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

 

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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.

On appearing and defaulting

Deutsche Bank Natl. Trust Co. v Hall, 2020 NY Slip Op 04292 [2d Dept. 2020]

 

As relevant here, “[a]n action is commenced by filing a summons and complaint” (CPLR 304[a]). “A plaintiff appears in an action merely by bringing it” (Siegel & Connors, NY Prac § 110 [6th ed Dec. 2019 Update]). “The defendant appears by serving an answer or a notice of appearance, or by making a motion which has the effect of extending the time to answer” (CPLR [*2]320[a]). Where, as here, service was effected pursuant to CPLR 308(2), “the [defendant’s] appearance shall be made within thirty days after service is complete” (CPLR 320[a]; see CPLR 3012[c]).

“After having been served with process, the defendant who wants to avoid a default must respond in a proper and timely manner” (Vincent C. Alexander, Practice Commentaries, McKinney’s Cons Laws of NY, CPLR C320:1). “Subdivision (a) of CPLR 320 specifies three ways by which the defendant can appear in the action: (1) service of an answer; (2) making a motion which has the effect of extending the time to answer; or (3) serving a notice of appearance” (id.).

“The answer, of course, is defendant’s pleading in response to a complaint” (id.see CPLR 3011, 3018). “A defendant who has defaulted in answering admits all traversable allegations in the complaint, including the basic allegation of liability” (Glenwood Mason Supply Co., Inc. v Frantellizzi, 138 AD3d 925, 926; see Rokina Opt. Co. v Camera King, 63 NY2d 728, 730; Cole-Hatchard v Eggers, 132 AD3d 718, 720).

Service of a notice of motion to dismiss a complaint pursuant to CPLR 3211(a) extends a defendant’s time to answer the complaint (see CPLR 3211[f]). Such a motion must be made “before service of the responsive pleading is required” (CPLR 3211[e]), or it is untimely (see Bennett v Hucke, 64 AD3d 529, 530).

Finally, a notice of appearance is “a simple document that notifies the plaintiff that defendant is appearing in the action” (Vincent C. Alexander, Practice Commentaries, McKinney’s Cons Laws of NY, CPLR C320:1). A notice of appearance “is the response generally reserved for the situation in which the plaintiff’s process consisted of a summons with notice as authorized by CPLR 305(b)” (id.). “Service of a notice of appearance will avoid a default, at least temporarily, and put the plaintiff to the task of serving a complaint within 20 days” (id.see CPLR 3012[b]). Under those circumstances, “[a]fter the complaint has been served, the defendant, within 20 days, should either serve an answer or make a motion that extends the time to answer” (Vincent C. Alexander, Practice Commentaries, McKinney’s Cons Laws of NY, CPLR C320:1; see CPLR 3012[a]).

A defendant’s failure to respond to a summons and complaint within the required time “amounts to what CPLR 3215 . . . calls a failure to appear” (Siegel & Connors, NY Prac § 293; see U.S. Bank N.A. v Gilchrist, 172 AD3d 1425, 1427). “When a defendant has failed to appear . . . the plaintiff may seek a default judgment against him [or her]” (CPLR 3215[a]).

“On a motion for leave to enter a default judgment against a defendant based on the failure to answer or appear, a plaintiff must submit proof of service of the summons and complaint, proof of the facts constituting the cause of action, and proof of the defendant’s default” (L & Z Masonry Corp. v Mose, 167 AD3d 728, 729; see CPLR 3215[f]; Liberty County Mut. v Avenue I Med., P.C., 129 AD3d 783, 784-785). “To defeat a facially sufficient CPLR 3215 motion, a defendant must show either that there was no default, or that [he or she] had a reasonable excuse for [his or her] delay and a potentially meritorious defense” (Liberty County Mut. v Avenue I Med., P.C., 129 AD3d at 785; see Clarke v Liberty Mut. Fire Ins. Co., 150 AD3d 1192, 1195).

In this case, the plaintiff submitted evidence which showed that Hall had been served with the summons and complaint pursuant to CPLR 308(2), and that he failed to appear or answer within the time allowed. In addition, the plaintiff submitted evidence demonstrating that it was entitled to foreclose the subject mortgage due to Hall’s default in repaying the subject loan.

