[App Div 2d Dept]

Personal Jurisdiction waived and waited too long to bring up 317

JPMorgan Chase Bank, N.A. v Soussis, 2018 NY Slip Op 07294 [2d Dept. 2018]

The defendant waived any claim that the Supreme Court lacked personal jurisdiction over her. The defendant appeared in the action by serving a notice of appearance, and neither she nor her attorney moved to dismiss the complaint on the ground of lack of personal jurisdiction at that time or asserted lack of personal jurisdiction in a responsive pleading (see CPLR 320[a], [b]; U.S. Bank N.A. v Pepe, 161 AD3d 811, 812-813; Wilmington Sav. Fund Socy., FSB v Zimmerman, 157 AD3d 846, 847; American Home Mtge. Servicing, Inc. v Arklis, 150 AD3d 1180, 1181; National Loan Invs., L.P. v Piscitello, 21 AD3d 537, 538).

The defendant’s contention that she was entitled to relief pursuant to CPLR 317 is improperly raised for the first time on appeal (see Deutsche Bank Natl. Trust Co. v Saketos, 158 AD3d 610, 612).

CPLR 3215 and 317 standard

Kircher v William Penn Life Ins. Co. of N.Y., 2018 NY Slip Op 07295 [2d Dept. 2018]

“On a motion for leave to enter judgment against a defendant for the failure to answer or appear, a plaintiff must submit proof of service of the summons and complaint, proof of the facts constituting its claim, and proof of the defendant’s default” (Triangle Props. # 2, LLC v Narang, 73 AD3d 1030, 1032; see CPLR 3215[f]; Mercury Cas. Co. v Surgical Ctr. at Milburn, LLC, 65 AD3d 1102). Here, the plaintiff submitted proof that it properly effected service of process upon the defendant pursuant to Insurance Law § 1212 by delivering a copy of the summons and complaint to the Superintendent of Insurance (see Insurance Law § 1212[a]). The plaintiff also submitted proof of the facts constituting the claim and proof of the defendant’s default in appearing or answering the complaint. Thus, the plaintiff established her entitlement to enter a default judgment against the defendant (see Seidler v Knopf, 153 AD3d 874, 875; Cruz v Keter Residence, LLC, 115 AD3d 700).

However, in opposition, the defendant established its entitlement to relief from its default under CPLR 317. “Pursuant to CPLR 317, a defaulting defendant who was served with a summons other than by personal delivery’ may be permitted to defend the action upon a finding by the court that the defendant did not personally receive notice of the summons in time to defend and has a potentially meritorious defense” (Booso v Tausik Bros., LLC, 148 AD3d 1108, 1108, quoting CPLR 317; see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141; Gershman v Midtown Moving & Stor., Inc., 123 AD3d 974, 975). There is no necessity for a defendant moving pursuant to CPLR 317 to show a reasonable excuse for its delay (see Eugene Di Lorenzo, Inc. v A. C. Dutton Lbr. Co., 67 NY2d at 141; Booso v Tausik Bros., LLC, 148 AD3d at 1108; see also Samet v Bedford Flushing Holding Corp., 299 AD2d 404, 405). Here, the defendant met its burden of showing that it did not receive actual notice of the summons, which was delivered to the Superintendent of Insurance, in time to defend itself against this action (see Gershman v Midtown Moving & Stor., Inc., 123 AD3d at 975; Ferguson v Shu Ham Lam, 59 AD3d 387, 388; Hospital for Joint Diseases v Lincoln Gen. Ins. Co., 55 AD3d 543, 544). Moreover, there is no basis in the record upon which to conclude that the defendant was deliberately attempting to avoid service of process (see Gershman v Midtown Moving & Stor., Inc., 123 AD3d at 975; Samet v Bedford Flushing Holding Corp., 299 AD2d at 405). Furthermore, the defendant met its burden of demonstrating the existence of a potentially meritorious defense.

3015(e)

Kristeel, Inc. v Seaview Dev. Corp., 2018 NY Slip Op 07296 [2d Dept. 2018]

“Pursuant to CPLR 3015(e), a complaint that seeks to recover damages for breach of a home improvement contract or to recover in quantum meruit for home improvement services is subject to dismissal under CPLR 3211(a)(7) if it does not allege compliance with the licensing requirement” (ENKO Constr. Corp. v Aronshtein, 89 AD3d 676, 677; see Holistic Homes, LLC v Greenfield, 138 AD3d 689, 690; Westchester Stone, Sand & Gravel v Marcella, 262 AD2d 403, 404). Moreover, a home improvement contractor who fails to possess and plead possession of a valid license as required by relevant laws may not commence an action to foreclose a mechanic’s lien (see Nicotra v Manger, 64 AD3d 547).

