CPLR 3012[d].

The Appellate Division unanimously reversed the Order which denied defendants' motion for an extension of time to respond to the complaint, and the Order which denied defendants' motion to dismiss the complaint, and granted both motions. Defendants proffered a reasonable excuse for their delay in answering by submitting an affidavit from their president and CEO, averring that they never received a copy of the summons and complaint that was served on the Secretary of State in August 2019, and only became aware of the lawsuit in October 2019 when the summons and complaint were mailed to their former employee. There is no evidence in the record that defendants' delay in responding to the complaint was willful, or that the three-month delay resulted in any prejudice to plaintiff.

Sukhu v. R.A.I.N. Home Attendant Servs., Inc., NY Slip Op 00098 (1st Dep't January 7, 2021)

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CPLR 4406.

The Appellate Division affirmed the denial of petitioner's second motion to set aside the verdict, as successive post-trial motions are not permitted.

Matter of Gonzales v. N.Y.C. Dept. of Citywide Admin. Servs., NY Slip Op 00014 (1st Dep't January 5, 2021)

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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)

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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)

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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)

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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)

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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)

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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)

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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)

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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.