Appellate practice.

Defendant's failure to seek dismissal of the claim before the trial court precludes seeking such relief on appeal. 

Villani v. Kings Harbor Multicare Ctr., NY Slip Op 00244 (January 14, 2021)

Here is the decision.

Recission.

The cause of action seeking the equitable remedy of rescission must be dismissed because plaintiffs have a complete and adequate remedy at law.

El Toro Group, LLC v. Bareburger Group, LLC, NY Slip Op 00246 (1st Dep't January 14, 2021)

Here is the decision.

Appellate practice.

Defendants argue that the appeal should be dismissed because plaintiff's appeal from the underlying summary judgment order has been deemed dismissed. However, after the judgment was entered, terminating the right of direct appeal from the order, plaintiff properly appealed from the judgment, pursuant to CPLR 5501[a][1], without any improper delay.

Walsh v. Pisano, NY Slip Op 00245 (1st Dep't January 14, 2021)

Here is the decision.

Waiver of arbitration.

In deciding whether arbitration has been waived, the court considers the extent of the litigation, the length of time between the start of litigation and the request to arbitrate, and whether there is prejudice to the other party. Here, there was service of amended pleadings, but no discovery or motion practice. The length of time between the start of litigation and the demand for arbitration was 26 months, but that length of time, without more, is not enough to effectuate a waiver, as the critical element is prejudice. The Appellate Division rejected the conclusory argument that plaintiff will not be able to properly defend the arbitration due to the passage of time. The statute of limitations defense is still available to plaintiff and can be argued before the arbitrator.

Matter of NBC Universal Media, LLC v. Strauser, NY Slip Op 00091 (1st Dep' January 7, 2021)

Here is the decision.

Appellate practice.

Plaintiff's arguments concerning waiver and whether arbitration would be futile are unpreserved, since they were first raised in reply and may not be raised on appeal.

Matter of NBC Universal Media, LLC v. Strausser, NY Slip Op 00091 (1st Dep't January 7, 2021)

Here is the decision.

Arbitration.

The Appellate Division unanimously affirmed, with costs, the Order which denied the petition to permanently stay arbitration. The court correctly found that the statute of limitations defense to the arbitration proceeding was a matter for the arbitrator to determine, because the choice of law provision containing the arbitration clause specifies that the agreement is to be "interpreted" under New York law, not that enforcement of the agreement is to be governed by New York law.

Matter of NBC Universal Media, LLC v. Strausser, NY Slip Op 00091 (1st Dep't January 7, 2021)

Here is the decision.

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)

Here is the decision.

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)

Here is the decision.

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)

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.