[App Div 2d Dept]

Can’t grant leave to renew, while denying a motion, all willy nilly like

Foo-Lu Co. v Rojas, 2018 NY Slip Op 02772 [2d Dept 2018]

The Supreme Court, upon denying the plaintiffs' and Chao's initial motion for summary judgment, improvidently exercised its discretion by, in effect, granting the moving parties leave to renew. The defect in the initial motion was not merely technical but substantive, inasmuch [*2]as the moving parties failed, without explanation, to submit evidence, in admissible form, establishing, inter alia, their ownership of the subject mortgage note or the existence of Rojas' default. Such evidence could, and should, have been submitted on the original summary judgment motion (see Vinar v Litman, 110 AD3d 867), and sufficient cause was not shown to warrant entertaining a second motion (cf. Varsity Tr. v Board of Educ. of City of N.Y., 300 AD2d 38, 39). Therefore, the order dated April 7, 2015, must be modified accordingly, and the provision of the order dated November 23, 2015, upon renewal, granting the second summary judgment motion must be vacated. In light of our determination with respect to the order dated April 7, 2015, the appeal from that portion of the order dated November 23, 2015, must be dismissed.

The Supreme Court also erred in awarding summary judgment to Fong. It is undisputed that Fong's motion was untimely, having been made 309 days after the filing of the note of issue, or 189 days after the expiration of the 120-day statutory deadline (see CPLR 3212[a]; Nationstar Mtge., LLC v Weisblum, 143 AD3d 866; Giambona v Hines, 104 AD3d 811). Even assuming that the court granted an oral application by Fong for leave to file the late motion, as Fong's counsel represented in his papers, such determination would have been an improvident exercise of discretion under the circumstances presented, since leave can be granted only upon a showing of good cause "for the delay in making the motion" (Brill v City of New York, 2 NY3d 648, 652), and no such showing appears in the record (see Nationstar Mtge., LLC v Weisblum, 143 AD3d at 869; cf. Matter of Gilmore, 131 AD3d 1058). Fong's failure to establish good cause for his delay warranted denial of the motion, "without consideration of the merits thereof" (Jones v City of New York, 130 AD3d 686, 687; see Nationstar Mtge., LLC v Weisblum, 143 AD3d at 869; Carrasco v Weissman, 120 AD3d 534, 536; Giambona v Hines, 104 AD3d at 812).

The bold is mine.

Not an attorney

Lanzuter Benevolent Assn. v Altman, 2018 NY Slip Op 02880 [1st Dept. 2018]

Defendant Neil Ross, who is not an attorney, purports to represent Gertrude Ross, his mother, and at various times in this proceeding, all other defendants as well. This representation violates Judiciary Law § 478. Whether or not the issue was raised before the motion court, it cannot be waived (Salt Aire Trading LLC v Sidley Austin Brown & Wood, LLP, 93 AD3d 452, 453 [1st Dept 2012]). Neil Ross's submissions on his mother's behalf, as well as his submissions on behalf of all other defendants, must be stricken, without prejudice to the filing of answers by all defendants, properly represented (id.).

120 days, give or take

Foo-Lu Co. v Rojas, 2018 NY Slip Op 02772 [2d Dept. 2018]

The Supreme Court also erred in awarding summary judgment to Fong. It is undisputed that Fong's motion was untimely, having been made 309 days after the filing of the note of issue, or 189 days after the expiration of the 120-day statutory deadline (see CPLR 3212[a]; Nationstar Mtge., LLC v Weisblum, 143 AD3d 866; Giambona v Hines, 104 AD3d 811). Even assuming that the court granted an oral application by Fong for leave to file the late motion, as Fong's counsel represented in his papers, such determination would have been an improvident exercise of discretion under the circumstances presented, since leave can be granted only upon a showing of good cause "for the delay in making the motion" (Brill v City of New York, 2 NY3d 648, 652), and no such showing appears in the record (see Nationstar Mtge., LLC v Weisblum, 143 AD3d at 869; cf. Matter of Gilmore, 131 AD3d 1058). Fong's failure to establish good cause for his delay warranted denial of the motion, "without consideration of the merits thereof" (Jones v City of New York, 130 AD3d 686, 687; see Nationstar Mtge., LLC v Weisblum, 143 AD3d at 869; Carrasco v Weissman, 120 AD3d 534, 536; Giambona v Hines, 104 AD3d at 812).

Reeps v BMW of N. Am., LLC, 2018 NY Slip Op 02907 [1st Dept. 2018]

Prior court orders and stipulations between the parties show that the parties, with the court's consent, charted a procedural course that deviated from the path established by the CPLR and allowed for defendants' filing of this round of summary judgment motions more than 120 days after the filing of the note of issue (see Corchado v City of New York, 64 AD3d 429 [1st Dept 2009]). Thus, the motions were timely, and we remand the matter to the motion court for a full consideration of their merits (see Fomina v DUB Realty, LLC, 156 AD3d 539 [1st Dept 2017]).

