Month: June 2009

CPLR § 5402; CPLR § 5222; CPLR § 5251; Civil Contempt

CPLR § 5402 Filing and status of foreign judgments

CPLR § 5222 Restraining notice

CPLR § 5251 Disobedience of subpoena, restraining notice or order; false swearing; destroying notice of sale

Viacom Outdoor Group, Inc. v McClair, 2009 NY Slip Op 04052 (App. Div., 2nd, 2009)

The nonparty appellant, HSBC Bank USA, National Association (hereinafter HSBC), was served with a restraining notice (see CPLR
5222) relating to a judgment of a court of the State of Arizona dated
May 30, 2006, which was later filed in Kings County pursuant to CPLR
5402, and faced potential contempt sanctions in the event that it
violated the notice by permitting funds to be withdrawn from the
judgment debtor's account (see CPLR 5251; Aspen Indus. v Marine Midland Bank, 52 NY2d 575, 579-580; Nardone v Long Is. Trust Co., 40
AD2d 697). By order to show cause dated January 5, 2007, the judgment
debtor, the defendant Carolyn McClair (hereinafter McClair), moved,
among other things, to vacate the underlying Arizona judgment and for
an order "discharging or staying the [e]nforcement of the [j]udgment in
New York."
[*2]

In an order dated March 23,
2007, the Supreme Court granted McClair's motion solely to the extent
of "stay[ing] enforcement of the Arizona judgment." That order also
provided that "the stay on the release of funds in [the judgment
debtor's] HSBC Bank Account is lifted." We agree with HSBC that this
language, while it may have dissolved the temporary restraining order
contained in the order to show cause dated January 5, 2007, did not
directly address the underlying restraining notice.

Since the March 23, 2007, order did not expressly vacate the
restraining notice, the hesitation exhibited by HSBC when McClair
inquired about the release of funds from her account was understandable
and cannot be deemed contemptuous. Civil contempt sanctions are not
warranted unless it is shown that the alleged contemnor wilfully
violated a clear and unequivocal mandate of the court (see Moore v Davidson, 57 AD3d 862; Geffner v North Shore Univ. Hosp., 57 AD3d 839; City Wide Sewer & Drain Serv. Corp. v Carusone, 39 AD3d 687, 688). No such showing has been made here (see Aspen Indus. v Marine Midland Bank, 52 NY2d 575, 579; see also Nardone v Long Is. Trust Co., 40
AD2d 697 [restraining notice remained valid despite ex parte stay,
which "merely prohibited (the judgment creditor) from gaining actual
possession of the judgment debtor's funds"]). "Any ambiguity in the
Court's mandate should be resolved in favor of the would-be contemnor" (Hae Mook Chung v Maxam Props., LLC, 52 AD3d 423, 423; see Richards v Estate of Kaskel, 169
AD2d 111, 122). Since the order dated March 23, 2007, was unclear, HSBC
cannot be held in contempt and, in any event, HSBC, by all indications,
acted at all relevant times in good faith.

The bold is mine.

CPLR § 2211

CPLR § 2211 Application for order; when motion made

Cruz v New York City Hous. Auth., 2009 NY Slip Op 03687 (App. Div., 2nd, 2009)

"A motion on notice is made when a notice of the motion . . . is served" (CPLR 2211; see Rivera v Glen Oaks Vil. Owners, Inc., 29 AD3d 560; Russo v Eveco Dev. Corp.,
256 AD2d 566). In accordance with this rule, the defendant's motion for
summary judgment was made on June 29, 2007, when the motion was served,
by mail, on the attorney for the plaintiff, and thus was timely (see CPLR 2103[b][2]; 3212; Rivera v Glen Oaks Vil. Owners, Inc., 29 AD3d 560).

