The court providently struck plaintiffs' expert disclosure, which failed to disclose the substance of the facts and opinions on which the expert was expected to testify, pursuant to CPLR 3101[d][1] and Rules of the Commercial Division of the Supreme Court, 13[c].
30-32 W. 31st St. LLC v. Heena Hotel, NY Slip Op 02055 (1st Dep't April 1, 2021)
The privilege applies where the communication is otherwise protected under the attorney-client privilege and is in furtherance of a legal interest or strategy common to the parties asserting the privilege. The proponent bears 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)
The Appellate Division unanimously affirmed dismissal of defendants' counterclaims for unpaid fees for services rendered before they failed to comply with a deadline set in an action in federal court. Where the attorney is discharged without cause, the recovery, in quantum merit, is limited to the reasonable value of the services rendered. However, where the discharge is for cause, the attorney has no right to compensation or a retaining lien, notwithstanding a specific retainer agreement. Here, as defendants do not challenge Supreme Court's finding, after a hearing, that plaintiff terminated them for cause in the prior action, recovery of unpaid fees is barred.
Vioni v. Carey & Assoc., LLC, NY Slip Op 01880 (1st Dep't March 25, 2021)
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)
