A contract for the purchase of real property.

The Appellate Division unanimously affirmed, with costs, the Order which granted defendant's motion for summary judgment dismissing the complaint, finding that the motion court correctly enforced the contract in accordance with its plain terms. Plaintiff's contention that it is entitled to an additional, extra-contractual credit of $120,000, which it claims was paid to defendant two years before the contract was entered into, is insufficient to create an ambiguity, as such a fundamental condition would not have been omitted. In addition, the consideration of plaintiff's extrinsic evidence is contrary to the parol evidence rule. Plaintiff's contention that it was entitled to an adjournment of the closing date because there was no time of the essence language in the contract is unavailing. As the contract had a specific termination provision, a time of the essence provision was unnecessary. Plaintiff's argument that defendant anticipatorily breached the contract is also unavailing. Defendant's counsel prepared all of the documents required to close at the appointed time and place, and it was plaintiff that committed the breach by failing to appear with the required funds.

USA Recycling Inc. v. Baldwin Endico Realty Assoc., Inc., NY Slip O[ 01222 (1st Dep't February 25, 2021)

Here is the decision.

Lack of personal jurisdiction in a commercial injury action.

Plaintiffs' contention that World Rugby is subject to jurisdiction pursuant to CPLR 302(a)(3)(ii) is unavailing because plaintiffs did not plead that New York is the situs of the alleged commercial injury they sustained. Instead, plaintiffs allege World Rugby made fraudulent statements and procured USA Rugby's breach of its contract with USA Sevens LLC in Ireland. Thus, the original critical events did not occur in New York, and the fact that plaintiffs may have suffered economic loss in New York is an insufficient basis upon which to base personal jurisdiction. Plaintiffs also contend that World Rugby is subject to jurisdiction pursuant to CPLR 302(a)(1). Plaintiffs argue that World Rugby transacted business in New York by engaging in a 13-year relationship with them and by negotiating the 2014 Host Union Agreement in New York. However, plaintiffs fail to allege a sufficient nexus between the parties' broad, overall relationship and plaintiffs' specific claims in this suit. 

USA Sevens LLC v. World Rugby Ltd., NY Slip Op 01223 (1st Dep't February 25, 2021)

Here is the decision.

A question of arbitrability.

The Appellate Division unanimously reversed, on the law and with costs, the Order which denied defendants" motion to compel arbitration, and granted the motion. Paragraph 18 of the parties" exhibit space agreement, titled "Disputes," provides broadly that "[a]ny and all disputes or claims . . . will be resolved in binding arbitration, rather than in court." The agreement also expressly incorporates the Commercial Arbitration Rules of the American Arbitration Association (AAA), of which Rule 7(a) states, "The arbitrator shall have the power to rule on his or her own jurisdiction, including any objections with respect to the existence, scope, or validity of the arbitration agreement or to the arbitrability of any claim or counterclaim." These provisions demonstrate the parties" clear and unmistakable intent to delegate the threshold arbitrability question to the AAA.

Anima Group, LLC v. Emerald Expositions, LLC, NY Slip Op 01138 (1st Dep't February 18, 2021)

Here is the decision.

A cause of action for aiding and abetting.

The Appellate Division unanimously reversed, on the law, the Order which denied the individual defendants' motion for summary judgment dismissing the aiding and abetting claim asserted against him. The claim must be dismissed because there is no evidence of the requisite community of purpose between him and plaintiff's coworkers. There is no indication that he was aware of any of the coworkers' actions, and an aiding and abetting claim cannot be based on an individual's own conduct.

Bistreich v. City of New York, NY Slip Op 01118 (1st Dep't February 18, 2021)

Here is the decision.

Appellate practice.

Although the motion court purported to deny respondent's motion for reargument, it effectively granted the motion by addressing the merits. Accordingly, the order is appealable, pursuant to CPLR 5701[a][2][viii].

