General jurisdiction over a corporation.

A corporate defendant's registration to do business in New York, and the designation of the Secretary of State to accept service of process, does not constitute the corporation's consent to submit to the general jurisdiction of New York for causes of action that are unrelated to the corporation's affiliations with New York.

Weik v. LSG Sky Chefs N. Am. Solutions, Inc., NY Slip Op 00517 (January 28, 2021)

Here is the decision.

The notice requirement in a foreclosure action.

The Appellate Division reversed, with costs, the Order which granted plaintiff's motion for summary judgment on its foreclosure complaint, and, upon a search of the record, granted summary judgment, dismissing the complaint, without prejudice. Plaintiff failed to establish prima facie its strict compliance with the notice requirement of RPAPL 1304. The copy of the certified mail receipt it submitted is undated and blank in other parts, and shows the signature of someone other than defendant. The copy of the pre-paid first-class mail envelope has no recipient's name or address on it. Further, the affidavits plaintiff submitted do not demonstrate the loan servicer's employees' familiarity with the mailing practices and procedures of the servicer that had mailed the 90-day notices and the notice of default.

U.S. Bank, N.A. v. Calhoun, NY Slip Op 00398 (1st Dep't January 26, 2021)

Here is the decision.

Partnerships.

The partnership itself may sue and be sued, pursuant to CPLR 1025.

149-51 Sullivan St. Co. v. Lopez, NY Slip Op 00381 (1st Dep't January 26, 2021)

Here is the decision.

Venue.

A written agreement fixing the place of trial, made before an action is commenced, shall be enforced upon a motion for change of venue, pursuant to CPLR 501 and 511 A contractual forum selection clause is prima facie valid and enforceable unless it is shown by the challenging party to be unreasonable, unjust, in contravention of public policy, invalid due to fraud or overreaching, or it is shown that a trial in the selected forum would be so difficult that the challenging party would, for all practical purposes, be deprived of its day in court.

Andreryeva v. Haym Solomon Home for the Aged, LLC, NY Slip Op 00281 (2d Dep't January 21, 2021)

Here is the decision.

Medical malpractice claims.

In order to establish the physician's liability, a plaintiff must prove that the physician deviated or departed from accepted community standards of practice, and that the departure was a proximate cause of the plaintiff's injuries. In seeking summary judgment, the defendant must make a prima facie showing either that there was no departure from the accepted standard of care, or that any departure was not a proximate cause of the plaintiff's injuries. Where the defendant has satisfied that burden, the plaintiff must submit evidentiary facts or materials to rebut the defendant's prima facie showing. Summary judgment is not appropriate where the parties adduce conflicting medical expert opinions. 

Agostini v. Varughese, NY Slip Op 00280 (2d Dep't January 20, 2021)

Here is the decision.

Civil contempt.

In order to find contempt, it must be determined that the court's lawful order, clearly expressing an unequivocal mandate, was disobeyed. Moreover, the party to be held in contempt must have had knowledge of the order. Finally, there must be a showing of prejudice to the right of a party to the litigation, pursuant to Judiciary Law § 753[A]. The burden of proof is on the proponent of the contempt motion, and the contempt must be established by clear and convincing evidence.

Abizadeh v. Abizadeh, NY Slip Op 00279 (2d Dep't January 20, 2021)

Here is the decision.

The standard for dismissal.

On a motion to dismiss for failure to state a cause of action, pursuant to CPLR 3211(a)(7), the court must accept the facts alleged in the complaint as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory. Where evidentiary material is submitted and considered on the motion, and the motion is not converted into one for summary judgment, the question is whether the plaintiff has a cause of action, not whether the plaintiff has stated one. Pursuant to CPLR 3211(a)(1), the motion will be denied unless documentary evidence conclusively establishes, as a matter of law, a defense to the asserted claims.

68 16th Realty, LLC v. Bank of N.Y., NY Slip Op 00278 (2d Dep't January 20, 2021)

Here is the decision.

Appellate practice.

Defendant's failure to consolidate her legal malpractice action, which she commenced subsequent to this legal fees action, precludes review of whether her claim is sufficiently intertwined with the account stated cause of action.

Law Off. of Mark S. Helweil v. Karambelas, NY Slip Op 00260 (1st Dep't January 19, 2021)

Here is the decision.

Alleged negligence in responding to a 911 call.

