[App Div 2d Dept]

MERS

US Bank Natl. Assn. v Madero, 2011 NY Slip Op 00505 (App. Div., 2nd 2011)

Where, as here, a plaintiff's standing is put into issue by the defendants, the plaintiff must prove its standing to be entitled to relief (see U.S. Bank, N.A. v Collymore, 68 AD3d 752, 753; Wells Fargo Bank Minn., N.A. v Mastropaolo, 42 AD3d 239, 242). "In a mortgage foreclosure action, a plaintiff has standing where it is both the holder or assignee of the subject mortgage and the holder or assignee of the underlying note at the time the action is commenced" (U.S. Bank, N.A. v Collymore, 68 AD3d at 753). "Where a mortgage is represented by a bond or other instrument, an assignment of the mortgage without assignment of the underlying note or bond is a nullity" (id. at 754). "Either a written assignment of the underlying note or the physical delivery of the note prior to the commencement of the foreclosure action is sufficient to transfer the obligation, and the mortgage passes with the debt as an inseparable incident" (id.; see LaSalle Bank Natl. Assn. v Ahearn, 59 AD3d 911, 912). Here, the plaintiff failed to demonstrate its prima facie entitlement to judgment as a matter of law because it did not establish that it had standing, as the lawful holder or assignee of the subject note on the date it commenced this action, to commence the action (see U.S. Bank, N.A. v Collymore, 68 AD3d 752; see also Suraleb, Inc. v International Trade Club, Inc., 13 AD3d 612; Tawil v Finkelstein Bruckman Wohl Most & Rothman, 223 AD2d 52, 55). Accordingly, the Supreme Court should have denied those branches of the plaintiff's motion which were for summary judgment on the complaint as to the Maderos and for an order of reference.

The Supreme Court properly denied those branches of the Maderos' cross motion which were for summary judgment dismissing the complaint insofar as asserted against them (cf. U.S. Bank, N.A. v Collymore, 68 AD3d 752), or for a framed-issue hearing (see Gillman v Chase Manhattan Bank, 73 NY2d 1).

The bold is mine.

Sworn denial of service not always sufficient. Specific facts required.

CPLR 3211(a)(8)

Tikvah Enters., LLC v Neuman, 2011 NY Slip Op 00502 (App. Div., 2nd 2011)

Moreover, the Supreme Court properly denied, without a hearing, the defendant's motion pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against him for lack of personal jurisdiction. A process server's affidavit of service constitutes prima facie evidence of proper service (see Associates First Capital Corp. v Wiggins, 75 AD3d 614; Scarano v Scarano, 63 AD3d 716). "Although a defendant's sworn denial of receipt of service generally rebuts the presumption of proper service established by the process server's affidavit and necessitates an evidentiary hearing . . . no hearing is required where the defendant fails to swear to specific facts to rebut the statements in the process server's affidavits'" (Scarano v Scarano, 63 AD3d at 716, quoting Simonds v Grobman, 277 AD2d 369, 370; see Associates First Capital Corp. v Wiggins, 75 AD3d at 614-615; City of New York v Miller, 72 AD3d 726, 727). Here, the defendant never denied the specific facts contained in the process server's affidavits. Accordingly, no hearing was required (see Scarano v Scarano, 63 AD3d at 716-717; Roberts v Anka, 45 AD3d 752, 754).

Keep this in mind when opposing motions to vacate.

The bold is mine.

An unqualified expert

Pellechia v Partner Aviation Enters., Inc., 2011 NY Slip Op 00496 (App. Div., 2nd 2011)

