Author: DMG

Admissions, formal and informal

Madison 96th Assoc., LLC v 17 E. 96th Owners Corp., 2014 NY Slip Op 05813 [1st Dept 2014]

Defendant's formal judicial admission in its answer is dispositive (see People v Brown, 98 NY2d 226, 232 n 2 [2002]; GJF Constr., Inc. v Sirius Am. Ins. Co., 89 AD3d 622, 626 [1st Dept 2011] [Richter, J., concurring]; Performance Comercial [*2]Importadora E Exportadora Ltda v Sewa Intl. Fashions Pvt. Ltd., 79 AD3d 673 [1st Dept 2010] [allegation in complaint]). Moreover, defendant's attorney's informal judicial admission that the air conditioners "admittedly encroach" on plaintiff's air space is some evidence of the encroachment (see Matter of Union Indem. Ins. of N.Y., 89 NY2d 94, 103 [1996]; Leonia Bank v Kouri, 3 AD3d 213, 220 [1st Dept 2004]), as is the testimony of one of defendant's unit owners confirming the accuracy of a document indicating the protrusion of his air conditioner.

The orders relied upon by defendant as law of the case were not binding on the motion court in deciding the instant motion for summary judgment because of the parties' different evidentiary burdens on the motions that those orders decided (see Tenzer, Greenblatt, Fallon & Kaplan v Capri Jewelry, 128 AD2d 467 [1st Dept 1987]). Moreover, the September 6, 2006 order did not actually decide the relevant issue (see Ferolito v Vultaggio, 115 AD3d 541 [1st Dept 2014]; NYP Holdings, Inc. v McClier Corp., 83 AD3d 426, 427-428 [1st Dept 2011]). In any event, this Court is not bound by law of the case as represented by the trial level rulings defendant relied upon (Martin v City of Cohoes, 37 NY2d 162, 165 [1975]).

Contrary to defendant's contention, dismissal, by the previously assigned Justice, of its adverse possession counterclaim and affirmative defense on the ground that it could not actually posses plaintiff's air space does not preclude plaintiff's claim for interference with its rights (see generally Ain v Glazer, 257 AD2d 422, 423 [1st Dept 1999]).

Fundamental error

Mafes v City of New York, 2014 NY Slip Op 06031 [1st Dept. 2014]

Defendant requests that we exercise our "interest of justice power to correct a fundamental error" that his counsel failed to raise at the inquest, i.e., that damages have been awarded against him for conduct not attributed to him in the complaint (citing Peguero v 601 Realty Corp., 58 AD3d 556, 563 [1st Dept 2009] [an error "so fundamental as to preclude consideration of the central issue upon which the claim of liability is founded" may be reviewed in the interests of justice, even absent objection]). However, since the inquest was held upon his default, defendant's liability was not at issue therein; he is deemed to have admitted it (see Wilson v Galicia Contr. & Restoration Corp., 10 NY3d 827, 830 [2008]). In the circumstances, our going outside applicable law to entertain arguments not preserved for appeal would not further the objective of "ensur[ing] that plaintiffs do not secure money judgments based on fraudulent claims" (id.).

No appeal lies from the denial of a motion for leave to reargue (Belok v New York City Dept. of Hous. Preserv. & Dev., 89 AD3d 579 [1st Dept 2011]).

CPLR 5015(a)(4) and a stipulation

CPLR 5015(a)(4)

Macaluso v Macaluso, 2014 NY Slip Op 06064 [2nd Dept. 2014]

Where there is no legal or equitable basis to enter a judgment against a particular party, such judgment must be vacated pursuant to CPLR 5015(a)(4) (see Mazelier v 634 W. 135, LLC, 22 AD3d 361, 364). Here, however, the judgment entered October 20, 2010, was properly issued, pursuant to an order dated June 18, 2010, against the plaintiff individually, as a remedy for the plaintiff's failure to comply with his personal obligations under the parties' stipulation of settlement. Contrary to the plaintiff's contention, while he may have commenced this action "in the right of S & M Heating Corp.," the record is clear that the corporation was not a party to the stipulation. Rather, the agreement, which was placed on the record in open court, provided that the plaintiff would discontinue the action and would receive certain benefits from, and undertake certain obligations to, his late brother, Santo F. Macaluso, Jr. Accordingly, the Supreme Court properly denied the plaintiff's motion, in effect, pursuant to CPLR 5015(a)(4) to vacate the judgment.

