The Fourth Department held that a standard commercial lease attorney’s fees clause does not authorize “fees on fees” — recovery of fees incurred to collect a prior attorney’s fee award — absent unmistakably clear contractual language, and further held that failure to object to a referee’s denial of CPLR 5001 prejudgment interest waives that argument on appeal.
The Fourth Department held that Dryden Mutual’s wrongful coverage disclaimer was an anticipatory repudiation excusing the insured from forwarding suit papers, barring the insurer from challenging the $2.8 million default judgment in a § 3420 direct action, and requiring reinstatement of bad faith claims under the Pavia “gross disregard” standard.
The Fourth Department affirmed dismissal of a snow tubing personal injury claim against the State, holding that hitting a snow pile at the base of a hill was a foreseeable consequence of recreational sledding encompassed by the primary assumption of risk doctrine, and that the open and obvious snow piles did not unreasonably enhance that risk.
The Fourth Department held that res judicata bars Happy Lake House’s quiet title claim because its predecessor discontinued a prior quiet title action with prejudice in 1971, waiving all rights in the parcel, and that privity runs through the chain of title to bind the current owner.
The Fourth Department reversed the sua sponte dismissal of Syracuse University’s tax-assessment challenge, holding that RPTL 525(2)(a) is not jurisdictional and cannot be invoked after a municipality expressly waives it, and granted the University a full RPTL 420-a educational-use exemption on summary judgment.
The Fourth Department dismissed all of the City of Olean’s counterclaims against the Village of Allegany, holding that CPLR 9802’s notice-of-claim requirements apply to counterclaims and declaratory-relief theories, and that a notice limited to breach of contract cannot sustain claims premised on contract expiration, quantum meruit, or unjust enrichment.
The Fourth Department reversed the denial of a late-notice-of-claim application in a school bullying case, finding that the District acquired actual knowledge of the claim through its counselor’s involvement in related Family Court proceedings and that the mother’s preoccupation with those proceedings constituted a reasonable excuse for the delay.
The Fourth Department affirmed denial of Casella Waste Management’s motion to dismiss third-party claims arising from a fatal bulldozer accident, holding that the asset purchase agreement did not conclusively negate the Schumacher “mere continuation” and “merger” exceptions to successor corporate liability.
The Fourth Department dismissed a district attorney’s Article 78 petition seeking to overturn a court order barring re-presentment to a grand jury and denying unsealing under CPL 160.50(1), holding that unsealing applications are civil in nature and cannot be challenged via Article 78.