In opposition to the plaintiff’s prima facie showing, Hall first contends that he did not default in appearing. In this regard, Hall asserts that he made an “informal appearance” during the course of this action and was, therefore, not in default. He contends that “even if [an] informal appearance’ is made after the expiration of the time to answer or move specified in CPLR 320(a) . . . judgment by default is precluded.” Hall’s contention is without merit.

It is true that “[i]n addition to the formal appearances listed in CPLR 320(a), the law continues to recognize the so-called informal’ appearance” (Siegel & Connors, NY Prac § 112). “It comes about when the defendant, although not having taken any of the steps that would officially constitute an appearance under CPLR 320(a), nevertheless participates in the case in some way relating to the merits” (id.).

Although “an informal appearance can prevent a finding that the defendant is in default, thereby precluding entry of a default judgment” (Vincent C. Alexander, Practice Commentaries, McKinney’s Cons Laws of NY, CPLR C320:4), this is only true when the participation constituting the informal appearance occurred within the time limitations imposed for making a formal appearance (see Taylor v Taylor, 64 AD2d 592, 592; see also Jeffers v Stein, 99 AD3d 970, 971; Stewart v Raymond Corp., 84 AD3d 932, 933; Parrotta v Wolgin, 245 AD2d 872, 873). Indeed, even service of a formal “notice of appearance will not protect the defendant from entry of a default judgment if, after service of the complaint, the defendant does not timely make a CPLR 3211 motion or serve an answer” (Vincent C. Alexander, Practice Commentaries, McKinney’s Cons Laws of NY, CPLR C320:1). Accordingly, an informal appearance, without more, does not somehow absolve a defendant from complying with the time restrictions imposed by CPLR 320(a) which govern the service of an answer or the making of a motion pursuant to CPLR 3211 (see CPLR 3215[a]; U.S. Bank N.A. v Slavinski, 78 AD3d 1167, 1167). Contrary to Hall’s contention, this Court has never held otherwise; to do so would effectively eliminate any need for compliance with the time limitations imposed by CPLR 320(a), and render those statutory provisions meaningless for all practical purposes (see City of Newburgh v 96 Broadway LLC, 72 AD3d 632, 633; Carlin v Carlin, 52 AD3d 559, 560-561; cf. CPLR 3215[a]).

Hall next contends that he successfully rebutted the plaintiff’s evidence regarding service pursuant to CPLR 308(2). However, “[a] defendant may waive the issue of lack of personal jurisdiction by appearing in an action, either formally or informally, without raising the defense of lack of personal jurisdiction in an answer or pre-answer motion to dismiss” (Cadlerock Joint Venture, L.P. v Kierstedt, 119 AD3d 627, 628; see Taveras v City of New York, 108 AD3d 614, 617). Here, as Hall himself argues, he engaged in significant activity after his statutory time to answer had expired, which amounted to an informal appearance. This activity was sufficient to warrant a finding that Hall had acknowledged the jurisdiction of the court without preserving his objection based on improper service (see Taveras v City of New York, 108 AD3d at 617-618; Finn v Church for the Art of Living, Inc., 90 AD3d 826, 827; Matter of Sessa v Board of Assessors of Town of N. Elba, 46 AD3d 1163, 1166; see also Deutsche Bank Natl. Trust Co. v Vu, 167 AD3d 844, 846; U.S. Bank N.A. v Pepe, 161 AD3d 811, 813). Accordingly, Hall waived any objection on the ground of lack of personal jurisdiction (see HSBC Bank USA, N.A. v Taub, 170 AD3d 1128, 1130).

Finally, Hall contends that the Supreme Court should have denied the plaintiff’s motion and granted his cross motion to dismiss because the plaintiff lacked standing to commence this action, the plaintiff failed to comply with RPAPL 1304, and the action was barred by the doctrine of res judicata. Hall argues that “inasmuch as [he] has neither filed a motion to dismiss under CPLR 3211(a) nor an answer, there has been no waiver of any affirmative defenses.” Again, Hall’s argument is without merit.

