Habeas corpus is limited to human beings

Matter of Nonhuman Rights Project, Inc. v Breheny, 2020 NY Slip Op 07675 [1st Dept. 2020]

Order, Supreme Court, Bronx County (Alison Y. Tuitt, J.), entered on or about February 19, 2020, which granted respondents’ motion to dismiss the petition for a writ of habeas corpus on behalf of Happy, an elephant, unanimously affirmed, without costs. The Clerk is directed to enter judgment dismissing the proceeding brought pursuant to CPLR article 70.

The common-law writ of habeas corpus does not lie on behalf of Happy, the elephant at issue in this proceeding (see Matter of Nonhuman Rights Project, Inc. v Lavery, 152 AD3d 73 [1st Dept 2017], lv denied 31 NY3d 1054 [2018]). We decline to overrule any of our alternative holdings in Lavery, which petitioner erroneously refers to as “dicta.” Under Lavery, the writ of habeas corpus is limited to human beings (see id. at 76-78). A judicial determination that species other than homo sapiens are “persons” for some juridical purposes, and therefore have certain rights, would lead to a labyrinthof questions that common-law processes are ill-equipped to answer. As we said in Lavery, the decisions of whether and how to integrate other species into legal constructs designed for humans is a matter “better suited to the legislative process.” (id at 80).

On refusing to sign a transcript: CPLR 2219 and Art 78

Charalabidis v Elnagar, 188 AD3d 44 [2d Dept 2020]

The plaintiffs’ efforts to require the Supreme Court to sign the transcript or order were in the nature of mandamus, to compel the court to perform a ministerial act for which there was a clear right (see CPLR 7801; Matter of Legal Aid Socy. of Sullivan County v Scheinman, 53 NY2d 12, 16 [1981]; Matter of State of New York v King, 36 NY2d 59, 62-63 [1975]; Matter of McClam v Corrigan, 171 AD3d 1069 [2019]; Matter of Jacobs v Parga, 98 AD3d 741 [2012]). In analogous circumstances, mandamus has been specifically applied to compel the determination of outstanding motions (see Matter of Weinstein v Haft, 60 NY2d 625, 627 [1983]; Matter of Liang v Hart, 132 AD3d 765 [2015]; Jacobs v Parga, 98 AD3d at 741; Matter of Law Offs. of Russell I. Marnell, P.C. v Blydenburgh, 26 AD3d 495, 496 [2006]; Matter of DeCintio v Cohalan, 18 AD3d 872 [2005]; Matter of Beekman Paper Co. v Fingerhood, 163 AD2d 238 [1990]; Matter of Silk & Bunks v Greenfield, 102 AD2d 734 {**188 AD3d at 54}[1984]; c.fMatter of Grisi v Shainswit, 119 AD2d 418, 420 [1986]). However, unlike in all of the foregoing reported cases, the plaintiffs here never actually commenced a proceeding pursuant to CPLR article 78 in the nature of mandamus against the Justice, and the statute of limitations has since expired (see CPLR 217 [1]; Matter of Level 3 Communications, LLC v DeBellis, 72 AD3d 164, 173-174 [2010]; Matter of Zupa v Zoning Bd. of Appeals of Town of Southold, 64 AD3d 723, 725 [2009]). A proceeding pursuant to CPLR article 78 must be commenced, as relevant here, within four months “after the respondent’s refusal, upon the demand of the petitioner or the person whom he [or she] represents, to perform its duty” (CPLR 217 [1]). Here, in an order entered December 19, 2017, the court denied that branch of the plaintiffs’ motion which was pursuant to CPLR 2219 and 22 NYCRR 202.48 to compel the court to sign and issue an appealable paper. Therefore, the plaintiffs were required to commence a proceeding pursuant to CPLR article 78 in the nature of mandamus against the Justice no later than April 19, 2018, and that deadline is now long passed. This Court understands the reluctance of the trial bar to ever commence such proceedings against the judges and justices assigned to their cases. However, (absent meaningful assistance from the district administrative judge) under the circumstances present here, where the plaintiffs made several unsuccessful attempts to obtain an appealable paper, their only alternative was to commence a proceeding pursuant to CPLR article 78 in the nature of mandamus if the plaintiffs wished to proceed with an appeal challenging the court’s failure to provide them with an appealable paper.

Absent a proceeding pursuant to CPLR article 78, the plaintiffs can receive no relief on this appeal. This Court cannot compel under the guise of CPLR 2219 (a) and 22 NYCRR 202.48 relief that can only be properly accomplished by mandamus, which is now untimely.

IV. Miscellaneous

The requirements of CPLR 2219 should not be confused with the separate requirements of CPLR 4213, which independently regulates decisions rendered by courts upon the conclusion of non-jury trials and hearings. The reader is referred to CPLR 4213 for the different particulars of that statute.

Although, in the absence of a mandamus proceeding, we are obligated to affirm the order insofar as appealed from, we note that on this record, there is no signed enforceable order by which the original counsel for the plaintiffs has been disqualified and, therefore, the time to appeal any such future order has not yet begun to run.

The parties’ remaining contentions have been rendered academic.

Accordingly, the order is affirmed insofar as appealed from.

