Aspen Specialty Ins. Co. v Ironshore Indem. Inc., 2018 NY Slip Op 08253 [1st Dept. 2018]

Order, Supreme Court, New York County (Arthur F. Engoron, J.), entered January 29, 2018, which denied defendant Ironshore Indemnity Incorporated (Ironshore’s) motion for leave to renew a prior motion to dismiss the complaint, unanimously affirmed, without costs. Appeal from order, same court and Justice, entered on or about March 27, 2018, which, inter alia, denied Ironshore’s motion to reargue the court’s January 29, 2018 decision, unanimously dismissed, without costs, as taken from a non-appealable order.

The court properly denied Ironshore’s renewal motion on the ground that the parties’ rights and responsibilities under the respective insurance contracts, or specifically, Alphonse Hotel’s entitlement to additional insured status under the Ironshore policy, was conclusively adjudicated by our decision in Aspen Specialty Ins. Co. v Ironshore Indem. Inc. (144 AD3d 606, 606 [1st Dept 2016]), an order from which Ironshore did not appeal. At this juncture, the time to appeal has expired, and the court properly determined that renewal based upon the Court of Appeals decision in Burlington Insurance Company v NYC Tr. Auth. (29 NY3d 313 [2017]), is no longer available (see Matter of Huie (Furman), 20 NY2d 568, 572 [1967]).

no appeal from a default

Matter of Fatima K. v Ousmane F., 2018 NY Slip Op 08431 [1st Dept., 2018]

The court correctly considered the father’s untimely appearance at the custody hearing, without explanation, and entered its order on default (see Matter of Nyree S. v Gregory C., 99 AD3d 561, 562 [1st Dept 2012], lv denied 20 NY3d 854 [2012]; Matter of Anita L. v Damon N., 54 AD3d 630, 631 [1st Dept 2008]). As the father did not avail himself of the opportunity to vacate his default, and no appeal lies from an order entered upon the aggrieved party’s default, the appeal is dismissed (see CPLR 5511; Nyree S., 99 AD3d at 562).


CitiMortgage, Inc. v Moran, 2018 NY Slip Op 08435 [1st Dept., 2018]

Plaintiff failed to establish a presumption that it properly served defendant with RPAPL 1304 notice through proof either of actual mailing or of a standard office practice or procedure for proper addressing and mailing (see American Tr. Ins. Co. v Lucas, 111 AD3d 423, 424 [1st Dept 2013]). Its business operations analyst testified at the hearing on this issue that she was familiar with plaintiff’s record keeping practices and procedures. However, she did not testify either that she was familiar with plaintiff’s mailing procedures or that she was personally aware that RPAPL 1304 notices had been mailed to defendant (see HSBC Bank USA v Rice, 155 AD3d 443, 444 [1st Dept 2017]; HSBC Bank USA, N.A. v Gifford, 161 AD3d 618 [1st Dept 2018]). Nor does the fact that some of the RPAPL 1304 notices admitted into evidence at the hearing bear a certified mail number suffice to raise the presumption of proper service (Nationstar Mtge., LLC v Cogen, 159 AD3d 428, 429 [1st Dept 2018]).

Insanity toll: CPLR 208

Matter of Brigade v Olatoye, 2018 NY Slip Op 08437 [1st Dept., 2018]

The medical records submitted on the petition present an issue of fact as to whether petitioner possessed “an over-all ability to function” during the relevant period (see McCarthy v Volkswagen of Am. , 55 NY2d 543, 548 [1982]). Thus, a hearing must be held to determine whether the statute of limitations on this untimely filed proceeding should be tolled for insanity (CPLR 208; see Santana v Union Hosp. of Bronx , 300 AD2d 56, 58 [1st Dept 2002]).


Substitute Expert 3101(d)

Geffner v Mercy Med. Ctr., 2018 NY Slip Op 08280 [2d Dept. 2018]

Furthermore, contrary to the plaintiff’s contention, the Supreme Court did not improvidently exercise its discretion in precluding her from proffering the testimony of a “substitute expert” at trial. Pursuant to CPLR 3101(d)(1)(i), “where a party for good cause shown retains an expert an insufficient period of time before the commencement of trial to give appropriate notice thereof, the party shall not thereupon be precluded from introducing the expert’s testimony at the trial solely on grounds of noncompliance with this paragraph” (emphasis added). “A determination regarding whether to preclude a party from introducing the testimony of an expert witness at trial based on the party’s failure to comply with CPLR 3101(d)(1)(i) is left to the sound discretion of the court” (McGlauflin v Wadhwa, 265 AD2d 534, 534). Here, since the plaintiff offered only a vague excuse for the unavailability of the intended expert, without offering any details as to when the plaintiff learned of that expert’s unavailability, she failed to establish good cause to offer the testimony of the “substitute expert” (see Banister v Marquis, 87 AD3d 1046Caccioppoli v City of New York, 50 AD3d 1079Klatsky v Lewis, 268 AD2d 410, 411). Moreover, the plaintiff had previously been unprepared to proceed with trial due to, inter alia, the unavailability of experts (see Fava v City of New York, 5 AD3d 724, 725).


