Discovery disputes.

The Appellate Division unanimously affirmed the Order which, to the extent appealed from, denied plaintiff's motions to strike the City defendants' answer or preclude the City from offering evidence at trial. Contrary to the City's contention, plaintiff's failure to submit an affirmation of good faith on her motion to strike the City's answer based on discovery failures was not fatal, in light of plaintiff's counsel's affirmation showing that the issue of whether the City's undisputedly late disclosures were willful, contumacious, or due to bad faith would not be resolved between the parties. However, plaintiff failed to demonstrate conclusively that the City's discovery failures were willful, contumacious or due to bad faith. Plaintiff's principal complaint is that the City disclosed new documents in support of its motion for summary judgment and on the eve of trial. She characterized the late disclosures as "guerilla" or "ambush" tactics, but did not explain how they affected her case. While the Appellate Division did not condone the City's actions, it agreed with the motion court that plaintiff failed to show that the late disclosures were part of a pattern to ignore or thwart discovery orders. 

Practice point:  If plaintiff did not believe that discovery was complete when she filed her note of issue, her remedy was to move to compel specific discovery.

Nugent v. City of New York, NY Slip Op 07715 (1st Dep't December 22, 2020)

Here is the decision.

Judicial estoppel.

The claim is not barred by judicial estoppel given that, even if contradictory, none of defendants' prior positions prevailed.

Patmos Fifth Real Estate, Inc. v. Mazi Bldg., LLC, NY Slip Op 07716 (1st Dep't December 22, 2020)

Here is the decision.

Sanctions.

Pursuant to 22 NYCRR 130-1.1, the court exercised its discretion in imposing sanctions against defendant, in the amount of $1,500 for plaintiff's attorney fees and costs, and $5,000 to the Lawyer's Fund for Client Protection, due to multiple acts of frivolous and dilatory litigation tactics. Defendant submitted three consecutive applications seeking to stay enforcement of the court's summary judgment order. After defendant's initial application was denied by the First Department, it sought a stay from the motion court without sufficiently informing it of the denial of relief. When the motion court also declined a stay, defendant again sought interim relief from the First Department.

Korn v. Sacco & Fillas LLP, NY Slip Op 07707 (1st Dep't December 22, 2020)

Here is the decision.

A motion for a default judgment.

The Appellate Division unanimously reversed, on the law, with costs, the Order which denied plaintiff's motion, and directed the Clerk to enter judgment accordingly. A plaintiff moving for a default judgment based on a defendant's failure to appear must submit proof of service of the summons and complaint and proof of the facts constituting the claim, pursuant to CPLR 3215[f]. Here, plaintiff established that the defaulting defendants have failed to answer the complaint, or to otherwise appear. While declaratory judgment will rarely, if ever, be granted solely on default, the Appellate Division determined that plaintiff sufficiently established the facts of its claim.

PV Holding Corp. v. AB Quality Health Supply Corp., NY Slip Op 07725 (1st Dep't December 22, 2020)

Here is the decision.

Appellate practice.

The Appellate Division determined that the appeal was timely filed. The panel rejected, as unpersuasive, plaintiffs' argument that the appeal should be dismissed because the notice of appeal from the judgment that incorporated the decision and order granting summary judgment was untimely.The initial filing was sufficient for jurisdictional purposes because the relief granted in the judgment is identical to that directed in the decision and order, pursuant to CPLR 5520 [c],

Vebeliunnas v. Overstrom, NY Slip Op 07732 (1st Dep't December 22, 2020)

Here is the decision.

The prevention doctrine.

If the promisor himself is the cause of the failure of performance of a condition on which his own liability depends, he cannot take advantage of the failure. The doctrine applies unless the parties contract around it, such as by including clear language allowing termination of the contract for any reason or at any time. Here, contrary to defendant's assertions, neither agreement provided defendant a unilateral right to terminate the contract. Instead, termination is clearly conditioned on defendant's right to operate being terminated by a third party, not itself, and no contractual language suggests the unqualified right defendant claims. The Appellate Division determined that the court providently granted plaintiff summary judgment on the breach of contract claim.

Vector Media, LLC v. Golden Touch Transp. of NY, Inc., NY Slip Op 07733 (1st Dep't December 22, 2020)

Here is the decision.

Elephant Walk.

The Appellate Division unanimously affirmed the Order which granted respondents' motion to dismiss the petition for a writ of habeas corpus on behalf of Happy, an elephant, and directed the Clerk to enter judgment dismissing the proceeding brought pursuant to CPLR article 70. The common-law writ of habeas corpus is limited to human beings. A judicial determination that species other than homo sapiens are "persons" for some juridical purposes, and, therefore, have certain rights would lead to a labyrinth of questions that common-law processes are ill-equipped to answer. The decisions of whether and how to integrate other species into legal constructs designed for humans is a matter better suited to the legislature.

Matter of Nonhuman Rights Project, Inc. v Breheny, NY Slip Op 07675 (1st Dep't December 17, 2020)

Here is the decision.

Collateral estoppel.

Collateral estoppel does not bar plaintiffs from seeking indemnification and contribution, as the issue of defendants' and their subcontractor's negligence was not raised, necessarily decided, and material to the underlying personal injury action of the subcontractor's employee against plaintiffs and an unrelated company. As this action was severed from the underlying action before issue was joined, defendants were not parties in the underlying trial, and they proffer no evidence that the jury therein was instructed on apportionment of negligence to nonparties.

One Bryant Park v. Permasteelisa Cladding Tech., Ltd., NY Slip Op 07677 (1st Dep't December 17, 2020)

Here is the decision.

The danger invites rescue doctrine.

There is a duty of care to a potential rescuer where a culpable party has placed another person in a position of imminent peril which invites a third party,to come to the aid of the person in peril. The doctrine is implicated where a potential rescuer reasonably believes that someone is in peril. A court will determine the applicability of the doctrine on the facts and circumstances of each case.

Benny v. Concord Partners 46th St. LLC, NY Slip Op 07665 (1st Dep't December 17, 2020)

Here is the decision.

Sexual harassment.

The issue in a quid pro quo sexual harassment case brought under the State Human Rights Law is whether one or more employment decisions are linked to unwelcome sexual conduct. Sexual harassment occurs when such unwelcome sexual conduct is the basis, either explicitly or implicitly, for employment decisions affecting compensation or the terms, conditions, or privileges of employment. An employer can also be held liable for a hostile work environment when it encouraged or acquiesced in the unwelcome sexual conduct by an employee or subsequently condoned the offending behavior. Proof of condonation and acquiescence is not necessary where discriminatory conduct is perpetrated by a high-level managerial employee or someone sufficiently elevated in the employer's business organization to be viewed as its proxy. Under the City Human Rights Law, gender discrimination rests on the broader consideration of whether a plaintiff has been treated less well than other employees because of gender. Whether brought under the State or the City Human Rights Law, the claim will not succeed if the offending actions are no more than petty slights or trivial inconveniences.

Franco v. Hyatt Corp., NY Slip Op 07522 (1st Dep't December 15, 2020)

Here is the decision.

Summary judgment motions.

Disputed factual issues, especially those that require resolution of credibility issues, are generally unsuitable for summary adjudication.

Franco v. Hyatt Corp., NY Slip Op 07522 (1st Dep't December 15, 2020)

Here is the decision.

Law of the case.

The motion court properly applied the law of the case doctrine in dismissing the third amended complaint (TAC), as the claims in the TAC are essentially the same as those in the dismissed second amended complaint. 

MBF Clearing Corp. v. JPMorgan Chase Bank, N.A., NY Slip Op 07504 (1st Dep't December 15, 2020)

Here is the decision.

Wills.

If a mother and father enter into a civil or religious marriage after the birth of their child, the child is legitimated for all purposes of New York law, even if the marriage is void or voidable, pursuant to Domestic Relations Law § 24[1]. Therefore, the child automatically becomes a distributee of both birth parents, without any need to satisfy one of the paternity tests set forth in Section 4-1.2(a)(2) of the EPTL.

Tiwary v. Tiwary, NY Slip Op 07479 (1st Dep't December 10, 2020)

Here is the decision.

Scrivener's errors.

CPLR 305(c) and 3025(b) contemplate the correction of scrivener's errors, such as the misnomer in the petition, where the court's jurisdiction is unaffected and the opposing party suffered no prejudice.

Matter of Tsoumpas 1105 Lexington Equities, LLC  v. 1109 Lexington Ave. LLC, NY Slip Op 07481 (1st Dep't December 10, 2020)

Here is the decision.

Appellate practice.

The appeal from the Order  which denied plaintiff's motion for reargument is unanimously dismissed as taken from a nonappealable paper.

Mandel v. 340 Owners Corp., NY Slip Op 07316 (1st Dep't December 8, 2020)

Here is the decision.

Appellate practice.

