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.