Attorney's fees.

The Appellate Division affirmed the Order which granted defendants' motion for fees. The motion court applied the correct standard for determining the "prevailing party" under a contractual fees clause, namely, success on the central claims in the action. Plaintiff failed to show any injury from defendants' representations to the court that plaintiff would not be prejudiced by bringing new claims in a new action. The court had already ruled that the defects in the existing case would not be remedied by amendment, and, sua sponte, modified its order to reflect that the new claims were to be brought in a new action. The Appellate Division rejected plaintiff's argument that half of the fees do not pertain to the motion to dismiss, and, therefore, are not recoverable. The parties' agreement entitles the prevailing party to all fees "in connection" with the action, and plaintiff has failed to point to any fees not incurred in connection with the action.

Zamir v. Ben-Harosk, NY Slip Op 06475 (1st Dep't November 12, 2020)

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Discovery of nonprivileged information.

The Appellate Division modified the Order which, to the extent appealed from as limited by the briefs, denied defendants' motion to compel production of plaintiffs' nonprivileged litigation files in another action, to the extent of granting defendants' motion for discovery, and remanding the matter for further proceedings to narrow the scope of the discovery, and otherwise affirmed. In a partition action against each other, plaintiffs mother and son placed into contention issues of property ownership, economic losses, mismanagement, and lack of property maintenance. As this action gives rise to similar economic issues, defendants are entitled to nonprivileged information contained in that action that is relevant to the defense of this action, since CPLR 3101(a) mandates full disclosure of matters that are material and necessary in the prosecution or defense of an action. The confidentiality order in the partition action cannot operate as a shield to preclude plaintiffs from having to produce relevant documents in this action, especially since they affirmatively place into contention similar economic issues. However, defendants are not entitled to the entirety of the nonprivileged litigation files. To the extent that documents and information contained therein relate exclusively to other properties owned by plaintiffs, and not to the property at issue in this action, the information is not relevant, and plaintiffs are not under an obligation to produce it. 

Rosenblum v. Trinity Hudson Holdings, LLC, NY Slip Op 06407 (1st Dep't November 10, 2020)

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Motions to amend.

The Appellate Division unanimously affirmed the Order which denied defendants' motion to dismiss the complaint, and granted plaintiff's cross motion to amend his pleadings. Contrary to defendants' argument, CPLR 3014 specifically authorizes the pleading of inconsistent theories and defenses. In addition, on a motion for leave to amend, a plaintiff does not have to establish the merit of the proposed new allegations, but, rather, must show that the proffered amendment is not palpably insufficient or clearly devoid of merit.

Sorge v. Gona Realty, LLC, NY Slip Op 06409 (1st Dep't November 10, 2020)

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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)

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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)

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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)

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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.