There is no appeal as of right from the portion of the order sua sponte dismissing the complaint, pursuant to CPLR 5701[a][2]. However, the Appellate Division may deem the notice of appeal from that branch of the order a motion for leave to appeal, and grant leave, pursuant to CPLR 5701[c].
D'Arata v. NY Post, NY Slip Op 01232 (1st Dep't March 9, 2023)
There should be a reasonable opportunity to conduct discovery before the motion is decided. The party opposing the motion is entitled to further discovery when it appears that there may be facts supporting its position but those facts cannot yet be stated.
Cruz v. Fanoush, NY Slip Op 01178 (2d Dep't March 8, 2023)
Defendant's motion is denied since there was no misstatement of material fact in the certificate of readiness, which correctly stated that discovery was complete, and defendants failed to identify any outstanding discovery or to explain their delays in prosecuting the third-party action. Defendants' assertion that discovery might be necessary because one of the third-party defendants had indicated it would appear after defaulting does not warrant vacatur and a further delay in resolving plaintiff's claim.
Tatis v. Triborough Constr. Servs., Inc., NY Slip Op 01247 (1st Dep't March 9, 2023)
The parties entered into a written engagement agreement pursuant to which plaintiff agreed to provide legal services in connection with the proposed sale of defendant's business in exchange for the payment of plaintiff's hourly rates. Plaintiff would bill defendant upon the earlier of either defendant's abandoning the proposed sale or the closing of the proposed sale. The engagement letter permitted defendant to discharge plaintiff for any reason and at any time, upon reasonable notice. In the event of discharge, plaintiff would be entitled to all unpaid fees, costs, out-of-pocket expenses, and disbursements, within 30 days of being discharged. Plaintiff was also permitted to withdraw from representation of defendant under certain circumstances. In the event of withdrawal, defendant was to immediately pay all unpaid fees, costs, out-of-pocket expenses, and disbursements to plaintiff. The parties entered into an amended engagement agreement in which plaintiff agreed to defer payment for additional work until the end of the proposed sale engagement. The amended engagement agreement was substantially identical to the engagement letter. Plaintiff's retention ended acrimoniously.
The court rejects defendant's argument that it was entitled to partial summary judgment limiting plaintiff's recoverable fees to the ratable proportion of the work it completed based on plaintiff's initial fee estimate provided at the start of the parties' business relationship. The record is clear that the parties never agreed to a cap on fees and defendant does not eliminate any issues of fact concerning the amount of the fee estimate or explain what the pro rata share of fees would be.
Plaintiff is granted summary judgment as to liability since it established that there was a valid contract for legal services; that, pursuant to the contract, plaintiff performed legal work for defendant's benefit; and that, following termination of plaintiff's services, defendant has not paid plaintiff. The court defers for trial the issue of the amount of damages and the issue of whether the firm impermissibly charged an excessive fee.
White & Case LLP v. Shipman Assoc, LLC, NY Slip Op 01249 (1st Dep't March 9, 2023)
On a motion to dismiss made under CPLR 3211(a) or (b)], either party may submit any evidence that could properly be considered on a motion for summary judgment, regardless of whether issue has been joined. If a court intends to treat the motion as one for summary judgment, it must give the parties notice of its intention to do so, pursuant to CPLR 3211(c).
Champion Mtge. Co. v. Antoine, NY Slip Op 01176 (2d Dep't March 8, 2023)
Under New York law, the cause of action has four elements: (i) extreme and outrageous conduct; (ii) intent to cause, or disregard of a substantial probability of causing, severe emotional distress; (iii) a causal connection between the conduct and injury; and (iv) severe emotional distress.
Brown v. New York Design Ctr., Inc., NY Slip Op 01228 (1st Dep't March 9, 2023)
Leave to amend a pleading is freely given in the absence of prejudice or surprise to the opposing party, pursuant to CPLR 3025[b]. However, the motion will be denied where the proposed amendment is palpably insufficient or patently devoid of merit. Here, the plaintiffs' motion for leave to amend the complaint to add a claim for punitive damages is denied. The allegations are palpably insufficient to demonstrate that the defendant's conduct evinced a high degree of moral culpability or constituted willful or wanton negligence or recklessness.
Buccigrossi v. Glatman, NY Slip Op 01174 (2d Dep't March 8, 2023)
An attorney may withdraw from representing a client for good and sufficient cause. The attorney may be permitted to withdraw where the client refuses to pay reasonable legal fees. The decision to grant or deny permission for counsel to withdraw lies within the discretion of the trial court, and the court's decision will not be overturned absent a showing of an improvident exercise of discretion.
Bank of Am., N.A. v. Chadha, NY Slip Op 01173 (2d Dep't March 8, 2023)
It is well-settled that lower federal court decisions are not binding on New York state courts.
Teshabaeva v. Family Home Care Servs. of Brooklyn & Queens, Inc., NY Slip Op 01170 (1st Dep't March 7, 2023)
The Appellate Division may decline to consider an argument which is raised for the first time in a reply brief.
Indymac, F.S.B. v. Baroi, NY Slip Op 01142 (1st Dep't March 2, 2023)
Defendant's motion is granted in the interest of justice. In its moving papers, defendant does not advance a new legal theory, but, instead, presents new evidence from plaintiff's employer that plaintiff's accident occurred at a different site. Defendant also presents a reasonable excuse for its delay in obtaining the new evidence, namely, that its investigation into the accident was stymied by third-party defendant's refusal to comply with discovery and plaintiff's employer's refusal to comply with requests for information.
Sanchez v. Colorado Assoc., LLC, NY Slip Op 01151 (1st Dep't March 2 2023)