Category: [App Div 2d Dept]

3216

Deutsche Bank Natl. Trust Co. v Bastelli, 2018 NY Slip Op 05822 [2d Dept 2018]

"CPLR 3216 permits a court, on its own initiative, to dismiss an action for want of prosecution where certain conditions precedent have been complied with" (BankUnited v Kheyfets, 150 AD3d 948, 949; see CPLR 3216[b][3]). As relevant here, an action cannot be dismissed pursuant to CPLR 3216(a) "unless a written demand is served upon the party against whom such relief is sought' in accordance with the statutory requirements, along with a statement that the default by the party upon whom such notice is served in complying with such demand within said ninety day period will serve as a basis for a motion by the party serving said demand for dismissal as against him for unreasonably neglecting to proceed'" (Cadichon v Facelle, 18 NY3d 230, 235, quoting CPLR 3216[b][3]; see Deutsche Bank Natl. Trust Co. v Cotton, 147 AD3d 1020, 1021). While a conditional order of dismissal may have "the same effect as a valid 90-day notice pursuant to CPLR 3216" (Byers v Winthrop Univ. Hosp., 100 AD3d 817, 818; see Griffith v Wray, 109 AD3d 512, 513; Stallone v Richard, 95 AD3d 875, 876), the conditional order here "was defective in that it failed to state that the plaintiff's failure to comply with the notice will serve as a basis for a motion' by the court to dismiss the action for failure to prosecute" (Deutsche Bank Natl. Trust Co. v Cotton, 147 AD3d at 1021, quoting CPLR 3216[b][3] [emphasis added]). Moreover, the conditional order failed to satisfy the notice requirement on the additional ground that there was "no indication that the plaintiff's counsel was present at the status conference at which the court issued the conditional order of dismissal," nor was there "evidence that the order was ever properly served upon the plaintiff" (BankUnited v Kheyfets, 150 AD3d at 949). In the absence of proper notice, "the court was without power to dismiss the action for the plaintiff's failure to comply with the conditional order of dismissal" (id.). Lastly, the Supreme Court erred in administratively dismissing the action without further notice to the parties and without benefit of further judicial review (see Cadichon v Facelle, 18 NY3d at 235-236; Deutsche Bank Natl. Trust Co. v Cotton, 147 AD3d at 1021; US Bank N.A. v Saraceno, 147 AD3d 1005, 1006; Armstrong v B.R. Fries & Assoc., Inc., 95 AD3d 697, 698). Accordingly, the Supreme Court should have granted the plaintiff's motion to vacate the order dated October 3, 2013, and to restore the action to the active calendar.

Appellate procedure and such

Budoff v City of New York, 2018 NY Slip Op 05817 [2d Dept 2018]

As a general rule, we do not consider any issue raised on a subsequent appeal that could have been raised in an earlier appeal which was dismissed for lack of prosecution, although this Court has the inherent jurisdiction to do so (see Faricelli v TSS Seedman's, 94 NY2d 772, 774; Rubeo v National Grange Mut. Ins. Co., 93 NY2d 750; Bray v Cox, 38 NY2d 350; Green Tree Credit, LLC v Jelks, 120 AD3d 1299, 1300). Here, the plaintiff appealed from the order dated September 24, 2014, which granted the defendants' motions for summary judgment and directed dismissal of the complaint. In March 2016, this Court dismissed the plaintiff's appeal from that order for failure to perfect in accordance with the rules of this Court (see 22 NYCRR 670.8[h]). In the order appealed from, the Supreme Court, in effect, granted the plaintiff's motion to reargue his opposition to the defendants' motions for summary judgment and, upon reargument, adhered to its original determination in the order appealed from dated August 20, 2015. While the better practice would have been for the plaintiff to withdraw the prior appeal, rather than abandon it, we nevertheless exercise our discretion to review the issues raised on the appeal from the order made upon reargument (see Ismail v Burnbury, 118 AD3d 756, 757; Franco v Breceus, 70 AD3d 767, 768; Neuburger v Sidoruk, 60 AD3d 650, 652).

Note: "As the Supreme Court reviewed the merits of the plaintiff's contentions raised in his motion for leave to reargue, "the court, in effect, granted reargument and adhered to its original determination" (NYCTL 1998-2 Trust v Michael Holdings, Inc., 77 AD3d 805, 806). Accordingly, contrary to the City's contention, the order dated August 20, 2015, "made, in effect, upon reargument, is appealable" (id. at 806; see Matter of Mattie M. v Administration for Children's Servs., 48 AD3d 392, 393; Rivera v Glen Oaks Vil. Owners, Inc., 29 AD3d 560, 561)." 