A motion to dismiss a complaint pursuant to CPLR 3211(a) may be based on various grounds, including, as relevant here, lack of standing, failure to comply with RPAPL 1304, or res judicata (see CPLR 3211[a][1]-[11]; Bank of N.Y. Mellon Trust Co., NA v Obadia, 176 AD3d 1020, 1021). A defendant may also choose to interpose those defenses in an answer (see generally Vincent C. Alexander, Practice Commentaries, McKinney’s Cons Laws of NY, CPLR C320:1). However, a defendant’s right to interpose a defense is subject to the time limitations imposed by CPLR 320 (see e.g. U.S. Bank N.A. v Gilchrist, 172 AD3d at 1427-1428). Accordingly, where the plaintiff has demonstrated, prima facie, that a defendant is in default because he or she “failed to appear” within the meaning of CPLR 3215(a), that defendant is generally precluded from raising any nonjurisdictional defense without first rebutting the prima facie showing of default (see First Franklin Fin. Corp. v Alfau, 157 AD3d 863, 865; Nationstar Mtge., LLC v Kamil, 155 AD3d 968, 968; Fried v Jacob Holding, Inc., 110 AD3d 56, 60; cf. CPLR 5015[a]), and obtaining leave to serve a late answer (see CPLR 3012[d]). This is true, even if the nonjurisdictional defense “may be raised [*4]at any time” (Flagstar Bank, FSB v Jambelli, 140 AD3d 829, 830; see HSBC Bank USA, N.A. v Hasis, 154 AD3d 832, 834; PHH Mtge. Corp. v Celestin, 130 AD3d 703, 704), and regardless of whether it is exempt from the waiver provisions of CPLR 3211(e) (see Deutsche Bank Natl. Trust Co. v Ford, 183 AD3d 1168see also JPMorgan Chase Bank, N.A. v Carducci, 67 Misc 3d 561 [Sup Ct, Westchester County]; cf. RPAPL 1302-a). Here, the plaintiff demonstrated, prima facie, that Hall was in default for failing to appear within the meaning of CPLR 3215(a). Hall was thus required to rebut that showing and demonstrate that he should be relieved of the consequences of his default (see Gerster’s Triple E. Towing & Repair, Inc. v Pishon Trucking, LLC, 167 AD3d 1353, 1355-1356; cf. CPLR 3012[d]; 5015[a]). Hall failed to sustain this burden. Accordingly, he is precluded from raising lack of standing, failure to comply with RPAPL 1304, or res judicata as defenses to this action (see U.S. Bank N.A. v Gilchrist, 172 AD3d at 1427-1428; HSBC Bank USA, N.A. v Hasis, 154 AD3d at 834; Bank of N.Y. Mellon v Izmirligil, 144 AD3d 1067, 1069). Inasmuch as those defenses were never properly raised by Hall, the plaintiff was not required to disprove them to obtain the relief it sought in its motion (see Flagstar Bank, FSB v Jambelli, 140 AD3d at 830; U.S. Bank N.A. v Carey, 137 AD3d 894, 895-896).

Accordingly, we agree with the Supreme Court’s determination granting the plaintiff’s motion for leave to enter a default judgment against the defendants and to appoint a referee to compute the sums due and owing to the plaintiff, and denying Hall’s cross motion to dismiss the complaint insofar as asserted against him.

The bold is mine.

You can stip to whatever you want

Bermejo v New York City Health & Hosps. Corp., 2020 NY Slip Op 03212 [2d Dept. 2020]

Like any other contract, a stipulation of settlement is enforceable according to its terms, and when the terms of the stipulation are unambiguous, a court will give effect to the parties’ intent based upon the plain meaning of the words they used (see Matter of Legion of Christ, Inc. v Town of Mount Pleasant, 151 AD3d 858, 859-860; Long Is. Jr. Soccer League v Back of the Net, Ltd., 85 AD3d 737, 737-738). Among other things, a party may, by stipulation, agree to withdraw a pending request for relief (see Legion of Christ, Inc. v Town of Mount Pleasant, 151 AD3d at 859; Matter of Melanie K. [Dolores F.], 133 AD3d 756), or waive the right to pursue a specific legal remedy (see Cervera v Bressler, 126 AD3d 924, 924-925). This is precisely what occurred here.

Contrary to the appellants’ contention, neither this Court’s administrative denial of the request by the plaintiff and the appellants to withdraw the prior appeal, nor the ensuing opinion and order on the prior appeal, can be construed as invalidating or overriding in any way the terms of the stipulation of settlement. More importantly, the appellants themselves have not sought to invalidate the stipulation of settlement (see Hallock v State of New York, 64 NY2d 224, 230). Rather, they want to retain the full benefit of their financial bargain, while selectively reviving their previously waived right to seek an award of costs against the plaintiff’s counsel. This they cannot do.

The bold is mine.