Appellate practice.

To the extent that plaintiff seeks affirmative relief, such as sanctions and striking of defendants' answer, in his opposition to defendants' motion to compel, the Appellate Division declines to grant that relief, as plaintiff did not cross-move for it before the motion court.  Similarly, the Appellate Division declines plaintiff's request to vacate prior orders, as plaintiff did not take an appeal from them.

Schwartz v. Mount Sinai Hosp., NY Slip Op 04750 (1st Dep't October 4, 2024)

Here is the decision.

Motions to dismiss.

In order to prevail on a motion pursuant to CPLR 3211(a)(1), the movant's evidence must utterly refute the plaintiff's factual allegations, conclusively establishing a defense as a matter of law. Contracts and any other papers, the contents of which are essentially undeniable, would qualify as documentary evidence. 

When reviewing a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), the court must afford the pleading a liberal construction, accept the facts as alleged in the complaint as true, accord the plaintiff the benefit of every favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory. 

Plymouth Capital, LLC v. Montage Fin. Group, Inc., NY Slip Op 04583 (2d Dep't September 25, 2024)

Here is the decision.

Account stated.

An account stated claim is an account balanced and rendered, with an assent to the balance, express or implied, so that the demand is essentially the same as if a promissory note had been given for the balance. A defendant's receipt and retention of invoices seeking payment for goods or services rendered, without objection within a reasonable time, gives rise to an actionable claim.

TH Fashion Ltd. v. Vince Holding Corp., NY Slip Op 04630 (1st Dep't September 26, 2024)

Here is the decision.

Arbitration.

While American Arbitration Association rules delegate to the arbitrator the issue of whether a particular dispute is subject to an arbitration agreement, it is for the courts to determine, in the first instance, whether the parties have entered into a binding agreement to arbitrate.

Matter of Whythe Berry, LLC v. Goldman, NY Slip Op 04632 (1st Dep't September 26, 2024)

Here is the decision.

Contract law.

The elements of a cause of action for tortious interference with a contract are (1) the existence of a valid contract between the plaintiff and a third party; (2) the defendant's knowledge of that contract; (3) the defendant's intentional procurement of a third-party's breach of that contract without justification; and (4) damages. The plaintiff must further allege facts that are sufficient to show that the contract would not have been breached but for the defendant's conduct.

Plymouth Capital, LLC v. Montage Fin. Group, Inc., NY Slip Op 04583 (2d Dep't September 25, 2024)

Here is the decision.

Warranty of habitability.

The breach of the warranty of habitability counterclaim was dismissed because it only applies to a tenant living in the apartment, not a commercial tenant like defendants.

20 Broad St. Owner, LLC v. Sonder USA, Inc., NY Slip Op 04591 (1st Dep't September 26, 2024)

Here is the decision.

Vacatur of a default.

The Appellate Division affirmed the denial of defendants motion to vacate the default judgment.Contrary to defendants' contention that the action should be dismissed under CPLR 306-b, the summons and complaint were timely served considering the executive orders tolling the time limit for service of process during the COVID-19 pandemic.

Supreme Court providently declined to vacate the default under CPLR 317 where service of process on corporate defendants was properly made by means of service upon the Secretary of State, and defendants failed to demonstrate lack of actual notice of the action. Defendants' sworn admission of their awareness of plaintiff's lawsuit, and their subsequent participation in settlement negotiations, manifests actual notice of the action. 

Supreme Court providently denied defendants' motion under CPLR 5015(a)(1) for failure to provide a reasonable excuse for their default. Defendants' denials of receipt of service, without proof, fall short of creating reasonable excuse. Furthermore, defendants' claim that the parties were involved in settlement negotiations does not constitute a reasonable excuse.

4CS Ltd v Kahiri Diamonds Ltd, NY Slip Op 04513 (1sr Dep't September 24, 2024)

Here is the decision.

Change of venue.

A demand to change venue based upon the designation of an improper county must be "served with the answer or before the answer is served," pursuant to CPLR 511[a]. Here, since no demand to change venue was served with the answer or before the answer had been served, that branch of the defendants' motion which was to change venue on the ground that the county designated was improper, pursuant to CPLR 510[1], was untimely. The defendants were not entitled to change venue as of right, and their motion became one addressed to the Supreme Court's discretion. The Supreme Court improvidently exercised its discretion in granting that branch of their motion which was to change venue, since the defendants failed to demonstrate that they moved promptly for a change of venue after the plaintiff testified at his deposition that he lived at an address in Richmond County.

Aguilar v. Reback, NY Slip Op 04444 (2d Dep't September 18, 2024)

Here is the decision.

Fraud by omission.

Fraud by omission claims that are not supported by a duty to speak will be dismissed.

Solidx Mgt., LLC v. Vaneck Sec. Corp., NY Slip Op 04489 (1st Dep't September 19, 2024)

Here is the decision.

Motions to dismiss.

A motion to dismiss on the ground that the action is barred by documentary evidence, pursuant to CPLR 3211(a)(1), may be granted only where the documentary evidence utterly refutes the plaintiff's factual allegations, conclusively establishing a defense as a matter of law.

Adelson v. Sharkey, NY Slip Op 04443 (2d Dep't September 18, 2024)

Here is the decision.

Service on a corporation.

Pursuant to CPLR 317, a party that was not personally served may defend against an action if it demonstrates that it did not have notice of the action in time to defend and that it has a meritorious defense. Service on a corporation through delivery of the summons and complaint to the Secretary of State is not personal delivery to the corporation.

Here, the defendant established its entitlement to relief from its default under CPLR 317 by demonstrating that the address on file with the Secretary of State at the time the summons and complaint were served was incorrect and, consequently, that it did not receive actual notice of the action in time to defend itself. Further, the evidence does not suggest that the defendant's failure to update its address with the Secretary of State constituted a deliberate attempt to avoid service of process, and there is some evidence in the record suggesting that the plaintiff had knowledge of the defendant's actual business address.

In addition, the defendant demonstrated the existence of potentially meritorious defenses to the causes of action, including a defense based on the general release that terminated the earlier action.

Galatro v. Lake Pointe Owners, Inc., NY Slip Op 04375 (2d Dep't September 11, 2024)

Here is the decision.