Brinks BOQ.

Contract law.

Defendants' cross-motion for summary judgment is granted. Plaintiff's argument that the parties' letter agreement gave it an exclusive right to sell is unavailing. In order to create an exclusive right to sell, a contract must clearly and expressly provide that a commission is due upon sale by the owner or exclude the owner from independently negotiating a sale. Here, the agreement lacks express language excluding a direct conveyance by defendants, nor is that a necessary implication of its terms. The agreement's language requiring defendants to "inform" plaintiff if contacted about potential transactions is insufficient to create an exclusive right to sell. Moreover, plaintiff fails to show that the agreement's tail provision, entitling plaintiff to a fee for efforts at procuring a transaction during its engagement even if the transaction were completed only after the termination of that engagement, necessarily implied that the parties intended to create an exclusive right to sell.

Plaintiff's alternative argument that it procured the investment in the equity raise that occurred is also unavailing. Plaintiff fails to establish a direct and proximate link between its efforts and the consummated deal, as opposed to an indirect and remote link.

Cantor Fitzgerald & Co. v. ObvioHealth Pte Ltd., NY Slip Op 06421 (1st Dep't December 19, 2024)

Here is the decision.

Leave to renew.

A motion for leave to renew shall be based upon new facts not offered on the prior motion that would change the prior determination, and shall contain reasonable justification for the failure to present such facts on the prior motion, or shall demonstrate that there has been a change in the law that would change the prior determination, pursuant to CPLR 2221[e][2], [3]. A motion to renew is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation.

U.S. Bank, N.A. v. Cuencas, NY Slip Op 06373 (2d Dep't December 18, 2024)

Here is the decision.

Plaintiff's motion for leave to renew is granted. Since the plaintiff's prior motion for summary judgment had been denied without prejudice to renewal, plaintiff was not required to demonstrate a reasonable justification for its failure to submit sufficient evidence of the defendants' default on the prior motion.

Wells Fargo Bank, N.A. v. Coulstring, NY Slip Op 06374 (2d Dep't December 18, 2024)

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Appellate practice.

Having consented to the order at issue, the appellant is not an aggrieved party within the meaning of CPLR 5511. The order is not appealable.

Matter of Marquise T.S. v. Shantae R.R., NY Slip Op 06316 (1st Dep't December 17, 2024)

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Vacating a default.

A party seeking to vacate a default is required to demonstrate both a reasonable excuse for the default and a potentially meritorious defense. The determination of what constitutes a reasonable excuse lies within the sound discretion of the trial court. In making its determination, the court may excuse default resulting from law office failure, pursuant to CPLR 2005.

Selene Fin., L.P. v. Beltran, NY Slip Op 06230 (2d Dep't December 11, 2024)

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Notices of claim.

General Municipal Law § 50-e(7) provides that all applications for leave to serve a late notice of claim "shall be accompanied by a copy of the proposed notice of claim."  However, failure to submit a copy of the proposed notice is a technical defect that a court may overlook in its discretion, pursuant to CPLR 2001. 

S.A.N. v. New York City Hous. Auth., NY Slip Op 06317 (1st Dep't December 17, 2024)

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Statute of Limitations.

Under CPLR 203(d), claims and defenses that arise out of the same transaction as a claim asserted in the complaint are not barred by the Statute of Limitations, even though an independent action by defendant might have been time-barred at the time the action was commenced. Here, since both the plaintiff's claims and the defendant's counterclaims allege breaches of the employment agreements, the defendant's counterclaims arose from the same transactions and occurrences as the plaintiff's claims and, therefore, are timely.

R & G Brenner Income Tax Consultants v. Gilmartin, NY Slip Op 06229 (2d Dep't December 11, 2024)

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Judgments of foreclosure and sale.

Where a judgment of foreclosure and sale is reversed on appeal, the successful appellant may seek restitution of the real property lost by the judgment, pursuant to CPLR 5015[d] and 5523. However, where the real property was sold pursuant to the judgment of foreclosure and sale, and the title is held by a purchaser in good faith and for value, recovery is limited to the value of the real property. In the absence of a stay of the sale or an outstanding notice of pendency, title of the purchaser in good faith and for value is insulated from the effects of an appellate reversal.

Puretz v. Mae, NY Slip Op 06227 (2d Dep't December 11, 2024)

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Premises liability.

A property owner has a duty to maintain its premises in a reasonably safe condition, which may include the duty to warn of a dangerous condition. However, there is no duty to protect or warn against conditions that are open and obvious and not inherently dangerous. In moving for summary judgment in a slip-and-fall case, the defendant has the burden of establishing, prima facie, that it neither created the hazardous condition which caused the plaintiff's injury nor had actual or constructive notice of the condition, or, alternatively, that the condition was both open and obvious and not inherently dangerous. The issue of whether a condition is open and obvious and not inherently dangerous is case-specific, and usually is a question of fact for a jury. Whether a condition is open and obvious is relevant to a plaintiff's comparative fault, but does not negate liability. Similarly, whether a defendant has provided warnings of a dangerous condition is relevant to a plaintiff's comparative fault, but does not negate liability.