Matter of Country-Wide Ins. Co. v. TC Acupuncture, P.C., NY Slip Op 01120 (1st Dep't February 18, 2021)

Here is the decision.

Freedom of Information Law (FOIL)

The Appellate Division affirmed the Supreme Court's determination that the Department of Education did not constructively deny petitioner's first FOIL request, pursuant to 21 NYCRR 1401.5[d]. Under FOIL, any person may request and receive documents kept by a government agency, unless they are statutorily exempted from disclosure, and the burden rests on the agency to demonstrate the applicability of an exception. Here, the record does not establish how the unspecified litigation records, as well as the hearing and 10-day numbers requested by petitioner, if redacted, would allow a person in the school community to identify students with reasonably certainty, citing Public Officers Law § 87[2][a], [b]; 34 CFR § 99.3. Accordingly, the Appellate Division remanded for an in camera review of the documents and numbers to evaluate whether the exceptions are applicable.

Matter of Cuddy Law Firm, P.L.L.C. v. New York City Dept. of Educ., NY Slip Op 01121 (1st Dep't February 18, 2021)

Here is the decision.

Certificates of merit in medical malpractice actions.

The Appellate Division unanimously affirmed the denial of defendants’ cross motion to dismiss the complaint for failure to timely file a certificate of merit pursuant to CPLR 3012-a, which provides that, in a medical malpractice action, "the complaint shall be accompanied by a certificate, executed by the attorney for the plaintiff, declaring that: (1) the attorney has reviewed the facts of the case and has consulted with at least one physician . . . who is licensed to practice in [any] state . . . and who the attorney reasonably believes is knowledgeable in the relevant issues involved in the particular action, and that the attorney has concluded on the basis of such review and consultation that there is a reasonable basis for the commencement of such action; or (2) the attorney was unable to obtain the consultation required . . . because a limitation of time . . . would bar the action and that the certificate . . . could not reasonably be obtained before such time expired. If a certificate is executed pursuant to this subdivision, the certificate required by this section shall be filed within ninety days after service of the complaint." The sanction of dismissal is not authorized by the statute. In the event of a plaintiffs' noncompliance,  the appropriate course is to request a conditional order compelling compliance, which can result in dismissal of the action at the discretion of the court, pursuant to CPLR 3126[3].

Fortune v. New York City Health & Hosps. Corp., NY Slip Op 01122 (1st Dep't February 18, 2021)

Here is the decision.

Summary judgment in a medical malpractice action.

As there are conflicting expert opinions, defendant's summary judgment motion as to plaintiff's claim relating to postsurgical care was properly denied. Since plaintiff's expert, in opposition to defendant's motion, did not address the claims for lack of informed consent and malpractice during surgery, and plaintiff does not pursue those claims on appeal, they are dismissed. 

John v. New York City Health & Hosps. Corp., NY Slip Op 01123 (1st Dep't February 18, 2021)

Here is the decision.

CPLR 3211(b).

On  a motion to dismiss an affirmative defense, a plaintiff bears the heavy burden of showing that, as a matter of law, the defense is without merit. The allegations in the answer must be viewed in the light most favorable to the defendant, and the defendant is entitled to the benefit of every reasonable intendment of the pleading, which is to be construed liberally.

Alpha Capital Anstalt v. General Biotechnology Corp., NY Slip Op 00985 (1st Dep't February 16, 2021)

Here is the decision.

Tortious interference.

The complaint fails to state a cause of action for tortious interference with contract, as plaintiffs have not alleged that they were parties to a contract with a third party with which defendant interfered. Neither do plaintiffs state a prima facie claim for tortious interference with business relations or economic advantage, as the essence of the cause of action involves actions directed not at plaintiffs but at third parties. Here, the alleged threats and misrepresentations were directed at plaintiffs themselves, and not at any third party.

Underwood v. Urban Homesteading Assistance (U-HAB), Inc., NY Slip Op 01020 (1st Dep't February 16, 2021)

Here is the decision.

