiff's contention that it is entitled to an additional, extra-contractual credit of $120,000, which it claims was paid to defendant two years before the contract was entered into, is insufficient to create an ambiguity, as such a fundamental condition would not have been omitted. In addition, the consideration of plaintiff's extrinsic evidence is contrary to the parol evidence rule. Plaintiff's contention that it was entitled to an adjournment of the closing date because there was no time of the essence language in the contract is unavailing. As the contract had a specific termination provision, a time of the essence provision was unnecessary. Plaintiff's argument that defendant anticipatorily breached the contract is also unavailing. Defendant's counsel prepared all of the documents required to close at the appointed time and place, and it was plaintiff that committed the breach by failing to appear with the required funds.

USA Recycling Inc. v. Baldwin Endico Realty Assoc., Inc., NY Slip O[ 01222 (1st Dep't February 25, 2021)

Here is the decision.

Lack of personal jurisdiction in a commercial injury action.

Plaintiffs' contention that World Rugby is subject to jurisdiction pursuant to CPLR 302(a)(3)(ii) is unavailing because plaintiffs did not plead that New York is the situs of the alleged commercial injury they sustained. Instead, plaintiffs allege World Rugby made fraudulent statements and procured USA Rugby's breach of its contract with USA Sevens LLC in Ireland. Thus, the original critical events did not occur in New York, and the fact that plaintiffs may have suffered economic loss in New York is an insufficient basis upon which to base personal jurisdiction. Plaintiffs also contend that World Rugby is subject to jurisdiction pursuant to CPLR 302(a)(1). Plaintiffs argue that World Rugby transacted business in New York by engaging in a 13-year relationship with them and by negotiating the 2014 Host Union Agreement in New York. However, plaintiffs fail to allege a sufficient nexus between the parties' broad, overall relationship and plaintiffs' specific claims in this suit. 

USA Sevens LLC v. World Rugby Ltd., NY Slip Op 01223 (1st Dep't February 25, 2021)

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A question of arbitrability.

The Appellate Division unanimously reversed, on the law and with costs, the Order which denied defendants" motion to compel arbitration, and granted the motion. Paragraph 18 of the parties" exhibit space agreement, titled "Disputes," provides broadly that "[a]ny and all disputes or claims . . . will be resolved in binding arbitration, rather than in court." The agreement also expressly incorporates the Commercial Arbitration Rules of the American Arbitration Association (AAA), of which Rule 7(a) states, "The arbitrator shall have the power to rule on his or her own jurisdiction, including any objections with respect to the existence, scope, or validity of the arbitration agreement or to the arbitrability of any claim or counterclaim." These provisions demonstrate the parties" clear and unmistakable intent to delegate the threshold arbitrability question to the AAA.

Anima Group, LLC v. Emerald Expositions, LLC, NY Slip Op 01138 (1st Dep't February 18, 2021)

Here is the decision.

A cause of action for aiding and abetting.

The Appellate Division unanimously reversed, on the law, the Order which denied the individual defendants' motion for summary judgment dismissing the aiding and abetting claim asserted against him. The claim must be dismissed because there is no evidence of the requisite community of purpose between him and plaintiff's coworkers. There is no indication that he was aware of any of the coworkers' actions, and an aiding and abetting claim cannot be based on an individual's own conduct.

Bistreich v. City of New York, NY Slip Op 01118 (1st Dep't February 18, 2021)

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Appellate practice.

Although the motion court purported to deny respondent's motion for reargument, it effectively granted the motion by addressing the merits. Accordingly, the order is appealable, pursuant to CPLR 5701[a][2][viii].

Matter of Country-Wide Ins. Co. v. TC Acupuncture, P.C., NY Slip Op 01120 (1st Dep't February 18, 2021)

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Freedom of Information Law (FOIL)

The Appellate Division affirmed the Supreme Court's determination that the Department of Education did not constructively deny petitioner's first FOIL request, pursuant to 21 NYCRR 1401.5[d]. Under FOIL, any person may request and receive documents kept by a government agency, unless they are statutorily exempted from disclosure, and the burden rests on the agency to demonstrate the applicability of an exception. Here, the record does not establish how the unspecified litigation records, as well as the hearing and 10-day numbers requested by petitioner, if redacted, would allow a person in the school community to identify students with reasonably certainty, citing Public Officers Law § 87[2][a], [b]; 34 CFR § 99.3. Accordingly, the Appellate Division remanded for an in camera review of the documents and numbers to evaluate whether the exceptions are applicable.

