Potentially meritorious defense [CPLR 5015]

Lai v Montes, 2020 NY Slip Op 02134 [3d Dept. 2020]

Moreover, defendants have proffered several defenses that are potentially meritorious based upon their verified answer and affidavits in support of the motion to vacate the default judgment (see Global Liberty Ins. Co. v Shahid Mian, M.D., P.C., 172 AD3d 1332, 1333 [2019]; Luderowski v Sexton, 152 AD3d 918, 918 [2017]). “To establish the existence of a potentially meritorious defense, defendants needed only to make a prima facie showing of legal merit, as the quantum of proof needed to prevail on a CPLR 5015 (a) (1) motion is less than that required when opposing a summary judgment motion” (Luderowski v Sexton, 152 AD3d at 920 [internal quotation marks and citations omitted]). Defendants’ affidavits of merit indicate that plaintiffs breached the contract by misrepresenting that the dog was an “AKC [registerable] purebred English bulldog . . . that would be suitable for breeding or showing” when it is not suitable for same due to certain genetic defects. As a result, defendants claim that they were not unjustly enriched, as alleged in the complaint. Defendants also assert that the allegedly defamatory statements are true, an “absolute defense” provided they are “substantially true” (Hope v Hadley-Luzerne Pub. Lib., 169 AD3d 1276, 1277 [2019] [internal quotation marks and citations omitted]; see Cusimano v United Health Servs. Hosps., Inc., 91 AD3d 1149, 1151 [2012], lv denied 19 NY3d 801 [2012]). Further, defendants served an answer with numerous affirmative defenses and participated in depositions,[FN3] “indicat[ing] that they had no intention of abandoning their defense[s]” (Luderowski v Sexton, 152 AD3d at 920-921).

While these defenses may ultimately prove to be unsuccessful, we find that they are potentially meritorious so as to satisfy CPLR 5015 (a) (1), in that they “suffice to make the requisite prima facie showing of merit” (Luderowski v Sexton, 152 AD3d at 921; see Matter of Santander Consumer USA, Inc. v Kobi Auto Collision & Paint Ctr., Inc., 166 AD3d at 1366; Passeri v Tomlins, 141 AD3d 816, 818-819 [2016]). “Under these circumstances, and considering the strong public policy favoring the resolution of cases upon their merits” (Matter of Walker v Buttermann, 164 AD3d 1081, 1082-1083 [2018] [citations omitted]), we find that defendants’ motion to vacate the default judgment should have been granted. Accordingly, the final order issued following the inquest must be reversed and defendants’ remaining contentions addressed to the inquest have been rendered academic.

Bold is mine.

Objections are appropriate responses

Aikanat v Spruce Assoc., L.P., 2020 NY Slip Op 02188 [1st Dept. 2020]

The court providently exercised its discretion in declining to vacate the note of issue or permit post-note of issue discovery in light of defendants’ failure to seek the discovery at an earlier time (see generally Andon v 302-304 Mott St. Assoc., 94 NY2d 740, 745 [2000]). Although defendants requested authorization to obtain plaintiff’s tax returns in 2015, they took no action to enforce their request until after the note of issue was filed. Similarly, they did not seek the Facebook Data until soon before the note of issue was filed, despite the asserted need for the information based on plaintiff’s testimony in his depositions, the last of which was taken in July 2018.

Defendants contend that the note of issue should be vacated because plaintiff misrepresented in the certificate of readiness that discovery was complete. However, the certificate of readiness correctly stated that plaintiff responded to all outstanding discovery requests, in that objections are an appropriate response. Furthermore, defendants failed to indicate why they are entitled to the discovery they belatedly sought; why the information in the tax returns was not available from another less private source, such as plaintiff’s employer’s payroll records (see Gama Aviation Inc. v Sandton Capital PartnersLP, 113 AD3d 456, 457 [1st Dept 2014]); and why they waited so long to request the social media information.

Defendants also assert that they were also improperly denied the opportunity to depose a corporate witness from third-party defendant BGC Partners, Inc. (BGC), who had knowledge of their claims for contractual indemnification and failure to procure insurance, and that the first witness produced by BGC did not have the requisite knowledge. However, they fail to indicate why they waited until after the note of issue was filed to seek this discovery inasmuch as the sale of assets to BGC occurred in April 2012, and defendants deposed the corporate witness in August 2018. The court further noted that defendants moved for summary judgment on their indemnification claims against BGC, demonstrating that the additional discovery was superfluous.

Bold is mine.