On admissions

Napoli v Breaking Media, Inc., 2020 NY Slip Op 05907 [2d Dept. 2020]

“The doctrine of collateral estoppel, a narrower species of res judicata, precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party or those in privity, whether or not the tribunals are the same” (Ryan v New York Tel. Co., 62 NY2d 494, 500). The doctrine precludes a party from relitigating an issue which has previously been decided against that party in a proceeding in which that party had a fair opportunity to fully litigate the point” (see Matter of Dunn, 24 NY3d 699, 704).

Here, the plaintiff’s allegation in her complaint in this action that the articles published by the defendants were republications of the Post articles is a judicial admission which is conclusive of the fact asserted (see Re/Max of N.Y., Inc. v Weber, 177 AD3d 910, 914; Zegarowicz v Ripatti, 77 AD3d 650, 653). Accordingly, since the complaint alleges that the defendants committed defamation by making substantially the same statements that were made in the Post articles, the defendants established that the complaint is barred by the doctrine of collateral estoppel (see CPLR 3211[a][5]; Karakash v Trakas, 163 AD3d 788, 789-790; Constantine v Teachers Coll., 93 AD3d 493, 494).

Pina v Arthur Clinton Hous. Dev. Fund Corp., 2020 NY Slip Op 06968 [1st Dept. 2020]

The court properly considered some of the medical records submitted in opposition to plaintiff’s summary judgment motion, in which plaintiff also provided inconsistent accounts of how the accident occurred. Even assuming that the descriptions of the accident contained in plaintiff’s medical records were not germane to his treatment and diagnosis, the entries in at least three of the medical records were directly attributable to plaintiff so as to constitute admissions (see Robles v Polytemp, Inc., 127 AD3d 1052, 1054 [2d Dept 2015]; Marquez at 423; cf. Benavides v City of New York, 115 AD3d 518, 519-520 [1st Dept 2014]). Even assuming that these entries constituted hearsay, they may be submitted in opposition to plaintiff’s motion and properly considered in conjunction with the other evidence in the record, which provided different descriptions of the accident (Marquez at 423).

Rosales v Rivera, 176 AD3d 753 [2d Dept. 2020]

Nevertheless, the Espinals were entitled to summary judgment dismissing the complaint insofar as asserted against them, as the plaintiff made an informal judicial admission that the Espinals were not at fault in the happening of the accident. The plaintiff argued in prior motion practice that Rivera’s and Beltre’s failures to safely bring their vehicles to a stop was the sole proximate cause of the plaintiff’s injuries (see Russell v Gaines, 209 AD2d 939, 940 [1994]; Matter of Home of Histadruth Ivrith v State of N.Y. Facilities Dev. Corp., 114 AD2d 200, 204 [1986]; Pok Rye Kim v Mars Cup Co., 102 AD2d 812, 812 [1984]; see also Michigan Natl. Bank-Oakland v American Centennial Ins. Co., 89 NY2d 94, 103 [1996]). “Admissions by counsel, as by any other agent, are admissible against a party provided that the statements had been made by the attorney while acting in his authorized capacity” (Bellino v Bellino Constr. Co., 75 AD2d 630, 630 [1980]; see Matter of Home of Histadruth Ivrith v State of N.Y. Facilities Dev. Corp., 114 AD2d at 204). An informal judicial admission is evidence of the fact or facts admitted (see Michigan Natl. Bank-Oakland v American Centennial Ins. Co., 89 NY2d at 103). In opposition to the motion, the plaintiff failed to raise a triable issue of fact as to whether the Espinals’ conduct proximately caused his injuries.

On stare decisis

US Bank N.A. v UBS Real Estate Sec., Inc., 177 AD3d 493 [1st Dept. 2019]

The dispositive issue in both appeals is whether the trustee of a residential mortgage-backed securities trust is a “plaintiff” within the meaning of CPLR 205 (a) when the prior action was commenced by the trust’s certificateholders. In U.S. Bank N.A. v DLJ Mtge. Capital, Inc. (141 AD3d 431 [1st Dept 2016], affd 33 NY3d 84 [2019] [hereinafter HEAT]), we concluded that “the trustee [was] not entitled to refile the claims under CPLR 205 (a), because it [was] not a ‘plaintiff’ under that statute” (id. at 433). Our decision “could not have been clearer, and that decision is still good law and binding upon us under principles of stare decisis” (First Hudson Capital, LLC v Seaborn, 54 AD3d 251, 252 [1st Dept 2008], appeal dismissed 11 NY3d 894 [2008]). Plaintiff Ace Securities Corp.’s attempt to distinguish HEAT is unavailing. Neither plaintiff has demonstrated the “compelling circumstances” required to depart from stare decisis (see People v Aarons, 305 AD2d 45, 56 [1st Dept 2003], affd 2 NY3d 547 [2004]; see also Dufel v Green, 198 AD2d 640 [3d Dept 1993], affd 84 NY2d 795 [1995]).

On discovery

Lyoussi v Etufugh, 2020 NY Slip Op 06956 [1st Dept. 2020]

The motion court providently exercised its discretion in declining to strike the complaint or preclude plaintiff from offering evidence for failure to comply with discovery orders. The court was not beholden to a prior order that warned that failure to comply would be construed as willful and contumacious but was not a conditional order that would have obviated the need for a determination of willfulness (see Board of Mgrs. of the 129 Lafayette St. Condominium v 129 Lafayette St., LLC, 103 AD3d 511 [1st Dept 2013]). Further, the history of this litigation establishes that any non-compliance on plaintiff’s part was not willful, contumacious or in bad faith (see Henderson-Jones v City of New York, 87 AD3d 498, 504 [1st Dept 2011]). Plaintiff complied with the court’s discovery orders more often than not by providing timely responses that generally evidenced a good-faith effort to address outstanding discovery meaningfully (see Kihl v Pfeffer, 94 NY2d 118, 123 [1999]).