Naftaliyeva v. Shoprite of Avenue I, NY Slip Op 06207 (2d Dep't December 11, 2024)

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Relief from a judgment.

Pursuant to CPLR 5015(a)(1), a court may relieve a party from a judgment on the ground of excusable default, if a motion for that relief is made within one year after service of a copy of the judgment with written notice of entry. Even after expiration of the one-year limitations period set forth in CPLR 5015, a court may vacate its own judgment for sufficient reason and in the interest of substantial justice.

Deutsche Bank Natl. Trust Co. v. Vega, NY Slip Op 06025 (2d Dep't December 4, 2024)

Here is the decision.

Membership in a private association.

At issue here is a decision to temporarily revoke petitioner's general pediatrics certification. Whether a private association's determination of an individual's eligibility for membership is subject to judicial review is contingent upon a showing of economic necessity for membership and monopoly power over the profession. Here, petitioner failed to adequately allege either element. Accordingly, the petition does not sufficiently allege that respondent's determination temporarily revoking petitioner's certification constitutes state action. The cause of action alleging a violation of the right to due process is dismissed.

Matter of Wildfeuer v. American Bd. of Pediatrics, Inc., NY Slip Op 06144 (1st Dep't December 5, 2024)

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Notices of pendency.

Pursuant to CPLR 6501, the filing of a notice of pendency provides constructive notice of an action in which the judgment demanded may affect the title to real property. The statute further provides that a person whose conveyance is recorded after the filing of a notice of pendency is bound by all proceedings taken in the action after such filing to the same extent as if he were a party.

Bank of Am, , N.A. v. Burton, NY Slip Op 06022 (2d Dep't December 4, 2024)

Here is the decision.

Intervention.

Pursuant to CPLR 1012(a)(3), "[u]pon timely motion, any person shall be permitted to intervene in any action . . . when the action involves the disposition or distribution of, or the title or a claim for damages for injury to, property and the person may be affected adversely by the judgment." Additionally, the court, in its discretion, may permit a person to intervene when the person's claim or defense and the main action have a common question of law or fact. Whether intervention is sought as a matter of right under CPLR 1012(a), or as a matter of discretion under CPLR 1013, is of little practical significance, since intervention should be permitted where the intervenor has a real and substantial interest in the outcome of the proceedings.

Al-Rowmeim v. Alazwear, NY Slip Op 06020 (2d Dep't December 4, 2024)

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Failure to move for leave to intervene constitutes a waiver of any right to participate in the litigation.

Bank of Am., N.A. v. Burton, NY Slip Op 06022 (2d Dep't December 4, 2024)

Here is the decision.

Contract law.

Defendant demonstrated that money damages are barred by a provision of the parties' commercial lease, which limits plaintiffs' damages, if any, to specific performance, injunction, or declaratory relief. Plaintiff's argument that the provision is unenforceable as against public policy is unavailing. The complaint does not allege that defendant engaged in misconduct that would constitute a willful, bad-faith breach of the lease rendering the provision unenforceable. Instead, the complaint alleges that defendant declined to reopen its business after New York State's COVID-19 in-person dining restrictions were lifted. This decision does not constitute intentional wrongdoing unrelated to any legitimate economic self-interest which would be required to find the provision unenforceable.

2M Hospitality Group, LLC v. Sahara Plaza, LLC, NY Slip Op 06003 (1st Dep't December 3, 2024)

Here is the decision.

Liability for sidewalk defects.

Administrative Code of the City of New York § 7-210, which became effective September 14, 2003, shifted tort liability for injuries arising from a defective sidewalk from the City of New York to the abutting property owner. Administrative Code § 7-210(a) imposes a duty upon owners to maintain the sidewalk abutting their property in a reasonably safe condition. On a motion for summary judgment, a defendant property owner is required to do more than simply demonstrate that the alleged defect was on another landowner's property. The property owner must establish that it maintained the portion of the sidewalk abutting its own property in a reasonably safe condition or that any failure to do so was not a proximate cause of the plaintiff's injuries.

Santiago v. 527 Grand, LLC, NY Slip Op 05999 (2d Dep't November 27, 2024)

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Discovery.

Pursuant to CPLR 3101(a), "[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action." The words "material and necessary" must be interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity. However, a party is not entitled to unlimited, uncontrolled, and unfettered disclosure. The essential test is usefulness and reason. It is incumbent on the party seeking disclosure to demonstrate that the method of discovery sought will result in the disclosure of relevant evidence or is reasonably calculated to lead to the discovery of information bearing on the claims. Unsubstantiated bare allegations of relevancy are insufficient to establish the factual predicate regarding relevancy. The supervision of discovery, and the setting of reasonable terms and conditions for disclosure, are matters within the sound discretion of the trial court.