To the extent the plaintiff's claims against the defendant are not preempted by federal law, in opposition to the defendant's prima facie showing of entitlement to judgment as a matter of law, the plaintiff failed to raise a triable issue of fact (see Scoppettone v ADJ Holding Corp., 41 AD3d 693, 694; Hagan v P.C. Richards & Sons, Inc., 28 AD3d 422; Earle v Channel Home Ctr., 158 AD2d 507). The plaintiff's expert affidavit was properly rejected by the Supreme Court because the plaintiff never complied with any of the disclosure requirements of CPLR 3101(d)(1)(i), and only [*2]first identified his expert witness in opposition to the defendant's summary judgment motion, after the plaintiff filed the note of issue and certificate of readiness (see King v Gregruss Mgt. Corp., 57 AD3d 851, 852-853). Further, the expert failed to demonstrate that he was qualified to render an opinion (Hofmann v Toys R Us, NY Ltd. Partnership, 272 AD2d 296). Moreover, the expert's opinion which was speculative and conclusory, and was not based on accepted industry standards, was insufficient to raise a triable issue of fact (see Rabon-Willimack v Robert Mondavi Corp., 73 AD3d 1007, 1009; Pappas v Cherry Cr., Inc., 66 AD3d 658; Rivas-Chirino v Wildlife Conservation Socy., 64 AD3d 556).

When experts disagree:

Wexelbaum v Jean, 2011 NY Slip Op 00508 (App. Div., 2nd 2011)

"Summary judgment is not appropriate in a medical malpractice action where the parties adduce conflicting medical expert opinions. Such credibility issues can only be resolved by a jury" (Feinberg v Feit, 23 AD3d 517, 519 [citations omitted]; see Darwick v Paternoster, 56 AD3d 714, 715; Bjorke v Rubenstein, 53 AD3d 519, 520; Roca v Perel, 51 AD3d at 759). Accordingly, the appellants' motion for summary judgment was properly denied.

One day I'll remember to look at the cases the First Department cited to:

Bustos v Lenox Hill Hosp., 2011 NY Slip Op 00432 (App. Div., 1st 2011)

Under the particular circumstances presented, the affidavit of plaintiff's expert was properly considered by the court on renewal (see Mejia v Nanni, 307 AD2d 870, 871 [2003]; Garner v Latimer, 306 AD2d 209 [2003]; Tishman Constr. Corp. of N.Y. v City of New York, 280 AD2d 374, 376-377 [2001]). The affidavit was sufficient to raise triable issues of fact as to whether defendants' treatment of plaintiff before and during delivery departed from good and accepted standards of obstetric care (see Roques v Noble, 73 AD3d 204 [2010]; Frye v Montefiore Med. Ctr., 70 AD3d 15 [2009]).

Last one:

Alvarez v 1407 Broadway Real Estate LLC, 2011 NY Slip Op 00407 (App. Div., 1st 2011)

Plaintiff Luis Alvarez testified that a scaffold tipped over as he was climbing onto it. In opposition to this prima facie showing that a violation of Labor Law § 240(1) occurred and that it was a proximate cause of plaintiff's injuries (see Romanczuk v Metropolitan Ins. & Annuity Co., 72 AD3d 592 [2010]), defendants failed to raise an inference in support of their contention that the injured plaintiff's conduct was the sole proximate cause of the accident (see Torres v Monroe Coll., 12 AD3d 261 [2004]; Garcia v 1122 E. 180st St. Corp., 250 AD2d 550 [1998]). Their expert witness conceded that plaintiff's failure to lock the scaffold wheels before climbing onto the scaffold did not cause the scaffold to tip over. In any event, contributory negligence is not a defense to liability under Labor Law § 240(1) (see Crespo v Triad, Inc., 294 AD2d 145, 147 [2002]). While defendants' expert opined that plaintiff should have used a nearby A-frame ladder, rather than the ladder rungs of the scaffold, to gain access to the scaffold platform, defendants failed to submit any evidence that plaintiff knew or should have known that he was expected to use a ladder to climb onto the scaffold and "chose for no good reason not to do so" (see Cahill v Triborough Bridge & Tunnel Auth., 4 NY3d 35, 39-40 [2004]).

The bold is mine.

CPLR R. 5015: to default or to vacate

You can never have enough of these decisions handy.

