The City's submission of its answer two days after the stipulated deadline does not require entry of default against it. The City demonstrated its intent to oppose the petition on the merits by requesting petitioner's agreement to the extension and subsequently filing an answer, and petitioner does not argue that the brief delay prejudiced him.
Matter of Kuza v. New York City Dept. of Fin., NY Slip Op 07297 (1st Dep't December 22, 2022)
Invocation of the doctrine requires a showing of deception, fraud, or misrepresentation. The plaintiff cannot invoke the doctrine to prevent the defendant from asserting a statute of limitations defense based on an oral promise to pay the funds at issue in this breach of contract action.
Angeli v. Barket, NY Slip Op 07213 (2d Dep't December 21 2022)
There is no fiduciary relationship where the contracting parties were engaged in an arms' length transaction, as it is a purely business relationship.
National Auditing Servs. & Consulting, LLC v. 511 Prop., LLC, NY Slip Op 07300 (1st Dep't December 22, 2022)
Plaintiff's motion to vacate the court's sua sponte dismissal is granted. The motion appended an agreement between the parties to vacate the dismissal. In addition, plaintiff's counsel explained that he failed to file the discovery stipulation as the motion court directed in its notices as he expected the outstanding discovery issues to be handled at an upcoming conference. The outstanding issues to be raised at the conference related to discovery was that owed by defendants, not plaintiff. Finally, the record shows no evidence that plaintiff was dilatory at any time during discovery.
Avagyan v. 100 W. 74th St., LLC, NY Slip Op 07291 (1st Dep't December 22, 2022)
In reviewing a determination made after a nonjury trial, the Appellate Division's power is as broad as that of the trial court. As a result, the Appellate Division may render the judgment it finds warranted by the facts, taking into account that, in a close case, the trial court had the advantage of seeing and hearing the witnesses.
21st Mtge. Corp. v. Nodumehlezi, NY Slip Op 07212 (2d Dep't December 21, 2022)
Plaintiff established prima facie entitlement to summary judgment by submitting copies of the original note, mortgage, and loan modification, and evidence of the borrower's default in payment. Defendant failed to raise an issue of fact, as the unrecorded discharge of mortgage upon which defendant relies does not insulate a subsequent purchaser from prior claims, when the existence of such claims was apparent from the face of the record. If defendant had reviewed the public record, as required, it would have found that the purported discharge of mortgage had never been entered or recorded and that the original mortgage was still recorded.
US Bank NA v. 532 W. 187 LLC, NY Slip Op 07211 (1st Dep't December 20, 2022)
A party seeking a sanction for spoliation must demonstrate that the party with control over the evidence had an obligation to preserve it at the time it was destroyed; that the evidence was destroyed with a culpable state of mind; and that the destroyed evidence was relevant to the party's position such that the trier of fact could find that the evidence would support the claim or defense.
Blackstock v. AVR Crossroads, LLC, NY Slip Op 07179 (1st Dep't December 20, 2022)
Liquidated damages constitute the compensation which should be paid in order to satisfy any loss or injury flowing from a breach of a contract. A liquidated damages provision will be sustained if, at the time of the contract, the amount of actual loss is incapable or difficult of precise estimation, and the amount liquidated bears a reasonable proportion to the probable loss. Whether the provision is an unenforceable penalty is a question of law for the court. The party seeking to avoid liquidated damages has the burden to prove that they are an unenforceable penalty. In the absence of any countervailing public policy concerns, freedom of contract prevails in an arm's length transaction between sophisticated parties.
Seymour v. Hovnanian, NY Slip Op 07172 (1st Dep't December 15, 2022)
The complaint will survive dismissal if it alleges, with sufficient particularity, (1) the existence of a fiduciary relationship, (2) misconduct by the defendant, and (3) damages directly caused by that misconduct, pursuant to CPLR 3016[b].
Board of Mgrs. of Van Wyck Glen Condominium v. Van Wyck at Merritt Park Homeowners Assn., Inc., NY Slip Op 07044 (2d Dep't December 14, 2022)
A motion for summary judgment will not be granted where the facts are in dispute, where conflicting inferences may be drawn from the evidence, or where there are issues of credibility. Where the papers show that there are triable issues of fact, the motion will be denied regardless of the sufficiency of the opposition.
Baab v. HP, Inc., NY Slip Op 07042 (2d Dep't December 14, 2022)
A complaint can survive dismissal if the plaintiff produces some evidence to suggest that at least one of the defendant's reason for the termination of employment was false, misleading, or incomplete. Here, the plaintiff failed to meet the standard. The general principle that the statute must be construed broadly in favor of plaintiffs is not a substitute for evidence.
Woolf v. Bloomberg L.P., NY Slp Op 07174 (1st Dep't December 15, 2022)
The motion court properly granted plaintiff's motion for summary judgment in lieu of complaint to enforce its guaranty against defendants as guarantors of the lease with the nonparty tenant, as plaintiff established the existence of the guaranty, the underlying debt, and the guarantor's failure to perform under the guaranty.
122 E. 42nd St., LLC v. Scharf, NY Slip Op 07141 (1st Dep't December 15, 2022)
A defendant seeking to vacate a judgment pursuant to CPLR 5015(a)(1) must demonstrate a reasonable excuse for the default and a potentially meritorious defense to the action, Here, the defendant failed to provide a detailed and credible explanation for the default. Instead, the defendant submitted only an affidavit of an employee of its loan servicer averring that the defendant's agent for process had emailed the summons and complaint to the servicer, and the complaint had been misrouted in the servicer's email system. That conclusory and nondetailed allegation does not constitute a reasonable excuse warranting vacatur of the default. Accordingly, is not necessary to determine whether the defendant demonstrated a potentially meritorious defense to the action.
259 Milford, LLC v. FV-1, Inc., NY Slip Op 06898 (2d Dep't December 7, 2022)
The complaint seeks to challenge the suspension of plaintiffs' New York State driving privileges as arbitrary and capricious on grounds that they were not properly notified of the Drivers Responsibility Assessment (DRA) imposed on them. Because plaintiffs' claims are cognizable under CPLR article 78, they are time-barred by the four-month statute of limitations of CPLR 217[1]. The fact that plaintiffs plead constitutional violations is to no effect, as such claims can be brought in an article 78 proceeding.
Ugo-Alum v. New York State Dept. of Motor Vehs., NY Slip Op 07018 (1st Dep't December 8 2022)
In order to survive dismissal, the complaint must allege a special relationship of trust and confidence among the parties. Here, the project at issue constitutes an arm's length business transaction, which precludes a claim that the parties had a relationship of trust and confidence. In addition, the cause of action requires that the special relationship between the parties exist before the relevant transaction, not as a result of it.
100 & 130 Biscayne, LLC v. EE NWT OM, LLC, NY Slip Op 06985 (1st Dep't December 8, 2022)
Plaintiff established prima facie that defendant was negligent by submitting his affidavit that defendant's vehicle rear-ended his vehicle as he slowed down or stopped to accommodate another vehicle that was merging in from his right, and defendant failed to provide a nonnegligent explanation for the collision. Plaintiff is not required to establish absence of comparative negligence on his part to be entitled to summary judgment on liability. Plaintiff's motion is not premature, as defendant did not demonstrate that facts essential to opposing the motion are exclusively within the knowledge and control of plaintiff, or explain what evidence could be uncovered in discovery that would augment his defenses on liability.
Vasquez v. Strickland, NY Slip Op 06876 (1st Dep't December 1, 2022)
Pursuant to CPLR 3016[b], the claim must be pleaded with particularity.
