An untimely notice of claim.

The Appellate Division unanimously affirmed the Order which granted defendants' motion to dismiss the complaint for failure to file a timely notice. Plaintiff failed to establish that defendants should be equitably estopped from asserting the defense that she has not complied with the statutory requirements, because she made no showing that the City engaged in conduct that misled or discouraged her from serving a timely notice or making an application for leave to file a late notice before the limitations period expired. Defendants' answer, which was served when plaintiff still had time to seek leave to file a late notice, notified her that there had been a problem with service of the notice because defendants' answer denied that the notice had been properly served. The fact that defendants litigated the matter and did not move for dismissal until after the limitations period had expired does not establish that defendants should be estopped from asserting a statute of limitations defense.

Tirado v. City of New York, NY Slip Op 01564 (1st Dep't March 18, 2021)

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CPLR 3212(f).

In this personal injury action, defendant's summary judgment motion was denied as premature, as depositions had not yet been held and the facts essential to oppose the motion are within defendant's exclusive knowledge and control.

Thomas v. Triboro Maintenance Corp., NY Slip Op 01526 (1st Dep't March 16, 2021)

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The faithless servant doctrine.

Pursuant to the doctrine, an employee or agent who is faithless in the performance of his duties is not entitled to recover either salary or commission. Here, defendant, a nonmanaging member of plaintiff, was not an employee and is not alleged to have acted on plaintiff's behalf as its agent, and there are no allegations that he funneled business away to a competitor or engaged in theft. Accordingly, the Appellate Division determined that plaintiff's faithless servant claim was correctly dismissed.

Two Rivs. Entities, LLC v. Sandoval, NY Slip Op 01527 (1st Dep't March 16, 2021)

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Collateral estoppel.

Defendant's contention that there is an issue of fact as to whether she was terminated from her position as a physician with plaintiff without giving the 90 days' notice required by her employment contract, or was verbally terminated by plaintiff's administrator is barred by the doctrine of collateral estoppel. In a separate action brought by defendant against the administrator, the court granted the administrator's motion to dismiss the action based on documentary evidence refuting defendants allegation that the administrator verbally terminated her before she resigned. Since the prior order addressed the same factual issue and found against defendant on the merits, she is precluded from relitigating that issue in this action.

14th Street Med., P.C. v. Epstein, NY Slip Op 01496 (1st Dep't March 16, 2021)

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Appellate practice.

The Appellate Division unanimously dismissed as moot the appeal from the Order which granted defendant-restaurant's motion to compel plaintiff to appear for a further deposition to answer questions relating to brain imaging and a motor vehicle accident that post-dated her fall, and to provide authorizations for medical records related to the imaging and the accident. Plaintiff's appeal is moot since the deposition to which she objects has already been held, she has provided authorizations for the medical records at issue, and she made no attempt to maintain the status quo prior to this appeal.

Salomon v. United States Tennis Assn., NY Slip Op 01492 (1st Dep't March 8, 2021)

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CPLR 510(3).

Where venue has properly been designated by the plaintiff based on the residence of either party, a defendant seeking a change of venue under CPLR 510(3) must make a detailed evidentiary showing that the nonparty witnesses will, in fact, be inconvenienced absent such relief. The movant's affidavit must (1) contain the names, addresses, and occupations of witnesses expected to be called; (2) disclose the facts upon which the witnesses are expected to testify, in order that the court may determine whether the witnesses are material and necessary; (3) demonstrate that the witnesses are willing to testify; and (4) show that the witnesses would be inconvenienced absent the change in venue.

10 Two Trees Lane LLC v. Mahoney, NY Slip Op 01371 (1st Dep't March 9, 2021)

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Arbitrable and non-arbitrable claims.

Where arbitrable and non-arbitrable claims are inextricably interwoven, the court will stay the judicial proceedings pending completion of the arbitration, particularly where, as here, the determination of issues in arbitration may dispose of nonarbitrable matters. The litigation was correctly stayed as to the individual defendants, who, although nonsignatories to the arbitration agreements, were employees, partners, and agents of defendant during the relevant time period and, acting for defendant, performed services for plaintiffs.

T & M Trusteeship & Mgt. Servs. SA v. BDO USA, LLP, NY Slip Op 01494 (1st Dep't March 11, 2021)

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Collateral estoppel, affidavits, and notices to admit.

The Appellate Division unanimously affirmed, with costs, the Order denying the parties' motions for summary judgment. The doctrine of collateral estoppel does not bar litigation of the issues decided in a Civil Court order and judgment entered in an earlier action between the parties since it was later vacated by the Appellate Term for lack of subject matter jurisdiction. Plaintiff failed to show prejudice arising from the motion court's acceptance of defendant's principal's corrected affidavit, originally submitted as an affirmation, pursuant to CPLR 2106. Nor can plaintiff rely on defendant's failure to respond to its notice to admit in support of its summary judgment motion because a notice to admit may not be used to request admission of material issues or ultimate or conclusory facts, or facts within the unique knowledge of other parties. Rather, a notice to admit is only properly used to eliminate from trial matters which are easily provable and about which there can be no controversy. Based on these principles, plaintiff's motion was properly denied. 

Utopia Heart Care, P.L.L.C. v. Gramercy Cardiac Diagnostic Servs., P.C., NY Slip Op 01373 (1st Dep't March 9, 2021)

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Post-judgment subpoenas.

The Appellate Division unanimously reversed, with costs, the Order which denied petitioner's motion to impose contempt sanctions personally on defendant's principal for failing to respond to post-judgment subpoenas, granted the motion, and remanded for the imposition of sanctions. This special proceeding was commenced to compel defendant to respond to an information subpoena and subpoena duces tecum. The Supreme Court found defendant in contempt due to its failure to respond, and gave defendant an opportunity to purge that contempt. On this motion, petitioner seeks an order holding both defendant and its principal in contempt for the continued failure and refusal to respond to the subpoenas. The motion court erred in failing to find the principal in contempt since he was served with the subpoenas and made assurances that defendant would comply, but has refused and failed to do so.

Matter of Goetz Fitzpatrick LLP v. OTR Media Group, Inc., NY Slip Op 01374 (1st Dep't March 9, 2021)

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Motions to reargue.

The movant may not advance a new argument in its motion for reargument. Nor is CPLR 5019(a) a proper vehicle for seeking changes to a prior order that would affect a substantial right of a party.

388 Realty Owner LLC v. Amtrust Intl. Underwriters Ltd., NY Slip Op 01350 (1st Dep't March 9, 2021)

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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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