 

And, in the First Department: Oparaji v Yablon, 159 AD3d 539 [1st Dept. 2018] ("Since the court addressed the merits of plaintiffs' motion for reargument, it effectively granted the motion, and we treat the order that decided the motion as appealable (see Jones v City of New York, 146 AD3d 690 [1st Dept 2017]).")

 

U.S. Bank N.A. v Quinones, 2018 NY Slip Op 05955 [2d Dept 2018]

The defendant's appeal from so much of the first order as denied his motion to stay further proceedings pending the determination of his prior appeal must be dismissed. The only basis on which the defendant requested the stay was to await the determination of his appeal from the order dated March 12, 2015. That appeal has since been dismissed based on the defendant's failure to prosecute. Therefore, the relief requested by the defendant is no longer available, and the reversal of so much of the first order as denied the defendant's motion for a stay pending the determination of the appeal would not affect the defendant's rights (see Taub v Schon, 148 AD3d 1202, 1203; DeFilippo v Miller, 106 AD3d 770, 770-771). Moreover, the defendant's arguments regarding why the Supreme Court should have vacated his default in answering or appearing in the action could have been raised on his appeal from the order dated March 12, 2015. The dismissal of that appeal for failure to prosecute constitutes an adjudication on the merits of all claims that could have been raised on that appeal (see NP Funding II v Newsome, 258 AD2d 445, 446, citing Bray v Cox, 38 NY2d 350, 355), and we decline to exercise our discretion to consider such issues (see Berezyuk v City of New York, 102 AD3d 901, 902).

The bold is mine.

CPLR 317

Stevens v Stepanski, 2018 NY Slip Op 05954 [2d Dept 2018]

CPLR 317 permits a defendant who has been served with a summons other than by personal delivery 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 (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141; Xiao Lou Li v China Cheung Gee Realty, LLC, 139 AD3d 724, 724-725). "[S]ervice on a corporation through delivery of process to the Secretary of State is not personal delivery' to the corporation" (Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d at 142). "The mere denial of receipt of the summons and complaint is not sufficient to establish lack of actual notice of the action in time to defend for the purpose of CPLR 317" (Goldfarb v Zhukov, 145 AD3d 757, 758; see Ultimate One Distrib. Corp. v 2900 Stillwell Ave., LLC, 140 AD3d 1054, 1055). Whether to grant relief pursuant to CPLR 317 is discretionary (see Goldfarb v Zhukov, 145 AD3d at 759), and relief may be denied "where, for example, a defendant's failure to personally receive notice of the summons was a result of a deliberate attempt to avoid such notice" (Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d at 143).

Here, Greenville did not contend that the address it kept on file with the Secretary of State was incorrect, and its shareholders effectively claimed ignorance as to why the summons and complaint were "unclaimed," without offering any details as to how Greenville ordinarily received mail at that address. Further, Greenville offered no explanation as to why it did not receive any of the other correspondence from the plaintiff, all of which were sent to the same address. Under these circumstances, Greenville's conclusory and unsubstantiated denial of service of the certified mailing card and other correspondence from the plaintiff was insufficient to establish that it did not have actual notice of the action in time to defend (see Xiao Lou Li v China Cheung Gee Realty, LLC, 139 AD3d at 725-726; see also Moran v Grand Slam Ventures, LLC, 160 AD3d 944). Although the return of a summons and complaint to the Secretary of State as "unclaimed" may be sufficient to warrant a hearing on the issue of whether a defendant had notice of the action in time to defend (see Drillman v Marsam Realty 13th Ave., LLC, 129 AD3d 903, 903-904), here, Greenville's failure to offer any details as to why it did not receive the certified mailing card or any of the other correspondence from the plaintiff during the pendency of the action was insufficient to raise a triable issue of fact warranting a hearing (see Baez v Ende Realty Corp., 78 AD3d 576, 576; see also Clover M. Barrett, P.C. v Gordon, 90 AD3d 973, 973-974). In light of the foregoing, it is unnecessary to determine whether Greenville demonstrated the existence of a potentially meritorious defense (see Xiao Lou Li v China Cheung Gee Realty, LLC, 139 AD3d at 726).

