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)

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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)

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Fraud claims.

The elements of a cause of action for fraud are a material misrepresentation of a fact, knowledge of its falsity, an intent to induce reliance, justifiable reliance by the plaintiff, and damages. Where a fraud cause of action is based on an omission or concealment of material fact, the plaintiff must also allege that the defendant had a duty to disclose material information and failed to do so. The elements of a cause of action to recover for constructive fraud are the same as those to recover for actual fraud, with the crucial exception that the element of the defendant's knowledge of the falsity of his representation is replaced by the plaintiff's proving the existence of a fiduciary or confidential relationship warranting the trusting party to repose his confidence in the defendant, and, therefore, to relax the care and vigilance that he would otherwise exercise. A cause of action sounding in fraud must be pleaded with particularity, pursuant to CPLR 3016(b). CPLR 3016(b) is satisfied when the facts suffice to permit a reasonable inference of the alleged misconduct.

Ofman v. Richland, NY Slip Op 00327 (2d Dep't January 22, 2024)

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Failure to state a claim.

On a motion to dismiss pursuant to CPLR 3211(a)(7), the court must afford the pleading a liberal construction, accept the facts as alleged in the pleading to be 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. Where the plaintiff fails to assert facts in support of an element of the claim, or if the factual allegations and inferences to be drawn from them do not allow for an enforceable right of recovery, dismissal of the cause of action is warranted. Claims consisting of bare legal conclusions with no factual specificity are insufficient to survive a motion to dismiss.

Pinkesz v. Massachusetts Mut. Life Ins. Co., NY Slip Op 00343 (2d Dep't January 22, 2024)

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Contract law.

The Appellate Division found that Supreme Court properly granted the property owner summary judgment on its cause of action for breach of contract. The owner established that the property manager breached its obligations under the parties' management agreement by failing to take steps that would have prevented commercial tenants from receiving electricity at the owner's expense for a period of multiple years in violation of their leases. The agreement's limitation of liability clause, on which the property manager relies, provides that the property manager "shall not be liable to the owner for any loss or damage not caused primarily by the [property manager's] own negligence orfailure to comply with its obligations hereunder." Strictly construing the clause against the property manager, which is the party seeking to avoid liability, the terms of the limited liability clause do not protect it because its own breach of the management agreement was a direct and primary cause of the owner's losses, which would not have occurred but for the property manager's failure to fulfill its contractual obligations.

Furthermore, the property manager did not submit evidence sufficient to warrant dismissal based on the affirmative defense of failure to mitigate damages, as that defense does not preclude the grant of summary judgment to the owner on the issue of liability.

Fourth Ave. Owners Corp. v. Douglas Elliman Prop. Mgt., NY Slip Op 00375 (1st Dep't January 23, 2024)

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Vacatur after one year.

Even after expiration of the one-year limitations period set forth in CPLR 5015, a court may vacate its own order or judgment for sufficient reason and in the interest of substantial justice. There is no basis for an extension of the one-year period where the party seeking the extension fails to demonstrate a reasonable excuse for a lengthy delay in moving to vacate the order or judgment.

U.S. Bank N.A. v. Tait, NY Slip Op 00344 (2d Dep't January 22, 2024)

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Premises liability.

Under the storm-in-progress doctrine, a property owner will not be held liable in negligence for a plaintiff's injuries sustained as the result of an icy condition occurring during an ongoing storm or for a reasonable time thereafter.

Wechsler v. Ave. L, LLC, NY Slip Op 00347 (2d Dep't January 22, 2024) 

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Insufficient affirmative defenses and counterclaims.

In this foreclosure action, the Appellate Division affirmed the granting of plaintiff's motion for summary judgment dismissing defendant's affirmative defenses and counterclaims.

Defendant did not establish that plaintiff or its predecessor lenders or servicers frustrated her performance under the terms of the subject note and mortgage. While she may have experienced frustration in dealing with various lenders and servicers, she proffers no evidence that they prevented or frustrated her from making payments on the indebtedness or rejected or returned payments.

Defendant's claim of estoppel is unsubstantiated. In order to establish an estoppel, a party must prove that it relied upon another's actions, its reliance was justifiable, and that, in consequence of such reliance, it prejudicially changed its position. Here, there is nothing in the record that reflects any representation by plaintiff or its predecessors that would have induced defendant's reliance in obtaining a new modification agreement. There are no representations that plaintiff or its predecessors promised to modify her loan, and to the extent defendant claims that delay in processing her loan modification applications increased her indebtedness, any dispute about the amount owed would be resolved by a referee and does not affect the validity of the mortgage. For the same reason, defendant's claim of offset was dismissed.

