In order to avoid liquidated damages as an unenforceable penalty, there must be a showing either that damages flowing from a prospective contractual breach were readily ascertainable at the time the parties entered into their agreement, or that the liquidated damages clause is conspicuously disproportionate to these foreseeable losses.
VII MP Miami Hotel Owner, LLC v. Hycroft, LLC, NY Slip Op 03983 (1st Dep't June 16, 2022)
There is long-arm jurisdiction under the "transacts business" provision of CPLR 302(a)(1) because defendant's New York activities were purposeful and substantially related to plaintiffs' claims to recover on 11 notes and debentures signed by defendant. Defendant's principal purposefully transacted business in New York by negotiating the terms of 8 of the 11 notes and debentures during in-person meetings in New York. In connection with the loan transactions, defendant retained a New York firm to represent it, traveled to New York on multiple occasions to meet with plaintiffs' representatives to promote and provide progress reports on defendant's business, and established a continuing relationship with plaintiffs that lasted several years and spanned 11 separate loans, all of which is sufficient to satisfy the statutory test for long-arm jurisdiction.
4069 Rosen Assoc., LLC v. Tournamentone Corp., NY Slip Op 03864 (1st Dep't June 14, 2022)
The appeal must be dismissed because the defendant died before the date of the notice of appeal, and the attorney who filed the notice of appeal lacked authority to act on the decedent's behalf.
Ditech Fin., LLC v. Connors, NY Slip Op 03709 (June 8, 2022)
The denial of defendants' motion to dismiss is affirmed. Defendants, who were admittedly discharged for cause, failed to proffer any evidence that subsequent counsel did not adequately prepare plaintiff's rebuttal expert witness for his deposition during the underlying federal litigation. Therefore, they did not establish prima facie that, but for the intervening and superseding failures of plaintiff's successor counsel, plaintiff would not have lost at tria. The Appellate Division notes that defendants have not shown on this record that it was not their own alleged acts of malpractice that prevented plaintiff from prevailing in her federal lawsuit, including their failure to timely serve expert reports, obtain a discovery stay, and be truthful when they otherwise advised plaintiff and the court that the missed expert witness deadline was a deliberate, strategic decision.
Vioni v. Carey & Assoc., LLC, NY Slip Op 03805 (1st Dep't June 9, 2022)
A person is aggrieved within the meaning of CPLR 5511 when he asks for relief but relief is denied in whole or in part, or when someone opposes the relief asked against him, and the relief is granted in whole or in part. Here, since the defendant is not aggrieved by the order appealed from, the appeal must be dismissed.
Countrywide Home Loans, Inc. v. Connors, NY Slip Op 0370 (2d Dep't June 8, 2022)
A general contractor's general supervisory authority, without more, is insufficient to impose liability.
Zherka v. Hudson Meridian Constr. Group LLC, NY Slip Op 03704 (1st Dep't June 7, 2022)
No appeal lies from the branches of the two orders denying reargument.
2497 Realty Corp. v. Fuertes, NY Slip Op 03678 (1st Dep't June 7, 2022)
The rejection of a party's errata sheet for his deposition testimony does not render the errata sheet inadmissible. Here, the plaintiff's statement of the reasons for making the revisions was sufficient justification for the five minor changes that he made, which were consistent with other portions of his testimony. Accordingly, the weight to be afforded to the plaintiff's errata sheet and the effect on his credibility, if any, are issues to be assessed by the trier of fact.
Hernandez v. NY Prepaid Wireless LLC, NY Slip Op 03573 (1st Dep't June 2 2022)
A party who assumes a certain position in a prior legal proceeding and secures a favorable judgment therein is precluded from assuming a contrary position in another action simply because its interests have changed. Here, the doctrine of judicial estoppel is inapplicable because the plaintiff did not receive a favorable judgment in the prior proceeding.
Under the doctrine of res judicata, or claim preclusion, a disposition on the merits bars litigation between the same parties, or those in privity with them, of a cause of action arising out of the same transaction or series of transactions as a cause of action that either was raised or could have been raised in the prior proceeding. Here, the docrrine is inapplicable because the 2013 action was dismissed for lack of standing, without reaching the merits of the foreclosure claim itself.
Capital One, N.A. v. Trubitsky, NY Slip Op 03492 (2d Dep't June 1, 2022)
A real estate broker claiming entitlement to an earned commission must allege that he was the procuring cause of the transaction. There must be a showing of something beyond the broker's mere creation of an amicable atmosphere or an amicable frame of mind that might have led to the ultimate transaction, but the broker need not control the transaction, and the broker need not negotiate the transaction's final terms or be present at the closing. The procuring cause standard applies equally to causes of action sounding in breach of contract and quasi contract, such as claims for quantum meruit and unjust enrichment.
LHWS LLC v. S.L. Green Realty Corp., NY Slip Op 03574 (1st Dep't June 2, 2022)
In order to prevail on a motion to hold another party in civil contempt, the movant must prove, by clear and convincing evidence: (1) that a lawful court order was in effect, clearly expressing an unequivocal mandate; (2) the appearance, with reasonable certainty, that the order was disobeyed; (3) that the party to be held in contempt had knowledge of the court's order; and (4) prejudice to the right of a party to the litigation. The burden then shifts to the alleged contemnor to refute the movant's showing, or to offer evidence of a defense, such as an inability to comply with the order.
Board of Mgrs. of Brightwater Towers Condominium v. M. Marin Restoration, Inc., NY Slip Op 03491 (2d Dep't June 1, 2022)