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We Moved

I’ve decided to move thecplrblog to here, under the bruteforcelawyer site, because typepad has been absolutely terrible for me for quite some time now.  Some things might be moved around since I’m not sure whether I want to run more than one blog on this site. So, you might have to take an extra step to click on the CPLR stuff at some point.

5015 “potentially meritorious”

Mid-Hudson Props., Inc. v Klein, 2018 NY Slip Op 08638 [2 Dept. 2018]

Although it was not necessary for Varble to establish the validity of his defense as a matter of law in order to obtain vacatur of his default (see Marinoff v Natty Realty Corp., 17 AD3d 412), he satisfied his burden of demonstrating a potentially meritorious defense based upon the absence of a personal guaranty (see Brown Bark II, L.P. v Weiss & Mahoney, Inc., 90 AD3d 963) as well as the dissolution of KVG, P.C., by operation of law upon Greco leaving the firm, and later being disbarred in March 2016 (see Partnership Law §§ 60, 62[3]; Magee v Magee, 120 AD3d 637Mashihi v 166-25 Hillside Partners, 51 AD3d 738).

Notice of appearance and personal jurisdiction

Deutsche Bank Natl. Trust Co. v Vu, 2018 NY Slip Op 08629 [2d Dept. 2018]

“The filing of a notice of appearance in an action by a party’s counsel serves as a waiver of any objection to personal jurisdiction in the absence of either the service of an answer which raises a jurisdictional objection, or a motion to dismiss pursuant to CPLR 3211(a)(8) for lack of personal jurisdiction” (U.S. Bank N.A. v Pepe, 161 AD3d 811, 812; see Wilmington Sav. Fund Socy. FSB v Zimmerman, 157 AD3d 846, 847; American Home Mtge. Servicing, Inc. v Arklis, 150 AD3d 1180, 1181-1182; Countrywide Home Loans Servicing, LP v Albert, 78 AD3d 983, 984). Here, in November 2014, the defendant’s attorney appeared in the action on her behalf by filing a notice of appearance dated October 31, 2014, and did not move to dismiss the complaint on the ground of lack of personal jurisdiction at that time, or assert lack of personal jurisdiction in a responsive pleading (see American Home Mtge. Servicing, Inc. v Arklis, 150 AD3d at 1181-1182). The defendant did not move to dismiss the complaint until September 2015, 10 months after filing a notice of appearance. Under those circumstances, the defendant waived any claim that the Supreme Court lacked personal jurisdiction over her in this action (see U.S. Bank N.A. v Pepe, 161 AD3d at 813; Wilmington Sav. Fund Socy., FSB v Zimmerman, 157 AD3d at 846-847).

Although the plaintiff raises this issue for the first time on appeal, it involves a question of law that appears on the face of the record, and could not have been avoided if brought to the attention of the Supreme Court (see U.S. Bank N.A. v Bassett, 137 AD3d 1109, 1110; Guy v Hatsis, 107 AD3d 671, 671-672). Accordingly, we reach the issue and determine that the defendant was not entitled to dismissal of the complaint insofar as asserted against her for lack of personal jurisdiction.

Bold is mine.

“A judgment rendered without jurisdiction is void” but…

Bank United, FSB v Verbitsky, 2018 NY Slip Op 08623 [2d Dept. 2018]

As a threshold matter, the defendant correctly contends that the Supreme Court should have granted those branches of her motion which were to vacate and set aside the foreclosure sale and, in effect, to vacate the judgment of foreclosure and sale and the order of reference. “[A] court is without power to render a judgment against a party over whom the court lacks jurisdiction. A judgment rendered without jurisdiction is void” (Berlin v Sordillo, 179 AD2d 717, 719; see Diaz v Perez, 113 AD3d 421, 421; U.S. Bank, N.A. v Bernhardt, 88 AD3d 871, 872). Accordingly, upon, in effect, confirming the referee’s finding that the defendant was not properly served, the court was required to vacate and set aside the foreclosure sale, as well as the judgment of foreclosure and sale and order of reference upon which it was based (see Prudence v Wright, 94 AD3d 1073, 1074; U.S. Bank, N.A. v Bernhardt, 88 AD3d at 872).

However, in light of the plaintiff’s timely cross motion pursuant to CPLR 306-b (see US Bank N.A. v Saintus, 153 AD3d 1380, 1382), the Supreme Court could consider whether to extend the time for service of process, rather than granting the branch of the defendant’s motion which was to dismiss the complaint insofar as asserted against her for lack of personal jurisdiction.