Roel v Hsu, 185 AD3d 1077 [2d Dept. 2020]

Resolution of discovery disputes and the nature and degree of the penalty to be imposed pursuant to CPLR 3126 are matters within the sound discretion of the motion court (see Williams v Suttle, 168 AD3d 792, 793 [2019]; Morales v Zherka, 140 AD3d 836, 836-837 [2016]; Isaacs v Isaacs, 71 AD3d 951, 952 [2010]). The Supreme Court providently exercised its discretion in denying the defendants’ motion without prejudice. The record reveals that the plaintiff substantially complied with the court’s orders to respond to the defendants’ second set of interrogatories by providing separate full answers and objections with reasonable particularity to each of the 50 questions (see CPLR 3133 [a], [b]; Pesce v Fernandez, 144 AD3d 653, 654 [2016]; Palmieri v Piano Exch., Inc., 124 AD3d 611, 612 [2015]; Delarosa v Besser Co., 86 AD3d 588, 589 [2011]). The defendants’ dissatisfaction with the answers and objections proffered by the plaintiff was insufficient to establish that the plaintiff willfully and contumaciously failed to comply with court-ordered disclosure (see Automatic Mail Serv. v Xerox Corp., 156 AD2d 623, 624 [1989]; E.K. Constr. Co. v Town of N. Hempstead, 144 AD2d 427 [1988]; Miller v Duffy, 126 AD2d 527, 528 [1987]).

Board of Mgrs. of 141 Fifth Ave. Condominium v 141 Acquisition Assoc. LLC, 186 AD3d 1147 [1st Dept.  2020]

The motion court providently exercised its discretion in denying unfettered disclosure of the confidential settlement agreement between plaintiff Board of Managers of 141 Fifth Avenue Condominium and the sponsor of the building, defendant 141 Acquisition Associates LLC (the sponsor), and instead permitting disclosure of the portions of the agreement which the court determined were relevant following in camera review (Mahoney v Turner Constr. Co., 61 AD3d 101, 104-106 [1st Dept 2009]). Upon review, the motion court providently determined that the portions that were relevant to appellants’ claims and defenses were (1) the scope of the assignment of the sponsor’s claims to plaintiff and (2) whether the agreement contained a cooperation provision. As for appellants’ arguments urging disclosure in order to show bias of certain witnesses, appellants failed to connect such bare allegations to anything contained in the settlement agreement that would be “material and necessary” to the litigation of any party’s liability or damages (Matter of New York County Data Entry Worker Prod. Liab. Litig., 222 AD2d 381, 382 [1st Dept 1995]). Without more, “any possible use of [the agreement] for purpose of impeachment . . . is speculative in the extreme” (id. [internal quotation marks omitted]).

Beach v Touradji Capital Mgt., LP, 179 AD3d 474 [1st Dept. 2020]

Pursuant to CPLR 3126, if a party “refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed . . . , the court may make such orders with regard to the failure or refusal as are just.” Although “[i]t is within the trial court’s discretion to determine the nature and degree of the penalty, . . . [t]he sanction should be commensurate with the particular disobedience it is designed to punish, and go no further than that” (Merrill Lynch, Pierce, Fenner & Smith, Inc. v Global Strat Inc., 22 NY3d 877, 880 [2013] [internal quotation marks omitted]). Further, “the drastic remedy of striking a party’s pleading . . . for failure to comply with a discovery order . . . is appropriate only where [it is] conclusively demonstrate[d] that the non-disclosure was willful, contumacious or due to bad faith” (Henderson-Jones v City of New York, 87 AD3d 498, 504 [1st Dept 2011] [internal quotation marks omitted]).

Although the court here did not strike a pleading, its ruling could fairly be viewed as having done so, since the precluded evidence was critical to the fiduciary duty claims. Moreover, the court’s drastic sanctions were disproportionate to the alleged discovery malfeasance. It is unclear why a short continuance to give plaintiffs time to review the newly-produced documents would not have been a viable option, or why further curative instructions would not have sufficed. The record as a whole does not support a finding of willfulness or bad faith so as to justify the severe sanctions imposed (see Corrigan v New York City Tr. Auth., 144 AD3d 495, 496 [1st Dept 2016] [because the discovery failures were not wilful or contumacious or in bad faith, the court’s drastic sanction of striking the answer and precluding evidence at trial was unwarranted]). No basis exists to indicate that this was anything other than a disagreement over the scope of discovery. Indeed, the court at trial stated that the alleged discovery omissions “appear[ ] not to have been in bad faith.”

Nor is there support in the record for plaintiffs’ current assertion that appellants refused to obey a discovery order issued at the pretrial conference. Although a transcript of the pretrial conference does not exist, the court expressly acknowledged at trial that it did not issue a discovery order, but merely “asked” appellants to produce the documents. The court further observed that when appellants were subsequently “order[ed]” to produce the material, appellants complied. Likewise, at trial, counsel for plaintiffs described the court as merely having directed the parties to “work it out.”

