Author: DMG

CPLR 3215(b)

Matter of Yonkers Firefighters v City of Yonkers, 2018 NY Slip Op 06751 [2d Dept. 2018]

The Supreme Court should not have denied the petitioners’ motion to discontinue prior to the indicated return date (see CPLR 3215[b]). Nevertheless, upon exercise of this Court’s authority to review the record, including the reply papers ultimately submitted by the petitioners, we find that the motion was properly denied (see Matter of Oneida Indian Nation of N.Y. v Pifer, 43 AD3d 579, 581). A motion to discontinue should not be granted where discontinuance is being sought in an apparent attempt to avoid the consequences of a potentially adverse determination (see Tucker v Tucker, 55 NY2d 378, 383-384; Matter of Catherine Commons, LLC v Town of Orangetown, 157 AD3d 785, 785; Marinelli v Wimmer, 139 AD3d 914, 915; New York Mtge. Trust, Inc. v Dasdemir, 116 AD3d 679; Jamaica Hosp. Med. Ctr., Inc. v Oxford Health Plans [NY], Inc., 58 AD3d 686, 687; Matter of Oneida Indian Nation of N.Y. v Pifer, 43 AD3d 579; Kaplan v Village of Ossining, 35 AD3d 816, 817). Here, the petitioners’ motion to discontinue was made after they received a favorable arbitration award concerning the very same issues raised in the CPLR article 78 proceeding, in an apparent attempt to evade a determination on the merits in the CPLR article 78 proceeding adverse to the favorable determination obtained in arbitration (see Matter of Oneida Indian Nation of N.Y. v Pifer, 43 AD3d 579).

CPLR 2001

Patel v S. & S. Props., Inc., 2018 NY Slip Op 06757 [2d Dept. 2018]

Contrary to the plaintiff’s contention, the Supreme Court did not err in considering the merits of the defendant’s motion even though the defendant failed to include with its motion papers the plaintiff’s reply to the counterclaims (seeCPLR 2001; Long Is. Pine Barrens Socy., Inc. v County of Suffolk, 122 AD3d 688, 691; Avalon Gardens Rehabilitation & Health Care Ctr., LLC v Morsello, 97 AD3d 611, 612). The record was sufficiently complete, since the plaintiff included the pleading with his opposition, and there is no proof that a substantial right of the plaintiff’s was impaired by the defendant’s failure to submit the reply with its motion papers (see Long Is. Pine [*2]Barrens Socy., Inc. v County of Suffolk, 122 AD3d at 691; Avalon Gardens Rehabilitation & Health Care Ctr., LLC v Morsello, 97 AD3d at 612).

Law of the case

Pentacon, LLC v 422 Knickerbocker, LLC, 2018 NY Slip Op 06758 [2d Dept. 2018]

Contrary to the Supreme Court’s conclusion, its prior denial of the defendants’ motion pursuant to CPLR 3211(a) to dismiss the complaint did not, under the law of the case doctrine, preclude review of the defendants’ current motion for summary judgment (see Borawski v Abulafia, [*2]140 AD3d 817, 817-818; State of New York v Barclays Bank of N.Y., 151 AD2d 19, 20-21). In any event, this Court is not bound by the doctrine of law of the case (see Precision Window Sys., Inc. v EMB Contr. Corp., 149 AD3d 883, 884; Ramanathan v Aharon, 109 AD3d 529, 531).

Lee v Allen, 2018 NY Slip Op 06890 [2d Dept. 2018]

The Supreme Court providently exercised its discretion in granting the plaintiff’s motion for leave to amend the complaint and bill of particulars to add a demand for punitive damages, as there was no prejudice or surprise to the defendants and the proposed amendment was not palpably insufficient or devoid of merit (see CPLR 3025[b]; Postiglione v Castro, 119 AD3d 920, 922). Although the plaintiff unsuccessfully moved for the same relief in a prior motion, “[t]he doctrine of the law of the case does not bind appellate courts, and thus, this Court is not bound by the law of the case established by the prior determination” (Hothan v Mercy Med. Ctr., 105 AD3d 905, 905).