Timeliness of a summary judgment motion.

The Appellate Division unanimously reversed, on the law, the Order which denied defendants' motion for summary judgment dismissing the complaint, reinstated the complaint, and remanded the matter for a determination of the motion on the merits. The motion was timely since it was filed within the time period provided in the preliminary conference order. That deadline is controlling, despite the transfer to another Justice with part rules shortening the time, as there was no subsequent order or directive explicitly providing otherwise.

 Lopez v. Metropolitan Tr. Auth., NY Slip Op 00910 (1st Dep't February 11, 2021)

Here is the decision.

Appellate practice.

Plaintiff's fraud in the factum argument involves issues of fact, and, therefore, may not be raised for the first time on appeal. 

Shilpa Saketh Realty, Inc. v. Vidiyala, NY Slip Op 00917 (1st Dep't February 11, 2021)

Here is the decision.

Discovery of privileged information.

In these insurance coverage actions, the Appellate Division unanimously affirmed, with costs, the motion court's exercise of its broad discretion in denying the insurers' motions to compel discovery of the NFL's defense and settlement materials from the underlying action. The cooperation clauses in the insurance policies did not operate as waivers of the NFL's attorney-client and work-product privileges. Neither was there a waiver of the attorney-client privilege merely because the parties had a common interest in the outcome of the underlying actions. Nor did the NFL, by seeking coverage, put its privileged and protected information at issue.

Alterra Am. Ins. Co. v. National Football League, NY Slip Op 00900 (1st Dep't February 11, 2021)

Here is the decision.

Court holiday.

Appellate practice.

Plaintiff's assertion that the voluntary payment doctrine, equitable estoppel, and waiver bar the accounting is improperly raised for the first time on appeal. 

U.S. Bank, N.A. v. Cordero, NY Slip Op 00819 (1st Dep't February 9, 2021)

Here is the decision.

Waiver of arbitration.

By participating in the lawsuit for two years before filing its motion to compel arbitration, defendant waived its right to assert that the action is barred by the arbitration agreement. Defendant failed to plead the arbitration agreement as an affirmative defense, and did not produce it in response to plaintiff's discovery request. Plaintiff demonstrated prejudice, as she had already expended considerable time and resources in litigating her claims in court.

Wallace v. Tri-Med Home Care Servs., Inc., NY Slip Op 00821 (1st Dep't February 9, 2021)

Here is the decision.

Court holiday.

911 calls and liability.

The Appellate Division unanimously reversed, on the law, the Order granting defendants' motion to dismiss the complaint. Plaintiff's allegations are sufficient to establish a special relationship between the City and the decedent, bringing her claim within the exception to the general rule that a municipality may not be held liable to a person injured by the breach of a duty that it owes to the general public, such as the duty to provide ambulance service. The allegation that the 911 operator told plaintiff that "we are on our way" is sufficient to establish defendants' assumption of an affirmative duty to act on the decedent's behalf. Plaintiff sufficiently alleged justifiable reliance on the call operator's statement through an affidavit submitted in opposition to defendants' motion in which she listed several additional actions she would have taken to secure help but for the operator's assurance.

Xenias v. City of New York, NY Slip Op 00647 (1st Dep't February 4, 2021)

Here is the decision.

Appellate practice.

Plaintiff's argument that the limitations period should have been tolled until she was granted letters of administration was not properly before the Appellate Division, because it was raised for the first time on reargument/renewal and was not based on new facts or a change in the law. In any event, the limitations period is not tolled during the pendency of a petition for letters of administration.

Xenias v. Mount Sinai Health Sys. Inc., NY Slip Op 00648 (1st Dep't February 4, 2021)

Here is the decision.

Out-of-possesson landlords.

An out-of-possession landlord can be held liable for injuries that occur on its premises only if the landlord has retained control over the premises and if the landlord is contractually or statutorily obligated to repair or maintain the premises or has assumed a duty to repair or maintain the premises by virtue of a course of conduct.