Velez v. Mitchell, NY Slip Op 06877 (1st Dep't December 1, 2022)
It is well-settled that the court does not have personal jurisdiction over a defendant when a plaintiff fails to properly effectuate service of process. A process server's affidavit establishes a prima facie case as to the method of service and, therefore, gives rise to a presumption of proper service. Although bare and unsubstantiated denials are insufficient to rebut the presumption of service, a sworn denial of service containing specific facts generally rebuts the presumption of proper service established by the affidavit of service and necessitates a hearing. A minor discrepancy between the appearance of the person allegedly served and the description of the person served contained in the affidavit of service is generally insufficient to raise an issue of fact warranting a hearing. In addition, the discrepancies must be substantiated by something more than a claim by the parties allegedly served that the descriptions of their appearances were incorrect.
Here, the affidavits of service relied upon by the plaintiff constitute prima facie proof of proper service upon the defendants. The defendants dispute the process server's description of the individual served. Specifically, they contend that the individual's weight, skin color, and height were not described accurately in the affidavits of service. The alleged discrepancy as to weight was unsubstantiated. As to skin color, the affidavits of service refer to the individual's race rather than to the actual color of her skin. As the defendants did not refute the description of the individual's race as black, this aspect of the description is unchallenged. The alleged height discrepancy alone is too minor to necessitate a hearing, particularly under the circumstances of the service in this case, in which the process server spoke to the individual through a window.
Bank of N.Y. Mellon v. Blackwood, NY Slip Op 06780 (2d Dep't November 30, 2022)
In support of its motion for summary judgment, the plaintiff submitted an affidavit that was notarized outside of New York State and that was not accompanied by a certificate of conformity pursuant to CPLR 2309(c). This is not a fatal defect, as it may be corrected nunc pro tunc, or pursuant to CPLR 2001, which permits trial courts to disregard mistakes, omissions, defects, or irregularities at any time during an action where a substantial right of a party is not prejudiced.
American Express Natl. Bank v. Hoffman, NY Slip Op 06779 (2d Dep't November 30, 2022)
To the extent that on its cross-claim for indemnification defendant raises arguments for the first time on appeal, they are not properly before the Appellate Division.
Martinez v. Kingston 541, LLC, NY Slip Op 06638 (1st Dep't November 22, 2022)
The plaintiff's contention that leave to amend was properly denied because the defendant waived the defense of lack of standing by failing to assert that defense in its answer or in a pre-answer motion to dismiss the complaint is without merit. A waiver that results from a failure to affirmatively plead a defense in accordance with CPLR 3018(b), including a waiver of the defense of standing, may be retracted through subsequent amendment to the pleadings.
Baharrie v. MRAG Dev., LLC, NY Slip Op 06683 (2d Dep't November 23, 2022)
Deposition testimony by the CEO and Chairman of defendants' corporate parent, Rolta India, waived defendants' attorney-client privilege as to communications had with various counsel representing them in New York courts and in India. The CEO's testimony that defendants did not comply with post-judgment orders calling for a turnover of assets to a receiver because the turnover and receivership orders had yet to be domesticated in India in accordance with Indian law affirmatively put the subject matter of their privileged communications in litigation. The CEO testified that defendants' counsel in India advised noncompliance with the post-judgment orders pending domestication of such orders in India, and that defendants' U.S. counsel would yield to the advice of its Indian counsel on the matter. Therefore, invasion of the privilege was required for plaintiffs to adequately contest the validity of defendants' defense in failing to comply with the turnover and receivership orders, especially since contempt proceedings had already been brought against the president of Rolta India's primary subsidiary and contempt proceedings were in the process of being commenced against other principals.
Pala Assets Holding Ltd. v. Rolta, LLC, NY Slip Op 06642 (1st Dep't November 22, 2022)
A contract that provides for indemnification will be enforced as long as the intent to assume such a role is sufficiently clear and unambiguous. A court may not interpret a contracted indemnification provision in a manner that would render it meaningless. Therefore, when the intent is clear, an indemnification agreement will be enforced even if it provides indemnity for one's own or a third party's negligence.
Alicea v. Medjugorje Realty, LLC, NY Slip Op 06455 (2d Dep't November 16, 2022)
Even where there is gross negligence, punitive damages are awarded only in singularly rare cases such as cases involving an improper state of mind or malice or cases involving wrongdoing to the public.
Arana v. A.O. Smith Water Prods. Co., NY Slip Op 06542 (1st Dep't November 17, 2022)
The Appellate Division reversed the motion court and granted the parties' cross motions to extend the time to file the note of issue and defendant's motion for leave to complete discovery and depose plaintiff's expert. Absent the extension, the parties could neither move forward to trial nor complete the discovery necessary to move forward to trial, thereby frustrating the strong public policy favoring open disclosure to allow the parties to adequately prepare, pursuant to CPLR 3101[a.]. In addition, defendant demonstrated a need for additional discovery and to depose plaintiff's expert, who was hired to calculate damages in this commercial case.
361 Broadway Assoc. Holdings, LLC v. Foundations Group I, Inc., NY Slip Op 06571 (1st Dep't November 17, 2022)
Pursuant to CPLR 3126, a party that seeks sanctions for negligent or intentional spoliation of evidence must show that the party in control of the evidence was obliged to preserve it, that the evidence was destroyed with a culpable state of mind, and that the evidence was relevant to the party's claim or defense such that the trier of fact could find that the evidence would support that claim or defense. Sttriking a pleading is such a drastic sanction that, in the absence of willful or contumacious conduct, the court must consider the prejudice that resulted from the spoliation.
Aldo v. City of New York, NY Slip Op 06454 (2d Dep't November 16, 2022)
In this personal injury action, plaintiffs' motion for summary judgment on the issue of liability was granted. Defendants appealed, and the motion court's order was affirmed. Plaintiffs' request for certain affirmative relief was not properly before the Appellate Division, since plaintiffs did not cross-appeal from the order.
Ahmed v. Fernando, NY Slip Op 06453 (2d Dep't November 16, 2022)
Defendant established its entitlement to summary judgment dismissing the complaint, as it articulated a legitimate, nondiscriminatory reason for firing plaintiff from his employment as a cleaner, namely, plaintiff's unsatisfactory work performance and his failure to improve despite multiple warning letters. Defendant submitted tenant complaints regarding the uncleanliness of the bathrooms and the warning letters it issued to plaintiff about his poor performance, supporting its claim that plaintiff was terminated not because of his age, but because of his failure to adequately perform his duties. As further evidence that plaintiff was not fired because of his age, defendant showed that it did not fill plaintiff's position after he was terminated but outsourced his job duties to a third-party cleaning service.
In opposition, plaintiff presented no evidence tending to show that the tenant complaints or the warning letters were inaccurate, much less designed to supply a pretext for age discrimination. Nor does plaintiff show how defendant's failure to give him vacation wages before his vacation was to begin supports a finding of pretext under the circumstances. In addition, plaintiff's assertion that defendant failed to sufficiently warn him about his unsatisfactory job performance is undermined by his own testimony that he saw the letter that suspended him for three days based on tenant complaints regarding his job performance.
The two isolated comments made by plaintiff's supervisor about his intent to retire were merely stray remarks that, without more, do not constitute evidence of discrimination. Even if these remarks suggested bias, defendant established that the supervisor was not involved in the decision to terminate plaintiff's employment, and had no power to hire, fire, or discipline him.
Ahmed v. West 46th St. Mgt., LLC, NY Slip Op 06417 (1st Dep't November 15, 2022)
Pursuant to CPLR 302(a)(3), a plaintiff's economic injury in New York is insufficient to confer jurisdiction. The situs of commercial injury is where the original critical events associated with the action or dispute took place, not where any financial loss or damages occurred.
HH Trinity Apex Invs. LLC v. Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan, L.L.P., NY Slip Op 06321 (1st Dep't November 10, 2022)
In considering defendant's summary judgment motion, the court properly disregarded the Google Maps photos that defendant submitted in its reply papers. The photos purportedly were taken months before the accident. and there was no affidavit by a person with knowledge of the photos' origins, or knowledge of whether they fairly and accurately portrayed the condition of the sidewalk at the time of accident.
Mercedes v. 680 SN LLC, NY Slip Op 06323 (1st Dep't November 10, 2022)
The doctrine of the law of the case does not bind an appellate court to a trial court ruling.