Mailing

Aurora Loan Servs., LLC v Vrionedes, 2018 NY Slip Op 08622 [2d Dept. 2018]

“Although an affidavit of service may be a preferable method for a plaintiff to prove that it mailed the RPAPL 1304 notices in accordance with the statute, that is not the only method by which a residential foreclosure plaintiff may establish that it properly mailed the required notice” (HSBC Bank USA, N.A. v Ozcan, 154 AD3d at 826 [citation omitted]; see Flagstar Bank, FSB v Mendoza, 139 AD3d at 900). As this Court has previously observed, “[t]here is no requirement that a plaintiff in a foreclosure action rely on any particular set of business records to establish a prima facie case, so long as the plaintiff satisfies the admissibility requirements of CPLR 4518(a), and the records themselves actually evince the facts for which they are relied upon” (Citigroup v Kopelowitz, 147 AD3d 1014, 1015; see HSBC Bank USA, N.A. v Ozcan, 154 AD3d at 826). “[M]ailing may be proved by any number of documents meeting the requirements of the business records exception to the hearsay rule under CPLR 4518” (HSBC Bank USA, N.A. v Ozcan, 154 AD3d at 826; see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498, 508; CitiMortgage, Inc. v Pappas, 147 AD3d at 901).

Piercing

Sky-Track Tech. Co. Ltd. v HSS Dev., Inc., 2018 NY Slip Op 08708 [2d Dept. 2018]

“The general rule . . . is that a corporation exists independently of its owners, who are not personally liable for its obligations, and that individuals may incorporate for the express purpose of limiting their liability” (East Hampton Union Free School Dist. v Sandpebble Bldrs., Inc., 66 AD3d 122, 126, affd 16 NY3d 775). “The concept of piercing the corporate veil is an exception to this general rule, permitting, in certain circumstances, the imposition of personal liability on owners for the obligations of their corporation” (id. at 126). “A plaintiff seeking to pierce the corporate veil must demonstrate that a court in equity should intervene because the owners of the corporation exercised complete domination over it in the transaction at issue and, in doing so, abused the privilege of doing business in the corporate form, thereby perpetrating a wrong that resulted in injury to the plaintiff” (id.see Matter of Morris v New York State Dept. of Taxation & Fin., 82 NY2d 135, 142; JGK Indus., LLC v Hayes NY Bus., LLC, 145 AD3d 979, 980). “Factors to be considered in determining whether the owner has abused the privilege of doing business in the corporate form’ include whether there was a failure to adhere to corporate formalities, inadequate capitalization, commingling of assets, and use of corporate funds for personal use'” (East Hampton Union Free School Dist. v Sandpebble Bldrs., Inc., 66 AD3d at 127, quoting Millennium Constr., LLC v Loupolover, 44 AD3d 1016, 1016-1017).

Inherent power to vacate

Nationstar Mtge., LLC v Russo, 2018 NY Slip Op 08668 [2d Dept. 2018]

“Under CPLR 5015(a), a court is empowered to vacate a default judgment [or order] for several reasons, including excusable neglect; newly-discovered evidence; fraud, misrepresentation or other misconduct by an adverse party; lack of jurisdiction; or upon the reversal, modification or vacatur of a prior order” (Woodson v Mendon Leasing Corp., 100 NY2d 62, 68; see CPLR 5015[a]; Wells Fargo Bank, N.A. v Choo, 159 AD3d 938, 938; HSBC Bank USA v Josephs-Byrd, 148 AD3d 78840 BP, LLC v Katatikarn, 147 AD3d 710). “However, CPLR 5015(a) does not provide an exhaustive list as to when a default judgment [or order] may be vacated, and a court may vacate its own judgment [or order] for sufficient reason and in the interests of substantial justice” (40 BP, LLC v Katatikarn, 147 AD3d at 711, citing Woodson v Mendon Leasing Corp., 100 NY2d at 68; see Wells Fargo Bank, N.A. v Choo, 159 AD3d at 938; Hudson City Sav. Bank v Cohen, 120 AD3d 1304, 1305).

Although the Supreme Court retains “inherent discretionary power to relieve a party from a judgment or order for sufficient reason and in the interest of substantial justice” (Galasso, Langione & Botter, LLP v Liotti, 81 AD3d 884, 885; see Ladd v Stevenson, 112 NY 325, 332; Katz v Marra, 74 AD3d 888, 890), “[a] court’s inherent power to exercise control over its judgment is not plenary, and should be resorted to only to relieve a party from judgments taken through [fraud], mistake, inadvertence, surprise or excusable neglect” (Matter of McKenna v County of Nassau, Off. of County Attorney, 61 NY2d 739, 742 [internal quotation marks omitted]; see Wells Fargo Bank Minn., N.A. v Coletta, 153 AD3d 757, 758; HSBC Bank USA v Josephs-Byrd, 148 AD3d at 790)

No foundation for the expert opinion [biomechanical engineering]

Imran v R. Barany Monuments, Inc., 2018 NY Slip Op 08921 [2d Dept. 2018]

Under the circumstances of this case, we agree with the Supreme Court’s determination to grant the plaintiff’s motion pursuant to CPLR 4404(a) to set aside the jury verdict on the issue of damages (see Dovberg v Lauback, 154 AD3d 810). “An expert’s opinion must be based on facts in the record or personally known to the witness'” (Pascocello v Jibone, 161 AD3d 516, 516, quoting Hambsch v New York City Tr. Auth., 63 NY2d 723, 725). Here, a proper foundation was lacking for the admission of McGowan’s opinion (see Parker v Mobil Oil Corp., 7 NY3d 434, 447). Among other things, McGowan failed to calculate the force exerted by all four vehicles, the crash test he utilized to determine the delta-v differed in several significant respects from the instant accident, and he reviewed simulations in which the weight of the dummies was not similar to that of the plaintiff.

