3211(f) “service was necessary in order to trigger the running of the defendants’ time to respond to the complaint”

Citibank, N.A. v Brooks, 2020 NY Slip Op 01142 [2d Dept. 2020]

In March 2016, the plaintiff commenced this action against, among others, the defendants Jacqueline Brooks and Glen F. Brooks (hereinafter together the defendants) to foreclose a mortgage executed by them. The defendants moved to dismiss the complaint insofar as asserted against them, and the motion was denied in an order dated December 16, 2016 (see Citibank, N.A. v Brooks, ___ AD3d ___ [Appellate Division Docket No. 2017-04077; decided herewith]). By notice of motion dated August 14, 2017, the plaintiff moved, inter alia, for leave to enter a default judgment and for an order of reference, asserting that the defendants had defaulted in responding to the summons and complaint. The attorney affirmation submitted in support of the motion did not, in its discussion of the procedural history, disclose the prior motion practice. It did not mention the December 2016 order and did not assert that such order had been served with notice of entry, even though such service was necessary in order to trigger the running of the defendants’ time to respond to the complaint (see CPLR 3211[f]). The Supreme Court granted the plaintiff’s motion. Jacqueline Brooks (hereinafter the appellant) appeals.

In order to obtain a default judgment against the appellant and an order of reference, the plaintiff was required to submit evidence of service of a copy of the summons and complaint, evidence of the facts constituting the cause of action to foreclose the mortgage, and evidence that the appellant failed to appear or answer within the time allowed (see RPAPL 1321[1]; CPLR 3215[f]; JPMorgan Chase Bank, N.A. v Grinkorn, 172 AD3d 1183, 1185; Aurora Loan Servs., LLC v Movtady, 165 AD3d 1025, 1026; 21st Mtge. Corp. v Palazzotto, 164 AD3d 1293, 1294). While the defendants did not submit an answer to the complaint, the plaintiff failed to establish that the defendants were in default in responding to the complaint in that the plaintiff did not assert that the [*2]plaintiff served the order denying the defendants’ motion to dismiss with notice of entry. Without service of the order with notice of its entry, the time within which the defendants were required to answer the complaint did not begin to run (see CPLR 3211[f]). Accordingly, the Supreme Court should have denied those branches of the plaintiff’s motion were for leave to enter a default judgment against the appellant and for an order of reference.

New Rules for Appellate Term, Second Department


On October 16, 2019, the Appellate Division, Second Judicial Department repealed its rules relating to its Appellate Terms (22 NYCRR Parts 730, 731 and 732) and adopted new rules. Those Rules, now laid out in Parts 730 and 731 of the Rules of the Second Department (22 NYCRR Parts 730 and 731), are effective on January 1, 2020, and shall apply to appeals in which a notice of appeal to one of the Appellate Terms is filed on or after that date.

Counsel practicing in the Second Department are advised to familiarize themselves with the new Rules for the Appellate Terms, as in may respects they represent a change in the way in which those Court’s practice.

Below are some of the highlights of the new rules.

Merging 22 NYCRR Parts 731 and 732

Nearly all of the rules pertaining specifically to the Appellate Term for the 2nd, 11th & 13th Judicial Districts, currently set forth in 22 NYCRR Part 731, and the rules pertaining specifically to the Appellate Term for the 9th & 10th Judicial Districts, currently set forth in 22 NYCRR Part 732, are identical. For the benefit of our litigants and with an eye toward simplification, those rules have been combined into a new 22 NYCRR Part 731, within which is also addressed the few differences between the rules for the two courts.

Printed Record

The centerpiece of the new rules is the requirement in some appeals that the parties file a printed record. Currently the Appellate Terms for Second Judicial Department are the only appellate courts in New York State (including the Appellate Term, First Department) that do not require a printed record on any appeal. Under the new rules, a printed record would be required where all parties to a civil appeal are represented by counsel, and where such requirement is permitted by the appropriate court act. Recognizing that in some cases it would be inappropriate to require the time and expense of a printed record, the rules provide an easy process for those who seek to be exempted from the requirement upon a showing of good cause.

More Time to Perfect

Under the new rules, appellants will have six months from the filing of the notice of appeal within which to perfect. In contrast, under the current rules the appellant has 90 days from the Appellate Term’s receipt of the original record to perfect its appeal. The current system often creates uncertainty and confusion among the parties to the appeal, who may not have a clear indication of when the appeal must be perfected. With the notice of appeal, the appellant must file a copy of the order or judgment being appealed from, along with a completed Request for Appellate Term Action form.