Alternate service

Fontanez v PV Holding Corp., 2020 NY Slip Op 02173 [1st Dept. 2020]

The motion court properly determined that service upon Mr. Yu pursuant to CPLR 308(1), (2), or (4) was impracticable. Plaintiff served the summons and complaint on the Secretary of State of New York and mailed notice of this service with a copy of the pleadings to defendant Yu by registered mail to his last known address. She also hired a process server, who attempted to obtain Mr. Yu’s address through the Department of Motor Vehicles and through people search databases, including “Premium People Search” and “IRB Search.” Further, the motion court properly concluded that plaintiff’s attempts to serve through the Chinese Central Authority in accordance with the Hague convention would have been futile because she did not have defendant’s correct address (see Born To Build, LLC v Saleh, 139 AD3d 654, 656 [2d Dept 2016]). Plaintiff was not required to show due diligence to meet the impracticability threshold under CPLR 308(5) (see Franklin v Winard, 189 AD2d 717 [1st Dept 1993]).

The motion court properly directed that alternate service be made on defendant PV Holding as real party in interest, even if neither the attorney nor the insurer had knowledge of defendant’s Yu’s whereabouts (see Matter of New York City Asbestos Litig., 116 AD3d 571 [1st Dept 2014], lv dismissed 23 NY3d 1030 [2014]; Cives Steel Co. v Unit Bldrs., 262 AD2d 164 [1st Dept 1999]).

Bold is mine.

3103 proper to respond to pre-action discovery [3102(c)]

Matter of Delgrange v RealReal, Inc., 2020 NY Slip Op 02170 [1st Dept. 2020]

As a threshold matter, TRR’s motion pursuant to CPLR 3103(a) is a proper vehicle for challenging the petition brought pursuant to CPLR 3102(c) (see e.g. Liberty Imports v Bourguet, 146 AD2d 535, 537 [1st Dept 1989]). CPLR 3102(c) merely provides a device for obtaining pre-action discovery, and CPLR 3103(a) is a means for obtaining “at any time” an order “denying, limiting, conditioning or regulating the use of any disclosure device.” The fact that TRR has produced information relating to 20 of the items at issue does not moot its appeal (see Matter of Camara v Skanska, Inc., 150 AD3d 548 [1st Dept 2017]; Matter of New York City Asbestos Litig., 109 AD3d 7, 12 n 2 [1st Dept 2013], lv dismissed 22 NY3d 1016 [2013]).

In support of her application for pre-action discovery pursuant to CPLR 3102(c), petitioner demonstrated a meritorious cause of action for conversion (see Bishop v Stevenson Commons Assoc., L.P., 74 AD3d 640 [1st Dept 2010], lv denied 16 NY3d 702 [2011]; Vigilant Ins. Co. of Am. v Housing Auth. of City of El Paso, Tex., 87 NY2d 36, 44 [1995] [elements of conversion claim]). In an affidavit, she averred that she had a collection of thousands of articles of fashion items made by respondent Marc Jacobs International, LLC (Marc Jacobs), many of which were rare or unique; that she routinely monitored TRR’s website for other Marc Jacobs items; and that she noticed, beginning in late 2017, that items similar to hers were being posted online. Growing suspicious, she inventoried her collection and discovered that many pieces were missing that seemed to be the same as items posted on TRR’s website. Petitioner reviewed thousands of Marc Jacobs items that had been listed for sale on TRR’s website, and identified 153 items that she believed had been stolen from her collection. She then purchased several of the items, including one that had an identifying tear in it, and ascertained that they had been hers.

Petitioner also demonstrated that the discovery she seeks from TRR — the identity of the people who posted — is material and necessary to the prosecution of her posited cause of action (see Bishop, 74 AD3d at 641; see e.g. Matter of Alexander v Spanierman Gallery, LLC, 33 AD3d 411 [1st Dept 2006]; Matter of Banco de Concepcion v Manfra, Tordella & Brooke, 70 AD2d 840, 841 [1st Dept 1979], appeal dismissed 48 NY2d 655 [1979]; Matter of Cohen v Google, Inc., 25 Misc 3d 945 [Sup Ct, NY County 2009]).

Supreme Court providently exercised its discretion in shaping and executing the confidentiality order governing disclosure by TRR. The court addressed TRR’s concerns about petitioner’s contacting its customers by modifying the form to require petitioner to give TRR 24 hours’ written notice prior to any use of information disclosed under the order. The court also providently exercised its discretion in declining to restrict petitioner’s use of information disclosed under the order to conversion claims. Although petitioner does not currently posit any theory other than conversion as a basis for pre-action discovery, she is not foreclosed from developing, at some point, new viable theories for recovery, such as replevin (see e.g. Alexander, 33 AD3d at 412). There is no basis for making it impossible for her to seek recovery under any legitimate theory that may arise.

Bold is mine.