CPLR R. 2221(d)

CPLR R. 2221 Motion affecting prior order
(d) A motion for leave to reargue

Scarito v St. Joseph Hill Academy, 2009 NY Slip Op 03887 (App. Div., 2nd, 2009)

The Supreme Court providently exercised its discretion in granting that
branch of the plaintiff's motion which was for leave to reargue since
it admittedly did not consider the plaintiff's argument that the
defendants allegedly failed to provide Anthony with adequate safety
equipment. However, it should not have directed the parties to submit
any additional evidence (see CPLR 2221[d]). In any event, upon
reargument, the Supreme Court should have adhered to its original
determination granting the defendants' motion for summary judgment. The
defendants established their entitlement to judgment as a matter of law
by demonstrating that Anthony's injuries were caused by the other
student's accidental conduct in the course of the soccer game and,
given the attendant circumstances, that the incident occurred in such a
short span of time that it could not have been prevented by the most
intense supervision (see Paca v City of New York, 51 AD3d 991; Ronan v School Dist. of City of New Rochelle, 35 AD3d 429; Walker v Commack School Dist., 31 AD3d 752; Mayer v Mahopac Cent. School Dist., 29 AD3d 653; Hernandez v Board of Educ. of City of N. Y., 302 AD2d 493; Convey v City of Rye School Dist., 271
AD2d 154, 160). In opposition, the plaintiff failed to raise a triable
issue of fact. In their original opposition papers, the plaintiff
submitted an expert affidavit to support their contention that the
defendants were negligent in failing to provide a shin guard during the
game. The plaintiff's expert, however, failed to cite to any statute,
regulations, or guidelines which stated that shin guards were
necessary, and his affidavit was insufficient to raise a triable issue
of fact (see Benson v Union Free School Dist. #23, 37 AD3d 748,
749). Additionally, there was no competent proof that there were any
FIFA regulations or United States Soccer Federation Laws regarding the
use of shin guards which were in effect at the time of the accident.
Assuming that such regulations or laws existed at the time of the
accident, there was no competent proof that they reflected a
generally-accepted standard or practice in middle school settings (see Walker v Commack School Dist., 31 AD3d 752, 753; Capotosto v Roman Catholic Diocese of Rockville Ctr., 2 AD3d 384).

Terio v Spodek, 2009 NY Slip Op 04412 (App. Div., 2nd, 2009)

Contrary to the plaintiff's contention, the Supreme Court providently
exercised its discretion in granting that branch of the motion of the
defendant Reich Reich & Reich, P.C. (hereinafter Reich), which was
for leave to reargue. Reich's appeal from the Supreme Court's order
dated December 17, 2007, was pending and unperfected as of the time
that the motion for reargument was made. Under these circumstances, the
Supreme Court providently entertained that branch of Reich's motion
which was for leave to reargue notwithstanding that it was made beyond
the 30-day limit set forth in CPLR 2221(d)(3) (see Itzkowitz v King Kullen Grocery Co., Inc., 22 AD3d 636, 638; Leist v Goldstein, 305 AD2d 468, 469).

The bold is mine.

Weird Summary Judgment Issue

CPLR R. 3212

[Fee Fy] Fofana v 41 W. 34th St., LLC, 2009 NY Slip Op 03928 (App. Div., 1st, 2009)

Summary judgment can only be awarded on an unpleaded claim if the proof
supports such a claim and the opposing party has not been prejudiced (Kramer v Danalis, 49 AD3d 263 [*2][2008]).
Here, Midboro was not yet a party to this action when the motion was
made. Consolidation did not occur until four months after Newmark
sought summary judgment for indemnification.

The bold is mine.  The bracketed stuff is mine as well.

