CPLR 2221[e].

The Appellate Division unanimously reversed, with costs, the Order which denied plaintiffs' motion for leave to renew defendant's motion for summary judgment, granted the motion, and upon renewal, denied defendant's motion for summary judgment. Decedent had applied for a term life insurance policy, stating that his "Earned Annual Income" was $50,000. Decedent left his employment during the probationary period, and died while the policy was contestable, The insurance company rescinded the policy on the ground that decedent, on his application, had made a material misrepresentation as to his income. Plaintiffs brought this breach of contract action, and defendant moved for summary judgment before the close of discovery. While defendant's fully submitted motion was pending, there were three depositions, of an underwriting controls representative, a senior technical advisor, and the agent who sold the policy to decedent. The motion court granted defendant's motion for summary judgment, and then denied plaintiffs' motion for leave to renew defendant's motion based on these subsequently held depositions. The motion court should have granted plaintiffs motion for leave to renew in order to submit these deposition transcripts. Although the term "Earned Annual Income" was unambiguous and meant actual earned income, including salary, wages, and tips, and not potential income, the new evidence by way of the deposition transcripts raises a factual issue as to whether decedent's response amounted to a material misrepresentation sufficient to void the policy.

Han v. Brighthouse Life Ins. Co. of NY, NY Slip Op 01325 (1st Dep't March 4 2021)

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Appellate practice.

This appeal from an order appointing a temporary independent Guardian for the Alleged Incapacitated Person (AIP) and vacating her power of attorney and health care proxy in favor of appellant was unanimously dismissed as moot, as the AIP died during the pendency of the appeal. Appellant argues that the adverse finding concerning his handling of the AIP's affairs will affect him in the future, but he fails to indicate how he will be adversely affected. Any issues concerning the future award of fees to the temporary guardian may be raised in the event of an appeal of that award.

Matter of Muser v. Muser, NY Slip Op 01332 (1st Dep't March 4, 2021)

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A conditional order of preclusion.

Where defendants ignored a so-ordered stipulation which was a conditional order of preclusion, they are precluded from adducing evidence at trial. The order became self-executing when defendants took no action within the 30-day time limit in which they were to provide the requested discovery or "request [an] immediate conference" to explain why they could not do so. Defendants did neither.

Papadopoulos v. Metropolitan Transp. Auth., NY Slip Op 01434 (1st Dep't March 4, 2021)

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An invalid joint tenancy.

Plaintiff is a publicly traded closed-end investment company, and the individual defendant is the founder and controlling person of defendant management companies. Plaintiff moved for partial summary judgment declaring that certain brokerage accounts were not valid joint tenancies under New York law. The Appellate Division noted that there are two key features in every joint tenancy. First, during the life of the tenancy, each tenant is entitled to one-half of the assets, even if only one tenant may have established and contributed to the asset. Second, upon the death of one of the tenants, the whole fund will vest in the surviving joint tenant. Accordingly, the Appellate Division affirmed the motion court's conclusion that a valid joint tenancy was never created, regardless of the individual defendant's professed intent, because the Participant Agreement makes it clear that the participants were not entitled to one-half the funds in the accounts. Moreover, at least one version of the Participant Agreement limited the participants' entitlement to only 5%, as opposed to 100%, of the funds in the account in the event he or she outlived the individual defendant.

Prospect Capital Corp. v. Lathen, NY Slip Op 01431 (1st De['t March 4, 2021)

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CPLR 203(d).

The parties agreed in a written stipulation that plaintiffs could discontinue their prior action without prejudice and commence a new action on the same claims, provided it was timely done within 30-days of the discontinuance. Plaintiffs satisfied the stipulation's conditions when commencing this new action, and a stipulation between parties to discontinue a prior action should be given its intended effect. Defendants are not precluded from asserting a counterclaim in this new action despite not having asserted one in the prior action, even though the statute of limitations has run. The CPLR authorizes a defendant to assert any counterclaims or defenses that may arise out of the same transactions or occurrences upon which a claim in the complaint depends, provided such counterclaim or defense serves as only a shield to the extent of the demand in the complaint, and even though the counterclaim may be time-barred. Here, plaintiffs, in their complaint, allege that defendants breached the parties' agreements for providing elevator services and equipment. "Count 1" of defendants' counterclaim sufficiently pleads a counterclaim for quasi contract based on allegations that defendants provided elevator services and materials to plaintiffs and invoiced plaintiffs for such work, but plaintiffs never made payment on such invoices. "Count 2" of the counterclaim, which alleges detrimental reliance and promissory estoppel in connection with plaintiffs' alleged promises to pay defendants for their services and materials, lacks factual allegations of a sufficiently clear and unambiguous promise, reasonable reliance by defendants on the purported promises, and injury caused by the reliance. This claim is dismissed for failure to state a claim.

Rusi Holding Corp. v. Inner City EL, NY Slip Op 01344 (1st Dep't March 4, 2021)

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The City's liability for emergency calls.

