Appellate practice.

An argument that is raised for the first time on appeal is unpreserved for review by the Appellate Division.

Liebowitz v. Liebowitz, NY Slip Op 07710 (1st Dep't December 22, 2020)

Here is the decision.

50 years.

Discovery disputes.

The Appellate Division unanimously affirmed the Order which, to the extent appealed from, denied plaintiff's motions to strike the City defendants' answer or preclude the City from offering evidence at trial. Contrary to the City's contention, plaintiff's failure to submit an affirmation of good faith on her motion to strike the City's answer based on discovery failures was not fatal, in light of plaintiff's counsel's affirmation showing that the issue of whether the City's undisputedly late disclosures were willful, contumacious, or due to bad faith would not be resolved between the parties. However, plaintiff failed to demonstrate conclusively that the City's discovery failures were willful, contumacious or due to bad faith. Plaintiff's principal complaint is that the City disclosed new documents in support of its motion for summary judgment and on the eve of trial. She characterized the late disclosures as "guerilla" or "ambush" tactics, but did not explain how they affected her case. While the Appellate Division did not condone the City's actions, it agreed with the motion court that plaintiff failed to show that the late disclosures were part of a pattern to ignore or thwart discovery orders. 

Practice point:  If plaintiff did not believe that discovery was complete when she filed her note of issue, her remedy was to move to compel specific discovery.

Nugent v. City of New York, NY Slip Op 07715 (1st Dep't December 22, 2020)

Here is the decision.

Judicial estoppel.

The claim is not barred by judicial estoppel given that, even if contradictory, none of defendants' prior positions prevailed.

Patmos Fifth Real Estate, Inc. v. Mazi Bldg., LLC, NY Slip Op 07716 (1st Dep't December 22, 2020)

Here is the decision.

Sanctions.

Pursuant to 22 NYCRR 130-1.1, the court exercised its discretion in imposing sanctions against defendant, in the amount of $1,500 for plaintiff's attorney fees and costs, and $5,000 to the Lawyer's Fund for Client Protection, due to multiple acts of frivolous and dilatory litigation tactics. Defendant submitted three consecutive applications seeking to stay enforcement of the court's summary judgment order. After defendant's initial application was denied by the First Department, it sought a stay from the motion court without sufficiently informing it of the denial of relief. When the motion court also declined a stay, defendant again sought interim relief from the First Department.

Korn v. Sacco & Fillas LLP, NY Slip Op 07707 (1st Dep't December 22, 2020)

Here is the decision.

A motion for a default judgment.

The Appellate Division unanimously reversed, on the law, with costs, the Order which denied plaintiff's motion, and directed the Clerk to enter judgment accordingly. A plaintiff moving for a default judgment based on a defendant's failure to appear must submit proof of service of the summons and complaint and proof of the facts constituting the claim, pursuant to CPLR 3215[f]. Here, plaintiff established that the defaulting defendants have failed to answer the complaint, or to otherwise appear. While declaratory judgment will rarely, if ever, be granted solely on default, the Appellate Division determined that plaintiff sufficiently established the facts of its claim.

PV Holding Corp. v. AB Quality Health Supply Corp., NY Slip Op 07725 (1st Dep't December 22, 2020)

Here is the decision.

Appellate practice.

The Appellate Division determined that the appeal was timely filed. The panel rejected, as unpersuasive, plaintiffs' argument that the appeal should be dismissed because the notice of appeal from the judgment that incorporated the decision and order granting summary judgment was untimely.The initial filing was sufficient for jurisdictional purposes because the relief granted in the judgment is identical to that directed in the decision and order, pursuant to CPLR 5520 [c],

Vebeliunnas v. Overstrom, NY Slip Op 07732 (1st Dep't December 22, 2020)

Here is the decision.

The prevention doctrine.

If the promisor himself is the cause of the failure of performance of a condition on which his own liability depends, he cannot take advantage of the failure. The doctrine applies unless the parties contract around it, such as by including clear language allowing termination of the contract for any reason or at any time. Here, contrary to defendant's assertions, neither agreement provided defendant a unilateral right to terminate the contract. Instead, termination is clearly conditioned on defendant's right to operate being terminated by a third party, not itself, and no contractual language suggests the unqualified right defendant claims. The Appellate Division determined that the court providently granted plaintiff summary judgment on the breach of contract claim.

Vector Media, LLC v. Golden Touch Transp. of NY, Inc., NY Slip Op 07733 (1st Dep't December 22, 2020)

Here is the decision.

Elephant Walk.

The Appellate Division unanimously affirmed the Order which granted respondents' motion to dismiss the petition for a writ of habeas corpus on behalf of Happy, an elephant, and directed the Clerk to enter judgment dismissing the proceeding brought pursuant to CPLR article 70. The common-law writ of habeas corpus is limited to human beings. A judicial determination that species other than homo sapiens are "persons" for some juridical purposes, and, therefore, have certain rights would lead to a labyrinth of questions that common-law processes are ill-equipped to answer. The decisions of whether and how to integrate other species into legal constructs designed for humans is a matter better suited to the legislature.

Matter of Nonhuman Rights Project, Inc. v Breheny, NY Slip Op 07675 (1st Dep't December 17, 2020)

Here is the decision.