CPLR R. 5015

CPLR R. 3215

Maida v Lessing's Rest. Servs., Inc., 2011 NY Slip Op 00490 (App. Div., 2nd 2011)

To vacate the order entered upon its default in opposing the motion for leave to enter a default judgment, the defendant Lessing's Restaurant Services, Inc. (hereinafter the appellant), was required to demonstrate, inter alia, a reasonable excuse for its default in appearing or answering the complaint and a potentially meritorious defense to the action (see CPLR 5015[a][1]; Abdul v Hirschfield, 71 AD3d 707; Bekker v Fleischman, 35 AD3d 334; Epps v LaSalle Bus, 271 AD2d 400). In support of its motion, which was not made until nine months after the order granting the plaintiff's motion for leave to enter a default judgment, the appellant did not offer a reasonable excuse for its failure to appear or answer the complaint (see Gartner v Unified Windows, Doors & Siding, Inc., 71 AD3d 631, 632; Kramer v Oil Servs., Inc., 65 AD3d 523, 524; Leifer v Pilgreen Corp., 62 AD3d 759, 760; Martinez v D'Alessandro Custom Bldrs. & Demolition, Inc., 52 AD3d 786, 787; Segovia v Delcon Constr. Corp., 43 AD3d 1143, 1144). Accordingly, it is unnecessary to consider whether the appellant sufficiently demonstrated the existence of a potentially meritorious defense to the action (see Abdul v Hirschfield, 71 AD3d at 709; Segovia v Delcon Constr. Corp., 43 AD3d at 1144; American Shoring, Inc. v D.C.A. Constr., Ltd., 15 AD3d 431). In addition, contrary to the appellant's contention, the plaintiff's submissions in support of her motion for leave to enter a default judgment were sufficient. The verified complaint and the plaintiff's affidavit set forth sufficient facts to enable the Supreme Court to determine that the plaintiff alleged a viable cause of action (see Woodson v Mendon Leasing Corp., 100 NY2d 62, 71; Neuman v Zurich N. Am., 36 AD3d 601, 602). Accordingly, the Supreme Court providently exercised its discretion in denying the appellant's motion to vacate the order dated November 24, 2008.

CPLR R.3211(a)(8)

R. Scott Miterko v Peaslee, 2011 NY Slip Op 00492 (App. Div., 2nd 2011)

The Supreme Court properly denied the appellant's cross motion pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against it on the ground of lack of personal jurisdiction. In opposition to the appellant's cross motion asserting that service of process pursuant to CPLR 311(a)(1) was not properly effected, the plaintiffs established that valid service was made pursuant to Business Corporation Law § 306(b)(1) (see Perkins v 686 Halsey Food Corp., 36 AD3d 881).

However, the Supreme Court should not have granted the plaintiffs' motion for leave to enter a default judgment. To establish their entitlement to a default judgment, the plaintiffs were required to submit proof of service of the summons and the complaint, of the facts constituting the claim, and of the default (see CPLR 3215[f]; Levine v Forgotson's Cent. Auto & Elec., Inc., 41 [*2]AD3d 552, 553; 599 Ralph Ave. Dev., LLC v 799 Sterling Inc., 34 AD3d 726). The plaintiffs' initial moving papers for leave to enter a default judgment were predicated solely upon their assertion of proper personal service pursuant to CPLR 311(a)(1). They established, prima facie, their entitlement to a default judgment by submitting an affidavit of service attesting that the summons and complaint were delivered to a managing agent of the appellant, a copy of the verified complaint, and an attorney affirmation attesting to the appellant's default in answering the complaint (see CPLR 311[a][1]; Matone v Sycamore Realty Corp., 50 AD3d 978; McIntyre v Emanuel Church of God In Christ, Inc., 37 AD3d 562; Bankers Trust Co. of Cal. v Tsoukas, 303 AD2d 343, 343-344). In opposition, the appellant rebutted these allegations and raised issues of fact by submitting an affidavit from its president stating that the person upon whom service allegedly was made was not employed by the appellant, nor authorized to accept service of process on behalf of the appellant. The affidavit of the plaintiffs' process server submitted in reply to this opposition raised an additional issue of fact as to whether the recipient, if not a managing agent, was cloaked with an apparent authority to accept service on the appellant's behalf (see generally Fashion Page v Zurich Ins. Co., 50 NY2d 265, 271-273; McDonald v Ames Supply Co., 22 NY2d 111, 115-116; Aguilera v Pistilli Constr. & Dev. Corp., 63 AD3d 765, 766-767; Seda v Armory Estates, 138 AD2d 362, 363-364). Accordingly, a hearing is necessary to determine the issue of whether proper personal service was effected pursuant to CPLR 311(a)(1), solely for the purpose of determining the plaintiffs' entitlement to a default judgment (see McIntyre v Emanuel Church of God In Christ, Inc., 37 AD3d at 562-563; Garcia v Munseob, 33 AD3d 586; Mortgage Access Corp. v Webb, 11 AD3d 592, 593; Bankers Trust Co. of Cal. v Tsoukas, 303 AD2d at 343-344; Frankel v Schilling, 149 AD2d 657, 659).