Matter of Cuddy Law Firm, P.L.L.C. v. New York City Dept. of Educ., NY Slip Op 01121 (1st Dep't February 18, 2021)

Here is the decision.

Certificates of merit in medical malpractice actions.

The Appellate Division unanimously affirmed the denial of defendants’ cross motion to dismiss the complaint for failure to timely file a certificate of merit pursuant to CPLR 3012-a, which provides that, in a medical malpractice action, "the complaint shall be accompanied by a certificate, executed by the attorney for the plaintiff, declaring that: (1) the attorney has reviewed the facts of the case and has consulted with at least one physician . . . who is licensed to practice in [any] state . . . and who the attorney reasonably believes is knowledgeable in the relevant issues involved in the particular action, and that the attorney has concluded on the basis of such review and consultation that there is a reasonable basis for the commencement of such action; or (2) the attorney was unable to obtain the consultation required . . . because a limitation of time . . . would bar the action and that the certificate . . . could not reasonably be obtained before such time expired. If a certificate is executed pursuant to this subdivision, the certificate required by this section shall be filed within ninety days after service of the complaint." The sanction of dismissal is not authorized by the statute. In the event of a plaintiffs' noncompliance,  the appropriate course is to request a conditional order compelling compliance, which can result in dismissal of the action at the discretion of the court, pursuant to CPLR 3126[3].

Fortune v. New York City Health & Hosps. Corp., NY Slip Op 01122 (1st Dep't February 18, 2021)

Here is the decision.

Summary judgment in a medical malpractice action.

As there are conflicting expert opinions, defendant's summary judgment motion as to plaintiff's claim relating to postsurgical care was properly denied. Since plaintiff's expert, in opposition to defendant's motion, did not address the claims for lack of informed consent and malpractice during surgery, and plaintiff does not pursue those claims on appeal, they are dismissed. 

John v. New York City Health & Hosps. Corp., NY Slip Op 01123 (1st Dep't February 18, 2021)

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CPLR 3211(b).

On  a motion to dismiss an affirmative defense, a plaintiff bears the heavy burden of showing that, as a matter of law, the defense is without merit. The allegations in the answer must be viewed in the light most favorable to the defendant, and the defendant is entitled to the benefit of every reasonable intendment of the pleading, which is to be construed liberally.

Alpha Capital Anstalt v. General Biotechnology Corp., NY Slip Op 00985 (1st Dep't February 16, 2021)

Here is the decision.

Tortious interference.

The complaint fails to state a cause of action for tortious interference with contract, as plaintiffs have not alleged that they were parties to a contract with a third party with which defendant interfered. Neither do plaintiffs state a prima facie claim for tortious interference with business relations or economic advantage, as the essence of the cause of action involves actions directed not at plaintiffs but at third parties. Here, the alleged threats and misrepresentations were directed at plaintiffs themselves, and not at any third party.

Underwood v. Urban Homesteading Assistance (U-HAB), Inc., NY Slip Op 01020 (1st Dep't February 16, 2021)

Here is the decision.

Timeliness of a summary judgment motion.

The Appellate Division unanimously reversed, on the law, the Order which denied defendants' motion for summary judgment dismissing the complaint, reinstated the complaint, and remanded the matter for a determination of the motion on the merits. The motion was timely since it was filed within the time period provided in the preliminary conference order. That deadline is controlling, despite the transfer to another Justice with part rules shortening the time, as there was no subsequent order or directive explicitly providing otherwise.

 Lopez v. Metropolitan Tr. Auth., NY Slip Op 00910 (1st Dep't February 11, 2021)

Here is the decision.