Civil conspiracy.

Although New York does not recognize civil conspiracy to commit a tort as an independent cause of action, a plaintiff may plead the existence of a conspiracy in order to connect the actions of the individual defendants with an actionable, underlying tort, and establish that those actions were part of a common scheme. In order to properly plead a cause of action to recover damages for civil conspiracy, the plaintiff must allege a cognizable tort, coupled with an agreement between the conspirators regarding the tort, and an overt action in furtherance of the agreement.

A theory of concerted action liability rests upon the principle that all those who, in pursuance of a common plan or design to commit a tortious act, actively take part in it, or further it by cooperation or request, or who lend aid or encouragement to the wrongdoer, or ratify and adopt his acts done for their benefit, are equally liable with him. As with conspiracy, the concerted action theory requires that there be an independent tort as a basis for liability.

25-86 41st St., LLC v. Guzman, NY Slip Op 00075 (2d Dep't January 8, 2024)

Here is the decision.

Judgments.

 It is improper to include findings of fact or conclusions of law in the judgment.

23 E. 39th St. Mgt. Corp. v. 23 E. 39th St. Devs., LLC, NY Slip Op 00145 (1st Dep't January 9, 2024)

Here is the decision.

A cause of action for unjust enrichment.

Plaintiffs' cause of action for unjust enrichment is not viable because there is a valid contract, and that precludes recovery in quasi contract for events arising out of the subject matter of the contract. 

Kwan v. HFZ Capital Group, LLC, NY Slip Op 00074 (1st Dep't January 7, 2024)

Here is the decision.

Judgment creditors and judgment debtors.

CPLR 5225(a) provides that a judgment creditor may make a motion in a pending action where a judgment was entered "where it is shown that the judgment debtor is in the possession or custody of money or other personal property in which he has an interest." CPLR 5225(a) also provides that the court shall order the judgment debtor to "pay the money, or so much of it as is sufficient to satisfy the judgment, to the judgment creditor." By contrast, CPLR 5225(b) provides that when the property sought is not in the possession of the judgment debtor, the judgment creditor is to commence a separate special proceeding "against a person in possession or custody of money or other personal property in which the judgment debtor has an interest . . . where it is shown that the judgment debtor is entitled to the possession of such property or that the judgment creditor's rights to the property are superior to those of the transferee." The most significant difference between the subdivisions is that CPLR 5225(a) is invoked by a motion made by the judgment creditor, whereas CPLR 5225(b) requires a special proceeding brought by the judgment creditor against the garnishee. There is this procedural distinction because the garnishee, not being a party to the main action, has to be independently subjected to the court's jurisdiction.

The plain terms of the relevant CPLR provisions are dispositive. CPLR 5201 provides that "[a] money judgment may be enforced against any property which could be assigned or transferred, whether it consists of a present or future right or interest and whether or not it is vested" However, when a judgment debtor's property is physically held by a third party, the applicable provision is CPLR 5225(b), and a special proceeding is required. It is only when the property is held by the judgment debtor himself that the judgment creditor may proceed by motion pursuant to CPLR 5225(a).

AC Penguin Prestige Corp. v. Two Thousand Fifteen Artisanal LLC, NY Slip Op 06536 (1st Dep't December 24, 2024)

Here is the decision.

Motions to dismiss.

In considering a motion pursuant to CPLR 3211(a)(7) to dismiss a complaint for failure to state a cause of action, the court must afford the pleading a liberal construction, accept the facts as alleged in the pleading as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory. However, allegations consisting of bare legal conclusions are not entitled to any such consideration. Although inartfully pleaded, a claim should not be dismissed when the facts stated are sufficient to make out a cause of action. Whether the complaint will later survive a motion for summary judgment, or whether the plaintiff will ultimately be able to prove its claims plays no part in the determination of a motion to dismiss. In other words, whether a plaintiff can ultimately establish his allegations is not part of the calculus. Moreover, New York's pleading standard is embodied in CPLR 3013, which provides that "[s]tatements in a pleading shall be sufficiently particular to give the court and parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved and the material elements of each cause of action or defense." Absent a statutory heightened pleading requirement, New York courts apply the liberal notice pleading standard of CPLR 3013 when construing the pleading sufficiency of federal causes of action, not federal pleading standards.

