Category: [App Div 1st Dept]

CPLR R. 5015 Relief from judgment or order
(a) On motion
(1) excusable default…
(2) newly-discovered evidence…
(3) fraud, misrepresentation, or other misconduct of an adverse party
(4) lack of jurisdiction to render the judgment or order
(5) reversal, modification or vacatur of a prior judgment or order upon which it is based

CPLR § 308 Personal service upon a natural person
(2)  by delivering the summons within the state to a person of suitable age and discretion...
(4) where service under paragraphs one and two cannot be made with due diligence, by affixing the summons to the door

CPLR § 317 Defense by person to whom summons not personally delivered

CPLR R. 320 Defendant's appearance
(a) Requirement of appearance

Caba v Rai, 2009 NY Slip Op 05252 (App. Div., 1st, 2009)

CPLR 317 and 5015(a)(1) allow a defendant against whom a default
judgment has been rendered to move to vacate that default. CPLR 317
provides that

"[a] person served with a summons other than by personal delivery
to him or to his agent for service designated under rule 318 . . . who
does not appear may be allowed to defend the action within one year
after he obtains knowledge of entry of the judgment, but in no event
more than five years after such entry, upon a finding of the court that
he did not personally receive notice of the summons in time to defend
and has a meritorious defense."

Thus, this statute is available only to a defendant who (1) was
served by a method other than personal delivery, (2) moves to vacate
the judgment within one year of learning of it (but not more than five
years after entry), and (3) demonstrates a potentially meritorious
defense to the action. By contrast, CPLR 5015(a)(1) is available to any
defendant against whom a default judgment was entered, provided that
the defendant can demonstrate both a reasonable excuse for the default
and a potentially meritorious defense. A defendant seeking relief under
5015(a)(1) must move to vacate the default judgment within one year of
service on defendant of the default judgment with notice of entry. Both
provisions assume personal jurisdiction exists over the defaulting
defendant and provide that party with an opportunity to open the
default and contest the merits of the plaintiff's claim (see Alexander, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C317:1, at 249-250 [main vol]; see also
Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B,
CPLR C5015:6, at 210). If the defaulting defendant asserts that the
court lacked personal jurisdiction over him or her, the defendant
should seek dismissal of the action under CPLR 5015(a)(4) (see Alexander, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C317:1, at 250 [main vol]), a
motion that has no stated time limit and can be made at any time
(Siegel, Practice Commentaries, McKinney's Cons Laws, Book 7B, CPLR
C5015:3, at 205-206 [main vol]).

In moving to vacate the default judgment, defendant argued that
she was entitled to relief under CPLR 317 or 5015(a)(1) and sought to
vacate the judgment and for an extension of time to interpose an
answer; she did not seek relief under 5015(a)(4) or request that the
complaint be dismissed for want of personal jurisdiction. To be sure,
in her notice of cross motion, defendant requested an order "vacating
and setting aside the defendant's [default] pursuant to CPLR 5015
and/or CPLR 317, extending the defendant's time to answer and
compelling plaintiff to accept defendant's answer pursuant to CPLR
2004." Nowhere in her motion papers, however, did defendant suggest
that the action should be dismissed because the court lacked personal
jurisdiction over her. Although defendant did argue that she had not
received the summons and complaint (or the default judgment), that
argument was asserted by defendant in an effort to establish that she
had a reasonable excuse for her default. What the concurring Justice
considers to be part of the "crux" of defendant's motion, "the absence
of any personal jurisdiction," was never stated in the motion.
Accordingly, since defendant sought to vacate the judgment and defend
the action on the merits, Supreme Court erred in ordering a traverse
hearing; defendant charted a specific procedural course that Supreme
Court improperly altered (see Mitchell v New [*3]York Hosp., 61 NY2d 208, 214 [1984]).^[FN1]

With respect to her contention that she was entitled to relief
under CPLR 317, defendant obtained knowledge of the judgment in January
2004 when she received a credit report listing the judgment, and did
not move to vacate the default until August 2007. Thus, that portion of
defendant's cross motion seeking relief under CPLR 317 was untimely.