Asprou v Hellenic Orthodox Community of Astoria, 185 AD3d 638 [2d Dept. 2020]

For purposes of depositions, a corporate entity has the right to designate, in the first instance, the employee who shall be examined (see Conte v County of Nassau, 87 AD3d 559, 560 [2011]; Giordano v New Rochelle Mun. Hous. Auth., 84 AD3d 729, 731 [2011]; Nunez v Chase Manhattan Bank, 71 AD3d 967, 968 [2010]). A party “seeking additional depositions has the burden of demonstrating ‘(1) that the representatives already deposed had insufficient knowledge, or were otherwise inadequate, and (2) there is a substantial likelihood that the persons sought for depositions possess information which is material and necessary to the prosecution of the case’ ” (Gomez v State of New York, 106 AD3d 870, 872 [2013], quoting Zollner v City of New York, 204 AD2d 626, 627 [1994]; see Conte v County of Nassau, 87 AD3d at 560; Giordano v New Rochelle Mun. Hous. Auth., 84 AD3d at 731).

We agree with the Supreme Court’s determination denying that branch of the plaintiff’s motion which was to compel the defendants to produce the two additional named witnesses for depositions. The plaintiff failed to demonstrate that the defendants’ representative who had already been deposed had insufficient knowledge or was otherwise inadequate as a witness (see Walker v City of New York, 140 AD3d 739 [2016]; Thristino v County of Suffolk, 78 AD3d 927 [2010]; Douglas v New York City Tr. Auth., 48 AD3d 615 [2008]).

We also agree with the Supreme Court’s determination denying that branch of the plaintiff’s motion which was to compel the defendants to respond to his supplemental combined discovery demands. CPLR 3101 (a) requires, in pertinent part, “full disclosure of all matter material and necessary in the prosecution or defense of an action.” However, “[a] party is not entitled to unlimited, uncontrolled, unfettered disclosure” (Geffner v Mercy Med. Ctr., 83 AD3d 998, 998 [2011]; see Kiernan v Booth Mem. Med. Ctr., 175 AD3d 1396, 1398 [2019]; Jordan v City of New York, 137 AD3d 1084 [2016]).

Disclosure demands may be palpably improper where they seek irrelevant information, are overbroad and burdensome, or fail to specify with reasonable particularity many of the documents demanded (see Kiernan v Booth Mem. Med. Ctr., 175 AD3d at 1397-1398; Kayantas v Restaurant Depot, LLC, 173 AD3d 718 [2019]). “Where the discovery demands are overbroad, the appropriate remedy is to vacate the entire demand rather than to prune it” (Pascual v Rustic Woods Homeowners Assn., Inc., 173 AD3d 757, 758 [2019]). Here, the discovery demands at issue were abandoned or palpably improper in that they sought irrelevant information or were overbroad (see id. at 758; Shaw v Bluepers Family Billiards, 94 AD3d 858, 860 [2012]; Geffner v Mercy Med. Ctr., 83 AD3d at 998).

Vays v Luntz, 179 AD3d 74 [2d Dept. 2020] (PC orders); Marino v Armogan, 179 AD3d 664 [2d Dept. 2020] and Vlahos v Robert, 183 AD3d 779 [2d Dept. 2020] (preclusion of a necessary part of prima facie case)

On mailing, again

Bank of N.Y. Mellon v Parker, 186 AD3d 447 [2d Dept. 2020]

The plaintiff failed to establish, prima facie, that it mailed the RPAPL 1304 notice, because “the plaintiff failed to provide proof of the actual mailing, or proof of a standard office mailing procedure designed to ensure that items are properly addressed and mailed, sworn to by an individual with personal knowledge of that procedure” (U.S. Bank Trust, N.A. v Sadique, 178 AD3d 984, 986 [2019], citing Citibank, N.A. v Conti-Scheurer, 172 AD3d 17, 21 [2019]).

We disagree, however, with the Supreme Court’s determination to grant Parker’s cross motion for summary judgment dismissing the complaint insofar as asserted against her. Parker offered only a mere denial of receipt of the RPAPL 1304 notice in support of her cross motion, and such a mere denial is insufficient to establish entitlement to such relief (see Citibank, N.A. v Conti-Scheurer, 172 AD3d at 20-21; see also U.S. Bank Trust, N.A. v Sadique, 178 AD3d at 987). Accordingly, the court should have denied Parker’s cross motion.

This one also goes into the hearsay issue commonly found in these cases.

USBank N.A. v Haliotis, 185 AD3d 756 [2d Dept. 2020]

Additionally, the affidavit submitted by the plaintiff for the purpose of demonstrating that it properly served its 90-day notice did not specify that the notice was served in an envelope that was separate from any other mailing or notice (see RPAPL 1304 [2]). While the plaintiff attempted to remedy this deficiency in its reply papers, even assuming that its reply affidavit may properly be considered (see Central Mtge. Co. v Jahnsen, 150 AD3d 661, 664-665 [2017]; cf. U.S. Bank N.A. v Laino, 172 AD3d 947, 948 [2019]), that affidavit contained only a conclusory assertion that the mailing was done in a separate envelope, with no assertion by the affiant that she had any personal knowledge of the actual mailing or proof of a standard office mailing procedure designed to ensure that items are properly addressed and mailed (see Citibank, N.A. v Conti-Scheurer, 172 AD3d at 21).