Morgan Stanley Private Bank, N.A. v. Ceccarelli, NY Slip Op 06324 (1st Dep't November 10, 2022)
CPLR 308(2) authorizes "[p]ersonal service upon a natural person . . . by delivering the summons within the state to a person of suitable age and discretion at the actual place of business . . . of the person to be served and . . . by mailing the summons by first class mail to the person to be served at his or her actual place of business." CPLR 308(2) provides that "proof of such service shall be filed with the clerk of the court designated in the summons within twenty days of either such delivery or mailing, whichever is effected later." The failure to file timely proof of service is not a jurisdictional defect, but, instead, is a procedural irregularity that may be cured by motion or sua sponte by the court in its discretion pursuant to CPLR 2004.
Chunyin Li v. Joffe, NY Slip Op 06227 (2d Dep't November 9, 2022)
In arguing for vacatur of the order, defendant cannot rely on New York City Council resolutions and the Administrative Code as potentially newly discovered evidence. These legislative materials are matters of public record, and, as such, they are not considered new evidence which could not have been discovered with due diligence.
NYCTL 1998-2 Trust v. Bethelite Community Baptist Church, NY Slip Op 06325 (1st Dep't November 10, 2022)
The Supreme Court properly characterized the plaintiff's motion, denominated as one to vacate an order, as seeking leave to reargue its opposition to the defendant's prior motion. Because no appeal lies from an order denying reargument, the appeal must be dismissed.
Bank of Am., N.A. v. Davis, NY Slip Op 06226 (2d Dep't November 9, 2022)
The failure to set forth an adequate statement of the factual basis for the determination forecloses the possibility of fair judicial review and requires that the matter be remanded to the agency.
Matter of Reynolds v. New York City Fire Pension Fund, NY Slip Op 06330 (1st Dep't November 10, 2022)
Where a plaintiff's substantive claim is dismissed, the cause of action for injunctive relief has no legal basis, and will be dismissed.
300 Wadsworth LLC v. New York State Div. of Hous. & Community Renewal, NY Slip Op 06311 (1st Dep't November 10, 2022)
The essential elements of a cause of action to recover damages for breach of contract are the existence of a contract, the plaintiff's performance pursuant to the contract, the defendant's breach of its contractual obligations, and damages resulting from the breach. Here, in support of their motion for summary judgment dismissing the claim, the defendants submitted transcripts of the parties' deposition testimony, which provided differing accounts regarding the existence of an agreement, and emails which had been exchanged between the parties and their attorneys. The defendants' evidence failed to eliminate triable issues of fact as to whether the parties had agreed upon the agreement's major terms and whether the parties began to perform the agreement. As such, they failed to establish, prima facie, that the parties had not reached an agreement. Since the defendants failed to establish their prima facie entitlement to judgment as a matter of law, their motion is denied wihout considering the sufficiency of the plaintiffs' opposition.
223 Sam, LLC v. 223 15th St., LLC, NY Slip Op 06224 (2d Dep't November 9, 2022)
The process server's affidavit established, prima facie, that the defendant was properly served, by three attempts at personal service, followed by "nail and mail" service, pursuant to CPLR 308[4]. In addition, in a stipulation to extend her time to answer, the defendant stated that she had been served with the summons and complaint, and that she would not assert improper service of process or lack of personal jurisdiction as defenses. There is no need for a traverse hearing.
Lynx Asset Servs., LLC v. Nestor, NY Slip Op 06170 (1st Dep't November 3, 2022)
Pursuant to CPLR 5701(a)(3), there is an appeal as of right from an order refusing to vacate or modify a prior order if the prior order would have been appealable as of right, pursuant to CPLR 5701(a)(2). Here, the prior order would not have been appealable as of right because it was not a substantive ruling, but merely the denial of defendants' request for an extension of its time to post a bond.
Largo 613 Baltic St. Partners LLC v, Stern, NY Slip Op 06168 (1st Dep't November 3 , 2022)
In this action to recover damages for personal injuries, the defendant appeals from an order that granted that branch of the plaintiff's motion which was for summary judgment on the issue of liability. To the extent that the parties raise arguments regarding the remaining branch of the plaintiff's motion which was for summary judgment dismissing the defendant's third affirmative defense, alleging comparative negligence, that branch of the motion was not addressed by the Supreme Court and, therefore, remains pending and undecided.
Zai Guang Chen v. Tak Yung Cheng, NY Slip Op 06159 (2d Dep't November 2, 2022)
A general awareness that a dangerous condition might be present is legally insufficient to constitute notice of the particular condition that caused the plaintiff's accident.
Jiminez v. PR Grand Hotel Owner Co., LLC, NY Slip Op 06167 (1st Dep't November 3, 2022)
During the pendency of this proceeding, which was based on a Freedom of Information Law (FOIL) request, the respondents disclosed, with limited redactions, the records that the petitioner sought. The fact that the records were disclosed voluntarily is irrelevant to the issue of whether the petitioner substantially prevailed. Therefore, the petitioner is entitled to attorneys' fees and costs.
Matter of Jaskaran v. City of New York, NY Slip Op 06166 (1st Dep't November 3, 2022)
It is the appellant's obligation to assemble a proper record on appeal. Here, the appellant did not comply with the Appellate Division's order which directed the submission of a replacement record containing certain materials. The appeal is dismissed, with costs.
Chery v. Simon, NY Slip Op 06104 (2d Dep't November 2, 2022)
A defendant's negligence in failing to maintain records may constitute a culpable state of mind with respect to spoliation.
Domingo v. 541 Operating Corp., NY Slip Op 06162 (1st Dep't November 3, 2022)
The appeal from the order must be dismissed, as no appeal lies from an order denying reargument.
Castillo v. Charles, NY Slip Op 06103 (2d Dep't November 2, 2022)
In support of its motion for summary judgment, the plaintiff submitted an affidavit that was notarized outside of New York State and that was not accompanied by a certificate in conformity pursuant to CPLR 2309(c). This is not a fatal defect, as it may be corrected nunc pro tunc, or pursuant to CPLR 2001, which permits trial courts to disregard mistakes, omissions, defects, or irregularities at any time during an action where a substantial right of a party is not prejudiced.
American Express Natl. Bank v. Hoffman, NY Slip Op 06779 (2d Dep't November 30, 2022)
Recovery for legal malpractice is limited to pecuniary damages.
Broomes v. Legal Aid Socy. of N.Y. City, Inc., NY Slip 06101 (2d Dep't Novembee 2, 2022)
Respondent failed to demonstrate a reasonable excuse for its default, pursuant to CPLR 5015 [a] [1], as it did not submit proof sufficient to support its contention that it was never served with the order to show cause. Petitioner submitted an affidavit of service and documentary evidence establishing that the order to show cause was served by certified mail and delivered to an individual at respondent's address. Respondent did not proffer any evidence controverting this proof of service, but merely submitted self-serving statements. The motion is denied.
Matter of Pizzarotti, LLC v. New York Concrete Washout Sys., Inc., NY Slip Op 06182 (1st Dep't November 3, 2022)
A New York court may exercise specific jurisdiction over a foreign defendant pursuant to CPLR 302, which is New York's long-arm statute. CPLR 302(a)(1) provides that "a court may exercise personal jurisdiction over any non-domiciliary . . . who in person or through an agent . . . transacts any business within the state or contracts anywhere to supply goods or services in the state[.]" This jurisdictional inquiry is twofold: under the first prong the defendant must have conducted sufficient activities to have transacted business in New York, and under the second prong, the claims must arise from the transactions. In order to satisfy the second prong, the statute requires an articulable nexus or substantial relationship between the cause of action sued upon, or an element thereof, and the defendants' business transactions in New York. The inquiry is relatively permissive, and does not require causation. There must at least be a relatedness between the transaction and the legal claim such that the latter is not completely unmoored from the former, regardless of the ultimate merits of the claim. Therefore, under CPLR 302(a)(1), jurisdiction is proper even though the defendant never enters New York, so long as the defendant's activities here were purposeful and there is a substantial relationship between the transaction and the claim pled. Where this necessary relatedness is lacking, the claim as too attenuated from the transaction, or merely coincidental with it.
