The Appellate Division rejected the argument that the limitations period on the claim for aiding and abetting breach of fiduciary duty is three years because plaintiff seeks damages, not equitable relief, noting that where, as here, the claim is based on allegations of actual fraud, it is subject to a six-year limitations period.
Wimbledon Fin. Master Fund, Ltd. v. Hallac, NY Slip Op 01881 (1st Dep't March 26, 2021)
The breach of fiduciary duty claim was dismissed as barred by the three-year statute of limitations, pursuant to CPLR 214[4]. In seeking recovery of compensation that plaintiff paid its decedent-employee during the time he allegedly engaged in an insider trading scheme, plaintiff seeks purely monetary relief, not equitable relief for which an award of monetary damages would be inadequate. Plaintiff's characterization of that relief as "disgorgement" of compensation does not convert it into a claim for equitable relief to which the six-year statute of limitations would apply, pursuant to CPLR 213[1].
VA Mgt. LP. v. Estate of Valvani, NY Slip Op 01878 (1st Dep't March 25, 2021)
The Appellate Division unanimously affirmed, with costs, the Order which granted defendants' motion to dismiss the complaint. Plaintiff's allegations are conclusively refuted by documentary evidence, namely, plaintiff's assignment of its interest in the condominium's sponsor entity and the subsequent deeds in which title to the unit appurtenant to the parking ramp at the center of the dispute was transferred to another entity, showing that plaintiff did not own the ramp. Plaintiff's bad faith in filing an unauthorized amendment to the condominium declaration, after assigning away its interest, to purport to obtain title to the ramp, without any colorable basis for doing so, renders its urging for equity unavailing.
Sackman Enters. Inc. v. Board of Mgrs. of the Chesterfield Condominium, NY Slip Op 01732 (1st Dep't March 23, 2021)
CPLR 3211(e) states that, "At any time before service of the responsive pleading is required, a party may move on one or more of the grounds set forth in subdivision (a), and no more than one such motion shall be permitted." A second motion to dismiss is permitted where the movant takes its cue from the court's earlier decision to supply evidence that was found lacking on the first motion. Here, the Appellate Division held that the arguments relating to the application of the statute of limitations are barred by the single motion rule. Defendants-appellants previously moved to dismiss the fourth and fifth causes of action in the Second Amended Complaint, which are the exact same fourth and fifth causes of action asserted in the Third Amended Complaint.
Simon v. FrancInvest, S.A., NY Slip Op 01733 (1st Dep't March 23, 2021)
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)
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)
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)
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)
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)
Here is the decision.
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)
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)