Matter of Menkes v Molia, 2019 NY Slip Op 06493 [2d Dept. 2019]

The extraordinary remedy of mandamus will lie only to compel the performance of a ministerial act, and only where there exists a clear legal right to the relief sought (see Matter of Legal Aid Socy. of Sullivan County v Scheinman , 53 NY2d 12, 16). “Because of its extraordinary nature, prohibition is available only where there is a clear legal right, and then only when a court—in cases where judicial authority is challenged—acts or threatens to act either without jurisdiction or in excess of its authorized powers” (Matter of Holtzman v Goldman , 71 NY2d 564, 569; see Matter of Rush v Mordue , 68 NY2d 348, 352). The petitioner has failed to demonstrate a clear legal right to the relief sought.

More discovery fun time

Kiernan v Booth Mem. Med. Ctr., 2019 NY Slip Op 06596 [2d Dept. 2019]

“A party is not entitled to unlimited, uncontrolled, unfettered disclosure” (Geffner v Mercy Med. Ctr., 83 AD3d 998, 998; see McAlwee v Westchester Health Assoc., PLLC, 163 AD3d 547, 548). ” The supervision of disclosure and the setting of reasonable terms and conditions therefor rests within the sound discretion of the trial court and, absent an improvident exercise of that discretion, its determination will not be disturbed'” (Montalvo v CVS Pharm., Inc., 102 AD3d 842, 843, quoting Mattocks v White Motor Corp., 258 AD2d 628, 629 [citation omitted]). Here, the plaintiffs’ request for additional information and color photographs of certain Forest View personnel who worked on the floor where the decedent resided on February 5 and 6, 2008, was palpably improper because it was overbroad and unduly burdensome (see JPMorgan Chase Bank, N.A. v Levenson, 149 AD3d 1053, 1055; Stepping Stones Assoc., L.P. v Scialdone, 148 AD3d 855, 856; Pesce v Fernandez, 144 AD3d 653, 655; Gilman & Ciocia, Inc. v Walsh, 45 AD3d 531). Accordingly, the Supreme Court providently exercised its discretion in denying that branch of the plaintiffs’ motion which was to compel the production of such material.

Kiernan v Booth Mem. Med. Ctr., 2019 NY Slip Op 06597 [2d Dept. 2019]

“The determination whether to strike a pleading or to preclude evidence for failure to comply with court-ordered disclosure lies within the sound discretion of the court” (Palmieri v Piano Exch., Inc., 124 AD3d 611, 612; see Neenan v Quinton, 110 AD3d 967, 968). However, the drastic remedy of striking a pleading or even precluding evidence pursuant to CPLR 3126 should not be imposed absent a clear showing that the failure to comply with discovery demands or orders was willful and contumacious (see MacKenzie v City of New York, 125 AD3d 821, 822; Palmieri v Piano Exch., Inc., 124 AD3d at 612; Gutman v Cabrera, 121 AD3d 1042, 1043). Here, Forest View timely complied with the court-ordered discovery and adequately explained that it had previously disclosed the identity of the health aides and their employment statuses on September 14, 2017. Thus, there was no clear showing that Forest View engaged in any willful and contumacious noncompliance with regard to disclosure in this matter (see e.g. MacKenzie v City of New York, 125 AD3d at 822; Palmieri v Piano Exch., Inc., 124 AD3d at 612).

On Summary Judgment [CPLR 3212]

Nill v Schneider, 173 AD3d 753 [2d Dept. 2019]

“It is a defendant’s burden, when it is the party moving for summary judgment, to demonstrate affirmatively the merits of a defense, which cannot be sustained by pointing out gaps in the plaintiff’s proof” (Quantum Corporate Funding, Ltd. v Ellis, 126 AD3d 866, 871 [2015]).

Rivera v City of New York, 173 AD3d 790 [2d Dept. 2019]

We also agree with the Supreme Court’s determination denying that branch of Carter’s motion which was for summary judgment dismissing all cross claims insofar as asserted against it. The papers submitted in support of the motion failed to include copies of the relevant pleadings as required by CPLR 3212 (b), thereby precluding review of the purported cross claims (see Mieles v Tarar, 100 AD3d 719, 720 [2012]; Matsyuk v Konkalipos, 35 AD3d 675, 676 [2006]; Wider v Heller, 24 AD3d 433, 434 [2005]).