Aybar v. US Tires & Wheels of Queens, LLC, NY Slip Op 06099 (2d Dep't November 2, 2022)
The motion will be denied in the absence of tangible evidence constituting a "sufficient start" to a showing that jurisdiction could exist against the defendant.
Taxi Tours Inc. v. Go N.Y. Tours, Inc., NY Slip Op 06186 (1st Dep't November 3, 2022)
In this action arising from an auto accident, the defendant-driver and owner ask the Appellate Division to search the record and grant them summary judgment. However, they failed to raise this issue or seek this relief before the motion court, and the Appellate Division declines to grant that relief.
Betances v. DJB Intl. Ltd, NY Slip Op 06160 (1st Dep't November 3, 2022)
Collateral estoppel, otherwise known as issue preclusion, 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 regardless of whether the court or the causes of action are the same. The party invoking estoppel has the burden of demonstrating the identity of the issues in the present litigation and the prior determination, and the party seeking to defeat its application has the burden of establishing the absence of a full and fair opportunity to litigate the issue in the prior action.
9th St., LLC v. Deutsche Bank Natl. Trust Co., NY Slip Op 06097 (2d Dep't November 2, 2022)
The statute of limitations began to run on November 20, 2009, upon the prior mortgagee's commencement of the initial foreclosure action and acceleration of the loan. However, plaintiff, who is the assignee of the mortgage, clearly and validly revoked the acceleration of the loan on November 19, 2015, when it sent a letter informing the mortgagor that the loan was "hereby de-accelerated" and that "immediate payment of all sums owed is hereby withdrawn and the Loan is re-instituted as an installment loan." As the action was commenced within six years of the de-acceleration of the loan, the action is timely, pursuant to CPLR 213(4). The affirmative defense is dismissed.
21st Mtge. Corp. v. Jin Lin, NY Slip Op 06076 (1st Dep't November 1, 2022)
An objection that the summons and complaint was not properly served is waived if, after raising the objection in a pleading, the defendant does not move for judgment on that ground within sixty days after serving the pleading, unless the court extends the time upon the ground of undue hardship, pursuant to CPLR 3211[e].
Bank of N.Y. Mellon v. Shurko, NY Slip Op 05975 (2d Dep't October 26, 2022)
In order to obtain summary judgment in an action to quiet title pursuant to RPAPL article 15, the movant must establish, prima facie, that it holds title, or that the nonmovant's title claim is without merit.
702 DeKalb Residence, LLC v. SSLiberty, Inc., NY Slip Op 05971 (2d Dep't October 26, 2022)
The doctrine of equitable estoppel is not applicable where the defendants did not act in a wrongful or negligent manner or engage in any affirmative misconduct upon which plaintiff reasonably relied.
Cruz v. Ajim, NY Slip Op 06062 (1st Dep't October 27, 2022)
The action is governed by a six-year statute of limitations, pursuant to CPLR 213[4]. Even if the mortgage is payable in installments, once the debt is accelerated, the entire amount is due and the statute of limitations begins to run on the entire debt. The commencement of the action accelerates the debt. The lender may revoke its election to accelerate the mortgage, but it must do so by an affirmative act of revocation occurring during the six-year statute of limitations period subsequent to the initiation of the foreclosure action.
Bank of N.Y. Mellon v. Conforti, NY Slip Op 05973 (2d Dep't October 26, 2022)
Plaintiff argues that his deceased brother, who was the sole proprietary lessee of a cooperative apartment made an inter vivos gift of the apartment to plaintiff. However, there was no valid inter vivos gift, as the statute of frauds applies to the sale of stock in a housing cooperative and there was no writing to effect the transfer. Plaintiff's claim further fails as a matter of law, as the decedent failed to follow the transfer provisions of the proprietary lease, which requires a written assignment of shares signed by the shareholder and the approval of defendant's board of directors to make a valid transfer of the shares to the apartment within the decedent's lifetime.
Rivera v. 98-100 Ave. C Hous. Dev. Fund Corp., NY Slip Op 06074 (1st Dep't October 27, 2022)
On a motion for leave to enter a default judgment, pursuant to CPLR 3215, for the defendant's failure to answer or appear, the plaintiff must submit proof of service of the summons and complaint, proof of the facts constituting the cause of action, and proof of the defendant's default. In order to defeat the motion, the defendant must show either that there was no default, or that there is a reasonable excuse for the delay and a potentially meritorious defense. The plaintiff is not required to demonstrate that it had standing to commence the action in order to establish its prima facie entitlement to a default judgment, as standing is not an essential element of a cause of action to foreclose a mortgage.
Bank of N.Y. Mellon Trust Co., N.A. v. Barone, NY Slip Op 05972 (2d Dep't October 26, 2022)
The petition must be filed within four months of the agency's decision that is being questioned, pursuant to CPLR 217[1]. The limitations period is not extended by the petitioner's eventual pursuit of administrative remedies.
Matter of Campbell-Lui v. New York City Dept. of Educ., NY Slip Op 05946 (1st Dep't October 25, 2022)
Plaintiffs, an orthodontist and his professional corporation, allege that defendants - a former minor patient and the patient's parents - defamed them in an unfavorable review posted online. The review contains elements of both fact and opinion, but it is not actionable, because it is beyond the court's province to sift throught the review to isolate and identify factual assertions. Instead, the court may only consider the overall context in which the communication was made. Here, it was an anonymous online review of plaintiff's services. A reasonable reader would understand the review to be pure opinion based on the context in which it was posted and its hyperbolic tone. In addition, New York courts have held that readers give less credence to allegedly defamatory remarks published online than to similar remarks made in other contexts. The claim is dismissed.
DeRicco v. Maidman, NY Slip Op 05921 (1st Dep't October 20, 2022)
Defendants are entitled to copies of their emails, correspondence, and texts in plaintiff's possession because they are discoverable party statements, pursuant to CPLR 3101[e]. However, plaintiff is not obligated to produce the medical records of his treatment with defendants, as they made no showing that those records, created and maintained by them, were unavailable to them. As to defendants' demand for the names and addresses of any and all individuals who were witnesses to the medical conditions alleged in the complaint, this request is palpably improper as overbroad and burdensome, particularly where no depositions have been held. Defendants are not entitled to authorizations releasing plaintiff's employment records, as plaintiff had withdrawn all of his claims for lost earnings, and defendants did not make a sufficient showing as to how those records were material or necessary to their defense, pursuant to CPLR 3101[a]. Defendants may renew their request for employment records if plaintiff's deposition testimony makes them relevant.
Fusco v. Mace Ave. Med., P.C., NY Slip Op 05922 (1st Dep't October 20, 2022)
The Appellate Division declines to consider whether the trial court properly determined that plaintiffs could pursue and adequately alleged alter ego or veil piercing as separate theories, as defendants did not challenge those rulings in their opening appellate brief.
Alesco Preferred Funding VIII, Ltd v. ACP Re, Ltd, NY Slip Op 05920 (1st Dep't October 20, 2022)
While the foundation for the admission of a business record may be provided by the testimony of the record's custodian, it is the business record itself, not the foundational affidavit, that serves as proof of the matter asserted.
Bank of N.Y. Mellon Trust Co., N.A. v. Andersen, NY Slip Op 05827 (2d Dep't October 19, 2022)
A default judgment was entered against defendants after they failed to comply with court orders directing them to answer the third and fourth amended verified complaints, or risk being held in default. Defendants did not oppose plaintiff's motion for a default judgment against them, although properly served with notice of the motion. The court denied defendants' motions to vacate the default judgment pursuant to CPLR 5015(a)(1), which were made outside the one-year time limitation, and without a valid excuse. The court rejected defendants' alternative argument that they are entitled to vacatur under CPLR 5015(a)(4), based on lack of jurisdiction. Defendants did not move on that basis, but improperly raised the issue for the first time in their reply papers.
