Liquidated damages.

Liquidated damages constitute the compensation which should be paid in order to satisfy any loss or injury flowing from a breach of a contract. A liquidated damages provision will be sustained if, at the time of the contract, the amount of actual loss is incapable or difficult of precise estimation, and the amount liquidated bears a reasonable proportion to the probable loss.  Whether the provision is an unenforceable penalty is a question of law for the court. The party seeking to avoid liquidated damages has the burden to prove that they are an unenforceable penalty.  In the absence of any countervailing public policy concerns, freedom of contract prevails in an arm's length transaction between sophisticated parties.

Seymour v. Hovnanian, NY Slip Op 07172 (1st Dep't December 15, 2022)

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A cause of action for breach of fiduciary duty.

The complaint will survive dismissal if it alleges, with sufficient particularity, (1) the existence of a fiduciary relationship, (2) misconduct by the defendant, and (3) damages directly caused by that misconduct, pursuant to CPLR 3016[b].

Board of Mgrs. of Van Wyck Glen Condominium v. Van Wyck at Merritt Park Homeowners Assn., Inc., NY Slip Op 07044 (2d Dep't December 14, 2022)

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The standard on summary judgment.

A motion for summary judgment will not be granted where the facts are in dispute, where conflicting inferences may be drawn from the evidence, or where there are issues of credibility. Where the papers show that there are triable issues of fact, the motion will be denied regardless of the sufficiency of the opposition.

Baab v. HP, Inc., NY Slip Op 07042 (2d Dep't December 14, 2022)

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A claim for unlawful termination and retaliation under the New York City Human Rights Law.

A complaint can survive dismissal if the plaintiff produces some evidence to suggest that at least one of the defendant's reason for the termination of employment was false, misleading, or incomplete. Here, the plaintiff failed to meet the standard. The general principle that the statute must be construed broadly in favor of plaintiffs is not a substitute for evidence.

Woolf v. Bloomberg L.P., NY Slp Op 07174 (1st Dep't December 15, 2022)

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CPLR 3213.

The motion court properly granted plaintiff's motion for summary judgment in lieu of complaint to enforce its guaranty against defendants as guarantors of the lease with the nonparty tenant, as plaintiff established the existence of the guaranty, the underlying debt, and the guarantor's failure to perform under the guaranty.

122 E. 42nd St., LLC v. Scharf, NY Slip Op 07141 (1st Dep't December 15, 2022)

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Vacatur.

A defendant seeking to vacate a judgment pursuant to CPLR 5015(a)(1) must demonstrate a reasonable excuse for the default and a potentially meritorious defense to the action,  Here, the defendant failed to provide a detailed and credible explanation for the default. Instead, the defendant submitted only an affidavit of an employee of its loan servicer averring that the defendant's agent for process had emailed the summons and complaint to the servicer, and the complaint had been misrouted in the servicer's email system. That conclusory and nondetailed allegation does not constitute a reasonable excuse warranting vacatur of the default. Accordingly, is not necessary to determine whether the defendant demonstrated a potentially meritorious defense to the action.

259 Milford, LLC v. FV-1, Inc., NY Slip Op 06898 (2d Dep't December 7, 2022)

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Article 78.

The complaint seeks to challenge the suspension of plaintiffs' New York State driving privileges as arbitrary and capricious on grounds that they were not properly notified of the Drivers Responsibility Assessment (DRA) imposed on them. Because plaintiffs' claims are cognizable under CPLR article 78, they are time-barred by the four-month statute of limitations of CPLR 217[1]. The fact that plaintiffs plead constitutional violations is to no effect, as such claims can be brought in an article 78 proceeding.

Ugo-Alum v. New York State Dept. of Motor Vehs., NY Slip Op 07018 (1st Dep't December 8 2022)

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A cause of action for negligent misrepresentation

In order to survive dismissal, the complaint must allege a special relationship of trust and confidence among the parties.  Here, the project at issue constitutes an arm's length business transaction, which precludes a claim that the parties had a relationship of trust and confidence. In addition, the cause of action requires that the special relationship between the parties exist before the relevant transaction, not as a result of it.

100 & 130 Biscayne, LLC v. EE NWT OM, LLC, NY Slip Op 06985 (1st Dep't December 8, 2022)

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Summary judgement on liability in a rear-end collision.

Plaintiff established prima facie that defendant was negligent by submitting his affidavit that defendant's vehicle rear-ended his vehicle as he slowed down or stopped to accommodate another vehicle that was merging in from his right, and defendant failed to provide a nonnegligent explanation for the collision. Plaintiff is not required to establish absence of comparative negligence on his part to be entitled to summary judgment on liability. Plaintiff's motion is not premature, as defendant did not demonstrate that facts essential to opposing the motion are exclusively within the knowledge and control of plaintiff, or explain what evidence could be uncovered in discovery that would augment his defenses on liability. 

Vasquez v. Strickland, NY Slip Op 06876 (1st Dep't December 1, 2022)

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A cause of action for misrepresentation.

Pursuant to CPLR 3016[b], the claim must be pleaded with particularity.

Velez v. Mitchell, NY Slip Op 06877 (1st Dep't December 1, 2022)

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Proper service of process.

It is well-settled that the court does not have personal jurisdiction over a defendant when a plaintiff fails to properly effectuate service of process. A process server's affidavit establishes a prima facie case as to the method of service and, therefore, gives rise to a presumption of proper service. Although bare and unsubstantiated denials are insufficient to rebut the presumption of service, a sworn denial of service containing specific facts generally rebuts the presumption of proper service established by the affidavit of service and necessitates a hearing. A minor discrepancy between the appearance of the person allegedly served and the description of the person served contained in the affidavit of service is generally insufficient to raise an issue of fact warranting a hearing. In addition, the discrepancies must be substantiated by something more than a claim by the parties allegedly served that the descriptions of their appearances were incorrect.

Here, the affidavits of service relied upon by the plaintiff constitute prima facie proof of proper service upon the defendants.  The defendants dispute the process server's description of the individual served. Specifically, they contend that the individual's weight, skin color, and height were not described accurately in the affidavits of service. The alleged discrepancy as to weight was unsubstantiated. As to skin color, the affidavits of service refer to the individual's race rather than to the actual color of her skin. As the defendants did not refute the description of the individual's race as black, this aspect of the description is unchallenged. The alleged height discrepancy alone is too minor to necessitate a hearing, particularly under the circumstances of the service in this case, in which the process server spoke to the individual through a window.

Bank of N.Y. Mellon v. Blackwood, NY Slip Op 06780 (2d Dep't November 30, 2022)

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