Bargil Assoc., LLC v Crites, 173 AD3d 958 [2d Dept. 2019]

Motions for summary judgment “shall be made no later than one hundred twenty days after the filing of the note of issue” (CPLR 3212 [a]) unless the Supreme Court has set a different deadline. A party may not file a late summary judgment motion without leave of the court “on good cause shown” (CPLR 3212 [a]), which requires the movant to articulate a “satisfactory explanation for the untimeliness” of the motion (Brill v City of New York, 2 NY3d 648, 652 [2004]; see Milano v George, 17 AD3d 644, 645 [2005]). “In the absence of a showing of good cause for the delay in filing a motion for summary judgment, the court has no discretion to entertain even a meritorious, nonprejudicial motion for summary judgment” (Bivona v Bob’s Discount Furniture of NY, LLC, 90 AD3d 796, 796 [2011] [internal quotation marks omitted]; see Greenpoint Props., Inc. v Carter, 82 AD3d 1157, 1158 [2011]).

Here, the plaintiff’s motion was made almost five years after the 120-day deadline expired. The plaintiff failed to demonstrate, in its moving papers, good cause for not filing the motion in a timely manner, and only attempted to do so, improperly for the first time, in its reply papers (see Nationstar Mtge., LLC v Weisblum, 143 AD3d 866, 869 [2016]).  Accordingly, we agree with the Supreme Court’s determination denying, as untimely, the plaintiff’s motion for summary judgment.

Mazzurco v Gordon, 173 AD3d 1003 [2d Dept. 2019]

Here, the defendants failed to meet their initial burden on their motion. The defendants sought to establish their prima facie entitlement to judgment as a matter of law by relying on the Supreme Court’s preclusion order, but they failed to demonstrate, prima facie, that the plaintiff could not meet his burden of proof at trial through evidence other than the precluded fact witnesses. To the contrary, the defendants’ own motion papers demonstrated the availability of other proof on which the plaintiff could rely at trial. Accordingly, we agree with the court’s determination to deny the defendants’ motion for summary judgment dismissing the complaint, regardless of the sufficiency of the opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).

Saunders v J.P.Z. Realty, LLC, 2019 NY Slip Op 06573 [1st Dept. 2019]

 In this regard, CPLR 3212(b) provides that a summary judgment motion “shall be supported by affidavit” of a person “having knowledge of the facts” as well as other admissible evidence (see GTF Mktg. v Colonial Aluminum Sales , 66 NY2d 965, 967 [1985]). A conclusory affidavit or an affidavit by an individual without personal knowledge of the facts does not establish the proponent’s prima facie burden (see e.g. Vermette v Kenworth Truck Co. , 68 NY2d 714 [1986]).

Painful IME

Goldson v Mann, 173 AD3d 410 [1st Dept. 2019]

Defendant failed to meet his prima facie burden of demonstrating that he did not depart from good and accepted medical practice in examining plaintiff during an independent medical examination (IME), or that any such departure was not a proximate cause of plaintiff’s injury to her left shoulder (see Scalisi v Oberlander, 96 AD3d 106, 120 [1st Dept 2012]). Defendant’s expert affirmation, which relied on defendant’s testimony regarding his custom and practice of examining patients during his IMEs, was insufficient. Defendant’s testimony did not establish a deliberate and repetitive practice sufficient to show evidence of his behavior during plaintiff’s examination, as he testified that his examination varied depending on the examinee (see Rivera v Anilesh, 8 NY3d 627, 634 [2007]). Therefore, the expert’s reliance on such testimony to conclude that defendant had not deviated from the accepted standard of care rendered his affirmation insufficient (compare id. at 635-636).

Defendant’s expert also failed to establish that defendant did not cause or exacerbate plaintiff’s left shoulder condition. He failed to address differences in plaintiff’s MRI findings or statements made by plaintiff’s treating physician, which suggested that plaintiff had suffered a new injury after the IME. The expert also ignored plaintiff’s testimony that defendant had forcefully pushed her left arm over her head and caused a new injury (see Wasserman v Carella, 307 AD2d 225, 226 [1st Dept 2003]), and provided no support for his statement that plaintiff’s post-IME injuries were degenerative in nature, and not traumatically induced (see Frias v James, 69 AD3d 466, 467 [1st Dept 2010]).

