There is no appeal from an order entered on default, pursuant to CPLR 5511. The proper procedure is to move to vacate the default and, if necessary, appeal from the denial of that motion
Squitieri v. Kaufman, NY Slip Op 02350 (1st Dep't April 15, 2021)
The Appellate Division affirmed the Order which denied defendants' motion to vacate an order, on defendants' default, granting plaintiff's motion to strike their answer and counterclaims and for a default judgment as to liability on plaintiff's claims against them. Contrary to plaintiff's contention, the order denying defendants' motion to vacate the order striking defendants' answer and counterclaims and entering default judgment is appealable. Since the underlying order was decided on defendants default, that order was not itself appealable, pursuant to CPLR 5511, and the proper procedure was for defendants to move to vacate pursuant to CPLR 5015.
Yes Contr. Inc. v. CLST Enters. LLC, NY Slip Op 02351 (1st Dep't April 15, 2021)
Defendant did not waive his defense based on the release in the settlement agreement by failing to timely assert it, pursuant to CPLR 3211[e]), since he pleaded a defense based on contract in his answer, and a release is a contract. Plaintiffs could not be surprised or prejudiced by his assertion of the defense .
Riehm Corp. v. Brennan, NY Slip Op 02261 (1st Dep't April 13, 2021)
The Appellate Division reversed the Order granting the petition to permanently stay arbitration, denied the petition, and dismissed the proceeding. Where a contract with an arbitration provision affects interstate commerce, disputes arising thereunder are subject to the Federal Arbitration Act (FAA). Here, the surety agency agreement between corporations from different states gave rise to a finding of interstate commerce, and, therefore, was subject to the FAA. Although a New York court applying the FAA decides whether there is a valid agreement to arbitrate the particular dispute, the parties can agree to arbitrate gateway issues of arbitrability. The contract provides that, "If a dispute or disagreement arises in connection with this Agreement, including a dispute or disagreement as to its formation or validity, such dispute or disagreement shall be submitted to arbitration." Accordingly, the matter must proceed to arbitration.
Matter of Bergassi Group LLC v. Allied World Ins. Co., NY Slip Op 02265 (1st Dep't April 13, 2021)
Where there is a valid arbitration agreement, the court will direct the parties to arbitrate and the pending action is stayed, pursuant to to CPLR 7503(a). The arbitration itself should only be stayed when the only matter to be submitted to arbitration is clearly beyond the arbitrator's power. Where arbitrable and nonarbitrable claims are inextricably interwoven, the proper course is to stay judicial proceedings pending completion of the arbitration, particularly where.the determination of issues in arbitration may dispose of nonarbitrable matters.
Protostorm, Inc. v. Foley & Lardner LLP, NY Slip Op 02227 (1st Dep't April 8, 2021)
Where, as here, significant discovery is outstanding, the prospect of additional discovery, extended litigation, and increased exposure to liability is not prejudice sufficient to warrant denial of plaintiff's motion to amend.
St. Nicholas W. 126 L.P. v. Republic Inv. Co., LLC, NY Slip Op 02228 (1st Dep't April 8, 2021)
A party seeking an order of contempt based on an alleged violation of a court order must establish that there was in effect a lawful order of the court, clearly expressing an unequivocal mandate.
Matter of Donique T. v. Administration for Children's Servs., NY Slip Op 02230 (1st Dep't April 8, 2021)
Plaintiff's allegations that defendants share offices, officers, and ownership, along with conclusory allegations of "domination," are insufficient to allege alter ego liability.
Vitamin Realty Assoc. LLC v. Time Record Stor., LLC, NY Slip Op 02231 (1st Dep't April 8, 2021)
The motion court is afforded broad discretion in supervising disclosure, and, on review, its determinations will not be disturbed unless that discretion clearly has been abused. Here, defendants do not point to any flaw or error in the lower court's reasoning, and so they fail to satisfy the abuse of discretion standard. In addition, the Appellate Division determined that the motion court correctly found that defendants failed to demonstrate that an order of dismissal or preclusion was warranted by the record. It is well settled that the drastic remedy of striking a party's pleading, pursuant to CPLR 3126, for failure to comply with a discovery order is appropriate only where the moving party conclusively demonstrates that the non-disclosure was willful, contumacious or due to bad faith. Even if the proffered excuse is less than compelling, there is a strong preference that matters be decided on their merits.
Youwanes v. Steinbrech, NY Slip Op 02232 (1st Dep't April 6, 2021)
The Appellate Division unanimously affirmed the Order which denied plaintiffs' motion for summary judgment on their claims against defendants and granted defendants' cross motion for summary judgment dismissing the complaint. Defendants demonstrated by admissible evidence that plaintiffs received payments for services performed on a construction project in excess of the total amount they had invoiced, thereby shifting the burden to plaintiffs to present opposing evidence in admissible form sufficient to demonstrate the existence of a triable issue of fact. Plaintiffs' assertion that some of the payments they received were for services provided on a different project was supported only by an attorney's affirmation, which was insufficient to establish an issue of fact. Addordigly, the motion court properly concluded that defendants established their entitlement to summary judgment dismissing the complaint.
G Bldrs. LLC v. Bondex Ins. Co., NY Slip Op 02101
In order to establish prima facie entitlement to summary judgment in lieu of a complaint, a plaintiff must show that the defendant executed a promissory note that contained an unequivocal and unconditional obligation to repay, and that the defendant failed to repay in accordance with the note's terms. Here, the note stated that defendant unconditionally promised to pay plaintiff by the maturity date in exchange for the loan, and it is undisputed that defendant defaulted. Even if the note and the parties' investment were part of the same general transaction, the fact that the investment was not profitable is not a defense to the note, nor were the note and the investment so intertwined as to warrant a stay of judgment on the note. The note was part of an arms-length investment transaction between sophisticated, counseled parties, and the language obligated the defendant in his personal capacity. The fact that the note was secured by a membership interest in a business owned by defendant does not alter its essential character as an instrument for the payment of money only, and, accordingly, is immaterial to plaintiff's right to relief pursuant to CPLR 3213.
Jimmel Yang v. Shang Dai, NY Slip Op 02125 (1st Dep't April 6, 2021)