Regarding that portion of the cross motion that sought relief
under CPLR 5015(a)(1), there is no indication when the default judgment
with notice of entry was served on defendant. Thus, assuming without
deciding that defendant properly could seek relief under 5015(a)(1),^[FN2]
the motion appears timely and plaintiff does not argue to the contrary.
Nonetheless, defendant is not entitled to relief under 5015(a)(1).
Although defendant denied receiving the summons and complaint or any
other papers in this matter until she was served with plaintiff's
motion to compel the sheriff to seize and sell her property, defendant
learned of the judgment in January 2004. She did not move to vacate the
default, however, until August 2007 and only did so in response to
plaintiff's motion to seize and sell her property. Moreover,
plaintiff's counsel [*4]averred that both
defendant and her attorney contacted plaintiff's counsel on May 11,
2005 about vacating the judgment, an averment that is corroborated by
phone message slips generated by plaintiff's counsel's secretary and
which defendant does not dispute. Thus, defendant failed to proffer a
reasonable excuse for her substantial delay in moving to vacate the
judgment (see Bekker v Fleischman, 35 AD3d 334 [2006]; Robinson v 1068 Flatbush Realty, Inc., 10 AD3d 716 [2004]; Duran v Edderson,
259 AD2d 728 [1999]). In light of our conclusion that defendant failed
to proffer a reasonable excuse, we need not determine whether she
offered a potentially meritorious defense to the action.

To read the concurring opinion, click the link for the decision above.

Kalamadeen v Singh, 2009 NY Slip Op 05296 (App. Div., 2nd, 2009)

The plaintiff and the defendant allegedly were involved in an
automobile accident on February 26, 2001. The police accident report
lists two different addresses for the defendant, one from his driver's
license and a different one from his vehicle registration. The
plaintiff commenced this action in February 2004, and contends that he
served the defendant pursuant to CPLR 308(4) at the defendant's address
then on record at the Department of Motor Vehicles (hereinafter the
DMV). This address was different from the two addresses on the police
accident report. The defendant did not appear in the action and a
judgment was entered against him on August 18, 2004, upon his default.

Upon discovering the judgment against him, the defendant moved
to vacate it, contending that at the time service allegedly was made he
did not live at the address where process was affixed and mailed, he
did not receive process, and that the subject accident was the
plaintiff's fault. A hearing to determine the validity of service of
process was ordered. At the hearing, the process server admitted that
on the fourth occasion that he attempted to personally deliver the
summons and complaint to the defendant at the defendant's address then
on record with the DMV, he was told by the owner of the premises that
the defendant had moved from that address several months earlier.
Nevertheless, the process server affixed the summons and complaint to
the door at that address and mailed process to that address, [*2]purportedly
in compliance with CPLR 308(4). The Civil Court of the City of New
York, Queens County, granted the defendant's motion to vacate the
default, and the Appellate Term for the Second, Eleventh, and
Thirteenth Judicial Districts affirmed, with one Justice dissenting. We
granted leave to appeal and now reverse and deny the defendant's motion
to vacate the default judgment.

CPLR 308(4) requires that the summons be affixed to the door of
the defendant's "actual place of business, dwelling place or usual
place of abode." Although the required subsequent mailing to the
defendant's last known residence will suffice for the second element of
service under CPLR 308(4), affixing process to the door of the
defendant's last known residence will not be sufficient to meet the
first element of the statute (see Feinstein v Bergner, 48 NY2d
234). The issue here is whether there is sufficient evidence, including
the defendant's failure to notify the Commissioner of the DMV of his
change of address, as required by Vehicle and Traffic Law § 505(5), to
estop the defendant from obtaining vacatur of the default judgment on
the ground that service of process was not made in strict compliance
with CPLR 308(4) (see Cruz v Narisi, 32 AD3d 981).

To the extent that the defendant's motion to vacate his default
was made pursuant to CPLR 5015(a)(1), based upon excusable default, it
should have been denied, as the defendant's change of address is not a
reasonable excuse because he failed to comply with Vehicle and Traffic
Law § 505(5) (see Candela v Johnson, 48 AD3d 502; Labozzetta v Fabbro, 22 AD3d 644; Traore v Nelson, 277
AD2d 443). Likewise, to the extent that the motion was made pursuant to
CPLR 5015(a)(4), based on lack of personal jurisdiction, it should have
been denied, as the defendant is estopped from challenging the
propriety of service due to his failure to comply with Vehicle and
Traffic Law § 505(5) (see Labozzetta v Fabbro, 22 AD3d 644; Kandov v Gondal, 11 AD3d 516).

