A guarantor's liability.

Plaintiff, a minority member of defendant-LLC, seeks to enforce a buyout right provided in the LLC's operating agreement and personally guaranteed by the individual defendants, the majority members of the LLC. The terms of the put option in the agreement are clear and unambiguous, including a trigger date and a means of calculating the buyout price. Plaintiff demonstrated prima facie that it gave proper notice of its intent to invoke the buyout option and that defendant LLC did not make payment, and defendants raised no issue of fact precluding summary judgment. As for the individual defendants' liability, the operating agreement provides that they each, jointly and severally, personally guaranteed the LLC's obligation under the buyout option. Defendants' reliance on cases involving the personal liability of corporate officers for the contractual obligations of the corporation is misplaced because defendants did not sign the agreement on behalf of any principal, disclosed or otherwise. Instead, the operating agreement was entered into by and among the individual members to form the LLC and set forth the terms governing the relationships among them. In any event, they each signed the agreement individually, without any limitation on their signatures, and the individual defendants' obligation to personally guaranty the buyout option is set forth in clear and explicit language, making their intent unmistakable. Defendants' further argument that there was no consideration for their guaranty is unavailing. The minority members' investment provided consideration for their undertaking and, because the guaranty was entered into concurrently with the principal obligation, no separate consideration was required.

TKS Realty, LLC v. 391 Broadway LLC, NY Slip Op 01735 (1st Dep't March 23, 2021)

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An inconsistency between the decision and the judgment.

A written judgment must conform strictly to the court's decision, and in the event of an inconsistency between the two, the decision controls. Any such inconsistency may be corrected either by way of a motion for resettlement, pursuant to CPLR 2221, or on appeal, pursuant to CPLR 5019[a]. Here, the motion court's decision, amended to grant plaintiff's motion for summary judgment on his cause of action for breach of contract, also found that plaintiff was entitled to a money judgment for past due amounts owed. Because there is a conflict between the relief the motion court found plaintiff was entitled to in its decision, and the relief granted to plaintiff in the judgment, which made no provision for a money judgment as to plaintiff, the court's decision controls.

Schwartzbard v. Cogan, NY Slip Op 01523 (1st Dep't March 16, 2021)

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The "danger invites rescue" doctrine.

Under the doctrine, there is a duty of care toward a potential rescuer where a culpable party has put another person in a position of imminent peril which invites the rescuing plaintiff to come to the aid of the person in peril. The doctrine applies where a potential rescuer reasonably believes that another is in peril, and the court will decide the applicability of the doctrine on the facts and circumstances of each case. Here, the plaintiff was an emergency medical technician who slipped on ice while transporting a patient from the sidewalk to the ambulance.  The doctrine is inapplicable, as there is no evidence that plaintiff was unable to see and avoid the slippery condition on the basis that the patient was endangered if she was not transported immediately to the hospital.

Benny v. Concord Partners 46th St. LLC, NY Slip Op 01550 (1st Dep't March 18, 2021)

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A claim of trade libel.

Plaintiffs allegations that, upon information belief, they "lost multiple clients based on the series of websites published by the Pacellis and John Does" and that they "have had to pay expenses to protect their reputation, including an online reputation management and monitoring company and attorneys" are insufficient to plead the special damages element of the cause of action. 

Cedeno v. Pacelli, NY Slip Op 01552 (1st Dep't March 18, 2021)

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Arbitrability of discrimination claims.

The Appellate Division unanimously reversed the Order which denied defendant's motion to compel arbitration of plaintiff's claims of sexual harassment in the workplace and retaliation, and granted the motion. Generally, when a contract delegates the arbitrability question to an arbitrator, a court may not override the contract and has no power to decide the arbitrability issue. Here, though, the motion court properly undertook an analysis of the threshold question of the arbitration agreement's enforceability because plaintiff's sexual harassment claims involve strong public policy considerations and the application of CPLR 7515, which prohibits agreements that compel arbitration of discrimination claims. Plaintiff's reliance on CPLR 7515 is unavailing, as it is not applicable to arbitration agreements, like the one at issue, that were entered into before the statute was enacted in 2018. Accordingly, the Appellate Division did not have to resolve defendant's further contention that the Federal Arbitration Act, which is expresly applicable to the employment agreement at issue here, is inconsistent with, and therefore displaces, CPLR 7515 to the extent that it prohibits outright a specific type of claim. Plaintiff's contention that revisions to defendant's employee handbook, rendered in 2018, superseded the arbitration agreement is also unavailing. The issue of whether the policy revisions supersede the arbitration agreement is one for the arbitrator to decide, as the arbitration agreement contains a delegation clause and this issue does not involve strong public policy considerations.

Newton v. LVMH Moet Hennessy Louis Vuitton Inc., NY Slip Op 01558 (1st Dep't March 18, 2021)

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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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