CPLR 5015[a][1].

In order to have a late answer deemed timely served nunc pro tunc, and avoid the entry of a default judgment, a nonanswering defendant must provide a reasonable excuse for the delay in answering and demonstrate a potentially meritorious defense to the action.

Nationstar Mtge. LLC v. Ahmed, NY Slip Op 03259 (1st Dep't May 20, 2021)

Here is the decision.

Amendment as of right.

The Appellate Division found that the motion court improvidently exercised its discretion by denying leave to amend the complaint. "A party may amend his pleading once without leave of court . . .at any time before the period for responding to it expires," pursuant to CPLR 3025[a]. Since a motion to dismiss extends the defendant's time to answer the complaint "until ten days after service of notice of entry of the order" deciding the motion, pursuant to CPLR 3211[f], and since the court had not yet even decided defendant's CPLR 3211 motion at the time plaintiff moved to amend its complaint, plaintiff did not need to move pursuant to CPLR 3025(b); instead, it could have amended as of right pursuant to CPLR 3025(a).

Roam Capital, Inc. v. Asia Alternatives Mgt. LLC, NY Slip Op 03269 (1st Dep't May 20 2021)

Here is the decision.

A cause of action for aiding and abetting fraud.

In order to plead the claim, the plaintiff must allege the existence of the underlying fraud, actual knowledge, and substantial assistance. The "substantial assistance" element need not be very great and can be met by as little as imploring the active tortfeasor to effect the fraud.

U.S. Tsubaki Holdings, Inc. v. Estes, NY Slip Op 03273 (1st Dep't May 20, 2021)

Here is the decision.

Appellate practice.

Although the sua sponte dismissal of an action is not appealable as of right, pursuant to CPLR 5701[a][2], the Appellate Division may deem the notice of appeal from that portion of an order to be a motion for leave to appeal, and grant such leave.

558 Seventh Ave. Corp. v. Times Sq. Photo Inc., NY Slip Op 03244 (1st Dep't May 20, 2021)

Here is the decision.

Leave to file a late answer.

By order, defendants were directed to serve their answer to the amended complaint within 20 days of service of notice of entry of the order. Defendants were served with notice of entry of the order, but they did not move for leave to file a late answer until 35 days later, when plaintiff filed its request to enter a default judgment with the clerk. The court denied defendants' motion for leave to file a late answer on the ground that defendant failed to provide a reasonable excuse for the delay in answering. At the same time, the clerk informed plaintiff that it needed to formally move for a default judgment. Thereafter, plaintiff formally moved for a default judgment and defendants cross-moved to extend their time to answer for the second time.

The Appellate Division determined that the court properly denied defendants' motion for leave to file a late answer based on law of the case. The court initially denied defendants' motion on the ground that defendants failed to provide a reasonable excuse, and defendants never appealed that decision or moved to reargue that decision. Defendants then made a second motion for leave to file a late answer and offered the same excuse for their delay. The Appellate Division determined that, in the alternative, the motion court properly denied defendants' second motion for leave to file a late answer on the ground that defendants failed to put forth a reasonable excuse for their delay in answering the amended complaint. It was not an abuse of discretion for the court to find that defendants' excuse was not reasonable.

2001 Real Estate Space Catalyst, Inc. v. Stone Land Capital, Inc., NY Slip Op 03138 (1st Dep't May 18, 2021)

Here is the decision.

A cause of action for quantum meruit/unjust enrichment/quasi contract.

The Appellate Division modified the order and dismissed the claim, which alleges that defendants agreed to compensate plaintiffs with equity over the course of a 10-year period. The cause of action is barred by the statute of frauds, pursuant to General Obligations Law § 5-701[a][1], and the allegations, which relate to the breach of an oral agreement, are not a proper basis for a quantum meruit/quasi contract claim.

Razzak v. Juno, Inc., NY Slip Op 03153 (1st Dep't May 18, 2021)

Here is the decision.

Discovery.

Records exchanged during discovery may be used at, and are proper topics of questioning during, examinations before trial. The fact that some documents may be inadmissible at trial does not restrict use of those documents at examinations before trial.