Pressley v. City of New York, NY Slip Op 06563 (2d Dep't December 24, 2024)

Here is the decision.

Foreclosure actions.

RPAPL 1304(1) provides that "with regard to a home loan, at least ninety days before a lender, an assignee or a mortgage loan servicer commences legal action against the borrower, or borrowers at the property address and any other address of record, including mortgage foreclosure, such lender, assignee or mortgage loan servicer shall give notice to the borrower."  The statute further provides the required content for the notice and provides that the notice must be sent by registered or certified mail and also by first-class mail to the borrower's last known address. Strict compliance with RPAPL 1304 notice to the borrower or borrowers is a condition precedent to the commencement of a foreclosure action. A plaintiff can establish strict compliance with RPAPL 1304 by submitting domestic return receipts, proof of a standard office procedure designed to ensure that items are properly addressed and mailed, or an affidavit from someone with personal knowledge that the mailing of the RPAPL 1304 notice actually happened. Moreover, in order to establish entitlement to a judgment of foreclosure and sale, a plaintiff must show that it complied with any conditions precedent to commencing the action contained in the mortgage agreement itself.

Bank of N.Y. Mellon v. Dilavore, NY Slip Op 06562 (2d Dep't December 24, 2024)

Here is the decision.

Piercing the veil.

A plaintiff seeking to pierce the corporate veil must show that: (1) the owners exercised complete domination of the corporation in respect to the transaction attacked; and (2) their domination was used to commit a fraud or wrong against the plaintiff, resulting in plaintiff's injury.

FX Funding, LLC v. Fox RX, Inc., NY Slip Op 06539 (1st Dep't December 24, 2024)

Here is the decision.

Fraud.

The elements of a cause of action sounding in fraud are a material misrepresentation of an existing fact, made with knowledge of the falsity, an intent to induce reliance thereon, justifiable reliance upon the misrepresentation, and damages. A representation of opinion or a prediction of something which is hoped or expected to occur in the future will not sustain an action for fraud. In order to recover damages for fraudulent misrepresentation, a plaintiff must prove: (1) a misrepresentation or an omission of material fact which was false and known to be false by the defendant; (2) the misrepresentation was made for the purpose of inducing the plaintiff to rely upon it; (3) the plaintiff's justifiable reliance on the misrepresentation or material omission; and (4) injury.

Davidoff v. Hershfield, NY Slip Op 06560 (2d Dep't December 24, 2024)

Here is the decision.

The death of a party and substitution therefor.

The death of a party divests the court of jurisdiction and stays the proceedings until a proper substitution has been made, pursuant to CPLR 1015 (a), and any determination rendered without such substitution will generally be deemed a nullity. The death of a party also terminates an attorney's authority to act on behalf of the deceased party.

The determination of a motion for substitution pursuant to CPLR 1021 brought by the successors or representatives of a party or by any party is an exception to the court's lack of jurisdiction upon the death of a party. CPLR 1021 provides that a motion for substitution may be made by any party to the action, and that such a motion must be made within a reasonable time. The determination of reasonableness requires consideration of several factors, including the diligence of the party seeking substitution, the prejudice to the other parties, and whether it has been shown that the action or defense has potential merit. Even if the explanation for the delay is not satisfactory, the court may grant the motion for substitution if there is no showing of prejudice and there is potential merit to the action or defense, in light of the strong public policy in favor of disposing of matters on the merits.

Lee v. Leeds, Morelli & Brown, P.C., NY Slip Op 06624 (2d Dep't December 24, 2024)

Here is the decision.

Appellate practice.

It is well-settled that the mootness doctrine enjoins appellate review of academic questions.  Appellate review of this matter would neither alter the order as appealed from nor directly affect a substantial right or interest of a party to the appeal. Therefore, the appeal must be dismissed as academic.

Davidoff v. Hershfield, NY Slip Op 06559 (2d Dep't December 24, 2024)

Here is the decision.

Attorneys' fees.

The determination of what constitutes a reasonable attorney's fee is a matter within the sound discretion of the Supreme Court. The attorney bears the burden of establishing the reasonable value of the services rendered through contemporaneous time records specifying the date, hours expended, and nature of the work performed. If the documentation is inadequate, the court may reduce the award accordingly.

Hershfield v. Davidoff, NY Slip Op 06558 (2d Dep't December 24, 2024)

Here is the decision.