Motion to vacate dismissal denied.

The Appellate Division affirmed the Order which denied plaintiffs' motion to vacate the earlier order that dismissed the complaint due to their default in opposing defendant's CPLR 3126(3) motion to dismiss, and their numerous failures to comply with the court's discovery orders and to appear for court conferences. Plaintiffs failed to demonstrate both an excusable default and a meritorious defense, pursuant to CPLR 5015[a]. Plaintiffs gave no reasonable excuse for their failure to oppose dismissal, their longstanding pattern of noncompliance with discovery demands and multiple court orders, or their failure to appear at scheduled court conferences. When moving for vacatur, plaintiffs failed to submit medical evidence establishing that their counsel was suffering from a mental condition which would have caused such noncompliance. Plaintiffs also failed to provide sufficient evidence of the merit of the underlying claims insofar as an independent medical examination report was submitted in place of a detailed expert affidavit. Plaintiffs' subsequent medical affidavits were improperly submitted for the first time in reply. The preference for deciding cases on the merits will not justify vacating a default judgment where the moving party has failed to satisfy its burden of establishing a reasonable excuse for the default or a meritorious case.

Liparulo v. New York City Health & Hosps. Corp., NY Slip Op 02464 (1st Dep't April 22, 2021)

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Summary judgment in a slip and fall action.

At the 50-h hearing regarding the fall on a stairwell, plaintiff offered no evidence of any defect, let alone notice of any defect. He contradicted this testimony with the errata sheet, in which he changed the theory from his foot "catching," presumably on some uneven surface, to his foot "slipping" on a "worn" surface. Plaintiff offered no explanation for the changes in the errata sheet, and so they are not cognizable and he is bound by his original hearing testimony, pursuant to CPLR 3116[a]. Plaintiff attempts to cure this defect by raising the same theory of slipping on a worn surface in his opposition affidavit. However, this raises only feigned issues of fact, however. Plaintiff attempts to generate issues of fact by pointing to the testimony of one of defendant's witnesses to the effect that, after the fall, the New York City Department of Buildings issued a violation and the New York City Department of Citywide Administrative Services replaced all of the steps in the subject building and improved the steps' tread and nosing. However, evidence of post-accident repairs is inadmissible and cannot be used as prior notice of a defect. The fact that the evidence of subsequent repairs might be admissible to show that defendant knew the location of the accident does not render the evidence admissible as proof of fault, nor cure the lack of any triable issue of fact on that account.

Lopez v. City of New York, NY Slip Op 02465 (1st Dep't April 22, 2021)

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Appellate practice.

Defendants may not argue for the first time on appeal that they are entitled to the recklessness standard of care of Vehicle and Traffic Law § 1103(b), because the question of whether the statute is applicable to this traffic accident is not a pure question of law and depends on facts that are not in the record. 

Salodkaya v. City of New York, NY Slip Op 02478 (1st Dep't April 22, 2021)

Here is the decision.

Service of process.

The Appellate Division reversed the Order which denied defendant's motion to vacate the default judgment or to dismiss the action, and granted the motion to the extent of remanding the matter for a traverse hearing to determine whether the court had jurisdiction to render the default judgment. Defendant's sworn, nonconclusory statement and documentary evidence that the apartment at which he allegedly was served was not his actual dwelling place or usual place of abode raised an issue of fact as to whether plaintiff validly served him with process pursuant to CPLR 308(2). Accordingly, a traverse hearing should be held to determine whether defendant is entitled to relief from the judgment pursuant to CPLR 5015(a)(4).

U.S. Bank N.A. v. Abu, NY Slip Op 02480 (1st Dep't April 22, 2021)

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Sanctions.

The Appellate Division determined that the trial court providently declined to award sanctions to plaintiff. Defendants' conduct during discovery in serving purportedly deficient boilerplate initial responses, later supplemented by thorough responses, did not rise to the level of frivolous conduct warranting sanctions under 22 NYCRR 130-1.1.

YRN LLC v. Migos LLC, NY Slip Op 02482 (1st Dep't April 22, 2021)

Here is the decision.

A motion to change venue.

The Appellate Division found that Supreme Court improvidently exercised its discretion in granting defendants' motion, and reversed. Defendants failed to show the existence of material witnesses who would be inconvenienced and the substance of their testimony, pursuant to CPLR 510[3]. In fact, defendants did not identify any proposed nonparty witnesses and merely claimed, without any evidentiary support, that material witnesses would be inconvenienced by having to travel to Bronx County. The presumption that a witness will be inconvenienced merely because the courthouse is in a different county is unwarranted, and while the county of occurrence is a factor to be considered, defendants still had the burden of showing the inconvenience that would be sustained by the witnesses if required to testify in Bronx County.

Tawiah v. McNiff, NY Slip Op 02374 (1st Dep't April 20, 2021)

Here is the decision.

Economic duress in contract.

The mere threat by one party to breach a contract by not delivering merchandise, though wrongful, does not, in and of itself, constitute economic duress. It must also appear that the threatened party could not obtain the goods from another source and the ordinary remedy of an action for breach of contract would be inadequate. In addition, one who seeks to recover based on economic duress must act promptly to make its claim known, and its failure to act can be viewed as a ratification of a contractual modification. Here, the court properly found that plaintiff failed to demonstrate a triable issue of fact as to why an action for breach of contract would have been inadequate at the time of the breach, and why it waited 2 ½ years to bring the action.

Gateway Overseas Inc. v. Sumec Textile & Light Indus. Co., Ltd., NY Slip Op 02342 (1st Dep't April 15, 2021)

Here is the decision.

Advance payment retainers.

Where, as here, the retainer agreement is an advance payment retainer, the attorney is permitted to put the retainer funds in his operating account.

Gaulsh v. Diefenbach PLLC, NY Slip Op 02343 (1st Dep't April 15, 2021)

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Sanctions.

The Appellate Division reversed the Order which sua sponte imposed sanctions in the amount of $10,000 on each of the parties, pursuant to 22 NYCRR 130-1.1. Although Supreme Court has the authority to sua sponte raise the issue of sanctions, the parties must be given a reasonable opportunity to be heard before sanctions are actually imposed. Here, the parties' appearance before the court was in connection with an application to for an interim stay of an ongoing trial based upon a disputed arbitration agreement. Supreme Court raised the issue of sanctions for the first time during that appearance. The appearance was brief and mostly related to the issue of the interim stay. While Supreme Court raised valid concerns about whether the parties were wasting valuable court time, when after multiple days of trial had been completed they put before the court a disputed agreement to arbitrate the very issues that were being addressed at trial, the parties were not given a reasonable opportunity to address the court's concerns. The Appellate Division remanded to the Supreme Court to give the parties an opportunity to be heard on the issue of sanctions.

Melohn v. Melohn, NY Slip Op 02344 (1st Dep't April 15, 2021)

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Appellate practice.

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)

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Appellate practice.

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)

Here is the decision.