Examinations before trial.

Courts have the inherent authority to strike the complaint and dismiss the action where the plaintiff refuses to answer questions posed at an examination before trial on grounds of the privilege against self-incrimination. On the appeal of a dismissal made pursuant to this inherent power, the only inquiry is whether the questions that the plaintiff refused to answer were material and necessary to the defendant's defense, pursuant to CPLR 3101.

Small v. DMRG Group LLC, NY Slip Op 05551 (1st Dep't November 2, 2023)

Here is the decision.

Piercing the corporate veil.

In order to survive a motion to dismiss the complaint, a plaintiff seeking to pierce the corporate veil must allege facts that, if proved, establish that the party against whom the doctrine is asserted exercised complete domination over the corporation with respect to the transaction at issue, and, through its domination, abused the privilege of doing business in the corporate form to perpetrate a wrong or injustice against the plaintiff. The claim is brought in equity. Factors to be considered in determining whether an individual has abused the privilege of doing business in the corporate or LLC form include the failure to adhere to corporate or LLC formalities, inadequate capitalization, commingling of assets, and the personal use of corporate or LLC funds.

Archival, Inc. v. 177 Realty Corp., NY Slip Op 05386 (2d Dep't October 25, 2023)

Here is the decision.

Judiciary Law § 487.

Defendant is an attorney who represented plaintiff's former husband in the matrimonial action underlying this action. During the course of the matrimonial proceedings, defendant knowingly failed to inform the court that, in accordance with neglect and custody proceedings held in Kings County Family Court, plaintiff had been awarded primary physical custody of the child of the marriage. Defendant also prepared an affidavit for his client, falsely stating that the client had never been party to a neglect proceeding and asserting that the client was the child's custodial parent. In addition, defendant submitted a final judgment of divorce awarding primary physical custody of the child to his client on the basis of stipulated agreements between plaintiff and the client even though those agreements had been signed three years before the Kings County proceedings. Defendant then presented an order to show cause to hold plaintiff in contempt of court for not complying with the custody provisions in the judgment of divorce.

Plaintiff established her entitlement to summary judgment by submitting evidence that defendant had intentionally failed to apprise the court of the Kings County custody order, thus affirmatively misrepresenting the existence of adverse information relevant to the proceedings. This evidence was sufficient to establish "egregious conduct" under the statute. Despite defendant's position otherwise, a plaintiff need not demonstrate a chronic pattern of delinquency to recover on a Judiciary Law § 487 action; on the contrary, a single egregious act, such as the one presented here, is sufficient.

Suzuki v. Greenberg, NY Slip Op 05455 (1st Dep't October 26, 2023)

Here is the decision.

Appellate practice.

An argument that is not raised before Supreme Court is not preserved for appellate review.

35th St. Assoc. v. Sasson, NY Slip Op 05353 (1st Dep't October 24, 2023)

Here is the decision.

Court holiday.

Settlement agreements.

The plaintiff commenced this action to recover damages for personal injuries she allegedly sustained when she tripped and fell at premises owned by the defendant. The defendant moved pursuant to CPLR 2104 to enforce a purported settlement agreement between the parties, contending that the parties had reached a settlement that was memorialized in an email message. The Supreme Court denied the defendant's motion, determining that "there was no meeting of the minds or the creation of a settlement that is legally enforceable." The defendant appealed.

Pursuant to CPLR 2104, a settlement agreement is binding upon a party if it is in a writing subscribed either by the party or by the party's attorney. In order to be enforceable, the agreement must set forth all material terms, and there must be clear mutual accord between the parties.  An email that merely confirms a purported settlement is not necessarily sufficient to bring the purported settlement into the scope of CPLR 2104.

Here, the email purportedly confirming the agreement stated that it was memorializing the "tentative resolution" of the case, and it was sent by counsel for the defendant, which is the party seeking to enforce the agreement. There is no confirming email subscribed by the plaintiff or the attorney for the plaintiff, who is the party to be charged.

The order is affirmed, with costs.

Vlastakis v. Mannix Family Mkt. @ Veteran's Rd., LLC, NY Slip Op 05287 (2d Dep't October 18, 2023)

Here is the decision.

Contract law.

In New York, all contracts imply a covenant of good faith and fair dealing,  which, broadly stated, constitutes a pledge that neither party will do anything which will have the effect of destroying or injuring the other party's right to receive the fruits of the contract. The covenant requires the parties to perform under the contract in a reasonable way.

Mahope Family L.P. v. Avgush, NY Slip Op 05253 (2d Dep't October 18, 2023)

Here is the decision.

Court holiday.

Contract law.

An oral agreement cannot survive the subsequent execution of a written agreement which contains a merger clause.

IBT Media Inc. v. Pragad, NY Slip Op 05315 (1st Dep't October 19, 2023)

Here is the decision.