TGT, LLC v. Advance Entertainment, LLC, NY Slip Op 05818 (1st Dep't October 18, 2022)
The absolute privilege under CPLR 3101(c) is limited to materials prepared by an attorney, while acting as an attorney, which contain the attorney's legal analysis, conclusions, theory, or strategy. Materials or documents that could have been prepared by a layperson do not fall within the attorney work product exception.
Bent-Anderson v. Singh, NY Slip Op 05676 (2d Dep't October 12, 2022)
Where the alleged misconduct took place before the effective date of the amendments, the pre-amendment version of the statutes applies.
Matter of Fodor v. Esposito, NY Slip Op 05787 (1st Dep't October 18, 2022)
The plaintiff establishes its prima facie entitlement to judgment as a matter of law through the production of the mortgage, the unpaid note, and evidence of default. The plaintiff may establish a payment default by an admission made in response to a notice to admit, pursuant to CPLR 3212[b], 3123, by an affidavit from a person having personal knowledge of the facts, pursuant to CPLR 3212[b], or by other evidence in admissible form.
Here, the plaintiff failed to establish, prima facie, the defendants' default in payment by submitting the affidavit of an employee of its loan servicer. The affiant averred that, based upon his review of unspecified business records, the defendants defaulted in making monthly payments in October 2008. However, the affiant did not aver that he had personal knowledge of the defendants' alleged default in payment. He also failed to identify which records he relied on to assert a default in payment, and the notice of default annexed to the affidavit was insufficient to establish the alleged default in payment.
Bank of N.Y. Mellon v. Mannino, NY Slip Op 05675 (2d Dep't October 12, 2022)
The claim is dismissed, as the alleged conduct amounts to no more than petty slights and trivial inconveniences, which are not actionable. The alleged stray remark that plaintiff was "old enough to retire" does not, without more, give rise to an inference of ageist bias, Plaintiff's bare allegations that younger officers who had committed misconduct did not receive unfavorable assignments are too general to support an inference of age discrimination.
Lent v. City of New York, NY Slip Op 05755 (1st Dep't October 13, 2022)
Where a motion to renew and reargue is not based on new facts that were not known to the movant at the time of the original motion, the appeal is deemed to be from a motion to reargue, the denial of which is not appealable.
Matter of Ofek Rachel Ltd. v. Suky, NY Slip Op 05759 (1st Dep't October 13, 2022)
The drastic remedy of dismissing a complaint for the plaintiff's failure to comply with court-ordered discovery is warranted where the conduct is shown to be willful and contumacious. The willful and contumacious character of a party's conduct can be inferred from either (1) the repeated failure to respond to demands or comply with court-ordered discovery, without a reasonable excuse, or (2) the failure to comply with court-ordered discovery over an extended period of time. Here, the willful and contumacious nature of the plaintiffs' conduct may properly be inferred from their repeated failures, without a reasonable excuse, to comply with the defendants' discovery demands, the court's order, and prior so-ordered stipulations.
Ashfaq v. Ice Cream Depot Corp., NY Slip Op 05674 (2d Dep't October 12, 2022)
The Appellate Division rejects plaintiff's argument that defendants' motion for summary judgment before discovery is premature. The record shows that the facts concerning plaintiff's dealings with defendants are within plaintiff's knowledge. Therefore, plaintiff does not establish that "facts essential to justify opposition may exist but cannot then be stated," as required for a motion brought under CPLR 3212[f].
Alpine Custom Floors, Inc. v. Yurcisin, NY Slip Op 05655 (1st Dep't October 11, 2022)
Pursuant to CPLR 504(1), the place of trial of all actions against a county shall be in that county, and, pursuant to CPLR 504(2), the place of trial of all actions against a town shall be in the county in which that town is situated. Venue may be placed in a county other than the county mandated by CPLR 504 upon a showing of special or compelling countervailing circumstances, but, here, the plaintiffs failed to demonstrate any such circumstances.
N.C. v. Ifezulumbria, NY Slip Op 05515 (2d Dep't October 5, 2022)
Because a school acts in place of the parent with respect to its minor students, a school district owes a special duty to the students themselves. Schools are under a duty to adequately supervise the students in their charge and they will be liable for foreseeable injuries proximately related to the absence of adequate supervision. However, schools are not insurers of the safety of their students, and the duty they owe to their students derives from their physical custody and control over the students. Therefore, the school's custodial duty ceases once the student has passed out of its orbit of authority and the parent can reassume control over the child's protection. However, the school's duty continues and is breached if the student is released without further supervision into a forseeably hazardous setting it had a hand in creating.
Boyle v. Brewster Cent. Sch. Dist., NY Slip Op 05514 (2d Dep't October 5, 2022)
The order is appealable as of right under CPLR 5701(a)(3), as plaintiff properly made a motion on notice to vacate Supreme Court's sua sponte order under CPLR 2221(a).
215 W. 84th St. Owner LLC v. Ozsu, NY Slip Op 05495 (1st Dep't October 4, 2022)
Pursuant to CPLR 2201, Supreme Court may stay an action pending before it "upon such terms as may be just," and the court has broad discretion to grant a stay in order to avoid the risk of inconsistent adjudications, duplication of proof, and the waste of judicial resources. Here, the first-in-time holdover proceeding involves the same parties and both proceedings require the resolution of questions arising from defendant's occupancy of the apartment. A stay is appropriate.
215 W. 84th St. Owner LLC v. Ozsu, NY Slip Op 05495 (1st Dep't October 4, 2022)
A defendant with a right to contribution from a co-defendant has standing to appeal dismissal of his cross-claim. Here, the cross-claim is reinstated, and the cross-claimant can seek recovery for his co-defendants' proportionate fault for plaintiff's injuries.
Ortiz v. Maxon, NY Slip Op 05375 (1st Dep't September 29, 2022)
Defendant fails to establish, as a matter of law, that plaintiff waived his right to be compensated in accordance with the terms of a bonus provision in the parties' employment agreement. The evidence it submitted to show that plaintiff had accepted a bonus amount lower than that to which he was entitled does not demonstrate a clear manifestation of intent to relinquish the contractual right. Defendant's motion to dismiss is denied.
Ramirez v. Moab Capital Parners, LLC, NY Slip Op 05383 (1st Dep't September 29, 2022)
Directors and officers are not subject to personal liability for the torts of corporation employees merely as a result of their holding corporate office.
Schwartz v. Mount Sinai Hosp., NY Slip Op 05384 (1st Dep't September 29, 2022)
The discrimination claims fail because the same supervisor who hired plaintiff in December 2015 fired him by early March 2016, undercutting any notion that plaintiff was mistreated due to his race, color, or national origin. The hostile work environment claims fail, because plaintiff withdrew the claims at his deposition after testifying that he did not consider race, color, or national origin when complaining that a coworker was hostile to him. The record also demonstrates nothing more than petty slights and trivial inconveniences arising from their arguments about the quality of his work and his use of his coworker's workstation and tools.
The retaliation claims fail, as plaintiff testified that no supervisor, coworker, or human resources personnel knew of an unrelated lawsuit he filed against his undergraduate institution, and he otherwise merely theorized that unnamed military or government agents, who were purportedly stalking him, bribed his supervisor to fire him or informed a coworker of the other action.
The discrimination and retaliation claims also fail because plaintiff's disagreement with defendants' assessment of his performance is insufficient to raise an issue of fact as to whether poor performance was a pretext for unlawful conduct.
Weir v. Montefiore Med. Ctr., NY Slip Op 05301 (1st Dep't September 27, 2022)
Although plaintiffs' cross motion is denominated as one for leave to renew and reargue, they seek only reargument, and no appeal lies from the denial of a motion to reargue. The appeal is dismissed.