CPLR 2001, the fixer

Lipinsky v Yarusso, 2018 NY Slip Op 05925 [2d Dept 2018]

 Contrary to the defendant's contention, Walters' affidavit was admissible, notwithstanding that it was subscribed and sworn to out of state and not accompanied by a certificate of conformity as required by CPLR 2309(c), as such a defect is not fatal, and no substantial right of the defendant was prejudiced by disregarding the defect (see CPLR 2001; Voskoboinyk v Trebisovsky, 154 AD3d 997, 998; Bank of N.Y. Mellon v Vytalingam, 144 AD3d 1070, 1071). The defendant's contention that Walters' affidavit should not be considered because Walters had not previously been disclosed as a witness, raised for the first time on appeal, is not properly before this Court (see Warren v Carreras, 133 AD3d 592, 594).

Why bother having a rule (2309(c)), if it does not matter if it is followed?

General Obligations Law § 17-101 [SOL]

Karpa Realty Group, LLC v Deutsche Bank Natl. Trust Co., 2018 NY Slip Op 05921 [2d Dept 2018]

"General Obligations Law § 17-101 effectively revives a time-barred claim when the debtor has signed a writing which validly acknowledges the debt" (Lynford v Williams, 34 AD3d 761, 762; see Mosab Constr. Corp. v Prospect Park Yeshiva, Inc., 124 AD3d 732, 733). To constitute a valid acknowledgment, a "writing must be signed and recognize an existing debt and must contain nothing inconsistent with an intention on the part of the debtor to pay it" (Sichol v Crocker, 177 AD2d 842, 843 [internal quotation marks omitted]; see U.S. Bank N.A. v Martin, 144 AD3d at 892-893; Mosab Constr. Corp. v Prospect Park Yeshiva, Inc., 124 AD3d at 733). Contrary to Deutsche Bank's contention, a letter written by Aird that accompanied his second short sale package submitted to Deutsche Bank's loan servicer did not constitute an unqualified acknowledgment of the debt or manifest a promise to repay the debt sufficient to reset the running of the statute of limitations (see U.S. Bank, N.A. v Kess, 159 AD3d 767, 768-769; U.S. Bank N.A. v Martin, 144 AD3d at 892-893; Hakim v Peckel Family Ltd. Partnership, 280 AD2d 645; Sichol v Crocker, 177 AD2d at 843).

bold is mine.

Replies

Gelaj v Gelaj, 2018 NY Slip Op 05917 [2d Dept 2018]

The purpose of a reply affidavit or affirmation is to respond to arguments made in opposition to the movant's motion and not to introduce new arguments or grounds in support of the relief sought (see Matter of Moorman v Meadow Park Rehabilitation & Health Care Ctr., LLC, 57 AD3d 788; Matter of Harleysville Ins. Co. v Rosario, 17 AD3d 677; Matter of TIG Ins. Co. v Pellegrini, 258 AD2d 658). There are exceptions to this rule, including when evidence is submitted in response to allegations made for the first time in opposition, or when the other party is given an opportunity to respond to the reply papers (see Gottlieb v Wynne, 159 AD3d 799; Central Mtge. Co. v Jahnsen, 150 AD3d 661). Neither of those exceptions applies here. The time for the defendant to produce the letters allegedly from the plaintiff transferring his interest in the shares would have been in support of her cross motion, inter alia, for summary judgment declaring that she is the sole owner of the shares. There was no new allegation in the plaintiff's opposition to the cross motion that would have warranted the defendant's submission of the letters in reply. Further, the plaintiff was not given an opportunity to respond by way of surreply or oral argument. An unrecorded, in-chambers discussion of the cross motion cannot be deemed an opportunity to respond, especially in light of the plaintiff's claim on appeal that the letters are forgeries. Moreover, the defendant did not plead a demand for a declaratory judgment in a counterclaim (see Matter of Nozzleman 60, LLC v Village Bd. of Vil. of Cold Spring, 34 AD3d 680; Martinez v Dushko, 7 AD3d 584). The defendant also did not assert a claim to sole ownership of the shares in her pleading. Accordingly, the Supreme Court should not have, in effect, granted that branch of the defendant's cross motion which was for summary judgment declaring that she is the sole owner of the shares.

