[App Div 2d Dept]

You can’t renew a motion you didnt oppose

Singh v Reddy, 2018 NY Slip Op 03722 [2d Dept. 2018]

The branch of the plaintiffs' motion which was for leave to renew was properly denied, since there was no opposition to the defendants' motion to dismiss that could have been renewed (see CPLR 2221; Hudson City Sav. Bank v Bomba, 149 AD3d 704, 705). To the extent that the Supreme Court treated that branch of the plaintiffs' motion as, in effect, a motion to vacate the default, that branch of the plaintiffs' motion was also properly denied. The plaintiffs failed to establish a reasonable excuse for their default (see CPLR 5015[a][1]; Taylor Appraisals v Prokop, 99 AD3d 985, 985).

3211(c) standard

Soroush v Citimortgage, Inc., 2018 NY Slip Op 03724 [2d Dept. 2018]

CPLR 3211(c) provides that, "[u]pon the hearing of a motion made under subdivision (a) or (b), either party may submit any evidence that could properly be considered on a motion for summary judgment. Whether or not issue has been joined, the court, after adequate notice to the parties, may treat the motion as a motion for summary judgment." Here, the Supreme Court should not have converted Citimortgage's motion pursuant to CPLR 3211(a) to dismiss the complaint to one for summary judgment without providing "adequate notice to the parties" (CPLR 3211[c]; see Sunset Café, Inc. v Mett's Surf & Sports Corp., 103 AD3d 707; Saleh v New York Post, 78 AD3d 1149; Neurological Servs. of Queens, P.C. v Farmingville Family Med. Care, 63 AD3d 703; Moutafis v Osborne, 18 AD3d 723; Steiner v Lazzaro & Gregory, 271 AD2d 596; Glendora v Kofalt, 224 AD2d 485; Pearsal Props. Corp. v Arzina Realty Corp., 139 AD2d 638; Camarda v Vanderbilt, 100 AD2d 836). None of the recognized exceptions to the notice requirement is applicable here. No specific request for summary judgment was made by any party, the parties did not deliberately chart a summary judgment course, and the action did not exclusively involve issues of law which were fully appreciated and argued by the parties (see Sunset Café, Inc. v Mett's Surf & Sports Corp., 103 AD3d at 708; Moutafis v Osborne, 18 AD3d at 724). Moreover, since Citimortgage's motion to dismiss the complaint should not have been converted to one for summary judgment, the court also should not have searched the record and awarded summary judgment to the plaintiff (see Moutafis v Osborne, 18 AD3d at 724).

1015

Wells Fargo Bank, NA v Emma, 2018 NY Slip Op 03728 [2d Dept. 2018]

Pursuant to CPLR 1015(a), "[i]f a party dies and the claim for or against him [or her] is not thereby extinguished the court shall order substitution of the proper parties" (emphasis added). "Generally, the death of a party divests a court of jurisdiction to act, and automatically stays proceedings in the action pending the substitution of a personal representative for the decedent" (Neuman v Neumann, 85 AD3d 1138, 1139). Here, the decedent's death did not divest the court of jurisdiction and warrant the imposition of a stay, since the decedent is not a party in this action (see Sample v Temkin, 87 AD3d 686, 687-688). Moreover, since the decedent made an absolute conveyance of all her interest in the property to the defendant and the plaintiff elected not to seek a deficiency judgment against the decedent's estate, the decedent was not a necessary party to the action (see Wells Fargo Bank, N.A. v Bachmann, 145 AD3d 712, 714; HSBC Bank USA v Ungar Family Realty Corp., 111 AD3d 673). Accordingly, the Supreme Court should have granted that branch of the plaintiff's motion which was to vacate the stay.

Infants

Matter of Fast Care Med. Diagnostics, PLLC/PV v Government Employees Ins. Co., 2018 NY Slip Op 03831 [2d Dept. 2018]

The underlying papers can be found HERE.