Yocum v. United States Tennis Assn. Inc., NY Slip Op 05302 (1st Dep't September 27, 2022)
CPLR 5003-a requires a settling defendant to pay all sums due to the settling plaintiff "within twenty-one days of tender, by the settling plaintiff to the settling defendant, of a duly executed release and a stipulation discontinuing [the] action executed on behalf of the settling plaintiff." Where a release and stipulation of discontinuance are tendered by mail, the 21-day period is measured from the receipt of those documents. If the settling defendant fails to pay all sums due to the settling plaintiff within 21 days after the tender of the required documents, the statute authorizes the plaintiff to enter, without further notice, a "judgment . . . for the amount set forth in the release, together with costs and lawful disbursements, and interest."
Levine v. American Multi-Cinema, Inc., NY Slip Op 05207 (2d Dep't September 21 2022)
In order to compel the plaintiff to accept an untimely answer, the defendant must demonstrate that there is a reasonable excuse for the delay and a potentially meritorious defense to the action. As an exercise of its discretion, the court may accept law office failure as a reasonable excuse, where there is a detailed and credible explanation. However, a pattern of willful default and neglect will not be excused.
Hingorani v. Venus Enters. 11 Corp., NY Slip Op 05206 (2d Dep't September 21, 2022)
The appeal must be dismissed because the right of direct appeal therefrom terminated with the entry of the order and judgment of foreclosure and sale in the action. The issues raised on the appeal are brought up for review on the appeal from that order and judgment.
Green Tree Servicing, LLC v. Fernando. NY Slip 05205 (2d Dep't September 21, 2022)
A defendant may move to vacate the default on the ground of a lack of notice of the action, pursuant to CPLR 5015(a)(1). Pursuant to CPLR 317, if service was by means other than personal delivery, the defendant may be permitted to defend the action upon the court's finding that the defendant did not receive notice of the summons in time to defend and has a potentially meritorious defense. However, a conclusory and unsubstantiated denial of receipt of the summons and complaint is insufficient to establish lack of notice.
Gray v. Goodluck-Hedge, NY Slip Op 05204 (2d Dep't September 21, 2022)
In order to succeed, the movant must establish (1) a probability of success on the merits, (2) a danger of irreparable injury in the absence of an injunction, and (3) a balance of the equities in the movant's favor. The decision whether to grant or deny a preliminary injunction is a matter which lies within the sound discretion of the Supreme Court.
Grassfield v. JUPT, Inc., NY Slip Op 05203 (2d Dep't September 21, 2022)
Under the doctrine of res judicata, or claim preclusion, a valid final judgment bars future actions between the same parties on the same cause of action, as well as all other claims arising out of the same transaction or series of transactions, even if based upon different theories or if seeking a different remedy.
Here, the Supreme Court incorrectly determined that this action constituted an improper collateral attack on the order and judgment of foreclosure and sale. This action does not challenge that order and judgment, but, instead, concerns the subsequent sale conducted pursuant to the order and judgment. Thus, the granting of the requested relief in the present action would not destroy or impair the rights established by the order and judgment of foreclosure and sale in the prior action.
Fernando v. Wilmington Sav. Fund Socy., NY Slip Op 05202 (2d Dep't September 21, 2022)
The plaintiffs' proposed cause of action to recover damages for wrongful death is barred by the two-year statute of limitations, pursuant to EPTL 5-4.1. The limitations period is not tolled during the pendency of the application for letters of administration.
Byner v. Murray-Taylor, NY Slip Op 05201 (2d Dep't September 21, 2022)
Where a defendant seeking to vacate a default raises a jurisdictional objection, pursuant to CPLR 5015(a)(4), the court must resolve the jurisdictional question before determining whether it is appropriate to grant a discretionary vacatur of the default. The plainttiff has the burden of proving that the court has personal jurisdiction over the defendant.
Deutsche Bank Natl. Trust Co. v. Fernandez, NY Slip Op 05150 (2d Dep't September 14, 2022)
In this action to recover damages for breach of contract, the Supreme Court did not explain how it calculated the damages award to the plaintiff, and it is not apparent from the record. Therefore, the Appellate Division remits the matter to the Supreme Court to set forth its calculations and the specific evidence it relied upon in determining the damages award. The appeal is held in abeyance in the interim, and the Supreme Court shall file its report with all convenient speed.
C.D.S. Home Improvement Corp. v. Adegoke, NY Slip Op 05149 (2d Dep't September 14, 2022)
Res ipsa loquitur is an evidentiary doctrine that, under appropriate circumstances, may be invoked to allow the factfinder to infer negligence from the mere happening of an event. The doctrine follows from the understanding that some events ordinarily do not occur in the absence of negligence. A plaintiff must establish that the injury was caused by an agent or instrumentality within the defendant's exclusive control, and that no act or negligence on the plaintiff's part contributed to the happening of the event.
Berlich v. Maimonides Med. Ctr., NY Slip Op 05148 (2d Dep't September 14, 2022)
The doctrine applies only where the issue is the absolution of duty, such as personal injury claims arising from sporting events, sponsored athletic and recreative activities, or athletic and recreational pursuits that take place at designated venues. Here, the infant plaintiff was injured while using a trampoline in the yard of the defendants' private residence, not in a designated athletic or recreational venue, and the defendants did not actively sponsor or promote the activity. As such, the doctrine is not a bar to liability.
Bell-Moran v. Pena, NY Slip Op 05147 (2d Dep't September 14, 2022)
The Appellate Division may consider an argument raised for the first time on appeal if the legal issue is determinative and the record on appeal is sufficient to permit review.
Rosa v. 47 E. 34th St. (NY), L.P., NY Slip Op 05144 (September 13, 2022)
Because suits against New York State are allowed only by the State's waiver of sovereign immunity and in derogation of the common law, statutory requirements conditioning the suit must be strictly construed. Pursuant to Court of Claims Act § 11(b), a plaintiff must plead (1) the nature of the claim; (2) the time when the claim arose; (3) the place where it arose; and (4) the damage or injuries alleged to have been sustained. The failure to satisfy any of these conditions is a jurisdictional defect which may not be cured by amendment.
Correa v. State of New York, NY Slip Op 05074 (2d Dep't August 31, 2022)
The defendant's contention that the plaintiff obtained the clerk's judgment by making false allegations in the complaint amounts to an allegation of intrinsic fraud. A defendant seeking to vacate a default based on intrinsic fraud, pursuant to CPLR 5015(a)(3), must establish a reasonable excuse for the default and a potentially meritorious defense to the action. Here, the defendant failed to establish a reasonable excuse for its default. Since the defendant failed to establish a reasonable excuse for the default, it is unnecessary to consider whether the defendant presented a potentially meritorious defense to the action.
Chase Bank USA, N.A. v. Laroche, NY Slip Op 05073 (2d Dep't August 31, 2022)
In order to succeed on a motion to vacate an order or judgment on the ground of newly discovered evidence, pursuant to CPLR 5015(a)(2), 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.
Chase Bank USA, N.A. v. Laroche, NY Slip Op 05073 (2d Dep't August 31, 2022)
Thre is no appeal from a judgment entered upon the default of the appealing party, pursuant to CPLR 5511. However, an appeal from a judgment entered upon the default of the appealing party brings up for review those matters which were the subject of contest before the Supreme Court. As a general rule, the Appellate Division will not consider issues raised on a subsequent appeal that were raised, or could have been raised, on an earlier appeal which was dismissed for lack of prosecution, although it has inherent jurisdiction to do so.
