Not so stale

Williams v New York City Hous. Auth., 2020 NY Slip Op 03063 [1st Dept. 2020]

Preliminarily, we do not reject the Ruiz notarized statement out of hand based on the perceived infirmities relied on by the motion court, such of the lack of a caption and the absence of a declaration that it was sworn to under penalty of perjury. These are technical errors that did not prejudice a substantial right of the defendants (CPLR 2001; see e.g. Moore v DL Peterson Trust, 172 AD3d 1058 [2d Dept 2019]). We similarly reject NYCHA’s position that the affidavit is “stale.” This action involves a static set of facts that have not changed since the day of the accident. The fact that the affidavit was prepared contemporaneously makes it more probative than had it been made at the time of the summary judgment motions, not less.

 

Misnomer 3025

Rivera v New York City Dept. of Sanitation, 2020 NY Slip Op 03085 [1st Dept. 2020]

The summons and complaint were served on Corporation Counsel for the City of New York, which answered on behalf of the City of New York. Defendant’s motion to dismiss the complaint should have been denied and plaintiff’s cross motion to amend the summons and complaint to correct the misnomer granted. The City was not prejudiced by the mis-description and was on notice that plaintiff intended to seek a judgment against it (see CPLR 305[c]; 2001; Medina v City of New York , 167 AD2d 268 [1st Dept 1990])

306-b and SOL

Fernandez v McCarthy, 2020 NY Slip Op 03079 [1st Dept. 2020]

Under the circumstances, we find that, although plaintiff delayed in seeking an extension of his time to re-serve the complaint, the motion court appropriately exercised its discretion when it extended plaintiff’s time in the interest of justice (CPLR 306-b), as plaintiff established the existence of several relevant factors weighing in favor of an extension (see Leader v Maroney, Ponzini & Spencer, 97 NY2d 95, 104-105 [2001]; Chase Home Fin. LLC v Adago, 171 AD3d 533 [1st Dept 2019]). Plaintiff’s legal malpractice claim, which would otherwise be lost due to the running of the statute of limitations, seems to be potentially meritorious, and defendants have not established that they would suffer substantial prejudice from the extension, where they had actual notice of this action and the allegations against them from early on (see Wimbledon Fin. Master Fund, Ltd. v Laslop, 169 AD3d 550 [1st Dept 2019]; Pennington v Da Nico Rest., 123 AD3d 627 [1st Dept 2014]).

Bold is mine.

Link between a cause of action and a preliminary injunction.

Davis v Influx Capital Group, LLC, 2020 NY Slip Op 03077 [1st Dept. 2020]

Both CPLR 6301 and 6312(a) require a link between a cause of action and a preliminary injunction. There is no such link in the case at bar; hence, plaintiffs’ motion should have been denied (see e.g. BSI, LLC v Toscano, 70 AD3d 741 [2d Dept 2010]).

CPLR 7601

Rad v IAC/InterActiveCorp, 2020 NY Slip Op 02990 [1st Dept 2020]

The court properly found that CPLR 7601 does not apply to bar plaintiffs’ claims. CPLR 7601 permits, but does not require, the commencement of a special proceeding to enforce a valuation agreement. Although plaintiffs’ claims undoubtedly relate to a dispute over the valuation process, plaintiffs are not seeking to enforce the valuation agreement and are properly seeking relief in a plenary action (see Matter of Penn Cent. Corp. [Consolidated Rail Corp.], 56 NY2d 120, 130 [1982]). In light of the foregoing, the parties’ other arguments about the application of CPLR 7601 are moot.

The motion court properly found that issues of fact exist as to whether plaintiffs acquiesced to the transaction at issue. Although plaintiff Rad’s unvested options vested immediately upon the merger, and he exercised them all, the equitable defense of acquiescence is “fact intensive, often depending . . . on an evaluation of the knowledge, intention and motivation of the acquiescing party” (Julin v Julin, 787 A2d 82, 84 [Del 2001]).

