Vacating a deault.

A party seeking to vacate 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]. The determination of what constitutes a reasonable excuse lies within the sound discretion of the trial court. In excusing its discretion, the court may excuse delay or default resulting from law office failure, pursuant to  CPLR 2005.

Biotek Servs., LLC v. South Is. Med. Assoc., P.C., NY Slip Op 02775 (2d Dep't May 24, 2023)

Here is the decision.

Judgments as a matter of law.

Pursuant to CPLR 4401, a motion for judgment as a matter of law may be made at the close of an opposing party's case, or at any time on the basis of admissions. A motion made prior to the close of the opposing party's case will be denied, even if the opposing party's ultimate success in the action is improbable.

Bank of N.Y. Mellon v. Waheed, NY Slip Op 02774 (2d Dep't May 24, 2023)

Here is the decision.

 

Pleading quasi contract claims in the alternative.

The causes of action for promissory estoppel and unjust enrichment are properly pleaded in the alternative to the breach of contract cause of action, as the matter presents a bona fide dispute as to the existence of a valid contract.

Tahari v. Narkis, NY Slip Op 02772 (1st Dep't May 23, 2023)

Here is the decision.

Vacatur of default based on intrinsic fraud.

The defendants' contentions that the plaintiff fraudulently robosigned allonges to the note and failed to comply with RPAPL 1304 amount to allegations of intrinsic fraud. A defendant seeking to vacate a default pursuant to CPLR 5015(a)(3) based on intrinsic fraud must establish a reasonable excuse for the default and a potentially meritorious defense to the action. Since the defendants failed even to allege any reasonable excuse for either one of their defaults, the court denied that branch of their motion to vacate the order and judgment of foreclosure and sale.

Bank of Am., N.A. v. Anderson, NY Slip Op 02635 (2d Dep't May 17, 2023)

Here is the decision.

Quasi contract claims.

The Appellate Division affirmed the granting of defendants' motion which was pursuant to CPLR 3211(a)(7) to dismiss the cause of action alleging unjust enrichment. The existence of a valid contract governing the subject matter precludes recovery in quasi contract for events arising out of the same subject matter. An unjust enrichment claim is not available where it simply duplicates, or replaces, a conventional contract or tort claim. Here, recovery on an unjust enrichment theory is precluded, since that cause of action arises out of the same subject matter as the breach of contract cause of action, which remains a viable part of this case despite the denial of summary judgment to the plaintiff on the issue of liability.

Avery v. WJM Dev. Corp., NY Slip Op 02634 (2d Dep't May 17, 2023)

Here is the decision.

Liability for open and obvious hazards.

The court rejected defendant's contention that she cannot be held liable as a matter of law because the pile of snow and ice that caused plaintiff's accident was open and obvious. An open and obvious condition only relieves a property owner of its duty to warn, and not the duty to ensure that the premises is maintained in a reasonably safe condition.

Martinez v. Contreras, NY Slip Op 02742 (1st Dep't May 18, 2023)

Here is the decision.

Vacatur of a dismissal of the complaint.

Plaintiff is not entitled to vacatur of the order and judgment of dismissal on the ground of excusable default, pursuant to CPLR 5015[a][1], since they were not entered on her default. Her counsel appeared in court on the return date, participated in the argument and discussion, and submitted papers, and there is nothing in the court's order or judgment to indicate that the motions were granted on plaintiff's default. In any event, plaintiff did not move within the statutorily prescribed one-year time limit and failed to present a valid excuse for her failure to do so.

Matter of Duval v. Centerlight Health Sys., Inc., NY Slip Op 02740 (1st Dep't May 18, 2023)

Here is the decision.

Motions to dismiss.

When a party moves to dismiss a complaint pursuant to CPLR 3211(a)(7), the standard is whether the pleading states a cause of action.  In considering the motion, the court must accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory. Affidavits submitted by a defendant will almost never warrant dismissal under CPLR 3211 unless they establish conclusively that the plaintiff has no cause of action. Where the movant relies upon evidence beyond the four corners of the complaint, the motion must be denied unless it has been shown that a material fact as claimed by the plaintiff is not a fact at all and unless it can be said that no significant dispute exists regarding it.