Independent Chem. Corp. v Puthanpurayil, 2018 NY Slip Op 07193 [1st Dept. 2018]

Nor does the doctrine of law of the case compel a different conclusion (see People v Cummings, 31 NY3d 204, 208-209 [2018] [no absolute bar to successor justice seeking to rectify predecessor’s errors]; Foley v Roche, 86 AD2d 887, 887 [2d Dept 1982] [“plain” error may warrant departure from doctrine], lv denied 56 NY2d 507 [1982]; see also 1 Carmody-Wait 2d § 2:367 [law of case rule is “discretionary”]). In any event, the doctrine has no binding force on appeal (Wells Fargo Bank, N.A. v Zurich Am. Ins. Co., 59 AD3d 333, 335 [1st Dept 2009], lv denied 12 NY3d 713 [2009]).

Vacatur

2004 McDonald Ave. Corp. v KGYM Holdings Group, Inc.,  2018 NY Slip Op 06508 [2d Dept. 2018]

CPLR 317 applies where a defendant was served by means other than personal delivery, did not receive notice of the action, and has a potentially meritorious defense (see Booso v Tausik Bros. LLC., 148 AD3d 1108). Here, the defendants claimed they were never served. Therefore, they sought to vacate the default judgment against them pursuant to CPLR 5015(a)(4) for lack of personal jurisdiction. On this point, the affidavit of service of a process server generally constitutes prima facie evidence of proper service (see US Bank N.A. v Ramos, 153 AD3d 882; Central Mtge. Co. v Ward, 127 AD3d 803). In this case, however, the process server submitted affidavits of exercising due diligence to attempt service, not affidavits of service.

If service is not made, the default judgment is a nullity (see Ariowitsch v Johnson, 114 AD2d 184). If a defendant is not served, “notice received by means other than those authorized by statute cannot serve to bring a defendant within the jurisdiction of the court” (Feinstein v Bergner, 48 NY2d 234, 241).

Sposito v Cutting, 2018 NY Slip Op 06782 [2d Dept. 2018]

“As a general rule, a defendant who seeks to vacate a default in appearing at a compliance conference is required to demonstrate both a reasonable excuse for the default and a potentially meritorious defense” (Foley Inc. v Metropolis Superstructures, Inc., 130 AD3d 680, 680; see Polsky v Simon, 145 AD3d 693). Here, the defendant demonstrated a reasonable excuse for his failure to appear at the compliance conference on November 29, 2016, including the fact that he had been hospitalized from mid-September to late October 2016 for injuries sustained in a fall. In addition, notice of the conference was sent to the subject property and, although the defendant’s grandson resided there, it was never the defendant’s residence and the defenedant denied any knowledge of the November 29, 2016, conference. The defendant also demonstrated that he did not receive notice of the adjourned conference date of January 24, 2017, and the record is devoid of any evidence demonstrating that such notice was, in fact, given to him. Under such circumstances, the defendant’s nonappearance for the conference on January 24, 2017, could not constitute a default, as there was no failure to perform a legal duty (see Notaro v Performance Team, 161 AD3d 1093; Foley Inc. v Metropolis Superstructures, Inc., 130 AD3d at 681). “This is analogous to the situation of a defendant who has not been served with process and suffers a default judgment. In both situations, the default’ is a nullity along with the remedy the court renders in response” (Pelaez v Westchester Med. Ctr., 15 AD3d 375, 376). As the defendant’s default in appearing at the conference on January 24, 2017, is considered a nullity, vacatur of that default ” is required as a matter of law and due process, and no showing of a potentially meritorious defense is required'” (Notaro v Performance Team, 161 AD3d at 1095, quoting Bonik v Tarrabocchia, 78 AD3d 630, 632; see Matter of 542 A Realty, LLC, 118 AD3d 993, 994; Pavlou v Associates Food Stores, Inc., 96 AD3d 919). Therefore, the Supreme Court should have vacated the default and the notice of inquest as a matter of law and due process, and no showing of a potentially meritorious defense was required.

