Appellate practice.

There is no appeal as of right from a sua sponte order. The proper course is to move the motion court to vacate the order or to seek leave to appeal from the Appellate Division. Here, in light of counsel's repeated failure to properly prosecute this action, which would largely benefit his law firm, the Appellate Division declines to deem the notice of appeal a motion for leave to appeal in the interest of justice.

Beltran v. Commercial Bldg. Maintenance Corp., NY Slip Op 04115 (1st Dep't June 28, 2022)

Here is the decision.

CPLR 3012(d).

A defaulting defendant who moves to compel the plaintiff to accept late service of an answer must provide a reasonable excuse for the default and demonstrate a potentially meritorious defense to the action. Whether a proffered excuse is reasonable is a sui generis determination to be made by the court based on all relevant factors, including the extent of the delay, whether there has been prejudice to the opposing party, whether there has been willfulness, and the strong public policy in favor of resolving cases on the merits. While the court has the discretion to accept law office failure as a reasonable excuse, pursuant to CPLR 2005, a conclusory, undetailed, and unsubstantiated claim of law office failure is not a reasonable excuse.

Dawkins v. Isole, NY Slip Op 04006 (2d Dep't June 22, 2022)

Here is the decision.

Collateral estoppel.

The doctrine is properly invoked to strike the answer of a defendant that appeared in the prior action or proceeding and that has, by deliberate action, refused to defend or litigate the charge or allegation that is the subject of the preclusion request. Here, the decision in the prior action established the defendant's failure to comply with four court orders requiring it to appear for deposition and its president's wilful refusal to comply with the court's mandates. Therefore, the defendant had a full and fair opportunity to litigate the underlying merits but affirmatively chose not to. 

Perez v. 76th & Broadway Owner, LLC, NY Slip Op 04108 (1st Dep't June 23, 2022)

Here is the decision.

CPLR 317.

A defendant who has been served with a summons other than by personal delivery may be allowed to defend the action within one year after he has knowledge of entry of a judgment against him. He must demonstrate that he did not personally receive notice of the summons in time to defend and that he has a potentially meritorious defense.

Beltran v. New York City Hous. Auth., NY Slip Op 04003 (2d Dep't June 22, 2022)

Here is the decision.

CPLR 2005.

Plaintiffs show both a reasonable excuse for their default and a meritorious cause of action, and so their motion to vacate dismissal and restore the action to the trial calendar is granted. Law office failure is a reasonable excuse for the default, since plaintiffs' counsel was unaware that procedures for conducting compliance conferences had changed during the COVID-19 pandemic and, as a result, inadvertently failed to submit stipulations before a scheduled conference. Plaintiffs demonstrated a meritorious cause of action by submitting the complaint, a bill of particulars, and the injured plaintiff's deposition testimony. In addition, defendants were not prejudiced by plaintiffs' failure to appear, and did not oppose the motion to vacate.

Willner v. S Norsel Realties LLC, NY Slip Op 04111 (1st Dep't June 23, 2022)

Here is the decision.

A coop's claim for a board member's breach of fiduciary duty.

Where the relief sought is primarily monetary, the statutory limitations period is three years. The measure of damages is the amount of loss sustained, including lost opportunities for profit on the properties by reason of the faithless fiduciary's conduct.

67-69 St. Nicholas Ave. Hous. Dev. Fund Corp. v. Green, NY Slip Op 04087 (1st Dep't June 23, 2022)

Here is the decision.

CPLR 5015[a].

A party seeking to vacate an order entered on its default in answering or appearing must show both a reasonable excuse for the default and the existence of a potentially meritorious defense. Exactly what constitutes a reasonable excuse lies within the sound discretion of the motion court. However, a general excuse that the default was caused by delays occasioned by the defendant's insurance carrier is insufficient. Here, defendant provided only conclusory and unsubstantiated assertions that its insurance carrier had been notified of this action and would be hiring counsel on its behalf. Since defendant failed to demonstrate a reasonable excuse for its default, it is unnecessary to consider whether it demonstrated the existence of a potentially meritorious defense.

Ahmed v. Essex Terrace, Inc., NY Slip Op 03998 (2d Dep't June 22, 2022)

Here is the decision.

CPLR 3025 (b).

Generally, an application for leave to amend a pleading is governed by a permissive standard:  in the absence of prejudice or surprise resulting directly from the delay in seeking leave, leave is to be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit. Here, the Appellate Division had dismissed the second amended complaint because of a pleading deficiency that plaintiffs lacked standing and capacity to sue, which is not a dismissal on the merits. The proposed third amended complaint purportedly cured the defect, but there there was no complaint to amend. The Appellate Division's dismissal deprived the trial court of discretion to grant leave to amend the second amended complaint. The Appellate Division's dismissal order directed that judgement be entered by the Supreme Court Clerk, and that was not done. However, that failure is of no consequence, as the entry of a subsequent judgment is merely a ministerial act. The dismissal order was binding on the parties until vacated or set aside on further appeal. Plaintiff did not appeal, and so its only remedy was to commence a new action, which it failed to do.