The Appellate Division unanimously affirmed the Order which granted defendant City of New York's motion to dismiss the complaint pursuant to CPLR 3211(a)(7) and 3212(a). Plaintiffs claim that the City's agent negligently chose a lower priority radio dispatch code in response to the decedent off-duty police officer's 911 call regarding a possible burglary in the house next door, and that the use of a lower priority code resulted in police arriving later than they might have if a higher priority code had been used. The City established that the defense of governmental function immunity applies in this case, as its agent's duties inherently entailed the exercise of discretion and judgment, and that the assignment of an applicable dispatch code based on the limited information provided by the decedent resulted from discretionary decision-making. The court correctly dismissed plaintiffs' General Municipal Law § 205-e claim for failure to identify noncompliance with a requirement found in a well developed body of law or regulation that imposes clear duties.

Estate of Enchautegui v. City of New York, NY Slip Op 01231 (1st Dep't March 2, 2021)

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Vacatur of a default.

The Appellate Division unanimously reversed, on the law, the Order which granted defendant's motion to vacate the judgment, as defendant failed to demonstrate a reasonable excuse for its default or a meritorious defense to the action to justify vacatur. Plaintiff's service of process was deemed complete when defendant's registered agent in Delaware was served, regardless of whether it ultimately reached defendant. Moreover, the affidavit from defendant's CEO, stating that the email from the registered agent regarding service of process was sent to his "promotions" inbox, is simply insufficient to rebut the presumption of proper service. Defendant does not dispute that it breached its obligation to update its address with its registered agent, which led to its failure to receive service of process. Even if defendant's excuse were deemed reasonable, it failed to demonstrate a meritorious defense to the action. There is no evidence that defendant maintained the payments owed to plaintiff in a purported "reserve fund," or that plaintiff had knowledge of or ever agreed to the creation of such a fund. Indeed, emails from defendant's CEO to plaintiff's representatives suggest that defendant knew that it owed plaintiff the amounts sought.

Practice point: Defendant is also not entitled to relief under CPLR 317. Regardless of whether plaintiff served defendant's agent for service designated under CPLR 318, a meritorious defense is required under CPLR 317.

Salish Lodge LLC v. Gift Mgt. Inc., NY Slip Op 01239 (1st Dep't March 2, 2021)

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Amending an expert's affirmation.

The Appellate Division determined that, on a motion for summary judgment in this medical malpractice action, it was within the motion court's discretion to permit defendants, in their reply, to cure the technical defects in their expert's affirmation with an amended affirmation that included the term "under penalty of perjury."

Bamberg-Taylor v. Strauch, NY Slip Op 01227 (1st Dep't March 2, 2021)

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A storm-in-progress defense.

The Appellate Division unanimously affirmed the Order which granted defendants' motions for summary judgment dismissing the complaint. Their expert meteorologist opined that the icy condition on the staircase where plaintiff fell was the result of snowfall that day, which stopped approximately 35 to 40 minutes prior to the accident. A reasonable amount of time had not elapsed between the end of the snowfall and the accident to charge defendants with notice of the icy condition and a duty to remedy the condition. Further, plaintiff testified that she had not seen ice on the steps at any time before her accident. In opposition, plaintiff failed to raise an issue of fact. Her expert's conclusion that the melting and refreezing of accumulated snow from prior to the snowfall caused plaintiff's fall was speculative.

Ponce v. BLDG Orchard, LLC, NY Slip Op 01215 (1st Dep't February 25, 2021)

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The common interest privilege.

The privilege applies where the communications at issue are otherwise protected under the attorney-client privilege and are made in furtherance of a legal interest or strategy common to the parties invoking the privilege. The proponent of the privilege has the burden of establishing that the information sought is immune from disclosure.

Stafford v. A&E Real Estate Holdings, LLC, NY Slip Op 01956 (1st Dep't March 30, 2021)

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A claim for indemnification.

The Appellate Division unanimously reversed, on the law and the facts, with costs, the Order which denied third-party defendant's motion to dismiss the third-party complaint as against it. This is a putative class action in which plaintiff seeks to recover charges purported to be gratuities allegedly withheld from him and other catering service workers. The complaint alleges that defendant assessed mandatory charges to its customers, allowing them to believe that the charges were gratuities that would be distributed to waitstaff, and, instead, kept the charges for itself. Defendant commenced a third-party action against the company that supplied the waitstaff, seeking indemnification for damages that may be recovered from defendant in the first-party action. However, the third-party complaint alleges that defendant's mandatory charges to its customers were used to cover its own discretionary costs and does not allege that these charges were ever paid to or shared with third-party defendant. Moreover, there is no allegation either in the complaint or third-party complaint that third-party defendant wrongfully withheld any mandatory charges from the waitstaff. Further, defendant does not dispute third-party defendant's contention that it had nothing to do with defendant's decision to impose the mandatory charges or to retain them. Accordingly, defendant has not stated a cause of action for implied indemnification against third-party defendant.

Robinson v. Foremost Glatt Kosher Caterers, Inc., NY Slip Op 01219 (1st Dep't February 25, 2021)

Here is the decision.