The plaintiff also failed to establish, prima facie, the defendants’ default in payment. While the affidavit submitted by the plaintiff made the requisite showing that the affiant was familiar with the plaintiff’s recordkeeping practices and procedures with respect to the defendants’ payment history, the affiant failed to submit any business record substantiating the alleged default. Conclusory affidavits lacking a factual basis are without evidentiary value (see e.g. JPMorgan Chase Bank, N.A. v Akanda, 177 AD3d 718, 719-720 [2019]). Further, “[w]hile a witness may read into the record from the contents of a document which has been admitted into evidence, a witness’s description of a document not admitted into evidence is hearsay” (U.S. Bank N.A. v 22 S. Madison, LLC, 170 AD3d 772, 774 [2019] [citation omitted]; see Bank of N.Y. Mellon v Gordon, 171 AD3d 197 [2019]). “[I]t is the business record itself, not the foundational affidavit, that serves as proof of the matter asserted” (Bank of N.Y. Mellon v Gordon, 171 AD3d at 205).

This one involves a deficient proof of mailing statement

JPMorgan Chase Bank, N.A. v Nellis, 183 AD3d 583 [2d Dept. 2020]

Although the plaintiff submitted tracking information from the United States Postal Service for certified mailings of the notice, the redacted proof of first-class mailing did not contain any information linking a first-class mailing to the RPAPL 1304 notice, and thus, failed to establish that the notice was mailed by first-class mail (see U.S. Bank N.A. v Ahmed, 174 AD3d at 663; Citimortgage, Inc. v Succes, 170 AD3d at 948). Likewise, the plaintiff’s submission of a “Proof of Filing” statement pursuant to RPAPL 1306 contained no information indicating that the mailing was done by both registered or certified mail and first-class mail as required by RPAPL 1304 (see Wells Fargo Bank, N.A. v Lewczuk, 153 AD3d 890, 892 [2017]).

Some others I don’t feel like parsing the decisions: Wells Fargo Bank, N.A. v Moran, 168 AD3d 1128 [2d Dept. 2019]; PennyMac Corp. v Arora, 184 AD3d 652 [2d Dept. 2020]

4518 and foreclosures

This keeps on coming up with the foreclosure cases in the Second Department.

Deutsche Bank Natl. Trust Co. v Kenny, 183 AD3d 865 [2d Dept. 2020]

In Bank of N.Y. Mellon v Gordon (171 AD3d 197, 209 [2019]), this Court ruled that business records received from another entity “may be admitted into evidence if the recipient can establish personal knowledge of the maker’s business practices and procedures, or establish that the records provided by the maker were incorporated into the recipient’s own records and routinely relied upon the recipient in its own business.” In this case, the plaintiff did not meet that burden.

The testimony of the plaintiff’s witness indicated that SPS asked for business records from Bank of America in order to provide evidence of the plaintiff’s standing in this action. The records in question were forwarded to SPS in June 2016, after the issue of standing was referred to the Special Referee to hear and determine, and therefore, were created in preparation for litigation. Accordingly, those records were not admissible as business records (see Wilson v Bodian, 130 AD2d 221 [1987]).

Since the plaintiff, after a hearing, failed to establish standing to commence the instant action, we agree with the Supreme Court’s determination to direct dismissal of the action (see McCormack v Maloney, 160 AD3d 1098 [2018]).

Bank of N.Y. Mellon v Fontana, 186 AD3d 445 [2d Dept. 2020]

The Supreme Court should have denied the plaintiff’s motion, in effect, to confirm the referee’s report and for leave to enter a judgment of foreclosure and sale. In support of its motion, the plaintiff relied upon the affidavit of a representative of its loan servicer, who attested, based upon his review of the servicer’s books and records, to the amount due under the mortgage loan. However, the plaintiff’s affiant failed to annex or otherwise produce the subject business records. Under the circumstances, the affidavit relied upon by the plaintiff constituted inadmissible hearsay and lacked probative value, and the referee’s findings with respect to the total amount due upon the mortgage were not substantially supported by the record (see U.S. Bank N.A. v Calabro, 175 AD3d 1451 [2019]; Citimortgage, Inc. v Kidd, 148 AD3d 767, 768-769 [2017]; see also Bank of N.Y. Mellon v Gordon, 171 AD3d 197, 208-209 [2019]).

Ocwen Loan Servicing, LLC v Schacker, 185 AD3d 1041 [2d Dept. 2020]

