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THE COMPLAINT DID NOT STATE A CAUSE OF ACTION FOR FRAUD IN THE INDUCEMENT, AS OPPOSED TO AN INSINCERE PROMISE OF FUTURE PERFORMANCE; ALTHOUGH THE ISSUE WAS RAISED IN REPLY AND WAS NOT RAISED BELOW, IT WAS CONSIDERED ON APPEAL BECAUSE IT WAS DETERMINATIVE, DID NOT ALLEGE NEW FACTS, AND COULD NOT HAVE BEEN AVOIDED IF RAISED BELOW (FIRST DEPT). ​

The First Department, reversing (modifying) Supreme Court, determined the complaint did not support a cause of action for fraud in the inducement. Plaintiff ordered an artistic silk floral display but rejected it when delivered on the ground the display did not match what plaintiff ordered. Defendants refused to refund the money. Although the inadequacy of the fraud in the inducement allegations was first raised in reply, the First Department considered it because it was determinative, did not allege new facts and could not have been avoided if raised below:

As for the fraud in the inducement claim, defendants challenged this claim in their reply brief in Supreme Court. While, normally, arguments set forth for the first time in reply should not be considered … , this Court will consider this argument as it is determinative, does not allege new facts, and is a legal argument on the face of the record that would not have been avoidable if raised in defendants’ moving brief below, and because the record is sufficient to resolve the issue … . Here, plaintiff merely alleged that defendants “grossly misrepresented the quality and nature of the Decorations” to induce plaintiff into retaining them and compensating them, and the representations were false when made. This simply alleges “an insincere promise of future performance under the contract, which is insufficient to plead fraud” … . As such, the fraud in the inducement claim is dismissed. Newport E. Inc. v Sviba Floral Decorators, Inc., 2022 NY Slip Op 00819, First Dept 2-8-22

 

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ALTHOUGH THE PRELIMINARY INJUNCTION IN THIS BREACH OF CONTRACT ACTION WAS PROPERLY IMPOSED, SUPREME COURT SHOULD HAVE REQUIRED THE POSTING OF AN UNDERTAKING (FOURTH DEPT).

The Fourth Department, modifying Supreme Court, determined that, although the preliminary injunction in this breach of contract action was properly imposed, Supreme Court should have provided for an undertaking:

… [T]he court erred in granting the preliminary injunction without providing for an undertaking. With certain exceptions that are not applicable here, prior to the court granting a preliminary injunction, a plaintiff must post an undertaking in an amount fixed by the court (see CPLR 6312 [b] … ), and that requirement may not be waived … . TDA, LLC v Lacey, 2022 NY Slip Op 00779. Fourth Dept 2-4-22

 

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THE TOWN HAD THE AUTHORITY TO BRING DISCIPLINARY CHARGES AGAINST THE PLAINTIFF POLICE OFFICER AND THE PLAINTIFF WAS NOT ENTITLED TO RETIREE BENEFITS SET FORTH IN THE COLLECTIVE BARGAINING AGREEMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, in a full-fledged opinion by Justice Miller which is far too comprehensive to fairly summarize here. determined plaintiff police officer was properly subjected to disciplinary charges brought by the town and was not entitled to all the retiree benefits set forth in the collective bargaining agreement:

We are called upon in this case to navigate the interplay between various forms of equitable relief grounded in common law doctrine, principles of modern practice under CPLR article 78 and the Municipal Home Rule Law, and certain state-level policies regarding the right to collective bargaining and the authority of public officials over law enforcement. These issues have been raised as a result of the plaintiff’s complaint, the central aim of which is to prevent the plaintiff’s employer from holding him accountable for the serious disciplinary infractions that he allegedly committed in the course of his official duties as a police officer.

Contrary to the plaintiff’s contentions, the equitable powers and legal doctrines that he seeks to invoke in this litigation do not shield him from the consequences of his actions. Murray v Town of N. Castle, 2022 NY Slip Op 00675, Second Dept 2-2-22

 

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QUESTION OF FACT WHETHER THE CONTINUOUS TREATMENT DOCTRINE RENDERED THIS DENTAL MALPRACTICE ACTION TIMELY; PLAINTIFF STATED A CAUSE OF ACTION FOR BREACH OF CONTRACT BASED ON THE PROMISED OUTCOME OF THE DENTAL WORK (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined: (1) there was a question of fact whether the continuous treatment doctrine applied making this dental malpractice action timely; and (2) plaintiff’s breach of contract action against defendant dentist (Irlin) should not have been dismissed:

