Fun with 5015

Torres v Rely On Us, Inc., 2018 NY Slip Op 06587 [2d Dept. 2018]

In addition, even after expiration of the one-year limitations period set forth in CPLR 5015, "a court may vacate its own judgment for sufficient reason and in the interests of substantial justice" (Woodson v Mendon Leasing Corp., 100 NY2d 62, 68; see U.S. Bank N.A. v Losner, 145 AD3d 935Yung Chong Ho v Uppal, 130 AD3d at 812; Hudson City Sav. Bank v Cohen, 120 AD3d 1304Wells Fargo Bank v Hodge, 92 AD3d 775).

Here, contrary to the plaintiffs' contention, that branch of ROU's motion which was pursuant to CPLR 5015(a)(1) was not untimely, since there is no evidence that the plaintiffs ever served ROU with written notice of entry of the order dated November 19, 2014 (see Capurso v Capurso, 134 AD3d 974, 975; Garcia v Pepe, 42 AD3d 427, 430). Accordingly, the one-year time period never commenced (see CPLR 5015[a][1]).

Nevertheless, we agree with the Supreme Court's determination to deny those branches of ROU's motion which were to vacate the order dated November 19, 2014, and to extend the time to serve an answer. While the court has the discretion to accept law office failure as a reasonable excuse (see CPLR 2005; Shin v ITCI, Inc., 115 AD3d 736, 737), "[a] party attributing his or her default to a former attorney must provide a detailed and credible explanation of the default. Conclusory and unsubstantiated allegations of law office failure are not sufficient" (U.S. Bank N.A. v Barr, 139 AD3d 937, 937-938 [citation and internal quotation marks omitted]; see LaSalle Bank, N.A. v LoRusso, 155 AD3d 706, 707; Morris v Metropolitan Transp. Auth., 191 AD2d 682). "[M]ere neglect is not a reasonable excuse" (Ki Tae Kim v Bishop, 156 AD3d 776, 777 [internal quotation marks omitted]).

Contrary to ROU's contention, it failed to provide a detailed and credible explanation of the default, and no other evidence was submitted to corroborate the allegation of law office failure (see OneWest Bank, FSB v Singer, 153 AD3d 714, 716). Accordingly, ROU's "bare allegations of incompetence on the part of prior counsel" (Huggins v Parkset Supply, Ltd., 24 AD3d 610, 611 [internal quotation marks omitted]) were insufficient to establish an excusable default under CPLR 5015(a)(1) (see LaSalle Bank, N.A. v LoRusso, 155 AD3d 706LaSalle Bank N.A. v Calle, 153 AD3d 801Carillon Nursing & Rehabilitation Ctr., LLP v Fox, 118 AD3d 933, 934; Beale v Yepes, 309 AD2d 886).

Since ROU failed to establish a reasonable excuse for its default in appearing or answering the complaint, it is unnecessary to consider whether it established the existence of a potentially meritorious defense (see CPLR 5015[a][1]; LaSalle Bank N.A. v Calle, 153 AD3d at 803).

Furthermore, the interests of substantial justice did not warrant vacating ROU's default in the exercise of the Supreme Court's inherent power (see Yung Chong Ho v Uppal, 130 AD3d at 813).

The bold is mine.


Being duly sworn and a personal jurisdiction problem

Ulster Sav. Bank v Fiore, 2018 NY Slip Op 06588 [2d Dept. 2018]

Contrary to Nicholas's contention, the affidavit of the plaintiff's Collections Officer, submitted by the plaintiff in support of its motion, was not improperly sworn and, therefore, was adequate to support the motion, since the affidavit expressly contained the phrase "being duly sworn" and was notarized (Citibank, NA v Abrams, 144 AD3d 1212, 1216; see Matter of Bennett, 148 AD3d 1449, 1449-1450). In opposition to the motion, the defendants failed to raise a triable issue of fact.

We also agree with the Supreme Court's determination to deny, without a hearing, that branch of the defendants' cross motion which was pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against Nicholas for lack of personal jurisdiction. Nicholas waived the defense of lack of personal jurisdiction by failing to assert it in his answer or in a pre-answer motion to dismiss (see MidFirst Bank v Ajala, 146 AD3d 875, 875; cf. Hopstein v Cohen, 143 AD3d 859, 860).

The bold is mine.

