A party who seeks to appeal a sua sponte order should first move to vacate the order in order to create a suitable appellate record and afford counsel the opportunity to be heard on the issues, pursuant to CPLR 5701[a][3].
Klein v. New York City Tr. Auth., NY Slip Op 04147 (1st Dep't July 10, 2025)
Equitable estoppel precludes a defendant from using the statute of limitations as a defense where it is the defendant's affirmative wrongdoing which produced the long delay between the accrual of the cause of action and the institution of the legal proceeding. Invoking the doctrine of equitable estoppel requires a showing that the defendant's actions prevented timely commencement of the suit
Robinson v. Jamaica Hosp. Med. Ctr., NY Slip Op 04030 (2d Dep't July 2, 2025)
Plaintiff's motion to restore the action to the active calendar is granted. The action was never formally dismissed, as no order was issued directing dismissal of the action under 22 NYCRR 202.27. Accordingly, restoring a case marked inactive is automatic, and plaintiff was not required to establish a reasonable excuse for failing to appear at the status conference.
Simon v. Bryski, NY Slip Op 04033 (2d Dep't July 2, 2025)
An action to foreclose a mortgage is subject to a six-year statute of limitations. When a mortgage is payable in installments, which is the typical practice, an acceleration of the entire amount due begins the running of the statute of limitation on the entire debt. One of the ways to accelerate a mortgage debt is through commencement of a foreclosure action in which the verified complaint includes an election to exercise the mortgagor's contractual right to accelerate under the terms of the note and mortgage. The fact of election should not be confused with the notice of the election. While the act evincing the noteholder's election must be sufficient to constitute notice to all third parties of such a choice, a borrower's lack of actual notice does not, as a matter of law, destroy the effect of the election. Put another way, the point at which a borrower has actual notice of an election to accelerate is not the operative event for purposes of determining when the statute of limitations begins to run. The dispositive question is whether the contractual election was effectively invoked.
Wilmington Sav. Fund Socy., FSB v. Avenue Basin Mgt., Inc., NY Slip Op 04039 (2d Dep't July 2, 2025)
Only a trustee, as opposed to the trust, may file suit.
J. Carey Smith 2019 Irrevocable Trust v. 11 W. 12 Realty, LLC, NY Slip Op 04045 (1st Dep't July 3, 2025)
A motion to dismiss based on documentary evidence pursuant to CPLR 3211(a)(1) may be granted only where the documentary evidence utterly refutes the plaintiff's factual allegations, resolves all factual issues as a matter of law, and conclusively disposes of the claims at issue. In order to be credited, the evidence submitted in support of a CPLR 3211(a)(1) motion must be unambiguous, authentic, and undeniable.
Arkin, Simon & Simon Partnership v. Rockaway Crossing, LLC, NY Slip Op 03990 (2d Dep't July 2, 2025)
The court will not intervene where there is an arbitration clause in which the parties agree to rules under which the arbitrator decides arbitrability.
Ghatak v. McKinsey & Co., NY Slip Op 04044 (1st Dep't July 3, 2025)
Expert witnesses may not opine as to the parties' legal obligations under a contract; that is an issue for the trial court to decide.
Ametek, Inc. v. Goldfarb, NY Slip Op 03966 (1st Dep't July 1, 2025)
Pursuant to CPLR 2101(f), "[t]he party on whom a paper is served shall be deemed to have waived objection to any defect in form unless, within fifteen days after the receipt thereof, the party on whom the paper is served returns the paper to the party serving it with a statement of particular objections."
Globalized Realty Group, LLC v. Crossroad Realty NY, LLC, NY Slip Op 03797 (2d Dep't June 25, 2025)
A judgment from a non-jury trial should be set aside only where it is not supported by any fair interpretation of the evidence.
American Infertility of N.Y., P.C. v. Kushnir, NY Slip Op 03858 (1st Dep't June 26, 2025)
In order to prevail on a cause of action for specific performance of a contract for the sale of real property, a plaintiff-purchaser must establish that it substantially performed its contractual obligations and was ready, willing, and able to perform its remaining obligations, that the vendor was able to convey the property, and that there was no adequate remedy at law. The plaintiff-purchaser must submit evidence of the financial ability to purchase the property in order to satisfy the ready-willing-able element. Where the contract does not make time of the essence, the law permits a reasonable time in which to tender performance, regardless of whether the contract designates a specific date for performance.
Guzman v. Ramos, NY Slip Op 03798 (2d Dep't June 25, 2025)
A motion for leave to renew is the appropriate vehicle for seeking relief from a prior order based on a change in the law. A clarification of existing law may constitute a change in law for purposes of a motion for leave to renew.
HSBC Bank USA, N.A. v. Ishmail, NY Slip Op 03799 (2d Dep't June 25, 2025)
The elements of a cause of action alleging defamation are (a) a false statement that tends to expose a person to public contempt, hatred, ridicule, aversion, or disgrace, (b) published without privilege or authorization to a third party, (c) amounting to fault as judged by, at a minimum, a negligence standard, and (d) either causing special harm or constituting defamation per se. 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.
Moonbeam Gateway Mar., LLC v. Tai Chan, NY Slip Op 03802 (2d Dep't June 25, 2025)
Even where a motion for reargument is untimely under CPLR 2221(d)(3), a court has discretion to reconsider its prior ruling.
JPMorgan Chase Bank, N.A. v. Stern, NY Slip Op 03800 (2d Dep't June 25, 2025)
A temporary restraining order will not issue where the alleged injury is fully compensable in money damages.
Arena Ltd. SPV, LLC v. Chalets, LLC, NY Slip Op 03759 (1st Dep't June 24, 2025)
The right to contractual indemnification depends upon the specific language of the contract.
Collado v. Port Auth. of N.Y. & N.J. (2d Dep't June 18, 2025)
The law of the case doctrine applies only to legal determinations that were necessarily resolved on the merits in a prior decision and to the same questions presented in the same case.
Deutsche Bank Nat'l Trust Co. v. Bruno, NY Slip Op 03706 (2d Dep't June 18, 2025)
A simple breach of contract may not be considered a tort absent the violation of a legal duty independent of the contract itself. Where the alleged damages were clearly within the contemplation of the written agreement, merely charging a breach of a duty of due care, employing the language of tort law, does not transform a simple breach of contract into a tort claim.
E.W. Howell Co., LLC v. Control Point Assoc., Inc., NY Slip 03708 (2d Dep't June 18, 2025)
As a general rule, banks do not owe non-customers a duty to protect them from the intentional torts of their customers.
JPMorgan Chase Bank, N.A. v. Canova, NY Slip Op 03719 (2d Dep't June 18, 2025)
The general rule is that a corporation which acquires the assets of another is not liable for the torts of its predecessor. An exception to the rule is the de facto merger doctrine in which the corporation is shorn of its assets and becomes, in essence, a shell. Legal dissolution is not necessary in order to invoke the doctrine.
One River Run Acquisition, LLC v. Milde, NY Slip Op 03653 (1st Dep't June 17, 2025)
In a negligence action, a plaintiff moving for summary judgment on the issue of liability must establish, prima facie, that the defendant breached a duty owed to the plaintiff and that the defendant's negligence was a proximate cause of the alleged injuries. The plaintiff does not have the burden of establishing the absence of his own comparative negligence. However, the issue of the plaintiff's comparative negligence may be decided on summary judgment where the plaintiff seeks dismissal of an affirmative defense alleging comparative negligence.