In support of its motion, the plaintiff submitted the affidavit of a foreclosure specialist for Seterus, Inc. (hereinafter Seterus), which purports to be a subservicer for the Federal National Mortgage Association as assignee of the plaintiff as assignee of OneWest. The affidavit constitutes inadmissible hearsay, as the foreclosure specialist did not attest that he had personal knowledge of OneWest’s business practices and procedures (see Wells Fargo Bank, N.A. v Talley, 153 AD3d at 585), or that any records provided by OneWest were incorporated into Seterus’s own records (see State of New York v 158th St. & Riverside Dr. Hous. Co., Inc., 100 AD3d 1293, 1296 [2012]), and also did not submit any documents to show that OneWest possessed the note at the time of the commencement of this action (see CPLR 4518 [a]; U.S. Bank N.A. v 22 S. Madison, LLC, 170 AD3d 772 [2019]; Great Am. Ins. Co. v Auto Mkt. of Jamaica, N.Y., 133 AD3d 631, 632-633 [2015]). Since the foreclosure specialist also failed to establish a foundation to show that he had personal knowledge as to whether OneWest possessed the note prior to commencement of the action (see CPLR 3212 [b]; see generally Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498, 509 [2015]), the plaintiff failed to establish its standing. The documents attached to the affirmation of counsel for the plaintiff are inadmissible hearsay as counsel failed to establish a foundation for admission of such documents as business records and the foreclosure specialist’s affidavit does not reference the records attached to counsel’s affirmation (see U.S. Bank N.A. v 22 S. Madison, LLC, 170 AD3d at 774). Moreover, even if a proper foundation for the admissibility of the business records had been established, the submitted documents do not show that OneWest had ownership of and the right to enforce the note at the time of the commencement of the action (see id.). The plaintiff also failed to show OneWest’s standing based upon a purported written assignment of the mortgage from MERS to OneWest, as the plaintiff did not demonstrate that MERS had the authority to assign the note (see Homecomings Fin., LLC v Guldi, 108 AD3d at 509; Bank of N.Y. v Silverberg, 86 AD3d 274, 279 [2011]).

Compare, PennyMac Corp. v Arora, 184 AD3d 652 [2d Dept. 2020].

On personal jurisdiction and such

Yellowbook, Inc. v Hedge, 183 AD3d 925 [2d Dept. 2020]

We agree with the Supreme Court’s determination to grant the defendant’s motion. “Where, as here, a defendant moves to vacate a default judgment on the ground that the court that rendered the judgment lacked personal jurisdiction over the defendant, a finding in favor of the defendant would mean that the judgment was ‘a nullity’ ” (Cach, LLC v Ryan, 158 AD3d 1193, 1193 [2018] [citation omitted], quoting Royal Zenith Corp. v Continental Ins. Co., 63 NY2d 975, 977 [1984]). “It necessarily follows that, if a judgment is a nullity, it never legally existed so as to become extinguished by payment” (Cach, LLC v Ryan, 158 AD3d at 1193-1194 [internal quotation marks omitted]).

Castro v Pfizer, Inc., 183 AD3d 797 [2d Dept. 2020]

As a threshold matter, under the circumstances of this case, the Supreme Court providently exercised its discretion in determining that the plaintiff waived her contention that Mylan’s motion to dismiss was untimely (see Rozz v Law Offs. of Saul Kobrick, P.C., 134 AD3d 920, 921-922 [2015]; Spagnoletti v Chalfin, 131 AD3d 901, 901-902 [2015]; Glass v Captain Hulbert House, LLC, 103 AD3d 607, 608 [2013]; Lai Har Chin v Yard, 40 AD3d 590, 590-591 [2007]; Volin v City Beach Catering Corp., 166 AD2d 583, 584 [1990]). Having lulled Mylan into withdrawing its pending motion to extend its time to answer the amended complaint by accepting, without objection, a courtesy copy of its July 1, 2015, motion to dismiss, the plaintiff could not, two months later, cross-move to enter a default judgment against Mylan (cf. Amaral v Smithtown News, Inc., 172 AD3d 1287, 1290 [2019]). Accordingly, we agree with the court’s determination to deny the branch of the plaintiff’s cross motion which was for leave to enter a default judgment against Mylan, and to consider the merits of Mylan’s pre-answer motion to dismiss.


The plaintiff contends that New York has long-arm jurisdiction over the NJ medical providers, on the ground that they supplied “services in th[is] state” (CPLR 302 [a] [1]). This contention lacks merit. The medical treatment in question occurred in New Jersey. The connection of the medical providers with New York is that they discharged a patient under their care to her home in New York, where she filled prescriptions allegedly provided by them, and took the medicine prescribed. The alleged conduct of the NJ medical providers did not constitute transacting business in this state (see Paterno v Laser Spine Inst., 24 NY3d 370, 375 [2014]; Etra v Matta, 61 NY2d 455 [1984]). Further, a state’s authority over a nonresident defendant requires certain “minimum contacts” with the forum state, which the defendant himself or herself created (Walden v Fiore, 571 US 277, 283-284 [2014] [internal quotation marks omitted]). The minimum contacts must be with the forum state, and not just with a resident of the forum state (see id. at 285). Here, the NJ medical providers’ contacts were with the plaintiff, a resident of New York, but not with New York itself. The NJ medical providers came into contact with the plaintiff only because she sought treatment from them in New Jersey (see O’Brien v Hackensack Univ. Med. Ctr., 305 AD2d 199, 201 [2003]). Accordingly, we agree with the Supreme Court’s determination granting that branch of the NJ medical providers’ motion which was pursuant to CPLR 3211 (a) (8) to dismiss the amended complaint insofar as asserted against them.

Sacco v Reel-O-Matic, Inc., 183 AD3d 567 [2d Dept. 2020]

Based on the above, we agree with the Supreme Court’s determination that Go Industries did not establish that long-arm jurisdiction under CPLR 302 is inapplicable. However, that does not end our inquiry, because a New York court may not exercise personal jurisdiction over a non-domiciliary unless two requirements are satisfied: the action is permissible under the long-arm statute (see CPLR 302) and the exercise of jurisdiction comports with due process (see LaMarca v Pak-Mor Mfg. Co., 95 NY2d at 214). If either the statutory or constitutional prerequisite is lacking, the action may not proceed (see Williams v Beemiller, Inc., 33 NY3d 523, 528 [2019]).