The Appellate Division unanimously reversed the Order which denied the City defendants' motion to dismiss the complaint and granted plaintiff's cross motion for leave to amend the complaint, granting defendants' motion and denying plaintiff's motion. Neither the notice of claim nor the complaint alleges  facts that demonstrate the special relationship between plaintiff and the City defendants required for liability on the ground that they were negligent in handling plaintiff's 911 call. The proposed amended complaint does not remedy the pleading's deficiencies. Its factual allegations and plaintiff's affidavit that his mother-in-law told him she had called 911 and that the fire department was on its way conflict with plaintiff's § 50-h hearing testimony that he had no memory of the fire and did not know what had happened until he awoke in the hospital.

Velez v. City of New York, NY Slip Op 00277 (1st Dep't January 19, 2021)

Here is the decision.

Appellate practice.

The Appellate Division unanimously affirmed the Order which denied plaintiff's motion to reject the Special Referee's report recommending, after a hearing on sanctions, that defendants be awarded attorneys' fees, and which  granted defendants' cross motion to confirm the report. Plaintiff waived the issue of noncompliance with CPLR 4320(b) by not raising it in his motion to reject the report. Plaintiff cannot challenge the quashing of subpoenas before the hearing, having failed to appeal the relevant order, pursuant to CPLR 5501 and 5513[a]. Furthermore, the challenge to the finding of frivolous conduct and the claim that plaintiff acted in good faith are foreclosed, as the Appellate Division had previously affirmed the order granting sanctions.

Abe v. New York Univ., NY Slip Op 00247 (1st Dep't January 19, 2021)

Here is the decision.

CPLR 3215(c).

The Appellate Division determined that the mortgage foreclosure action should have been dismissed as against the original borrower, because plaintiff failed to take proceedings for the entry of judgment within one year of the borrower's default. The time to seek a default judgment should be measured from the default in responding to the original complaint, not the amended complaint. Although an amended complaint supersedes the original complaint, and, therefore, requires a new responsive pleading in order to avoid default, allowing the filing of an amended complaint to effectively cure a failure to timely move for a default in responding to the original complaint would create an exception that swallows the rule. Because plaintiff did not move for a default judgment until well after one year after the default in responding to the original complaint, and because plaintiff fails to offer any excuse for the delay, dismissal was appropriate under 3215(c), in spite of plaintiff's inability to bring a new action due to expiration of the statute of limitations.

MTGLQ Invs., L.P. v. Shay, NY Slip Op 00237 (1st Dep't January 14, 2021)

Here is the decision.

Supplemental bills of particulars.

To the extent that the supplemental bill raises new theories of liability and injuries, plaintiff was entitled to serve them as amendments as of course, pursuant to CPLR 3042(b), as no note of issue has been filed, and no prior amended bill of particulars has been served.

Napolitano v. Gustavson, NY Slip Op 00238 (1st Dep't January 14, 2021)

Here is the decision.

A claim for respondent superior and negligent hiring.

The Appellate Division unanimously affirmed the granting of defendants' motion for summary judgment in this action where plaintiff alleges that she was assaulted by a receptionist employed by defendants in their medical office. The court properly concluded, as a matter of law, that the receptionist was not acting within the scope of her employment when she had a physical confrontation with plaintiff, because the conduct alleged by plaintiff was a significant departure from normal methods of performance of the job. Furthermore, defendants could not reasonably have anticipated the conduct, as the employee had worked for them for eight years and this was the first such encounter, and plaintiff was unable to cite any prior conduct that would have put defendants on notice that the receptionist had a propensity for violence. The Yelp reviews cited by plaintiff did not name the receptionist and made no reference to violent conduct.

Troy v. Fagelman, NY Slip Op 00246 (1st Dep't January 14, 2021)

Here is the decision.

Appellate practice.

Defendant's failure to seek dismissal of the claim before the trial court precludes seeking such relief on appeal. 

Villani v. Kings Harbor Multicare Ctr., NY Slip Op 00244 (January 14, 2021)

Here is the decision.

Recission.

The cause of action seeking the equitable remedy of rescission must be dismissed because plaintiffs have a complete and adequate remedy at law.

El Toro Group, LLC v. Bareburger Group, LLC, NY Slip Op 00246 (1st Dep't January 14, 2021)

Here is the decision.

Appellate practice.

Defendants argue that the appeal should be dismissed because plaintiff's appeal from the underlying summary judgment order has been deemed dismissed. However, after the judgment was entered, terminating the right of direct appeal from the order, plaintiff properly appealed from the judgment, pursuant to CPLR 5501[a][1], without any improper delay.

Walsh v. Pisano, NY Slip Op 00245 (1st Dep't January 14, 2021)

Here is the decision.