Aponte v. Lee, NY Slip Op 00539 (2d Dep't February 3, 2021)

Here is the decision.

Confessions of judgment.

A person seeking to vacate a judgment entered upon the filing of an affidavit of confession of judgment must commence a separate plenary action.

Ace Funding Source, LLC v. Myka Cellars, Inc., NY Slip Op 00538 (2d Dep't February 3, 2021)

Here is the decision.

CPLR 5015(a)(1).

Defendants provided a reasonable excuse for their failure to appear for conferences and depositions, which led to the striking of their answer, based on the neglect of their attorney, who was suspended and then disbarred during the pendency of the proceedings, as a result of complaints concerning his neglect of matters and his failure to communicate with other clients.

Perez v. Table Run Estates, Inc., NY Slip Op 00533 (1st Dep't February 2, 2021)

Here is the decision.

CPLR 5015(a)(2).

In order to succeed on a motion to vacate an order or judgment on the ground of newly discovered evidence, the movant must establish that the evidence could not have been discovered earlier through the exercise of due diligence, and that the newly discovered evidence probably would have produced a different result.

Anghel v. Ruskin Moscou Faltischek, P.C., NY Slip Op 00402 (2d Dep't January 27, 2021)

Here is the decision.

Notes of issue.

Pursuant to the Uniform Rules for Trial Courts, at 22 NYCRR 202.21[a], [b], a note of issue must be accompanied by a certificate of readiness, which must state that there are no outstanding requests for discovery, and that the case is ready for trial. Here, the certificate of readiness that was filed with the first note of issue failed to indicate whether physical examinations were completed and whether medical reports were exchanged. As that certificate failed to materially comply with the rules, it was a nullity, and the plaintiff's time to move for summary judgment began to run when the new note of issue was filed.

Andujar v. Boyle, NY Slip Op 00401 (2d Dep't January 27, 2021)

Here is the decision.

The limitations period in a medical malpractice action.

The resumption of treatment, as opposed to the continuation of treatment, is insufficient to toll the statute of limitations.

Estrella v. Montefiore Med. Ctr., NY Slip Op 00491 (1st Dep't January 28, 2021)

Here is the decision.

A fraud claim.

In order to state the cause of action, the plaintiff must plead a material representation of a fact, knowledge of its falsity, an intent to induce reliance, justifiable reliance, and damages. The claim can be based on a material omission of fact for the purpose of inducing the plaintiff to rely on it, the plaintiffs justifiable reliance on the omission, and injury. The element of justifiable reliance is lacking where a sophisticated plaintiff enters into an arms-length transaction, and, with the exercise of ordinary intelligence, could have protected itself through due diligence.

Rapaport v. Strategic Fin. Solutions, LLC, NY Slip Op 00511 (1st Dep't January 28, 2021)

Here is the decision.

Default in a mortgage foreclosure action.

CPLR 3215(c) requires a plaintiff to move for a default judgment within a year of the defendant's default in answering or appearing. In a mortgage foreclosure action, the statutory requirements are satisfied by moving for an order of reference within a year of the default. The plaintiff's failure to make the motion requires dismissal of the action, either upon motion or sua sponte, except where sufficient cause is shown why the complaint should not be dismissed. Sufficient cause requires a reasonable excuse for the delay in moving for a default judgment and a potentially meritorious cause of action.

U.S. Bank N.A. v. Nunez, NY Slip Op 00515 (1st Dep't January 28, 2021)

Here is the decision.

A legal malpractice claim.

The claim is dismissed, as plaintiffs' allegations consist solely of purported violations of the Rules of Professional Conduct, which, standing alone, do not support a malpractice claim.

Volpe v. Munoz & Assoc., LLC, NY Slip Op 00516 (1st Dep't January 28, 2021)

Here is the decision.