Jean-Pierre v. Wang Chiang Ho, NY Slip Op 03709 (2d Dep't June 18, 2025)
The report of a referee should be confirmed whenever the findings are substantially supported by the record and the referee has clearly defined the issues and resolved matters of credibility. The referee's findings and recommendations are advisory only and have no binding effect on the court, which remains the ultimate arbiter of the dispute.
Wilmington Sav. Fund Socy., FSB. v. Blick, NY Slip Op 03601 (2d Dep't June 11, 2025)
The motion to dismiss the complaint as abandoned under CPLR 3215(c) is untimely when it is made after the entry of a judgment of foreclosure and sale.
HSBC Bank USA v. Amponsah, NY Slip Op 03631 (1st Dep't June 12, 2025)
Absent a showing of fraud, collusion, or a malicious or tortious act, an attorney is not liable to third parties for purported injuries caused by services performed on behalf of a client or advice offered to that client.
Garanin v. Hiatt, NY Slip Op 03555 (2d Dep't June 11, 2025)
Unjust enrichment is a quasi-contract claim that does not lie where there is an actual agreement between the parties.
Ceratosaurus Invs., LLC v. B2C Alternative Equity, LLC, NY Slip Op 03630 (1st Dep't June 12, 2025)
An action to foreclose a mortgage is governed by a six-year statute of limitations, pursuant to CPLR 213[4]. Here, the mortgage debt was accelerated and the statute of limitations began to run when the prior foreclosure action was commenced and the entire amount secured by the mortgage was called due. Pursuant to CPLR 3217(e), the voluntary discontinuance of the prior action did not serve to revive or reset the statute of limitations.
Deutsche Bank Natl. Trust Co. v. Williams, NY Slip Op 03552 (2d Dep't June 11, 2025)
Where an appeal is perfected by the appendix method, the appendix must contain all the relevant portions of the record in order to enable the court to render an informed decision on the merits of the appeal, pursuant to CPLR 5528[a][5] and 22 NYCRR 1250.7[d][1]. Here, the appendix does not include the complete transcript of the hearing held before the Supreme Court. The appeal is dismissed.
Connolly v. Nina, NY Slip Op 03551 (2d Dep't June 11, 2025)
It is well settled, as a matter of law, that the MTA's functions regarding public transportation are limited to financing and planning, and do not include the operation, maintenance, and control of any facility. The MTA is not vicariously liable for the torts of its subsidiaries such as MTA Bus Company. The MTA and its subsidiaries are not responsible for each other's torts, and they must be sued separately.
Chen v. Metropolitan Tr. Auth., NY Slip Op 03301 (2d Dep't June 4, 2025)
An express grant of easement is not extinguished merely because the necessity for the easement ceases, or through mere non-use. Once an easement is created by grant, it can be extinguished only by abandonment, conveyance, condemnation, or adverse possession. In order to prove abandonment, there must be both the intention to abandon and also some overt act or failure to act which implies that the owner neither claims nor retains any interest in the easement. The acts relied upon must be unequivocal, and must clearly demonstrate the owner's intention to permanently relinquish all rights to the easement.
Carp v. Shapiro, NY Slip Op 03300 (2d Dep't June 4, 2025)
Clear, complete, and unambiguous contractual terms are to be enforced according to their plain meaning. A determination of unconscionability requires a showing that the contract, when made, was both procedurally and substantively unconscionable. Equity will not relieve a party of its obligations under a contract merely because subsequently, with the benefit of hindsight, it appears to have been a bad bargain.
McCann v. Ship Wrecked Bar & Grill, Inc., NY Slip Op 03388 (1st Dep't June 5, 2025)
Generally, the death of a party divests a court of jurisdiction to act, and automatically stays proceedings in the action pending the substitution of a personal representative for the decedent. However, where a party's death does not affect the merits of a case, there is no need for strict adherence to the requirement that the proceedings be stayed pending substitution.
Bethpage Fed. Credit Union v. Hughes, NY Slip Op 03298 (2d Dep't June 4, 2025)
Under CPLR 4319, a referee's decision on a reference to hear and determine "shall stand as the decision of a court."
Real World Holdings, LLC v. 393 W. Broadway Corp., NY Slip Op 03394 (1st Dep't June 5, 2025)
Once the plaintiff served the amended complaint, the original complaint was superseded, and the amended complaint became the only complaint in the action. The court must proceed as though the original pleading had never been served.
Zaiger, LLC v. Bucher Law, PLLC, NY Slip Op 03268 (1st Dep't May 28, 2025)
A plaintiff alleging discrimination under the New York State Human Rights Law must establish: (1) membership in a protected class; (2) qualification to hold the position; (3) an adverse employment action; and (4) that the adverse action occurred under circumstances giving rise to an inference of discrimination. A plaintiff may raise such an inference by showing less favorable treatment by comparison to similarly situated employees outside the protected group. The "similarly situated" standard does not require identical circumstances, but the circumstances must be similar in significant respects.
Castro v. City Univ. of N.Y., NY Slip Op 03175 (2d Dep't May 28, 2025)
A motion for summary judgment may not be made before issue is joined and the requirement is strictly adhered to.
Brooklyn Bound Realty Corp. v. Charles, NY Slip Op 03174 (2d Dep't May 28, 2025)
Under CPLR 3211(a)(1), a dismissal is warranted only if the documentary evidence utterly refutes plaintiff's factual allegations, conclusively establishing a defense as a matter of law. Affidavits, emails, and letters are not considered documentary evidence within the meaning of CPLR 3211(a)(1).
Bernstein v. Jacobson, NY Slip Op 03173 (2d Dep't May 28, 2025)
The single motion rule does not bar a defendant from moving to dismiss the new claim asserted in the amended complaint.
Zaiger, LLC v. Bucher Law, PLLC, NY Slip Op 03268 (1st Dep't May 29, 2025)
Any purported error in the service of the amended pleading upon was not jurisdictional in nature and, in the absence of any apparent prejudice to the defendant, can and should be ignored by the court, pursuant to CPLR 3012[a].
399 Broadway Holdings, LLC v. Das, NY Slip Op 03172 (2d Dep't May 28, 2025)
An action to foreclose a mortgage is governed by a six-year statute of limitations, pursuant to CPLR 213[4]. Even if a mortgage is payable in installments, once a mortgage debt is accelerated, the entire amount is due and the statute of limitations begins to run on the entire debt. Acceleration occurs by the commencement of a foreclosure action wherein the holder of the note elects in the complaint to call due the entire amount secured by the mortgage.
Deutsche Bank Nat'l Trust Co. v. Sylvestre, NY Slip Op 03039 (2d Dep't May 21, 2025)
Expectation damages is the general measure of damages in a breach of contract case under New York law.
Telefonico S.A. v. Millicom Intl. Cellular S.A., NY Slip Op 03153 (1st Dep't May 22, 2025)
A defendant seeking to vacate a default and to compel the plaintiff to accept an untimely answer must show both a reasonable excuse for the default and the existence of a potentially meritorious defense. The determination of what constitutes a reasonable excuse lies within the trial court's discretion.
Here, service was made by delivering copies of the summons and complaint to the Secretary of State, and evidence in admissible form from the defendant's affidavit established that the default was caused by the Secretary of State's delay in forwarding the copies of the summons and complaint to the defendants. The Secretary of State's delay in forwarding the papers is a reasonable excuse for the default.
