On August 18, 2021, the Second Department issued a decision in Grocery Leasing Corp. v. P&C Merrick Realty Co., LLC, 2021 N.Y. Slip Op. 04701, holding that the motion court erred in granting the defendant’s motion to dismiss under C.P.L.R. 3211 when the defendant initially moved for summary judgment under C.P.L.R. 3212 and stated–for the first time on reply–that it instead intended to move to dismiss, explaining:

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On August 25, 2021, the Second Department issued a decision in Kefalas v. Valiotis, 2021 NY Slip Op. 04750, modifying an award of attorneys’ fees and holding:

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On August 16, 2021, Justice Joel M. Cohen issued a decision in Audax Credit Opportunities Offshore Ltd. v TMK Hawk Parent, Corp., 2021 NY Slip Op 50794(U), holding that No-Action provisions did not mandate dismissal of Plaintiffs’ claims.  The Court concluded:

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On September 3, 2021, in Bank of America, N.A. v. Filho et al., N.Y. Sup. Ct. Index No. 654603/2019, Justice Andrea Masley issued a Decision and Order granting the motion of certain defendants (“Guarantors”) to reargue and renew pursuant to CPLR 2221 and, upon reargument and renewal, denying Plaintiff’s motion for summary judgment in lieu of complaint.  (Schlam Stone & Dolan LLP was prior counsel for the moving defendants).  The Court explained:

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On August 24, 2021, Justice Ostrager of the New York Commercial Division issued a decision in Tri-City ValleyCats, Inc. v. Houston Astros, Inc., 2021 NY Slip Op 50802(U), holding that while “New York law recognizes the concept of a binding agreement implied from the parties’ words and conduct”, none will be “implied in fact where there is an express contract covering the subject matter involved”. . . .

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On August 26, 2021, the First Department issued a decision in FGP 1, LLC v Dubrovsky, 2021 NY Slip Op 04789, affirming dismissal of a counterclaim on a motion to dismiss for lack of standing holding that counterclaim plaintiffs mischaracterize their claim as one for a declaration to quiet title when it really involves ownership of a Delaware LLC . . . .

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On August 26, 2021, the Fourth Department issued a decision in Miller v. Rerob, LLC, 2021 NY Slip Op 04864, holding that New York Labor Law § 240 imposes absolute liability on a contractor or owner where a violation of the statute is the proximate cause of an accident. . . .

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On July 28, 2021, the Second Department issued a decision in Stockton v. H&E Biffer Enters. No. 2, LLC, 2021 NY Slip Op 04568, affirming dismissal of a personal injury claim under Labor Law § 240(1) on summary judgment holding that an employee injured while preforming “routine maintenance” could not state a cause of action. . . .

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On August 4, 2021, the Second Department issued a decision in 1077 Madison St., LLC v. Dickerson, 2021 NY Slip Op 04591, holding that a party seeking to intervene in a pending lawsuit pursuant to C.P.L.R. 1012(a)(3) must be timely and not delay resolution of the case or prejudice any party. . . .

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On August 11, 2021, the Second Department issued a decision in Tavor v. Lane Towers Owners, Inc., 2021 NY Slip Op 04676, holding that a co-op owner was required to pay past and prospective use and occupancy for his maintenance pendente lite, and that this obligation arose not from an underlying contract between landlord and occupant but based on quantum meruit, explaining:

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