Jones v. FEGS-WeCARE/Human Resources, NYC, NY Slip Op 03116 (1st Dep't May 13, 2021)

Here is the decision.

Defamation.

At issue here is a Facebook post that states, "Jim is a crook. Worst Company to do business with." As this post is merely an expression of opinion, it is not actionable. There is nothing in the post that implies that there are undisclosed facts to support the opinion, and the complaint is dismissed.

Rowbotham v. Wachenfeld, NY Slip Op 03125 (1st Dep't May 13, 2021)

Here is the decision.

Discovery.

The Appellate Division affirmed the Order which granted plaintiffs' motion to compel discovery to the extent of directing defendants to comply with certain specified requests and to submit to depositions.  Although some of the information plaintiff seeks pre- and post-dates the contracts at issue,  the information is material and necessary to its claims, pursuant to CPLR 3101[a], since plaintiffs allege that defendants warranted their financial condition when they entered into the contracts, that they may have misrepresented their financial condition, and that they failed to meet their financial obligations under the contracts. The post-contract events are relevant to plaintiff's claims and potential damages, given conflicting evidence as to whether defendant remained in business or had sold or otherwise transferred its assets to a successor entity, and since the contracts provided that their terms would be binding on the parties' respective successors and assigns.

Strategic Funding Source, Inc. v. Steenbok, Inc., NY Slip Op 03127 (1st Dep't May 13, 2021)

Here is the decision.

The implied covenant of good faith and fair dealing.

The Appellate Division affirmed the motion court's dismissal of plaintiff's claim for breach of the implied covenant of good faith and fair dealing as duplicative of the breach of contract claim. In support of this claim, plaintiff relies on the same facts that form the basis for the breach of contract claim and seeks the very same damages.

320 W. 115 Realty LLC v. All Bldg. Constr. Corp., NY Slip Op 03107

Here is the decision.

Negligent performance of a contract.

It is well settled that, absent allegations of a breach of duty independent of the contract, a cause of action based on negligent or grossly negligent performance of a contract is not cognizable. Here, the allegations of negligence relate only to defendants' alleged faulty performance of the construction work, which does not fall outside of the obligations agreed to under the contract. Plaintiff's attempt to rely on NY Lien Law article 3-A in an effort to establish an extra-contractual duty owed to plaintiff is unavailing. The allegations of negligence are not based on a breach of defendants' purported duty to pay subcontractors, but on defendants' alleged failure to perform the work properly. The negligence allegations are duplicative of those asserted in support of plaintiff's claim for breach of contract and the claim is dismissed.

320 W. 115 Realty LLC v. All Bldg. Constr. Corp., NY Slip Op 03107 (May 13, 2021)

Here is the decision.

Fraudulent inducement.

Plaintiff alleges that (1) defendants, in order to induce plaintiff to sign the contract, submitted an artificially low price which they never intended to honor, and (2) defendants, from the start, did not intend to perform under the contract. However, a cause of action for breach of contract cannot be converted into one for fraud by merely alleging that defendant did not intend to fulfill the contract. Instead, an actionable claim for fraudulent inducement must allege the representation of present fact, not of future intent. As plaintiff makes no such allegations here, the claim is dismissed.

320 W. 115 Realty LLC v. All Bldg. Constr. Corp., NY Slip Op 03107 (1st Dep't May 13, 2021)

Here is the decision.

Vacating a default.

The Appellate Division affirmed the Order which denied defendant's motion to vacate a judgment entered upon her default. Following the adjournments of the pretrial conferences at which defendant failed to appear, the matter was set down for trial on March 21, 2018. Defendant failed to appear for trial due to a snowstorm on that date, and the matter was set down for trial on April 11, 2018 and marked final. Defendant again failed to appear, sending a message to the motion court through her business manager, on the day of trial, that she was ill. Given defendant's failure to make arrangements to appear on the trial date, either in person or through counsel, or in the three weeks thereafter, the motion court providently determined that her unsupported excuse for defaulting was unreasonable. Given this pattern of default, the motion court declined to reach the issue of whether defendant had a meritorious defense to the action, and, for the same reason, the Appellate Division declined to reach the issue.