With respect to due process, “A non-domiciliary tortfeasor has minimum contacts with the forum State . . . if it purposefully avails itself of the privilege of conducting activities within the forum State” (LaMarca v Pak-Mor Mfg. Co., 95 NY2d at 216 [internal quotation marks omitted]), “thus invoking the benefits and protections of [the forum state’s] laws” (Hanson v Denckla, 357 US 235, 253 [1958]; see Williams v Beemiller, Inc., 33 NY3d at 528). This test envisions something more than the “ ’fortuitous circumstance’ ” that a product sold in another state later makes its way into the forum jurisdiction through no marketing or other effort of defendant (Williams v Beemiller, Inc., 33 NY3d at 528, quoting World-Wide Volkswagen Corp. v Woodson, 444 US 286, 295 [1980]). In this case, Go Industries’ website presented Go Industries as a manufacturer of premium products that could be bought from national retailers, both online and through at least one store located in New York state. This evidence was sufficient to satisfy due process requirements (see Archer-Vail v LHV Precast Inc., 168 AD3d 1257, 1261-1262 [2019]; Darrow v Hetronic Deutschland, 119 AD3d at 1144; Halas v Dick’s Sporting Goods, 105 AD3d at 1412).

HSBC Bank USA, N.A. v Assouline, 177 AD3d 603 [2d Dept. 2019]

Although the defendant did not deny having actual notice of the action, “[w]hen the requirements for service of process have not been met, it is irrelevant that defendant may have actually received the documents” (Raschel v Rish, 69 NY2d 694, 697 [1986] [emphasis added]; see Markoff v South Nassau Community Hosp., 61 NY2d 283, 288 [1984]; Feinstein v Bergner, 48 NY2d 234, 241 [1979]). “Service is only effective . . . when it is made pursuant to the appropriate method authorized by the CPLR. Actual notice alone will not sustain the service or subject a person to the court’s jurisdiction [when there has not been compliance with] prescribed conditions of service” (Markoff v South Nassau Community Hosp., 61 NY2d at 288 [citations omitted]).

Hala v Orange Regional Med. Ctr., 178 AD3d 151 [2d Dept. 2019]

Notwithstanding the goals of the UILA, for the reasons set forth herein, the principles of due process and the right of the plaintiffs to seek redress in the courts in New York for wrongs they allege occurred in New York mandate that the South Carolina order is not entitled to full faith and credit or comity by the courts in New York in this and the related actions.

Grandelli v Hope St. Holdings, LLC, 176 AD3d 922 [2d Dept. 2019]

Moreover, the plaintiffs and the defendants that opposed Warner Europe’s motion to dismiss did not make a showing of a “sufficient start” to warrant the denial of the motion (Leuthner v Homewood Suites by Hilton, 151 AD3d 1042, 1044 [2017] [internal quotation marks omitted]). There is no basis to allow discovery to be conducted on the issue of personal jurisdiction since the opposing parties did not allege any facts which, if proven, would establish that Warner Europe may be subject to personal jurisdiction in New York (see id. at 1044-1045; Chen v Guo Liang Lu, 144 AD3d 735, 738 [2016]).

Fekah v Baker Hughes Inc., 176 AD3d 527 [1st Dept. 2019]

As the Second Department held in Aybar v Aybar (169 AD3d 137 [2d Dept 2019], lv dismissed 33 NY3d 1044 [2019]), a corporate defendant’s registration to do business in New York and the designation of the Secretary of State to accept service of process in New York does not constitute consent by the corporation to submit to the general jurisdiction of New York for causes of action that are unrelated to the corporation’s affiliations with New York. Accordingly, defendant’s motion to dismiss on ground of CPLR 301 was properly granted (see also Best v Guthrie Med. Group, P.C., 175 AD3d 1048 [4th Dept 2019]; Gronich & Co., Inc. v Simon Prop. GroupInc., 2019 NY Slip Op 31007[U] [Sup Ct, NY County 2019]; Kline v Facebook, Inc., 62 Misc 3d 1207[A], 2019 NY Slip Op 50027[U] [Sup Ct, NY County 2019]; Kyowa Seni, Co., Ltd. v ANA Aircraft Technics, Co.Ltd., 60 Misc 3d 898 [Sup Ct, NY County 2018]).

Aston v Algoma Hardwoods, Inc., 173 AD3d 408 [1st Dept. 2019]

Supreme Court correctly determined that it does not have personal jurisdiction pursuant to CPLR 302 (a) (1) over defendant Dykes Lumber Co., Inc. Plaintiff, a New Jersey resident, alleges that she was injured in New Jersey by products allegedly sold at defendant’s establishment in New Jersey. She has identified no activity of defendant in New York, either before or after its headquarters moved to New Jersey, that has a sufficient nexus to the injury to confer jurisdiction pursuant to CPLR 302 (a) (1) (see generally D&R Global Selections, S.L. v Bodega Olegario Falcon Pineiro, 29 NY3d 292, 297-298 [2017]; cf. Robins v Procure Treatment Ctrs., Inc., 157 AD3d 606 [1st Dept 2018] [where injury occurred as result of medical treatment at New Jersey facility by New Jersey defendant, evidence of defendant’s advertising in New York and referral agreement with New York facility warranted jurisdictional discovery under CPLR 302 (a) (1)]).

