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)

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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)

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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.