Defendant's argument that plaintiffs and the third-party defendant failed to timely object to their discovery demands is unpreserved for review, as it was never raised before the motion court. Moreover, the timeliness of plaintiffs' and the third-party defendant's objections is not a pure question of law appearing on the face of the record, which could not have been avoided if raised at the proper juncture.

McMahon v. Cobbletsone Lofts Condominium, NY Slip Op 07317 (1st Dep't December 8, 2020)

Here is the decision.

An unenforceable release.

This action for damages resulting from a fall on the premises of an outdoor music festival is not barred by the release allegedly obtained by defendants in connection with the online ticket purchase. The release is void and unenforceable, pursuant to General Obligations Law § 5-326. The grounds on which the music festival was held were a place of amusement or recreation or a similar establishment, and plaintiff paid a fee to the owners and operators of the event to participate in the festival.

Nicaj v. Bethel Woods Ctr. for the Arts, Inc., NY Slip Op 07318 (1st Dep't December 8, 2020)

Here is the decision.

Breach of contract and an award of attorneys' fees.

The Appellate Division unanimously affirmed the Order which, to the extent appealed from as limited by the briefs, after a non-jury trial, found and declared defendant liable for breach of contract for terminating the parties' management agreement without providing notice and an opportunity to cure, and awarded plaintiffs nominal damages and reasonable attorneys' fees. The Appellate Division unanimously affirmed the Order, of the same court and Justice, which denied defendant's motion pursuant to CPLR 4404(b) to vacate the award of attorneys' fees.

The trial court properly awarded attorneys' fees to plaintiffs pursuant to the parties' management agreement. The gravamen of the original complaint was that defendant had improperly terminated the management agreement without providing plaintiffs with sufficient notice and an opportunity to cure. On pretrial motions, the motion court repeatedly found that plaintiffs' alleged breaches were curable, and the Appellate Division affirmed those findings. The trial court's finding that defendant breached the management agreement solidified plaintiffs' status as the prevailing party. Plaintiffs also successfully defended against the affirmative defenses. The fact that plaintiffs recovered only nominal damages does not affect their status as prevailing party.

The trial court correctly found that defendant breached the contract by improperly terminating the management agreement. Defendant argues that it was not liable for breach because plaintiffs' own breaches were so dishonest and outrageous that they were incapable of being cured. However, in a prior appeal, the Appellate Division affirmed the ruling that plaintiffs' breaches were curable, and further inquiry into this issue is foreclosed by the law of the case doctrine.

The trial court correctly concluded that plaintiffs failed to prove actual damages, and, therefore, were entitled to nominal damages only. The Appellate Division found no reason to disturb the court's determination that plaintiffs' proof of lost profits was too speculative or that their expert's conclusions and projections were not credible.

Quik Park W. 57 LLC v. Bridgewater Operating Corp., NY Slip Op 07323 (1st Dep't December 8, 2020)

Here is the decision.

Substitute service.

The Appellate Division unanimously affirmed, with costs, the Order which granted plaintiff's motion to confirm the Special Referee's report, after a traverse hearing, concluding that service was properly made on defendan, and denied defendant's cross motion to reject the report and dismiss the complaint for lack of personal jurisdiction. The Referee's conclusion that plaintiff met its burden of proving proper service, pursuant to CPLR 308(2), was supported by the record. The Referee found the process server's testimony, supported by her logbook and GPS photographs of the house, to be credible, and, by contrast, defendant's testimony contained unexplained discrepancies with her prior sworn statement concerning her place of residence.

Due to the physical features of the house, which was a legal one-family premises with no indicia from the front that there was a separate basement apartment, the process server could not reasonably have ascertained that there was such a separate unit, and that it was accessible from a side street, or that defendant resided there. Accordingly, substitute service made upon the person who answered the front door of the home satisfied the statutory requirements, and personal jurisdiction was obtained over defendant.

U.S. Bank N.A. v. Olatunji, NY Slip Op 07327 (1st Dep't Deceember 8, 2020)

Here is the decision.

Vacatur of a default for law office failure.

The Appellate Division unanimously reversed, on the law, the facts, and in the exercise of its discretion, the Order which denied defendant's motion to vacate a prior order of the same court and Justice, which had struck defendant's answer and granted judgment to plaintiff. In this action to recover on a personal guaranty of a promissory note, defendant failed to appear for a conference after the case was referred to mandatory mediation, and then did not appear at a preliminary conference on the adjourned date for the conference, resulting in entry of a default judgment in favor of plaintiff, pursuant to NYCRR 202.27[a]). Defendant moved, pursuant to CPLR 5015(a)(1), to vacate the default judgment, asserting that defendant's failures to appear were not willful, but, instead, were the result of law office failure. Specifically, defense counsel failed to appear at the mediation conference because he inadvertently overlooked the scheduled date on the fifth page of the administrative order/mediation intake forms, and then was not aware of the scheduled preliminary conferences because a Notice of Preliminary Conference was never electronically filed on the New York State Electronic Filing System and he had not yet signed up for e-track notifications because the case was at its inception.

The Appellate Division found that defendant offered a reasonable excuse for failing to appear at the mediation and the conferences. Defendant showed an intent to appear and litigate on the merits by timely answering the complaint, having the case transferred to New York County, and then timely responding to plaintiff's discovery demand. Accordingly, defendant demonstrated that his failure to appear was neither willful nor part of a pattern of dilatory behavior, but was purely the result of inadvertent law office failure. Moreover, the short delay caused by the default, the prejudice to defendant, and the lack thereof to plaintiff, and the strong public policy concerns favoring adjudicating matters on their merits, all militate in favor of vacating the default, even when the excuse of law office failure is not especially compelling.

Ageits SMB Fund II, L.P. v. Rosenfeld, NY Slip Op 07309 (1st Dep't December 8, 2020)

Here is the decision.

Accounting malpractice.

In order to succeed on a claim for accounting malpractice, a plaintiff must demonstrate a departure from accepted standards of practice and that the departure was a proximate cause of injury. Injury is an essential element of the cause of action  

Alskom Realty, LLC v. Baranik, NY Slip Op 07153 (2d Dep't December 2, 2020)

Here is the decision.

Motions to dismiss.

Under CPLR 3211(a)(1), a dismissal is warranted only if the documentary evidence submitted conclusively establishes, as a matter of law, a defense to the asserted claims. In assessing a motion under CPLR 3211(a)(7), however, the court may freely consider affidavits submitted by the plaintiff to remedy any defects in the complaint, and the standard is whether the pleading's proponent has a cause of action, not whether he has stated one. Where the plaintiff elects to stand on its pleading, the plaintiff may not be penalized because it has not made an evidentiary showing in support of the complaint. 

106 N. Broadway v. Lawrence, NY Slip Op 07151 (2d Dep't December 2, 2020)

Here is the decision.

"[A]lways will our whole Nation remember the character of the onslaught against us." FDR, December 8, 1941.

A motion to vacate a stay.

The Appellate Division unanimously reversed, on the law and the facts and in the exercise of discretion, the Order which denied plaintiffs' motion to vacate a previously imposed stay. There is no basis for a stay of this action pursuant to CPLR 2201, as the decision in the federal action will not determine all of the questions in this action.

Matter of Qudian Sec. Litig., NY Slip Op 07290 (1st Dep't December 3, 2020)

Here is the decision.

Defamation.

The Appellate Division affirmed the Order which, to the extent appealed from as limited by the briefs, granted defendants' motion to dismiss the defamation claims. The complaint fails to state a cause of action for slander or libel per se, as none of the allegedly defamatory statements made by defendants accuse plaintiff of ineptitude in her profession, and the complaint does not allege how, if at all, plaintiff's professional reputation was damaged by the offending statements. The Appellate Division rejected plaintiff's contention that the motion court improperly determined on a motion to dismiss that the remarks were not defamatory. Whether particular words are defamatory presents a legal question to be resolved, in the first instance, by the court.

Savitt v. Cantor, NY Slip Op 07305 (1st Dep't December 4, 2020)

Here is the decision.

Tortious interference.

A claim of tortious interference with contract requires that a plaintiff plead four elements: (1) the existence of a valid contract between plaintiff and a third party; (2) the defendant's knowledge of the contract; (3) the defendant's intentional procuring of a breach; and (4) damages. In order to establish a corporate officer's liability for inducing a breach of a contract between the corporation and a third party, the complaint must allege that the officer's acts were outside the scope of his employment, or that the officer personally profited from his acts.

Shear Enters., LLC v. Cohen, NY Slip Op 07149 (1st Dep't December 1, 2020)

Here is the decision.

Summary judgment on a Labor Law claim.

A defendant cannot defeat the motion by citing factual disputes that do not relate to material issues. Even if plaintiff were the only witness to the accident, he would be entitled to summary judgment where nothing in the record controverts his account of the accident or calls his credibility into question.