In addition, the Supreme Court should have granted that branch of the defendant’s motion which was to vacate the note of issue and certificate of readiness. Since the defendant moved for such relief more than 20 days after service of the note of issue and certificate of readiness, he had to show good cause for vacatur (see 22 NYCRR 202.21[e]). “To satisfy the requirement of good cause,’ the party seeking vacatur must demonstrate that unusual or unanticipated circumstances developed subsequent to the filing of the note of issue and certificate of readiness requiring additional pretrial proceedings to prevent substantial prejudice'” (Ferraro v North Babylon Union Free School Dist., 69 AD3d 559, 561, quoting White v Mazella-White, 60 AD3d 1047, 1049 [internal quotation marks omitted]). Here, for the reasons set forth above, particularly that the defendant’s failure to appear at the conference on January 24, 2017, did not constitute a default and warranted vacatur of the default and the notice of inquest as a matter of law and due process, the defendant established good cause for vacating the note of issue and certificate of readiness.

Accordingly, the Supreme Court should have granted the defendant’s motion pursuant to CPLR 5015(a)(1) to, in effect, vacate his default in appearing for two scheduled court conferences

Rosario v Naranjo, 2018 NY Slip Op 06780 [2d Dept. 2018]

A defendant seeking to vacate a default in appearing or answering the complaint pursuant to CPLR 5015(a)(1) must demonstrate both a reasonable excuse for the default and a potentially meritorious defense to the action (see Eugene Di Lorenzo, Inc. v A. C. Dutton Lbr. Co., 67 NY2d 138, 141; Goldfarb v Zhukov, 145 AD3d 757, 758; Li Fen Li v Cannon Co., Inc., 155 AD3d 858, 859). “Whether there is a reasonable excuse for a default is a discretionary, sui generis determination to be made by the court based on all relevant factors, including the extent of the delay, whether there has been prejudice to the opposing party, whether there has been willfulness, and the strong public policy in favor of resolving cases on the merits” (Harcztark v Drive Variety, Inc., 21 AD3d 876, 876-877; see Gomez v Gomez-Trimarchi, 137 AD3d 972, 973).

A.G. Parker, Inc. v 246 Rochester Partners, LLC, 2018 NY Slip Op 06711 [2d Dept. 2018]

A party is precluded from moving to vacate its default on grounds asserted in a prior motion to vacate the default that had been previously denied in an order from which it took no appeal as well as on grounds that were apparent at the time that the party made the prior motion but were not asserted therein (see U.S. Bank N.A. v Davis, 161 AD3d 808; LaSalle Natl. Bank Assn. v Odato, 126 AD3d 675, 676; Eastern Sav. Bank, FSB v Brown, 112 AD3d 668, 670; Lambert v Schreiber, 95 AD3d 1282, 1283; Bianco v Dougherty, 54 AD2d 681).

Itshaik v Singh, 2018 NY Slip Op 06888 [2d Dept. 2018]

“When a defendant seeking to vacate a default judgment raises a jurisdictional objection pursuant to CPLR 5015(a)(4), the court is required to resolve the jurisdictional question before determining whether it is appropriate to grant a discretionary vacatur of the default under CPLR 5015(a)(1)” (Canelas v Flores, 112 AD3d 871, 871; see Community W. Bank, N.A. v Stephen, 127 AD3d 1008, 1009; HSBC Bank USA, N.A. v Miller, 121 AD3d 1044, 1045). A defendant moving to vacate a judgment entered upon his or her default in appearing or answering the complaint on the ground of lack of personal jurisdiction “is not required to demonstrate a reasonable excuse for the default and a potentially meritorious defense” (Prudence v Wright, 94 AD3d 1073, 1073; see Falvo v Cerra, 127 AD3d 919, 920). “[T]he failure to serve process in an action leaves the court without personal jurisdiction over the defendant, and all subsequent proceedings are thereby rendered null and void” (Krisilas v Mount Sinai Hosp., 63 AD3d 887, 889 [internal quotation marks omitted]).

Here, through his submissions, the defendant established that the Supreme Court did not acquire personal jurisdiction over him (see CPLR 5015[a][4]). The plaintiff contends that the defendant was estopped from challenging service upon him at the West End Avenue address pursuant to Vehicle and Traffic Law § 505(5), which requires that every motor vehicle licensee notify the Commissioner of the DMV of any change in residence within 10 days of the change and make a notation of such change of residence on the license. However, under the circumstances of this case, where the defendant did not provide the West End Avenue address at the time of the accident, where the record does not contain a DMV driver’s abstract for the defendant, and where the plaintiff identified the motor vehicle allegedly involved in this accident as belonging to a neighbor, the plaintiff’s contention is without merit (cf. Canelas v Flores, 112 AD3d at 871-872). Accordingly, we agree with the Supreme Court’s granting of the defendant’s motion to vacate the order dated July 11, 2016, and for leave to serve a late answer, based on lack of jurisdiction (see CPLR 5015[a][4]; Falvo v Cerra, 127 AD3d at 920).