The petitioner, Fast Care Medical Diagnostics, PLLC, named herein as Fast Care Medical Diagnostics, PLLC/PV (hereinafter Fast Care), provided certain medical services to its assignor, "PV," in connection with injuries purportedly sustained by PV in a motor vehicle accident. At the time of such treatment, PV was 15 years old. PV and his mother executed an assignment of benefits, which assigned all rights and remedies to payment for health care services provided by Fast Care to which PV was entitled under article 51 of the Insurance Law. Fast Care submitted claims for these services to Government Employees Insurance Co. (hereinafter GEICO), for reimbursement of first-party no-fault insurance benefits (see Insurance Law § 5102). GEICO denied the claims on grounds of purported lack of medical necessity.

Fast Care sought arbitration of the dispute. The arbitrator dismissed the proceeding without prejudice, on the ground that Fast Care had failed to comply with CPLR 1209, which provides, in relevant part, that "[a] controversy involving an infant . . . shall not be submitted to arbitration except pursuant to a court order made upon application of the representative of such infant," subject to an exception that is not applicable here. Fast Care appealed to a master arbitrator, who confirmed the determination. The master arbitrator further found that Fast Care lacked standing, because the parent of the infant patient, rather than the infant himself, was required to execute an assignment of benefits. Fast Care then instituted this proceeding pursuant to CPLR article 75, inter alia, to vacate the arbitration award.

An arbitration award may be vacated if the court finds that the rights of a party were prejudiced by (1) corruption, fraud, or misconduct in procuring the award; (2) partiality of an arbitrator; (3) the arbitrator exceeding his or her power; or (4) the failure to follow the procedures of CPLR article 75 (see CPLR 7511[b]). In addition, an arbitration award may be vacated "if it violates strong public policy, is irrational, or clearly exceeds a specifically enumerated limitation on the arbitrator's power" (Matter of Slocum v Madariaga, 123 AD3d 1046, 1046; see Matter of Kowaleski [New York State Dept. of Correctional Servs.], 16 NY3d 85, 90; Matter of United Fedn. of Teachers, Local 2, AFT, AFL-CIO v Board of Educ. of City School Dist. of City of N.Y., 1 NY3d 72, 79). An arbitration award may also be vacated where it is in " explicit conflict'" with established laws and "the strong and well-defined policy considerations' embodied therein" (Matter of City of Oswego [Oswego City Firefighters Assn., Local 2707], 21 NY3d 880, 882, quoting Matter of New York State Correctional Officers & Police Benevolent Assn. v State of New York, 94 NY2d 321, 327 [emphasis omitted]).

We agree with the Supreme Court that the arbitrator's award was irrational and in conflict with CPLR 1209, which applies "only where an infant is a party" to an arbitration proceeding (Goldenberg v Goldenberg, 25 AD2d 670, 670, affd 19 NY2d 759; see Schneider v Schneider, 17 NY2d 123, 127). The infant patient was not a party to the arbitration; rather, Fast Care, as the infant's assignee, was the party that brought the arbitration (see 11 NYCRR 65-3.11[a]). Therefore, we agree with the court that the arbitrator disregarded established law in determining that the requirements of CPLR 1209 applied here (Schneider v Schneider, 17 NY2d at 127; see Goldenberg v Goldenberg, 25 AD2d at 670). Furthermore, the master arbitrator's determination that the assignment of benefits was not effective was not based on any requirement set forth in established law or regulations (see generally 11 NYCRR 65-2.4[c]).

Accordingly, we agree with the Supreme Court's determination to vacate the awards and direct further arbitration proceedings as to the merits of Fast Care's claims (see Matter of City of Oswego [Oswego City Firefighters Assn., Local 2707], 21 NY3d at 882; see also Matter of Local 342 v Town of Huntington, 52 AD3d 720, 721; Matter of Kocsis [New York State Div. of Parole], 41 AD3d 1017, 1020; Matter of Rockland County Bd. of Coop. Educ. Servs. v BOCES Staff Assn., 308 AD2d 452, 454).