Valdez v. City of New York, NY Slip Op 07150 (1st Dep't December 1, 2020)

Here is the decision.

Discovery of an attorney's time records.

Plaintiff seeks production of presumptively privileged attorney time records from a nonparty law firm on the belief that if there are no attorney billable time entries on dates when defendants have logged a communication as privileged, it is evidence that the communication was made in connection with the attorney's purported business representation, and not legal representation. A party seeking an attorney's legal bills must establish their relevance, and hypothetical speculation calculated to justify a fishing expedition is improper. Here, plaintiff's assumption that attorney time records would ferret out presumptively nonprivileged documents is entirely speculative. This is particularly so when the law firm was representing defendants without any expectation of or intent to seek payment. In addition, plaintiff's only remaining cause of action is to enforce a charitable trust, which provides no independent basis for  production of the time records.

Leventhal v. Bayside Cemetery, NY Slip Op 06955 (1st Dep't November 24, 2020)

Here is the decision.

Compliance with discovery orders.

The Appellate Division unanimously affirmed the Orders which denied defendants' motions to dismiss the complaint or preclude plaintiff from offering evidence at trial for failure to comply with discovery orders.  The court was not bound by a prior order that warned that failure to comply would be construed as willful and contumacious but was not a conditional order that would have obviated the need for a determination of willfulness. Further, the history of this litigation establishes that any non-compliance on plaintiff's part was not willful, contumacious, or in bad faith. More often than not, plaintiff complied with the court's discovery orders by providing timely responses that generally evidenced a good-faith effort to address outstanding discovery meaningfully.

Lyoussi v. Etufugh, NY Slip Op 06956 (1st Dep't November 24, 2020)

Here is the decision.

Writs of mandamus.

The writ lies only to enforce a clear legal right where a public official has failed to perform a duty that is enjoined by law. It will not be awarded in order to compel an act in respect to which the official may exercise judgment or discretion.

Matter of Martinez v. DiFiore, NY Slip Op 06958 (1st Dep't November 24, 2020)

Here is the decision.

Denial of summary judgment on a Labor Law § 241(6) claim.

The court properly considered some of the medical records submitted in opposition to plaintiff's motion, in which plaintiff also provided inconsistent accounts of how the accident occurred. Even assuming that the descriptions of the accident contained in plaintiff's medical records were not germane to his treatment and diagnosis, the entries in at least three of the records were directly attributable to plaintiff so as to constitute admissions. Even assuming that these entries constituted hearsay, they may be submitted in opposition to plaintiff's motion and properly considered in conjunction with the other evidence in the record, which provided different descriptions of the accident.

Pina v. Arthur Clinton Hous. Dev. Fund Corp., NY Slip Op 06968 (1st Dep't November 24, 2020)

Here is the decision.

'Special facts' doctrine.

The doctrine holds that, absent a fiduciary relationship between parties, there is a duty to disclose when one party's superior knowledge of essential facts renders a transaction, without disclosure, inherently unfair. The essential facts must not have been discoverable through the exercise of ordinary intelligence. Here, there are triable issues regarding whether defendant had a duty to disclose that it had granted an exclusive license to another company.

Sports Tech. Applications, Inc. v. MLB Advanced Media, L.P., NY Slip Op 06973 (1st Dep't November 24, 2020)

Here is the decision.

A cause of action for mutual mistake.

The claim is sufficiently stated where the allegations indicate that the parties have reached an oral agreement and, unknown to either, the signed writing does not express that agreement.

106 Spring St. Owner LLC v. Workspace, Inc., NY Slip Op 06942 (1st Dep't November 24, 2020)

Here is the decision.

Improper service.

The Appellate Division unanimously affirmed the Order which denied plaintiff's motion for a default judgment. As it is undisputed that plaintiff did not make a reasonable attempt to personally serve defendants, in accordance with CPLR 308, service was improper. Because jurisdiction was not obtained over defendants, they were not required, in response to plaintiff's motion for a default judgment, to demonstrate a reasonable excuse for their default in answering the complaint, or a meritorious defense. 

Matter of Petre v. Lucia, NY Slip Op 06873 (1st Dep't November 19, 2020)

Here is the decision.

An account stated claim.

Plaintiff was entitled to summary judgment, as it submitted documentary evidence showing that defendant had received and retained the invoices without objection. Defendant's own written statements refute his argument that plaintiff was unauthorized to represent him, and that, when he terminated plaintiff, he had had objected to plaintiff's work. The termination, which occurred prior to defendant's receipt of the invoices, was rescinded by defendant shortly thereafter. Despite regular correspondence between plaintiff and defendant during the following months, there is no indication that he objected to plaintiff's invoices or continued representation. The legal malpractice counterclaims are not sufficiently intertwined with the account stated claim so as to preclude summary judgment.

Schlam Stone & Dolan LLP v. Toussie, NY Slip Op 06874 (1st Dep't November 19, 2020)

Here is the decision.

A contract executed by an individual in his corporate capacity.

As the individual defendant signed the original agreement in his corporate capacity, on behalf of the corporate defendant, he ordinarily would not be personally liable under the agreement. However, his signature without reference to his corporate capacity in the extension of the original agreement creates a fact issue as to the capacity in which he signed each agreement, as well as a fact issue as to whether the corporate defendant is liable under the agreements.

Inbar Group, Inc. v. St. Mark's World, Inc., NY Slip Op 06879 (1st Dep't November 19, 2020)

Here is the decision.

A landowner's duty of care.

The landowner owes a duty to maintain the property in a reasonably safe condition. The duty is premised on the landowner's exercise of control over the property, as the person in possession and control of[the property is best able to identify and prevent any harm to others. It has been held uniformly that control is the test which measures generally the responsibility in tort of the owner of real property. A landowner who has transferred possession and control is generally not liable for injuries caused by dangerous conditions on the property. 

Augustine v. City of New York, NY Slip Op 06739 (2d Dep't November 18, 2020)

Here is the decision.

Appellate practice.

Petitioner's facial challenge to Social Services Law § 143-b cannot be considered, as it has not submitted proof that it served the Attorney General with the requisite notice of a challenge to the law's constitutionality, pursuant to CPLR 1012[b][3].

Matter of 20 W. Props. LLC v. Banks, NY Slip Op 06840 (1st Dep't November 19 2020)

Here is the decision.

Doctrine of primary assumption of risk.

Pursuant to the doctrine, a voluntary participant in a sporting or recreational activity consents to those commonly appreciated risks that are inherent in and arise out of the nature of the sport generally, and those risks that flow from such participation. The doctrine encompasses risks involving less than optimal conditions on an irregular playing surface.

V.A. v. City of New York, NY Slip Op 06736 (2d Dep't November 18, 2020)

Here is the decision.

The Dormitory Authority's liability.

The Appellate Division unanimously reversed, on the law, the Order which granted petitioner's motion to serve a late notice of claim nunc pro tunc, denied the motion, and dismissed the petition. It is well settled that as an out-of-possession title owner, the Dormitory Authority does not bear liability for personal injuries suffered at CUNY buildings. Because the agency surrenders all control and possession to CUNY once a building is completed, it is not subjected to non-delegable duties that owners may have, such as providing safe working conditions pursuant to Labor Law 240(1) and 241(6).

Matter of Bento v. Dormitory Auth. of the State of N.Y., NY Slip Op 06698 (1st Dep't November 17, 2020)

Here is the decision.

Leave to amend.

The Appellate Division unanimously affirmed, with costs, the Order granting defendant Clarke's motion for summary judgment dismissing the breach of contract claim against it, denied plaintiff's motion to amend the complaint, and dismissed the complaint in its entirety as against Clarke. As Clarke was not a signatory to the agreements, no cause of action for breach of contract can be asserted against it. Each agreement plainly states it is between plaintiff and defendant Drescher, and contains a signature block for Drescher individually. Moreover, the first operative clause of the agreements makes clear that they are assignments of seller's - defined as Drescher - "rights, title and interest in and to" commissions upon closings of transactions with the identified companies. Leave to amend a pleading should be freely granted in the absence of prejudice or surprise, as long as the proposed amendment is not palpably insufficient as a matter of law. Here, the proposed amended complaint is palpably insufficient, as it alleges in conclusory fashion that Drescher acted on behalf of Clarke as its agent or alter ego.

Mashinsky v. Drescher, NY Slip Op 06397 (1st Dep't November 10, 2020).

Here is the decision.

Vacatur based on law office failure.

The Appellate Division unanimously affirmed the Order which, to the extent appealed from, vacated an order, entered on default, that dismissed the severed third-party action.  Plaintiff established that its default was attributable to law office failure by submitting its counsel's affirmation explaining that the lawyer who had been handling the case left the firm and failed to pass her work on to the firm's two partners. The Appellate Division said that plaintiff should not be deprived of its day in court on account of its attorney's neglect or inadvertent error. 