Conflict of Law / Choice of Law

Begley v City of New York, 2009 NY Slip Op 03856 (App. Div., 2nd, 2009)

In this action, the plaintiffs, who reside in New York, allege that
their son was exposed to various substances at the Forum School in New
Jersey, which caused a severe allergic reaction that led to his death.
The Forum School moved for summary judgment dismissing the complaint
and cross claims insofar as asserted against it on the ground that it
is immune from liability under New [*2]Jersey's
charitable immunity statute (NJ Stat Ann § 2A:53A-7), which provides,
in relevant part, that a nonprofit organization that is organized
exclusively for educational purposes is not liable for damages caused
by the charity's negligence. This case presents a conflict of law
problem because the New York Court of Appeals abandoned the concept of
charitable immunity more than 50 years ago on the ground that it "was
out of tune with the life about us, at variance with modern day needs
and with concepts of justice and fair dealing" (Bing v Thunig, 2 NY2d 656, 667).

Where, as here, there is a "true conflict" between the law of
New Jersey and the law of New York and the local law in each
jurisdiction favors its own domiciliary, the law of the place of the
injury ordinarily governs the case (see Neumeier v Kuehner, 31
NY2d 121, 128). In this case, however, the Supreme Court properly
applied the public policy exception to the ordinary choice of law rule
because (1) there were sufficient contacts between the parties, the
occurrence, and New York and (2) enforcing New Jersey's charitable
immunity statute would violate the public policy of New York State (see Schultz v Boy Scouts of Am., 65 NY2d 189, 202) as embodied in the New York State Constitution article 1, § 16 and judicial decisions (see Rosenthal v Warren, 374 F Supp 522; Scharfman v National Jewish Hosp. & Research Ctr., 122 AD2d 939; Rakaric v Croatian Cultural Club Cardinal Stepinac Org., 76 AD2d 619).

Travelers Cas. & Sur. Co. v Honeywell Intl., Inc., 2009 NY Slip Op 04360 (App. Div., 1st, 2009)

In Certain Underwriters at Lloyd's, London v Foster Wheeler Corp. (36 AD3d 17 [2006], affd
9 NY3d 928 [2007]), this Court, after noting that a contract of
liability insurance is generally "governed by the law of the state
which the parties understood was to be the principal location of the
insured risk" (id. at 21-22 [internal quotation marks omitted]),
held that "where it is necessary to determine the law governing a
liability insurance policy covering risks in multiple states, the state
of the insured's domicile [at the time of contracting] should be
regarded as a proxy for the principal location of the insured risk" (id. at 24), and that, for such purposes, a corporate insured's domicile is the state of its principal place of
business, not the state of its incorporation (id. at 25; see also Appalachian Ins. Co. v Di Sicurata, 60 AD3d 495
[2009]). There is no dispute that the principal place of business of
the insured's predecessor, the purchaser of the policies, was in New
Jersey. Neither the predecessor's use of a New York address on some of
the policies (while also using a New Jersey address on some of the same
policies or only a New Jersey address on yet other policies), nor the
predecessor's use of New York brokers, nor the use of New York
amendatory endorsements on some of the policies (while New Jersey's or
other states' or no state-specific amendatory endorsement was used on
others), nor any of the other incidental connections to New York on
which appellants rely, raises a triable issue of fact as to whether the
predecessor made a conscious choice of New York law at the time of
contracting, or whether the application of New York law constituted the
parties' reasonable expectation, where not one of the policies contains
a choice-of-law provision and all parties knew that the risks were
spread nationwide and that the predecessor's principal place of
business was in New Jersey (cf. Foster Wheeler at 27-28).

The bold is mine.

I’m still about a week behind

But now that Typepad no longer forces me to tag the blockquotes myself, I should be caught up by the end of the week.  The week after that, I'll be in LA talking about WEB 2.0 – Five Things Every Practice Should
Know about Web 2.0 Technology, at LegalTech.  Twitter has a wealth of information about LegalTech, in 140 Characters or less.  Click here to get most of them.  If you plan on using twitter on a daily basis, consider using  tweetdeck.  There are others, but I like it the best, so far.

