3126 and conditional orders

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

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

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

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

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

4401 Judgment as a matter of law

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

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

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

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

Not an appealable paper and waiver

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

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

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

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

Res judicata requires a determination on the merits

1155 Nobo Assoc., LLC v New York Hosp. Med. Ctr. of Queens, 2020 NY Slip Op 02074 [2d Dept. 2020]

“Under the doctrine of res judicata, a final adjudication of a claim on the merits precludes relitigation of that claim and all claims arising out of the same transaction or series of transactions by a party or those in privity with a party” (Djoganopoulos v Polkes, 67 AD3d 726, 727; see Gramatan Home Invs. Corp. v Lopez, 46 NY2d 481, 485; Winkler v Weiss, 294 AD2d 428). “Where a dismissal does not involve a determination on the merits, the doctrine of res judicata does not apply” (Djoganopoulos v Polkes, 67 AD3d at 727; see Maitland v Trojan Elec. & Mach. Co.[*2]65 NY2d 614; Sclafani v Story Book Homes, 294 AD2d 559, 559-560). Here, there was no determination on the merits of the plaintiff’s claims for rent arrears or additional holdover damages in the District Court proceeding and, therefore, the doctrine of res judicata does not apply.

Appeal from judgment brings up…

Wells Fargo Bank, N.A. v Davis, 2020 NY Slip Op 02053 [2d Dept. 2020]

Although no appeal lies from a judgment entered upon the default of an appealing party (see CPLR 5511; Development Strategies Co., LLC, Profit Sharing Plan v Astoria Equities, Inc., 71 AD3d 628Murphy v Shaw, 34 AD3d 657, 658), an appeal from such a judgment brings up for review those matters which were the subject of contest before the Supreme Court (see Geffner v Mercy Med. Center, 167 AD3d 571, 572; Bottini v Bottini, 164 AD3d 556, 558; Sarlo-Pinzur v Pinzur, 59 AD3d 607, 607-608; see also James v Powell, 19 NY2d 249, 256 n 3). The only issue the defendant raises on this appeal is whether the plaintiff established its standing to maintain the action. This issue was litigated at the inquest and was determined by the Supreme Court at the inquest. Thus, the issue of the plaintiff’s standing is properly before us.

CPLR 3203(a) Priority

Kunin v Guttman, 2020 NY Slip Op 02044 [2d Dept. 2020]

The defendant demonstrated her prima facie entitlement to judgment as a matter of law. “CPLR 5203(a) gives priority to a judgment creditor over subsequent transferees with regard to the debtor’s real property in a county where the judgment was docketed with the clerk of that county” (Matter of Smith v Ralph Dinapoli Landscaping, Inc., 111 AD3d 841, 841-842 [internal quotation marks omitted]; see CPLR 5203[a]; Matter of Accounts Retrievable Sys., LLC v Conway, 83 AD3d 1052, 1053). Pursuant to CPLR 5018(c), a judgment is docketed when the clerk makes an entry “under the surname of the judgment debtor, . . . consist[ing] of . . . the name and last known address of [the] judgment debtor” (CPLR 5018[c][1][i]; see Matter of Smith v Ralph Dinapoli Landscaping, Inc., 111 AD3d at 842; Matter of Accounts Retrievable Sys., LLC v Conway, 83 AD3d at 1053). ” Once docketed, a judgment becomes a lien on the real property of the debtor in that county'” (Matter of Smith v Ralph Dinapoli Landscaping, Inc., 111 AD3d at 842, quoting Matter of Accounts Retrievable Sys., LLC v Conway, 83 AD3d at 1053).

Here, the defendant demonstrated, prima facie, that the judgment was not docketed under the correct surnames of the title owners of the subject property—Alex Robinovich and George Guttmann—and that, therefore, no valid lien against the subject property was created (see CPLR 5018[c][1]; Matter of Smith v Ralph Dinapoli Landscaping, Inc., 111 AD3d at 842; We Buy Now, LLC v Cadlerock Joint Venture, LP, 46 AD3d 549, 550). Moreover, the defendant demonstrated, prima facie, that her purchase of the subject property was supported by fair consideration and made in good faith (see Phillips v Isaiah Owens Funeral Serv., Inc., 69 AD3d 822, 822-823). In opposition to the defendant’s prima facie showing, the plaintiff failed to raise a triable issue of fact.

3116(a) use of transcripts

Greenman v 2451 Broadway Mkt., Inc., 2020 NY Slip Op 01962 [1st Dept. 2020]

The trial court erred in permitting defendants to use the transcripts of plaintiff’s and his nonparty wife’s depositions at trial, since the transcripts had never been served upon plaintiff and his wife in accordance with CPLR 3116(a) (Li Xian v Tat Lee Supplies Co., Inc., 170 AD3d 538 [1st Dept 2019]; Ramirez v Willow Ridge Country Club, 84 AD3d 452 [1st Dept 2011]). Defendants used the transcripts extensively, both on cross-examination and as direct evidence, and, given the centrality of the issue of credibility, the error cannot be regarded as harmless (see Rivera v New York City Tr. Auth., 54 AD3d 545, 548 [1st Dept 2008]).

The trial court further erred in permitting defense counsel to argue that the actual cause of plaintiff’s fall was the effect of the Valium he had been given earlier that day in connection with a medical visit, since no evidence had been offered as to the dose plaintiff was given, the length of time the Valium would have remained in his system after his medical procedure, or the effect the Valium would have had on his ability to ambulate at the time of his accident (see Kaminer v John Hancock Mut. Ins. Co., 199 AD2d 53 [1st Dept 1993]).

Referee failed to notice or to hold a hearing on the issues

Bank of N.Y. Mellon v Viola, 2020 NY Slip Op 01895[2d Dept. 2020]

It is undisputed that the referee failed to provide notice to the defendant pursuant to CPLR 4313, or to hold a hearing on the issues addressed in the referee’s report. However, as long as a defendant is not prejudiced by the inability to submit evidence directly to the referee, a referee’s failure to notify a defendant and hold a hearing is not, by itself, a basis to reverse a judgment of foreclosure and sale and remit the matter for a hearing and a new determination of amounts owed (see Excel Capital Group Corp. v 225 Ross St. Realty, Inc., 165 AD3d 1233, 1236; Deutsche Bank Natl. Trust Co. v Zlotoff, 77 AD3d 702). Where, as here, a defendant had an opportunity to raise questions and submit evidence directly to the Supreme Court, which evidence could be considered by the court in determining whether to confirm the referee’s report, the defendant is not prejudiced by any error in failing to hold a hearing (see Excel Capital Group Corp. v 225 Ross St. Realty, Inc., 165 AD3d at 1236; Deutsche Bank Natl. Trust Co. v Zlotoff, 77 AD3d at 702). Therefore, the defendant failed to establish that the court erred in confirming the referee’s report and awarding the plaintiff a judgment of foreclosure and sale on the ground that the referee failed to provide notice of a hearing or hold a hearing.