Smith-Percival v. MTA Bus Co., NY Slip Op 06000 (2d Dep't November 27, 2024)

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The Dead Man's Statute.

Pursuant to CPLR 4519, "[u]pon the trial of an action . . . , a party or a person interested in the event . . . shall not be examined as a witness in his own behalf or interest . . . against the executor, administrator or survivor of a deceased person or the committee of a person with a mental illness . . . concerning a personal transaction or communication between the witness and the deceased person or person with a mental illness, except where the executor, administrator, survivor, committee or person so deriving title or interest is examined in his own behalf, or the testimony of the person with a mental illness or deceased person is given in evidence, concerning the same transaction or communication." Generally, evidence that would be inadmissible at trial under the Dead Man's Statute may not be relied upon to establish a prima facie entitlement to judgment as a matter of law.

As parties to this medical malpractice action, the two individual defendants are thereby interested in the outcome of this action. Consequently, their deposition testimony and affidavits that were largely based on their communications with the decedent could not be considered as evidence in support of the defendants' motion for summary judgment. However, the deposition testimony of the registered nurse, who rendered certain care and spoke to the decedent, was admissible, as the nurse is not an interested party within the meaning of the Dead Man's Statute.

Weber v. Sharma, NY Slip Op 06001 (2d Dep't November 27, 2024)

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December 7, 1941

An action to foreclose a mortgage.

An action to foreclose a mortgage is subject to a six-year statute of limitations, pursuant to CPLR 213[4]. Even if the mortgage is payable in installments, once a noteholder elects to accelerate the debt, the entire amount is due and the statute of limitations begins to run on the entire deb. In order to be valid, an election to accelerate must be made by an unequivocal overt act that discloses the noteholder's choice, such as the filing of a verified complaint seeking foreclosure and containing a sworn statement that the noteholder is demanding repayment of the entire outstanding debt. Here, the fact that the decedent died prior to commencement of the foreclosure action did not revoke or invalidate, or otherwise destroy, the express invocation of the contractual election to accelerate the debt.

Wilmington Sav. Fund Socy., FSB v. Burgress, NY Slip Op 06002 (2d Dep't November 27, 2024)

Here is the decision.

The admissibility of expert opinions.

Defendants' motion to exclude the opinions by plaintiffs' general causation experts is granted, as plaintiffs failed to sustain their burden of showing that their experts' theory of causation is generally accepted in the relevant scientific community.

Wholey v. Amgen, Inc., NY Slip Op 05910 (1st Dep't November 26, 2024)

Here is the decision.

Defamation.

The elements of a cause of action for defamation are: (1) a false statement that tends to expose a person to public contempt, hatred, ridicule, aversion, or disgrace, (2) published to a third party without privilege or authorization, (3) amounting to fault as judged by a negligence standard, and (4) either causing special harm or constituting defamation per se. CPLR 3016(a) provides that, "[i]n an action for libel or slander, the particular words complained of shall be set forth in the complaint."  Compliance with CPLR 3016(a) is strictly enforced.

Since falsity is a necessary element of a defamation cause of action and only facts are capable of being proven false, it follows that only statements alleging facts can properly be the subject of a defamation action. Accordingly, an expression of pure opinion is not actionable, no matter how vituperative or unreasonable it may be. In distinguishing between statements of fact and those of pure opinion, it is necessary to consider the writing as a whole, including its tone and apparent purpose, as well as the overall context of the publication, to determine whether the reasonable reader would have believed that the challenged statements were conveying facts about the plaintiff.

Tsamasiros v. Jones, NY Slip Op 05814 (2d Dep't November 20, 2024)

Here is the decision.

Medical malpractice and punitive damages.

Punitive damages are recoverable in a medical malpractice action only where the defendant's conduct evinces a high degree of moral culpability or willful or wanton negligence or recklessness. The plaintiff may recover punitive damages for a medical professional's act of altering or destroying medical records in an effort to evade potential medical malpractice liability.

Woehrle v. Buono, NY Slip Op 05815 (2d Dep''t November 20, 2024)

Here is the decision.

Appellate practice.

The trial transcript is a necessary element of an appellate record, pursuant to CPLR 5526. Here, defendant's failure to include the trial transcript in the record on appeal requires dismissal of the appeal.

Lewis v. Thomas, NY Slip Op 05832 (1st Dep't November 21, 2024)

Here is the decision.

Change of venue.

The Appellate Division affirmed the denial of defendants' motion to change venue from New York County to Onondaga County, based upon plaintiff's showing of compelling circumstances sufficient to override the mandate of CPLR 504, while citing CPLR 510[3]. Plaintiff provided evidence that travel to Onondaga County would be a hardship for him and his witness, his treating psychiatrist, based on his limited financial means and the adverse effect it would have on his mental health.

Hicks v. City of Syracuse, NY Slip Op 05831 (1st Dep't November 21, 2024)

Here is the decision.