Morales v. Marion Ave. Mgt. LLC, NY Slip Op 06399 (1st Dep't November 10, 2020)

Here is the decision.

Premises liability.

Whether there is a dangerous or defective condition on the property so as to create liability depends on the peculiar facts and circumstances of each case, and, generally, is a question of fact for the jury to decide.  A defendant seeking dismissal on the basis that the alleged defect is trivial must make a prima facie showing that, under the circumstances, the defect is physically insignificant, and that the defect's characteristics or the surrounding circumstances do not increase the risks it poses. Only then does the burden shift to the plaintiff to establish an issue of fact. There is no minimal dimension test or per se rule that a defect must be of a certain minimum height or depth in order to be actionable, and summary judgment may not be granted to a defendant exclusively on the dimensions of the defect.

Arpa v. 245 E. 19 Realty LLC, NY Slip Op 06444 (1st Dep't November 12, 2020)

Here is the decision.

Disqualification of a law firm.

Although an associate at plaintiffs' law firm was previously an associate with the firm that currently represents the defendants, disqualification is not required, as defendants fail to show that the issues in the matters are identical or essentially the same. Defendants fail to identify any material confidential information that the associate obtained from the defendants during the prior matters, referencing only generic legal documents and activities. The associate left the previous firm a year before the alleged malpractice that forms the basis of this claim.

Patane v. Tan, NY Slip Op 06458 (1st Dep't November 12, 2020)

Here is the decision.

Attorney's fees.

The Appellate Division affirmed the Order which granted defendants' motion for fees. The motion court applied the correct standard for determining the "prevailing party" under a contractual fees clause, namely, success on the central claims in the action. Plaintiff failed to show any injury from defendants' representations to the court that plaintiff would not be prejudiced by bringing new claims in a new action. The court had already ruled that the defects in the existing case would not be remedied by amendment, and, sua sponte, modified its order to reflect that the new claims were to be brought in a new action. The Appellate Division rejected plaintiff's argument that half of the fees do not pertain to the motion to dismiss, and, therefore, are not recoverable. The parties' agreement entitles the prevailing party to all fees "in connection" with the action, and plaintiff has failed to point to any fees not incurred in connection with the action.

Zamir v. Ben-Harosk, NY Slip Op 06475 (1st Dep't November 12, 2020)

Here is the decision.

Discovery of nonprivileged information.

The Appellate Division modified the Order which, to the extent appealed from as limited by the briefs, denied defendants' motion to compel production of plaintiffs' nonprivileged litigation files in another action, to the extent of granting defendants' motion for discovery, and remanding the matter for further proceedings to narrow the scope of the discovery, and otherwise affirmed. In a partition action against each other, plaintiffs mother and son placed into contention issues of property ownership, economic losses, mismanagement, and lack of property maintenance. As this action gives rise to similar economic issues, defendants are entitled to nonprivileged information contained in that action that is relevant to the defense of this action, since CPLR 3101(a) mandates full disclosure of matters that are material and necessary in the prosecution or defense of an action. The confidentiality order in the partition action cannot operate as a shield to preclude plaintiffs from having to produce relevant documents in this action, especially since they affirmatively place into contention similar economic issues. However, defendants are not entitled to the entirety of the nonprivileged litigation files. To the extent that documents and information contained therein relate exclusively to other properties owned by plaintiffs, and not to the property at issue in this action, the information is not relevant, and plaintiffs are not under an obligation to produce it. 

Rosenblum v. Trinity Hudson Holdings, LLC, NY Slip Op 06407 (1st Dep't November 10, 2020)

Here is the decision.

Motions to amend.

The Appellate Division unanimously affirmed the Order which denied defendants' motion to dismiss the complaint, and granted plaintiff's cross motion to amend his pleadings. Contrary to defendants' argument, CPLR 3014 specifically authorizes the pleading of inconsistent theories and defenses. In addition, on a motion for leave to amend, a plaintiff does not have to establish the merit of the proposed new allegations, but, rather, must show that the proffered amendment is not palpably insufficient or clearly devoid of merit.

Sorge v. Gona Realty, LLC, NY Slip Op 06409 (1st Dep't November 10, 2020)

Here is the decision.

A motion to renew.

The Appellate Division unanimously affirmed the Order which, to the extent appealed from, denied plaintiff's motion to renew its opposition to defendant's motion to dismiss the fourth cause of action of the amended complaint. The Appellate Division said that the court providently exercised its discretion in denying plaintiff's motion to renew, because neither the new facts nor the case on which plaintiff relies -which was decided after the submission of the original motion - would change the prior determination, pursuant to CPLR 2221[e][2].

Ixis Real Estate Capital Trust 2007-HE1 v. Natixis Real Estate Holdings, LLC, NY Slip Op 06354 (1st Dep't November 5, 2020)

Here is the decision.

Consolidation of cases.

The Appellate Division unanimously affirmed the Order which denied defendants' motion for removal of a summary nonpayment proceeding against the subject infant's parents, pending in Civil Court, and consolidation with the infant's personal injury action based on lead paint poisoning, pending in Supreme Court.  The Appellate Division determined that, in light of the strong preference for resolving summary landlord-tenant proceedings in Civil Court, particularly where complete relief is available there, the trial court did not abuse its discretion in denying consolidation. CPLR 602(a) gives the trial court discretion to consolidate actions involving common questions of law or fact.  However, even where there are common questions of law or fact, consolidation of actions is properly denied if the actions are at markedly different procedural stages, and consolidation would result in undue delay in the resolution of either matter. Here, while there are some overlapping facts in each case, those facts do not so predominate as to find an abuse of discretion in denying consolidation. The majority of time during which the infant's parents failed to pay their rent in the summary proceeding occurred in the two-year period after the lead paint abatement when the case was taken off the calendar to make further unexplained repairs.

L.B. v. Stahl York Ave. Co., 06355 (1st Dep't November 5, 2020)

Here is the decision.

The single motion rule.

The Appellate Division unanimously reversed, on the law, the Order which, to the extent appealed, denied respondents' cross motion to dismiss the amended petition, granted the cross motion, and dismissed the petition. The Appellate Division found that respondents' documentary evidence, consisting of a series of agreements and modifications to the agreements, conclusively refuted petitioner's contention that certain funds transferred to respondents were property of the judgment debtor. As this was an essential element of petitioner's claims, the petition should have been dismissed. The Appellate Division rejected petitioner's argument that the motion was barred by the single motion rule, because respondents had moved to dismiss the original petition. The rule is not implicated where, as here, the amendment introduced substantial new material.

Matter of 8430985 Can., Inc. v. Frydman, NY Slip Op 06337 (1st Dep't November 5, 2020)

Here is the decision.

Sanctions for frivolous conduct.

The imposition of sanctions did not violate plaintiff's or his counsel's procedural due process rights. Plaintiff and his counsel made their fifth and sixth applications for sanctions in opposition to defendant's motion for a protective order and motion to dismiss and, after defendant responded by arguing that the repetitive requests for sanctions were frivolous and sanctionable, the court held oral argument on all the motions, at which time plaintiff and counsel were present and argued before the court. Thus, they had fair notice and a reasonable opportunity to be heard, pursuant to 22 NYCRR 130-1.1[d]. In addition, the order sets forth a number of reasons for the court's finding of frivolous conduct and imposition of the sanctions, pursuant to 22 NYCRR 130-1.2.

Verdi v. Dinowitz, NY Slip Op 06373 (1st Dep't November 5, 2020)

Here is the decision.

The sufficiency of factual allegations.

Where the factual allegations in the complaint are flatly contradicted by documentary evidence in the record, the allegations are not entitled to be considered as true.

Olsen v. Smith, NY Slip Op 06214 (1st Dep't October 29, 2020)

Here is the decision.

A medical malpractice action.

The Appellate Division unanimously affirmed the Judgment which granted defendants' motion for summary judgment dismissing the complaint. The motion court correctly found that defendants, as movants, made out their prima facie burden through the affirmation of their expert plastic surgeon. The fact that proof of the expert's qualifications was not submitted in the moving papers was a technical defect that the motion court was within its discretion to permit defendants to correct on reply. The affidavit of plaintiff's expert, which was vague, conclusory, and, in part, contradicted by plaintiff's medical records, failed to create questions of fact sufficient to rebut defendants' entitlement to summary judgment.

Poivan-Traub v. Chaglassian, NY Slip Op 06072 (1st Dep't October 27, 2020)

Here is the decision.

A time-barred foreclosure action.

