Motions to dismiss.

When a party moves to dismiss a complaint pursuant to CPLR 3211(a)(7), the standard is whether the pleading states a cause of action.  In considering the motion, the court must accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory. Affidavits submitted by a defendant will almost never warrant dismissal under CPLR 3211 unless they establish conclusively that the plaintiff has no cause of action. Where the movant relies upon evidence beyond the four corners of the complaint, the motion must be denied unless it has been shown that a material fact as claimed by the plaintiff is not a fact at all and unless it can be said that no significant dispute exists regarding it.

808 Union St., LLC v. J. Lehman Park Slope, LLC, NY Slip Op 02632 (2d Dep't May 17, 2023)

Here is the decision.

Specific performance of a contract for the sale of real property.

A party seeking specific performance of a contract for the sale of real property must establish not only that he was ready, willing, and able to close on the scheduled closing date, but also that the other party was in default.  Here, since there was never a time of the essence closing, nor even a future scheduled closing date, neither element is established. The cause of action is dismissed. 

141 Park Ave. Realties, Inc. v. 141 Park Ave. Holdings, LLC, NY Slip Op 02631 (2d Dep't May 17, 2023)

Here is the decision.

Breach of contract.

The plaintiff's' claim is dismissed because the complaint fails to allege, in nonconclusory language, the essential terms of the parties' purported contract, including the specific provisions upon which liability is predicated.

Unobagha v. Hilton Garden Inn Times Sq. N., NY Slip Op 02629 (1st Dep't May 16, 2023)

Here is the decision.

Service of process.

Service pursuant to CPLR 308(4) may be effected by affixing the summons to the door of either the actual place of business, dwelling place, or usual place of abode within the state of the person to be served and by either mailing the summons to such person at his last known residence or by mailing the summons by first class mail to the person to be served at his actual place of business. Ordinarily, a process server's affidavit of service constitutes prima facie evidence that the defendant was validly served. However, when the defendant submits a sworn denial of receipt of service containing specific facts to refute the statements in the affidavit, the prima facie showing is rebutted and the plaintiff must establish personal jurisdiction by a preponderance of the evidence at a hearing.

Aurora Loan Servs., LLC v. Simon, NY Slip Op 02485 (2d Dep't May 10, 2023)

Here is the decision.

Time-barred libel claims.

The complaint is time-barred insofar as it alleges statements made in June and July 2019. The statute of limitations for libel and slander runs from the date of publication, regardless of the fact that the libel may not have been discovered until later.  Plaintiff''s bare legal conclusion that the purported defamation continued into 2022 is insufficient to save the claims. Plaintiff's equitable estoppel argument fails, as he does not allege any subsequent and specific actions that kept him from timely bringing suit. In any event, even if plaintiff's claims were not time-barred, he fails to state a claim for defamation, as the complaint does not allege the exact words complained of or the time, place, and manner of the alleged defamation.

Biaggi v. O'Flynn, NY Slip Op 02584 (1st Dep't May 11, 2023)

Here is the decision.

A cause of action for negligent infliction of emotional distress.

The complaint must be premised upon the breach of a duty owed to the plaintiff which either unreasonably endangers the plaintiff's physical safety or causes the plaintiff to fear for his own safety. Here, the plaintiff seeks to hold the defendant vicariously liable its employee's conduct, and the complaint only alleges intentional conduct by the employee. Therefore, there is no basis for a cause of action sounding in negligence. The claim is dismissed.  

Aklipi v. American Med. Alert Corp., NY Slip Op 02483 (2d Dep't May 10, 2023)

Here is the decision.

Discovery motions.

Pursuant to 22 NYCRR 202.7(a)(2), a motion relating to discovery must be accompanied by an affirmation from moving counsel attesting that he has conferred with opposing counsel in a good faith effort to resolve the issues raised by the motion. The affirmation must specify the time, place, and nature of the conference, the issues discussed, and the result, or must state good cause why no such conference was held. Here, the affirmation referred to letter communications between the parties as well as conferences held with the Supreme Court, thereby evincing a diligent effort to resolve the dispute.

Adler v. Oxford Health Plans (NY), Inc., NY Slip Op 02482 (2d Dep't May 10, 2023)

Here is the decision.

Contract law.

As a general principle, only a non-party to a contract can be liable for tortious interference. At issue in the line of cases applying this principle is either a bilateral contract or a contract under which all defendants have the same obligations. The principle does not apply if the inducing party is subject to contractual duties that are different from those it allegedly encouraged another contracting party to breach. When breaching and inducing parties have different rights and duties, the plaintiff may plead tortious interference in order to make it whole.

Arena Invs., L.P. v. DCK Worldwide Holding Inc., NY Slip Op 02476 (1st Dep't May 9, 2023)

Here is the decision.

Settlement agreements.

The court found that the parties entered into a binding settlement agreement at the conclusion of mediation, the terms of which were embodied in an e-mail agreement. The e-mail correspondence is sufficient to embody a settlement agreement since it was authentic and sets forth all material terms. The settlement agreement specifically states that it is "subject to a formalized Settlement Agreement." In analyzing such language, courts must determine whether the parties have merely come to a preliminary agreement to agree, which is not enforceable, or a binding agreement, by determining whether there has been an explicit reservation that there would be no contract until the full formal document is completed and executed.

The parties' use of the phrase "subject to," standing alone, does not amount to an express reservation of the right not to be bound or a condition precedent to the formation of a binding contract. Instead,  the "subject to" language indicates the parties' expectation that they would come to a final agreement as a mere formality, not as a condition precedent to a binding settlement agreement. The parties' subsequent actions - including their correspondence with each other, their co-counsel, and the court - all indicate their respective understandings that the parties had come to a final settlement agreement resolving the related action in federal court.

Go N.Y. Tours, Inc. v. Tour Cent. Park Inc., NY Slip Op 02457 (1st Dep't May 9, 2023)

Here is the decision.

Vacating a default.

In order to vacate a default in appearing at a conference, the defaulting party must demonstrate both a reasonable excuse and a potentially meritorious cause of action or defense to the action. The determination of whether an excuse is reasonable lies within the sound discretion of the trial court. A court has discretion to accept law office failure as a reasonable excuse where the claim is supported by a detailed and credible explanation. However, law office failure should not be excused where the default results not from an isolated, inadvertent mistake, but from repeated neglect, or where the allegation of law office failure is vague, conclusory, and unsubstantiated.

Beach 28 RE, LLC v. Somra, N.Y. Slip Op 02295 (2d Dep't May 3 2023)

Here is the decision.

Disclosure of settlement agreements.

After a gas explosion, New York City and Con Ed, among other entities, were named as defendants in a number of actions. The City and Con Ed also asserted various claims against each other for property damage, indemnification, and contribution. At a court-ordered mediation, the City and Con Ed reached an agreement on the allocation of liability between them, and plaintiff seeks disclosure of their agreement.

When a nonsettling party seeks disclosure of the terms of a settlement agreement, the terms of the agreement must be material and necessary to the non-settling party's case.  After in camera review of the agreement, disclosure of its terms is prohibited. The agreement is not improper, as it does not demonstrate collusion or undermine the adversarial process because plaintiff may pursue discovery from both defendants.

Matter of Barrios v. Consolidated Edison Co. of N.Y., Inc., NY Slip Op 02378 (1st Dep't May 4, 2023)

Here is the decision.