Contempt/Service

Kozel v Kozel, 2018 NY Slip Op 03907 [1st Dept. 2018]

Contrary to the contention of the nonparty witness (Inga), she was properly served via email with plaintiff's order to show cause. While a criminal contempt proceeding requires personal service on the contemnor (see Matter of Grand Jury Subpoena Duces Tecum, 144 AD2d 252, 255-256 [1st Dept 1988]), CPLR 308(5) permits a court to direct another manner of service if the methods set forth in the statute prove impracticable. Here, Inga left the jurisdiction after the same court and Justice found her in contempt, and offers no evidence that she was at either her residence in London or Lithuania. Under these circumstances, the court properly directed that she be served via email (see Alfred E. Mann Living Trust v ETIRC Aviation S.A.R.L., 78 AD3d 137, 141-142 [1st Dept 2010]). Since Inga was properly served with the contempt motion, and had knowledge of the terms of the subject orders of which she was in violation, the court was empowered to find her in contempt without plaintiff commencing a special proceeding (see Citibank v Anthony Lincoln-Mercury, 86 AD2d 828, 829 [1st Dept 1982]).

Kozel v Kozel, 2018 NY Slip Op 03906 [1st Dept. 2018]

Contrary to her contention, she was properly served with plaintiff's order to show cause. The order to show cause directed plaintiff to serve Inga under CPLR 308 and her counsel by overnight mail on or before June 20, 2016. Inga's claim that her counsel was untimely served because he did not receive papers until June 21, 2016 is without merit (see CPLR 2103[b][6] [service is complete upon deposit into the custody of the overnight delivery service]). Likewise, the record supports that Inga was personally served at the New York City apartment she and defendant owned, which constituted her "dwelling place or usual place of abode within the state" for the purposes of CPLR 308 (see Krechmer v Boulakh, 277 AD2d 288, 289 [2d Dept 2000]).

Removal from Civil to Supreme and why you should serve with NOE

Hart v New York City Hous. Auth., 2018 NY Slip Op 03123 [2d Dept. 2018]

Since the defendant was not served with a proper notice of entry, the defendant's time to appeal never commenced running, and its notice of appeal was therefore timely filed (see CPLR 5513[a]; Matter of Oliver v City of New York, 76 AD3d 1017, 1018; Nagin v Long Is. Sav. Bank, 94 AD2d 710).

A motion to remove an action from the Civil Court to the Supreme Court pursuant to CPLR 325(b) must be accompanied by a request for leave to amend the ad damnum clause of the complaint pursuant to CPLR 3025(b) (see Martin v Waldbaum's Supermarket, 172 AD2d 804). Here, the amount stated in the ad damnum clause was within the jurisdictional limits of the Civil Court, and no request for leave to amend the ad damnum clause was made. In the absence of an application to increase the ad damnum clause, the plaintiff's motion to remove the action to the Supreme Court should have been denied (see id.; Francilion v Epstein, 144 AD2d 633, 633-634). [*2]Accordingly, we remit the matter to the Supreme Court, Kings County, to restore the matter to the Civil Court, Kings County.

3215(c) and reasonable excuse

Ibrahim v Nablus Sweets Corp., 2018 NY Slip Op 03515 [2d Dept. 2018]

The Supreme Court providently exercised its discretion in rejecting the plaintiff's excuse of law office failure and properly, in effect, directed dismissal of the complaint insofar as asserted against the defendants as abandoned pursuant to CPLR 3215(c). The plaintiff's excuse of law office failure did not rise to the level of a reasonable excuse, as it was vague, conclusory, and unsubstantiated (see U.S. Bank, N.A. v Dorvelus, 140 AD3d at 852; Baruch v Nassau County, 134 AD3d 658, 659; Mattera v Capric, 54 AD3d 827, 828). The excuse was contained in a brief paragraph in the supporting affirmation of an associate who stated, in sum and substance, that the attorney who commenced the action left the employ of the law firm of record, and the plaintiff's file was only discovered in May 2016 when the firm was relocating its offices. There was no affirmation from a principal of the law firm and no indication in the associate's affirmation that he had any personal knowledge of the purported law office failure or that he was even employed by the firm at the time it allegedly occurred. The one-year period to move for the entry of a default judgment lapsed in August 2015, and there is no indication that the attorney had left prior thereto. Since the plaintiff failed to demonstrate a reasonable excuse for her delay in moving for a default judgment, the Supreme Court providently exercised its discretion in denying that branch of the plaintiff's motion which was pursuant to CPLR 2004 for an extension of time to move for a default judgment (see T. Mina Supply, Inc. v Clemente Bros. Contr. Corp., 139 AD3d 1038).