In light of our determination of the jurisdictional issue, we need not reach the parties’ contentions regarding a discretionary vacatur pursuant to CPLR 5015(a)(1). Moreover, the parties’ contentions regarding CPLR 317, which were not raised before the Supreme Court, are not properly before this Court.

Hearsay waived

Grant v Carrasco, 2018 NY Slip Op 06516 [2d Dept. 2018]

The plaintiff also submitted, however, an uncertified copy of a police accident report, which stated that according to the defendant driver, the plaintiff’s vehicle came to a sudden stop even though the traffic light was green. Although the police report contained self-serving statements not in admissible form, the plaintiff waived any objection to the admissibility of the report by submitting it in support of his motion (see Cruz v Finney, 148 AD3d 772, 773; Orcel v Haber, 140 AD3d at 937).

3212(a)

Mack v Harley, 2018 NY Slip Op 06521 [2d Dept. 2018]

The plaintiff commenced this negligence action to recover damages for the personal injuries she allegedly sustained as a result of the accident. A first note of issue was filed on September 20, 2013, but the parties subsequently stipulated to take the matter off the trial calendar in order to resolve outstanding discovery issues. In an order dated July 31, 2015, the Supreme Court directed the plaintiff to file a new note of issue no later than August 20, 2015. The plaintiff filed the second note of issue on or about August 6, 2015. The plaintiff then moved for summary judgment on the issue of liability. In an order dated January 29, 2016, the Supreme Court granted the motion. The defendants appeal.

Contrary to the defendants’ contention, the plaintiff’s motion was not untimely pursuant to CPLR 3212(a). The note of issue filed on September 20, 2013, was, in effect, nullified when the case was removed from the trial calendar (see Lance Intl., Inc. v First Natl. City Bank, 86 [*2]AD3d 479, 480; Farrington v Heidkamp, 26 AD3d 459, 460; Negron v Helmsley Spear, Inc., 280 AD2d 305, 305; Bono v Barzallo, 260 AD2d 592). Therefore, the operative note of issue was filed on or about August 6, 2015 (see Lance Intl., Inc. v First Natl. City Bank, 86 AD3d at 480; Williams v Peralta, 37 AD3d 712, 713), and the motion was timely.

Khan v Macchia, 2018 NY Slip Op 06519 [2d Dept. 2018]

Upon the filing of a note of issue, there are two separate and distinct methods to obtain further disclosure. The first method, pursuant to Uniform Rules for Trial Courts (22 NYCRR) § 202.21(e), provides, in pertinent part, that: “Within 20 days after service of a note of issue and certificate of readiness, any party to the action or special proceeding may move to vacate the note of issue, upon affidavit showing in what respects the case is not ready for trial, and the court may vacate the note of issue if it appears that a material fact in the certificate of readiness is incorrect, or that the certificate of readiness fails to comply with the requirements of this section in some material respect.”

The second method, pursuant to Uniform Rules for Trial Courts (22 NYCRR) § 202.21(d), provides, in pertinent part, that: “Where unusual or unanticipated circumstances develop subsequent to the filing of a note of issue and certificate of readiness which require additional pretrial [*2]proceedings to prevent substantial prejudice, the court, upon motion supported by affidavit, may grant permission to conduct such necessary proceedings.”

Here, it appears that Macchia did not comply with either method, but, because depositions of the parties had not yet been conducted, the Court Attorney Referee so-ordered a stipulation which directed that further discovery take place beyond the date that summary judgment motions were to be filed. Given the Court Attorney Referee’s implicit consent to the basis for the extension of the time to move for summary judgment, Macchia reasonably believed that the deadline for summary judgment motions would likewise be extended. Thus, under these particular facts and circumstances, we find that Macchia demonstrated good cause for allowing an extension of time to move for summary judgment (see Brill v City of New York, 2 NY3d 648, 652; Parker v LIJMC-Satellite Dialysis Facility, 92 AD3d 740; 741-742; Grochowski v Ben Rubins, LLC, 81 AD3d 589, 591; Richardson v JAL Diversified Mgt., 73 AD3d 1012, 1012-1013; Kung v Zheng, 73 AD3d 862, 863; Abdalla v Mazl Taxi, Inc., 66 AD3d 803, 804; Jones v Grand Opal Constr. Corp., 64 AD3d 543, 544; McArdle v 123 Jackpot, Inc., 51 AD3d 743, 745; Sclafani v Washington Mut., 36 AD3d 682, 682). Accordingly, the Supreme Court should have granted Macchia’s motion for leave to extend the time to move for summary judgment, and we remit the matter to the Supreme Court, Queens County, for the selection of a new date by which summary judgment motions shall be filed.

