Vacating a default in opposing a motion.

A party seeking to vacate an order entered upon a default in opposing a motion must demonstrate a reasonable excuse for the default and a potentially meritorious opposition to the motion. Although a court has the discretion to accept law office failure as a reasonable excuse, pursuant to CPLR 2005, law office failure does not constitute a justifiable excuse where there is a pattern of willful default and neglect, or where the allegations of law office failure are conclusory, undetailed, and unsubstantiated.

Adams v. 161 Ct. St., LLC, NY Slip Op 00837 (2d Dep't February 13, 2025)

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A release provision in a separation agreement.

Order and judgment which granted the petition brought pursuant to CPLR article 75 for a permanent stay of an arbitration proceeding and denied the cross-petition to set aside a separation agreement is affirmed.

The release provision in the separation agreement is clear and unambiguous on its face, encompassing all claims, known or unknown, that the defendant "had, has or may have," arising from her employment with the petitioner, including the discrimination and related claims asserted in her arbitration demand. The separation agreement was knowingly and voluntarily entered into, as the defendant admittedly signed the agreement without giving it more than a glance, even though she was given seven days to review it, consult an attorney, and negotiate material changes. Moreover, the defendant's employment agreement provided for post-termination payments at the petitioner's option, for which a release may be required; the separation agreement expressly advised the defendant to consult an attorney; and sufficient consideration was provided in that the petitioner offered to make over $29,000 in post-termination payments that were not guaranteed by the employment agreement and were not unpaid wages earned while the defendant was employed. To that end, even the $4,640.16 paid after the defendant signed the separation agreement, which were not earned wages, is sufficient consideration for the defendant's release.

Matter of Balyasny Asset Mgt., L.P. v. Liu, NY Slip Op 00822 (1st Dep't February 13, 2025)

Here is the decision.

Court holiday.

A renewed judgment.

Plaintiff's motion for summary judgment in lieu of complaint for a renewed judgment pursuant to CPLR 5014 is granted.  Plaintiff made a prima facie showing of his entitlement to a renewed judgment under CPLR 5014(1) by demonstrating that, to date, only a nominal payment of the underlying debt has been recovered; thus, defendant has not satisfied the judgment.  In opposition, defendant failed to raise an issue of fact.

Zimmerman v, Stephenson, NY Slip Op 00374 (1st Dep't February 6, 2025)

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Severance of claims.

The court may order a severance of claims in furtherance of convenience or to avoid prejudice, or the court may order a separate trial of any claim or of any separate issue. The grant or denial of a request for severance is a matter of judicial discretion, which should not be disturbed on appeal absent a showing of prejudice to a substantial right of the party seeking severance. Severance has been found appropriate where individual issues predominate concerning particular circumstances applicable to each of a number of plaintiffs and there is the possibility of confusion for the jury.

Here, individual issues predominate concerning the particular circumstances applicable to each of the seven plaintiffs' claims, and a single trial would prove unwieldy and confuse the trier of fact. Accordingly, the defendant's motion which was pursuant to CPLR 603 to sever the causes of action of each of the plaintiffs for trial is granted.

Adamow v. Northport-East Northport Union Free Sch. Dist., NY Slip Op 00643 (2d Dep't February 5, 2025)

Premises liability.

Liability may attach to an out-of-possession landowner who has affirmatively created a dangerous condition or defect. However, here plaintiff provided nothing more than conjecture concerning allegedly improper building construction. She presented no evidence that any code or regulation was violated by the building's construction or design, that any violations were issued based on improper drainage, or that there were any prior accidents or complaints of water or ice accumulation in the parking area. Moreover, the fact witness who made these claims had no demonstrated expertise in this area, which is not within the ambit of common experience. The complaint is dismissed.

Maignan v. Watsky & Damm, Inc., NY Slip Op 00398 (1st Dep't January 28, 2025)

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Contract law.

The lease provides for attorneys' fees regardless of default or merit, in a dispute between a residential co-op and a shareholder tenant. This provision is unenforceable as unconscionable. Enforcing such a provision would produce an unjust result because it would dissuade aggrieved parties from pursuing litigation and preclude tenant-shareholders from making meaningful decisions about how to vindicate their rights in legitimate instances of landlord default.

Kasowitz, Benson, Torres & Friedman, LLP v. JPMorgan Chase Bank, N.A., NY Slip Op 00396 (1st Dep't January 28,. 2024)

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Court holiday.

Freedom of Information Law (FOIL).

In order to promote open government and public accountability, FOIL imposes a broad duty on government to make its records available to the public. To this end, FOIL provides that all records of a public agency are presumptively open to public inspection and copying unless otherwise specifically exempted,

Here, the Appellate Division determined that the Supreme Court erred in dismissing this proceeding on the basis that it was rendered academic by the dismissal of a separate CPLR article 78 proceeding in which the petitioner was one of the parties seeking to annul an agency determination. FOIL does not require that the party requesting records make any showing of need, good faith, or legitimate purpose. The underlying premise is that the public is vested with an inherent right to know and that official secrecy is antithetical to our form of government. The standing of one who seeks access to records under FOIL is as a member of the public, and is neither enhanced nor restricted because the person also is a litigant or a potential litigant.

FOIL exemptions are construed narrowly, and an agency has the burden of demonstrating that an exemption applies by articulating a particularized and specific justification for denying access. When relying upon an exemption, it is the agency's burden to demonstrate that the requested material falls squarely within a FOIL exemption. In order to meet its burden, the party seeking exemption must present specific, persuasive evidence that the material falls within the exemption. Conclusory assertions that are not supported by any facts are insufficient.

Matter of Supinsky v. Town of Huntington, NY Slip Op 00324 (2d Dep't January 22, 2024)

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Striking an errata sheet.

Defendant's motion to strike plaintiff's errata sheet is granted. Plaintiff's proffered corrections are critical, substantive changes that may materially alter plaintiff's original deposition testimony as to the basis for defendant's alleged negligence, specifically, liquid on the floor causing plaintiff to slip.

Moore-Reason v. Manhattan Coll., NY Slip Op 00403 (1st Dep't January 28, 2024) 

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Appellate practice.

The order at issue is an evidentiary ruling from which there is no intermediate appeal. In addition, since the initial briefing on the appeal, a final judgment has been entered, which moots the appeal from this intermediate order.

Moghtaderi v. Apis Capital Advisors, LLC, NY Slip Op 00402 (1st Dep't January 28, 2024)

Here is the decision.