 The Appellate Division unanimously affirmed the Order which denied plaintiff's motion for summary judgment and dismissed. The applicable six-year limitations period, pursuant to CPLR 213[4], commenced upon the filing of a 2009 foreclosure action by plaintiff's predecessor-in-interest. This action was commenced with the filing of a complaint more than six years later, in March 2017. Contrary to plaintiff's argument, the discontinuance of the 2009 action, which occurred after the limitations period expired, was insufficient to constitute an affirmative act revoking the mortgage loan's acceleration. The Appellate Division noted that the motion court did not abuse its discretion by declining to consider plaintiff's argument that a bankruptcy proceeding tolled the statute of limitations, since it was raised for the first time in a footnote in its reply papers.

U.S. Bank Trust, N.A. v. Board of Mgrs. of the Devon Condominium, NY Slip Op 06076 (1st Dep't October 27, 2020)

Here is the decision.

A claim of fraud against a corporate officer.

While a corporate officer may be held personally liable for committing fraud on the corporation's behalf, an insincere promise to perform a contractual obligation may not be used to expand potential liability for conduct essentially constituting a breach of contract to persons and entities not in contractual privity with the plaintiff.

3P-733, LLC v. Davis, NY Slip Op 06043 (1st Dep't October 27, 2020)

Here is the decision.

Default judgments.

The Appellate Division unanimously affirmed the Order granting, on default, plaintiff's motion for summary judgment and the appointment of a referee, and a judgment of foreclosure and sale. While the motion court may have failed to address whether defendant demonstrated a reasonable excuse for his default, the record shows that defendant, acting pro se, filed a Chapter 13 petition for bankruptcy protection listing plaintiff as a creditor, which resulted in an automatic stay of the foreclosure sale. Therefore, plaintiff's claims that he was unaware of the foreclosure proceedings due to the long-term illness of defendant's attorney, who neglected to advise defendant that he was no longer able to defend him in this residential foreclosure action, are unavailing. At the very least, plaintiff knew about the default judgment when he moved to stay the foreclosure sale, and he did not seek to vacate his default until four months later. As defendant failed to demonstrate a reasonable excuse for his default, it was not necessary for the Appellate Division to reach the issue of the availability of a meritorious defense.

U.S. Bank Natl. Assn. v. Hao T. Hoang, NY Slip Op 06077 (1st Dep't October 27, 2020)

Here is the decision.

The implied covenant of good faith and fair dealing.

The allegation that defendant charged "excessive due diligence fees against the down payment" is insufficient to plead a claim for breach of the implied covenant of good faith and fair dealing. The implied covenant may not be used to create new contractual obligations that were not bargained for.

King Penguin Opportunity Fund III, LLC v. Spectrum Group Mgt. LlC, NY Slip Op 06230 (1st Dep't October 29, 2020)

Here is the decision.

A motion to amend an answer.

The Appellate Division unanimously revered the Order which denied defendants' motion to amend the answer to assert as an additional affirmative defense the doctrine of collateral estoppel and/or res judicata, and granted the motion. Plaintiff failed to demonstrate that he would be prejudiced if defendants were permitted to amend the answer. Plaintiff's contention that he would have to alter his trial strategy to account for the Workers' Compensation Board determination of which he has been aware for years is insufficient. Neither did plaintiff demonstrate that the proposed affirmative defense is palpably devoid of merit.

Rodriguez v. Extell W. 57th Street LLC, NY Slip Op 06034 (1st Dep't October 22, 2020)

Here is the decision.

A motion to vacate a default.

The Appellate Division unanimously affirmed the Order which denied the motion to vacate and to compel plaintiff to accept defendant's answer, finding that defendant failed to proffer a reasonable excuse for the default, pursuant to CPLR 5015[a][1]. A party seeking to vacate a default judgment must demonstrate a reasonable excuse for the default and a meritorious defense. Absent a reasonable excuse, vacatur is not appropriate regardless of whether defendant has a meritorious defense. Defendant's excuse that her attorney failed to file a timely answer on her behalf does not constitute a reasonable excuse because she failed to set forth any details or evidence in support of her allegation, including who her former attorney was, when she retained that attorney, or why that attorney failed to file an answer. As defendant is not entitled to vacatur of the default judgment, plaintiff cannot be compelled to accept service of her late answer, pursuant to CPLR 3012[d].

U.S. Bank Trust N.A. v. Rivera, NY Slip Op 06040 (1st Dep't October 22, 2020)

Here is the decision.

A dispute over a purported gift.

Plaintiff alleges that defendants were unjustly enriched by keeping money that defendants claim was a gift. Defendants seek to show that the money was a gift by pointing to plaintiff's gifts to his nephew, his loan to a friend, which defendants allege was mostly forgiven and, therefore, was essentially a gift, and the fact that he may have allowed one defendant to buy plaintiff's house for less than fair market value. However, in a civil case, a party's character may not be used to raise an inference that he acted in conformity therewith on the occasion at issue.

Vlachos v. Thomas, NY Slip Op 06041 (1st Dep't October 22 2020)

Here is the decision.

A judgment of foreclosure and sale.

The Appellate Division vacated the judgment, denied plaintiff's motion to confirm the referee's report of the amount due to plaintiff, and remanded for a new report computing the amount due. The referee relied on an affidavit of an assistant vice president of plaintiff's loan servicer, who asserted that, according to plaintiff's books and records pertaining to defendant's loan and payment history, defendant had been in default, and owed plaintiff the amount stated. However, because the books and records were not submitted to the court, the affiant's assertions are inadmissible hearsay. Neither did the affiant lay a foundation for the introduction of the books and records as a business record, pursuant to CPLR 4518[a].

Deutsche Bank Nat'l Trust Co. v. Kirschenbaum, NY Slip Op 05849 (1st Dep't October 20, 2020)

Here is the decision.

Dismissal of a non-resident's claims.

The Appellate Division affirmed dismissal of the claims as against this plaintiff who states that he lived in Texas and worked in his home office there. He reported to managers based in New York, served clients mostly based in New York, and travelled to New York State and City two to three times a year, for two to three days each visit, in order to meet with supervisors and service clients. Plaintiff's presence in New York is not sufficient to vest New York's courts with subject matter jurisdiction over his claims under the New York State and City Human Rights Laws. Since plaintiff's cause of action under Labor Law § 215 is premised almost exclusively on work performed outside of this State, he has failed to state a claim under that statute. As plaintiff is a Texas resident, and his sole remaining retaliation claim is asserted under a section of the Texas Labor Law, the motion court providently exercised its discretion in dismissing that claim on the ground of forum non conveniens, pursuant to CPLR 327[a].

Kingston v. International Business Machs. Corp., NY Slip Op 05856 (1st Dep't October 20, 2020)

Here is the decision.

Venue.

The Appellate Division unanimously affirmed the Order which denied defendants' motion to change venue from New York County to Oneida County. Plaintiffs commenced this medical malpractice action in New York County, alleging that, in its certificate of incorporation, one of the defendants, Emergency Physician Services of New York (EPSNY), designated New York County as its principal office. In moving to change venue, defendants argued that EPSNY's most recent biennial statements, submitted in accordance with Business Corporations Law § 408, reflected its current corporate residence as Woodbury, New Jersey. The Appellate Division found that plaintiffs properly commenced the action in New York County, as, for venue purposes, the designation of New York County in EPSNY's papers filed with the Secretary of State controlled, even if it did not actually have an office in New York County. The principal executive office noted in a corporation's biennial statement does not determine corporate residence for venue purposes, since it is not contained in either a certificate of incorporation or an amended certificate.

Sultana v. St. Elizabeth Med. Ctr., NY Slip Op 05873 (1st Dep't October 20, 2020)

Here is the decision.

Res ipsa.

The Appellate Division unanimously reversed the Order which granted defendant's motion for summary judgment dismissing the complaint, and denied the motion. In this action, plaintiff investigated a hissing sound coming from the electrical circuit box in her apartment, and, as she drew close to the circuit box, it suddenly burst into flame, burning her right arm. Plaintiff may raise res ipsa loquitur in opposition to defendant's motion without having alleged the doctrine in her notice of claim or complaint, as it is not a separate theory of liability, but, rather, an evidentiary rule that involves a common sense application of the probative value of circumstantial evidence. Plaintiff's evidence raised triable issues as to application of the doctrine, as it showed that she had resided in the apartment for 19 years, she would contact defendant's employees to remedy any issues with the circuit box, and defendant's employees handled the inspection, maintenance, and repair of the circuit box. To the extent that defendant argues the lack of notice of the alleged dangerous condition, there is a triable issue of fact regarding the applicability of the res ipsa doctrine, and, under the doctrine, proof of notice may be inferred.

Townsend v. New York City Hous. Auth., NY Slip Op 05874 (1st Dep't October 20,2020)

Here is the decision.

A motion to vacate a default judgment.

