A medical malpractice action.

The Appellate Division unanimously affirmed the Judgment which granted defendants' motion for summary judgment dismissing the complaint. The motion court correctly found that defendants, as movants, made out their prima facie burden through the affirmation of their expert plastic surgeon. The fact that proof of the expert's qualifications was not submitted in the moving papers was a technical defect that the motion court was within its discretion to permit defendants to correct on reply. The affidavit of plaintiff's expert, which was vague, conclusory, and, in part, contradicted by plaintiff's medical records, failed to create questions of fact sufficient to rebut defendants' entitlement to summary judgment.

Poivan-Traub v. Chaglassian, NY Slip Op 06072 (1st Dep't October 27, 2020)

Here is the decision.

A time-barred foreclosure action.

 The Appellate Division unanimously affirmed the Order which denied plaintiff's motion for summary judgment and dismissed. The applicable six-year limitations period, pursuant to CPLR 213[4], commenced upon the filing of a 2009 foreclosure action by plaintiff's predecessor-in-interest. This action was commenced with the filing of a complaint more than six years later, in March 2017. Contrary to plaintiff's argument, the discontinuance of the 2009 action, which occurred after the limitations period expired, was insufficient to constitute an affirmative act revoking the mortgage loan's acceleration. The Appellate Division noted that the motion court did not abuse its discretion by declining to consider plaintiff's argument that a bankruptcy proceeding tolled the statute of limitations, since it was raised for the first time in a footnote in its reply papers.

U.S. Bank Trust, N.A. v. Board of Mgrs. of the Devon Condominium, NY Slip Op 06076 (1st Dep't October 27, 2020)

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A claim of fraud against a corporate officer.

While a corporate officer may be held personally liable for committing fraud on the corporation's behalf, an insincere promise to perform a contractual obligation may not be used to expand potential liability for conduct essentially constituting a breach of contract to persons and entities not in contractual privity with the plaintiff.

3P-733, LLC v. Davis, NY Slip Op 06043 (1st Dep't October 27, 2020)

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Default judgments.

The Appellate Division unanimously affirmed the Order granting, on default, plaintiff's motion for summary judgment and the appointment of a referee, and a judgment of foreclosure and sale. While the motion court may have failed to address whether defendant demonstrated a reasonable excuse for his default, the record shows that defendant, acting pro se, filed a Chapter 13 petition for bankruptcy protection listing plaintiff as a creditor, which resulted in an automatic stay of the foreclosure sale. Therefore, plaintiff's claims that he was unaware of the foreclosure proceedings due to the long-term illness of defendant's attorney, who neglected to advise defendant that he was no longer able to defend him in this residential foreclosure action, are unavailing. At the very least, plaintiff knew about the default judgment when he moved to stay the foreclosure sale, and he did not seek to vacate his default until four months later. As defendant failed to demonstrate a reasonable excuse for his default, it was not necessary for the Appellate Division to reach the issue of the availability of a meritorious defense.

U.S. Bank Natl. Assn. v. Hao T. Hoang, NY Slip Op 06077 (1st Dep't October 27, 2020)

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The implied covenant of good faith and fair dealing.

The allegation that defendant charged "excessive due diligence fees against the down payment" is insufficient to plead a claim for breach of the implied covenant of good faith and fair dealing. The implied covenant may not be used to create new contractual obligations that were not bargained for.

King Penguin Opportunity Fund III, LLC v. Spectrum Group Mgt. LlC, NY Slip Op 06230 (1st Dep't October 29, 2020)

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A motion to amend an answer.

The Appellate Division unanimously revered the Order which denied defendants' motion to amend the answer to assert as an additional affirmative defense the doctrine of collateral estoppel and/or res judicata, and granted the motion. Plaintiff failed to demonstrate that he would be prejudiced if defendants were permitted to amend the answer. Plaintiff's contention that he would have to alter his trial strategy to account for the Workers' Compensation Board determination of which he has been aware for years is insufficient. Neither did plaintiff demonstrate that the proposed affirmative defense is palpably devoid of merit.

Rodriguez v. Extell W. 57th Street LLC, NY Slip Op 06034 (1st Dep't October 22, 2020)

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A motion to vacate a default.

The Appellate Division unanimously affirmed the Order which denied the motion to vacate and to compel plaintiff to accept defendant's answer, finding that defendant failed to proffer a reasonable excuse for the default, pursuant to CPLR 5015[a][1]. A party seeking to vacate a default judgment must demonstrate a reasonable excuse for the default and a meritorious defense. Absent a reasonable excuse, vacatur is not appropriate regardless of whether defendant has a meritorious defense. Defendant's excuse that her attorney failed to file a timely answer on her behalf does not constitute a reasonable excuse because she failed to set forth any details or evidence in support of her allegation, including who her former attorney was, when she retained that attorney, or why that attorney failed to file an answer. As defendant is not entitled to vacatur of the default judgment, plaintiff cannot be compelled to accept service of her late answer, pursuant to CPLR 3012[d].

U.S. Bank Trust N.A. v. Rivera, NY Slip Op 06040 (1st Dep't October 22, 2020)

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A dispute over a purported gift.

Plaintiff alleges that defendants were unjustly enriched by keeping money that defendants claim was a gift. Defendants seek to show that the money was a gift by pointing to plaintiff's gifts to his nephew, his loan to a friend, which defendants allege was mostly forgiven and, therefore, was essentially a gift, and the fact that he may have allowed one defendant to buy plaintiff's house for less than fair market value. However, in a civil case, a party's character may not be used to raise an inference that he acted in conformity therewith on the occasion at issue.

Vlachos v. Thomas, NY Slip Op 06041 (1st Dep't October 22 2020)

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A judgment of foreclosure and sale.

The Appellate Division vacated the judgment, denied plaintiff's motion to confirm the referee's report of the amount due to plaintiff, and remanded for a new report computing the amount due. The referee relied on an affidavit of an assistant vice president of plaintiff's loan servicer, who asserted that, according to plaintiff's books and records pertaining to defendant's loan and payment history, defendant had been in default, and owed plaintiff the amount stated. However, because the books and records were not submitted to the court, the affiant's assertions are inadmissible hearsay. Neither did the affiant lay a foundation for the introduction of the books and records as a business record, pursuant to CPLR 4518[a].

Deutsche Bank Nat'l Trust Co. v. Kirschenbaum, NY Slip Op 05849 (1st Dep't October 20, 2020)

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Dismissal of a non-resident's claims.

The Appellate Division affirmed dismissal of the claims as against this plaintiff who states that he lived in Texas and worked in his home office there. He reported to managers based in New York, served clients mostly based in New York, and travelled to New York State and City two to three times a year, for two to three days each visit, in order to meet with supervisors and service clients. Plaintiff's presence in New York is not sufficient to vest New York's courts with subject matter jurisdiction over his claims under the New York State and City Human Rights Laws. Since plaintiff's cause of action under Labor Law § 215 is premised almost exclusively on work performed outside of this State, he has failed to state a claim under that statute. As plaintiff is a Texas resident, and his sole remaining retaliation claim is asserted under a section of the Texas Labor Law, the motion court providently exercised its discretion in dismissing that claim on the ground of forum non conveniens, pursuant to CPLR 327[a].

Kingston v. International Business Machs. Corp., NY Slip Op 05856 (1st Dep't October 20, 2020)

Here is the decision.