A motion to renew.

The Appellate Division unanimously affirmed the Order which, to the extent appealed from, denied plaintiff's motion to renew its opposition to defendant's motion to dismiss the fourth cause of action of the amended complaint. The Appellate Division said that the court providently exercised its discretion in denying plaintiff's motion to renew, because neither the new facts nor the case on which plaintiff relies -which was decided after the submission of the original motion - would change the prior determination, pursuant to CPLR 2221[e][2].

Ixis Real Estate Capital Trust 2007-HE1 v. Natixis Real Estate Holdings, LLC, NY Slip Op 06354 (1st Dep't November 5, 2020)

Here is the decision.

Consolidation of cases.

The Appellate Division unanimously affirmed the Order which denied defendants' motion for removal of a summary nonpayment proceeding against the subject infant's parents, pending in Civil Court, and consolidation with the infant's personal injury action based on lead paint poisoning, pending in Supreme Court.  The Appellate Division determined that, in light of the strong preference for resolving summary landlord-tenant proceedings in Civil Court, particularly where complete relief is available there, the trial court did not abuse its discretion in denying consolidation. CPLR 602(a) gives the trial court discretion to consolidate actions involving common questions of law or fact.  However, even where there are common questions of law or fact, consolidation of actions is properly denied if the actions are at markedly different procedural stages, and consolidation would result in undue delay in the resolution of either matter. Here, while there are some overlapping facts in each case, those facts do not so predominate as to find an abuse of discretion in denying consolidation. The majority of time during which the infant's parents failed to pay their rent in the summary proceeding occurred in the two-year period after the lead paint abatement when the case was taken off the calendar to make further unexplained repairs.

L.B. v. Stahl York Ave. Co., 06355 (1st Dep't November 5, 2020)

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The single motion rule.

The Appellate Division unanimously reversed, on the law, the Order which, to the extent appealed, denied respondents' cross motion to dismiss the amended petition, granted the cross motion, and dismissed the petition. The Appellate Division found that respondents' documentary evidence, consisting of a series of agreements and modifications to the agreements, conclusively refuted petitioner's contention that certain funds transferred to respondents were property of the judgment debtor. As this was an essential element of petitioner's claims, the petition should have been dismissed. The Appellate Division rejected petitioner's argument that the motion was barred by the single motion rule, because respondents had moved to dismiss the original petition. The rule is not implicated where, as here, the amendment introduced substantial new material.

Matter of 8430985 Can., Inc. v. Frydman, NY Slip Op 06337 (1st Dep't November 5, 2020)

Here is the decision.

Sanctions for frivolous conduct.

The imposition of sanctions did not violate plaintiff's or his counsel's procedural due process rights. Plaintiff and his counsel made their fifth and sixth applications for sanctions in opposition to defendant's motion for a protective order and motion to dismiss and, after defendant responded by arguing that the repetitive requests for sanctions were frivolous and sanctionable, the court held oral argument on all the motions, at which time plaintiff and counsel were present and argued before the court. Thus, they had fair notice and a reasonable opportunity to be heard, pursuant to 22 NYCRR 130-1.1[d]. In addition, the order sets forth a number of reasons for the court's finding of frivolous conduct and imposition of the sanctions, pursuant to 22 NYCRR 130-1.2.

Verdi v. Dinowitz, NY Slip Op 06373 (1st Dep't November 5, 2020)

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The sufficiency of factual allegations.

Where the factual allegations in the complaint are flatly contradicted by documentary evidence in the record, the allegations are not entitled to be considered as true.

Olsen v. Smith, NY Slip Op 06214 (1st Dep't October 29, 2020)

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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)

Here is the decision.

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)

Here is the decision.

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)

Here is the decision.