22 NYCRR 202.21(d); CPLR § 3126; CPLR 5015; Presumption of receipt

CPLR § 3126 Penalties for refusal to comply with order or to disclose

CPLR R. 5015 Relief from judgment or order

22 NYCRR 202.21 Note of issue and certificate of readiness
(d) Pretrial proceedings
Where a party is prevented from filing a note of issue and certificate
of readiness because a pretrial proceeding has not been completed for
any reason beyond the control of the party, the court, upon motion
supported by affidavit, may permit the party to file a note of issue
upon such conditions as the court deems appropriate. Where unusual or
unanticipated circumstances develop subsequent to the filing of a note
of issue and certificate of readiness which require additional pretrial
proceedings to prevent substantial prejudice, the court, upon motion
supported by affidavit, may grant permission to conduct such necessary
proceedings.

Redmond v Jamaica Hosp. Med. Ctr., 2009 NY Slip Op 04042 (App. Div., 2nd, 2009)

In an action to recover damages for medical malpractice and wrongful
death, the plaintiff appeals from an order of the Supreme Court, Queens
County (O'Donoghue, J.), entered September 16, 2008, which denied her
motion to vacate an order of the same court dated April 10, 2008, sua
sponte, precluding her from conducting examinations before trial of the
defendants Kenneth Fretwell and Jeffrey Chan pursuant to CPLR 3126.

ORDERED that the order entered September 16, 2008, is reversed,
on the law and in the exercise of discretion, without costs or
disbursements, and the motion to vacate the order dated April 10, 2008,
is granted.

The record does not demonstrate that the plaintiff's counsel
willfully and contumaciously obstructed the progress of disclosure with
respect to the examinations before trial of the defendants Kenneth
Fretwell and Jeffrey Chan (hereinafter the defendant doctors) (see Maceno v Franklin Hosp. Med. Ctr., 14 AD3d 663, 664; Santigate v Linsalata, 304 AD2d 639, 641; Gorokhova v Belulovich,
267 AD2d 202, 203). Accordingly, the Supreme Court improvidently
exercised its discretion in, sua sponte, imposing the sanction of
preclusion with respect to the examination before trial of the
defendant doctors (see CPLR 3126; cf., Mahopac Ophthalmology, P.C. v Tarasevich, 21 AD3d 351, 352), and in denying the plaintiff's motion to vacate the order imposing that sanction.
[*2]

Meadow Lane Equities Corp. v Hill, 2009 NY Slip Op 04396 (App. Div., 2nd, 2009)

In an action, inter alia, for a permanent injunction, the defendants
appeal from so much of an order of the Supreme Court, Nassau County
(Phelan, J.), entered June 11, 2008, as denied their motion, inter
alia, to direct nonparty First New York Partners to preserve certain
evidence contained on electronic databases and to permit the
examination thereof.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The Supreme Court properly exercised its discretion in
determining that the defendants did not demonstrate unusual or
unanticipated circumstances warranting the discovery requested through
their motion (see 22 NYCRR 202.21[d]; Gomez v New York City Tr. Auth., 19 AD3d 366, 366-367; cf. Scanga v Family Practice Assoc. of Rockland, P.C., 41 AD3d 576, 576-577).

Caprio v 1025 Manhattan Ave. Corp., 2009 NY Slip Op 04367 (App. Div., 2nd, 2009)