BJ Integra Affordable, LLC v. Vanmew,Hous. Dev. Fund Corp., NY Slip Op 03035 (2d Dep't May 21, 2025)
Parties must plead all matters which if not pleaded would take the adverse party by surprise or would raise an issue of fact not appearing on the face of a prior pleading, pursuant to CPLR 3018[b]. The failure to plead a defense that must be pleaded affirmatively under CPLR 3018(b) is a waiver of that defense. However, an unpleaded defense may serve as the basis for granting summary judgment in the absence of surprise or prejudice to the opposing party. The burden of demonstrating prejudice or surprise is on the party opposing the motion.
Babakhanov v Diaz Austin Assoc., L.P., NY Slip Op 03032 (2d Dep't May 21, 2025)
CPLR 212(a) provides that "[a]n action to recover real property or its possession cannot be commenced unless the plaintiff, or his predecessor in interest, was seized or possessed of the premises within ten years before the commencement of the action." However, CPLR 212 (a) must be read together with RPAPL 311, which provides that "the person who establishes a legal title to the premises is presumed to have been possessed thereof within the time required by law; and the occupation of the premises by another person is deemed to have been under and in subordination to the legal title unless the premises have been held and possessed adversely to the legal title for ten years before the commencement of the action."
Canty v. Burns, NY Slip Op 02903 (2d Dep't May 14, 2025)
A party is precluded from moving to vacate a default on grounds asserted in a prior motion to vacate that had been previously denied in an order from which that party took no appeal or on grounds that were apparent at the time that the party made the prior motion but were not asserted therein.
Bank of Am., N.A. v. Farkas, NY Slip Op 02900 (2d Dep't May 14, 2025)
Under CPLR 3211(a)(1), dismissal is warranted only if the documentary evidence utterly refutes the plaintiff's factual allegations, conclusively establishing a defense as a matter of law. In order to be considered documentary, the evidence must be unambiguous and of undisputed authenticity, that is, it must be essentially unassailable. Judicial records, as well as documents reflecting out-of-court transactions such as mortgages, deeds, contracts, and any other papers, the contents of which are essentially undeniable, qualify as documentary evidence. However, affidavits and letters are not documentary evidence.
On a motion pursuant to CPLR 3211(a)(7), the court must liberally construe the complaint, accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit of every favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory. The motion must be denied unless it has been shown that a material fact as claimed by the pleader to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it.
Atlasman v. Korol, NY Slip Op 02898 (2d Dep't May 14, 2025)
A court will not exercise jurisdiction in equity where there is an adequate remedy at law.
Aerogen, LLC v. Tapjets Holdings, Inc., NY Slip Op 02990 (1st Dep't May 15, 2025)
Leave to amend a pleading under CPLR 3025(b) should be freely granted unless the proposed amendment would unfairly prejudice or surprise the opposing party, or is palpably insufficient or patently devoid of merit. A determination whether to grant leave is within the Supreme Court's broad discretion, and the exercise of that discretion will not be lightly disturbed on appeal. In exercising its discretion, the court should consider how long the party seeking the amendment was aware of the facts upon which the motion is predicated and whether there is a reasonable excuse for the delay.
Askari v. McDermott, Will & Emery, LLP, NY Slip Op 02897 (2d Dep't May 14, 2025)
The parties do not have to wait until the summary judgment stage for a court to interpret a contract as courts routinely interpret contracts on CPLR 3211(a)(7) motions.
South32 Chile Copper Holdings Pty Ltd v. Sumitomo Metal Min. Co., Ltd., NY Slip Op 02892 (1st Dep't May 13, 2025)
Where the original lease includes an option to renew, the tenant's exercise of it does not create a new lease; rather, it is a prolongation of the original agreement for a further period.
3604 Jerome, LLC v. NYC Health & Hosps. Corp., NY Slip Op 02864 (1st Dep't May 13, 2025)
Liability for a dangerous condition on real property must be predicated on ownership, occupancy, control, or special use of the property, any one of which is sufficient to give rise to a duty of care. In the absence of one of these predicates, a party cannot be held liable for injuries caused by the dangerous or defective condition of the property.
Annabi v. BJ's Wholesale Club, Inc., NY Slip Op 02751 (2d Dep't May 7, 2025)
Plaintiff established prima facie that the parties' settlement agreement constituted an instrument for the payment of money only and that defendants defaulted by failing to make payment under its terms, pursuant to CPLR 3213. On its motion, plaintiff submitted the settlement agreement, the amount due, and an affirmation of its general counsel, who swore to the loan history under penalty of perjury and stated that he was familiar with the facts through his "review of the records and documents kept in the file maintained by [plaintiff] with respect to this matter." The settlement agreement, which was signed by plaintiff and defendants, provided that defendants owed $7,900,000 as of October 12, 2012; that the maturity date was October 12th, 2017, the fifth anniversary date of the settlement agreement; that the interest rate was 0% a year for the first 18 months and then 5% a year thereafter, without compounding interest; and that upon default, interest was to accrue at the rate of 12% per annum.
In opposition, defendants failed to raise a triable issue as to a defense to the instrument. In light of defendants' express waiver of defenses in the loan agreement and their acknowledgement that their repayment obligation was unconditional, their potential counterclaims and affirmative defenses did not preclude CPLR 3213 relief. In addition, the settlement agreement specifies that default interest accrues on default and that payment is due on demand. The settlement agreement does not require that notice of demand be sent to the borrower.
LFR Collections, LLC. v. Tammy Tran Attorneys at Law, L.P., NY Slip Op 02852 (1st Dep't May 8, 2025)
A lack of certainty as to exactly what preceded plaintiff's fall does not raise an issue of fact so as to preclude summary judgment.
Begonja v. Hudson Riv. Park Trust, NY Slip Op 02841 (1st Dep't May 8, 2025)
Necessary parties are those "who ought to be parties if complete relief is to be accorded between the persons who are parties to the action or who might be inequitably affected by a judgment in the action," pursuant to CPLR 1001[a].
Matter of Wohl v. Bruen, NY Slip Op 02861 (2d Dep't May 9, 2025)
A party seeking to vacate an order entered upon a default in opposing a motion must submit evidence in admissible form establishing both a reasonable excuse for the default and a potentially meritorious opposition to the motion. A court has discretion to accept law office failure as a reasonable excuse where the claim is supported by a detailed and credible explanation of the default. Vague, conclusory, and unsubstantiated allegations of law office failure are insufficient.
Agostinacchio v. Jofaz Transp., Inc., NY Slip Op 02750 (2d Dep't May 7, 2025)
After entry of a final judgment, a motion for leave to renew pursuant to CPLR 2221(e)(2) based upon a change in the law that would change the prior determination must be made before the time to appeal the final judgment has expired, absent circumstances set forth in CPLR 5015.
Wells Fargo Bank, N.A. v. Eliacin, NY Slip Op 02621 (2d Dep't April 30, 2025)
A claim for breach of the implied covenant of good faith and fair dealing may not be used as a substitute for a non-viable contract claim.
Embarq, L.L.C. v. Bank of N.Y. Mellon Trust Co., N.A., NY Slip Op 02643 (1st Dep't May 1, 2025)
On a failure to warn claim, the defendant may establish its prima facie entitlement to summary judgment by demonstrating that any allegedly inadequate warnings were not a proximate cause of the plaintiff's injuries, that is., that additional or different warnings would not have deterred the plaintiff's misuse of the product. The defendant may meet its burden with testimony establishing that the plaintiff did not read the instructions or the owner's manual.