Conditional Order 3126

McIntosh v New York City Partnership Dev. Fund Co., Inc., 2018 NY Slip Op 07303 [2d Dept. 2018]

Contrary to the plaintiffs’ contention, under the language of the conditional order of preclusion, the plaintiffs’ failure to respond to outstanding discovery demands from even a single other party would result in the plaintiffs being precluded from presenting any evidence of damages at trial. The plaintiffs did not meet their burden to avoid the adverse effect of the conditional order of preclusion, as they did not “demonstrate a reasonable excuse for the failure to comply with the order and the existence of a potentially meritorious” cause of action (Naiman v Fair Trade Acquisition Corp., 152 AD3d at 780).

Successive SJ

Rogers v DeGennaro, 2018 NY Slip Op 07343 [2d Dept. 2018]

“Generally, successive motions for summary judgment should not be entertained, absent a showing of newly discovered evidence or other sufficient cause” (Tingling v C.I.N.H.R., Inc., 120 AD3d 570, 570; see Vinar v Litman, 110 AD3d 867, 868; Blanche, Verte & Blanche, Ltd. v Joseph Mauro & Sons, 91 AD3d 693, 693; Soto v City of New York, 37 AD3d 589, 589). Here, Rogers made neither showing. Therefore, we agree with the Supreme Court’s denial of that branch of Rogers’s motion which was for summary judgment on the issue of liability.

Settlement and Cross-motion timing

Zisholtz & Zisholtz, LLP v Mandel, 2018 NY Slip Op 07349 [2d Dept. 2018]

Contrary to the plaintiff’s contention, it failed to submit any evidence that the purported open court settlement agreement of January 28, 2016, constituted a valid and binding settlement agreement pursuant to CPLR 2104 (see Diarassouba v Urban, 71 AD3d 51, 54; Maldonado v Novartis Pharms. Corp., 40 AD3d 940). Rather, the plaintiff submitted only the January 29 stipulation, which was not executed by the plaintiff. Therefore, the January 29 stipulation did not constitute an enforceable settlement agreement binding upon the plaintiff and the appellant (see CPLR 2104). In the absence of an enforceable settlement agreement, the Supreme Court should have denied the plaintiff’s motion.

We also disagree with the Supreme Court’s determination denying the cross motion as untimely. The plaintiff served its motion by regular mail on March 17, 2016, with a return date of April 6, 2016. In order to make effective its demand for seven days’ notice of answering papers or a cross motion (see CPLR 2214[b]; CPLR 2215), the plaintiff was required to have mailed its motion papers at least 21 days prior to the return date (see CPLR 2103[b][2]; CPLR 2214[b]; Matter of Hartford Fire Ins. Co. v Fell, 53 AD3d 760, 761-762). The plaintiff mailed its motion papers only 20 days before the return date. Thus, the cross motion, which was served six days before the return date, was timely (see CPLR 2215).

Demetriou v Wolfer, 2018 NY Slip Op 07288 [2d Dept. 2018]

In July 2012, the plaintiff commenced this action to recover damages for dental malpractice. On Friday, October 30, 2015, the plaintiff, by text message, directed her former attorney to discontinue the action. On that date, the former attorney and defense counsel executed a stipulation of discontinuance (see CPLR 3217[a][2]). On Saturday, October 31, 2015, the plaintiff, by text message, directed her former attorney to, among other things, “not dismiss my case under any circumstances; please retract . . . instructions to discontinue.” Within 30 minutes of receiving that message, the plaintiff’s former counsel advised the plaintiff that the case had already been discontinued. The stipulation of discontinuance was then filed on Monday, November 2, 2015. The plaintiff moved, inter alia, to vacate the stipulation of discontinuance. The Supreme Court denied the motion, and the plaintiff appeals.

We agree with the Supreme Court’s determination to deny the plaintiff’s motion, inter alia, to vacate the stipulation of discontinuance. CPLR 2104 provides that, “[a]n agreement between parties or their attorneys relating to any matter in an action, other than one between counsel in open court, is not binding upon a party unless it is in a writing subscribed by him or his attorney or reduced to the form of an order and entered.” Here, there is no dispute that on October 30, 2015, the plaintiff’s former counsel had actual authority from his client to enter into the stipulation discontinuing the action on her behalf (see Hallock v State of New York, 64 NY2d 224, 230; Weil, Gotshal & Manges LLP v Fashion Boutique of Short Hills, 56 AD3d 334, 335). Contrary to the plaintiff’s contention, the stipulation of discontinuance clearly evidenced the plaintiff’s intent to discontinue the action as of October 30, 2015, notwithstanding that she changed her mind prior to the filing of the stipulation on November 2, 2015 (see Lim v Choices, Inc., 60 AD3d 739, 740). Pursuant to CPLR 2104, the stipulation must be regarded as a valid, binding contract (see Pile v Grant, 41 AD3d 810), even though it did not effect a discontinuance until it was filed with the clerk of the court on November 2, 2015 (CPLR 3217[a][2]). In seeking to vacate the stipulation, the plaintiff failed to meet her burden to establish good cause sufficient to invalidate a contract, such as that the stipulation was the result of duress, fraud, mistake, or overreaching, or that the terms of the stipulation were unconscionable (see Chae Shin Oh v Jeannot, 160 AD3d 701; Pieter v Polin, 148 AD3d 1191).