 

CPLR 3211, 3013, 3016, 3018, 3019

CPLR 3211(a)(7)

CPLR 3016(b)

CPLR 3013

CPLR 3018(b)

CPLR 3019(a)

Friedland Realty, Inc. v 416 W, LLC, 2014 NY Slip Op 06052 [2nd Dept. 2014]

On a motion to dismiss a pleading pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the court must afford the pleading a liberal construction, accept all 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 (see Nonnon v City of New York, 9 NY3d 825, 827; Leon v Martinez, 84 NY2d 83, 87-88; Siracusa v Sager, 105 AD3d 937, 938).

"A claim of mutual mistake is stated where the allegations indicate that the parties have reached an oral agreement and, unknown to either, the signed writing does not express that agreement" (Aventine Inv. Mgt. v Canadian Imperial Bank of Commerce, 265 AD2d 513, 514; see Chimart Assoc. v Paul, 66 NY2d 570, 573; Phillips v Phillips, 300 AD2d 642, 643). Absent fraud, "the mistake shown must be one made by both parties to the agreement, so that the intentions of neither are expressed in it" (Migliore v Manzo, 28 AD3d 620, 621; see Ribacoff v Chubb Group of Ins. Cos., 2 AD3d 153, 154; Matter of Shaw, 202 AD2d 433, 434). "A claim predicated on mutual mistake must be pleaded with the requisite particularity necessitated under CPLR 3016(b)" (Simkin v Blank, 19 NY3d 46, 52), which provides that "where a cause of action or defense is based upon misrepresentation, fraud, mistake, wilful default, breach of trust or undue influence, the circumstances constituting the wrong shall be stated in detail." Ultimately, the proponent of reformation based on mutual mistake must demonstrate the particulars of the actual agreement intended by the parties, based on the particularized allegations in the complaint (see Chimart Assoc. v Paul, 66 NY2d at 574; George Backer Mgt. Corp. v Acme Quilting Co., 46 NY2d 211, 220).

Here, the defendant's second counterclaim and third affirmative defense did not describe the terms of the oral modification that the parties allegedly agreed to, or how those terms differed from the terms of the written agreement. Instead, that counterclaim and affirmative defense recited, in conclusory fashion, that the terms that had actually been agreed to by the parties prior to the writing, and which were allegedly confirmed pursuant to the oral modification, provided that the plaintiff was only entitled to a "reduced fee," but provided no specifics as to the amount of that reduced fee, or under what circumstances such a reduced fee was to be paid. Similarly, the defendant alleged that the plaintiff "was to be compensated for an introduction" to a prospective lessee, but alleged no details as to how its obligation to compensate the plaintiff for securing such an introduction differed from the terms of the written agreement.

Since the allegations of mutual mistake set forth in the defendant's second counterclaim and third affirmative defense were not made with the requisite particularity (see generally CPLR 3016[b]; Greater N.Y. Mut. Ins. Co. v United States Underwriters Ins. Co., 36 AD3d 441, 443), they failed to state a cause of action or defense, respectively, and the Supreme Court correctly granted those branches of the plaintiff's motion which were to dismiss that counterclaim and affirmative defense.

Katz v Miller, 2014 NY Slip Op 05957 [2nd Dept. 2014]

However, the Supreme Court should have granted those branches of the plaintiffs' motion which were for summary judgment striking the first through twelfth affirmative defenses. The second and eleventh affirmative defenses were not substantiated with factual allegations, and were conclusory in nature (see CPLR 3013, 3018[b]; Becher v Feller, 64 AD3d 672, 677; Cohen Fashion Opt., Inc. v V & M Opt., Inc., 51 AD3d 619). The plaintiffs established their prima facie entitlement to judgment as a matter of law striking the first, third through tenth, and twelfth affirmative defenses, and the Toppin defendants failed to raise a triable issue of fact in opposition (see Zuckerman v City of New York, 49 NY2d 557, 562).