Ardi v. Miller, NY Slip Op 02641 (1st Dep't May 1, 2025)
Under the doctrine of judicial estoppel, a party who has assumed a certain position in a prior legal proceeding and secured a judgment that endorses the position is precluded from taking a contrary position in another legal proceeding simply because the party's interests have changed.
Wilmington Trust, N.A. v. Kamal, NY Slip Op 02622 (2d Dep't April 30, 2025)
The enumerated categories for vacatur of a judgment pursuant to CPLR 5015(a) are not exhaustive, and courts have the common-law power to grant relief from a judgment in the interest of justice.
Matter of Anderson Ave. Assoc., L.P. v. Fuller, NY Slip Op 02640 (1st Dep't May 1, 2025)
After the first action was dismissed for plaintiff's lack of capacity to sue, CPLR 205(a) provided a six-month extension of time to commence an action by a proper party. The motion to dismiss the complaint as untimely is denied.
Zak v. Bronx Park Phase I Preserv., LLC, NY Slip Op 02561 (1st Dep't April 29, 2025)
A vehicle operator with the right-of-way may anticipate that other operators will yield, in compliance with the Vehicle and Traffic Law. However, drivers with the right-of-way may be found to have proximately caused the accident if they did not use reasonable care to avoid it.
Bender v. East End Bus Lines, Inc., NY Slip Op 02305 (2d Dep't April 23, 2025)
Undoing an award on the ground that the arbitrator exceeded his power requires a finding that the award violates public policy, is irrational, or clearly exceeds a specifically enumerated limitation on the arbitrator's power, pursuant to CPLR 7511[b].
Pincus v. Motulsky, NY Slip Op 02425 (1st Dep't April 24, 2025)
The Supreme Court properly denied the defendant's cross-motion for leave to renew her opposition to those branches of the plaintiff's prior motion which were for summary judgment on the complaint insofar as asserted against her and for an order of reference, since the defendant failed to demonstrate that there had been a change in the law that would have altered the prior determination, pursuant to CPLR 2221[e].
Bank of Am. N.A. v. Bente, NY Slip Op 02304 (2d Dep't April 23, 2025)
The mere commencement of an action is not an abuse of process.
Sharp v. Bar Fluid, LLC, NY Slip Op 02429 (1st Dep't April 24, 2025)
After the note of issue is filed, further discovery will be permitted if the defendant demonstrates unusual or unanticipated circumstances subsequent to the filing, pursuant to 22 NYCRR 202.21[d].
Armor v. 501 EMR, LLC, NY Slip Op 02302 (2d Dep't April 23, 2025)
A contract is to be construed in accordance with the parties' intent, which is discerned from the four corners of the document itself. Consequently, a written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms.
Albert v. Afanador, NY Slip Op 02301 (2d Dep't April 23, 2025)
Plaintiff was not entitled to a default judgment, as it failed to take any action for entry of the judgment within one year after default, as required by CPLR 3215(c).
371-381 PAS Assoc., LLC v. Moss & Moss LLP, NY Slip Op 02295 (1st Dep't April 22, 2025)
Defendant's affidavit denying notice of the defect that allegedly caused plaintiff's injury shows a meritorious defense as to the motion to vacate the default judgment, given the preference for determining actions on the merits.
Corley v. 337 W. 138 St. Holdings, LLC, NY Slip Op 02298 (1st Dep't April 22, 2025)
The affidavit of plaintiff's process server demonstrates, prima facie, that service was properly made on defendant, pursuant to CPLR 308(2), by leaving a copy of the summons and complaint with a person of suitable age and discretion at defendant's residence and then mailing a copy to defendant at the same address. Nelson's mere denial of receipt of service is insufficient to rebut the presumption of proper service created by the properly executed affidavit of service.
Thompson v. Nelson, NY Slip Op 02284 (1st Dep't April 17, 2025)
Plaintiff failed to demonstrate, by a preponderance of the evidence, proper service of the summons and complaint on defendant. At the traverse hearing, plaintiff's process server submitted the affidavit of service and testified that he served defendant by leaving the summons and complaint with defendant's relative at defendant's apartment. Defendant testified that he did not receive process at his residence, as he was at work on the day of the purported service and there was noone in his apartment to receive process at that time. In any event, he would not have allowed the process server into the building through the intercom system.
The court properly identified several reasons to undermine the process server's credibility and to accept defendant's testimony. It was shown that the process server was sanctioned on numerous occasions, and that he admitted to giving false testimony under oath at a prior traverse hearing. The court also properly found that the process server did not prepare affidavits of service with the necessary care and specificity, and that the recipient's physical characteristics, as reflected in the affidavit of service, did not meet defendant's physical description. Based on the foregoing, the court properly credited defendant's testimony and there is no basis to disturb the court's credibility determinations at the traverse hearing, which are entitled to deference.
Bertotti v. Lief, NY Slip Op 02271 (1st Dep't April 17, 2025)
Lack of personal jurisdiction is an affirmative defense that is waived by appearing in an action, either formally or informally, without raising the defense in an answer or pre-answer motion to dismiss. A defendant's participation in a lawsuit on the merits indicates an intention to submit to the court's jurisdiction.
Matter of Weiss v. County of Suffolk, NY Slip Op 02210 (2d Dep't April 16, 2025)
A party in breach of its own contractual obligations is not entitled to specific performance on the agreement.
Jawara v. Araka, NY Slip Op 02130 (1ast Dep't April 10, 2025)
Since a motion for summary judgment must be addressed to specific causes of action or defenses, the court may search the record and award summary judgment for a nonmoving party only as to a cause of action or issue that is the subject of the motion before the court, pursuant to CPLR 3212(b). Apart from considerations of simple fairness, allowing a summary judgment motion by any party to bring up for review every claim and defense asserted by every other party would be tantamount to shifting the well-accepted burden of proof on summary judgment motions.
Gordillo-Jiminez v. Ravagh Persian Grill, Inc., NY Slip Op 02059 (2d Dep't April 9, 2025)
Discharge for cause is necessary to warrant the forfeiture of an attorney's fee.
Thuku v. 324 E. 93, LLC, NY Slip Op 02138 (1st Dep't April 10, 2025)
The enforceability of arbitration agreements is governed by the rules applicable to contracts. Although the plaintiff did not sign the agreement in her individual capacity, she is bound by the arbitration clause under the direct benefits theory of estoppel, as the allegations in the complaint show that she knowingly exploited the benefits of the agreement and received benefits flowing directly from that agreement. The defendants did not waive the defense that the parties' dispute was subject to arbitration. The defendants' conduct in appearing in and defending this state court action was not inconsistent with the affirmative defense asserted in their answer that the plaintiff's claims were subject to arbitration.
Belchikov v. XTP Implementation Servs., Inc., NY Slip Op 02054 (2d Dep't April 9, 2025)
A motion for leave to renew based on an alleged change in the law must be made before entry of a final judgment or before expiration of the time to appeal.
U.S. Bank, N.A. v. Gallant, NY Slip Op 02141 (1st Dep't April 10, 2025)
On a motion pursuant to CPLR 3215 for leave to enter a default judgment, a plaintiff is required to submit proof of service of the summons and complaint, proof of the facts constituting the claim, and proof of the defendant's default in answering or appearing. Then, the defendant must show either that there was no default or that there was a reasonable excuse for the delay and a potentially meritorious defense. The determination as to whether an excuse is reasonable is committed to the sound discretion of the motion court. Ongoing settlement negotiations may constitute a reasonable excuse for a default.