275 Clermont, LLC v. Johnson, NY Slip Op 05070 (2d Dep't August 31, 2022)
The fundamental, neutral precept of contract interpretation is that agreements are construed in accord with the parties' intent, and the best evidence the contracting parties' intent is what they say in their writing. The parties' words and phrases must, as in all cases involving contract interpretation, be given their plain meaning. Where a contract was negotiated between sophisticated, counseled business people negotiating at arm's length, courts should be especially reluctant to interpret an agreement as impliedly stating something which the parties specifically did not include. Where the contract's terms are clear and unambiguous, the parties' intent must be found within the contract's four corners, giving a practical interpretation to the language employed and reading the contract as a whole. Where a contract fails to specify the time for performance, the law will imply a reasonable time.
255 Butler Assoc., LLC v. 255 Butler, LLC, NY Slip Op 05068 (2d Dep't August 31, 2022)
Pursuant to CPLR 3126, a court may impose discovery sanctions, including the striking of a pleading, where a party refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed. The resolution of discovery disputes and the nature and degree of the penalty to be imposed are matters within the sound discretion of the motion court. Absent an improvident exercise of discretion, the determination to impose sanctions for conduct that frustrates the purpose of the CPLR should not be disturbed.
Before imposing the drastic remedy of striking a pleading, there must be a clear showing that a party's failure to comply with discovery is willful and contumacious. Such conduct may be inferred from a party's repeated failure to comply with court-ordered discovery, coupled with inadequate explanations for the failures to comply, or a failure to comply with court-ordered discovery over an extended period of time.
255 Butler Assoc., LLC v. 255 Butler, LLC, NY Slip Op 05067 (2d Dep't August 31, 2022)
The injunction stays a landlord's termination of a leasehold while the propriety of the underlying default is litigated. The injunction does not nullify the remedies to which a landlord is otherwise entitled under the parties' contract. Instead, it maintains the status quo so that a commercial tenant, when confronted by a threat of termination of its lease, may protect its investment in the leasehold by obtaining a stay tolling the cure period so that upon an adverse determination on the merits the tenant may cure the default and avoid a forfeiture. In order t o obtain a Yellowstone injunction, the tenant must demonstrate that (1) it holds a commercial lease; (2) it received from the landlord either a notice of default, a notice to cure, or a threat of termination of the lease; (3) it requested injunctive relief prior to both the termination of the lease and the expiration of the cure period set forth in the lease and the landlord's notice to cure; and (4) it is prepared and maintains the ability to cure the alleged default by any means short of vacating the premises.
255 Butler Assoc., LLC v. 255 Butler, LLC, NY Slip Op 05066 (2d Dep't August 31, 2022)
In order to be awarded a default judgment, pursuant to CPLR 3215(f), the plaintiff must submit proof of service of the summons and the complaint, proof of the defendant's default, and proof of the alleged facts constituting the claim. In order to vacate the judgment, the defendant must give a reasonable excuse for its default and demonstrate a potentially meritorious defense to the claim.
195-197 Hewes, LLC v. Citimortgage, Inc., NY Slip Op 05065 (2d Dep't August 31, 2022)
Prior to answering the complaint, the defendant moved pursuant to CPLR 3211(a)(1) to dismiss the complaint. However, the defendant failed to appear in court on the return date, and the motion was marked off the calendar. Thereafter, the defendant moved to vacate its default in appearing on the return date and to restore its motion to the calendar. The Supreme Court granted the defendant's motion, and the plaintiff appeals. The Appellate Division affirms, but notes that, contrary to the defendant's contention, the Supreme Court's denial of the defendant's motion to dismiss the complaint, in a subsequent order, does not render this appeal academic.
195-197 Hewes, LLC v. Citimortgage, Inc., NY Slip Op 05064 (2d Dep't August 31, 2022)
The best evidence of what parties to a written agreement intend is what they say in their writing. The contract should be read as a harmonious and integrated whole, and each and every part should be given effect. Courts may not, through their interpretation of a contract, add or excise terms or distort the meaning of any particular words or phrases. Neither should an agreement be read to produce a result that is absurd, commercially unreasonable, or contrary to the reasonable expectations of the parties.
Here, the contractual provision that "[t]he Trustee agrees to . . . exercise the rights referred to above for the benefit of all present and future [certificateholders]" imposes an express duty on the trustees to enforce the repurchase protocol for the benefit of the investors. This express language is not discretionary, even though the provision does not use the language "shall" or "must." The provision employs the language "agrees to," which is also language of commitment.
IKB Intl., Inc., S.A. v. Wells Fargo Bank, N.A., NY Slip Op 05058 (1st Dep't August 30, 2022)
As a general rule, parents are not liable for the torts of their children. However, a parent may be held liable where the parent's alleged negligence consists entirely of the failure reasonably to restrain the child from vicious conduct endangering others, when the parent has knowledge of the child's propensity toward such conduct.
Levine v. George, NY Slip Op 05032 (2d Dep't August 24, 2022)
There can be more than one proximate cause of an accident, and a defendant moving for summary judgment must show that it is free from fault. Generally, it is for the trier of fact to determine the issue of proximate cause. Here, the defendant failed to establish, prima facie, that the injured plaintiff's action was the sole proximate cause of the incident and that the defendant's employee was free from fault. The motion is denied, without considering the sufficiency of the plaintiffs' opposing papers.
Fiorentino v. Uncle Giuseppe's of Port Wash., Inc., NY Slip Op 05023 (2d Dep't August 24, 2022)
Pursuant to CPLR 306-b, the court may extend the time for service "upon good cause shown or in the interest of justice." "'Good cause" and "interest of justice" are separate and independent statutory standards. In this action, the plaintiffs seek the extension in the interest of justice.
In deciding whether to grant a motion to extend the time for service in the interest of justice, the court must analyze the factual setting of the case and balance the competing interests presented by the parties. Unlike an extension request premised on good cause, a plaintiff need not establish reasonably diligent efforts at service as a threshold matter. However, the court may consider diligence, or the lack thereof, along with any other relevant factor in making its determination, including expiration of the Statute of Limitations, the meritorious nature of the cause of action, the length of delay in service, the promptness of the plaintiff's motion, and prejudice to the defendant
Here, the plaintiffs demonstrated that the action was timely commenced; that service was timely attempted and was believed by the plaintiffs to have been made within 120 days after the commencement of the action but was subsequently found to be defective; that the plaintiffs have a potentially meritorious cause of action; that the statute of limitations has expired; and that the extension of time does not prejudice the defendant.
The motion is granted.
Edwards v. Brooklyn Hosp. Ctr., NY Slip Op 05022 (2d Dep't August 24, 2022)
A party who contends that a summary judgment motion is premature, pursuant to CPLR 3212(f), must demonstrate that discovery might lead to relevant evidence or that the facts essential to justify opposition to the motion were exclusively within the knowledge and control of the movant. Here, the affirmation of the plaintiff's counsel failed to establish either basis. The mere hope or speculation that evidence sufficient to defeat a motion for summary judgment may be uncovered during the discovery process is an insufficient basis for denying the motion.
Dalrymple v. Morocho, NY Slip Op 05020 (2d Dep't August 24, 2022)
Where the defendant, in its moving papers, fails to establish its prima facie entitlement to judgment as a matter of law dismissing the complaint, it is unnecessary to consider the sufficiency of the papers submitted in opposition,
Colletti v. City of New York, NY Slip Op 05019 (2d Dep't August 24, 2022)
The defendant's failure to file proof of service of the notice of the lien within 35 days of filing it, as required by Lien Law § 11, automatically terminated the notice as a lien. The plaintiff's motion is granted.
Christopulos v. Christopulos, NY Slip Op 05018 (2d Dep't August 24, 202)
The appeal from so much of the order as directed a hearing is dismissed. There is no appeal as of right from an order which merely directs a hearing to aid in the disposition of a motion, as it does not decide the motion, and does not affect a substantial right, pursuant to CPLR 5701[a][2][v]. Leave to appeal has not been granted.
Christopulos v. Christopulos, NY Slip Op 05017 (2d Dep't August 24, 2022)
There is no statutory requirement that a plaintiff plead these causes of action with particularity.