Waiver of arbitration.

In deciding whether arbitration has been waived, the court considers the extent of the litigation, the length of time between the start of litigation and the request to arbitrate, and whether there is prejudice to the other party. Here, there was service of amended pleadings, but no discovery or motion practice. The length of time between the start of litigation and the demand for arbitration was 26 months, but that length of time, without more, is not enough to effectuate a waiver, as the critical element is prejudice. The Appellate Division rejected the conclusory argument that plaintiff will not be able to properly defend the arbitration due to the passage of time. The statute of limitations defense is still available to plaintiff and can be argued before the arbitrator.

Matter of NBC Universal Media, LLC v. Strauser, NY Slip Op 00091 (1st Dep' January 7, 2021)

Here is the decision.

Appellate practice.

Plaintiff's arguments concerning waiver and whether arbitration would be futile are unpreserved, since they were first raised in reply and may not be raised on appeal.

Matter of NBC Universal Media, LLC v. Strausser, NY Slip Op 00091 (1st Dep't January 7, 2021)

Here is the decision.

Arbitration.

The Appellate Division unanimously affirmed, with costs, the Order which denied the petition to permanently stay arbitration. The court correctly found that the statute of limitations defense to the arbitration proceeding was a matter for the arbitrator to determine, because the choice of law provision containing the arbitration clause specifies that the agreement is to be "interpreted" under New York law, not that enforcement of the agreement is to be governed by New York law.

Matter of NBC Universal Media, LLC v. Strausser, NY Slip Op 00091 (1st Dep't January 7, 2021)

Here is the decision.

CPLR 3012[d].

The Appellate Division unanimously reversed the Order which denied defendants' motion for an extension of time to respond to the complaint, and the Order which denied defendants' motion to dismiss the complaint, and granted both motions. Defendants proffered a reasonable excuse for their delay in answering by submitting an affidavit from their president and CEO, averring that they never received a copy of the summons and complaint that was served on the Secretary of State in August 2019, and only became aware of the lawsuit in October 2019 when the summons and complaint were mailed to their former employee. There is no evidence in the record that defendants' delay in responding to the complaint was willful, or that the three-month delay resulted in any prejudice to plaintiff.

Sukhu v. R.A.I.N. Home Attendant Servs., Inc., NY Slip Op 00098 (1st Dep't January 7, 2021)

Here is the decision.

CPLR 4406.

The Appellate Division affirmed the denial of petitioner's second motion to set aside the verdict, as successive post-trial motions are not permitted.

Matter of Gonzales v. N.Y.C. Dept. of Citywide Admin. Servs., NY Slip Op 00014 (1st Dep't January 5, 2021)

Here is the decision.

A motion to reargue.

The Appellate Division unanimously reversed, on the law and the facts, with costs, the Order which granted defendant's motion for reargument, and, upon reargument, directed the Clerk to vacate the money judgment in plaintiffs' favor and to dismiss the action with prejudice The Appellate Division denied the motion, and directed the Clerk to reinstate the money judgment. The court improvidently exercised its discretion in granting defendant's motion for reargument, pursuant to CPLR 2221[d]. A motion for reargument must be based on matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion. Here, there was no prior motion to be reargued. Neither did the court overlook or misapprehend anything in its prior ruling or the resulting judgment, which entailed a straightforward mathematical calculation to arrive at the amount owing to plaintiffs under the loan. The Appellate Division said that it seemed that defendant's arguments in support of the motion were directed at undermining and circumventing its decision in a prior appeal, rather than at genuine reargument

Neo Universe Inc. v. Ito, NY Slip Op 00026 (1st Dep't January 5, 2021)

Here is the decision.

Appellate practice.

The Appellate Division will not consider contentions that are raised for the first time in an appellant's reply brief.

Price v. Turner Constr. Co., NY Slip Op 00039 (1st Dep't January 5, 2021)

Here is the decision.

The recovery of interest.

In an action in equity, the recovery of interest is within the court's discretion, and the exercise of that discretion will be governed by particular facts in each case. Here, the Appellate Division found that the motion court providently exercised its discretion in declining to limit interest, as there is no indication that plaintiff engaged in any wrongful conduct that would warrant such action.

U.S. Bank N.A. v. Beymer, NY Slip Op 00048 (1st Dep't January 5, 2021)

Here is the decision.

The doctrine of collateral estoppel.