Discovery of the claims file after the commencement of the action

Rickard v New York Cent. Mut. Fire Ins. Co., 2018 NY Slip Op 06333 [4th Dept. 2018]

During discovery, plaintiff served upon defendant a notice to produce its entire SUM claim file. Defendant, relying upon Lalka v ACA Ins. Co. (128 AD3d 1508 [4th Dept 2015]), responded by providing plaintiff with the contents of the claim file up until the date of commencement of this action. During a pretrial conference, defendant made an offer to resolve the matter. In a follow-up letter, plaintiff demanded that defendant provide the entire claim file, including those parts generated after commencement of this action. Defendant moved for a protective order and alternative relief, including an in camera review, plaintiff cross-moved to compel disclosure of the entire claim file, and defendant filed a second motion, seeking dismissal of the complaint, which is not relevant on appeal. Supreme Court, inter alia, denied defendant's motion for a protective order and granted plaintiff's cross motion in part by directing defendant to provide plaintiff with "any and all documents in the claim file pertaining to the payment or rejection of the subject claim including those prepared after the filing of this lawsuit up to the time the settlement offer was made . . . including reports prepared by Defendant's attorney(s)." Defendant appeals.

We note at the outset that defendant did not challenge plaintiff's notice to produce, which requested the entire claim file without designating any documents or categories of documents therein, on the ground that such request was palpably improper because it was overbroad or sought matter not "material and necessary" for the prosecution of plaintiff's action (CPLR 3101 [a]; see CPLR 3120 [1], [2]; see generally Battease v State of New York, 129 AD3d 1579, 1580 [4th Dept 2015]; Heimbach v State Farm Ins., 114 AD3d 1221, 1222 [4th Dept 2014]), and that defendant's motion for a protective order was based upon the assertion that any documents contained in the claim file after the date of commencement were materials protected from discovery. Thus, the sole issue on appeal is whether defendant met its burden of establishing that those parts of the claim file withheld from discovery contain material that is protected from discovery. We conclude that defendant did not meet that burden.

To the extent that Lalka (128 AD3d at 1508) holds that any documents in a claim file created after commencement of an action in a SUM case in which there has been no denial or disclaimer of coverage are per se protected from discovery, it should not be followed. Rather, a party seeking a protective order under any of the categories of protected materials in CPLR 3101 bears "the burden of establishing any right to protection" (Spectrum Sys. Intl. Corp. v Chemical Bank, 78 NY2d 371, 377 [1991]; see Heimbach, 114 AD3d at 1222). " [A] court is not required to accept a party's characterization of material as privileged or confidential' " (Optic Plus Enters., Ltd. v Bausch & Lomb Inc., 37 AD3d 1185, 1186 [4th Dept 2007]). Ultimately, "resolution of the issue whether a particular document is . . . protected is necessarily a fact-specific determination . . . , most often requiring in camera review' " (id., quoting Spectrum Sys. Intl. Corp., 78 NY2d at 378).

Here, we conclude that defendant failed to meet its burden inasmuch as it relied solely upon the conclusory characterizations of its counsel that those parts of the claim file withheld from discovery contain protected material. We nonetheless further conclude that, under the circumstances of this case, the court abused its discretion by ordering the production of allegedly protected documents and instead should have granted the alternative relief requested by defendant, i.e., allowing it to create a privilege log pursuant to CPLR 3122 (b) followed by an in camera review of the subject documents by the court (see Schindler v City of New York, 134 AD3d 1013, 1014-1015 [2d Dept 2015]; Baliva v State Farm Mut. Auto. Ins. Co., 275 AD2d 1030, 1031 [4th Dept 2000]). We therefore reverse the order insofar as appealed from, vacate the first and second ordering paragraphs, grant the motion for a protective order insofar as it seeks an in camera review, and remit the matter to Supreme Court to determine the motion and the cross motion following an in camera review of the allegedly protected documents.

The bold is mine.

Law of the case

J.P. Morgan Sec., Inc. v Vigilant Ins. Co., 2018 NY Slip Op 06146 [1st Dept, 2018]

However, application of the doctrine of the "law of the case" is not warranted under the particular circumstances before us.

The law of the case is applicable to "legal determinations that were necessarily resolved on the merits in a prior decision" (Brownrigg v New York City Hous. Auth., 29 AD3d 721, 722 [2d Dept 2006]). On the prior appeal, the Court of Appeals stated that "the Insurers do not earnestly dispute that the claims fall within the policy's definition of Loss" (21 NY3d at 333), but did not rely on the policy language in denying defendants' motions. Instead it focused on the public policy issue. Furthermore, the doctrine does not apply where a motion for summary judgment follows a motion to dismiss that was not converted to a motion for summary judgment pursuant to CPLR 3212(c)(see Alvarado v City of New York, 150 AD3d 500, 500 [1st Dept 2017]; Rosen v Mosby, 148 AD3d 1228, 1233 [3d Dept 2017], lv dismissed 30 NY3d 1037 [2017]; 191 Chrystie LLC v Ledoux, 82 AD3d 681, 682 [1st Dept 2011]).