 

3211(a) Capacity

Rely-On-Us, Inc. v Torres, 2018 NY Slip Op 06583 [2d 2018]

Contrary to the plaintiff’s contention, although a dismissal for lack of capacity to sue is not a dismissal on the merits (see Matter of United Envtl. Techniques v State of N.Y. Dept. of Health, 88 NY2d 824, 825; Robles v Brooklyn-Queens Nursing Home, Inc., 131 AD3d 1032, 1033), “[a] judgment of default which has not been vacated is conclusive for res judicata purposes, and encompasses the issues which were raised or could have been raised in the prior action” (Tromba v Eastern Fed. Sav. Bank, FSB, 148 AD3d 753, 754; see Albanez v Charles, 134 AD3d 657, 658; 83-17 Broadway Corp. v Debcon Fin. Servs., Inc., 39 AD3d 583, 585; Martins v Wood, 251 AD2d 465). Consequently, the dismissal, on default, of a prior action to foreclose the mortgage, as well as the default judgment taken in the action pursuant to RPAPL 1501(4) (see Torres v Rely On Us, Inc., _____ AD3d _____ [decided herewith]), bar the plaintiff’s cause of action to foreclose the mortgage (see Trisingh Enters. v Kessler, 249 AD2d 45).

Further, “[a] cause of action seeking reformation of an instrument on the ground of mistake, including an alleged scrivener’s error, is governed by the six-year statute of limitations pursuant to CPLR 213(6), which begins to run on the date the mistake was made” (Lopez v Lopez, 133 AD3d 722, 723; see Matter of Wallace v 600 Partners Co., 86 NY2d 543, 547). Here, the cause of action seeking reformation is time-barred since the note, including the alleged scrivener’s error regarding the lender’s name, was made in 2006, yet the plaintiff commenced this action in 2015. Moreover, under the circumstances of this case, absent reformation of the note, the plaintiff cannot recover on the note (see UCC 3-202[1]; 3-301).

Accordingly, we agree with the Supreme Court’s determination to grant that branch of the defendants’ motion which was pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against them, and to deny the plaintiff’s cross motion, inter alia, for leave to amend the complaint and to reform the note.

The bold is mine

Collateral Etoppel

Shifer v Shifer, 2018 NY Slip Op 06584 [2d Dept 2018]

Collateral estoppel 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 or causes of action are the same (see D’Arata v New York Cent. Mut. Fire Ins. Co., 76 NY2d 659; Ryan v New York Tel. Co., 62 NY2d 494, 500; Lozada v GBE Contr. Corp., 295 AD2d 482, 483). It is an equitable principle designed to conserve court resources and prevent conflicting results (see Buechel v Bain, 97 NY2d 295, 303). “[C]ollateral estoppel bars not only parties from a previous action from litigating an issue decided therein, but those in privity with them as well” (Gramatan Home Investors Corp. v Lopez, 46 NY2d 481, 486; see Matter of Borenstein v New York City Employees’ Retirement Sys., 88 NY2d 756). The party to be precluded from relitigating an issue must have had a full and fair opportunity to contest the prior determination. The burden is on the party attempting to defeat the application of collateral estoppel to establish the absence of a full and fair opportunity to litigate (see Buechel v Bain, 97 NY2d at 303; Kaufman v Eli Lilly & Co., 65 NY2d 449, 455-456). As an equitable principle, collateral estoppel should be applied with fairness and flexibility, “grounded in the facts and realities of a particular litigation, rather than rigid rules” (Buechel v Bain, 97 NY2d at 303).