In considering the merits, the court should consider plaintiff's new and recast expert affidavits submitted in opposition to the motions, which were first filed in 2016 (see CPLR 3212[b]), after holding a hearing in accordance with Frye v United States (293 F 1013 [1923]) to determine whether the expert affidavits on exposure and general causation (see Parker v Mobil Oil Corp., 7 NY3d 434, 448 [2006]) are adequately supported in the medical and scientific literature.

Remittitur

Reilly v Achitoff, 2018 NY Slip Op 02818 [2d Dept. 2018]

" A trial court, upon remittitur, lacks the power to deviate from the mandate of the higher court'" (Berry v Williams, 106 AD3d 935, 937, quoting Matter of Trager v Kampe, 16 AD3d 426, 427; see Glassman v ProHealth Ambulatory Surgery Ctr., Inc., 96 AD3d 799, 800; Wiener v Wiener, 10 AD3d 362, 36). Accordingly, an order or judgment entered on remittitur " must conform strictly to the remittitur'" (Glassman v ProHealth Ambulatory Surgery Ctr., Inc., 96 AD3d at 800, quoting Matter of Minister, Elders & Deacons of Refm. Protestant Dutch Church of City of N.Y. v Municipal Ct. of City of N.Y., Borough of Manhattan, 185 Misc 1003, 1007 [Sup Ct, NY County]; see Berry v Williams, 106 AD3d at 937). "If the remittitur is erroneous in any respect, or if there is any uncertainty as to the effect of the language employed, the appropriate remedy is an application to amend it" (Wiener v Wiener, 10 AD3d at 363; see CPLR 5524; Matter of Minister, Elders & Deacons of Refm. Protestant Dutch Church of City of N.Y. v Municipal Ct. of City of N.Y., Borough of Manhattan, 185 Misc at 1006).

Contrary to the defendant's contention, the Supreme Court correctly adhered to the terms of this Court's remittitur in this matter (see Glassman v ProHealth Ambulatory Surgery Ctr., Inc., 96 AD3d at 800-801).

Documentary evidence

Sims v Prom Realty Co., LLC, 2018 NY Slip Op 02822 [2d Dept. 2018]

"In order for evidence to qualify as documentary,' it must be unambiguous, authentic, and undeniable" (Granada Condominium III Assn. v Palomino, 78 AD3d 996, 996-997 [internal quotation marks omitted]). "Neither affidavits, deposition testimony, nor letters are considered documentary evidence within the intendment of CPLR 3211(a)(1)" (Granada Condominium III Assn. v Palomino, 78 AD3d at 997 [internal quotation marks omitted]; see Suchmacher v Manana Grocery, 73 AD3d 1017, 1017; Fontanetta v John Doe 1, 73 AD3d at 86).

Consent to Change / Service

Sperry Assoc. Fed. Credit Union v John, 2018 NY Slip Op 02823 [2d Dept. 2018]

CPLR 321(b)(1) provides that an attorney of record may be changed by filing a consent to change attorney signed by the retiring attorney and the party. Notice must be given to adverse parties. In this case, it appears that at the time the defendant's motion for leave to renew and reargue was made, no consent to change attorney had been filed. A technical failure to comply with CPLR 321(b), however, does not render the acts of the new attorney a nullity (see Diamadopolis v Balfour, 152 AD2d 532; Imor v Imor, 119 AD2d 913). In this case, the plaintiff claims no prejudice, and the consent to change attorneys was filed while the motion was still pending (see Elite 29 Realty LLC v Pitt, 39 AD3d 264). Thus, contrary to the plaintiff's contention, the belated compliance with CPLR 321(b) was not a basis to deny the defendant's motion (cf. Dobbins v County of Erie, 58 AD2d 733; Matter of Kitsch Riker Oil Co., 23 AD2d 502).

At a hearing on the validity of service of process, the plaintiff bears the burden of proving personal jurisdiction by a preponderance of the evidence (see Deutsche Bank Natl. Trust Co. v O'King, 148 AD3d 776). The plaintiff failed to meet that burden. Where a process server has no independent recollection of events, a process server's logbook may be admitted in evidence as a business record (see Gilmore v Tindel, 210 AD2d 1). Here, however, the logbook was not produced in court or introduced in evidence. Thus, there was no evidence—other than the process server's description of a business record not before the court, which the process server claimed he was unable to locate—to support the claim that service occurred at 7:05 p.m., when the person who allegedly received the papers was present to receive them.

Emphasis is mine.