3126 and conditional orders

Mehler v Jones, 2020 NY Slip Op 02103 [1st Dept. 2020]

The motion court providently exercised its discretion in issuing a conditional order of dismissal, in light of plaintiff’s history of noncompliance with court orders requiring her to appear for a further deposition (see CPLR 3126[3]; Fish & Richardson, P.C. v Schindler, 75 AD3d 219, 220 [1st Dept 2010]).

Plaintiff contends that her behavior was neither willful nor contumacious. However, by issuing a conditional order, the court “relieve[d] [itself] of the unrewarding inquiry into whether [plaintiff’s] resistance was willful” (Board of Mgrs. of the 129 Lafayette St. Condominium v 129 Lafayette St., LLC, 103 AD3d 511, 511 [1st Dept 2013] [internal quotation marks omitted]).

On her motion to renew, plaintiff failed to submit new facts (CPLR 2221[e][2]), i.e., facts that existed but were unknown to her at the time defendants made their motions (see Matter of Naomi S. v Steven E., 147 AD3d 568 [1st Dept 2017]). Instead, she submitted facts that developed after the conditional order that decided the prior motions was issued.

Plaintiff’s proper recourse was to seek to vacate the order on the ground of excusable default, pursuant to CPLR 5015(a)(1) (see Hutchinson Burger, Inc. v Bradshaw, 149 AD3d 545, 545 [1st Dept 2017]; Country Wide Home Loans, Inc. v Dunia, 138 AD3d 533 [1st Dept 2016]). Even if we treat the motion as a motion to vacate (see CPLR 2001), we must deny it. Although plaintiff demonstrated a reasonable excuse for her failure to comply with the conditional order, she failed to demonstrate a meritorious medical malpractice claim (see Gibbs v St. Barnabas Hosp., 16 NY3d 74, 80 [2010]).

4401 Judgment as a matter of law

Boriello v Loconte, 2020 NY Slip Op 02035 [2d Dept. 2020]

” A motion for judgment as a matter of law pursuant to CPLR 4401 may be granted where the trial court determines that, upon the evidence presented, there is no rational process by which the [trier of fact] could base a finding in favor of the nonmoving party'” (PAS Tech. Servs. v Middle Vil. Healthcare Mgt., LLC, 92 AD3d 742, 744, quoting C.K. Rehner, Inc. v Arnell Constr. Corp., 303 AD2d 439, 440). “In considering such a motion, the trial court must afford the party opposing the motion every inference which may properly be drawn from the facts presented, and the facts must be considered in light most favorable to the nonmovant'” (PAS Tech. Servs., Inc. v Middle Vil. Healthcare Mgt., LLC, 92 AD3d at 744, quoting Robinson v 211-11N., LLC, 46 AD3d 657, 658).

Here, the Supreme Court, in announcing its decision, stated that it expressly considered and relied on the defendants’ evidence. This was error, as it was improper for the court to consider, on a motion for a directed verdict made before the moving party had rested and the opposing party had an opportunity to present rebuttal evidence, the evidence introduced by the moving party (see Levine v Charlow, 254 App Div 416, 418; Dillon v Cortland Baking Co., 224 App Div 303, 305).

Thus, in the context of a motion for a directed verdict, the Supreme Court should not have accorded the defendants’ expert’s testimony more weight than that of the plaintiff’s expert. In determining a motion for a directed verdict, the trial court “must not engage in a weighing of the evidence, nor may it direct a verdict where the facts are in dispute, or where different inferences may be drawn or the credibility of witnesses is in question” (Hernandez v Pappco Holding Co., Ltd., 136 AD3d 981, 983 [internal quotation marks omitted]; see Matter of David WW. v Laureen QQ., 42 AD3d 685, 686). Accordingly, the judgment must be reversed, the defendants’ motion for a directed verdict denied, the amended complaint reinstated, and the matter remitted to the Supreme Court, Kings County, for a new trial.

Not an appealable paper and waiver

US Bank N.A. v Calle, 2020 NY Slip Op 02075 [2d Dept. 2020]

The paper appealed from is designated “MEMORANDUM” and directs the parties to “[s]ettle order” (see Funk v Barry , 89 NY2d 364, 367). Thus, the paper appealed from constitutes a decision, not an order. The appeal from the decision must be dismissed, as no appeal lies from a decision (see CPLR 5512[a]; Schicchi v J.A. Green Constr. Corp ., 100 AD2d 509).

Wells Fargo Bank, N.A. v Trupia, 2020 NY Slip Op 02085 [2d Dept. 2020]

The defendant waived her contention that the plaintiff lacked standing, since she failed to specifically raise that contention on the prior appeal (see Wells Fargo Bank, N.A. v Trupia, 150 AD3d 1049see also Candea v Candea, 173 AD3d 667, 669; Czernicki v Lawniczak, 103 AD3d 769, 770; Dimery v Ulster Sav. Bank, 82 AD3d 1034, 1034).