The Appellate Division affirmed the Order which denied the motion. Defendant failed to demonstrate a reasonable excuse for his default and a meritorious defense to the action because he submitted his motion without an affidavit by someone with personal knowledge of the pertinent facts, namely, defendant himself. The affirmation by his counsel, who lacked personal knowledge, was insufficient for this purpose. Regardless, defendant's incarceration does not constitute a reasonable excuse for his default, given that he does not contest the receipt of service and he was afforded six months to respond to plaintiff's motion. Defendant did not  demonstrate a meritorious defense by arguing that a subsequent consulting agreement with plaintiff's son, who is not a party to the sued-upon note, superseded his obligations to plaintiff under the note.

Yaffe v. Shkreli, NY Slip Op 05875 (1st Dep't October 202020)

Here is the decision.

Failure to comply with discovery obligations.

The Appellate Division found that the motion court providently exercised its discretion in dismissing the complaint, pursuant to CPLR 3126. based on plaintiff's failure to comply with her discovery obligations. While asserting that she complied with her obligations, plaintiff failed to respond to defendants' specific allegations of deficiencies. The record shows that some discovery was provided belatedly or in improper form, items are missing, and depositions have not been completed. Moreover, plaintiff's noncompliance was the subject of multiple prior motions to dismiss, good faith letters, and discovery stipulations and orders, and so willfulness may be inferred.

Ruiz v. Selzer, NY Slip Op 05835 (1st Dep't October 15, 2020)

Here is the decision.

Summary judgment in a slip-and-fall action.

Defendant submitted the affidavits of its building manager and a porter, who both stated that it was defendant's practice to clean the stairwell twice a day, and that the porter cleaned the stairwell on the day of the accident and prior to plaintiff's fall and did not see any debris on the staircase. These affidavits cannot be considered because defendant only identified those witnesses after it filed its motion, despite plaintiffs' prior request that defendant identify all employees with knowledge of the facts and circumstances of the accident, and numerous court orders directing defendant to do so.

Verges v. Concourse Residential Hotel, Inc., NY Slip Op 05708 (1st Dep't October 13, 2020)

Here is the decision.

A promissory estoppel claim.

The claim fails, as there is neither a clear and unambiguous statement nor any detrimental reliance.

Weisenfeld v. Iskander, NY Slip Op 05710 (1st Dep't October 13, 2020)

Here is the decision.

A slip-and-fall claim.

The Appellate Division reversed the Order which granted defendant's motion for summary judgment dismissing the complaint, and denied the motion.  In this action where plaintiff alleges that she slipped and fell on grease as she descended the stairs in defendant's building, defendant failed to establish its prima facie entitlement to summary judgment. Defendant did not demonstrate that it lacked constructive notice of the grease, as it failed to show when the stairwell was last cleaned or inspected. Proof of a regular maintenance schedule does not suffice for the purpose of showing that it was followed, and since the superintendent was due to clean the hallways and stairs on the day of the accident, plaintiff's observation of debris on the stairs shows that no such maintenance was done prior to her fall. Because defendant did not meet its initial burden of showing, as a matter of law, that it lacked constructive notice of the alleged defective condition, the burden never shifted to plaintiff to demonstrate how long the condition existed.

White v. MP 40 Realty Mgt. LLC, NY Slip Op 05838 (1st Dep't October 15, 2020)

Here is the decision.

A Yellowstone injunction.

The Appellate Division affirmed the Order which granted plaintiff's application. Contrary to defendant's contention, plaintiff fulfilled the four criteria for Yellowstone relief, namely, that (1) it holds a commercial lease; (2) it received from the landlord either a notice of default, a notice to cure, or a threat of termination of the lease; (3) it requested injunctive relief prior to the termination of the lease; and (4) it is prepared and maintains the ability to cure the alleged default by any means short of vacating the premises.

80 Broad Relief Assoc., LLC v. BSD 80 Broad LLC, NY Slip Op 05805 (1st Dep't October 15, 2020)

Here is the decision.

An alleged oral agreement.

Because the terms of the alleged agreement are not definite, the complaint and supporting materials fail to plead the existence of an enforceable oral contract. The consideration owed to a non-party is described inconsistently, and the arrangement between plaintiff and the non-party is described in different ways in emails among plaintiff, the non-party, and defendant.

Streit v. Bombart, NY Slip Op 05706 (1st Dep't October 13, 2020)

Here is the decision.

A motion to disqualify an arbitrator.

The Appellate Division affirmed the  Order which denied defendant's motion to disqualify the arbitrator and vacate his rulings. Defendant failed to demonstrate implicit gender bias against its female sole general partner in the arbitrator's comments in an email and throughout the course of the proceedings. The Appellate Division noted that plaintiff's principal and representative in the arbitration proceeding are women.

Vitra, Inc. v. Ninety-Five Madison Co., L.P., NY Slip 05709 (1st Dep't October 13, 2020)

Here is the decision.

Appellate practice.

While discovery determinations rest with the sound discretion of the motion court, the Appellate Division is  vested with corresponding power to substitute its own discretion for that of the trial court, even in the absence of abuse of discretion. Here, the Appellate Division declined to disturb the motion court's determination. Plaintiff failed to demonstrate that its discovery requests would yield information that was material and necessary to its defense against the counterclaims asserted against it.

Monitronics Intl, Inc. v. NorthStar Alarm Servs., LLC, NY Slip Op 05584 (1st Dep't October 8, 2020)

Here is the decision.

A claim for an accounting.

The Appellate Division affirmed the Supreme Court's determination granting that branch of the defendants' motion which was to dismiss the cause of action for an accounting, as the allegations of the complaint indicate that the relationship between plaintiff and defendant was not fiduciary in nature.

Board of Mgrs. of the Bayard Views Condominium v. FPG Bayard, LLC, NY Slip Op 05481 (2d Dep't October 7, 2020)

Here is the decision.

Claims for fraud and tortious interference.

The claim for fraud and negligent misrepresentation was properly dismissed, as it duplicates the breach of contract claims. It does not allege breach of a duty independent from the parties' agreements, and, instead, alleges that defendants falsely represented that they would abide by those agreements. The motion court properly dismissed the claim for tortious interference with prospective economic advantage on grounds that it lacked specificity and was speculative. Plaintiff simply alleged an existing reasonable expectation of receiving an economic advantage from his clients, with which defendants wrongfully and intentionally interfered, causing him financial harm, but he failed to identify any particular relationships or explain how defendants interfered with them.

Matter of Soames v. 2LS Eng'g, D.P.C., NY Slip Op 05607 (1st Dep't October 8, 2020)

Here is the decision.

A striking hazard on a public sidewalk.

The Appellate Division affirmed the granting of plaintiffs' motion for partial summary judgment on liability for personal injuries sustained when a door in a construction fence opened out onto the sidewalk and struck plaintiff. As a matter of law, the door was negligently installed insofar as it swung outward and was not recessed back from the sidewalk. Administrative Code of City of NY § 7-210 imposes a nondelegable duty on a property owner to maintain the sidewalk abutting its property in a reasonably safe condition. The striking hazard posed by a door opening across a sidewalk implicates this provision.

Spielmann v. 170 Broadway NYC LP, NY Slip Op 05608 (1st Dep't October 8, 2020)

Here is the decision.

Appellate practice.

The Appellate Division reversed the order which, on defendants' motion, directed that the entire file be sealed, denied the motion, vacated the sealing order, and directed that the order dismissing the action be unsealed. Although the action was dismissed after the appeal was perfected, the appeal, which addresses the propriety of the sealing order, is not moot to the extent that the dismissal order, which is on appeal, is under seal pursuant to the sealing order.

Vergara v. Mission Capital Advisors. LLC, NY Slip Op 05610 (1st Dep't October 8, 2020)

Here is the decision.

Appellate practice.

The appeals from the intermediate orders must be dismissed because the right of direct appeal therefrom terminated with the entry of the order and judgment of foreclosure and sale. 

Bank of Am., N.A. v. Palacio, NY Slip Op 05480 (2nd Dep't October 7, 2020)

Here is the decision.

A motion to restore the case and extend time.

The Appellate Division affirmed the denial of plaintiff's motions to restore the case to active status and extend its time to file a note of issue, and to vacate a prior order dismissing the complaint. The court providently exercised its discretion in dismissing the complaint after plaintiff, over a period of 1 1/2 years, violated multiple orders to produce documentary discovery, and, finally, failed to comply with the orders even after the court had, over defendants' rigorous objections, given him "one last chance." Plaintiff failed to support either his motion to restore or his motion to vacate with an excuse for his repeated failure to comply, or a demonstration of a meritorious claim.

White v. City of New York, NY Slip Op 05477 (1st Dep't October 6, 2020)

Here is the decision.

Summary judgment on a claim for specific performance.

The Appellate Division affirmed denial of plaintiff's motion. He failed to establish, prima facie, that he substantially performed his contract obligations and was willing and able to perform his remaining obligations, and that defendants were able to convey the property. Plaintiff submitted no proof that he possessed the financial means to close the sale, and he submitted no proof that the individual defendant, who signed the contract of sale in his personal capacity, was able to transfer the property, which the record shows was owned by the corporate defendant.