4518

City Natl. Bank v Foundry Dev. Group, LLC, 2018 NY Slip Op 02765 [2d Dept. 2018]

Contrary to the defendants' contention, the Supreme Court properly determined that certain exhibits presented at the inquest were admissible under the business records exception to the hearsay rule (see CPLR 4518[a]). " A proper foundation for the admission of a business record must be provided by someone with personal knowledge of the maker's business practices and procedures'" (Cadlerock Joint Venture, L.P. v Trombley, 150 AD3d 957, 959, quoting Citibank, N.A. v Cabrera, 130 AD3d 861, 861). Here, the plaintiff's witness testified that she was personally familiar with the record keeping practices and procedures of the plaintiff and Imperial, and, thus, the plaintiff laid a proper foundation for the admission of the records (see Yellow Book of N.Y., L.P. v Cataldo, 81 AD3d 638, 639-640).

Subsequent appeals

US Bank Natl. Assn. v Conroy, 2018 NY Slip Op 02496 [2d Dept. 2018]

As a general rule, this Court does not consider an issue on a subsequent appeal which was raised or could have been raised in an earlier appeal which was dismissed for failure to perfect, although this Court has the inherent jurisdiction to do so (see Rubeo v National Grange Mut. Ins. Co. , 93 NY2d 750; Bray v Cox , 38 NY2d 350). We decline to exercise our discretion in this case.

Appealable sua sponte order

Yi Jing Tan v Liang, 2018 NY Slip Op 02497 [2d Dept 2018]

The plaintiffs were awarded a default judgment, and an inquest on damages was directed. The inquest was scheduled for November 18, 2015, and the parties appeared for the inquest on that day. The Supreme Court adjourned the matter to the next day, November 19, 2015, over the plaintiffs' objection and despite a request of the plaintiffs' counsel for an adjournment to a different day because she was unavailable on November 19. On November 19, 2015, the plaintiffs were represented by a per diem attorney, who was unprepared to proceed with the inquest. The court, sua sponte, directed dismissal of the complaint pursuant to 22 NYCRR 202.27. The plaintiffs appeal.

A sua sponte order is appealable if leave to appeal is granted (see CPLR 5701[c]). Moreover, although the order appealed from was entered upon the plaintiffs' purported default, the issues of the plaintiffs' lack of readiness to proceed, and whether it was excusable, were "the subject of contest below" (Matter of Andrew J.U.M. [Jelaine E.M.], 154 AD3d 758, 759 [internal quotation marks omitted]; see James v Powell, 19 NY2d 249, 256 n 3) and, therefore, are subject to review on appeal.

Pursuant to 22 NYCRR 202.27(b), a court has the discretion to direct dismissal of a complaint where the plaintiff fails to appear or is not ready to proceed. Here, the Supreme Court based its decision to dismiss the complaint upon the plaintiffs' lack of readiness to proceed on November 19, 2015, a date to which the court adjourned the matter despite its awareness that the plaintiffs' counsel would not be available. Under the circumstances presented, the court improvidently exercised its discretion in, sua sponte, directing dismissal of the complaint (see Bank of N.Y. v Castillo, 120 AD3d 598, 599).

3211(a)(7) standard

Yu Chen v Kupoint (USA) Corp., 2018 NY Slip Op 02498 [2d Dept. 2018]

On a motion pursuant to CPLR 3211(a)(7) to dismiss for failure to state a cause of action, the court must afford the complaint a liberal construction, accept all facts as alleged in the complaint to be true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory (see Leon v Martinez, 84 NY2d 83, 87; Murphy v Department of Educ. of the City of N.Y., 155 AD3d 637). Accordingly, a motion to dismiss made pursuant to CPLR 3211(a)(7) must fail if, upon taking all the facts alleged in the complaint as true and according them every possible inference favorable to the plaintiff, "the complaint states in some recognizable form any cause of action known to our law" (Shaya B. Pac., LLC v Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, 38 AD3d 34, 38). While a court is permitted to consider evidentiary material submitted by a defendant in support of a motion to dismiss pursuant to CPLR 3211(a)(7) (see Phillips v Taco Bell Corp., 152 AD3d 806, 807), "affidavits submitted by a defendant will almost never warrant dismissal under CPLR 3211 unless they establish conclusively that [the plaintiff] has no cause of action" (Bokhour v GTI Retail Holdings, Inc., 94 AD3d 682, 683 [internal quotation marks omitted]; see Phillips v Taco Bell Corp., 152 AD3d at 808; Dolphin Holdings, Ltd. v Gander & White Shipping, Inc., 122 AD3d 901, 902). The plaintiff "may not be penalized for failure to make an evidentiary showing in support of a complaint that states a claim on its face" (Miglino v Bally Total Fitness of Greater N.Y., Inc., 20 NY3d 342, 351, citing Rovello v Orofino Realty Co., 40 NY2d 633, 635). Indeed, if a plaintiff chooses to stand on his or her pleading alone, "confident that its allegations are sufficient to state all the necessary elements of a cognizable cause of action, he [or she] is at liberty to do so and, unless the motion to dismiss is converted by the court to a motion for summary judgment, he [or she] will not be penalized because he [or she] has not made an evidentiary showing in support of his [or her] complaint" (Rovello v Orofino Realty Co., 40 NY2d at 635).

emphasis is mine