The Appellate Division modified the order and dismissed the claim, which alleges that defendants agreed to compensate plaintiffs with equity over the course of a 10-year period. The cause of action is barred by the statute of frauds, pursuant to General Obligations Law § 5-701[a][1], and the allegations, which relate to the breach of an oral agreement, are not a proper basis for a quantum meruit/quasi contract claim.
Razzak v. Juno, Inc., NY Slip Op 03153 (1st Dep't May 18, 2021)
Records exchanged during discovery may be used at, and are proper topics of questioning during, examinations before trial. The fact that some documents may be inadmissible at trial does not restrict use of those documents at examinations before trial.
Jones v. FEGS-WeCARE/Human Resources, NYC, NY Slip Op 03116 (1st Dep't May 13, 2021)
At issue here is a Facebook post that states, "Jim is a crook. Worst Company to do business with." As this post is merely an expression of opinion, it is not actionable. There is nothing in the post that implies that there are undisclosed facts to support the opinion, and the complaint is dismissed.
Rowbotham v. Wachenfeld, NY Slip Op 03125 (1st Dep't May 13, 2021)
The Appellate Division affirmed the Order which granted plaintiffs' motion to compel discovery to the extent of directing defendants to comply with certain specified requests and to submit to depositions. Although some of the information plaintiff seeks pre- and post-dates the contracts at issue, the information is material and necessary to its claims, pursuant to CPLR 3101[a], since plaintiffs allege that defendants warranted their financial condition when they entered into the contracts, that they may have misrepresented their financial condition, and that they failed to meet their financial obligations under the contracts. The post-contract events are relevant to plaintiff's claims and potential damages, given conflicting evidence as to whether defendant remained in business or had sold or otherwise transferred its assets to a successor entity, and since the contracts provided that their terms would be binding on the parties' respective successors and assigns.
Strategic Funding Source, Inc. v. Steenbok, Inc., NY Slip Op 03127 (1st Dep't May 13, 2021)
The Appellate Division affirmed the motion court's dismissal of plaintiff's claim for breach of the implied covenant of good faith and fair dealing as duplicative of the breach of contract claim. In support of this claim, plaintiff relies on the same facts that form the basis for the breach of contract claim and seeks the very same damages.
320 W. 115 Realty LLC v. All Bldg. Constr. Corp., NY Slip Op 03107
It is well settled that, absent allegations of a breach of duty independent of the contract, a cause of action based on negligent or grossly negligent performance of a contract is not cognizable. Here, the allegations of negligence relate only to defendants' alleged faulty performance of the construction work, which does not fall outside of the obligations agreed to under the contract. Plaintiff's attempt to rely on NY Lien Law article 3-A in an effort to establish an extra-contractual duty owed to plaintiff is unavailing. The allegations of negligence are not based on a breach of defendants' purported duty to pay subcontractors, but on defendants' alleged failure to perform the work properly. The negligence allegations are duplicative of those asserted in support of plaintiff's claim for breach of contract and the claim is dismissed.
320 W. 115 Realty LLC v. All Bldg. Constr. Corp., NY Slip Op 03107 (May 13, 2021)
Plaintiff alleges that (1) defendants, in order to induce plaintiff to sign the contract, submitted an artificially low price which they never intended to honor, and (2) defendants, from the start, did not intend to perform under the contract. However, a cause of action for breach of contract cannot be converted into one for fraud by merely alleging that defendant did not intend to fulfill the contract. Instead, an actionable claim for fraudulent inducement must allege the representation of present fact, not of future intent. As plaintiff makes no such allegations here, the claim is dismissed.
320 W. 115 Realty LLC v. All Bldg. Constr. Corp., NY Slip Op 03107 (1st Dep't May 13, 2021)
The Appellate Division affirmed the Order which denied defendant's motion to vacate a judgment entered upon her default. Following the adjournments of the pretrial conferences at which defendant failed to appear, the matter was set down for trial on March 21, 2018. Defendant failed to appear for trial due to a snowstorm on that date, and the matter was set down for trial on April 11, 2018 and marked final. Defendant again failed to appear, sending a message to the motion court through her business manager, on the day of trial, that she was ill. Given defendant's failure to make arrangements to appear on the trial date, either in person or through counsel, or in the three weeks thereafter, the motion court providently determined that her unsupported excuse for defaulting was unreasonable. Given this pattern of default, the motion court declined to reach the issue of whether defendant had a meritorious defense to the action, and, for the same reason, the Appellate Division declined to reach the issue.
1032-1034 Lexington Ave., Ltd. v. Rogers, NY Slip Op 02973 (1st Dep't May 11, 2021)
In the severance agreement, plaintiff agrees to release defendant "from any and all causes of action, claims or demands up to the date of this Agreement, known or unknown." This release bars the fraudulent inducement claim based on the allegedly false representation that plaintiff was terminated because of the company's strategic restructuring. In addition, the severance agreement advises plaintiff to consult with an attorney and allows her 45 days to sign and seven days to revoke after signing, undermining plaintiff's claims that the agreement was not fairly and knowingly made.
Evans v. Bloomberg L.P., NY Slip Op 02872 (1st Dep't May 6, 2021)
The Appellate Division affirmed the Order which, to the extent appealed from, denied plaintiff's motion to seize collateral located at defendant's premises, pursuant to CPLR 7102 and UCC 9-609(a), or, in the alternative, to appoint a temporary receiver, pursuant to CPLR 5228 and 6401. Plaintiff has not established that it is entitled to the remedy of seizing the collateral in defendants possession, which requires a showing of the probability of success on the merits. Plaintiff's probability of success is also affected by the fact that it is seeking to remove fixtures in the restaurant that may be the property of the nonparty landlord.
Nor did the court improvidently exercise its discretion in denying the motion to appoint a receiver. Pursuant to CPLR 6401(a), it is necessary to show that the property in question is in danger of being removed from the state, or lost, materially injured or destroyed. Plaintiff has made no such showing. To the extent that the collateral is in defendant's possession, plaintiff does not allege that defendant is trying to move the property out of state or that the property is in danger of being lost, materially injured, or destroyed. By all accounts, defendant is simply operating the pizzeria in the ordinary course of business, and there has been no showing that defendant is insolvent or related to the debtor, or that defendant did not pay a substantial sum to obtain the collateral. Thus, there is not the requisite special reason to appoint a receiver.
Itria Ventures LLC v. Beaver St. Pizza LLC, NY Slip Op 02874 (1st Dep't May 6, 2021)
The Appellate Division affirmed, with costs, the Order which denied the branch of defendants' motion for summary judgment on their counterclaims against plaintiff for breach of a purported settlement agreement between the parties and for a declaratory judgment to enforce the purported settlement agreement. Defendants failed to establish that, during the email exchange with plaintiff, there was a meeting of the minds, which is a necessary element to establishing the existence of an enforceable agreement. Moreover, given that the parties never came to an agreement on the number of shares to be transferred to plaintiff, a material term of the parties' agreement - which they contemplated discussing in future negotiations that would be reduced into a formal written agreement - defendants failed to meet their burden to establish that the purported settlement agreement was more than just an unenforceable agreement to agree.
Misopoulos v. LoveBug Nutrition, Inc., NY Slip Op 02875 (1st Dep't May 6, 2021)