The Supreme Court should also have granted those branches of the plaintiffs' motion which were for summary judgment dismissing the second and third counterclaims, which were in the nature of defenses to the complaint and did not assert facts upon which affirmative relief may be granted (see CPLR 3019[a]; P.J.P. Mech. Corp. v. Commerce & Indus. Ins. Co., 65 AD3d 195, 199-200). The Supreme Court properly denied that branch of the plaintiffs' motion which was for summary judgment dismissing the first counterclaim (see Real Property Law § 282).

22 NYCRR 202.48 [60 day rule]

22 NYCRR 202.48

47 Thames Realty, LLC v Robinson, 2014 NY Slip Op 06051 [2nd Dept. 2014]

22 NYCRR 202.48, entitled "[s]ubmission of orders, judgments and decrees for signature," states in pertinent part:

"(a) Proposed orders or judgments, with proof of service on all parties where the order is directed to be settled or submitted on notice, must be submitted for signature, unless otherwise directed by the court, within 60 days after the signing and filing of the decision directing that the order be settled or submitted. "(b) Failure to submit the order or judgment timely shall be deemed an abandonment of the motion or action, unless for good cause shown."

Here, the so-called 60-day rule set forth in 22 NYCRR 202.48 is not applicable because the Supreme Court's direction that the defendants submit a proposed order with respect to an award of an attorney's fee did not specify that the proposed order be settled or submitted on notice (see Farkas v Farkas, 11 NY3d 300, 309; Shamshovich v Shvartsman, 110 AD3d 975, 976-977; Matter of Village of Dobbs Ferry v Stanley Ave. Props., Inc., 95 AD3d 1027

CPLR 3025 [mere lateness not a bar]

CPLR 3025(b)

Ciminello v Sullivan, 2014 NY Slip Op 06048 [2nd Dept. 2014]

Although the plaintiff delayed in making the motion for leave to amend, mere lateness is not a barrier to the amendment—it must be lateness coupled with significant prejudice to the other side (see Henry v MTA, 106 AD3d 874, 875; Aurora Loan Servs., LLC v Dimura, 104 AD3d 796, 797; U.S. Bank, N.A. v Sharif, 89 AD3d 723, 724). Brian C. Sullivan and Hartford cannot claim significant prejudice, since the proposed amendment arises out of the same facts as those set forth in the first amended complaint (see Koenig v Action Target, Inc., 76 AD3d 997, 997-998; Maloney Carpentry, Inc. v Budnik, 37 AD3d 558, 558).

Schelchere v Halls, 2014 NY Slip Op 05970 [2nd Dept. 2014]

Here, given the plaintiffs' extensive and unexplained delay in seeking to amend their complaint based on facts that were known to them since the onset of the litigation (see Heller v Louis Provenzano, Inc., 303 AD2d 20, 24; Whalen v 50 Sutton Place S. Owners, 276 AD2d 356, 357; Caruso v Anpro, Ltd., 215 AD2d 713, 714), the prejudice to the defendant that would result from the amendment, and the plaintiffs' improper submission of a portion of their request for leave to amend and supporting evidence for the first time in their reply papers on the motion (see Bjorke v Rubenstein, 38 AD3d 580, 581; Drake v Drake, 296 AD2d 566; Wright v Cetek Technologies., 289 AD2d 569, 570), the Supreme Court providently exercised its discretion in denying the plaintiffs' motion for leave to amend the complaint.