Boyle v. North Salem Cent. Sch. Dist., NY Slip Op 05014 (2d Dep't August 24, 2022)
Pursuant to the doctrine, when an actor is faced with a sudden and unexpected circumstance which leaves little or no time for thought, deliberation, or consideration, or otherwise causes the actor to be reasonably so disturbed that the actor must make a speedy decision without weighing alternative courses of conduct, the actor may not be negligent if the actions taken are reasonable and prudent in the emergency context. Ordinarily, whether there was an emergency and the reasonableness of a party's response present questions of fact. However, summary judgment may be granted when a party submits sufficient evidence.
Here, the defendants submitted transcripts of the plaintiff's and the defendant-bus driver's deposition testimony. They offered different accounts of the accident, raising a triable issue of fact as to how the accident occurred and which party was at fault. However, the defendants also submitted a bus surveillance video demonstrating that the plaintiff was operating his vehicle in the left turn lane, next to the bus, and then, without warning and despite adequate space in front of the bus, changed lanes directly in front of the bus, in a manner that did not give the bus driver adequate time to avoid the accident. The video established, prima facie, that the defendant was confronted with an emergency not of his own making, leaving him only seconds to react and virtually no opportunity to avoid the collision. Summary judgment is granted, and the complaint is dismissed.
Anderson v. Metropolitan Transp. Auth., NY Slip Op 05013 (2d Dep't August 24, 2022)
Collateral estoppel is a narrower species of res judicata. It precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party or those in privity, regardless of whether the forum or causes of action are the same. In order to invoke the doctrine, the issue must have been material to the first action or proceeding, and essential to the decision that was rendered.
71-21 Loubet, LLC v. Bank of Am., N.A., NY Slip Op 05012 (2d Dep't August 24, 2022)
In order to state a cause of action to recover damages for legal malpractice, the plaintiff must allege that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession, and that the attorney's breach of this duty proximately caused the plaintiff to sustain actual and ascertainable damages. In order to establish causation, the plaintiff must plead specific factual allegations demonstrating that, but for the attorney's negligence, the underlying action would have had a more favorable outcome than resulted Conclusory allegations of damages or injuries predicated on speculation cannot suffice for a malpractice action, and dismissal is warranted where the allegations in the complaint are merely conclusory and speculative.
Jean-Paul v. Rosenblatt, NY Slip Op 04958 (2d Dep't August 17, 2022)
In this action on a promissory note, plaintiffs moved by notice of motion for summary judgment and defendants cross-moved for summary judgment dismissing the complaint for lack of standing. The motion court, by interim order, directed the parties to appear before a court attorney referee to determine if plaintiff had possession of the note when the action was commenced. After a hearing, the referee determined that plaintiffs were in possession of the note. Defendants appeal the referee's determination.
Although captioned "Decision and Order," the referee's decision is not an order determining a motion made on notice, pursuant to CPLR 5701[a][2]. The appeal is dismissed, without prejudice to defendants' taking of an appeal from the ultimate disposition of the summary judgment motions.
Ocwen Loan Servicing, LLC v. Pacheco, NY Slip Op 05009 (1st Dep't August 23, 2022)
Timely service of a notice of claim is a condition precedent to the commencement of an action sounding in tort against a municipal entity, pursuant to General Municipal Law § 50-e. A petition for leave to serve a late notice of claim upon a public authority may not be made more than one year and 90 days after the event upon which the claim is based, unless the statute of limitations has been tolled. Here, the petitioner timely commenced this proceeding on November 12, 2019, by filing the order to show cause, the affirmation of counsel, and the verified proposed notice of claim. Because the appellants do not claim that a substantial right would be prejudiced, the affirmation and proposed notice of claim are properly viewed as the petition required to commence a special proceeding, pursuant to CPLR 3026. In addition, the statute of limitations was tolled from the time the proceeding was commenced until the date of the order deciding the petition. Therefore, the petition is timely.
Matter of Cerreta v. County of Suffolk, NY Slip Op 04964 (2d Dep't August 17, 2022)
Where a contractual provision is unenforceable and there is no severability clause, the entire agreement is unenforceable.
Mercado v. Schwartz, NY Slip Op 04956 (2d Dep't August 17, 2022)
The defendant third-party plaintiff served the third-party defendants pursuant to CPLR 308(2) by delivering the third-party summons and complaint to a person of suitable age and discretion at the address of the third-party defendants' usual place of abode on February 11, 2019, and by mailing copies to the same address the next day. The proofs of service were filed on April 2, 2019, past the 20-day filing period required by CPLR 308(2). The defendant third-party plaintiff moved for leave to enter a default judgment against the third-party defendants, and the third-party defendants opposed the motion on the ground that they had already served a third-party answer.
While the failure to file a timely proof of service is a curable procedural irregularity, here, the defendant third-party plaintiff did not obtain an order permitting a late filing of proof of service. Accordingly, the late filings were nullities and the third-party defendants' time to answer never began to run. Since the third-party defendants were not in default, the defendant third-party plaintiff's motion for leave to enter a default judgment against the third-party defendants is denied.
K.J. v. Longo, NY Slip Op 04957 (2d Dep't August 17, 2022)
Ordinarily, a process server's affidavit establishes a prima facie case as to the method of service. and, therefore, gives rise to a presumption of proper service. Here, the affidavit of service demonstrates, prima facie, that the defendant was served with the summons and complaint pursuant to CPLR 308(4) by affixing a copy of the summons and complaint to the door of his actual dwelling place, and by mailing a copy of the summons and complaint to his last known residence. The defendant argues that he never resided at the address set forth in the affidavit of service. However, the record establishes that the defendant engaged in affirmative conduct which misled the plaintiff into serving process at an incorrect address. Therefore, the defendant is estopped from contending that the address set forth in the affidavit of service is not his dwelling place, pursuant to CPLR 308[2].
Hudson Val. Bank, N.A. v. Eagle Trading, NY Slip Op 04956 (2d Dep't August 17, 2022)
In order to extend the time to answer a complaint and to compel the plaintiff to accept late service of the answer pursuant to CPLR 3012(d), a defendant must submit a reasonable excuse for the default and demonstrate a potentially meritorious defense to the action. Here, the defendants' excuse that the minimal delay in serving their answer was due to their attorney's illness, as corroborated by medical documentation, is reasonable.
HSBC Bank USA v. Pantel, NY Slip Op 04954 (2d Dep't August 17, 2022)
A party seeking to vacate an order or judgment entered upon a default in opposing a motion must demonstrate both a reasonable excuse for the default and a potentially meritorious opposition to the motion, pursuant to CPLR 5015[a][1]. The determination of what constitutes a reasonable excuse is within the sound discretion of the Supreme Court.
Fidelity Bank v. John, NY Slip Op 04952 (2d Dep't August 17, 2022)
The action is governed by a six-year statute of limitations, pursuant to CPLR 213[4]. Even if the mortgage is payable in installments, once a mortgage debt is accelerated, the entire amount is due and the Statute of Limitations begins to run on the entire debt. However, where the acceleration occurred by virtue of the filing of a complaint, the noteholder's voluntary discontinuance of that action constitutes, as a matter of law, an affirmative act of revocation of the acceleration, absent the noteholder's express and contemporaneous statement to the contrary.
Deutsche Bank Natl. Trust Co. v. Fresca, NY Slip Op 04948 (2d Dep't August 17, 2022)
In order to prevail on the motion, the movant must establish, by clear and convincing evidence (1) that a lawful order of the court was in effect, clearly expressing an unequivocal mandate; (2) the appearance, with reasonable certainty, that the order was disobeyed; (3) that the party to be held in contempt had knowledge of the court's order; and (4) prejudice to the right of a party to the litigation. Wilfulness is not an element of civil contempt, but the party alleged to be in contempt may offer as a defense evidence of his inability to comply with the order or judgment. The motion is entrusted to the sound discretion of the court.
Bauman v. Bauman, NY Slip Op 04945 (2d Dep't August 17, 2022)
