The court denies the pre-discovery motion as premature based on plaintiff's showing that facts essential to justify opposition to defendant's motion may lie within defendant's exclusive knowledge or control, pursuant to CPLR 3212[f].
North Flatts LLC v. Belkin Burden Goldman, LLP, NY Slip Op 02954 (1st Dep't June 1, 2023)
A motion seeking leave to intervene, whether made pursuant to CPLR 1012 or 1013, must include the would-be intervenor's proposed pleading, as required by CPLR 1014. Here, the movant did not submit a proposed pleading with the motion for leave to intervene. Neither did the movant submit an affidavit which in some cases may excuse the failure to attach a proposed pleading. The motion is denied.
U.S. Bank Trust N.A. v. 21647 LLC, NY Slip Op 02955 (1st Dep't June 1, 2023)
A party to a contract cannot rely on another's failure to perform a condition precedent where he himself has frustrated or prevented the occurrence of the condition. Therefore, absent a breach on the part of the seller, a purchaser who defaults on a real estate contract without lawful excuse cannot recover its down payment.
Agosta v. Abraham, NY Slip Op 02934 (1st Dep't June 1, 2023)
Generally, the issue of whether a dangerous or defective condition exists depends on the particular facts of each case, and is properly a question of fact for the jury to decide. However, injuries resulting from trivial defects are not actionable and may be decided as a matter of law. A defendant seeking dismissal of a complaint on the basis that the alleged defect is trivial must make a prima facie showing that, under the circumstances of the case, the defect is physically insignificant and that the characteristics of the defect or the surrounding circumstances do not increase the risks it poses. On that showing, the burden shift to the plaintiff to establish an issue of fact so as to survive dismissal. In determining whether a defect is trivial, the court must examine all of the facts presented, including the defect's width, depth, elevation, irregularity, and appearance, along with the time, place, and circumstance of the injury. Photographs which fairly and accurately represent the accident site may be used to establish that a defect is trivial and, therefore, not actionable.
Balbo v. Greenfield's Mkt. of Bethpage, LLC, NY Slip Op 02860 (2d Dep't May 31, 2023)
Pursuant to the Uniform Civil Rules for the Supreme Court and the County Court, at 22 NYCRR 202.8-b[a], [c], moving papers must include a word-count certification. Failure to submit the certification is a technical defect that the motion court should overlook. However, failure to comply with the requirements of 22 NYCRR 202.7 cannot be overlooked. Pursuant to that rule, a discovery motion must be accompanied by moving counsel's affirmation that he or she has conferred with opposing counsel in a good-faith effort to resolve the issues raised by the motion. The purpose of this rule is to avoid the unnecessary expenditure of limited judicial resources in circumstances where, through constructive dialogue, the attorneys could resolve the issues that otherwise would be raised in a motion. The affirmation must indicate the time, place, and nature of the consultation and the issues discussed and their resolution, or good cause why no such conferral was held. The failure to submit the affirmation warrants denial of the motion.
Anuchina v. Marine Transp. Logistics, Inc., NY Slip Op 02858 (2d Dep't May 31, 2023)
Pursuant to CPLR 3215(f), an applicant for a default judgment against a defendant must submit proof of service of the summons and complaint, proof of the facts constituting the claim, and proof of the defaulting defendant's failure to answer or appear. In order to demonstrate the facts constituting the claim, the movant need only submit sufficient proof to enable a court to determine that there is a viable cause of action. In opposition to a motion for leave to enter a default judgment, the defendant who has failed to timely appear or answer the complaint must provide a reasonable excuse for the default and demonstrate a potentially meritorious defense to the action. Whether a proffered excuse is reasonable is a sui generis determination to be made by the court based on all relevant factors, including the extent of the delay, whether there has been prejudice to the opposing party, whether there has been willfulness, and the strong public policy in favor of resolving cases on the merits. The determination of what constitutes a reasonable excuse lies within the discretion of the motion court. Where the defendant fails to demonstrate a reasonable excuse for its default, the court need not consider whether the defendant possesses a potentially meritorious defense to the action.
Cartessa Aesthetics, LLC v. Demko, NY Slip Op 03328 (2d Dep't June 21, 2023)
Whether an early termination fee is an enforceable liquidation of damages or an unenforceable penalty is a question of law, giving due consideration to the nature of the contract and the circumstances. A liquidated damages clause is enforceable if the amount liquidated bears a reasonable proportion to the probable loss and the amount of actual loss is incapable or difficult of precise estimation. The burden is on the party seeking to avoid liquidated damages to show that the stated damages are, in fact, a penalty. This burden is met with evidence establishing that actual damages were readily ascertainable at the time the contract was entered into or that the liquidated damages are conspicuously disproportionate to foreseeable or probable losses.
Pool Doctor Mgt. Serv., Inc. v. Board of Mgrs. of the Meadowlands Estates Condominium, Inc., NY Slip Op 02800 (2d Dep't May 24, 2023)
There is no automatic contractual right to specific performance; it is an equitable remedy for a breach of contract. The grant of specific performance is a matter of judicial discretion, which is controlled by the established doctrines and settled principles of equity. A court reviewing an agreement that provides for specific performance should accord deference to the parties' manifest intent, unless enforcement of the provision would produce an inequitable result. Parties are bound to the terms of their contracts, including their remedies.
A party that is contractually entitled to specific performance must demonstrate that it substantially performed its contractual obligations, that the breaching party was able to convey, and that there is no adequate remedy at law.
301 E. 60th St. LLC v. Competitive Solutions LLC, NY Slip Op 02842 (1st Dep't May 30, 2023)
In determining whether to grant leave to serve a late notice of claim or to deem a late notice of claim timely served nunc pro tunc under General Municipal Law § 50-e(5), the court, in its discretion, must consider all relevant facts and circumstances, including, but not limited to, whether (1) the claimant demonstrated a reasonable excuse for the failure to serve a timely notice of claim, (2) the public corporation acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter, and (3) the delay would substantially prejudice the public corporation in its defense. No single factor is determinative, but the timing of the public corporation's actual knowledge of the essential facts constituting the claim is of great importance. In order for medical records to establish actual knowledge within the meaning of the statute, the records must establish that the medical staff, by its acts or omissions, inflicted an injury on the plaintiff.
Santos v. Westchester Med. Ctr., NY Slip Op 02802 (2d Dep't May 24, 2023)
An argument is not properly before the Appellate Division if it is raised for the first time on appeal or if it relies on matters outside the record.
Matter of Casanas, NY Slip Op 02826 (1st Dep't May 25, 2023)