… [T]he plaintiff submitted an affirmation of her current treating dentist, who opined that the plaintiff initially sought treatment from Irlin in order to obtain a permanent prosthetic replacement for the missing teeth in her upper jaw. The plaintiff’s dentist further opined that the numerous surgeries that the plaintiff underwent on her upper jaw to repair and replace implants and prostheses were related to Irlin’s initial alleged malpractice in failing to diagnose the bone condition that caused the implants and prostheses to become loose and need replacement. The record otherwise presents questions of fact as to whether the plaintiff timely initiated return visits to complain and seek corrective treatment from Irlin … . …

… [T]he individual defendants’ own submissions, which included the transcript of the plaintiff’s deposition testimony and numerous signed consent forms written in English, demonstrated that the plaintiff has a cause of action to recover damages for breach of contract against Irlin. The plaintiff testified at her deposition that she agreed to the installation of dental implants and a permanent prosthetic device in her upper jaw because Irlin verbally promised her that it would “last a lifetime,” that she would “treat [the prosthesis] as if” it was her “own teeth,” and that she would only need follow-up appointments for cleanings once every 6 to 12 months, among other things. The individual defendants’ evidence could support the conclusion that the treatment Irlin rendered did not achieve these allegedly promised results. Chvetsova v Family Smile Dental, 2022 NY Slip Op 00650, Second Dept 2-2-22

 

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THE IMPOSITION OF A FINE WAS NOT PART OF THE PLEA AGREEMENT; ALTHOUGH THE ISSUE WAS NOT PRESERVED, THE FINE WAS VACATED IN THE INTEREST OF JUSTICE (FOURTH DEPT).

The Fourth Department, reversing (modifying) County Court, determined the imposition of a fine was not part of the plea agreement and vacated that part of the sentence:

Defendant’s … contention that his guilty plea was not knowingly, intelligently, and voluntarily entered is actually a contention that County Court erred in imposing a $1,000 fine that was not part of the negotiated plea agreement without affording him an opportunity to withdraw his plea … . Although defendant failed to preserve his contention for our review by failing to object to the imposition of the fine or by moving to withdraw his plea or to vacate the judgment of conviction (see id.), we exercise our power to review it as a matter of discretion in the interest of justice (see CPL 470.15 [3] [c] …). … [T]he court improperly enhanced defendant’s sentence by imposing “a fine that was not part of the negotiated plea agreement” … . … [W]e conclude that it is “appropriate to vacate the provision of the defendant’s sentence imposing a fine, so as to conform the sentence imposed to the promise made to the defendant in exchange for his plea of guilty” … . People v Wilson, 2022 NY Slip Op 00593, Fourth Dept 1-28-22

 

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DEFENDANT MAY HAVE PLED GUILTY AND ACCEPTED A 16-YEAR SENTENCE IN MONORE COUNTY BECAUSE HE WAS ALREADY SENTENCED TO 14 – 24 YEARS FOR ANOTHER OFFENSE IN ONTARIO COUNTY; ON APPEAL THE ONTARIO COUNTY SENTENCE WAS REDUCED TO FOUR YEARS; MONROE COUNTY GUILTY PLEA VACATED (FOURTH DEPT).

The Fourth Department, vacating defendant’s guilty plea, determined defendant may have pled guilty and accepted a 16-year sentence in Monroe County because he was already serving a 14-24 year sentence for another offense in Ontario County. Subsequently, on appeal, the Fourth Department reduced the Ontario County sentence to four years:

“The critical question is whether the removal or reduction of the preexisting sentence nullified a benefit that was expressly promised and was a material inducement to the guilty plea” … . Here, when defendant pleaded guilty in Monroe County, the court expressly informed him that the aggregate 16-year term of imprisonment would run concurrently with the aggregate 14-to-24-year term already imposed in Ontario County, and thus the plea would result in no or relatively little additional prison time … . Once the Ontario County sentence was reduced as a result of our determination on the prior appeal to a term of four years, defendant lost the benefit previously conferred by the concurrent nature of the Monroe County plea, and “we cannot say defendant would have accepted the plea bargain . . . had it not been for his [14-to-24]-year sentence in the [Ontario County] case, now reduced to [four years]” … . People v Ringrose, 2022 NY Slip Op 00569, Fourth Dept 1-28-22

 

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DEFENDANT’S AGREEMENT TO PURCHASE PLAINTIFF’S BUSINESS WAS NOT ENTWINED WITH AN EMPLOYMENT AGREEMENT BETWEEN PLAINTIFF AND DEFENDANT WHICH INCLUDED A COVENANT NOT TO COMPETE; THEREFORE PLAINTIFF’S ALLEGED BREACH OF THE COVENANT NOT TO COMPETE WAS NOT A DEFENSE TO DEFENDANT’S BREACH OF THE PURCHASE AND SALE AGREEMENT (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined an employment contract between plaintiff and defendant, which included a covenant not to compete, was not entwined with the separate sales agreement in which defendant promised to pay $200,000 for plaintiff’s business. Therefore plaintiff was entitled to summary judgment on the sales contract because defendant defaulted after making the first payment:

“Generally, breach of a related contract will not in the ordinary course defeat summary judgment on [a promissory] note[]” … . Nonetheless, that “rule does not apply where the contract and instrument are intertwined” and inseparable … . Whether two agreements are inextricably intertwined is a question of law for the court to decide because it involves a matter of contract interpretation … .

