A motion to vacate a default judgment.

The Appellate Division affirmed the Order which denied the motion. Defendant failed to demonstrate a reasonable excuse for his default and a meritorious defense to the action because he submitted his motion without an affidavit by someone with personal knowledge of the pertinent facts, namely, defendant himself. The affirmation by his counsel, who lacked personal knowledge, was insufficient for this purpose. Regardless, defendant's incarceration does not constitute a reasonable excuse for his default, given that he does not contest the receipt of service and he was afforded six months to respond to plaintiff's motion. Defendant did not  demonstrate a meritorious defense by arguing that a subsequent consulting agreement with plaintiff's son, who is not a party to the sued-upon note, superseded his obligations to plaintiff under the note.

Yaffe v. Shkreli, NY Slip Op 05875 (1st Dep't October 202020)

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Failure to comply with discovery obligations.

The Appellate Division found that the motion court providently exercised its discretion in dismissing the complaint, pursuant to CPLR 3126. based on plaintiff's failure to comply with her discovery obligations. While asserting that she complied with her obligations, plaintiff failed to respond to defendants' specific allegations of deficiencies. The record shows that some discovery was provided belatedly or in improper form, items are missing, and depositions have not been completed. Moreover, plaintiff's noncompliance was the subject of multiple prior motions to dismiss, good faith letters, and discovery stipulations and orders, and so willfulness may be inferred.

Ruiz v. Selzer, NY Slip Op 05835 (1st Dep't October 15, 2020)

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Summary judgment in a slip-and-fall action.

Defendant submitted the affidavits of its building manager and a porter, who both stated that it was defendant's practice to clean the stairwell twice a day, and that the porter cleaned the stairwell on the day of the accident and prior to plaintiff's fall and did not see any debris on the staircase. These affidavits cannot be considered because defendant only identified those witnesses after it filed its motion, despite plaintiffs' prior request that defendant identify all employees with knowledge of the facts and circumstances of the accident, and numerous court orders directing defendant to do so.

Verges v. Concourse Residential Hotel, Inc., NY Slip Op 05708 (1st Dep't October 13, 2020)

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A promissory estoppel claim.

The claim fails, as there is neither a clear and unambiguous statement nor any detrimental reliance.

Weisenfeld v. Iskander, NY Slip Op 05710 (1st Dep't October 13, 2020)

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A slip-and-fall claim.

The Appellate Division reversed the Order which granted defendant's motion for summary judgment dismissing the complaint, and denied the motion.  In this action where plaintiff alleges that she slipped and fell on grease as she descended the stairs in defendant's building, defendant failed to establish its prima facie entitlement to summary judgment. Defendant did not demonstrate that it lacked constructive notice of the grease, as it failed to show when the stairwell was last cleaned or inspected. Proof of a regular maintenance schedule does not suffice for the purpose of showing that it was followed, and since the superintendent was due to clean the hallways and stairs on the day of the accident, plaintiff's observation of debris on the stairs shows that no such maintenance was done prior to her fall. Because defendant did not meet its initial burden of showing, as a matter of law, that it lacked constructive notice of the alleged defective condition, the burden never shifted to plaintiff to demonstrate how long the condition existed.

White v. MP 40 Realty Mgt. LLC, NY Slip Op 05838 (1st Dep't October 15, 2020)

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A Yellowstone injunction.

The Appellate Division affirmed the Order which granted plaintiff's application. Contrary to defendant's contention, plaintiff fulfilled the four criteria for Yellowstone relief, namely, that (1) it holds a commercial lease; (2) it received from the landlord either a notice of default, a notice to cure, or a threat of termination of the lease; (3) it requested injunctive relief prior to the termination of the lease; and (4) it is prepared and maintains the ability to cure the alleged default by any means short of vacating the premises.

80 Broad Relief Assoc., LLC v. BSD 80 Broad LLC, NY Slip Op 05805 (1st Dep't October 15, 2020)

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An alleged oral agreement.

Because the terms of the alleged agreement are not definite, the complaint and supporting materials fail to plead the existence of an enforceable oral contract. The consideration owed to a non-party is described inconsistently, and the arrangement between plaintiff and the non-party is described in different ways in emails among plaintiff, the non-party, and defendant.

Streit v. Bombart, NY Slip Op 05706 (1st Dep't October 13, 2020)

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A motion to disqualify an arbitrator.

The Appellate Division affirmed the  Order which denied defendant's motion to disqualify the arbitrator and vacate his rulings. Defendant failed to demonstrate implicit gender bias against its female sole general partner in the arbitrator's comments in an email and throughout the course of the proceedings. The Appellate Division noted that plaintiff's principal and representative in the arbitration proceeding are women.

Vitra, Inc. v. Ninety-Five Madison Co., L.P., NY Slip 05709 (1st Dep't October 13, 2020)

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Appellate practice.

While discovery determinations rest with the sound discretion of the motion court, the Appellate Division is  vested with corresponding power to substitute its own discretion for that of the trial court, even in the absence of abuse of discretion. Here, the Appellate Division declined to disturb the motion court's determination. Plaintiff failed to demonstrate that its discovery requests would yield information that was material and necessary to its defense against the counterclaims asserted against it.

Monitronics Intl, Inc. v. NorthStar Alarm Servs., LLC, NY Slip Op 05584 (1st Dep't October 8, 2020)

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A claim for an accounting.

The Appellate Division affirmed the Supreme Court's determination granting that branch of the defendants' motion which was to dismiss the cause of action for an accounting, as the allegations of the complaint indicate that the relationship between plaintiff and defendant was not fiduciary in nature.

Board of Mgrs. of the Bayard Views Condominium v. FPG Bayard, LLC, NY Slip Op 05481 (2d Dep't October 7, 2020)

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Claims for fraud and tortious interference.

The claim for fraud and negligent misrepresentation was properly dismissed, as it duplicates the breach of contract claims. It does not allege breach of a duty independent from the parties' agreements, and, instead, alleges that defendants falsely represented that they would abide by those agreements. The motion court properly dismissed the claim for tortious interference with prospective economic advantage on grounds that it lacked specificity and was speculative. Plaintiff simply alleged an existing reasonable expectation of receiving an economic advantage from his clients, with which defendants wrongfully and intentionally interfered, causing him financial harm, but he failed to identify any particular relationships or explain how defendants interfered with them.

Matter of Soames v. 2LS Eng'g, D.P.C., NY Slip Op 05607 (1st Dep't October 8, 2020)

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