The bold is mine.

Referee’s findings

33-37 Farrington, LLC v Global Universal Group, Ltd., 2018 NY Slip Op 07081 [2d Dept. 2018]

“The report of a referee should be confirmed whenever the findings are substantially supported by the record, and the referee has clearly defined the issues and resolved matters of credibility” (Flagstar Bank, F.S.B. v Konig, 153 AD3d 790, 790-791; see Thomas v Thomas, 21 AD3d 949, 949). Here, the Referee’s findings with regard to the amount due under the note and mortgage are supported by the record. Any error in the admission of hearsay testimony at the hearing was harmless (see CPLR 2002; Barracato v Camp Bauman Buses, 217 AD2d 677, 678). Accordingly, we agree with the Supreme Court’s determination granting SDF’s motion to confirm the Referee’s report.

Excel Capital Group Corp. v 225 Ross St. Realty, Inc.,
2018 NY Slip Op 07291 [2d Dept. 2018]

The Supreme Court, as the ultimate arbiter of the dispute with the power to reject the referee’s report and make new findings (seeCPLR 4403), considered the defendant’s evidence and correctly concluded that the defendant’s contention was without merit (see Deutsche Bank Natl. Trust Co. v Zlotoff, 77 AD3d 702; Adelman v Fremd, 234 AD2d 488; Stein v American Mtge. Banking, 216 AD2d 458; Shultis v Woodstock Land Dev. Assoc., 195 AD2d 677; cf. Aurora Loan Servs., LLC v Taylor, 114 AD3d at 629-630; Sears v First Pioneer Farm Credit, ACA, 46 AD3d 1282).

Mailing

Deutsche Bank Natl. Trust Co. v Heitner, 2018 NY Slip Op 07090 [2d Dept. 2018]

In opposition, the plaintiff submitted only a copy of the required notice, but failed to submit any evidence that the notice was mailed in the manner required by the statute. Specifically, the plaintiff did not submit “an affidavit of service, . . . proof of mailing by the post office, evincing [*2]that it properly served the defendant pursuant to RPAPL 1304 [by registered or certified mail and also by first-class mail to his last known address]” (CitiMortgage, Inc. v Pappas, 147 AD3d at 901 [citations omitted]), 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” (Wells Fargo Bank, NA v Mandrin, 160 AD3d 1014). Thus, the plaintiff failed to demonstrate that it strictly complied with the requirements of RPAPL 1304, notwithstanding the label on the notice stating “Certified Article Number” and “Senders Record” and listing a 20-digit number on the top of the letter (see Bank of N.Y. Mellon v Zavolunov, 157 AD3d 754, 756; Citibank, N.A. v Wood, 150 AD3d 813, 814).

Venue CPLR 510, 511

Sowell v Gansburg, 2018 NY Slip Op 06958 [2d Dept. 2018]

The defendant moved pursuant to CPLR 510(2) and 511(a) to change the venue of the action from Kings County to New York County on the ground that an impartial trial could not be obtained in Kings County. The Supreme Court granted the defendant’s motion. The plaintiff appeals.

To obtain a change of venue pursuant to CPLR 510(2), a movant is required to produce admissible factual evidence demonstrating a strong possibility that an impartial trial cannot be obtained in the county where venue was properly placed (see Rutherford v Patel, 129 AD3d 933, 933-934; Pruitt v Patsalos, 96 AD3d 924; Matter of Michiel, 48 AD3d 687, 687). A motion to change venue pursuant to CPLR 510(2) is addressed to the sound discretion of the trial court (see Milazzo v Long Is. Light. Co., 106 AD2d 495, 496), and its determination will not be disturbed absent an improvident exercise of discretion (see Lisa v Parikh, 131 AD3d 1135, 1136).

Under the particular circumstances of this case, the Supreme Court providently exercised its discretion in granting the defendant’s motion pursuant to CPLR 510(2) to change the venue of this action from Kings County to New York County in order to avoid any appearance of impropriety (see Lisa v Parikh, 131 AD3d at 1136; Rutherford v Patel, 129 AD3d at 934; Pruitt v Patsalos, 96 AD3d 924).

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).