Ahsanuddin v. Carde, NY Slip Op 05442 (1st Dep't October 6, 2020)

Here is the decision.

A motion to domesticate a foreign judgment.

Reversing the order which granted plaintiff's motion for summary judgment in lieu of complaint and denied defendant's cross motion to dismiss, the Appellate Division denied plaintiff's motion and granted defendant's cross motion. Plaintiff commenced the action against defendant, a Delaware limited liability company, to domesticate and enforce a foreign judgment in its favor several months after defendant had been dissolved and a certificate of cancellation filed. As the certificate of cancellation has not been nullified and plaintiff does not seek nullification, plaintiff cannot maintain this action.

Epie v. Herakles Farms, LLC, NY Slip Op 05283 (1st Dep't October 1, 2020)

Here is the decision.

Summary judgment on a fall on a staircase.

The Appellate Division reversed, granted the defendant's motion, and dismissed the complaint. The design defect raised in plaintiff's opposition to the motion was a new theory that was not sufficiently pleaded to avoid surprise or prejudice.

Minor v. East Harlem Tutorial Program, Inc., NY Slip Op 05288 (1st Dep't October 1, 2020)

Here is the decision.

A motion to reduce or discharge a mechanic's lien.

The Appellate Division reversed, denied the motion, and reinstated the lien. A court has no inherent power to vacate, modify, or discharge a notice of lien pursuant to Lien Law § 19(6) where there is no defect on the face of the lien, and any dispute concerning the lien's validity must await a trial. To the extent that the motion court relied on waivers in payment applications, plaintiff's submission of evidence of the parties' course of conduct raised an issue of fact as to whether the waivers released plaintiff's payment claims.

Pizzarotti, LLC v. FPG Maiden Lane LLC, NY Slip Op 05305 (1st Dep't October 1, 2020)

Here is the decision.

CPLR 3213.

The Appellate Division reversed the Supreme Court, and denied the plaintiff's motion for summary judgment in lieu of complaint. Because the payment obligation in the parties' agreement is conditioned on defendant's having failed to operate the boat at issue within a particular geographic area for at least 80% of its running time over a period of years, the agreement is not an instrument for the payment of money only, and accelerated judgment is not available to the plaintiff.

Port Authority of N.Y. & N.J. v. White Near Coastal Towing Corp., NY Slip Op 05306 (1st Dep't October 1, 2020)

Here is the decision.

An implied covenant of good faith and fair dealing.

The covenant cannot create independent contractual rights, or otherwise serve as a substitute for a plaintiff's nonviable contract claims.

Shionogi Inc. v. Andrx Labs, LLC, NY Slip Op 05308 (1st Dep't October 1, 2020)

Here is the decision.

Waiver of a jurisdictional defense.

The defendant's appearance, through counsel, by service of an answer asserting counterclaims but no jurisdictional defense, waived his subsequently asserted defense of lack of personal jurisdiction. His motion to vacate the order of foreclosure and sale must be denied insofar as it is based on lack of personal jurisdiction, pursuant to CPLR 5015(a)(4). Because the defendant voluntarily submitted to the court's jurisdiction, the alleged inaccuracies in the filed affidavits of service do not support vacatur of the prior summary judgment motion, pursuant to 5015(a)(3).

Wells Fargo Bank, N.A. v. Sewer, NY Slip Op 05170 (1st Dep't September 29, 2020)

Here is the decision.

Summary judgment in a premises negligence action.

Where, as here, there is a question of fact as to an owner's negligence in the cause of the accident, a motion for summary judgment on a contractual defense and indemnification claim must be denied as premature. 

Williams v. 2897 Third Ave., Inc., LLC, NY Slip Op 05171 (1st Dep't September 29, 2020)

Here is the decision.

Appellate practice.

An order denying a motion to compel a witness to answer questions propounded at a deposition is effectively a ruling made in the course of the deposition itself, and is not appealable as of right.

Gargano v. Langman, NY Slip Op 04923 (2d Dep't September 16, 2020)

Here is the decision.

Appellate practice.

The limited appeal from the order must be dismissed, pursuant to CPLR 5511, on the ground that the defendant-appellant is not aggrieved by the portion of the order appealed from. While the Supreme Court denied several branches of the defendant's motion, the appeal is based solely on the branch of the motion that the court granted. As the successful party, the defendant obtained the full relief sought in that branch of his motion, and, therefore, has no grounds to appeal from that portion of the order.

Federal Natl. Mtge. Assn. v. Lautman, NY Slip Op  04921 (2d Dep't September 16, 2020)

Here is the decision.

A general release and waiver of liability.

The defendant established its prima facie entitlement to judgment as a matter of law dismissing the complaint by presenting a general release and waiver of liability signed by the plaintiff. If the language of the release is clear and unambiguous, it is binding on the parties and is a complete bar to an action on a claim which is the subject of the release. 

Durand v. Salvation Army, NY Slip Op 04919 (2d Dep't September 16, 2020)

Here is the decision.

CPLR 305(c).

In the exercise of its discretion, the court may allow a summons or proof of service of a summons to be amended in the absence of prejudice to a substantial right of a party against whom the summons issued. The motion to cure a misnomer in the description of a party-defendant should be granted, even if the statute of limitations has run, where (1) there is evidence that the correct defendant has been properly served, and (2) the correct defendant would not be prejudiced by allowing the amendment.

Duncan v. Emerald Expositions, LLC, NY Slip Op 04918 (2d Dep't September 16, 2020)

Here is the decision.

Constructive trusts.

The purpose of a constructive trust is to prevent unjust enrichment. It is an equitable remedy that may be imposed when property has been acquired in such circumstances that the holder of the legal title may not in good conscience retain the beneficial interest.

Derosa v. Estate of Iannazzo, NY Slip Op 04917 (2d Dep't September 16, 2020)

Here is the decision.

A late notice of claim.

The Appellate Division affirmed the denial of the plaintiffs' cross motion for leave to amend the notice of claim or to serve a late notice of claim. The plaintiffs' proposed amendments add substantive new facts and new theories of liability not set forth in the original notice of claim and which are not permitted as late filed amendments to a notice of claim under General Municipal Law § 50-e(6).

C. D. v. Goshen Cent. Sch. Dist., NY Slip Op 04916 (2d Dep't September 16, 2020)

Here is the decision.

Rulings, decisions, and orders.

A decision resolves an issue on its merits, but does not order any party to do or refrain from doing anything. An order implements a decision by requiring a party to act or refrain from acting consistent with the decision. Decisions may not be appealed, although appeals may be taken from orders and final judgments, pursuant to  CPLR 5501[a] and 5512[a]. A ruling is not a product of a motion made on notice, but a mere determination of an issue made during depositions, trials, or other proceedings. Rulings are not appealable, but rulings that have been objected to and preserved may be reviewed on an appeal from a final judgment, pursuant to 5501[a][3].

Charalabidis v. Elnagar, NY Slip Op 04913 (2d Dep't September 16, 2020)

Here is the decision.

Failure to appear at a calendar call.

Where the plaintiff appears but the defendant does not, the court may grant judgment by default or order an inquest, pursuant to 22 NYCRR 202.27[a]. Where the defendant appears but the plaintiff does not, the court may dismiss the action and order a severance of counterclaims or cross claims, pursuant to 202.27[b]. If neither party appears, the court may make such an order as it deems just, pursuant to 202.27[c].

Charalabidis v. Elnagar, NY Slip Op 04912 (2d Dep't September 16, 2020)

Here is the decision.

Leave to amend a pleading.

The motion should be freely granted, absent prejudice or surprise directly resulting from the delay in seeking leave, unless the proposed amendment is palpably insufficient or patently devoid of merit, pursuant to CPLR 3025(b).

Bridgehampton Nat'l Bank v. D & G Partners, L.P., NY Slip Op 04911 (2d Dep't September 16, 2020)

Here is the decision.

Conditions precedent.

A condition precedent is an act or event, other than a lapse of time, which, unless the condition is excused, must occur before there is a duty to perform a promise set forth in the agreement. Here, there is a condition precedent to the formation or existence of the contract itself, so that there is no contract unless and until the condition occurs.

Bedoya v. Rodriguez, NY Slip Op 04910 (2d Dep't September 16, 2020)

Here is the decision.

Summary judgment in a mortgage foreclosure action.

In support of its motion, the plaintiff submitted two different versions of the mortgage note, only one of which was indorsed in blank. This evidence is insufficient to establish, prima facie, the plaintiff's standing. The motion is denied.

Bank of N.Y. Mellon v. Itkowitiz, NY Slip Op 04909 (2d Dep't September 16, 2020)

Here is the decision.

Proper service.