Here, the sales contract and employment agreement are not inextricably intertwined such that plaintiff’s purported breach of the noncompetition covenants in the latter constitute a defense to defendant’s default on the promissory note … . Saulsbury v Durfee, 2022 NY Slip Op 00566, Fourth Dept 1-28-22

 

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WHEN THE TERMS OF THE PLEA AGREEMENT WERE DISCUSSED BOTH TWO AND THREE-YEAR SENTENCES WERE MENTIONED; DEFENDANT WAS SENTENCED TO THREE YEARS; DEFENDANT’S GUILTY PLEA WAS THEREFORE NOT VOLUNTARY; THE ISSUE WAS NOT PRESERVED BY A MOTION AND WAS CONSIDERED IN THE INTEREST OF JUSTICE (THIRD DEPT).

The Third Department, vacating defendant’s guilty plea, determined defendant was not clearly informed of the sentence, rendering his plea involuntary. Although the issue was not preserved by a motion, the Third Department considered the appeal in the interest of justice:

… [W]hen the terms of the plea agreement were placed on the record, it was stated that the prison term to be imposed would be two years. County Court then, in discussing defendant’s second felony offender status, stated that the prison term was three years but, thereafter, informed defendant that, if he violated any jail rules prior to sentencing, it would not be bound by the promise of a two-year prison term. The record does not reflect that there was any clarification or correction regarding the misstatements as to the agreed-upon sentence either during the plea colloquy or at sentencing before a three-year prison term was imposed. As “[t]he record thus fails to reveal that defendant was accurately advised of the essential terms and conditions of the plea agreement” … , we find that his plea was not knowing, voluntary and intelligent. People v Lumpkin, 2022 NY Slip Op 00477, Third Dept 1-27-22

 

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DEFENDANT HAD WITHHELD PAYMENT ON THE CONTRACT AS AN OFFSET FOR THE LIQUIDATED DAMAGES PROVISION OF THE CONTRACT; THE AWARD OF LIQUIDATED DAMAGES TO THE DEFENDANT THEREFORE CONSTITUTED A DOUBLE RECOVERY (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined defendant should not have been awarded summary judgment on the liquidated damages counterclaim because defendant had withheld payment on the contract as an offset to the liquidated damages:

Supreme Court should have denied summary judgment in defendant’s favor on the liquidated damages counterclaim. To be sure, the liquidated damages provision of the contract, providing for damages of $100 for each day that plaintiff failed to timely respond to a request for repairs or to complete repairs already begun and $100 for failing to timely provide a written estimate, was not an unenforceable penalty … . However, to the extent defendant has withheld payment from plaintiff for work performed to offset liquidated damages, the award of liquidated damages constitutes a double recovery. Summit Rest. Repairs & Sales, Inc. v New York City Dept. of Educ., 2022 NY Slip Op 00526, First Dept 1-27-22

 

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THE BANK DID NOT DEMONSTRATE: (1) STANDING TO BRING THE FORECLOSURE ACTION; (2) COMPLIANCE WITH THE NOTICE PROVISION IN THE MORTGAGE; AND (3), COMPLIANCE WITH THE NOTICE REQUIREMENTS OF RPAPL 1304 (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the bank did not demonstrate standing to bring the foreclosure action and did not demonstrate compliance with the notice provision of the mortgage and RPAPL 1304:

… [T]he record does not reflect that a copy of the endorsed note was attached to the summons and complaint when the action was commenced … . Moreover, the plaintiff failed to establish its status as the holder of the note at the time of commencement of the action … . * * *

The plaintiff failed to establish … it complied with the condition precedent contained in the mortgage agreement, which required that it provide the defendant with a notice of default prior to demanding payment of the loan in full. The evidence submitted by the plaintiff did not establish that a notice of default was mailed by first-class mail or actually delivered to the defendant’s “notice address” if sent by other means, as required by the terms of the mortgage agreement … . [Plaintiff] failed to provide proof of a standard office mailing procedure and provided no independent evidence of the actual mailing … . For the same reason, the plaintiff failed to establish … it sent the defendant the required notice under RPAPL 1304 … . Deutsche Bank Natl. Trust Co. v Crosby, 2022 NY Slip Op 00402, Second Dept 1-26-22

 

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