In order to vacate their default in opposing the plaintiffs' motion
pursuant to CPLR 3126 to strike their answers, the defendants were
required to demonstrate a reasonable excuse for their default and a
meritorious defense to both the motion and the action (see CPLR 5015[a][1]; Nowell v NYU Med. Ctr., 55 AD3d 573; Raciti v Sands Point Nursing Home, 54 AD3d 1014; Simpson v Tommy Hilfiger U.S.A., Inc., 48 AD3d 389, 392; Diamond v Vitucci, 36 AD3d 650).
The defendants failed to set forth a reasonable excuse for their
default in opposing the plaintiffs' motion. Although the defendants'
attorney claimed that he did not receive the plaintiffs' motion papers,
his mere denial of receipt was insufficient to rebut the proof that the
motions papers were properly mailed and the presumption of receipt
arising from that proof (see Kihl v Pfeffer, 94 NY2d 118, 122; [*2]Diamond v Vitucci, 36 AD3d 650; Philippi v Metropolitan Transp. Auth., 16 AD3d 654, 655; Sarva v Chakravorty, 14 AD3d 689; Platonov v Sciabarra, 305
AD2d 651). The defendants also failed to demonstrate a meritorious
defense to the motion to strike their answers by offering an adequate
explanation for their failure to fully and timely respond to the
plaintiffs' discovery demands and court directives requiring compliance
with such demands (see Howe v Jeremiah, 51 AD3d 975; Watson v Hall, 43 AD3d 435, 436; Devito v J & J Towing, Inc., 17
AD3d 624). Under these circumstances, the defendants' motion to vacate
the order dated February 7, 2008, should have been denied.

The bold is mine.

CPLR R. 5015 Plaintiff not required to reject late answer where it moved to enter a default instead

CPLR R. 5015 Relief from judgment or order

CPLR R. 2101 Form of papers
(f) Defects in form; waiver

CPLR § 3012 Service of pleadings and demand for complaint
(d) Extension of time to appear or plead

CPLR § 2005 Excusable delay or default

J.O. Dedicated Med., P.C. v State Farm Mut. Auto. Ins. Co., 2009 NY Slip Op 51089(U) (App. Term, 2nd, 2009)

Defendant's
contention that plaintiff should be compelled to accept its answer
because plaintiff did not reject the answer within two days of its
receipt, as mandated by CPLR 2101 (f), is without merit. Although a
plaintiff's retention of an answer without a timely objection
constitutes a waiver of objection as to untimeliness, precluding entry
of a default judgment (see e.g. AVA Acupuncture P.C. v Lumbermens Mut. Cas. Co., 14 Misc 3d 138[A],
2007 NY Slip Op 50263[U] [App Term, 2d & 11th Jud Dists 2007]), a
review of the record in the instant case demonstrates that plaintiff
made its application for leave to enter a default judgment long before
it was in receipt of the answer. Once plaintiff made said application,
it thereby objected to defendant's failure to serve a timely answer,
brought that objection to the attention of defendant and the court, and
therefore cannot be deemed to have waived any objection to untimeliness
(see [*2]Katz v Perl, 22 AD3d 806 [2005]).

We
note that a default judgment had already been entered against defendant
when it moved to compel the acceptance of its answer or, in the
alternative, to extend its time to serve the answer pursuant to CPLR
3012 (d). Accordingly, defendant should have instead moved to vacate
the default judgment, pursuant to CPLR 5015 (a). In either situation,
however, a defendant is required to establish both a reasonable excuse
for the default and a meritorious defense (see Juseinoski v Board of Educ. of the City of New York, 15 AD3d 353 [2005]) and, in the case at bar, defendant failed to do so.

While a court may, in the exercise of its discretion, accept a claim of law office failure as a reasonable excuse (see CPLR 2005), defense counsel was required to "submit supporting facts in evidentiary form sufficient to justify the default" (Incorporated Vil. of Hempstead v Jablonsky, 283 AD2d 553, 554 [2001]), and include "a detailed explanation of [the] oversights" (Hospital for Joint Diseases v ELRAC, Inc., 11 AD3d 432,
433 [2004]). The mere statement in defense counsel's affirmation in
support of the motion that his office failed to timely process the
summons and complaint "due to clerical inadvertence," and that law
office failure was excusable, did not establish a reasonable excuse for
the default (see Ave T MPC Corp. v Chubb Indem. Ins. Co., 20 Misc 3d 142[A], 2008 NY Slip Op 51681[U] [App Term, 2d & 11th Jud Dists 2008]).

Because we find that defendant did not establish a reasonable excuse
for the default, it is unnecessary for us to address whether defendant
demonstrated a meritorious defense.