Arnav Indus. Inc. Profit Sharing Plan & Trust v. 3449-3461 Hamilton Ft, LLC, NY Slip Op 02052 (2d Dep't April 9, 2025)
As an exception to the hearsay rule, a party admission is admissible against that party as evidence of the matter asserted, regardless of whether the statement was against the party's interest when the statement was made.
Vivar v. Citigroup Tech., Inc., NY Slip Op 02051 (1st Dep't April 8, 2025)
The court's power to dismiss a complaint sua sponte is to be exercised sparingly and only in extraordinary circumstances.
Wood v. Heni, NY Slip Op 01972 (2d Dep't April 2, 2025)
Although landlords and permittees have a common-law duty to minimize foreseeable dangers on their property, including the criminal acts of third-parties, they are not the insurers of a visitor's safety. In cases arising out of injuries sustained on another's property, the scope of the possessor's duty is defined by past experience and the likelihood of third-person conduct which is likely to endanger the visitor's safety. A public establishment's owner has no duty to protect patrons against a harm that is unforeseeable and unexpected.
L.D. v. Brooklyn Kings Plaza, LLC, NY Slip Op 01906 (2d Dep't April 2, 2025)
The affidavit of plaintiff's out-of-state expert may be considered notwithstanding the lack of a certificate of conformity as required by CPLR 2309. The lack of the certificate is a mere irregularity, not a fatal defect.
Smalls v. Finegold, NY Slip Op 02024 (1st Dep't April 3, 2025)
Failure to file proof of service is a procedural irregularity, not a jurisdictional defect, and it may be cured by motion or sua sponte by the court. The court may grant this relief only upon such terms as may be just, and only where there is no prejudice to a substantial right of a party. The court may not make such relief retroactive, to the prejudice of the defendant, by putting the defendant in default as of a date prior to the order. A court may not give effect to a default judgment that, prior to the curing of the irregularity, was a nullity requiring vacatur.
Cherkassky v. Goykman, NY Slip Op 01904 (2d Dep't April 2, 2025)
The motion court denied defendant's request to amend its answer, made for the first time as a footnote in its motion reply papers. A court may grant a request to amend a pleading without a formal motion where the amendment is not futile and will not result in prejudice to any party. The court found prejudice because the amendment would be made at the end of discovery.
Bloom v. Helmsley Spear, LLC, NY Slip Op 01999 (1st Dep't April 3, 2025)
The extraordinary remedy of mandamus will lie only to compel the performance of a ministerial act, and only where there is a clear legal right to the relief sought.
Matter of Lubrano v. Clarke, NY Slip Op 01809 (2d Dep't March 26, 2025)
The court exercised its discretion and declined to strike the City's answer and to direct an adverse inference charge since the missing video was neither the sole source of information about the incident in which plaintiff was injured nor the sole means by which she can establish her case. Moreover, plaintiff did not show that the missing video was intentionally destroyed or that records beneficial to the City's defense were selectively preserved. Plaintiff's testimony and the conflicting accounts of the incident in the reports prepared by Department of Corrections employees are sufficient to enable the jury to properly evaluate credibility. Nevertheless, permitting the City's witnesses to testify to the contents of the missing tape would provide it with a tactical advantage from the spoliation. Accordingly, defendant is precluded from presenting evidence concerning the contents of the missing tape.
Tittel v. City of New York, NY Slip Op 09102 (1st Dep't April 1, 2025)
Supreme Court properly denied defendant's motion to vacate the order granting a default judgment. Defendant appealed the order granting the motion for a default judgment, but then abandoned that appeal. Therefore, the order was deemed affirmed, and Supreme Court was bound by the doctrine of the law of the case. Furthermore, issues that could have been raised on the abandoned appeal may not be reviewed on this appeal.
D. Penguin Bros. Ltd. v. City Natl. Bank, NY Slip Op 01863 (1st Dep't March 27, 2025)
A cause of action for negligent hiring, retention, or supervision requires a showing that the employer knew or should have known of the employee's propensity for the conduct which caused the injury and that there is a connection between the negligence and the injury. The employer's negligence lies in its having placed the employee in a position to cause foreseeable harm which most probably would not have occurred had the employer taken reasonable care in making decisions regarding the employee's hiring, retention, or supervision.
Schlesinger v. Sisters of the Order of St. Dominic, NY Slip Op 01831 (2d Dep't March 26, 2025)
The admissibility of evidence has no bearing on whether the requested information is discoverable.
J.L. v. Archdiocese of N.Y., NY Slip Op 01771 (1st Dep't March 25, 2025)
Leave is granted where the record shows that the defendant had actual knowledge of the essential underlying facts of its employee's involvement in the accident, the police report, and the accident information exchange form. Petitioner sustained his burden of showing that defendants would not be substantially prejudiced in maintaining a defense on the merits. Any alleged prejudice is undermined by defendants'' contemporaneous investigation, including taking photos of the location as it was at the time of the accident. Defendants' conclusory assertion of prejudice resulting from the 11-month delay in serving the notice of claim is insufficient because they do not assert that the bus operator or the supervisor who investigated the accident are unavailable.
Matter of Williams v. New York City Tr. Auth., NY Slip Op 01782 (1st Dep't March 25, 2025)
After a nonjury trial, the Appellate Division's power to review the evidence is as broad as the trial court's. The Appellate Division may render a judgment it finds warranted by the facts, giving due regard to the fact that the trial court was able to assess witness credibility.
Sklavonitis v. State of New York, NY Slip Op 01662 (2d Dep't March 19, 2025)
A court may exercise its inherent equitable power to ensure that a sale conducted pursuant to a judgment of foreclosure and sale is not made the instrument of injustice. The court may set aside a foreclosure sale where fraud, collusion, mistake, or misconduct casts suspicion on the fairness of the sale.
U.S. Bank, N.A. v. Singh, NY Slip Op 01664 (2d Dep't March 19, 2025)
"Upon 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," pursuant to CPLR 1012[a][3]. A timely motion for leave to intervene will be granted when the intervenor has a real and substantial interest in the outcome of the proceedings.
Windward Bora, LLC v. Home Funds Direct, NY Slip Op 01667 (2d Dep't March 19, 2025)
The court will enforce a contractual provision setting the time within which an action must be commenced.
Spectrum Inc. Gen. Contr. v. Capital One Bank USA, N.A., NY Slip Op 01725 (1st Dep't March 20, 2025)
The essential elements of medical malpractice are (1) a deviation or departure from accepted medical practice, and (2) evidence that the departure was a proximate cause of injury. On a motion for summary judgment dismissing the complaint, the defendant has the initial burden of establishing the absence of any departure from good and accepted medical practice or that the plaintiff was not injured thereby. Expert affirmations that do not address the essential factual allegations in the complaint or bill of particulars do not establish prima facie entitlement to judgment as a matter of law.
Delia v. Wieder, NY Slip Op 01604 (2d Dep't March 19, 2025)
An injury resulting from a trivial defect, not constituting a trap or nuisance, is not actionable. In determining whether a defect is trivial, the court must examine the width, depth, elevation, irregularity, and appearance of the defect, along with the time, place, and circumstance of the injury. There is no minimal dimension test or per se rule that a defect must be of a certain minimum height or depth in order to be actionable.