The bold is mine

Compare with

Cuevas v Baruti Constr. Corp., 2018 NY Slip Op 05905 [1st Dept 2018]

The motion court properly accepted Veras's second, clarifying affidavit in plaintiff's submission on reply. The second affidavit merely amplified the factual recitation set forth in Veras's initial affidavit, which had been procured and drafted by the defense and omitted the pertinent detail that the workers were actually in the process of lowering the machine from the roof, and not engaged in pushing it across the flat roof, when the accident occurred. Veras's second affidavit was a proper response to defendant's submission, and did not contradict the statement in his first affidavit (see Cox v McCormick Farms, 144 AD3d 1533 [4th Dept 2016] [where question was not directly asked in deposition, proper to consider subsequent affidavit providing greater specificity without directly contradicting deposition testimony]; Severino v 157 Broadway Assoc., LLC, 84 AD3d 505 [1st Dept 2011] [same]). Nor could Veras's second affidavit be rejected as raising a feigned issue of fact (see Sutin v Pawlus, 105 AD3d 1293 [3d Dept 2013]; Kalt v Ritman, 21 AD3d 321 [1st Dept 2005]), especially since it comported with all of the other eyewitness testimony in the case, as well as with Veras's own early unsworn statement, and explained the ambiguity arising from the omission of additional details in his first affidavit.

 

Subpoenas and trial defaults and CPLR 5511

Bottini v Bottini, 2018 NY Slip Op 05665 [2d Dept 2018]

The Supreme Court properly determined that the plaintiff's conduct at trial was a knowing and willing default, as she attended the first day of trial and then voluntarily chose not to attend the remainder of the trial (see Sarlo-Pinzur v Pinzur, 59 AD3d 607, 607; Matter of Anita L. v Damon N., 54 AD3d 630, 631). Although no appeal lies from a judgment entered on the default of the appealing party (see CPLR 5511), an appeal from such a judgment brings up for review "those matters which were the subject of contest before the Supreme Court" (Sarlo-Pinzur v Pinzur, 59 AD3d at 607-608 [internal quotations omitted]; see James v Powell, 19 NY2d 249, 256 n 3; Alam v Alam, 123 AD3d 1066, 1067; Tun v Aw, 10 AD3d 651, 652). Here, contrary to the defendant's contention, the order dated March 28, 2016, in which the court granted the defendant's motion to quash to the extent of declining to so-order the 24 proposed subpoenas, is brought up for review.

As a pro se litigant, the plaintiff was unable to issue subpoenas on her own, and her subpoenas need to be so-ordered by the Supreme Court (see CPLR 2302; Hamilton v Touseull, 48 AD3d 520, 521). A subpoena duces tecum may not be used for the purposes of general discovery (see Matter of Terry D., 81 NY2d 1042, 1044; Wahab v Agris & Brenner, LLC, 106 AD3d 993, 994; Matter of Board of Educ. of City of N.Y. v Hankins, 294 AD2d 360, 360). Rather, the purpose of a subpoena duces tecum is " to compel the production of specific documents that are relevant and material to facts at issue in a pending judicial proceeding'" (Matter of Terry D., 81 NY2d at 1044, quoting Matter of Constantine v Leto, 157 AD2d 376, 378). Here, the plaintiff submitted the 24 proposed subpoenas to the court in February 2016, which was several months after the completion date for post-note of issue discovery. In addition to being overly broad, the subpoenas improperly sought the production of documents for the time period from 2007 through 2011, which was in violation of the court's prior orders. Under these circumstances, the court providently exercised its discretion by declining to so-order the 24 proposed subpoenas, thus effectively denying the plaintiff's ability to issue the subpoenas (see Wahab v Agris & Brenner, LLC, 106 AD3d at 994; Matter of Board of Educ. of City of N.Y. v Hankins, 294 AD2d at 360).

Sua Sponte SOL

352 Legion Funding Assoc. v 348 Riverdale, LLC, 2018 NY Slip Op 05662 [2d Dept 2018]

We agree with the plaintiff that the Supreme Court erred in sua sponte raising the affirmative defense of the statute of limitations and directing the dismissal of the complaint on that ground. The statute of limitations is an affirmative defense which is waived by a party unless it is raised either in a responsive pleading, or by motion prior to the submission of a responsive pleading (see CPLR 3211[e]; Deutsche Bank Trust Co. Ams. v Cox, 110 AD3d 760, 762; Aurora Loan Servs. LLC v Dimura, 104 AD3d 796, 797; Horst v Brown, 72 AD3d 434, 436). "A court may not take judicial notice,' sua sponte, of the applicability of a statute of limitations if that defense has not been raised" (Paladino v Time Warner Cable of N.Y. City, 16 AD3d 646, 647; see De Oleo v Charis Christian Ministries, Inc., 94 AD3d 541, 542; Horst v Brown, 72 AD3d at 436). Here, the defendant neither answered the complaint nor submitted a pre-answer motion which raised the statute of limitations defense.