Since the plaintiffs' assertion that they were entitled to a default judgment based on proper service pursuant to Business Corporation Law § 306(b)(1) was made in their reply papers supporting their motion, two days before the return date and the date of the order appealed from, and the appellant did not have an opportunity to respond, the Supreme Court should not have considered that claim in determining the motion (see Matter of Crawmer v Mills, 239 AD2d 844, 844-845; cf. Matter of Whittaker v New York City Bd. of Educ., 71 AD3d 776, 778; Valure v Century 21 Grand, 35 AD3d 591, 592).

The appellant's contention that the plaintiffs failed to state a cause of action insofar as asserted against it is raised for the first time on appeal and, thus, is not properly before this Court (see McLearn v Cowen & Co., 60 NY2d 686, 689; Viafax Corp. v Citicorp Leasing, Inc., 54 AD3d 846, 849; Resnick v Doukas, 261 AD2d 375, 376).

The bold is mine.

CPLR R. 3025

This really isn't groundbreaking, but I was looking for a case on this issue the other week and couldn't find a recent one. So I'll just leave this here.

CPLR R 3025 Amended and supplemental pleadings

Jenal v Brown, 2011 NY Slip Op 00487 (App. Div. 2nd, 2011)

While leave to serve an amended pleading should be freely given upon such terms as are just (see CPLR 3025[b]; Edenwald Contr. Co. v City of New York, 60 NY2d 957; AYW Networks v Teleport Communications Group, 309 AD2d 724; Charleson v City of Long Beach, 297 AD2d 777; Holchendler v We Transp., 292 AD2d 568), leave should not be granted where "the proposed amendment is palpably insufficient as a matter of law or is totally devoid of merit" (Morton v Brookhaven Mem. Hosp., 32 AD3d 381, 381; see Thone v Crown Equip. Corp., 27 AD3d 723). Here, the proposed amendment was clearly without merit as the plaintiffs' motion was made nearly one year after the statute of limitations had expired, and there was no basis in the record to support a claim that the Town of Babylon should be estopped from relying upon the expiration of the statute of limitations (see Luka v New York City Tr. Auth., 100 AD2d 323, 325, affd 63 NY2d 667; Yassin v Sarabu, 284 AD2d 531; Nowinski v City of New York, 189 AD2d 674, 675).

found another

Schroeder v Good Samaritan Hosp., 2011 NY Slip Op 00500 (App. Div., 2nd 2011)

Where, as here, a summons and complaint are timely filed but not served, service of a substantively similar amended summons and complaint without leave of court under the same index number is proper when it is served "before the period for responding to the original complaint has expired" (see O'Keefe v Baiettie, 72 AD3d 916, 917, citing CPLR 3025[a]). Thus, the Supreme Court obtained personal jurisdiction over the defendants because they were served with substantively similar amended pleadings during the 120-day period when service of the original pleadings was required under CPLR 306-b (see O'Keefe v Baiettie, 72 AD3d 916). Moreover, under the circumstances, the action was timely commenced as against the defendants.

The bold is mine.

On stipulations, generally.

CPLR R. 2104 Stipulations

Dental Health Assoc. v Zangeneh, 2011 NY Slip Op 00484 (App. Div., 2nd 2011)

Zangeneh correctly argues that the parties' stipulation entered into on May 6, 2002, bars this belated claim for disgorgement. "By stipulation, the parties may shape the facts to be determined at trial and thus circumscribe the relevant issues for the court to the exclusion of disputed matters that otherwise would be available to the parties" (Deitsch Textiles v New York Prop. Ins. Underwriting Assn., 62 NY2d 999, 1002; see Roberts v Worth Constr., Inc., 21 AD3d 1074; Nishman v De Marco, 76 AD2d 360). Here, the parties agreed that the accounting issues, as raised in a motion made by the plaintiffs in March 2002, inter alia, to adopt the accounting report, would be the only unresolved issues following the trial of the tort and contract claims. The claim for disgorgement was not raised in the plaintiffs' March 2002 motion. Accordingly, the plaintiffs' belated request for disgorgement should have been denied.