Permanent Injunction

Caruso v Bumgarner, 2014 NY Slip Op 06047 [2nd Dept. 2014]

To sufficiently plead a cause of action for a permanent injunction, a plaintiff must allege that there was a "violation of a right presently occurring, or threatened and imminent," that he or she has no adequate remedy at law, that serious and irreparable harm will result absent the injunction, and that the equities are balanced in his or her favor (Elow v Svenningsen, 58 AD3d 674, 675; see also 67A NY Jur 2d Injunctions § 45)

CPLR 3215 and Collateral Estoppel

CPLR 3215

Collateral Estoppel

Abrahams v Commonwealth Land Tit. Ins. Co., 2014 NY Slip Op 06042 [2nd Dept. 2014]

In this action to recover damages for breach of fiduciary duty, the plaintiff moved pursuant to CPLR 3215 for leave to enter a default judgment against the defendant. In support of the motion, the plaintiff submitted, inter alia, a complaint dated April 7, 2012. The defendant opposed the motion, offering proof that this complaint was the same complaint that had been filed in a prior action to recover damages for breach of fiduciary duty. By order entered December 29, 2009, the Supreme Court granted the defendant's motion for summary judgment dismissing the complaint in that prior action, and this Court affirmed that order (see Abrahams v Commonwealth Land Tit. Ins. Co., 81 AD3d 759).

Contrary to the plaintiff's contention, the Supreme Court properly determined that the complaint in the instant action is barred by the doctrine of collateral estoppel. The doctrine of collateral estoppel bars relitigation in a subsequent action of an issue raised in a prior action and decided against that party (see Buechel v Bain, 97 NY2d 295, 303; Zanani v Schvimmer, 117 AD3d 941; Nappy v Nappy, 100 AD3d 843). "The litigant seeking the benefit of collateral estoppel must demonstrate that the decisive issue was necessarily decided in the prior action against a party," and "the party to be precluded from relitigating the issue bears the burden of demonstrating the absence of a full and fair opportunity to contest the prior determination" (Buechel v Bain, 97 NY2d at 304; see Nappy v Nappy, 100 AD3d at 845; Matter of Simmons v Simmons, 91 AD3d 960; Nachum v Ezagui, 83 AD3d 1017).

Here, the defendant established that the decisive issues in this case were necessarily decided against the plaintiff in the prior case, and the plaintiff failed to demonstrate that he was not afforded a full and fair opportunity to contest that prior determination. Thus, the doctrine of collateral estoppel barred the plaintiff from maintaining this action. Although the defendant allegedly defaulted in answering the complaint in the instant action, even where such a default has occurred, a plaintiff is only entitled to a default judgment if the complaint states a viable cause of action (see Aprea v New York State Bd. of Elections, 103 AD3d 1059, 1061; Elam v Altered Ego Realty Holding Corp., 114 AD3d 901; Venturella-Ferretti v Ferretti, 74 AD3d 792, 793; Garcia v Pepe, 42 AD3d 427, 430). Under these circumstances, the plaintiff has no viable cause of action against the defendant that would warrant entry of a default judgment against it (see Garcia v Pepe, 42 AD3d at 430).

CPLR 202 [borrowing statute] and CPLR 205(a) [savings statute] [Ct. App]

CPLR 202

CPLR 205(a)

note the amicus

 

Norex Petroleum Ltd. v Blavatnik, 2014 NY Slip Op 04802 [2014]

This dramatic and long-running contest over control of a lucrative oil field in Western Siberia reduces at present to an open question of New York civil procedure involving the interplay of CPLR 202, New York's "borrowing" statute, and CPLR 205 (a), New York's "savings" statute. When a cause of action accrues outside New York and the plaintiff is a nonresident, section 202 "borrows" the statute of limitations of the jurisdiction where the claim [*2]arose, if shorter than New York's, to measure the lawsuit's timeliness [FN1]. New York's "savings" statute, section 205 (a), allows a plaintiff to refile claims within six months of a timely prior action's termination for reasons other than the merits or a plaintiff's unwillingness to prosecute the claims in a diligent manner.[FN2]

This appeal calls upon us to decide whether a nonresident plaintiff who filed a timely action in a New York federal court may refile claims arising from the same transaction in state court within six months of the federal action's non-merits termination, even though the suit would be untimely in the out-of-state jurisdiction where the claims accrued. We hold that such a lawsuit is not time-barred, and therefore reverse the Appellate Division.[FN3]

Its a long decision, click the case to read the rest.