Equitable estoppel.

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)

Here is the decision.

An action to foreclose a mortgage.

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)

Here is the decision.

A purported gift of shares in a cooperative apartment.

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)

Here is the decision.

Default judgment in a foreclosure action.

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)

Here is the decision.

The limitations period on an Article 78 petition.

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)

Here is the decision.

A defamation claim.

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)

Here is the decision.

Discovery.

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)

Here is the decision.

Appellate practice.

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)

Here is the decision.

The evidentiary value of business records.

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)

Here is the decision.

A motion to vacate a default.

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)

Here is the decision.

Privileged attorney work product.

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)

Here is the decision.

Statutory amendments.

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)

Here is the decision.

A motion for summary judgment in an action to foreclose a mortgage.

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)

Here is the decision.

A discrimination claim under the New York City Human Rights Law.

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)

Here is the decision.

Appellate practice.

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)

Here is the decision.

Dismissal for failure to comply with court-ordered discovery.

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)

Here is the decision.

Summary judgment before discovery.

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)

Here is the decision.

Venue.

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)

Here is the decision.

The doctrine of in loco parentis.

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)

Here is the decision.

Appellate practice.

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)

Here is the decision.

Staying an action.

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)

Here is the decision.

Court holiday.

Appellate practice.

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)

Here is the decision.

A breach of contract claim.

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)

Here is the decision.

Respondeat superior and vicarious liability claims.

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)

Here is the decision.

New York State and City Human Rights Law employment discrimination and retaliation claims.

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)

Here is the decision.

Appellate practice.

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)

Here is the decision.

The payment of damages in settled actions.

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)

Here is the decision.

An untimely answer.

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)

Here is the decision.

Appellate practice.

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)

Here is the decision.

Vacatur of a default based on lack of notice.

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)

Here is the decision.