Brown v. Heron Flatbush, LLC, NY Slip Op 01603 (2d Dep't March 19, 2025)
A proven nonconformity of goods delivered does not negate the requirement of notice of rejection within a reasonable time, pursuant to UCC § 2-602[1].
Thread Counsel, Inc. v. State of New York, NY Slip Op 01435 (1st Dep't March 13, 2025)
Pursuant to CPLR 5015(a)(1), "[t]he court which rendered a judgment or order may relieve a party from it upon such terms as may be just, on motion of any interested person . . . upon the ground of . . . excusable default." A party seeking to vacate an order entered upon a default in opposing a motion must demonstrate both a reasonable excuse for the default and a potentially meritorious opposition to the motion. Law office failure may qualify as a reasonable excuse for a party's default if the claim of such failure is supported by a credible and detailed explanation of the default.
Bayron Chay Mo v. Ultra Dimension Place, LLC, NY Slip Op 01338 (2d Dep't March 12, 2025)
A corporation is deemed to have ratified its agent's acts if it retains the benefit of those acts for corporate purposes. The corporation cannot retain the product of the agent's fraudulent representations and, at the same time, repudiate the agency and methods which brought it into being. Therefore, the agent's fraud can be imputed to the corporation,
53 Spencer Realty, LLC v Fidelity Natl. Title Ins. Co., NY Slip Op 01336 (2d Dep't March 12, 2025)
A simple breach of contract, without more, is insufficient to warrant piercing the corporate veil.
Cedar Capital Group Mgt., Inc. v. Lillie, NY Slip Op 01569 (1st Dep't March 18, 2025)
After multiple unsuccessful attempts at court-ordered personal service, the Family Court directed the father to serve the mother in accordance with CPLR 308(4) may be accomplished "by affixing the summons to the door of either the . . . dwelling place or usual place of abode within the state of the person to be served and by . . . mailing the summons to such person at his or her last known residence." In moving to dismiss the petition due to lack of personal jurisdiction, the mother effectively acknowledged that she had received a copy of the summons and petition affixed to the door of her home but stated simply, "To date, I have not received any mailing of the summons/petition."
In opposition, the father submitted an affidavit of service from a process server, in which the process server averred that he had mailed the summons to the mother at her residence by enclosing it in a post-paid wrapper marked "'Personal and Confidential'" and delivering it to a branch of the United States Postal Service, pursuant to CPLR 3211[e]. In reply, the mother failed to submit an affidavit elaborating on her bare denial of receipt of the summons and petition by mail at her admitted residence.
The Appellate Division determined that the Family Court erred in directing a hearing to determine the validity of service of process upon the mother and should have found that service of process upon the mother was properly effectuated. The Appellate Division also noted that, in any event, the court had no authority to dismiss the petition for lack of personal jurisdiction, citing Domestic Relations Law § 76[3].
Matter of Rodriguez v. Escobar, NY Slip Op 01224 (2d Dep't March 5, 2025)
A jury award of damages is given great deference on appeal, but the award may be set aside if it deviates materially from reasonable compensation, as measured by similar cases and considering the nature and extent of the injuries.
Murray v. County of Suffolk, NY Slip Op 01225 (2d Dep't March 5, 2025)
A religious dispute is justiciable only if it can be resolved based on neutral principles of law without reference to any religious principle.
New Hope Christian Church, Inc. v. Parks, NY Slip Op 01227 (2d Dep't March 5, 2025)
Granting leave to amend a complaint to add a claim does not preclude dismissal of that claim on a subsequent motion.
Thoro-Graph, Inc. v. New York Racing Assn., Inc., NY Slip Op 01306 (1st Dep't March 6, 2025)
In considering a motion pursuant to CPLR 3211(a)(7) to dismiss a complaint for failure to state a cause of action, the court must afford the pleading a liberal construction, accept the facts as alleged in the pleading as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory. Defendants bear the burden of establishing that the complaint fails to state a viable cause of action.
Ramirez-Gomez v. Empire Today, LLC, NY Slip Op 01248 (2d Dep't March 5, 2025)
On their appeal, the plaintiffs advance arguments that appear to be without merit in law and/or a stalling tactic. Therefore, pursuant to 22 NYCRR 130-1.1[c][1], the appeal may be frivolous. The Appellate Division directs the submission of affirmations or affidavits on the issue of whether, and in what amount, costs or sanctions should or should not be imposed upon the plaintiffs and/or the plaintiffs' counsel.
Rahman v. Desch, NY Slip Op 01247 (2d Dep't March 5, 2025)
The court properly denied that branch of the plaintiffs' motion seeking to preclude the defendants from offering into evidence transcripts of the plaintiffs' testimony at hearings held pursuant to General Municipal Law § 50-h. There is no provision within the CPLR, the General Municipal Law, or the Uniform Rules for the Trial Courts that requires that a transcript of a hearing held pursuant General Municipal Law § 50-h bear any particular caption or index number, or the name of an assigned judge.
Rahman v. Desch, NY Slip Op 01247 (2d Dep't March 5, 2025)
When an amended complaint has been served, it supersedes the original complaint and becomes the only complaint in the case.
Qualified Impressions, LLC v. Pessa, NY Slip Op 01246 (2d Dep't March 5, 2025)
A general release is governed by principles of contract law. A valid release which is clear and unambiguous on its face and which is knowingly and voluntarily entered into will be enforced as a private agreement between parties, and bars an action on any cause of action arising prior to its execution. A general release bar will not only cover any and all claims between the releasor and releasees which had, by that time the release is executed, actually ripened into litigation, but to all such issues which might then have been adjudicated as a result of pre-existing controversies.
Like any contract, a release must be read as a whole in order to determine its purpose and intent, and extrinsic evidence of the parties' intent may be considered only if the agreement is ambiguous. A contract is unambiguous if the language it uses has a definite and precise meaning, unattended by danger of misconception in the purport of the agreement itself, and concerning which there is no reasonable basis for a difference of opinion. An ambiguity never arises out of what is not written, but only out of what was written so blindly and imperfectly that its meaning is doubtful.
Smith v. City of New York, NY Slip Op 01198 (1st Dep't March 4, 2025)
As a general rule, the Appellate Division does not consider any issue raised on a subsequent appeal that was raised, or could have been raised, in an earlier appeal that was dismissed for lack of prosecution, although it has the inherent jurisdiction to do so.
Deutsche Natl. Bank Trust Co. v. Light, NY Slip Op 01078 (2d Dep't February 26, 2025)
Pursuant to CPLR 3126, a court may impose sanctions, including the striking of a pleading or preclusion of evidence, where a party refuses to obey an order for disclosure or willfully fails to disclose information which the court finds ought to have been disclosed. Before a court invokes the drastic remedy of precluding a party from offering evidence at trial, there must be a clear showing that the failure to comply with court-ordered discovery was willful and contumacious. Here, the plaintiff failed to make a clear showing that the defendants willfully or contumaciously disobeyed a discovery order or acted in bad faith. Accordingly, the Supreme Court providently exercised its discretion by denying that branch of the plaintiff's motion which was pursuant to CPLR 3126 to strike the defendants' answer.
Borchkhadze v. McMahon, NY Slip Op 01077 (2d Dep't February 26, 2025)
Conduct amounting to breach of contract may also constitute breach of fiduciary duty.
Dar v. SAJ Transp. Northeast., LLC, 01165 (1st Dep't February 27, 2025)
An easement appurtenant occurs when the easement is created in writing, subscribed by the creator, and burdens the servient estate for the benefit of the dominant estate. Once created, the easement runs with the land and can only be extinguished by abandonment, conveyance, condemnation, or adverse possession.