Fun with 5015

Torres v Rely On Us, Inc., 2018 NY Slip Op 06587 [2d Dept. 2018]

In addition, even after expiration of the one-year limitations period set forth in CPLR 5015, "a court may vacate its own judgment for sufficient reason and in the interests of substantial justice" (Woodson v Mendon Leasing Corp., 100 NY2d 62, 68; see U.S. Bank N.A. v Losner, 145 AD3d 935; Yung Chong Ho v Uppal, 130 AD3d at 812; Hudson City Sav. Bank v Cohen, 120 AD3d 1304; Wells Fargo Bank v Hodge, 92 AD3d 775).

Here, contrary to the plaintiffs' contention, that branch of ROU's motion which was pursuant to CPLR 5015(a)(1) was not untimely, since there is no evidence that the plaintiffs ever served ROU with written notice of entry of the order dated November 19, 2014 (see Capurso v Capurso, 134 AD3d 974, 975; Garcia v Pepe, 42 AD3d 427, 430). Accordingly, the one-year time period never commenced (see CPLR 5015[a][1]).

Nevertheless, we agree with the Supreme Court's determination to deny those branches of ROU's motion which were to vacate the order dated November 19, 2014, and to extend the time to serve an answer. While the court has the discretion to accept law office failure as a reasonable excuse (see CPLR 2005; Shin v ITCI, Inc., 115 AD3d 736, 737), "[a] party attributing his or her default to a former attorney must provide a detailed and credible explanation of the default. Conclusory and unsubstantiated allegations of law office failure are not sufficient" (U.S. Bank N.A. v Barr, 139 AD3d 937, 937-938 [citation and internal quotation marks omitted]; see LaSalle Bank, N.A. v LoRusso, 155 AD3d 706, 707; Morris v Metropolitan Transp. Auth., 191 AD2d 682). "[M]ere neglect is not a reasonable excuse" (Ki Tae Kim v Bishop, 156 AD3d 776, 777 [internal quotation marks omitted]).

Contrary to ROU's contention, it failed to provide a detailed and credible explanation of the default, and no other evidence was submitted to corroborate the allegation of law office failure (see OneWest Bank, FSB v Singer, 153 AD3d 714, 716). Accordingly, ROU's "bare allegations of incompetence on the part of prior counsel" (Huggins v Parkset Supply, Ltd., 24 AD3d 610, 611 [internal quotation marks omitted]) were insufficient to establish an excusable default under CPLR 5015(a)(1) (see LaSalle Bank, N.A. v LoRusso, 155 AD3d 706; LaSalle Bank N.A. v Calle, 153 AD3d 801; Carillon Nursing & Rehabilitation Ctr., LLP v Fox, 118 AD3d 933, 934; Beale v Yepes, 309 AD2d 886).

Since ROU failed to establish a reasonable excuse for its default in appearing or answering the complaint, it is unnecessary to consider whether it established the existence of a potentially meritorious defense (see CPLR 5015[a][1]; LaSalle Bank N.A. v Calle, 153 AD3d at 803).

Furthermore, the interests of substantial justice did not warrant vacating ROU's default in the exercise of the Supreme Court's inherent power (see Yung Chong Ho v Uppal, 130 AD3d at 813).

The bold is mine.

 

Being duly sworn and a personal jurisdiction problem

Ulster Sav. Bank v Fiore, 2018 NY Slip Op 06588 [2d Dept. 2018]

Contrary to Nicholas's contention, the affidavit of the plaintiff's Collections Officer, submitted by the plaintiff in support of its motion, was not improperly sworn and, therefore, was adequate to support the motion, since the affidavit expressly contained the phrase "being duly sworn" and was notarized (Citibank, NA v Abrams, 144 AD3d 1212, 1216; see Matter of Bennett, 148 AD3d 1449, 1449-1450). In opposition to the motion, the defendants failed to raise a triable issue of fact.

We also agree with the Supreme Court's determination to deny, without a hearing, that branch of the defendants' cross motion which was pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against Nicholas for lack of personal jurisdiction. Nicholas waived the defense of lack of personal jurisdiction by failing to assert it in his answer or in a pre-answer motion to dismiss (see MidFirst Bank v Ajala, 146 AD3d 875, 875; cf. Hopstein v Cohen, 143 AD3d 859, 860).

The bold is mine.