Defendant's claim that plaintiff or its predecessors violated General Business Law § 349 is likewise unavailing. An act or practice is consumer-oriented when it has a broader impact on consumers at large. Conduct must extend beyond a particular contractual relationship, because the consumer-oriented element precludes a General Business Law § 349 claim based on private contract disputes, unique to the parties. Defendant alleges only purported actions taken against her related to her loan, not actions that were recurring and harmful to the public at large.

Nor has defendant raised any triable issues of fact with respect to her claim that plaintiff or its predecessors breached the terms of the note and mortgage. The correspondence submitted in support of her claim reflects that plaintiff and its predecessors explained changes in monthly payments and provided loan payment histories and escrow statements. The motion court's dismissal of both the breach of contract claim and the breach of the covenant of good faith and fair dealing defense was likewise not in error, as the allegations for each were duplicative and similarly unavailing.

Nor does the defense of unclean hands survive. Even accepting the truth of defendant's allegations, plaintiff was under no obligation to modify the loan or respond to defendant's questions consistent with her time frame, and there is nothing immoral or unconscionable about its decision to proceed with foreclosure.

Defendant's fraud defense, in which she claims that plaintiff told her that her loan modification would be reviewed, inducing her reliance on a timely response and foreclosing opportunities to obtain other financing, lacks evidentiary support that plaintiff made any specific representations to her in that regard, much less any material misrepresentations of fact, a necessary component of a fraud claim.

As defendant's counterclaims are largely reflective of her affirmative defenses, they suffer from the same issues, and were also properly dismissed.

Deutsche Bank Natl. Trust Co. v. Marino, NY Slip Op 00374 (1st Dep't January 23, 2024)

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Spoliation.

Under the common-law doctrine of spoliation, when a party negligently loses or intentionally destroys key evidence, the responsible party may be sanctioned under CPLR 3126. The Supreme Court has broad discretion in determining what, if any, sanction should be imposed for spoliation of evidence. A party that seeks sanctions for spoliation of evidence must show that the party having control over the evidence possessed an obligation to preserve it at the time of its destruction, that the evidence was destroyed with a culpable mind, and that the destroyed evidence was relevant to the party's claim or defense such that the trier of fact could find that the evidence would support that claim or defense. A culpable state of mind for the purposes of a spoliation sanction includes ordinary negligence. However, in the absence of pending litigation of notice of a specific claim, a defendant should not be sanctioned for discarding items in good faith and pursuant to its normal business practices.

Gordon v. Field, NY Slip Op 00308 (2d Dep't January 22, 2024)

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Expert opinions.

The parties' conflicting expert affidavits raise issues of fact and credibility that cannot be resolved on a motion for summary judgment.

Legrand v. USC-NYCON, LLC, NY Slip Op 00379 (1st Dep't January 23, 2024)

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Extending time.

Pursuant to CPLR 306-b, a court may, in the exercise of discretion, grant a motion for an extension of time to effect service for good cause shown or in the interest of justice. In order to establish good cause, a plaintiff must demonstrate reasonable diligence in attempting service. If good cause for an extension is not established, courts must consider the broader interest of justice standard of CPLR 306-b. Under the interest of justice standard, the court may consider diligence, or lack thereof, along with any other relevant factor, including expiration of the Statute of Limitations, the meritorious nature of the cause of action, the length of delay in service, the promptness of a plaintiff's request for the extension of time, and prejudice to defendant.

21st Mtge. Corp. v. Akter, NY Slip Op 00413 (2d Dep't January 29, 2024)

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Property law.

As a general rule, when lands described in a conveyance are bounded by a street, highway or road, the conveyance is deemed to pass title to the center of the abutting roadway. The centerline presumption can be rebutted by a showing that the grantor intended to limit the grant to the edge of the road. An instrument creating or transferring an estate or interest in real property must be construed according to the parties' intent, so far as it can be gathered from the whole instrument and is consistent with the rules of law. Where the language used in a deed is ambiguous so that it is susceptible of more than one interpretation, the courts will look beyond the written instrument to the surrounding circumstances.

2832 Linden Blvd. Realty, LLC v. Health Ins. Plan of Greater N.Y., NY Slip Op 00302 (2d Dep't January 22, 2024)

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