Favourite Ltd. v. Cico, NY Slip Op 03987 (1st Dep't June 21, 2022)

Here is the decision.

Amending a complaint to add a defendant.

CPLR 1003 requires leave of court or a stipulation by all parties to add parties, at least where, as here, parties have previously been added. CPLR 3025(a)-(b) similarly requires leave of court or a stipulation by all parties to amend a complaint, at least when done so late in the case. Because this procedure was not followed, the amended complaint must be dismissed as against the newly joined defendant.

ALP, Inc. v. Moskowitz, NY Slip Op 03962 (1st Dep't June 16, 2022)

Here is the decision.

Service of process.

Plaintiff submitted affidavits of service that constituted prima facie proof of proper service, pursuant to CPLR 308(4). Defendants rebutted the presumption of proper service by averring that service was effectuated at the wrong address. The process server's subsequent affidavit did not establish proper service as a matter of law, because it did not specifically confirm that the follow up mailings had been sent to the correct address. Accordingly, a traverse hearing is required to determine whether personal jurisdiction was obtained over defendants.

Italian Elegant Jewelry, LLC v. Fteha, NY Slip Op 03967 (1st Dep't June 16, 2022)

Here is the decision.

A motion for leave to reargue.

The motion must be based on matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion. The movant cannot raise any matters of fact not offered on the prior motion. Disposition of the motion is addressed to the sound discretion of the motion court.

A.R. Conelly, Inc. v. New York City Charter High Sch. for Architecture, Eng'g & the Constr. Indus., NY Slip Op 03880 (2d Dep't June 15, 2022)

Here is the decision.

A dismissed unjust enrichment claim.

Dismissal of the unjust enrichment claim was required, as there was a valid and enforceable contract governing the parties' disputes.

Tutor Perini Corp. v. New York City Dept. of Transp., NY Slip Op 03981 (1st Dep't June 16, 2022)

Here is the decision.

Liquidated damages.

In order to avoid liquidated damages as an unenforceable penalty, there must be a showing either that damages flowing from a prospective contractual breach were readily ascertainable at the time the parties entered into their agreement, or that the liquidated damages clause is conspicuously disproportionate to these foreseeable losses.

VII MP Miami Hotel Owner, LLC v. Hycroft, LLC, NY Slip Op 03983 (1st Dep't June 16, 2022)

Here is the decision.

Long-arm jurisdiction.

There is long-arm jurisdiction under the "transacts business" provision of CPLR 302(a)(1) because defendant's New York activities were purposeful and substantially related to plaintiffs' claims to recover on 11 notes and debentures signed by defendant. Defendant's principal purposefully transacted business in New York by negotiating the terms of 8 of the 11 notes and debentures during in-person meetings in New York. In connection with the loan transactions, defendant retained a New York firm to represent it, traveled to New York on multiple occasions to meet with plaintiffs' representatives to promote and provide progress reports on defendant's business, and established a continuing relationship with plaintiffs that lasted several years and spanned 11 separate loans, all of which is sufficient to satisfy the statutory test for long-arm jurisdiction.

4069 Rosen Assoc., LLC v. Tournamentone Corp., NY Slip Op 03864 (1st Dep't June 14, 2022)

Here is the decision.

Appellate practice.

The appeal must be dismissed because the defendant died before the date of the notice of appeal, and the attorney who filed the notice of appeal lacked authority to act on the decedent's behalf.

Ditech Fin., LLC v. Connors, NY Slip Op 03709 (June 8, 2022)

Here is the decision.

A legal malpractice claim.

The denial of defendants' motion to dismiss is affirmed.  Defendants, who were admittedly discharged for cause, failed to proffer any evidence that subsequent counsel did not adequately prepare plaintiff's rebuttal expert witness for his deposition during the underlying federal litigation. Therefore, they did not establish prima facie that, but for the intervening and superseding failures of plaintiff's successor counsel, plaintiff would not have lost at tria. The Appellate Division notes that defendants have not shown on this record that it was not their own alleged acts of malpractice that prevented plaintiff from prevailing in her federal lawsuit, including their failure to timely serve expert reports, obtain a discovery stay, and be truthful when they otherwise advised plaintiff and the court that the missed expert witness deadline was a deliberate, strategic decision.

Vioni v. Carey & Assoc., LLC, NY Slip Op 03805 (1st Dep't June 9, 2022)

Here is the decision.

Appellate practice.

A person is aggrieved within the meaning of CPLR 5511 when he asks for relief but relief is denied in whole or in part, or when someone opposes the relief asked against him, and the relief is granted in whole or in part. Here, since the defendant is not aggrieved by the order appealed from, the appeal must be dismissed. 

Countrywide Home Loans, Inc. v. Connors, NY Slip Op 0370 (2d Dep't June 8, 2022)

Here is the decision.

Labor Law § 200 and common-law negligence claims.

A general contractor's general supervisory authority, without more, is insufficient to impose liability.

Zherka v. Hudson Meridian Constr. Group LLC, NY Slip Op 03704 (1st Dep't June 7, 2022)

Here is the decision.

Appellate practice.