Uncertified electronic records (judicial notice)

Gibson v U’SAgain Holdings, LLC, 2018 NY Slip Op 09012 [1st Dept. 2018]

The copies of the electronic records from the Secretary of State’s official government website were admissible despite being uncertified, and the motion court properly considered them (see Matter of LaSonde v Seabrook, 89 AD3d 132, 137 n 8 [1st Dept 2011], lv denied 18 NY3d 911 [2012]; Kingsbrook Jewish Med. Ctr. v Allstate Ins. Co., 61 AD3d 13, 19-21 [2d Dept 2009]).

Incorporated by reference [CPLR 3212]

Canty v 133 E. 79th St., LLC, 2018 NY Slip Op 09022 [1st Dept. 2018]

The court should have dismissed the common-law negligence and Labor Law § 200 claims against 133 East. The fact that 133 East had submitted only an attorney’s affirmation is not fatal to its motion, as the affirmation incorporated by reference deposition testimony of plaintiff and Spieler’s foreman, Laurence Bisso, which had been submitted by Spieler (see Carey v Five Brothers, Inc., 106 AD3d 938, 940 [2d Dept 2013]; Daramboukas v Samlidis, 84 AD3d 719, 721 [2d Dept 2011]).

Notice to Admit [CPLR 3123]

Fetahu v New Jersey Tr. Corp., 2018 NY Slip Op 08746 [1st Dept. 2018]

“A notice to admit is designed to elicit admissions on matters which the requesting party reasonably believes there can be no substantial dispute’ (CPLR 3123[a])” (National Union Fire Ins. Co. of Pittsburgh, Pa. v Allen, 232 AD2d 80, 85 [1st Dept 1997]). “[A] notice to admit may not be utilized to request admission of material issues or ultimate or conclusory facts,” or “facts within the unique knowledge of other parties” (Taylor v Blair, 116 AD2d 204, 206 [1st Dept 1986]). Rather, it is “only properly used to eliminate from trial matters which are easily provable and about which there can be no controversy” (Samsung Am. v Yugoslav-Korean Consulting & Trading Co., 199 AD2d 48, 49 [1st Dept 1993]). Further, because a notice to admit “is not intended as simply another means for achieving discovery,” it may not be used to obtain information in lieu of other disclosure devices (see Hodes v City of New York, 165 AD2d 168, 170 [1st Dept 1991]).

Based on these principles, plaintiff’s motion to deem admitted the matters in the second notice to admit was properly denied. In this notice, plaintiff requested that defendant admit that a brochure describing the DriveCam service, and an “Event List” purportedly containing information about the subject incident, were obtained by defendant, in the ordinary course of its business, from a third party. The notice also requested that defendant admit that the Event List reflects events recorded on the day of the incident. These requests are not proper because they involve either material issues in the case or information within the unique knowledge of a third party (see Kimmel v Paul, Weiss, Rifkind, Wharton & Garrison, 214 AD2d 453 [1st Dept 1995]; Taylor, 116 AD2d at 206).

To the extent the requests seek admissions that the two documents were received in the ordinary course of defendant’s business, plaintiff could not have “reasonably believe[d],” based on the testimony of defendant’s claims manager, that there could be no “substantial dispute” on this issue (see CPLR 3123[a]; Nacherlilla v Prospect Park Alliance, Inc., 88 AD3d 770, 772 [2d Dept 2011]). Indeed, the claims manager indicated otherwise, testifying that he obtained the brochure by requesting it from a third party and compiled the Event List by conducting a search of the third party’s website.

The court properly granted a protective order with respect to Item Nos. 1-2, 14, and 16-20 in plaintiff’s third notice to admit because plaintiff could not have reasonably believed that there was no substantial dispute regarding these issues (see CPLR 3123[a]; Nacherlilla, 88 AD3d at 772). Item Nos. 16 and 19 are also improper insofar as they call for admissions of “legal conclusions” (see Kimmel, 214 AD2d at 453), and Item No. 14 is also improper insofar as it seeks information “within the unique knowledge of other parties” (Taylor, 116 AD2d at 206; see CPLR 3123[a]).

Item Nos. 4-12 and 15 were properly struck because they represented an improper “subterfuge for obtaining further discovery” post-filing of the note of issue (Ahroner v Israel Discount Bank of N.Y., 79 AD3d 481, 483 [1st Dept 2010] [internal quotation marks omitted]; see Taylor, 116 AD2d at 206). Item No. 3 was properly struck because whether defendant provided plaintiff with a document as part of discovery is not a fact relevant to the trial of this matter.

Item No. 13 should not have been struck because it is essentially undeniable based on prior testimony in this litigation.