808 Union St., LLC v. J. Lehman Park Slope, LLC, NY Slip Op 02632 (2d Dep't May 17, 2023)

Here is the decision.

Specific performance of a contract for the sale of real property.

A party seeking specific performance of a contract for the sale of real property must establish not only that he was ready, willing, and able to close on the scheduled closing date, but also that the other party was in default.  Here, since there was never a time of the essence closing, nor even a future scheduled closing date, neither element is established. The cause of action is dismissed. 

141 Park Ave. Realties, Inc. v. 141 Park Ave. Holdings, LLC, NY Slip Op 02631 (2d Dep't May 17, 2023)

Here is the decision.

Breach of contract.

The plaintiff's' claim is dismissed because the complaint fails to allege, in nonconclusory language, the essential terms of the parties' purported contract, including the specific provisions upon which liability is predicated.

Unobagha v. Hilton Garden Inn Times Sq. N., NY Slip Op 02629 (1st Dep't May 16, 2023)

Here is the decision.

Service of process.

Service pursuant to CPLR 308(4) may be effected by affixing the summons to the door of either the actual place of business, dwelling place, or usual place of abode within the state of the person to be served and by either mailing the summons to such person at his last known residence or by mailing the summons by first class mail to the person to be served at his actual place of business. Ordinarily, a process server's affidavit of service constitutes prima facie evidence that the defendant was validly served. However, when the defendant submits a sworn denial of receipt of service containing specific facts to refute the statements in the affidavit, the prima facie showing is rebutted and the plaintiff must establish personal jurisdiction by a preponderance of the evidence at a hearing.

Aurora Loan Servs., LLC v. Simon, NY Slip Op 02485 (2d Dep't May 10, 2023)

Here is the decision.

Time-barred libel claims.

The complaint is time-barred insofar as it alleges statements made in June and July 2019. The statute of limitations for libel and slander runs from the date of publication, regardless of the fact that the libel may not have been discovered until later.  Plaintiff''s bare legal conclusion that the purported defamation continued into 2022 is insufficient to save the claims. Plaintiff's equitable estoppel argument fails, as he does not allege any subsequent and specific actions that kept him from timely bringing suit. In any event, even if plaintiff's claims were not time-barred, he fails to state a claim for defamation, as the complaint does not allege the exact words complained of or the time, place, and manner of the alleged defamation.

Biaggi v. O'Flynn, NY Slip Op 02584 (1st Dep't May 11, 2023)

Here is the decision.

A cause of action for negligent infliction of emotional distress.

The complaint must be premised upon the breach of a duty owed to the plaintiff which either unreasonably endangers the plaintiff's physical safety or causes the plaintiff to fear for his own safety. Here, the plaintiff seeks to hold the defendant vicariously liable its employee's conduct, and the complaint only alleges intentional conduct by the employee. Therefore, there is no basis for a cause of action sounding in negligence. The claim is dismissed.  

Aklipi v. American Med. Alert Corp., NY Slip Op 02483 (2d Dep't May 10, 2023)

Here is the decision.

Discovery motions.

Pursuant to 22 NYCRR 202.7(a)(2), a motion relating to discovery must be accompanied by an affirmation from moving counsel attesting that he has conferred with opposing counsel in a good faith effort to resolve the issues raised by the motion. The affirmation must specify the time, place, and nature of the conference, the issues discussed, and the result, or must state good cause why no such conference was held. Here, the affirmation referred to letter communications between the parties as well as conferences held with the Supreme Court, thereby evincing a diligent effort to resolve the dispute.

Adler v. Oxford Health Plans (NY), Inc., NY Slip Op 02482 (2d Dep't May 10, 2023)

Here is the decision.

Contract law.

As a general principle, only a non-party to a contract can be liable for tortious interference. At issue in the line of cases applying this principle is either a bilateral contract or a contract under which all defendants have the same obligations. The principle does not apply if the inducing party is subject to contractual duties that are different from those it allegedly encouraged another contracting party to breach. When breaching and inducing parties have different rights and duties, the plaintiff may plead tortious interference in order to make it whole.

