CPLR § 2309 is a disaster. The courts are wildly inconsistent in how they treat it. Some prefer the substance over form approach and others do the opposite. Not too long ago, the Appellate Term, First Department allowed a party to add a certificate of conformity at the appellate level. See, Eastern
Star Acupuncture, P.C. v Clarendon Natl. Ins. Co., 2010 NY Slip
Op 50043(U) (App. Term, 1st, 2010). A few days ago, the Appellate Division, First Department wasn't as understanding. (h/t JT). In Green v Fairway Operating Corp., 2010 NY Slip Op 03481 (App. Div., 1st, 2010) the defendant's motion for summary judgment was granted on default. Plaintiff moved to vacate and attached an affidavit from a non-party witness which was sworn in the DR. The plaintiff's motion was denied and the Appellate Division affirmed. I think I said this once before, but it remains true, it's an exceptionally silly reason to lose a motion. JT compares it to russian roulette, which is pretty apt.
The last time I wrote about 2309, I said that it was a dead objection, or something like that. It appears that, in the first department at least, it is alive and well. The objection, however, must be made in the papers, otherwise it's waived. You'll find that most people don't know enough to object.
I'm sure you're thinking, "well, what's the rule in the First Department after Green?" I have no idea. I'd be interested to see what the Appellate Term does with Green. Will it distinguish it or make 2309 a hard rule?
Other issues on my mind:
- Why is there a split between the Second and First Department as to what is required to show a "reasonable excuse" when attempting to vacate a default?
- Why do the courts allow a defendant to move to dismiss under CPLR R. 3211(a)(7) when the defendant is not claiming that the plaintiff failed to state a cause of action? When affidavits and other proofs are attached, the courts change their inquiry from whether plaintiff has stated a cause of action to whether plaintiff has a cause of action (which is different from whether a plaintiff will ultimate be successful with that cause of action). This, mind you, is different than a court converting it to a motion for summary judgment. It just doesn't make any damn sense to me.
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