Contrary to defendants’ contention, those plaintiffs whose employment terminated prior to the merger have standing to assert merger-related claims. While they were obligated to sell their outstanding options upon leaving the company, those options were not valued until the merger.

The Decision and Order of this Court entered herein on October 29, 2019 (176 AD3d 635 [1st Dept 2019]) is hereby recalled and vacated (see M-8412 decided simultaneously herewith).

Litigation hold

China Dev. Indus. Bank v Morgan Stanley & Co. Inc., 2020 NY Slip Op 02987 [1st Dept. 2020]

Plaintiff did not impose a litigation hold until July 2010. However, the record does not support the court’s conclusion that plaintiff was obligated to preserve documents relevant to the transaction between the parties as early as October 2007. The evidence does not show that plaintiff “reasonably anticipated” litigating against defendants at that time, but shows rather that a credible probability of litigation against defendants arose only significantly later (see VOOM HD Holdings LLC v EchoStar Satellite L.L.C., 93 AD3d 33, 43 [1st Dept 2012]). Nor does the record support either the finding that plaintiff selectively preserved certain beneficial documents and recordings related to the transaction for purposes of supporting its legal claims against defendants or the finding that plaintiff refused to produce key witnesses or prevented defendants from deposing them.

Since plaintiff had no duty to preserve evidence in 2007 and reasonably implemented a litigation hold in 2010 upon notice (see The Sedona Conference, Commentary on Legal Holds, Second Ed.: The Trigger & The Process, 20 Sedona Conf J 341 [2019]; VOOM HD at 43), there is no issue regarding the destruction of records neither intentionally, willfully nor negligently. Accordingly, a spoliation sanction is not triggered and a culpable state of mind analysis is not reached.

CPLR 7502

Men Women N.Y. Model Mgt., Inc. v Elite Model Mgt. – N.Y. LLC,  2020 NY Slip Op 02984 [1st Dept. 2020]

CPLR 7502(c) authorizes courts to award provisional relief “in connection with an arbitration that is … to be commenced” where “the award to which the applicant may be entitled may be rendered ineffectual without such … relief.” However, the applicant is required to commence arbitration within 30 days of receiving the provisional relief, or else “the order granting such relief shall expire and be null and void and costs, including reasonable attorney’s fees, awarded to the respondent” (id.).

CPLR 7502(c) applies to the instant dispute because the subject provisional relief was entered in aid of arbitration. There is no independent cause of action for injunctive relief (see Talking Capital LLC v Omanoff, 169 AD3d 423, 424 [1st Dept 2019]), and it is undisputed that plaintiffs’ underlying breach of contract claim is subject to mandatory arbitration.

Although defendants’ employment agreements also provide for provisional injunctive relief, the purpose of these provisions was not to create an independent right to such relief regardless of whether plaintiffs’ underlying claims were ever actually arbitrated. Rather, the purpose of the injunctive relief clause here was to streamline the process of obtaining provisional relief in aid of arbitration by effectively conceding that the non-solicitation provisions were “reasonable and necessary” and that breach would result in “irreparable injury.”

Plaintiffs failed to demonstrate good cause to extend the time in which to commence arbitrations. Even if substitution of counsel would constitute good cause under other circumstances, it does not constitute good cause here, where the substitution came after the subject deadline had already expired and defendants had already moved to vacate. Moreover, there is no evidence in the record, such as a sworn statement from prior counsel, to support plaintiffs’ assertion that counsel believed that CPLR 7502(c) was not applicable. Nor is it clear that such a belief would have been reasonable.

The bold is mine.