Arena Invs., L.P. v. DCK Worldwide Holding Inc., NY Slip Op 02476 (1st Dep't May 9, 2023)

Here is the decision.

Settlement agreements.

The court found that the parties entered into a binding settlement agreement at the conclusion of mediation, the terms of which were embodied in an e-mail agreement. The e-mail correspondence is sufficient to embody a settlement agreement since it was authentic and sets forth all material terms. The settlement agreement specifically states that it is "subject to a formalized Settlement Agreement." In analyzing such language, courts must determine whether the parties have merely come to a preliminary agreement to agree, which is not enforceable, or a binding agreement, by determining whether there has been an explicit reservation that there would be no contract until the full formal document is completed and executed.

The parties' use of the phrase "subject to," standing alone, does not amount to an express reservation of the right not to be bound or a condition precedent to the formation of a binding contract. Instead,  the "subject to" language indicates the parties' expectation that they would come to a final agreement as a mere formality, not as a condition precedent to a binding settlement agreement. The parties' subsequent actions - including their correspondence with each other, their co-counsel, and the court - all indicate their respective understandings that the parties had come to a final settlement agreement resolving the related action in federal court.

Go N.Y. Tours, Inc. v. Tour Cent. Park Inc., NY Slip Op 02457 (1st Dep't May 9, 2023)

Here is the decision.

Vacating a default.

In order to vacate a default in appearing at a conference, the defaulting party must demonstrate both a reasonable excuse and a potentially meritorious cause of action or defense to the action. The determination of whether an excuse is reasonable lies within the sound discretion of the trial court. A court has discretion to accept law office failure as a reasonable excuse where the claim is supported by a detailed and credible explanation. However, law office failure should not be excused where the default results not from an isolated, inadvertent mistake, but from repeated neglect, or where the allegation of law office failure is vague, conclusory, and unsubstantiated.

Beach 28 RE, LLC v. Somra, N.Y. Slip Op 02295 (2d Dep't May 3 2023)

Here is the decision.

Disclosure of settlement agreements.

After a gas explosion, New York City and Con Ed, among other entities, were named as defendants in a number of actions. The City and Con Ed also asserted various claims against each other for property damage, indemnification, and contribution. At a court-ordered mediation, the City and Con Ed reached an agreement on the allocation of liability between them, and plaintiff seeks disclosure of their agreement.

When a nonsettling party seeks disclosure of the terms of a settlement agreement, the terms of the agreement must be material and necessary to the non-settling party's case.  After in camera review of the agreement, disclosure of its terms is prohibited. The agreement is not improper, as it does not demonstrate collusion or undermine the adversarial process because plaintiff may pursue discovery from both defendants.

Matter of Barrios v. Consolidated Edison Co. of N.Y., Inc., NY Slip Op 02378 (1st Dep't May 4, 2023)

Here is the decision.

Dismissed as abandoned.

CPLR 3215(c) provides that "[i]f the plaintiff fails to take proceedings for the entry of judgment within one year after the default, the court shall not enter judgment but shall dismiss the complaint as abandoned, without costs, upon its own initiative or on motion, unless sufficient cause is shown why the complaint should not be dismissed." The statutory language is strictly construed, as it is mandatory that the court dismiss such claims. Where an action is subject to a mandatory settlement conference, pursuant to CPLR 3408, the one-year deadline is tolled while settlement conferences are pending.

Bank of N.Y. Mellon v. Toscano, NY Slip Op 02294 (2d Dep't May 3, 2023)

Here is the decision.

Real property and liability.

Liability for a dangerous condition on real property must be predicated upon ownership, occupancy, control, or special use of the property, and any one of these elements gives rise to a duty of care. However, liability can also be imposed upon a party that creates a dangerous or defective condition.

Abramson v. Janowski's Hamburgers, Inc., NY Slip Op 02293 (2d Dep't May 3, 2023)

Here is the decision.

Equitable estoppel.