1032-1034 Lexington Ave., Ltd. v. Rogers, NY Slip Op 02973 (1st Dep't May 11, 2021)

Here is the decision.

A release provision.

In the severance agreement, plaintiff agrees to release defendant "from any and all causes of action, claims or demands up to the date of this Agreement, known or unknown." This release bars the fraudulent inducement claim based on the allegedly false representation that plaintiff was terminated because of the company's strategic restructuring. In addition, the severance agreement advises plaintiff to consult with an attorney and allows her 45 days to sign and seven days to revoke after signing, undermining plaintiff's claims that the agreement was not fairly and knowingly made.

Evans v. Bloomberg L.P., NY Slip Op 02872 (1st Dep't May 6, 2021)

Here is the decision.

A motion to seize collateral or to appoint a receiver.

The Appellate Division affirmed the Order which, to the extent appealed from, denied plaintiff's motion to seize collateral located at defendant's premises, pursuant to CPLR 7102 and UCC 9-609(a), or, in the alternative, to appoint a temporary receiver, pursuant to CPLR 5228 and 6401. Plaintiff has not established that it is entitled to the remedy of seizing the collateral in defendants possession, which requires a showing of the probability of success on the merits. Plaintiff's probability of success is also affected by the fact that it is seeking to remove fixtures in the restaurant that may be the property of the nonparty landlord.

Nor did the court improvidently exercise its discretion in denying the motion to appoint a receiver. Pursuant to CPLR 6401(a), it is necessary to show that the property in question is in danger of being removed from the state, or lost, materially injured or destroyed. Plaintiff has made no such showing. To the extent that the collateral is in defendant's possession, plaintiff does not allege that defendant is trying to move the property out of state or that the property is in danger of being lost, materially injured, or destroyed. By all accounts, defendant is simply operating the pizzeria in the ordinary course of business, and there has been no showing that defendant is insolvent or related to the debtor, or that defendant did not pay a substantial sum to obtain the collateral. Thus, there is not the requisite special reason to appoint a receiver.

Itria Ventures LLC v. Beaver St. Pizza LLC, NY Slip Op 02874 (1st Dep't May 6, 2021)

Here is the decision.

An agreement to agree.

The Appellate Division affirmed, with costs, the Order which denied the branch of defendants' motion for summary judgment on their counterclaims against plaintiff for breach of a purported settlement agreement between the parties and for a declaratory judgment to enforce the purported settlement agreement. Defendants failed to establish that, during the email exchange with plaintiff, there was a meeting of the minds, which is a necessary element to establishing the existence of an enforceable agreement. Moreover, given that the parties never came to an agreement on the number of shares to be transferred to plaintiff, a material term of the parties' agreement  - which they contemplated discussing in future negotiations that would be reduced into a formal written agreement - defendants failed to meet their burden to establish that the purported settlement agreement was more than just an unenforceable agreement to agree.

Misopoulos v. LoveBug Nutrition, Inc., NY Slip Op 02875 (1st Dep't May 6, 2021)

Here is the decision.

Affirming an arbitration award.

The Appellate Division affirmed the Judgment, to the extent appealed from, confirming so much of an arbitration award as awarded prejudgment interest at the rate of 3% per annum, rather than 9%, and required the parties to split the administrative fees and arbitration expenses. Petitioner failed to demonstrate any of the statutory grounds for vacating an arbitration award, pursuant to CPLR 7511[b]. The arbitrator's determination to impose 3% pre-award interest was neither a computational error subject to vacatur under CPLR 7511(c)(1), nor in excess of the arbitrator's authority under CPLR 7511(b)(1)(iii). The arbitrator's determination to allocate arbitration costs and fees between the parties was not in excess of his authority. Although the parties' employment agreement and the applicable rules of the American Arbitration Association specified that the costs of arbitration would be borne by respondent, the arbitrator also had before him respondent's claims based on a promissory note providing that petitioner, as borrower, is responsible for attorneys' fees and the costs of collection upon his breach of the note. Even if the arbitrator made a mistake of fact or law, or disregarded the plain words of the parties' agreement, the award is not subject to vacatur because it is not totally irrational or violative of a strong public policy.

