Discovery abuses.

The Appellate Division affirmed the imposition of a $10,000 sanction against defendants for discovery abuses, pursuant to CPKR 3126. Based on the court's admonition at a discovery conference, both parties were on actual notice that the non-prevailing party on a discovery-related motion would be responsible for the legal fees of the prevailing party. In granting plaintiff's motion to compel access to his upstairs neighbor's apartment to perform a water test to determine the source of a persistent leak, the court credited plaintiff's position that the condominium's governing documents vested defendants with the authority to access the unit for inspection and testing when a condition in one unit is causing damage in another unit. Defendants refused to exercise that authority, even after the court noted that the request was proper, requiring plaintiff to have to move to compel discovery. The $10,000 sanction was appropriate.

Etkin v, Sherwood Residential Mgt. LLC, NY Slip Op 06424 (1st Dep't December 19m 2024)

Here is the decision.

Invalidating a release.

A valid release constitutes a complete bar to an action on a claim which is the subject of the release. However, a release may be invalidated for any of the traditional bases for setting aside written agreements, namely, duress, illegality, fraud, or mutual mistake. In addition, a release may be set aside on the ground that it was not fairly and knowingly made. This basis for setting aside a release may be applied in situations falling far short of actual fraud' such as when, because the releasor has had little time for investigation or deliberation, or because of overreaching or unfair circumstances, it was deemed inequitable to allow the release to serve as a bar to the claim of an injured party. Although a defendant has the initial burden of establishing that it has been released from any claims, a signed release shifts the burden going forward to the plaintiff to show that there has been fraud, duress, or some other fact which will be sufficient to void the release.

Applewhite v. 112 Liberty Assoc., LLC, NY Slip Op 06323 (2d Dep't December 18, 2024)

Here is the decision.

Waiver of trial by jury.

While the New York Constitution provides for a right of trial by jury, pursuant to NY Const art 1, § 2, it is well-settled that jury waiver agreements are valid and enforceable.

International Business Machs. Corp. v. GlobalFoundries U.S. Inc., NY Slip Op 06425 (1st Dep't December 19, 2024)

Here is the decision.

Injunctive relief.

A permanent injunction is a drastic remedy which may be granted only where the plaintiff demonstrates that, absent the injunction, it will suffer irreparable harm. In order to establish prima facie entitlement to a permanent injunction, a plaintiff must demonstrate: (a) that there was a violation of a right presently occurring, or threatened and imminent; (b) that there is no adequate remedy at law; (c) that serious and irreparable harm will result absent the injunction; and (d) that the equities are balanced in its favor. For the purposes of equity, irreparable harm means any injury for which money damages are insufficient.  Where an injury can be adequately compensated by money damages, injunctive relief is inappropriate.

Rockefeller v. Leon, NY Slip Op 06370 (2d Dep't December 18, 2024)

Here is the decision.

Contract law.

The interpretation of an unambiguous contract is a question of law, and collateral estoppel does not bar relitigation of a pure question of law.

Deer Park  Rd. Mgt. Co., LP v. Nationstar Mtge., LLC, NY Slip Op 06422 (1st Dep't December 19, 2024)

Here is the decision.

Default judgments.

On a motion for leave to enter a default judgment under CPLR 3215, a plaintiff must submit proof of service of the summons and the complaint, the facts constituting the causes of action, and the defendant's default, pursuant to CPLR 3215[f].

Smith v. Realty on Fox Croft Corp,, NY Slip Op 06371 (2d Dep't December 18, 2024)

Here is the decision.

Merry Christmas.

Brinks BOQ.

Contract law.

Defendants' cross-motion for summary judgment is granted. Plaintiff's argument that the parties' letter agreement gave it an exclusive right to sell is unavailing. In order to create an exclusive right to sell, a contract must clearly and expressly provide that a commission is due upon sale by the owner or exclude the owner from independently negotiating a sale. Here, the agreement lacks express language excluding a direct conveyance by defendants, nor is that a necessary implication of its terms. The agreement's language requiring defendants to "inform" plaintiff if contacted about potential transactions is insufficient to create an exclusive right to sell. Moreover, plaintiff fails to show that the agreement's tail provision, entitling plaintiff to a fee for efforts at procuring a transaction during its engagement even if the transaction were completed only after the termination of that engagement, necessarily implied that the parties intended to create an exclusive right to sell.

Plaintiff's alternative argument that it procured the investment in the equity raise that occurred is also unavailing. Plaintiff fails to establish a direct and proximate link between its efforts and the consummated deal, as opposed to an indirect and remote link.

Cantor Fitzgerald & Co. v. ObvioHealth Pte Ltd., NY Slip Op 06421 (1st Dep't December 19, 2024)

Here is the decision.

Leave to renew.

A motion for leave to renew shall be based upon new facts not offered on the prior motion that would change the prior determination, and shall contain reasonable justification for the failure to present such facts on the prior motion, or shall demonstrate that there has been a change in the law that would change the prior determination, pursuant to CPLR 2221[e][2], [3]. A motion to renew is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation.

U.S. Bank, N.A. v. Cuencas, NY Slip Op 06373 (2d Dep't December 18, 2024)

Here is the decision.

Plaintiff's motion for leave to renew is granted. Since the plaintiff's prior motion for summary judgment had been denied without prejudice to renewal, plaintiff was not required to demonstrate a reasonable justification for its failure to submit sufficient evidence of the defendants' default on the prior motion.

Wells Fargo Bank, N.A. v. Coulstring, NY Slip Op 06374 (2d Dep't December 18, 2024)

Here is the decision.

Appellate practice.

Having consented to the order at issue, the appellant is not an aggrieved party within the meaning of CPLR 5511. The order is not appealable.

Matter of Marquise T.S. v. Shantae R.R., NY Slip Op 06316 (1st Dep't December 17, 2024)

Here is the decision.