The Appellate Division unanimously affirmed, with costs, the Order granting defendants' motion to dismiss plaintiffs' legal malpractice claim, in light of the prior findings in a related bankruptcy proceeding. The doctrine of collateral estoppel precludes a party from relitigating, in a subsequent action or proceeding, an issue that was clearly raised in a prior action or proceeding and decided against that party or those in privity. The motion court properly concluded that plaintiffs were in privity with the debtors in the prior proceeding, where the issue was the validity of the same loan transactions that underly the claim here. The Appellate Division rejected plaintiffs' argument that collateral estoppel does not apply because defendants were not parties to the prior proceeding. The law is clear that a party seeking to invoke the doctrine need not have been a party to the prior action. The Appellate Division also rejected plaintiffs' argument that their claims are not barred because there was no malpractice claim in the prior proceeding. As the motion court found, collateral estoppel precludes the relitigation of already decided factual issues, regardless of whether the causes of action are the same.

Bauhouse Group I, Inc. v. Kalikow, NY Slip Op. 00001 (1st Dep't January 5, 2021)

Here is the decision.

In rem tax foreclosure actions.

The Appellate Division unanimously affirmed the Orders which denied the motions to vacate the judgments of in rem foreclosures granted on default and the deeds transferring the properties. The judgments of foreclosure against the properties were duly entered in the office of the County Clerk, after publication of notices that complied with the applicable law, Administrative Code of City of NY § 11-406[c], as well as due process. Accordingly, the presumption of regularity of these proceedings, pursuant to Administrative Code § 11-411, became conclusive four months after entry of the judgments of foreclosure. As appellants did not make their motions to vacate the judgments or take any action to redeem the subject properties within the four-month period specified by § 11-412.1[d], the motions to vacate are time-barred, pursuant to § 11-412.1 [h].

Matter of In Rem Tax Foreclosure Action No. 52, NY Slip Op 08023 (1st Dep't December 29, 2020)

Here is the decision.

A contractual limitations period.

The Appellate Division unanimously reversed, with costs, the Order which granted plaintiff's motion to dismiss defendant's counterclaims, and denied the motion. Parties may contract for a shorter period to commence an action than set forth by statute, provided that the period is reasonable. However, the limitations period is unenforceable if the contract imposes a condition precedent that cannot reasonably be met within the contractual limitations period. In deciding that, the circumstances, not the time, must be the determining factor. The relevant question when deciding whether a limitations period is enforceable is whether and when the damages were objectively ascertainable. In addition, a contractual limitations period is unenforceable without a concrete determination of the accrual of damages. Here, the provisions setting a one-year limitation period for claims arising out of the contracts are reasonable on their face. However, the contracts also provide that payments by the owner are conditions precedent to any sums owed by plaintiff to defendant. It was neither fair nor reasonable to impose such a condition precedent, which was not within defendant's control, but had the capability of nullifying its claim. 

Turner Constr. Co. v. Nastasi & Assoc., Inc., NY Slip Op 08024 (1st Dep't December 29, 2020)

Here is the decision.

Motions to renew.

The Appellate Division unanimously affirmed, with costs, the Order which denied plaintiffs' motion to renew defendants' summary judgment motion, pursuant to CPLR 2221(e). The new affidavit, submitted by a former assistant, was merely cumulative of information that had already been presented to the court, and, therefore, was insufficient to warrant renewal. Plaintiffs also failed to provide a reasonable justification for the failure to submit the affidavit in a timely manner, pursuant to 2221[e][3]. While plaintiffs made some vague assertions regarding attempts to contact the affiant earlier, they have not put forth any specific information regarding their efforts to locate her or to obtain the affidavit. Further, the affidavit suggests that the affiant was simply busy with a move, travel, and an injury, and otherwise did not want to get involved with the case. Such a conclusory claim as to unavailability is not a valid excuse for not submitting the additional facts with the original application. Neither have plaintiffs provided an adequate explanation for the year-long delay between their obtaining the affidavit and their filing the motion. The Appellate Division noted that, even giving the affidavit full weight, the facts contained therein - which defendants largely contest - would not change the outcome of the case.

Wang v. LaFrieda, NY Slip Op 08025 (1st Dep't December 29, 2020)

Here is the decision.

Waiver as an equitable defense.

Waiver may be argued as an equitable defense to the remedy of rescission.

Colony Ins. Co. v. Danica Group, LLC, NY Slip Op 08026 (1st Dep't December 29, 2020)

Here is the decision.

Appellate practice.

An argument that is raised for the first time on appeal is unpreserved for review by the Appellate Division.

Liebowitz v. Liebowitz, NY Slip Op 07710 (1st Dep't December 22, 2020)

Here is the decision.

50 years.