JP Morgan Chase Bank v Faracco, 2018 NY Slip Op 08286 [2d Dept. 2018]

As the plaintiff correctly contends, the ministerial dismissal of the action was improper. Although the Supreme Court appears to have relied upon CPLR 3216 (b) as authority for its actions, the order dated April 11, 2013, failed to constitute a valid 90-day demand under that statute, since it did not recite that noncompliance with its terms “will serve as a basis for a motion . . . for dismissal . . . for unreasonably neglecting to proceed” (CPLR 3216[b][3]; see Deutsche Bank Natl. Trust Co. v Bastelli, 164 AD3d 748Deutsche Bank Natl. Trust Co. v Cotton, 147 AD3d 1020US Bank N.A. v Saraceno, 147 AD3d 1005). Moreover, the court never directed the parties to show cause as to why the action should not be dismissed, and did not enter a formal order of dismissal on notice to the parties as required by CPLR 3216(a) (see Cadichon v Facelle, 18 NY3d 230US Bank N.A. v Saraceno, 147 AD3d at 1006). Accordingly, the ministerial dismissal, made without notice and without benefit of further judicial review, was erroneous (see Cadichon v Facelle, 18 NY3d at 236). In any event, dismissal was improper because the letter sent by the plaintiff’s counsel to the court, which provided a good faith explanation for the delay in moving for a judgment of foreclosure and sale, adequately and timely complied with the terms of the order dated April 11, 2013, and the plaintiff’s conduct did not prejudice the defendant and did not support any inference of an intent to abandon the action (see US Bank N.A. v Saraceno, 147 AD3d at 1006).


Fling v Integrity Bus. Solutions, Inc.,  2018 NY Slip Op 07691 [1st Dept. 2018]

Order, Supreme Court, Bronx County (Mary Ann Brigantti, J.), entered April 21, 2017, which, to the extent appealed from as limited by the briefs, granted defendants’ motion pursuant to CPLR 3215(c) to dismiss the complaint for failing to move for a default judgment within the one-year deadline, unanimously reversed, on the law, without costs, and the motion denied.

Although plaintiff’s excuse for failing to move for a default judgment within one year of defendants’ default is not entirely compelling, it must, however, be weighed against the merits of plaintiff’s claim and the prejudice to defendants (see LaValle v Astoria Constr. & Paving Corp., 266 AD2d 28 [1st Dept 1999]). Here, plaintiff’s affidavit sets out a meritorious action, and defendant Hutchins’s denials, contained in his own affidavit, merely raise triable issues of fact. Furthermore, defendants have offered no evidence of any prejudice from the delay, and there is strong public policy in favor of deciding cases on the merits (see Nedeltcheva v MTE Transp. Corp., 157 AD3d 423 [1st Dept 2018]).

Compare with the Second Department: BAC Home Loans Servicing, LP v Broskie, 2018 NY Slip Op 08005 [2d Dept. 2018]

Don’t forget to preserve

WebMD LLC v Aid in Recovery, LLC, 2018 NY Slip Op 07677 [1st Dept. 2018]

Plaintiff moved not only for summary judgment on its complaint but also to dismiss the mitigation defense. Defendant failed to oppose that part of plaintiff’s motion; hence, we decline to review the arguments defendant makes about mitigation on appeal (see Callisto Pharm., Inc. v Picker, 74 AD3d 545 [1st Dept 2010]; Lally v New York City Health & Hosps. Corp., 277 AD2d 9 [1st Dept 2000], appeal dismissed 96 NY2d 896 [2001]).

Caminiti v Extell W. 57th St. LLC., 2018 NY Slip Op 07667 [1st Dept. 2018]

Contrary to plaintiff’s assertion, defendants preserved their arguments about triable issues of fact by asserting them in their memorandum of law in opposition to plaintiff’s partial summary judgment motion. However, defendants failed to preserve their argument that even if plaintiff was injured by the ladder, his conduct was the sole proximate cause of his injuries, and we decline to review this fact-sensitive argument in the interest of justice.


Hearsay in opposition
Edwards v Rosario, 2018 NY Slip Op 07684 [1st Dept. 2018]

While the unsworn statement constitutes inadmissible hearsay, it may be considered in opposition to Earlybird’s motion because it is not the only evidence offered by plaintiff (see Erkan v McDonald’s Corp., 146 AD3d 466, 468 [1st Dept 2017).