No appeal lies from the branches of the two orders denying reargument.

2497 Realty Corp. v. Fuertes, NY Slip Op 03678 (1st Dep't June 7, 2022)

Here is the decision.

CPLR 3116[a].

The rejection of a party's errata sheet for his deposition testimony does not render the errata sheet inadmissible. Here, the plaintiff's statement of the reasons for making the revisions was sufficient justification for the five minor changes that he made, which were consistent with other portions of his testimony. Accordingly, the weight to be afforded to the plaintiff's errata sheet and the effect on his credibility, if any, are issues to be assessed by the trier of fact.

Hernandez v. NY Prepaid Wireless LLC, NY Slip Op 03573 (1st Dep't June 2 2022)

Here is the decision.

Judicial estoppel and res judicata.

A party who assumes a certain position in a prior legal proceeding and secures a favorable judgment therein is precluded from assuming a contrary position in another action simply because its interests have changed. Here, the doctrine of judicial estoppel is inapplicable because the plaintiff did not receive a favorable judgment in the prior proceeding.

Under the doctrine of res judicata, or claim preclusion, a disposition on the merits bars litigation between the same parties, or those in privity with them, of a cause of action arising out of the same transaction or series of transactions as a cause of action that either was raised or could have been raised in the prior proceeding. Here, the docrrine is inapplicable because the 2013 action was dismissed for lack of standing, without reaching the merits of the foreclosure claim itself.

Capital One, N.A. v. Trubitsky, NY Slip Op 03492 (2d Dep't June 1, 2022)

Here is the decision.

Real estate commissions.

A real estate broker claiming entitlement to an earned commission must allege that he was the procuring cause of the transaction. There must be a showing of something beyond the broker's mere creation of an amicable atmosphere or an amicable frame of mind that might have led to the ultimate transaction, but the broker need not control the transaction, and the broker need not negotiate the transaction's final terms or be present at the closing. The procuring cause standard applies equally to causes of action sounding in breach of contract and quasi contract, such as claims for quantum meruit and unjust enrichment.

LHWS LLC v. S.L. Green Realty Corp., NY Slip Op 03574 (1st Dep't June 2, 2022)

Here is the decision.

Civil contempt.

In order to prevail on a motion to hold another party in civil contempt, the movant must prove, by clear and convincing evidence: (1) that a lawful court order 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. The burden then shifts to the alleged contemnor to refute the movant's showing, or to offer evidence of a defense, such as an inability to comply with the order.

Board of Mgrs. of Brightwater Towers Condominium v. M. Marin Restoration, Inc., NY Slip Op 03491 (2d Dep't June 1, 2022)

Here is the decision.

CPLR 7804[g].

Where an Article 78 petition raises an issue of substantial evidence, the Supreme Court should transfer the petition to the Appellate Division for disposition.

Matter of 475 Kent Owner, LLC v. New York City Loft Bd., NY Slip Op 03568 (1st Dep't June 2, 2022)

Here is the decision.

A hostile environment claim.

The cause of action requires allegations of repeated conduct, not discrete acts such as termination, failure to promote, denial of transfer, or refusal to hire.

Blackman v. Metropolitan Tr. Auth., NY Slip Op 03490 (2d Dep't June 1, 2022)

Here is the decision.

Appellate practice.

An argument that is not raised before the motion court may be considered on appeal if it appears on the face of the record, involves no new facts, and could not have been avoided if it had been timely raised.

Peralta v. City of New York, NY Slip Op 03579 (1st Dep't June 2, 2022)

Here is the decision.

Defaults.

By failing to answer, the defaulting defendants are deemed to have admitted the factual allegations in the complaint.

State Farm Fire & Cas. Co. v. Axial Chiropractic, P.C., NY Slip Op 03487 (1st Dep't May 31, 2022)

Here is the decision.

Failure-to-warn liability.

Liability is intensely fact-specific, with issues including, but not limited to, the feasibility and difficulty of issuing warnings in the circumstances; the obviousness of the risk from actual use of the product; the user's knowledge of the product; and proximate cause. Recovery may properly be denied to a product user who was fully aware of the hazard through general knowledge, observation, or common sense. For that reason, courts could decide, as a matter of law, that a manufacturer's warning would have been superfluous given the injured party's actual knowledge of the specific hazard that caused the injury. However, even if a product user has some degree of knowledge of the potential hazards in the use of a product, summary judgment will not lie where reasonable minds might disagree as to the extent of that knowledge.

Vasquez v. Ridge Tool Pattern Co., NY Slip Op 03488 (1st Dep't May 31, 2022)

Here is the decision.

CPLR 3126.

The motion court considered plaintiff's objections to discovery demands and found them inadequate, given that there are two inconsistent documents in the record. Further, plaintiff had not provided an affidavit concerning its search for documents, and had not produced a witness for deposition. After issuing a conditional order of dismissal, the motion court does not have to inquire into whether plaintiff's noncompliance with discovery was willful. 

Wilmington Sav. Fund Socy, FSB v. Donaldson, NY Slip Op 03465 (1st Dep't May 26, 2022)

Here is the decision.