Necessary parties. CPLR 1001

Miller v Wendy Joan St. Wecker Trust U/A Aug. 28, 1997, 173 AD3d 1007 [2d Dept. 2019]

Necessary parties are persons “who might be inequitably affected by a judgment in the action” and must be made plaintiffs or defendants (CPLR 1001 [a]). CPLR 1001 (b) requires the court to order such persons summoned, where they are subject to the court’s jurisdiction. If jurisdiction over such necessary parties can be obtained only by their consent or appearance, the court is to determine, in accordance with CPLR 1001 (b), whether justice requires that the action proceed in their absence (see CPLR 1001 [b]). The nonjoinder of necessary parties may be raised at any stage of the proceedings, by any party or by the court on its own motion, including for the first time on appeal (see City of New York v Long Is. Airports Limousine Serv. Corp., 48 NY2d 469, 475 [1979]; Matter of Lezette v Board of Educ., Hudson City School Dist., 35 NY2d 272, 282 [1974]; Censi v Cove Landings, Inc., 65 AD3d 1066, 1067-1068 [2009]; Migliore v Manzo, 28 AD3d 620, 621 [2006]; Vincent C. Alexander, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C1003:1; see also CPLR 1003).

Here, the record indicates the possible existence of necessary parties who have not been joined, namely, the other residents of the subdivision who may possess a tenancy in common in Clock Tower Lane. Accordingly, we remit the matter to the Supreme Court, Nassau County, to hold a hearing to determine whether there are any necessary parties who should be joined in this action and, if so, to compel their joinder, subject to any affirmative defenses, and if joinder cannot be effectuated, to determine, pursuant to CPLR 1001 (b), whether the action should proceed in the absence of any necessary parties (see Censi v Cove Landings, Inc., 65 AD3d at 1068; De Ruscio v Jackson, 164 AD2d 684, 688 [1991]).

Argued by one judge. Decided by another.

Marti v Rana, 173 AD3d 576 [1st Dept. 2019]

The fact that oral argument was held before a different Justice than the Justice who ultimately decided the motion for summary judgment is not a proper basis for vacating the order granting summary judgment. Although Judiciary Law § 21 provides that a Supreme Court Justice “shall not decide or take part in the decision of a question, which was argued orally in the court, when he was not present and sitting therein as a judge,” reversal is not warranted on this ground, because the Justice who granted the motion decided a purely legal question (People v Hampton, 21 NY3d 277, 286 [2013]).

Plaintiffs argue that they were prejudiced because certain statements made by the court at oral argument led them to believe that a motion for leave to amend was not necessary. This argument is unavailing. To the extent counsel relied on his impressions of the court’s leanings, which were never incorporated into a binding order, he did so at his own peril.

Pro se affidavit needs to be notarized

Pollack v Ovadia, 173 AD3d 464 [1st Dept. 2019]

Although pro se defendant tenant could submit an affirmation rather than an affidavit for religious reasons, the document was still required to be notarized, and therefore the motion court was constrained to reject his unnotarized affirmation (see Slavenburg Corp. v Opus Apparel, 53 NY2d 799, 801 n [1981]; see also John Harris P.C. v Krauss, 87 AD3d 469 [1st Dept 2011]).

Accordingly, the motion was not supported by affidavit or affirmation of facts, and was properly denied (CPLR 3212 [b])

General Construction Law § 25-a (1)

Deutsche Bank Natl. Trust Co. v Sewdial, 173 AD3d 685 [2d Dept. 2019]

Contrary to the defendant’s contention, the plaintiff timely commenced this action on September 23, 2013. An action to foreclose a mortgage on real property is subject to a six-year statute of limitations (see CPLR 213 [4]; NMNT Realty Corp. v Knoxville 2012 Trust, 151 AD3d 1068 [2017]). It is undisputed that the limitations period in this case began to run on September 21, 2007. Although six years from that date is September 21, 2013, we take judicial notice of the fact that September 21, 2013, was a Saturday (see generally Hamilton v Miller, 23 NY3d 592, 603 [2014]). Thus, pursuant to General Construction Law § 25-a (1), the plaintiff had until Monday, September 23, 2013, to commence this action (see Cardamone v Ricotta, 47 AD3d 659, 660 [2008]).