Some stipulations, while seemingly inconsequential, are anything but.

Voluntary Discontinuance: CPLR R. 3217

CPLR R. 3217 Voluntary discontinuance

New York Downtown Hosp. v Terry,2011 NY Slip Op 00253 (App. Div., 1st 2011)

ORDERED that the order is reversed, on the facts and in the exercise of discretion, with costs, and the appellants' motion pursuant to CPLR 3217(b), in effect, to enforce a stipulation pursuant to which the plaintiff agreed to voluntarily discontinue the action insofar as asserted against them is granted; and it is further,

ORDERED that the matter is remitted to the Supreme Court, Queens County, to convert the cross claims asserted by the defendants Saga House Condominium and Charles Greenthal Management against the appellants to a third-party action, and to amend the caption accordingly.

"In the absence of special circumstances, such as prejudice to a substantial right of the defendant, or other improper consequences, a motion for a voluntary discontinuance should be granted" (Expedite Video Conferencing Servs., Inc. v Botello, 67 AD3d 961, 961; see Tucker v Tucker, 55 NY2d 378, 383). Here, the Supreme Court improvidently exercised its discretion in denying the appellants' motion pursuant to CPLR 3217(b), in effect, to enforce a stipulation pursuant to which the plaintiff agreed to voluntarily discontinue the action insofar as asserted against them because there was no showing that the defendants Saga House Condominium and Charles Greenthal Management would be prejudiced by such discontinuance, since their cross claims will continue as a third-party action (see Expedite Video Conferencing Servs., Inc. v Botello, 67 AD3d at 961; Parraguirre v 27th St. Holding, LLC, 37 AD3d 793, 794; Citibank v Nagrotsky, 239 AD2d 456, 457).

CPLR § 3213 and a problem with service

CPLR § 3213 Motion for summary judgment in lieu of complaint

Engel v Boymelgreen, 2011 NY Slip Op 00348 (App. Div., 2nd 2011)

The appeal from the amended order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see Matter of Aho, 39 NY2d 241). The issues raised on the appeal from the amended order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501[a][1]).

"Generally, a process server's affidavit of service establishes a prima facie case as to the method of service and, therefore, gives rise to a presumption of proper service" (Washington Mut. Bank v Holt, 71 AD3d 670, 670; see Associates First Capital Corp. v Wiggins, 75 AD3d 614; City of New York v Miller, 72 AD3d 726, 727; Scarano v Scarano, 63 AD3d 716, 716; Mortgage Elec. Registration Sys., Inc. v Schotter, 50 AD3d 983, 983). However, a defendant's sworn denial of receipt of service, containing specific facts to rebut the statements in the process server's affidavit, "generally rebuts the presumption of proper service established by a process server's affidavit and necessitates an evidentiary hearing" (City of New York v Miller, 72 AD3d at 727; see Associates First Capital Corp. v Wiggins, 75 AD3d 614;Washington Mut. Bank v Holt, 71 AD3d 670; Scarano [*2]v Scarano, 63 AD3d 716; Bankers Trust Co. of Cal. v Tsoukas, 303 AD2d 343).

Here, the plaintiff's process server swore that he served the summons and motion papers upon the defendant by affixing the papers to the door of a property, which the plaintiff alleged was the defendant's dwelling place or usual place of abode, and then mailing a copy to that same address. The defendant swore that he did not reside at that address and provided an affidavit from the resident of that address which provided, in detail, that she lived at that address with her own family and had advised the plaintiff's process server that the defendant did not reside there. Thus, the defendant established that he was entitled to a hearing on the issue of service, and the Supreme Court erred in making a determination on the plaintiff's motion for summary judgment in lieu of complaint prior to conducting such a hearing (see Deutsche Bank Natl. Trust Co. v Pestano, 71 AD3d 1074; Wells Fargo Bank, NA v Chaplin, 65 AD3d 588; Zion v Peters, 50 AD3d 894, 894; Kingsland Group v Pose, 296 AD2d 440). Accordingly, we remit the matter to the Supreme Court, Kings County, for a hearing at which the plaintiff will have to establish jurisdiction by a preponderance of the evidence (see Deutsche Bank Natl. Trust Co. v Pestano, 71 AD3d 1074; Wells Fargo Bank, NA v Chaplin, 65 AD3d 588; Zion v Peters, 50 AD3d 894).

