A motion to reargue.

The Appellate Division unanimously reversed, on the law and the facts, with costs, the Order which granted defendant's motion for reargument, and, upon reargument, directed the Clerk to vacate the money judgment in plaintiffs' favor and to dismiss the action with prejudice The Appellate Division denied the motion, and directed the Clerk to reinstate the money judgment. The court improvidently exercised its discretion in granting defendant's motion for reargument, pursuant to CPLR 2221[d]. A motion for reargument must be based on matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion. Here, there was no prior motion to be reargued. Neither did the court overlook or misapprehend anything in its prior ruling or the resulting judgment, which entailed a straightforward mathematical calculation to arrive at the amount owing to plaintiffs under the loan. The Appellate Division said that it seemed that defendant's arguments in support of the motion were directed at undermining and circumventing its decision in a prior appeal, rather than at genuine reargument

Neo Universe Inc. v. Ito, NY Slip Op 00026 (1st Dep't January 5, 2021)

Here is the decision.

Appellate practice.

The Appellate Division will not consider contentions that are raised for the first time in an appellant's reply brief.

Price v. Turner Constr. Co., NY Slip Op 00039 (1st Dep't January 5, 2021)

Here is the decision.

The recovery of interest.

In an action in equity, the recovery of interest is within the court's discretion, and the exercise of that discretion will be governed by particular facts in each case. Here, the Appellate Division found that the motion court providently exercised its discretion in declining to limit interest, as there is no indication that plaintiff engaged in any wrongful conduct that would warrant such action.

U.S. Bank N.A. v. Beymer, NY Slip Op 00048 (1st Dep't January 5, 2021)

Here is the decision.

The doctrine of collateral estoppel.

The Appellate Division unanimously affirmed, with costs, the Order granting defendants' motion to dismiss plaintiffs' legal malpractice claim, in light of the prior findings in a related bankruptcy proceeding. The doctrine of collateral estoppel precludes a party from relitigating, in a subsequent action or proceeding, an issue that was clearly raised in a prior action or proceeding and decided against that party or those in privity. The motion court properly concluded that plaintiffs were in privity with the debtors in the prior proceeding, where the issue was the validity of the same loan transactions that underly the claim here. The Appellate Division rejected plaintiffs' argument that collateral estoppel does not apply because defendants were not parties to the prior proceeding. The law is clear that a party seeking to invoke the doctrine need not have been a party to the prior action. The Appellate Division also rejected plaintiffs' argument that their claims are not barred because there was no malpractice claim in the prior proceeding. As the motion court found, collateral estoppel precludes the relitigation of already decided factual issues, regardless of whether the causes of action are the same.

Bauhouse Group I, Inc. v. Kalikow, NY Slip Op. 00001 (1st Dep't January 5, 2021)

Here is the decision.

In rem tax foreclosure actions.

The Appellate Division unanimously affirmed the Orders which denied the motions to vacate the judgments of in rem foreclosures granted on default and the deeds transferring the properties. The judgments of foreclosure against the properties were duly entered in the office of the County Clerk, after publication of notices that complied with the applicable law, Administrative Code of City of NY § 11-406[c], as well as due process. Accordingly, the presumption of regularity of these proceedings, pursuant to Administrative Code § 11-411, became conclusive four months after entry of the judgments of foreclosure. As appellants did not make their motions to vacate the judgments or take any action to redeem the subject properties within the four-month period specified by § 11-412.1[d], the motions to vacate are time-barred, pursuant to § 11-412.1 [h].

Matter of In Rem Tax Foreclosure Action No. 52, NY Slip Op 08023 (1st Dep't December 29, 2020)

Here is the decision.

A contractual limitations period.

The Appellate Division unanimously reversed, with costs, the Order which granted plaintiff's motion to dismiss defendant's counterclaims, and denied the motion. Parties may contract for a shorter period to commence an action than set forth by statute, provided that the period is reasonable. However, the limitations period is unenforceable if the contract imposes a condition precedent that cannot reasonably be met within the contractual limitations period. In deciding that, the circumstances, not the time, must be the determining factor. The relevant question when deciding whether a limitations period is enforceable is whether and when the damages were objectively ascertainable. In addition, a contractual limitations period is unenforceable without a concrete determination of the accrual of damages. Here, the provisions setting a one-year limitation period for claims arising out of the contracts are reasonable on their face. However, the contracts also provide that payments by the owner are conditions precedent to any sums owed by plaintiff to defendant. It was neither fair nor reasonable to impose such a condition precedent, which was not within defendant's control, but had the capability of nullifying its claim. 

Turner Constr. Co. v. Nastasi & Assoc., Inc., NY Slip Op 08024 (1st Dep't December 29, 2020)

Here is the decision.

Motions to renew.

The Appellate Division unanimously affirmed, with costs, the Order which denied plaintiffs' motion to renew defendants' summary judgment motion, pursuant to CPLR 2221(e). The new affidavit, submitted by a former assistant, was merely cumulative of information that had already been presented to the court, and, therefore, was insufficient to warrant renewal. Plaintiffs also failed to provide a reasonable justification for the failure to submit the affidavit in a timely manner, pursuant to 2221[e][3]. While plaintiffs made some vague assertions regarding attempts to contact the affiant earlier, they have not put forth any specific information regarding their efforts to locate her or to obtain the affidavit. Further, the affidavit suggests that the affiant was simply busy with a move, travel, and an injury, and otherwise did not want to get involved with the case. Such a conclusory claim as to unavailability is not a valid excuse for not submitting the additional facts with the original application. Neither have plaintiffs provided an adequate explanation for the year-long delay between their obtaining the affidavit and their filing the motion. The Appellate Division noted that, even giving the affidavit full weight, the facts contained therein - which defendants largely contest - would not change the outcome of the case.

Wang v. LaFrieda, NY Slip Op 08025 (1st Dep't December 29, 2020)

Here is the decision.

Waiver as an equitable defense.

Waiver may be argued as an equitable defense to the remedy of rescission.

Colony Ins. Co. v. Danica Group, LLC, NY Slip Op 08026 (1st Dep't December 29, 2020)

Here is the decision.

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.