An alleged breach of fiduciary duty.

There is no fiduciary relationship where the contracting parties were engaged in an arms' length transaction, as it is a purely business relationship.

National Auditing Servs. & Consulting, LLC v. 511 Prop., LLC, NY Slip Op 07300 (1st Dep't December 22, 2022)

Here is the decision.

Sua sponte dismissal.

Plaintiff's motion to vacate the court's sua sponte dismissal is granted. The motion appended an agreement between the parties to vacate the dismissal. In addition, plaintiff's counsel explained that he failed to file the discovery stipulation as the motion court directed in its notices as he expected the outstanding discovery issues to be handled at an upcoming conference. The outstanding issues to be raised at the conference related to discovery was that owed by defendants, not plaintiff. Finally, the record shows no evidence that plaintiff was dilatory at any time during discovery. 

Avagyan v. 100 W. 74th St., LLC, NY Slip Op 07291 (1st Dep't December 22, 2022)

Here is the decision.

Appellate practice.

In reviewing a determination made after a nonjury trial, the Appellate Division's power is as broad as that of the trial court. As a result, the Appellate Division may render the judgment it finds warranted by the facts, taking into account that, in a close case, the trial court had the advantage of seeing and hearing the witnesses.

21st Mtge. Corp. v. Nodumehlezi, NY Slip Op 07212 (2d Dep't December 21, 2022)

Here is the decision.

Court holiday.

A judgment of foreclosure and sale.

Plaintiff established prima facie entitlement to summary judgment by submitting copies of the original note, mortgage, and loan modification, and evidence of the borrower's default in payment. Defendant failed to raise an issue of fact, as the unrecorded discharge of mortgage upon which defendant relies does not insulate a subsequent purchaser from prior claims, when the existence of such claims was apparent from the face of the record. If defendant had reviewed the public record, as required, it would have found that the purported discharge of mortgage had never been entered or recorded and that the original mortgage was still recorded.

US Bank NA v. 532 W. 187 LLC, NY Slip Op 07211 (1st Dep't December 20, 2022)

Here is the decision.

Spoliation of evidence.

A party seeking a sanction for spoliation must demonstrate that the party with control over the evidence had an obligation to preserve it at the time it was destroyed; that the evidence was destroyed with a culpable state of mind; and that the destroyed evidence was relevant to the party's position such that the trier of fact could find that the evidence would support the claim or defense. 

Blackstock v. AVR Crossroads, LLC, NY Slip Op 07179 (1st Dep't December 20, 2022)

Here is the decision.

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)

Here is the decision.

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)

Here is the decision.

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)

Here is the decision.