Dont’ get cute in the reply

Lee v Law Offs. of Kim & Bae, P.C., 2018 NY Slip Op 03516 [2d Dept. 2018]

The function of reply papers is to address arguments made in opposition to the position taken by the movant and not to permit the movant to introduce new arguments in support of, or new grounds or evidence for, the motion (see USAA Fed. Sav. Bank v Calvin, 145 AD3d 704, 706; Allstate Flooring Distribs., L.P. v MD Floors LLC, 131 AD3d 834, 836; Mikulski v Battaglia, 112 AD3d 1355, 1356; Matter of Allstate Ins. Co. v Dawkins, 52 AD3d 826, 827; Dannasch v Bifulco, 184 AD2d 415, 415). Here, the plaintiff's reply papers included new arguments in support of the motion, new grounds and evidence for the motion, and expressly requested relief that was dramatically unlike the relief sought in her original motion (see USAA Fed. Sav. Bank v Calvin, 145 AD3d at 706; Carter v Johnson, 110 AD3d 656, 658). Therefore, those contentions, and the grounds and evidence in support of them, were not properly before the Supreme Court (see USAA Fed. Sav. Bank v Calvin, 145 AD3d at 706; Mikulski v Battaglia, 112 AD3d at 1356).

No cross-motion, no problem

Silvering v Sunrise Family Med., P.C., 2018 NY Slip Op 03556 [2d Dept. 2018]

To the extent the Supreme Court concluded that it lacked discretion to consider the plaintiffs' application pursuant to CPLR 306-b to extend their time to serve the defendant, which was not presented in a proper cross motion pursuant to CPLR 2215, we disagree. Although "a party seeking relief in connection with another party's motion is, as a general rule, required to do so by way of a cross motion," courts "retain discretion to entertain requests for affirmative relief that do not meet the requirements of CPLR 2215" (Fried v Jacob Holding, Inc., 110 AD3d 56, 64-65; see Smulczeski v Smulczeski, 128 AD3d 671, 672).

Forum Non Con requirments

Gorodetsky v Bridgewater Wholesalers, Inc., 2018 NY Slip Op 03122 [2d Dept. 2018]

A party moving for a change of venue pursuant to CPLR 510(3) has the burden of demonstrating that the convenience of material witnesses and the ends of justice will be promoted by the change (see CPLR 510[3]; Ambroise v United Parcel Serv. of Am., Inc., 143 AD3d 927, 928; Lapidus v 1050 Tenants Corp., 94 AD3d 950, 950). In doing so, the moving party must set forth (1) the names, addresses, and occupations of the prospective witnesses, (2) the facts to which the witnesses will testify at trial, so that the court may assess whether the proposed evidence is necessary and material, (3) a statement that the witnesses are willing to testify, and (4) a statement that the witnesses would be greatly inconvenienced if the venue of the action was not changed (see Ambroise v United Parcel Serv. of Am., Inc., 143 AD3d at 928; M.I. v Trinity-Pawling Sch., 125 AD3d 615, 615).

Here, the defendants failed to disclose the addresses of all but one of the prospective witnesses, made only conclusory statements that the prospective witnesses would be inconvenienced, and failed to establish the manner or extent to which those witnesses would be inconvenienced (see Ambroise v United Parcel Serv. of Am. Inc., 143 AD3d at 928; Matter of Supplier Distribution Concepts, Inc., 80 AD3d 869, 871). With regard to those witnesses who were New York State police officers, while "the convenience of local government officials, such as police officers, is of paramount importance because they should not be kept from their duties unnecessarily" (Lafferty v Eklecco, LLC, 34 AD3d 754, 755), here, only conclusory statements, without any details, were provided as to how those witnesses would be inconvenienced. As such, these statements were insufficient to establish that those witnesses would be inconvenienced if venue were not changed.