A process server's affidavit establishes, prima facie, the method of service, and gives rise to a presumption of proper service. A defendant's sworn statement of specific facts to rebut the statements in the affidavit of service necessitates an evidentiary hearing. However, no hearing is required where the defendant fails to swear to specific facts that rebut the statements in the affidavit of service.

Ahluwalia v. Seecharan, NY Slip Op 04907 (2d Dep't September 16, 2020)

Here is the decision.

Attorneys' fees.

The Supreme Court was not required to hold an evidentiary hearing before awarding attorneys' fees to the plaintiff, as the defendant, pursuant to the parties' stipulation, had consented to the resolution of the issue by motion. By so stipulating, the defendant waived his right to a hearing.

Nieves-Iglesias v. Iglesias, NY Slip Op 04847 (2d Dep't September 2, 2020)

Here is the decision.

The admissibility of police reports.

Pursuant to CPLR 4518(a), a police accident report is admissible as a business record as long as the report is made based on the officer's personal observations, and while carrying out police duties. Where information is not based on the officer's personal observations, it may be admissible as a business record if the person giving the information to the officer was under a business duty to relate the facts to the officer, or if the statement qualifies under another hearsay exception, such as an admission. Each person in the chain producing the record, from the initial declarant to the final entrant, must be acting within the course of regular business conduct, or the declaration must meet the test of some other hearsay exception.

Country-Wide Ins. Co. v. Lobello, NY Slip Op 04836 (2d Dep't September 2, 2020)

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Article 78.

Prohibition is an extraordinary remedy that is available only where there is a clear legal right, and then only when a court - in cases where judicial authority is challenged - acts or threatens to act either without jurisdiction or in excess of its authorized powers. The extraordinary remedy of mandamus will lie only to compel the performance of a ministerial act, and only where there exists a clear legal right to the relief.

Abdul-Malik v. Livote, NY Slip Op 04834 (2d Dep't September 2, 2020)

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A motion for leave to renew.

The motion must be based on new facts not offered on the prior motion which would change the prior determination, and the movant must submit a reasonable justification for the failure to present such facts on the prior motion, pursuant to CPLR 2221[e][2]. A motion for leave to renew is not a second chance freely given to a party who has not exercised due diligence in making its first factual presentation.

Leader v. Steinway, Inc., NY Slip Op 04833 (2d Dep't September 2, 2020)

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CPLR 317.

A defendant who has been served with a summons other than by personal delivery but who has not appeared may be allowed to defend the action upon a finding that it did not personally receive notice of the summons and complaint in time to defend and that it has a potentially meritorious defense. Service on a corporation through delivery of process to the Secretary of State is not personal delivery to the corporation.  A defendant moving pursuant to CPLR 317 to vacate a default need not establish a reasonable excuse for the delay in answering or appearing.

Leader v. Steinway, Inc., NY Slip Op 04832 (2d Dep't September 2, 2020)

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Appellate practice.

The appeal from so much of the order as granted that branch of the defendant's motion which was for summary judgment dismissing the complaint insofar as asserted against it must be dismissed. The plaintiff failed to oppose that motion and, therefore, is precluded from challenging the propriety of that order on appeal.

Leader v. Steinway, Inc., NY Slip Op 04831 (2d Dep't September 2, 2020)

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Appellate practice.

No appeal lies from an order entered upon the default of the appealing party, pursuant to CPLR 5511.

Leader v. Steinway, Inc., NY Slip Op 04831 (2d Dep't September 2, 2020)

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Appellate practice.

Intermediate orders that necessarily affected the final judgment are brought up for review and may be considered on the appeal.

Goshen Mtge., LLC v. DePalma, NY Slip Op 04830 (2d Dep't September 2, 2020)

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Extending the time for service of process.

While CPLR 306-b requires that service be effected within 120 days of the commencement of the action, it also provides that "[i]f service is not made upon a defendant within the time provided in this section, the court, upon motion, shall dismiss the action without prejudice as to that defendant, or upon good cause shown or in the interest of justice, extend the time for service." A motion to extend the time for service may be granted on good cause shown or in the interest of justice, which are separate and independent standards. To establish good cause, a plaintiff must demonstrate reasonable diligence in attempting service. If good cause for an extension is not established, a court must consider the broader interest of justice standard. In applying that standard, the court must analyze the factual setting and the parties' competing interests.  It may also consider diligence, or the lack thereof, along with any other relevant factor in making its determination, including expiration of the Statute of Limitations, the meritorious nature of the cause of action, the length of delay in service, the promptness of a plaintiff's request for the extension of time, and prejudice to the defendant.

Fink v. Dollar Mart, NY Slip Op (2d Dep't September 2, 2020)

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Discovery disputes.

The resolution of discovery disputes is within the sound discretion of the motion court. Striking a pleading may be appropriate where there is a clear showing that the failure to comply with discovery demands is willful or contumacious, pursuant to  CPLR 3126[3]. Willful and contumacious conduct may be inferred from a party's repeated failure to comply with court-ordered discovery, coupled with inadequate explanations for the failures to comply, or a failure to comply with court-ordered discovery over an extended period of time.

Ewa v. City of New York, NY Slip Op 04825 (2d Dep't September 2, 2020)

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Appellate practice.

No appeal lies as of right from an order that does not decide a motion made on notice, pursuant to CPLR 5701(a)(2).

Deutsche Bank Natl. Trust Co. v. Brown, NY Slip Op 04824 (2d Dep't September 2, 2020)

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Inquests.

At the inquest, the sole issue is the extent of plaintiff's damages, and the inquest court should not consider the question of whether the defsndant caused the damages. At an inquest to ascertain damages upon a defendant's default, the plaintiff may submit proof by written sworn statements of the witnesses, pursuant to  CPLR 3215[b] and 22 NYCRR 202.46[b]. However, if the defaulting defendant gives notice that he will appear at the inquest, the plaintiff must make the witnesses available for cross-examination.

Castaldini v. Walsh, NY Slip Op 04822 (2d Dep't September 2, 2020)

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Collateral estoppel.

Collateral estoppel precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party or those in privity, regardless of whether the courts or the causes of action are the same. Collateral estoppel allows the determination of an issue of fact or law raised in a subsequent action by reference to a previous judgment on a different cause of action in which the same issue was necessarily raised and decided.

Broder v. Pallotta & Assoc. Dev., Inc., NY Slip Op 04821 (2d Dep't September 2, 2020)

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Appellate practice.

On an appeal from a final judgment, the Appellate Division may review any intermediate order which necessarily affects the judgment, including any order that was adverse to the respondent on appeal and which, if reversed, would entitle the respondent to prevail, pursuant to  CPLR 5501[a][1].

Badr v. Blumberg, NY Slip Op 04819 (2d Dep't September 2, 2020)

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Trusts.

Pursuant to § 17(e) of the Restatement (Second) of Trusts, a trust may be created by "a promise by one person to another person whose rights thereunder are to be held in trust for a third person."

Zachariou v. Manios, NY Slip Op 04811 (1st Dep't August 27, 2020)

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Choice of law.

Choice of law provisions typically apply to substantive issues, not procedural ones. However, the question of whether a plaintiff has standing is a procedural matter, and procedural matters are governed by the law of the forum state. Here, the motion court properly applied New York law to determine whether plaintiff has standing.

Zachariou v. Manios, NY Slip Op 04811 (1st Dep't August 27, 2020)

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Contract damages.

The purpose of contract damages is to put the non-breaching party in the position it would have been in if the other party had performed.

U-Trend N.Y. Inv. L.P. v. US Suite LLC, NY Slip Op 04810 (1st Dep't August 27, 2020)

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The reckless disregard standard of care.

The reckless disregard standard of care, codified in Vehicle and Traffic Law § 1104(e), applies when a driver of an authorized emergency vehicle involved in an emergency operation engages in the specific conduct exempted from the rules of the road by § 1104(b). Any other injury-causing conduct of such a driver is governed by the principles of ordinary negligence.

Edwards v. Menzil, NY Slip Op 04728 (2d Dep't August 26, 2020)

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A municipality's liability.

A municipality that has adopted a prior written notice law is not liable for a defect within the scope of the law absent the requisite written notice, unless an exception to the requirement applies. There are two exceptions to the prior written notice requirement: where an affirmative act of negligence by the municipality creates the defect, or where a special use of the property confers a special benefit upon the municipality.

D. D. v. Incorporated Vil. of Freeport, NY Slip Op 04727 (2d Dep't August 26, 2020)

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The storm in progress rule.

Under the rule, a property owner is not responsible for accidents occurring as a result of the accumulation of snow and ice until an adequate period of time has passed following the storm's cessation to give the owner an opportunity to ameliorate the hazards caused by the storm. On a motion for summary judgment, the question of what is a reasonable period of time may be decided as a matter of law, based on the circumstances of the case.

Bryant v. Retail Prop. Trust, NY Slip Op 04725 (2d Dep't August 26, 2020)

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