Moreover, contrary to the plaintiff's contention, a letter dated July 8, 2008, allegedly sent to the plaintiff by the defendant—the document upon which the plaintiff moved for summary judgment in lieu of complaint—was a request for a loan and not an instrument for the payment of money only (see Weissman v Sinorm Deli, 88 NY2d 437, 444; Ro & Ke, Inc. v Stevens, 61 AD3d 953; Comforce Telecom, Inc. v Spears Holding Co., Inc., 42 AD3d 557; Stallone v Rostek, 27 AD3d 449; Gregorio v Gregorio, 234 AD2d 512). The Supreme Court erred in awarding judgment in favor of the plaintiff pursuant to CPLR 3213, as the letter did not contain an unconditional promise by the defendant to pay the plaintiff a sum certain by a set date (see Weissman v Sinorm Deli, 88 NY2d 437). Therefore, in the event that the Supreme Court, Kings County, determines, after a hearing, that it has personal jurisdiction over the defendant, the action is to proceed as a plenary action, with the motion and answering papers deemed to be the complaint and answer, respectively (see Lugli v Johnston, 78 AD3d 1133).

Defaultastic CPLR 5015

CPLR R. 5015

CPLR R. 3211(e)

CPLR § 321 Attorneys
(c) Death, removal or disability of attorney

Alterbaum v Shubert Org., Inc., 2011 NY Slip Op 00339 (App. Div., 2nd 2011)

To vacate an order entered upon their default in opposing the plaintiff's motion for leave to enter a default judgment, the defendants were required to demonstrate, inter alia, a reasonable excuse for their default in appearing or answering the complaint and a potentially meritorious defense to the action (see CPLR 5015[a][1]; Abdul v Hirschfield, 71 AD3d 707; Bekker v Fleischman, 35 AD3d 334; Epps v LaSalle Bus, 271 AD2d 400). The defendants failed to proffer any explanation for their failure to oppose either of the plaintiff's two motions for leave to enter judgment upon their default, one in October 2009, and the second in December 2009, both of which were served upon them (see Epps v LaSalle Bus, 271 AD2d 400). The defendants' claim, which was improperly presented for the first time in a reply affidavit, that their executive assistant did not recall receiving the two motions, did not overcome the presumption of proper mailing created by the affidavits of service (see Kihl v Pfeffer, 94 NY2d 118, 122; Engel v Lichterman, 62 NY2d 943; Mei Yun Li v Qing He Xu, 38 AD3d 731; Terlizzese v Robinson's Custom Serv., Inc., 25 AD3d 547, 548). Furthermore, the defendants did not offer a reasonable explanation for their inaction between December 2009 and May 2010 when they moved to vacate the order dated March 4, 2010. Under the circumstances, the defendants' pattern of willful neglect and default should not have been excused (see Bekker v Fleischman, 35 AD3d 334; Edwards v Feliz, 28 AD3d 512, 513; Gainey v Anorzej, 25 AD3d 650, 651; Roussodimou v Zafiriadis, 238 AD2d 568, 568). In view of the lack of a reasonable excuse, it is unnecessary to consider whether the defendants sufficiently [*2]demonstrated the existence of a potentially meritorious defense (see Abdul v Hirschfield, 71 AD3d at 709; Segovia v Delcon Constr. Corp., 43 AD3d 1143, 1144; American Shoring, Inc. v D.C.A. Constr., Ltd., 15 AD3d 431).

Contrary to the defendants' contention, the plaintiff's affidavit set forth enough facts to enable the Supreme Court to determine that the plaintiff alleged a viable cause of action (see Woodson v Mendon Leasing Corp., 100 NY2d 62, 71; Neuman v Zurich N. Am., 36 AD3d 601, 602).

