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.