Leifer v Pilgreen Corp., 2009 NY Slip Op 03872 (App. Div., 2nd, 2009)

It is uncontested that the defendant failed to timely serve its
answer. The stipulation extending its time to do so expired in October
2006 and no extension thereof was granted or even sought. Thus, in
order to successfully oppose the plaintiffs' motion for leave to enter
a default judgment against it, the defendant was required to
demonstrate a justifiable excuse for its default and the existence of a
meritorious defense (see CPLR 5015[a][1]; Kouzios v Dery, 57 AD3d 949; Mjahdi v Maguire, 21 AD3d 1067, 1068; cf. Giovanelli v Rivera, 23 AD3d 616). The defendant failed to do so.

The defendant's insurance carrier's long delay before defending
this action, without more, was insufficient to establish a reasonable
excuse for the default (see Martinez v D'Alessandro [*2]Custom Bldrs. & Demolition, Inc., 52 AD3d 786, 787; Segovia v Delcon Constr. Corp., 43 AD3d 1143; Lemberger v Congregation Yetev Lev D'Satmar, Inc., 33 AD3d 671,
672). Additionally, the defendant failed to demonstrate the existence
of a meritorious defense. Accordingly, the plaintiffs' motion for leave
to enter a default judgment and to set the matter down for an inquest
should have been granted and the defendant's cross motion for leave to
serve a late answer nunc pro tunc should have been denied (see CPLR 3012[d]).

Furthermore, the court erred in deeming the issue of timeliness
of the answer waived by the plaintiffs' withdrawal of their prior
motion for a default judgment. After the defendant served a late
answer, the plaintiffs promptly moved for the same relief, bringing
their objection to the attention of the defendant and the court (see Katz v Perl, 22 AD3d 806, 807).

CPLR § 510(3); CPLR R. 511

CPLR § 510 Grounds for change of place of trial

The court, upon motion, may change the place of trial of an action where:

1. the county designated for that purpose is not a proper county; or

2. there is reason to believe that an impartial trial cannot be had in the proper county; or3. the convenience of material witnesses and the ends of justice will be promoted by the change.

CPLR R. 511. Change of place of trial

Walton v Mercy Coll., 2009 NY Slip Op 04294 (App. Div., 1st, 2009)

The court properly denied Specta/Allied's motion to change venue in
this action where plaintiff, a resident of Bronx County, seeks damages
for injuries suffered when he was allegedly assaulted in a dormitory
while a student at defendant Mercy College located in Westchester
County. Specta/Allied failed to make the requisite showing that
retention of the action in Bronx County would inconvenience the Dobbs
Ferry police officers who investigated the assault (see CPLR
510[3]). Specta/Allied did not submit proof in admissible form
concerning the location of the officers' residences for the motion
court to determine whether the distance from their homes to the Bronx
County courthouse is greater than the distance to the Westchester
County courthouse (see Montero v Elrac, Inc., 300 AD2d 9 [2002]; compare Henry v Central Hudson Gas & Elec. Corp., 57 AD3d 452
[2008]). Moreover, assuming arguendo that all four officers indeed
reside in Westchester County, plaintiff submitted evidence showing that
the differences in distance and time between the Bronx courthouse and
the Westchester courthouse were not significant, and any inconvenience
to the witnesses would be minimal (see Timan v Sayegh, 49 AD3d 274 [2008]; Cardona v Aggressive Heating,
180 AD2d 572 [1992]). Furthermore, Specta/Allied failed to set forth
the facts as to which the subject police officers would testify and how
such testimony would be material and necessary to its defense (see Walsh v Mystic Tank Lines Corp., 51 AD3d 908 [2008]).
[*2]

Ramos v Cooper Tire & Rubber Co., 2009 NY Slip Op 03886 (App. Div., 2nd, 2009)

In an action, inter alia, to recover damages for personal injuries,
the defendant Cooper Tire and Rubber Company appeals from an order of
the Supreme Court, Kings County (Ruchelsman, J.), dated September 18,
2008, which denied its motion, denominated as one for leave to renew
its prior motion pursuant to CPLR 510(3) to change the place of trial
of the action from Kings County to Ulster County, but which was, in
effect, a motion pursuant to CPLR 510(1) and 511 to change the place of
trial of the action from Kings County to Ulster County.