Tax Estoppel

PH-105 Realty Corp v Elayaan, 2020 NY Slip Op 02971 [1st Dept. 2020]

The court improvidently exercised its discretion in failing to apply the doctrine of “tax estoppel.” Under that doctrine, defendants’ acts in filing corporate tax returns for the years 2010 through 2014, signed by defendant Elayan, which contained factual statements that plaintiff Jaber had a 75% ownership interest in Edgewater during that time period, and precludes defendants from taking a position contrary to that in this litigation (see Mahoney-Buntzman v Buntzman, 12 NY3d 415, 422 [2009]; Livathinos v Vaughan, 121 AD3d 485 [1st Dept 2014]; see also Man Choi Chiu v Chiu, 125 AD3d 824 [2d Dept 2015], lv denied 26 NY3d 905 [2015]). To the extent our decision in Matter of Bhanji v Baluch (99 AD3d 587 [1st Dept 2012]) has been interpreted as making the doctrine generally inapplicable with respect to factual statements of ownership in tax returns, we clarify that the doctrine applies where, as here, the party seeking to contradict the factual statements as to ownership in the tax returns signed the tax returns, and has failed to assert any basis for not crediting the statements (see Cusimano v Wilson, Elser, Moskowitz, Edelman & Dicker LLP, 118 AD3d 542 [1st Dept 2014]; Stevenson-Misischia v L’Isola D’Oro SRL, 85 AD3d 551 [1st Dept 2011]; see also Matter of Elmezzi, 124 AD3d 886, 887 [2d Dept 2015]).

The bold is mine.

Assorted waivers

Clark v Deutsche Bank Natl. Trust Co., 2020 NY Slip Op 02456 [2d Dept. 2020]

As a threshold matter, under the circumstances of this case, the Supreme Court providently exercised its discretion in finding that the plaintiff had waived her contention that the defendants’ motion to dismiss was untimely made (see Rozz v Law Offs. of Saul Kobrick, P.C., 134 AD3d 920, 921-922; Spagnoletti v Chalfin, 131 AD3d 901, 901-902; Glass v Captain Hulbert House, 103 AD3d 607, 608). Accordingly, we agree with the court’s denial of that branch of the plaintiff’s cross motion which was for leave to enter a default judgment against Deutsche Bank.

Hui-Lin Wu v City of New York, 2020 NY Slip Op 02721 [1st Dept. 2020]

The trial court properly denied plaintiff’s motion to strike defendants’ pleadings or preclude defendants from calling witnesses on the ground of their alleged failure to provide discovery, since, by filing a note of issue, plaintiff waived her entitlement to any further discovery (see 22 NYCRR 202.21; Escourse v City of New York, 27 AD3d 319 [1st Dept 2006]; Abbott v Memorial Sloan-Kettering Cancer Ctr., 295 AD2d 136 [1st Dept 2002]). The court properly rejected plaintiff’s attempt to authenticate her medical records through the testimony of someone who merely became the records’ physical custodian after the sale of the surgical center at which they were created (see Irizarry v Lindor, 110 AD3d 846 [2d Dept 2013]). The court correctly declined to admit the officers’ disciplinary files, since plaintiff had never requested the requisite in camera review (see Civil Rights Law § 50-a[2], [3]; see also People v Gissendanner, 48 NY2d 543, 551 [1979]; Telesford v Patterson, 27 AD3d 328 [1st Dept 2006]). Nor could plaintiff show that the records were relevant, particularly since the City admitted that the officers were acting in the scope of their employment during the incident (see Cheng Feng Fong v New York City Tr. Auth., 83 AD3d 642 [2d Dept 2011]; Weinberg v Guttman Breast & Diagnostic Inst., 254 AD2d 213 [1st Dept 1998]). There is no indication in the record that plaintiff [*2]requested and was denied interested witness charges. The court properly determined that any explanation as to missing witnesses was better addressed by counsel in their summations than by a jury charge.

Wilmington Sav. Fund Socy., FSB v Chishty, 2020 NYSlipOp 00641 [2d Dept. 2020]

The defendant also waived her right to seek dismissal of the complaint insofar as asserted against her pursuant to CPLR 3215 (c) by filing two notices of appearance (see Bank of Am., N.A. v Rice, 155 AD3d 593 [2017]; Myers v Slutsky, 139 AD2d 709, 710 [1988])

Deutsche Bank Natl. Trust Co. v Abrahim, 2020 NY Slip Op 02764 [2d Dept. 2020]

Contrary to the defendant’s contention, she waived the right to seek a dismissal pursuant to CPLR 3215(c) by appearing in the action and, inter alia, engaging in motion practice as early as 2012 (see HSBC Bank USA v Lugo, 127 AD3d 502, 503; Myers v Slutsky, 139 AD2d 709, 710-711).