Deutsche Bank Natl. Trust Co. v Rudman, 2011 NY Slip Op 00346 (App. Div., 2nd 2011)

In this action to foreclose a mortgage, the appellants did not answer the complaint until more than eight weeks after their time to do so expired and, even after their untimely answer was immediately rejected, they took no action to remedy their default until many months later. A defendant who seeks to extend the time to appear or to compel acceptance of an untimely answer must provide a reasonable excuse for the default and show a potentially meritorious defense (see Maspeth Fed. Sav. & Loan Assn. v McGown, 77 AD3d 889). Here, the appellants failed to offer any excuse for their failure to timely answer the complaint (id.; see Emigrant Mtge. Co., Inc. v Teel, 74 AD3d 1275, 1276). Since the appellants failed to offer a reasonable excuse, it is unnecessary to consider whether they demonstrated the existence of a potentially meritorious defense (see Maspeth Fed. Sav. & Loan Assn. v McGown, 77 AD3d at 889).

Accordingly, the Supreme Court properly denied the appellants' cross motion, inter alia, to vacate their default in answering and extend their time to answer, and properly granted the plaintiff's motion for leave to enter a judgment of foreclosure and sale against the appellants.

Stamulis v Mordred Realty Corp., 2011 NY Slip Op 00374 (App. Div., 2nd 2011)

In order to prevail on a motion to vacate a default judgment, a defendant is required to demonstrate both a reasonable excuse for its default and a potentially meritorious defense (see Fekete v Camp Skwere, 16 AD3d 544, 545; Amato v Fast Repair, Inc., 15 AD3d 429, 430; Costanza v Gold, 12 AD3d 551, 552; Czarnik v Urban, 10 AD3d 627). Here, the confusion surrounding the withdrawal of defense counsel from the case and the plaintiff's apparent failure to comply with CPLR 321(c) provided a sufficient excuse for the defaults. In addition, the appellants established the existence of potentially meritorious defenses based on a close reading of the subject lease. Therefore, the Supreme Court should have denied the plaintiff's motion and granted the appellants' cross motion.

Matter of Brodsky v New York City Campaign Fin. Bd., 2011 NY Slip Op 00256 (App. Div., 1st 2011)

Order, Supreme Court, New York County (Eileen A. Rakower, J.), entered December 16, 2009, which, to the extent appealed from, granted respondent's motion to compel petitioner Meryl Brodsky to completely and accurately respond to an information subpoena and questionnaire (CPLR 5224), and denied said petitioner's cross motion to quash the subpoena and vacate the underlying judgment, same court and Justice, entered August 31, 2009, unanimously affirmed, without costs.

Petitioner waived her objection to Supreme Court's jurisdiction over her by failing to raise it in her opposition to respondent's motion (see CPLR 3211[e]; Matter of United Servs. Auto. Assn. v Kungel, 72 AD3d 517, 518 [2010]).

Petitioner has not been prejudiced by any technical defects in the judgment in connection with which the information subpoena was served.

I’m having an existential crisis

In the meantime, here are the recent no-fault decisions.

Appellate Term 1st

Natural Acupuncture Health, P.C. v Praetorian Ins. Co., 2011 NY Slip Op 50040(U) (App. Term, 1st Dept)

Defendant made a prima facie showing of entitlement to judgment as a matter of law dismissing plaintiff Spring Medical, P.C.'s claims for assigned first-party no-fault benefits. Defendant established through the affidavit of its claims examiner and excerpts from the Workers' Compensation Medical Fee Schedule, which may be judicially noticed by this Court (see Kingsbrook Jewish Med. Ctr. v Allstate Ins. Co., 61 AD3d 13, 21 [2009]), that the fees Spring charged for the medical services it rendered to the assignor exceeded the relevant rates set forth in the fee schedule. In opposition, Spring failed to raise a triable issue regarding [*2]defendant's interpretation of the fee schedule or calculation of the applicable fees. Therefore, defendant's motion for summary judgment dismissing Spring's claims — which sought the difference between the amount Spring charged for the services and payments defendant made to Spring pursuant to the fee schedule — should have been granted (see Cornell Med., P.C. v Mercury Cas. Co., 24 Misc 3d 58 [2009]).