Matter of New York City Asbestos Litig., 173 AD3d 519 [1st Dept. 2019]

A party seeking dismissal on the grounds that the court does not have personal jurisdiction over it waives such objection if it is not raised in a responsive pleading or if the party, having previously moved for dismissal, failed to raise an objection to personal jurisdiction (CPLR 3211 [a], [e]; see also McGowan v Hoffmeister, 15 AD3d 297 [1st Dept 2005]). The latter is not applicable here. Rather, the defendant argues that it asserted a defense of lack of personal jurisdiction in its answer, and thus preserved the issue for adjudication in its present motion.

Personal jurisdiction is not an element of a claim, and matters that are not elements need not be pleaded in the complaint (see US Bank N.A. v Nelson, 169 AD3d 110, 114 [2d Dept 2019]). Where the plaintiff has not alleged facts specifically addressing the issue of personal jurisdiction in its complaint, the defendant must assert lack of personal jurisdiction as an affirmative defense in order to give plaintiff notice that it is contesting it (see CPLR 3018). Where the plaintiff elects to allege facts specifically addressing the issue of personal jurisdiction in its complaint, the defendant’s denial of those allegations may be sufficient to preserve defendant’s jurisdictional defense (see Green Bus Lines v Consolidated Mut. Ins. Co., 74 AD2d 136, 143 [2d Dept 1980]).

In this case, while defendant’s denial of specific jurisdiction was sufficient to preserve its defense, its claimed denial of general jurisdiction was insufficiently specific to preserve its defense. Accordingly, defendant waived its defense that the court lacked general jurisdiction over it.

The specific allegations of plaintiff’s complaint paragraph three track, almost verbatim, the language of personal jurisdiction in CPLR 302, which provides the bases for specific jurisdiction. Defendant’s denial of these allegations is sufficient to provide notice to plaintiff that it is contesting specific jurisdiction.

The allegations of plaintiff’s complaint paragraphs 83 and 84 purport to establish a basis for general jurisdiction. They were not denied by defendant, rather defendant admitted them to the extent that it “is a duly organized foreign corporation doing business in New York.” This answer, interposed in 2004, before the Supreme Court’s ruling in Daimler AG v Bauman (571 US 117 [2014]), would have provided a basis for general jurisdiction. It, therefore, does not qualify as a specific denial that would have put plaintiff on notice that the defendant is contesting general jurisdictionDefendant’s failure to clearly provide an objection to general jurisdiction in its answer waived the defense and conferred jurisdiction upon the court (McGowan v Hoffmeister, 15 AD3d 297 [1st Dept 2005]).

Sneaky Sneaky



Rojas v Romanoff, 2020 NY Slip Op 04237 [1st Dept. 2020]

To be sure, in the prior declaratory judgment action, in this case, for some unexplained reason, the motion court declared that plaintiff’s default meant not only that the insurer, Nationwide, was not obligated to pay no-fault benefits, but also that Nationwide was not obligated “to afford any bodily injury coverage to [plaintiff] . . . [for] personal injury stemming from the alleged September 15, 2016 accident.” The second part of that holding, however, — that Nationwide was not obligated to pay plaintiff coverage for any bodily injury damages arising from the subject accident — is irrelevant to whether claim preclusion applies to the current personal injury action.

The reason, of course, is that it was included in the proposed order [¶ 8].

3215 Denied

Here, the lower court denied the unopposed motion for a default judgment because “Here, accepting all of the facts that plaintiff asserts as true, they provide at best, some circumstantial evidence that a fraud may have occurred”.  Insurers consistently argue that circumstantial evidence is sufficient to satisfy their burden at trial, in a summary judgment motion, or in an arbitration to show that the accident was not a true accident.  In this case the Appellate Division held otherwise.  Even in an unopposed motion for a default judgment where the burden is lower and easier to satisfy, the insurer must prove that that the accident was not a true accident and not merely that they have a reason to believe it was not a true accident.

Ameriprise Ins. Co. v Kim, 2020 NY Slip Op 04286 [2d Dept. 2020]

“A plaintiff seeking leave to enter a default judgment must file proof of proper service of the summons and the complaint, the defendant’s default, and the facts constituting the claim” (Global Liberty Ins. Co. v Surgery Ctr. of Oradell, LLC, 153 AD3d 606, 606; see CPLR 3215[f]). ” [A] default judgment in a declaratory judgment action will not be granted on the default and pleadings alone for it is necessary that [the plaintiff] establish a right to a declaration'” against the defendants (JBBNY, LLC v Dedvukaj, 171 AD3d 898, 902, quoting Dole Food Co., Inc. v Lincoln Gen. Ins. Co., 66 AD3d 1493, 1494; see Merchants Ins. Co. of N.H. v Long Is. Pet Cemetery, 206 AD2d 827, 828).

Here, while the plaintiff submitted proof of proper service of the summons and the complaint, the non-answering defendants’ default, and the facts constituting the plaintiff’s claim, the plaintiff’s submissions in support of the motion failed to establish its right to the declarations sought (see JBBNY, LLC v Dedvukaj, 171 AD3d at 903). As such, we agree with the Supreme Court’s determination denying that branch of the plaintiff’s motion which was for leave to enter a default judgment against the non-answering defendants.