And, not a waiver

Wells Fargo Bank, N.A. v Martinez, 2020 NYSlipOp 01693 [1st Dept 2020]

Plaintiff’s argument that defendant waived his right to seek dismissal pursuant to section 3215 (c) because he participated in the settlement conferences is equally unavailing. Although a party may waive it rights under CPLR 3215 (c) “by serving an answer or taking any other steps which may be viewed as a formal or informal appearance” (Private Capital Group, LLC v Hosseinipour, 170 AD3d 909, 910 [2d Dept 2019] [internal quotation marks omitted]), defendant’s participation in settlement conferences did not constitute either a formal or an informal appearance “since [he] did not actively litigate the action before the Supreme Court or participate in the action on the merits” (Slone, 174 AD3d at 867).

The above bold is mine.

On mailing and service

Wilmington Sav. Fund Socy., FSB v Sheikh, 2020 NY Slip Op 02823 [2d Dept. 2020]

Here, in support of his cross motion, the defendant established that the plaintiff failed to properly serve its motion for summary judgment and for an order of reference because the plaintiff mailed the motion papers to an incorrect address for the defendant’s counsel, resulting in the defendant’s lack of notice of the motion. In opposition, the plaintiff merely speculated that the motion papers may have been forwarded to the defendant’s counsel by the U.S. Postal Service, or that counsel may have otherwise received notice of the motion. Given that defective service of the motion was established (see generally Matter of Community Hous. Improvement Program v Commissioner of Labor, 166 AD3d 1135, 1137; Jagmohan v City of New York, 14 AD3d 491, 492), the defendant was not obligated to demonstrate a reasonable excuse for the default or a potentially meritorious defense (see Wells Fargo Bank, N.A. v Whitelock, 154 AD3d 906, 907). Moreover, the failure to give the defendant timely notice of the motion deprived the Supreme Court of jurisdiction to entertain the motion and rendered the resulting order entered October 3, 2016, void (see Wells Fargo Bank, N.A. v Whitelock, 154 AD3d at 907; Nationstar Mtge., LLC v Chase, 147 AD3d 964, 965; Golden v Golden, 128 AD2d 672, 673).

Rodriguez v 60 Graham, LLC, 173 AD3d 1095 [2d Dept. 2020]

“Ordinarily, a process server’s affidavit of service establishes a prima facie case as to the method of service and, therefore, gives rise to a presumption of proper service” (Wells Fargo Bank, N.A. v Leonardo, 167 AD3d 816, 817 [2018] [internal quotation marks omitted]; see Chichester v Alal-Amin Grocery & Halal Meat, 100 AD3d 820, 820 [2012]; Indymac Fed. Bank FSB v Quattrochi, 99 AD3d 763, 764 [2012]). “To be entitled to vacatur of a default judgment . . . a defendant must overcome the presumption raised by the process server’s affidavit of service” (Machovec v Svoboda, 120 AD3d 772, 773 [2014]). “A defendant’s sworn denial of receipt of service generally rebuts the presumption of proper service established by the process server’s affidavit and necessitates an evidentiary hearing; however, no hearing is required where the defendant fails to swear to specific facts to rebut the statements in the affidavit of service” (Wells Fargo Bank, N.A. v Leonardo, 167 AD3d at 817). The sworn denial of receipt of service must be a “detailed and specific contradiction” of the allegations in the process server’s affidavit (Bankers Trust Co. of Cal. v Tsoukas, 303 AD2d 343, 344 [2003]; see Scarano v Scarano, 63 AD3d 716 [2009]).

