Motions to dismiss.

 On a motion to dismiss a complaint pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the complaint is to be afforded a liberal construction, the facts alleged are presumed to be true, the plaintiff is afforded the benefit of every favorable inference, and the court is to determine only whether the facts as alleged fit within any cognizable theory. 'If the court considers evidentiary material, the criterion then becomes whether the proponent of the pleading has a cause of action, not whether the complaint has stated one.

Damon v. Clove Lakes Healthcare & Rehabilitation Ctr., Inc., NY Slip Op 03029 (2d Dep't June 5, 2024)

Here is the decision.

Defaulting on a summary judgment motion.

A party seeking to vacate an order entered upon a default in opposing a motion for summary judgment must demonstrate both a reasonable excuse for the default and a potentially meritorious opposition to the motion.  The determination of what constitutes a reasonable excuse lies within the sound discretion of the trial court. A court has the discretion to accept law office failure as a reasonable excuse where that claim is supported by a detailed and credible explanation. Here, the plaintiff provided a reasonable excuse for her failure to submit a timely opposition to the defendant's motion. Moreover, on appeal, the defendant does not contest the Supreme Court's determination that the plaintiff established a reasonable excuse for her default in opposing the defendant's motion for summary judgment dismissing the complaint.

Charles v. Nouveau El. Indus., Inc., NY Slip Op 03027 (2d Dep't June 5, 2024)

Here is the decision.

Condominium law.

An individual unit owner cannot withhold payment of common charges and assessments in derogation of the condominium's by-laws based on defective conditions in the unit or in the common areas, or a disagreement with actions lawfully taken by the Board of Managers.

Board of Mgrs. of Villas on the Lake Condominium v. Policicchio, NY Slip Op 03026 (2d Dep't June 5, 2024)

Here is the decision.

Contract law.

Under long-standing rules of contract interpretation, where the terms of a contract are clear and unambiguous, the parties' intent must be found within the four corners of the contract, giving a practical interpretation to the language employed and reading the contract as a whole.  The contract must be construed in a manner which gives effect to each and every part, so as not to render any provision meaningless or without force or effect. Agreements that are negotiated at arm's length by sophisticated parties, represented by counsel, are enforced according to their plain language pursuant to New York's strong public policy favoring freedom of contract.

Matter of 195 B Owner LLC v. Anthropologie, Inc., NY Slip Op 03073 (1st Dep't June 6, 2024)

Here is the decision.

Enforcing a guaranty.

A guaranty is a promise to fulfill the obligations of another party, and is subject to the ordinary principles of contract construction. On a motion for summary judgment to enforce a written guaranty, all that the creditor need prove is an absolute and unconditional guaranty, the underlying debt, and the guarantor's failure to perform under the guaranty.

20 Rewe St. Ltd. v. Zheng, NY Slip Op 03024 (2d Dep't June 5, 2024)

Here is the decision.

Vacating a default.

A defendant moving pursuant to CPLR 5015(a)(1) to vacate a default in appearing or answering the complaint must provide a reasonable excuse for the default and demonstrate a potentially meritorious defense to the action. The determination of what constitutes a reasonable excuse lies within the sound discretion of the trial court.

A defendant may be entitled to relief under CPLR 317 on a showing that he did not receive actual notice of the summons and complaint in time to defend the action.

1KB & MS, LLC v. Happy Living Constr., LLC, NY Slip Op 03023 (2d Dep't June 5, 2024)

Here is the decision.

Preliminary injunctions.

The purpose of a preliminary injunction is to maintain the status quo and prevent the dissipation of property that could render a judgment ineffectual. In order to establish the right to a preliminary injunction, the movant must demonstrate (1) the likelihood of success on the merits; (2) irreparable injury absent the injunction; and (3) that the equities balance in the movant's favor. The decision to grant or deny provisional relief is committed to the sound discretion of the Supreme Court.

17455 128 Ave., Inc. v.HSBC Bank USA, N.A., NY Slip Op 03022 (2d Dep't June 5, 2024

Here is the decision.

Usurious loans.

A loan that is usurious at its inception is void and unenforceable, but an obligation that is valid at its inception is not invalidated by a subsequent usurious transaction. The invalidity of the final modification does not extinguish the borrower's liability under the original contract and cannot taint the original agreement, regardless of whether the usury is criminal or civil, A one-year statute of limitations is applicable to usury actions, pursuant to CPLR 215[6].

Welz v. Brown, NY Slip Op 03021 (1st Dep't June 4, 2024)

Here is the decision.

Landlord-tenant.

Defendant-tenant's cross-motion for summary judgment dismissing the ejectment complaint, is granted.

A landlord's mere receipt of rent checks after the purported termination of a tenancy but before commencement of the action does not alone serve to vitiate a predicate notice, especially where the landlord promptly returns the checks uncashed, or where the rent checks, although cashed, were accepted inadvertently and the landlord promptly explains the inadvertence to the tenant. However, where the landlord receives rent checks and does not immediately return them or claim and explain any inadvertence, the retention of the checks constitutes acceptance sufficient to vitiate the predicate notice.

Here, the notice purported to terminate tenant's tenancy on January 31, 2022, yet the landlord did not serve tenant with the complaint until April 22, 2022. In the meantime, tenant tendered rent checks for February, March, and April, all dated before service of the complaint. Moreover, landlord's managing member acknowledged receiving the rent checks contemporaneously but admitted that landlord did not return the checks until June 3, 2022.

Landlord argues that it informed tenant in December 2021 that it would not accept payment after termination of the tenancy at the end of January 2022. Landlord also argues that it never sent tenant a rent bill or an offer to renew the lease. Significantly, however, landlord's managing member does not give any explanation as to why landlord delayed in returning the checks until June 2022. Thus, the receipt and retention of multiple rent checks for several months, without explanation, vitiated the predicate notices.

591 Realty LLC v. Curanaj, NY Slip Op 03007 (1st Dep't June 4, 2024)

Here is the decision.

Appellate practice.

Only an aggrieved party or a person substituted for him may appeal from an appealable judgment, order, or final order, pursuant to CPLR 5511. A person is aggrieved when he asks for relief but that relief is denied in whole or in part, or when someone asks for relief against him, which the person opposes, and the relief is granted in whole or in part.

Matter of Rooney v. Salem, NY Slip Op 03006 (2d Dep't June 3, 2024)

Here is the decision

Cross motions.

The plain language of CPLR 2215 states that where a litigant cross-moves, it may request "alternative" or "different types" of relief, and the "relief need not be responsive to that demanded by the moving party."

Starr Indem. & Liab. Co. v. Monte Carlo, LLC, NY Slip Op 02999 (1st Dep't May 30, 2024)

Here is the decision.