Matter of Mora v. Macquarie Holdings (USA) Inc., NY Slip Op 02876 (1st Dep't May 6, 2021)

Here is the decision.

A slip and fall action.

The Appellate Division reversed the Order which denied defendants' motion for summary judgment dismissing the complaint and any cross claims against them, and granted the motion. Defendants established prima facie that they did not have actual or constructive notice of the water on their lobby floor that plaintiff alleges caused her to slip and fall. Their property manager stated in an affidavit that she conducted a search of defendants' records for complaints about water on the lobby floor between January 1, 2015 and July 14, 2015, the date of plaintiff's accident, and found none except for the complaint made by plaintiff after she fell. That someone fell in the lobby while it was raining after stepping off a mat about a year before plaintiff's accident does not raise an issue of fact as to whether defendants had actual notice of the water that caused plaintiff to fall. Plaintiff's own testimony established prima facie that defendants did not have constructive notice of water on the lobby floor; she testified that it was sunny when she left for lunch, that it did not start raining that day until about five minutes before she reentered the building, and that she did not see the water until after she fell.

Practice point:  A general awareness that the lobby floor could become wet during inclement weather is insufficient to raise a triable issue of fact as to whether defendants had constructive notice of the specific condition that caused plaintiff's fall.

Barreto v. 750 Third Owner, LLC, NY Slip Op 02868 (1st Dep't May 6, 2021)

Here is the decision.

Appellate practice.

This appeal from a decision of Supreme Court, New York County, which granted plaintiff's motion to consolidate this action with an action from the Kings County Supreme Court was dismissed as taken from a nonappealable paper. The lack of an appealable paper deprives the Appellate Division of jurisdiction and requires dismissal of the appeal.

Sanchez v. MJ-MC Home Health Care Agency, Inc., NY Slip Op 02883 (1st Dep't May 6, 2021)

Here is the decision.

A motion to renew.

The Appellate Division affirmed the denial of the motion as the newly proffered emails were previously available at the time plaintiffs submitted their initial opposition to defendants' motion to dismiss, and the unexplained failure to incorporate the emails into the opposition papers was not supported by a reasonable excuse.

Ubiles v. Ngardingabe, NY Slip Op 02772 (1st Dep't May 4, 2021)

Here is the decision.

Breach of contract.

The Appellate Division affirmed, with costs, the Order which denied defendant's motion to dismiss the cause of action for breach of contract. On March 31, 2015, the parties entered into a 10-year lease for retail premises. The lease provided that the "Grand Opening Date" was "[e]stimated" to be October 8, 2015, and that defendant "shall endeavor" to give plaintiff an estimated delivery date at least 270 days prior to the expected delivery date of the premises. Plaintiff commenced this action in October 2019, alleging that defendant breached the lease by failing to provide an estimated delivery date, complete construction work specified in the lease, and deliver the premises.

The Appellate Division determined that giving plaintiff an estimated delivery date was not a condition precedent to delivery, but, rather, an independent obligation under lease. Since the provision did not specify a date by which to satisfy the obligation, defendant was obligated to provide an estimated delivery date within a reasonable time after the lease was executed. While the lease contemplated some delays between execution of the lease and delivery of the premises, plaintiff sufficiently alleged that the delays that actually occurred were unreasonable. Indeed, the lease was to run for only 10 years from delivery, and yet, nearly five years after the lease was executed, defendant was still unable to provide an estimated delivery date.

Defendant's argument that the no-damages-for-delay clause bars rescission of the lease for the delays caused by circumstances outside its control is unavailing. The clause provides that defendant is not liable for any damages incurred as a result of its failure to "make the Premises available within the time and/or in the condition provided" in the lease. It makes no mention of defendant's obligation to provide an estimated delivery date. In any event, intentional acts that caused delays, such as plaintiff alleges, would not fall with the ambit of the exculpatory clause.

Victoria's Secret Stores, LLC v. New WTC Retail Owner LLC, NY Slip Op 02773 (1st Dep't May 4, 2021)

Here is the decision.

CPLR 103(c).