Even if the Court of Appeals' prior determination is viewed as addressing the contractual issue, "while the law of the case doctrine is intended to foster orderly convenience' . . ., it is not an absolute mandate which limits an appellate court's power to reconsider issues where there are extraordinary circumstances, such as subsequent evidence affecting the prior determination or a change of law'" (Frankson v Brown & Williamson Tobacco Corp., 67 AD3d 213, 218 [2d Dept 2009]; see also Foley v Roche, 86 AD2d 887, 887 [1982], lv denied 56 NY2d 507 [1982] [holding that where the basis for a prior order had since been overruled by the Supreme Court of the United States and by the Court of Appeals, the law of the case doctrine can be ignored even though the prior order was from a higher court]). Here, the United States Supreme Court's decision in Kokesh, characterizing SEC disgorgement as a penalty, represents such a change of law.

A trials judge’s function is to protect the record, not create it

People v Sookdeo, 2018 NY Slip Op 06040 [2d Dept 2018]

 Upon reviewing the record here, we are satisfied that the verdict of guilt of gang assault in the second degree was not against the weight of the evidence (see CPL 470.15[5]; People v Romero, 7 NY3d 633).

However, there must be a new trial, before a different justice, because the Supreme Court conducted excessive and prejudicial questioning of trial witnesses. Although defense counsel did not object to most instances of judicial interference, we reach this contention in the exercise of our interest of justice jurisdiction (see CPL 470.15[6][a]; People v Davis, 147 AD3d 1077, 1079). "While neither the nature of our adversary system nor the constitutional requirement of a fair trial preclude a trial court from assuming an active role in the truth-seeking process,' the court's discretion in this area is not unfettered" (People v Robinson, 151 AD3d 758, 759, quoting People v Storfs, 47 NY2d 882, 883). The principle restraining the court's discretion is that a trial judge's "function is to protect the record, not to make it" (People v Yut Wai Tom, 53 NY2d 44, 58). Indeed, when the trial judge interjects often and indulges in an extended questioning of witnesses, even where those questions would be proper if they came from trial counsel, the trial judge's participation presents significant risks of prejudicial unfairness (see People v Robinson, 151 AD3d 758People v Davis, 147 AD3d at 1079). Accordingly, while a trial judge may intervene in a trial to clarify confusing testimony and facilitate the orderly and expeditious progress of the trial, the court may not take on "the function or appearance of an advocate" (People v Arnold, 98 NY2d 63, 67; see People v Davis, 147 AD3d at 1079).

Here, the Supreme Court interjected itself into the questioning of multiple witnesses, elicited step-by-step details about how the defendant was identified by witnesses as a suspect, and generally created the impression that it was an advocate for the People. Under the circumstances, the court's improper interference deprived the defendant of a fair trial, and a new trial before a different justice is warranted (see People v Hinds, 160 AD3d 983People v Robinson, 151 AD3d 758People v Davis, 147 AD3d at 1079).

The bold is mine.

The failure to annex the pleadings isn’t quite so terrible [CPLR 3212(b) and CPLR 2001]

Sensible Choice Contr., LLC v Rodgers, 2018 NY Slip Op 05790 [2d Dept 2018]

The defendants' contention that the plaintiff's failure to annex the pleadings to its motion papers was a fatal defect is without merit. CPLR 3212(b) requires, inter alia, that a moving party support its motion for summary judgment by attaching a copy of the pleadings. However, [*2]CPLR 2001 permits a court, at any stage of an action, to disregard a party's mistake, omission, defect, or irregularity if a substantial right of a party is not prejudiced (see Wade v Knight Transp., Inc., 151 AD3d 1107, 1109). Here, the pleadings were not only electronically filed and available to the Supreme Court and the parties, but the answer was submitted by the defendants in opposition to the motion, and the summons and complaint were submitted in reply by the plaintiff. The defendants did not assert that they were prejudiced by the omission. Under such circumstances, the court properly disregarded the plaintiff's omission (see Brightman v Prison Health Serv., Inc., 108 AD3d 739, 742; Studio A Showroom, LLC v Yoon, 99 AD3d 632Welch v Hauck, 18 AD3d 1096, 1098).

Referree’s report

Pathak v Shukla, 2018 NY Slip Op 05776 [2d Dept 2018]

" The report of a Referee should be confirmed whenever the findings are substantially supported by the record, and the Referee has clearly defined the issues and resolved matters of credibility'" (Capili v Ilagan, 26 AD3d 354, 354, quoting Stone v Stone, 229 AD2d 388, 388; see Pittoni v Boland, 278 AD2d 396; Slater v Links at N. Hills, 262 AD2d 299). Here, the referee's determination that the defendant willfully failed to comply with the terms of the stipulation and judgment of divorce was substantially supported by the record. In addition, the record also supported the referee's determination that the plaintiff was entitled to an additional award of attorney's fees and transcription costs from the defendant. Accordingly, we agree with the Supreme Court's determination to confirm the referee's report and to hold the defendant in contempt.