Here, City Signs relied on an affidavit of the individual allegedly served in support of its contention that there were discrepancies between her appearance and the description of her provided in the process server’s affidavit. However, the claimed discrepancies were minor and did not warrant a hearing on the issue of service (see US Bank N.A. v Cherubin, 141 AD3d 514, 515-516 [2016]; Citimortgage, Inc. v Baser, 137 AD3d 735, 736 [2016]; Indymac Fed. Bank, FSB v Hyman, 74 AD3d 751, 751 [2010]; Wells Fargo Bank, N.A. v McGloster, 48 AD3d 457 [2008]). Additionally, City Signs failed to substantiate the claimed discrepancies (see US Bank N.A. v Cherubin, 141 AD3d at 516; Indymac Fed. Bank, FSB v Hyman, 74 AD3d at 751).

Deutsche Bank Natl. Trust Co. v Dennis, 2020 NYSlipOp 02039 [2d Dept. 2020]

RPAPL 1304 provides that at least 90 days before a lender, an assignee, or a mortgage loan servicer commences an action to foreclose the mortgage on a home loan as defined in the statute, such lender, assignee, or mortgage loan servicer must give notice to the borrower. The statute provides the required content for the notice and provides that the notice must be sent by registered or certified mail and also by first-class mail to the last known address of the borrower (see RPAPL 1304 [2]). “Strict compliance with RPAPL 1304 notice to the borrower or borrowers is a condition precedent to the commencement of a foreclosure action” (Citibank, N.A. v Conti-Scheurer, 172 AD3d 17, 20 [2019]; see Citimortgage, Inc. v Banks, 155 AD3d 936, 936-937 [2017]; HSBC Bank USA, N.A. v Ozcan, 154 AD3d 822, 825-826 [2017]), “and the plaintiff has the burden of establishing satisfaction of this condition” (Aurora Loan Servs., LLC v Weisblum, 85 AD3d 95, 106 [2011]). “By requiring the lender or mortgage loan servicer to send the RPAPL 1304 notice by registered or certified mail and also by first-class mail, the Legislature implicitly provided the means for the plaintiff to demonstrate its compliance with the statute, i.e., by proof of the requisite mailing, which can be established with proof of the actual mailings, such as affidavits of mailing or domestic return receipts with attendant signatures, or proof of a standard office mailing procedure designed to ensure that items are properly addressed and mailed, sworn to by someone with personal knowledge of the procedure” (Citibank, N.A. v Conti-Scheurer, 172 AD3d at 20-21 [internal quotation marks omitted]; see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498, 508-509 [2015]; Bank of Am., N.A. v Bittle, 168 AD3d 656, 658 [2019]; Wells Fargo Bank, NA v Mandrin, 160 AD3d 1014, 1016 [2018]).

Here, the plaintiff failed to submit an affidavit of mailing or proof of mailing by the United States Postal Service evidencing that it properly mailed notice to the defendant pursuant to RPAPL 1304. Instead, the plaintiff relied on an affidavit of Rashad Blanchard, who was employed as a loan analyst by the parent company of the plaintiff’s loan servicer, and copies of the purported notices. The plaintiff submitted only one letter that purported to constitute the statutorily required 90-day notice of default, dated December 22, 2008. Although the letter contained the statement “sent via certified mail,” with a 20-digit number below it, no receipt or corresponding document issued by the United States Postal Service was submitted proving that the letter was actually sent by certified mail more than 90 days prior to commencement of the action. The plaintiff also failed to submit any documentary evidence that notice was sent by first-class mail. Further, Blanchard did not aver that the notice was sent in the manner required pursuant to RPAPL 1304, i.e., by certified mail and first-class mail. Moreover, since he did not aver that he personally mailed the notice, or that he was familiar with the mailing practices and procedures of American Home Mortgage Servicing, Inc., the entity that purportedly sent the notices, he did not establish proof of a standard office practice and procedure designed to ensure that items are properly addressed and mailed (see U.S. Bank N.A. v Offley, 170 AD3d 1240, 1242 [2019]; U.S. Bank N.A. v Henderson, 163 AD3d 601, 603 [2018]; Bank of Am., N.A. v Wheatley, 158 AD3d 736, 738 [2018]).

The bold is mine.