Plaintiff brought this special proceeding to enforce a charging lien. Regardless of whether the parties consented to convert the proceeding to a plenary action, the court's determination to do so pursuant to the statute was a sound exercise of discretion. Based on the record, there are numerous unresolved factual issues that warrant discovery concerning the amount of attorney's fees, if any, that petitioner is entitled to recover on a quantum meruit basis. The Appellate Division notes that, as a general matter, a claim for quantum meruit recovery, as opposed to a claim on a charging lien, should be brought as a plenary action. Upon converting the proceeding to an action, the court properly deemed the petition to be converted to a complaint, and the language permitting the petition to be withdrawn was superfluous.

Matter of David H. Berg & Assoc. v. Weksler, NY Slip Op 02489 (1st Dep't April 27, 2021)

Here is the decision.

Dismissal of a defamation claim.

The Appellate Division modified the Order insofar as it denied defendants' motion to dismiss the defamation claim, and granted the motion. The claim must be dismissed as against all defendants, because the only statements found actionable by the motion court were made to plaintiff's paralegal, that is., plaintiff's representative, and not to a third party. The defamation per se claim is included, since no harm can be presumed to result to plaintiff from statements made to its own representative. Contrary to plaintiff's contention, the court did not "infer" that defamatory statements were made to its clients. It ruled that statements made to plaintiff's clients were nonactionable because they were pleaded without the requisite particularity and/or time-barred, pursuant to CPLR 3016[a].

Ginarte Gallardo Gonzalez & Winograd v. Schwitzer, NY Slip Op 02492 (1st Dep't April 27, 2021)

Here is the decision.

Permanent injunctions.

A plaintiff cannot demonstrate the essential element of irreparable injury where its alleged damages are compensable in money and are able to be calculated.

Mintz Fraade Law Firm, P.C. v. Federal Ins. Co., NY Slip Op 02607 (1st Dep't April 29, 2021)

Here is the decision.

Striking of pleadings.

The court, on its own motion, struck defendant's pleadings for failure to comply with several earlier orders, including a conditional order, and properly denied defendant's motion for renewal. The conditional order required defendant to provide responses by certain dates, and stated that failure to provide discovery as required "will result" in the striking of its answer and third-party complaint. The court struck defendant's pleadings after a hearing. Defendant did not submit new facts on renewal requiring a different result. The Appellate Division determined that the court acted within its discretion in enforcing the conditional order strictly, as there was outstanding discovery well after the deadline and defendant did not offer a reasonable excuse for its default in compliance.

ZDG LLC v. 310 Group LLC, NY Slip Op 02622 (1st Dep't April 29, 2021)

Here is the decision.

Summary judgment in a slip and fall action.

The Appellate Division unanimously the Order which granted defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs. Defendant established prima facie that the complaint should be dismissed by showing that it had no actual or constructive notice of the wet condition of the stairs that plaintiff alleges caused her to slip and fall. Defendant submitted testimony by the supervisor of its building caretakers, evidence of the janitorial cleaning schedules for the building, and an affidavit by the building's caretaker that she fulfilled her regularly scheduled cleaning duties in the late afternoon of the day before plaintiff's accident, as well as the morning of the accident at about the time of the accident, that during each inspection she found the staircase clean, dry, and free of debris, and that otherwise she would have immediately addressed any dangerous condition she observed. In opposition, plaintiff failed to raise an issue of fact via her expert opinion, prepared four years after the action was commenced, which introduced new theories of liability notwithstanding her testimony that she believed that the alleged water hazard was the sole cause of the accident.  Even if, as plaintiff's expert contends, the stairs were otherwise defective, defendants are entitled to summary judgment, because there is no evidence that these defects contributed to the accident.

Villar v. New York City Hous. Auth., NY Slip Op 02505 (1st Dep't April 27, 20210

Here is the decision.

Vicarious liability in a medical malpractice action.

The defendant-hospital cannot be held vicariously liable for any acts or omissions of the nonparty-physician who plaintiff failed to identify in his complaint or bill of particulars as a person for whose negligence the hospital could be liable.

Gambacorta v. Giordano, NY Slip Op 02454 (1st Dep't April 22, 2021)

Here is the decision.