ORDERED that the order is affirmed, with costs.

The Supreme Court providently exercised its discretion in
denying the appellant's motion, in effect, pursuant to CPLR 510(1) and
511 to change the place of trial of the action from Kings County to
Ulster County (see Baez v Marcus, 58 AD3d 585, 586; Obas v Grappell, 43 AD3d 431, 432; Callanan Indus. v Soverign Constr. Co., 44
AD2d 292, 295). The appellant failed to meet its initial burden of
demonstrating that none of the parties resided in Kings County when the
action was commenced (see CPLR 503[a]; Baez v Marcus, 58 AD3d at 586; Galan v Delacruz, 4 AD3d 449; Llorca v Manzo, 254 AD2d 396, 397)

The bold is mine

CPLR R. 3404

CPLR R. 3404. Dismissal of abandoned cases

CPLR R. 3216 Want of prosecution

Express Shipping, Ltd. v Gold, 2009 NY Slip Op 04374 (App. Div., 2nd, 2009)

An action may be dismissed for want of prosecution pursuant to
either CPLR 3216 or CPLR 3404. The procedural mechanism for dismissal
for want of prosecution depends on whether a note of issue has been
filed (see Lopez v Imperial Delivery Serv., 282 AD2d 190). CPLR 3404 does not apply to pre-note of issue actions and cannot provide a basis for dismissal of such actions (see Sellitto v Women's Health Care Specialists, 58 AD3d 828; Dokaj v Ruxton Tower Ltd. Partnership, 55 AD3d 661; Suburban Restoration Co., Inc. v Viglotti, 54 AD3d 750; Lopez v Imperial Delivery Serv., 282
AD2d at 199). In actions such as this, where a note of issue has not
been filed, CPLR 3216 provides the procedural mechanism for dismissal
for want of prosecution (see Baczkowski v Collins Constr. Co., 89 NY2d 499; Sellitto v Women's Health Care Specialists, 58 AD3d 828; Suburban Restoration Co., Inc. v Viglotti, 54 AD3d at 751; Delgado v New York City Hous. Auth., 21 AD3d 522), provided certain statutory prerequisites are met (see CPLR 3216; Baczkowski v Collins Constr. Co., 89 NY2d 499; Sellitto v Women's Health Care Specialists, 58 AD3d 828; Suburban Restoration Co., Inc. v Viglotti, 54 AD3d at 751; Delgado v New York City Hous. Auth., 21
AD3d at 523). Here, the defendant established that the clerk erred by
marking the case disposed. In opposition, the plaintiffs failed to
establish that they timely served a 90-day notice demanding that the
defendant resume prosecution of the counterclaims or risk their
dismissal (see CPLR 3216[b]). Absent proof of compliance with
CPLR 3216 (b), it was error to deny the defendant's motion to restore
the counterclaims to the calendar (see Baczkowski v Collins Constr. Co., 89 NY2d at 503; Delgado v New York City Hous. Auth., 21 AD3d 522).

As noted above, the Supreme Court denied the defendant's motion,
in effect, directed the dismissal of the defendant's counterclaims, and
did not determine the merits of those branches of the defendant's
motion which were for summary judgment on the first and fourth
counterclaims. Under the circumstances, and in the interest of judicial
economy, we determine the merits of those branches of the defendant's
motion (see Mobil Oil Corp. v Christian Oil & Gas Distribs., 95 AD2d 772, 773; Osserman v Osserman, 92 AD2d 932, 933).
[*3]

The bold is mine.