Equitable estoppel is an extraordinary remedy which applies where a party is prevented from filing an action within the statute of limitation due to his reasonable reliance on deception, fraud, or misrepresentations by the other party. Plaintiff has the burden of establishing that defendant engaged in affirmative misconduct that prevented it from timely asserting its claims. Here, the amended complaint alleges that defendant refused to negotiate towards resolution of the parties' dispute. However, there is no evidence or even an allegation that defendant lulled plaintiff into inaction in order to allow the limitations period to lapse.

MRE Tech. Solutions LLC v. Smiths Detection, Inc., NY Slip Op 02387 (1st Dep't May 4, 2023)

Here is the decision.

Amending a complaint.

Plaintiff is entitled to amend his complaint, pursuant to CPLR 3025(b), as the claims are not devoid of merit or palpably insufficient. Although the proposed amendment is verified only by counsel, the existence of the relevant contracts is within counsel's knowledge since the contracts are attached as exhibits.

Smith v. Founders Entertainment LLC, NY Slip Op 02291 (1st Dep't May 2, 2023)

Here is the decision.

Common-law indemnification.

Common-law indemnification is not available unless the petitioner has been held to be vicariously liable without proof of any negligence or actual supervision on its own part.

176 W. 87th St. Owners Corp. v. Guercio, NY Slip Op 02277 (1st Dep't May 2, 2023)

Here is the decision.

The continuing violation doctrine.

The doctrine does not apply to plaintiff's claims for disability discrimination under the New York State and New York City Human Rights Laws because the complaint does not allege facts comprising a single continuing pattern of unlawful conduct, but, instead, alleges discrete events, involving different actors.

Lasher v. New York City Dept. of Educ., NY Slip Op 02179 (1st Dep't April 27, 2023)

Here is the decision.

A petition to vacate an arbitration award.

The parties' arbitration agreement provided that judicial review of an award would be pursuant to the requirements of the Federal Arbitration Act, at 9 USC §§ 9, 10. The grounds for vacatur at 9 USC § 10(a) are analogous to those specified in CPLR 7511(b)(1). The award addressed each of petitioner's substantive claims and undermines petitioner's arguments that the award reflected a manifest disregard of the law. There is nothing in the record to support petitioner's allegations that the presentment of her case was prejudiced by the arbitrator's decisions regarding discovery and procedure. There is no evidence to support petitioner's claim that the arbitrator exceeded his powers in rendering the award, as the arbitrator enforced the rules and procedures in the arbitration agreement and answered the claims as framed by the parties. By participating in the arbitration, petitioner waived her claim that the arbitrator was biased, and, in any event, the claim is based on speculation that is unsupported by objective facts inconsistent with impartiality. The petition is denied.

Matter of Pezhman v. Bloomingdales, Inc., NY Slip Op 02196 (1st Dep't April 27, 2023)

Here is the decision.

Summary judgment in a premises liability action.

The defendant-movant has the initial burden of making a prima facie showing that it neither created the allegedly dangerous or defective condition nor had actual or constructive notice of it. The defendant also may establish its prima facie entitlement to judgment as a matter of law by submitting evidence that the plaintiff cannot identify the cause of his injury without engaging in speculation.

Bayer v. Savan Hospitality Corp., NY Slip Op 02096 (2d Dep't April 26, 2023)

Here is the decision.

Attorney-client privilege.

The fact that a privileged communication may contain information that is relevant to the issues being litigated does not, in and of itself, put the contents of the communication at issue, so as to constitute a waiver of the privilege.

Talos Capital Designated Activity Co. v. 257 Church Holdings LLC, NY Slip Op 02196 (1st Dep't April 27, 2023)

Here is the decision.

Successive motions.

Successive motions for summary judgment should not be entertained, absent a showing of newly discovered evidence or other sufficient cause. In order to be deemed newly discovered, the evidence that was not submitted in support of the previous motion must be used to establish facts that were not available to the movant at the time of the original submission and which could not have been established through alternative evidentiary means.

313 43rd St. Realty, LLC v. TMS Enters., LP, NY Slip Op 02094 (2d Dep't April 26, 2023)

Here is the decision.