The plaintiff met its burden on its motion, inter alia, for leave to enter a default judgment and for an order of reference by submitting proof of service of the summons and complaint, proof of the facts constituting the claim, and proof of the defendant's failure to answer or appear (see CPLR 3215[f]; RPAPL 1321; Wells Fargo Bank, N.A. v Mayen, 155 AD3d 811, 813; Wells Fargo Bank, NA v Ambrosov, 120 AD3d 1225, 1226). Accordingly, the Supreme Court should have granted the motion.

Order to Show Cause — not quite improperly served

Young v City of New York, 2018 NY Slip Op 05793 [2d Dept 2018]

Aside from a deposition conducted on March 17, 2005, this action was dormant until January 26, 2015, when the plaintiffs moved by order to show cause, inter alia, to restore the action to the active calendar and to deem their late notice of claim timely served nunc pro tunc. Unbeknownst to the plaintiffs, the Kings County Clerk's Office encountered some type of error when scanning and uploading the signed order to show cause to the eCourts system. The digital copy of the order to show cause omitted the page containing the return date of February 27, 2015, among other things, although the remaining pages feature the handwritten notation "2/27/15." The plaintiffs printed the faulty digital copy without noticing the error and served that copy on the defendants with supporting papers, using the method specified in the order to show cause.

In response, seven days before the return date, the defendants cross-moved to dismiss the complaint. They argued, among other things, that the plaintiffs' service of the faulty digital copy of the order to show cause constituted a jurisdictional defect, and that the Supreme Court should dismiss the complaint based on the plaintiffs' failure to timely serve the notice of claim. The defendants thereafter appeared on the return date. In an order dated September 11, 2015, the court denied the plaintiffs' motion by order to show cause as "defectively served," and granted the defendants' cross motion to dismiss the action. The plaintiffs appeal.

"The failure to give proper notice of a motion deprives the court of jurisdiction to hear the motion" (Gonzalez v Haniff, 144 AD3d 1087, 1088; see Crown Waterproofing, Inc. v Tadco Const. Corp., 99 AD3d 964, 965). However, the defect in service here was "merely technical" (Ruffin v Lion Corp., 15 NY3d 578, 582; see Matter of Bender v Lancaster Cent. Sch. Dist., 155 AD3d 1590, 1590; Matter of Kennedy v New York State Off. for People with Dev. Disabilities, 154 AD3d 1346, 1347; Matter of Oneida Pub. Lib. Dist. v Town Bd. of the Town of Verona, 153 AD3d 127, 130; Grskovic v Holmes, 111 AD3d 234, 241-242). Under these circumstances, given that no substantial right of the defendants was prejudiced, the Supreme Court should have disregarded the irregularity and determined the motion on the merits (see CPLR 2001; Gonzalez v Haniff, 144 AD3d at 1088; Grskovic v Holmes, 111 AD3d at 241-242).

Bold is mine.

Service

US Bank, N.A. v Daskal, 2018 NY Slip Op 05792 [2d Dept 2018]

Schwartz's contention that he was never properly served with process is without merit. "A process server's affidavit of service gives rise to a presumption of proper service" (Deutsche Bank Natl. Trust Co. v O'King, 148 AD3d 776, 776). "A sworn denial containing a detailed and specific contradiction of the allegations in the process server's affidavit will defeat the presumption of proper service" (id. at 776-777; see HSBC Bank USA v Whitter, 159 AD3d 942). "If the presumption is rebutted, a hearing to determine the propriety of service of process is necessary" (Deutsche Bank Natl. Trust Co. v O'King, 148 AD3d at 777).

The process server averred in his affidavit of service that on July 14, 2008, at the subject premises, he served the summons and complaint on Schwartz by delivering a copy thereof to a person of suitable age and discretion, namely, "family member" Bracha Rosenbaum, and that on July 16, 2008, he mailed copies of the documents to Schwartz at the same address. These statements in the affidavit of service give rise to a presumption that Schwartz was properly served with process (see CPLR 308[2]).

Although Schwartz denied ever having resided at the subject premises, he failed to support his assertion (see U.S. Bank, N.A. v Tauber, 140 AD3d 1154, 1155). Moreover, he did not specifically deny that Rosenbaum was a family member and a person of suitable age and discretion (see HSBC Bank USA v Whitter, 159 AD3d 942). Accordingly, Schwartz failed to rebut the presumption of proper service (see Bank of N.Y. v Espejo, 92 AD3d 707; 96 Pierrepont v Mauro, 304 AD2d 631).