Declaration against interest

Caminiti v Extell W. 57th St. LLC., 2018 NY Slip Op 07667 [1st Dept. 2018]

The court properly found that plaintiff’s testimony about her now-deceased husband’s statement regarding his accident is admissible as a declaration against interest (see generally Basile v Huntington Util. Fuel Corp., 60 AD2d 616, 617 [2d Dept 1977]; Guide to NY Evid rule 8.11, Statement Against Penal or Pecuniary Interest, Decedent’s statement that he should have known better than to use the ladder as he did, established that he knew his statement was against his interest. Although the statement was uncorroborated, it had sufficient indicia of reliability, in that the experienced, 52-year-old electrician described his accident to his wife alone in an emergency room while awaiting surgery, in the absence of any coercion or attempt to shift blame away from himself (cf. Nucci v Proper, 95 NY2d 597, 602 [2001]). Accordingly, we decline to reach plaintiff’s alternative arguments as to the statement’s admissibility.

CPLR 7511

Matter of NRT N.Y. LLC v Spell, 2018 NY Slip Op 07664 [1st Dept. 2018]

CPLR 7511 provides just four grounds for vacating an arbitration award, including that the arbitrator “exceeded his power” (CPLR 7511[b][1][iii]), which “occurs only where the arbitrator’s award violates a strong public policy, is irrational or clearly exceeds a specifically enumerated limitation on the arbitrator’s power” (Matter of New York City Tr. Auth. v Transport Workers’ Union of Am., Local 100, AFL-CIO, 6 NY3d 332, 336 [2005]). Mere errors of fact or law are insufficient to vacate an arbitral award (Matter of Kowaleski, 16 NY3d 85, 90-91 [2010]). “[C]ourts are obligated to give deference to the decision of the arbitrator, … even if the arbitrator misapplied the substantive law in the area of the contract” (id.).

Here, the arbitrator’s conclusion that a sales commission was not due under the precise terms of the Agreement because the lease was not extended is neither wholly irrational nor contrary to any strong public policy. Accordingly, the motion to vacate should have been denied and the award confirmed (see Ingham v Thompson, 113 AD3d 534 [1st Dept 2014], lv denied 22 NY3d 866 [2014]; CPLR 7511[e]).

Matter of Miller Tabak & Co., LLC v Coppedge, 2018 NY Slip Op 07656 [1st Dept. 2018]

Petitioners waived any claim of arbitrator bias based on one arbitrator’s participation in a previous arbitration, which had been disclosed to the parties, by failing to raise any such claim or objection until the hearing was in progress (see Matter of Atlantic Purch., Inc. v Airport Props. II, LLC, 77 AD3d 824, 825 [2d Dept 2010]). In any event, there is no evidence to support any such claim (id.).

Matter of Progressive Advanced Ins. Co. v New York City Tr. Auth., 2018 NY Slip Op 07432 [2d Dept. 2018]

To be upheld, an award in a compulsory arbitration proceeding such as this one (see Insurance Law § 5105[b]) “must have evidentiary support and cannot be arbitrary and capricious” (Matter of Motor Veh. Acc. Indem. Corp. v Aetna Cas. & Sur. Co., 89 NY2d 214, 223; see Matter of Fiduciary Ins. Co. v American Bankers Ins. Co. of Florida, 132 AD3d 40, 45-46). “Moreover, with respect to determinations of law, the applicable standard in mandatory no-fault arbitrations is whetherany reasonable hypothesis can be found to support the questioned interpretation'” (Matter of Fiduciary Ins. Co. v American Bankers Ins. Co. of Florida, 132 AD3d at 46, quoting Matter of Shand [Aetna Ins. Co.], 74 AD2d 442, 454 [emphasis in original]; see Matter of Furstenberg [Aetna Cas. & Sur. Co.—Allstate Ins. Co.], 49 NY2d 757, 758).

Here, the arbitrator’s determination was supported by a “reasonable hypothesis” and cannot be said to be arbitrary or capricious (Matter of Fiduciary Ins. Co. v American Bankers Ins. Co. of Florida, 132 AD3d at 46; see Matter of Furstenberg [Aetna Cas. & Sur. Co.—Allstate Ins. Co.], 49 NY2d at 758-759).

Matter of Johnson v Riverhead Cent. Sch. Dist., 2018 NY Slip Op 08021 [2d Dept. 2018]

When reviewing compulsory arbitrations in education proceedings such as this, the court should accept the hearing officer’s credibility determinations, even where there is conflicting evidence and room for choice exists (see Matter of Berenhaus v Ward, 70 NY2d 436, 443-444; Matter of Powell v. Board of Educ. of Westbury Union Free School Dist., 91 AD3d 955, 955; Matter of Saunders v Rockland Board of Coop. Educ. Servs., 62 AD3d at 1013).