A default judgment may be vacated pursuant to CPLR 317 where the
defendant was served by a method other than personal delivery and did
not actually receive notice of the summons in time to defend, provided
that the defendant has a meritorious defense (see Thakurdyal v 341 Scholes St., LLC, 50
AD3d 889). However, "denial of relief under CPLR 317 might be
appropriate where . . . a defendant's failure to personally receive
notice of the summons was a deliberate attempt to avoid such notice" (Eugene Di Lorenzo, Inc. v A. C. Dutton Lbr. Co., 67
NY2d 138, 143). Here, considering that the defendant supplied the
police officer with two different addresses at the time of the
officer's investigation, and that there was yet another address on
record for the defendant at the DMV, his failure to comply with Vehicle
and Traffic Law § 505(5) raised an inference that the defendant
deliberately attempted to avoid notice of the action (see Cruz v Narisi, 32
AD3d 981). The defendant failed to rebut that inference. Accordingly,
the defendant was not entitled to relief under CPLR 317 (see Eugene Di Lorenzo, Inc. v A. C. Dutton Lbr. Co., 67 NY2d 138, 143; Paul Conte Cadillac v C.A.R.S. Purch. Serv., 126 AD2d 621, 622.

That's one harsh inference.

Weiqin Wu v Guo Dong Chen, 2009 NY Slip Op 51142(U) (App. Term, 2nd, 2009)

The decision of a fact-finding court should not be disturbed upon
appeal unless it is obvious that the court's conclusions could not have
been reached under any fair interpretation of the evidence (see Claridge Gardens v Menotti, 160 AD2d 544 [1990]). This standard applies with greater force to judgments rendered in the Small Claims Part of the court (see Williams v Roper,
269 AD2d 125, 126 [2000]). Furthermore, the determination of the trier
of fact as to issues of credibility is given substantial deference as
the court has the opportunity to observe and evaluate the testimony and
demeanor of the witnesses, thereby affording the trial court a better [*2]perspective from which to evaluate the credibility of the witnesses (see Vizzari v State of New York, 184 AD2d 564 [1992]; Kincade v Kincade, 178 AD2d 510, 511 [1991]).

In its decision after trial, the Civil Court explicitly stated
that it credited plaintiff's testimony, but not defendant's. The Civil
Court also implicitly found that plaintiff had established that there
was an agreement between plaintiff and defendant, acting in his
individual capacity, and that defendant had breached that agreement.
That finding is supported by the record and will not be disturbed on
appeal.

The Civil Court properly denied defendant's posttrial motion,
as defendant failed to establish that he had discovered any evidence
that he could not have discovered prior to trial or prior to the time
for making a timely CPLR 4404 motion (CPLR 5015 [a] [2]), or that
plaintiff had made any misrepresentations (CPLR 5015 [a] [3]). We note
that defendant also failed to establish that the agreement was void
pursuant to the statute of frauds (see e.g. Taranto v Fritz, 83 AD2d 864 [1981]; 61 NY Jur 2d, Statute of Frauds § 39).

Accordingly, the Civil Court's judgment and order provided the
parties with substantial justice according to the rules and principles
of substantive law (CCA 1807; see Ross v Friedman, 269 AD2d 584 [2000]; Williams, 269 AD2d at 126), and we affirm.

Saxon Mtge. Servs., Inc. v Bell, 2009 NY Slip Op 05312 (App. Div., 2nd, 2009)

The bold is mine.

CPLR § 2001 Mistakes, omissions, defects & irregularities

CPLR R. 2221 Motion affecting prior order
(d) A motion for leave to reargue

Ayoub v Ayoub, 2009 NY Slip Op 05164 (App. Div., 1st, 2009)

The preliminary conference order indicated that the issue of equitable
distribution was resolved and that all financial and property issues
except for child support were resolved by the parties' prenuptial
agreement. In her motion to modify the preliminary conference order,
plaintiff did not demonstrate good cause (see 22 NYCRR
202.16[f][3]) to raise the issue of equitable distribution of the
marital residence. Indeed, contrary to her contention, the prenuptial
agreement is clear that the only property subject to equitable
distribution is that titled in joint names, of which there is none.
While the agreement contains a separate section dealing with a marital
residence, the plain language of paragraph 4 of that section provides
for equitable distribution only if "the Marital Residence is purchased
as Jointly Owned Property."

