Appellate practice.

A defendant with a right to contribution from a co-defendant has standing to appeal dismissal of his cross-claim. Here, the cross-claim is reinstated, and the cross-claimant can seek recovery for his co-defendants' proportionate fault for plaintiff's injuries. 

Ortiz v. Maxon, NY Slip Op 05375 (1st Dep't September 29, 2022)

Here is the decision.

A breach of contract claim.

Defendant fails to establish, as a matter of law, that plaintiff waived his right to be compensated in accordance with the terms of a bonus provision in the parties' employment agreement. The evidence it submitted to show that plaintiff had accepted a bonus amount lower than that to which he was entitled does not demonstrate a clear manifestation of intent to relinquish the contractual right. Defendant's motion to dismiss is denied.

Ramirez v. Moab Capital Parners, LLC, NY Slip Op 05383 (1st Dep't September 29, 2022)

Here is the decision.

Respondeat superior and vicarious liability claims.

Directors and officers are not subject to personal liability for the torts of corporation employees merely as a result of their holding corporate office.

Schwartz v. Mount Sinai Hosp., NY Slip Op 05384 (1st Dep't September 29, 2022)

Here is the decision.

New York State and City Human Rights Law employment discrimination and retaliation claims.

The discrimination claims fail because the same supervisor who hired plaintiff in December 2015 fired him by early March 2016, undercutting any notion that plaintiff was mistreated due to his race, color, or national origin. The hostile work environment claims fail, because plaintiff withdrew the claims at his deposition after testifying that he did not consider race, color, or national origin when complaining that a coworker was hostile to him. The record also demonstrates nothing more than petty slights and trivial inconveniences arising from their arguments about the quality of his work and his use of his coworker's workstation and tools.

The retaliation claims fail, as plaintiff testified that no supervisor, coworker, or human resources personnel knew of an unrelated lawsuit he filed against his undergraduate institution, and he otherwise merely theorized that unnamed military or government agents, who were purportedly stalking him, bribed his supervisor to fire him or informed a coworker of the other action. 

The discrimination and retaliation claims also fail because plaintiff's disagreement with defendants' assessment of his performance is insufficient to raise an issue of fact as to whether poor performance was a pretext for unlawful conduct.

Weir v. Montefiore Med. Ctr., NY Slip Op 05301 (1st Dep't September 27, 2022)

Here is the decision.

Appellate practice.

Although plaintiffs' cross motion is denominated as one for leave to renew and reargue, they seek only reargument, and no appeal lies from the denial of a motion to reargue. The appeal is dismissed.

Yocum v. United States Tennis Assn. Inc., NY Slip Op 05302 (1st Dep't September 27, 2022)

Here is the decision.

The payment of damages in settled actions.

CPLR 5003-a requires a settling defendant to pay all sums due to the settling plaintiff "within twenty-one days of tender, by the settling plaintiff to the settling defendant, of a duly executed release and a stipulation discontinuing [the] action executed on behalf of the settling plaintiff."  Where a release and stipulation of discontinuance are tendered by mail, the 21-day period is measured from the receipt of those documents.  If the settling defendant fails to pay all sums due to the settling plaintiff within 21 days after the tender of the required documents, the statute authorizes the plaintiff to enter, without further notice, a "judgment . . . for the amount set forth in the release, together with costs and lawful disbursements, and interest." 

Levine v. American Multi-Cinema, Inc., NY Slip Op 05207 (2d Dep't September 21 2022)

Here is the decision.

An untimely answer.

In order to compel the plaintiff to accept an untimely answer, the defendant must demonstrate that there is a reasonable excuse for the delay and a potentially meritorious defense to the action. As an exercise of its discretion, the court may accept law office failure as a reasonable excuse, where there is a detailed and credible explanation. However, a pattern of willful default and neglect will not be excused.

Hingorani v. Venus Enters. 11 Corp., NY Slip Op 05206 (2d Dep't September 21, 2022)

Here is the decision.

Appellate practice.

The appeal must be dismissed because the right of direct appeal therefrom terminated with the entry of the order and judgment of foreclosure and sale in the action. The issues raised on the appeal are brought up for review on the appeal from that order and judgment.

Green Tree Servicing, LLC v. Fernando. NY Slip 05205 (2d Dep't September 21, 2022)

Here is the decision.

Vacatur of a default based on lack of notice.

A defendant may move to vacate the default on the ground of a lack of notice of the action, pursuant to CPLR 5015(a)(1). Pursuant to CPLR 317, if service was by means other than personal delivery, the defendant may be permitted to defend the action upon the court's finding that the defendant did not receive notice of the summons in time to defend and has a potentially meritorious defense. However, a conclusory and unsubstantiated denial of receipt of the summons and complaint is insufficient to establish lack of notice.

Gray v. Goodluck-Hedge, NY Slip Op 05204 (2d Dep't September 21, 2022)

Here is the decision.

Preliminary injunctions.

In order to succeed, the movant must establish (1) a probability of success on the merits, (2) a danger of irreparable injury in the absence of an injunction, and (3) a balance of the equities in the movant's favor. The decision whether to grant or deny a preliminary injunction is a matter which lies within the sound discretion of the Supreme Court.

Grassfield v. JUPT, Inc., NY Slip Op 05203 (2d Dep't September 21, 2022)

Here is the decision.

Claim preclusion.

Under the doctrine of res judicata, or claim preclusion, a valid final judgment bars future actions between the same parties on the same cause of action, as well as all other claims arising out of the same transaction or series of transactions, even if based upon different theories or if seeking a different remedy. 

Here, the Supreme Court incorrectly determined that this action constituted an improper collateral attack on the order and judgment of foreclosure and sale. This action does not challenge that order and judgment, but, instead, concerns the subsequent sale conducted pursuant to the order and judgment. Thus, the granting of the requested relief in the present action would not destroy or impair the rights established by the order and judgment of foreclosure and sale in the prior action.

Fernando v. Wilmington Sav. Fund Socy., NY Slip Op 05202 (2d Dep't September 21, 2022)

Here is the decision.