Bikes by Olga, LLC v. People of the State of New York, NY Slip Op 01076 (2d Dep't February 26, 2025)
A court of original jurisdiction may entertain a motion for leave to renew based on an alleged change in or clarification of the law, even after an appellate court has rendered a decision on the prior order.
435 Cent. Park W. Tenant Assn. v. Park Front Apts., LLC, NY Slip Op 01157 (1st Dep't February 27, 2025)
The motion court found that plaintiff's causes of action, while pled as discrimination and contract claims, essentially seek to challenge defendants' academic decisions and testing procedures, and, therefore, should have been brought in an article 78 proceeding. It is undisputed that plaintiff was granted testing accommodations for her disabilities, and defendants' decision to deny her requests for additional accommodations and opportunities to re-take exams constitutes an academic decision, as granting her request would require relaxing defendants' academic standards and policies. Since plaintiff failed to bring the action within the four-month statute of limitations period, her claims are time-barred. For that reason, the motion court declined to convert plaintiff's plenary action into an article 78 proceeding.
Rutkoski v. New York Univ., NY Slip Op 01181 (1st Dep't February 27, 2025)
No appeal lies from an order denying leave to reargue.
Bayview Loan Servicing, LLC v. Kelly, NY Slip Op 01075 (2d Dep't February 26, 2025)
The Appellate Division held that insofar as Non-Linear Trading Co. v Braddis Assoc., 243 AD2d 107, held that a motion for leave to amend a pleading must be supported by an affidavit of merit, it should not be followed.
State Farm Mut. Auto. Ins. Co. v. Clarke, NY Slip Op 01184 (1st Dep't February 27, 2025)
Generally, the death of a party divests a court of jurisdiction to act and automatically stays proceedings pending the substitution of a personal representative for the decedent. In most instances, a personal representative appointed by the Surrogate's Court should be substituted in the action to represent the decedent's estate. However, where a property owner dies intestate, title to real property is automatically vested in the decedent's distributees.
2911 Mgt., LLC v. Davis, NY Slip Op 01074 (2d Dep't February 26, 2025)
Plaintiff made a prima facie showing that defendant violated its duty under Administrative Code of the City of New York § 7-210 to maintain the sidewalk abutting its property in a reasonably safe condition by failing to repair the raised sidewalk flag on which plaintiff tripped. Plaintiff established that defendant had actual knowledge of the defective condition by submitting the deposition testimony of defendant's superintendent, who testified that he first saw the height differential between the sidewalk flags about two years before plaintiff fell.
Plaintiff established the location of the raised sidewalk flag by drawing a circle on the photograph marked at his deposition and testifying that the circle encompassed the exact location where he fell. Plaintiff also established that the height of the raised sidewalk constituted a tripping hazard by submitting his investigator's affidavit that he went to the accident location about 12 days after plaintiff fell and took photographs that fairly and accurately show the sidewalk's condition. Those photographs show that there was a vertical grade differential between the adjacent sidewalk flags of at least one inch, which constitutes a tripping hazard under Administrative Code § 19-152(a)(4) and the Rules of City of New York Department of Transportation (34 RCNY) § 2-09(f)(5)(iv). In opposition, defendant submitted no evidence that raised a triable issue of fact as to where plaintiff fell or regarding the height differential between the sidewalk flags.
Plaintiff's motion for summary judgment on the issue of liability is granted.
Volquez v. Bronx 2120 Crotona Ave., L.P., NY Slip Op 01072 (1st Dep't February 25, 2025)
In this personal injury action, the affirmative defense based on the plaintiff's culpable conduct is dismissed because the record bears no indication that the plaintiff contributed in any way to the accident.
Walcott v. Wheels, Inc., NY Slip Op 01073 (1st Dep't February 25, 2025)
CPLR 5015(d) provides that, "[w]here a judgment or order is set aside or vacated, the court may direct and enforce restitution in like manner and subject to the same conditions as where a judgment is reversed or modified on appeal." Thus, CPLR 5015[d] empowers a court that has set aside a judgment or order to restore the parties to the position they were in prior to its rendition, consistent with the court's general equitable powers. The essential inquiry for a court addressing a request for the equitable remedy of restitution is whether it is against equity and good conscience to permit a party to retain the money that is sought to be recovered. The determination whether to award restitution is committed to the trial court's discretion.
Hamway v. Sutton, NY Slip Op 01062 (1st Dep't February 25, 2025)
Pursuant to CPLR 3211(a)(5), a party may move to dismiss a cause of action based on the doctrine of res judicata or collateral estoppel. 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. The doctrine of collateral estoppel, a narrower species of res judicata, precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action and decided against that party or those in privity, whether or not the tribunals or causes of action are the same.
Here, the issues raised in the instant action as to the defendants' alleged violation of Judiciary Law § 487 could not have been raised in a prior action between the parties and were not necessarily decided in the prior action. Thus, neither res judicata nor collateral estoppel bars the plaintiffs from litigating the instant Judiciary Law § 487 cause of action.
A motion pursuant to CPLR 3211(a)(1) to dismiss the complaint on the ground that the action is barred by documentary evidence may be granted only where the documentary evidence utterly refutes the plaintiff's factual allegations, thereby conclusively establishing a defense as a matter of law. Under Judiciary Law § 487(1), an attorney who is guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party is guilty of a misdemeanor and may be liable to the injured party for treble damages in a civil action. Here, the defendants' evidentiary submissions failed to utterly refute the plaintiffs' factual allegations that the defendants violated Judiciary Law § 487.
Altman v. Orseck, NY Slip Op 00940 (2d Dep't February 19, 2025)
When a plaintiff has failed to file a note of issue by a court-ordered deadline, restoration of the action to the active calendar is automatic, unless either a 90-day notice has been served pursuant to CPLR 3216 or there has been an order directing dismissal of the complaint pursuant to 22 NYCRR 202.27. In the absence of those two circumstances, the court need not consider whether the plaintiff had a reasonable excuse for failing to timely file a note of issue.
Adams v. Frankel, NY Slip Op 00939 (2d Dep't February 19, 2025)
Common-law indemnification involves an attempt to shift the entire loss from one who is compelled to pay for a loss, without regard to his own fault, to another person who should more properly bear responsibility for that loss. The key element of a common-law cause of action for indemnification is not a duty running from the indemnitor to the injured party, but, rather, is a separate duty owed to the indemnitee by the indemnitor. The predicate of common-law indemnity is vicarious liability without actual fault on the part of the proposed indemnitee.
In order to sustain a third-party cause of action for contribution, a third-party plaintiff is required to show that the third-party defendant owed it a duty of reasonable care independent of its contractual obligations, if any, or that a duty was owed to the plaintiffs as injured parties and that a breach of that duty contributed to the alleged injuries. Under the latter theory of contribution, all that is required is that two people be held liable for the same injury.
25-86 41st St., LLC v. Chong, NY Slip Op 00938 (2d Dep't February 19, 2025)
Plaintiffs' first cause of action is dismissed to the extent that it seeks attorneys' fees. Plaintiffs may not rely on defendant's confession of judgment, executed on May 28, 2020, to collect attorneys' fees. The instrument confessed judgment for, among other things, "reasonable attorney's fees incurred to enforce the judgment." However, on August 13, 2019, the Legislature amended CPLR 3218 to prohibit a party from enforcing a confession of judgment against a non-resident of New York State such as defendant. The confession also was not an agreement to pay attorneys' fees, but, at most, was merely evidence of an agreement.