Nor is relief available under CPLR 2001, since the waiver of
the issue of equitable distribution in the preliminary conference order
was not simply a slight mistake (see People ex rel. Di Leo v Edwards,
247 App Div 331 [1936]). Similarly, no relief is available under CPLR
2221. In her motion papers, plaintiff did not even assert that the
preliminary conference order reflected a misapprehension of law or
facts. Furthermore, the court correctly found that plaintiff's hiring
of new counsel did not present a new fact permitting her to revisit the
issues resolved in the preliminary conference order

Caraballo v Kim, 2009 NY Slip Op 05279 (App. Div., 2nd, 2009)

The medical report of the injured plaintiff's treating chiropractor,
Dr. Alan C. Berger, dated May 8, 2006, did not constitute evidence
competent to oppose the defendants' motion because it was unaffirmed (see Grasso v Angerami, 79 NY2d 813; Niles v Lam Pakie Ho, 61 AD3d 657; Uribe-Zapata v Capallan, 54 AD3d 936; Patterson v NY Alarm Response Corp., 45 AD3d 656; Verette v Zia, 44 AD3d 747; Nociforo v Penna, 42 AD3d 514; Pagano v Kingsbury, 182 AD2d 268).

…

The affirmation of Dr. Stuart I. Springer, the injured
plaintiff's treating physician, also failed to raise a triable issue of
fact…

The affirmed magnetic resonance imaging reports of Dr. Mark
Shapiro and Dr. Marc Liebeskind merely revealed the existence of disc
bulges at L3-4 and L4-5, a disc herniation at L5-S1, possible tears in
the posterior horns of the medial menisci of the right and left knees,
and a possible tear (rupture) of the anterior cruciate ligament in the
left knee. This Court has held that a herniated or bulging disc, or
even a tear in a tendon, is not evidence of a serious injury in the
absence of objective evidence of the extent of the alleged physical
limitations resulting from the injury and its duration (see Magid v Lincoln Servs. Corp., 60 AD3d 1008; Washington v Mendoza, 57 AD3d 972; Cornelius v Cintas Corp., 50 AD3d 1085, 1087; Shvartsman v Vildman, 47 AD3d 700; Tobias v Chupenko, 41 AD3d 583).
A tendon is defined as "[t]he cord of tough connective tissue which
forms the end of a muscle and which connects the muscle to the bone"
(5-T-TG Attorneys' Dictionary of Medicine [2005 ed] at 974). Tendons
"are bands of fibrous connective tissue" (5-15A Attorneys' Textbook of
Medicine [3d ed] at 15A.10). A ligament is defined as "[a] band of
tough but flexible tissue which serves to connect bones (as in the
formation of a joint), to hold organs in place, etc." (3-L Attorneys'
Dictionary of Medicine [2005 ed] at 2302). Ligaments, like tendons, are
"bands of tough, fibrous connective tissue" (4-13 Attorneys' Textbook
of Medicine [3d ed] at 13.10). Thus, injuries involving tendons and
ligaments must be treated similarly under Insurance Law § 5102(d).
Evidence of the extent and duration of any alleged limitation arising
from injury to the plaintiff's discs or ligaments was clearly lacking
here. The deposition testimony of the injured plaintiff was
insufficient to supply such evidence (see Washington v Mendoza, 57 AD3d 972).

…

The Supreme Court providently exercised its discretion in
denying the plaintiffs' motion for leave to renew their opposition to
the defendants' motion for summary judgment (see Ramirez v Khan, 60 AD3d 748; Renna v Gullo, 19 AD3d 472).
A motion for leave to renew "shall be based upon new facts not offered
on the prior motion that would change the prior determination" (CPLR
2221[e][2]) and "shall contain reasonable justification for the failure
to present such facts on the prior motion" (CPLR 2221[e][3]; see Ramirez v Khan, 60 AD3d 748; Dinten-Quiros v Brown, 49 AD3d 588; Madison v Tahir, 45 AD3d 744).
While it may be within the court's discretion to grant leave to renew
upon facts known to the moving party at the time of the original motion
(see Ramirez v Khan, 60 AD3d 748; J.D. Structures v Waldbaum, 282 AD2d 434; Cronwall Equities v International Links Dev. Corp.,
255 AD2d 354), a motion for leave to renew " is not a second chance
freely given to parties who have not exercised due diligence in making
their first factual presentation'" (Renna v Gullo, 19 AD3d at 472, quoting Rubinstein v Goldman, 225 AD2d 328, 329; see Ramirez v Khan, 60 AD3d 748; O'Dell v Caswell, 12 AD3d 492; Hart v City of New York, 5 [*3]AD3d 438; Carota v Wu,
284 AD2d 614). In this case, the plaintiffs failed to provide
reasonable justification for the failure to include the findings in the
supplemental affidavit of Dr. Berger on the original motion (see Ramirez v Khan, 60 AD3d 748; Renna v Gullo, 19 AD3d 472).

The bold is mine.