An untimely filing.

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)

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The doctrine of equitable estoppel.

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)

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An alleged breach of fiduciary duty.

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)

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Sua sponte dismissal.

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)

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Appellate practice.

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)

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Court holiday.

A judgment of foreclosure and sale.

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)

Here is the decision.

Spoliation of evidence.

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)

Here is the decision.

Liquidated damages.

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)

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A cause of action for breach of fiduciary duty.

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)

Here is the decision.

The standard on summary judgment.

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)

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A claim for unlawful termination and retaliation under the New York City Human Rights Law.

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)

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CPLR 3213.

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)

Here is the decision.

Vacatur.

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)

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Article 78.

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)

Here is the decision.

A cause of action for negligent misrepresentation

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)

Here is the decision.

Summary judgement on liability in a rear-end collision.

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)

Here is the decision.

A cause of action for misrepresentation.

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)

Here is the decision.

Proper service of process.

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)

Here is the decision.

Out-of-state notarizations.

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)

Here is the decision.

Appellate practice.

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)

Here is the decision.

Failure to plead an affirmative defense.

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)

Here is th decision.

December 7, 1941

Waiver of attorney-client privilege.

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)

Here is the decision.

Contractual indemnification.

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)

Here is the decision.

Punitive damages.

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)

Here is the decision.

Discovery.

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)

Here is the decision.

Sanctions for spoliation.

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)

Here is the decision.

Appellate practice.

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)

Here is the decision.