Nor may plaintiffs rely on the parties' settlement agreement to obtain attorneys' fees. The agreement provided that in the event of a default of any settlement payment, plaintiffs "may file a confession of judgment" for the amount owed, plus interest, costs, "and reasonable attorney's fees actually incurred to enforce the judgment." Thus, the parties agreed that plaintiffs could receive attorneys' fees through the filing of the confession of judgment, which plaintiffs did not file. Moreover, the settlement agreement contemplated that plaintiffs could obtain attorneys' fees through, and only through, the process of enforcing the confession of judgment. Plaintiffs did not use that process; instead, they brought this plenary action to enforce the settlement agreement. Absent any agreement, statute, or rule allowing plaintiffs to collect attorneys' fees for enforcing the settlement agreement, plaintiffs cannot obtain them.
Upfront Megatainment, Inc. v. Thiam, NY Slip Op 00932 (1st Dep't February 18, 2025)
The cause of action for tortious interference with contract is dismissed because there was no breach of contract.
Vigliano Assoc., Ltd. v. Gaines, NY Slip Op 00934 (1st Dep't February 18, 2025)
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. A party seeking to assert res judicata must show the existence of a prior judgment on the merits between the same parties, or those in privity with them, involving the same subject matter. Here, the defendants established, prima facie, that the claims raised by the plaintiff in this action were previously presented in the administrative proceeding and the subsequent CPLR article 78 proceeding. Although the administrative order of disposition was entered upon the defendants' failure to appear at the administrative hearing, a default judgment is a judgment on the merits.
Alarcon v. Henry, NY Slip Op 00838 (2d Dep't February 13, 2025)
Allegations that a judge is biased or prejudiced must be based upon something other than rulings in the case.
McNaughton v. 5 W. 14 Owners Corp., NY Slip Op 00831 (1st Dep't February 13, 2025)
A party seeking to vacate an order entered upon a default in opposing a motion must demonstrate a reasonable excuse for the default and a potentially meritorious opposition to the motion. Although a court has the discretion to accept law office failure as a reasonable excuse, pursuant to CPLR 2005, law office failure does not constitute a justifiable excuse where there is a pattern of willful default and neglect, or where the allegations of law office failure are conclusory, undetailed, and unsubstantiated.
Adams v. 161 Ct. St., LLC, NY Slip Op 00837 (2d Dep't February 13, 2025)
Order and judgment which granted the petition brought pursuant to CPLR article 75 for a permanent stay of an arbitration proceeding and denied the cross-petition to set aside a separation agreement is affirmed.
The release provision in the separation agreement is clear and unambiguous on its face, encompassing all claims, known or unknown, that the defendant "had, has or may have," arising from her employment with the petitioner, including the discrimination and related claims asserted in her arbitration demand. The separation agreement was knowingly and voluntarily entered into, as the defendant admittedly signed the agreement without giving it more than a glance, even though she was given seven days to review it, consult an attorney, and negotiate material changes. Moreover, the defendant's employment agreement provided for post-termination payments at the petitioner's option, for which a release may be required; the separation agreement expressly advised the defendant to consult an attorney; and sufficient consideration was provided in that the petitioner offered to make over $29,000 in post-termination payments that were not guaranteed by the employment agreement and were not unpaid wages earned while the defendant was employed. To that end, even the $4,640.16 paid after the defendant signed the separation agreement, which were not earned wages, is sufficient consideration for the defendant's release.
Matter of Balyasny Asset Mgt., L.P. v. Liu, NY Slip Op 00822 (1st Dep't February 13, 2025)
Plaintiff's motion for summary judgment in lieu of complaint for a renewed judgment pursuant to CPLR 5014 is granted. Plaintiff made a prima facie showing of his entitlement to a renewed judgment under CPLR 5014(1) by demonstrating that, to date, only a nominal payment of the underlying debt has been recovered; thus, defendant has not satisfied the judgment. In opposition, defendant failed to raise an issue of fact.
Zimmerman v, Stephenson, NY Slip Op 00374 (1st Dep't February 6, 2025)
The court may order a severance of claims in furtherance of convenience or to avoid prejudice, or the court may order a separate trial of any claim or of any separate issue. The grant or denial of a request for severance is a matter of judicial discretion, which should not be disturbed on appeal absent a showing of prejudice to a substantial right of the party seeking severance. Severance has been found appropriate where individual issues predominate concerning particular circumstances applicable to each of a number of plaintiffs and there is the possibility of confusion for the jury.
Here, individual issues predominate concerning the particular circumstances applicable to each of the seven plaintiffs' claims, and a single trial would prove unwieldy and confuse the trier of fact. Accordingly, the defendant's motion which was pursuant to CPLR 603 to sever the causes of action of each of the plaintiffs for trial is granted.
Adamow v. Northport-East Northport Union Free Sch. Dist., NY Slip Op 00643 (2d Dep't February 5, 2025)
Liability may attach to an out-of-possession landowner who has affirmatively created a dangerous condition or defect. However, here plaintiff provided nothing more than conjecture concerning allegedly improper building construction. She presented no evidence that any code or regulation was violated by the building's construction or design, that any violations were issued based on improper drainage, or that there were any prior accidents or complaints of water or ice accumulation in the parking area. Moreover, the fact witness who made these claims had no demonstrated expertise in this area, which is not within the ambit of common experience. The complaint is dismissed.
Maignan v. Watsky & Damm, Inc., NY Slip Op 00398 (1st Dep't January 28, 2025)
The lease provides for attorneys' fees regardless of default or merit, in a dispute between a residential co-op and a shareholder tenant. This provision is unenforceable as unconscionable. Enforcing such a provision would produce an unjust result because it would dissuade aggrieved parties from pursuing litigation and preclude tenant-shareholders from making meaningful decisions about how to vindicate their rights in legitimate instances of landlord default.
Kasowitz, Benson, Torres & Friedman, LLP v. JPMorgan Chase Bank, N.A., NY Slip Op 00396 (1st Dep't January 28,. 2024)
In order to promote open government and public accountability, FOIL imposes a broad duty on government to make its records available to the public. To this end, FOIL provides that all records of a public agency are presumptively open to public inspection and copying unless otherwise specifically exempted,
Here, the Appellate Division determined that the Supreme Court erred in dismissing this proceeding on the basis that it was rendered academic by the dismissal of a separate CPLR article 78 proceeding in which the petitioner was one of the parties seeking to annul an agency determination. FOIL does not require that the party requesting records make any showing of need, good faith, or legitimate purpose. The underlying premise is that the public is vested with an inherent right to know and that official secrecy is antithetical to our form of government. The standing of one who seeks access to records under FOIL is as a member of the public, and is neither enhanced nor restricted because the person also is a litigant or a potential litigant.
FOIL exemptions are construed narrowly, and an agency has the burden of demonstrating that an exemption applies by articulating a particularized and specific justification for denying access. When relying upon an exemption, it is the agency's burden to demonstrate that the requested material falls squarely within a FOIL exemption. In order to meet its burden, the party seeking exemption must present specific, persuasive evidence that the material falls within the exemption. Conclusory assertions that are not supported by any facts are insufficient.
Matter of Supinsky v. Town of Huntington, NY Slip Op 00324 (2d Dep't January 22, 2024)
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