Defendant's motion for summary judgment dismissing the claim of plaintiff Right Aid Diagnostic Medicine, P.C. based on lack of medical necessity was properly denied, since defendant did not demonstrate as a matter of law that it timely denied the claim within the statutory 30-day period (see Country-Wide Ins. Co. v Zablozki, 257 AD2d 506 [1999], lv denied 93 NY2d 809 [1999]) or that the 30-day period was tolled by a proper verification request (see Nyack Hosp. v Encompass Ins. Co., 23 AD3d 535 [2005]). We note in this connection that the reply affirmation submitted by Right Aid could not be considered for the purpose of showing a prima facie entitlement to summary judgment (see Batista v Santiago, 25 AD3d 326 [2006]).

Pomona Med. Diagnostic v MVAIC, 2011 NY Slip Op 50042(U) (App. Term, 1st Dept.)

Defendant's motion for summary judgment dismissing the complaint was properly denied, albeit for reasons other than those stated by Civil Court. In support of its contention that plaintiff's assignor was not a "qualified" person entitled to payment of first-party no-fault benefits by defendant (see Insurance Law § 5221[b]), defendant relied on inadmissible hearsay — an uncertified computer printout of an "insurance activity expansion" (see Progressive Classic Ins. Co. v Kitchen, 46 AD3d 333 [2007]). In any event, the expansion does not establish that there was a policy of insurance in effect at the time of the accident (see generally id.; cf. Matter of Commercial Union Ins. Co. (Kim), 268 AD2d 296 [2000], lv denied 95 NY2d 762 [2000]). Defendant's submissions are also insufficient to establish as a matter of law that plaintiff's assignor did not comply with the notice of claim requirements (see Insurance Law § 5208).

Appellate Term 2nd

Allstate Social Work & Psychological Servs., PLLC v Utica Mut. Ins. Co., 2011 NY Slip Op 21010 (App. Term, 2nd, 11th & 13th Jud. Dists. 2011)

It is uncontested that defendant established that the IME requests were timely mailed in accordance with HVMC's standard office practices and procedures and that the assignors failed to appear for the IMEs (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). However, plaintiff contends that defendant's insurance policy, which incorporates the language of the mandatory personal injury protection endorsement (Insurance Department Regulations [11 NYCRR] § 65-1.1), requires that IMEs of eligible injured persons (EIPs) be conducted only by physicians, to the exclusion of other healthcare providers, even when the health services for which first-party no-fault benefits are sought were provided by non-physicians. In rejecting [*2]plaintiff's contention, the Civil Court relied on an opinion letter of the State Insurance Department, dated March 12, 2004 (see 2004 Ops Ins Dept No. 04-03-10). We find that the Insurance Department Regulations (11 NYCRR part 65), read as a whole, in accordance with the rules of construction, and the State Insurance Department's opinion letter, to which we accord great deference, lead to the conclusion that the requirement that an EIP submit to medical examinations, as set forth in the mandatory personal injury protection endorsement (Insurance Department Regulations [11 NYCRR] § 65-1.1), should not be limited strictly to examinations by physicians. Thus, in the instant matter, we find that the psychologist retained by defendant could properly have conducted the IMEs of plaintiff's assignors, who had received psychological treatment (see generally Stephen Fogel Psychological, P.C., 35 AD3d at 722; Meridian Acupuncture Care v Geico Ins. Co., 31 AD3d 509 [2006]). A contrary conclusion would frustrate the core objective of the no-fault scheme by limiting the universe of healthcare providers who can perform IMEs to physicians, thereby delaying the processing of no-fault claims (see also Stephen Fogel Psychological, P.C., 35 AD3d at 722). Therefore, we find that defendant properly denied plaintiff's claims based on its assignors' failure to satisfy a condition precedent to coverage.

Lincoln Gen. Ins. Co. v Alev Med. Supply, Inc., 2011 NY Slip Op 21012 (App. Term, 9th & 10th Jud. Dists. 2011)

With very limited exceptions, an insurer's failure to pay or deny a claim within the 30-day claim determination period (see Insurance Law § 5106) precludes the insurer from interposing most defenses to payment of no-fault benefits, including the fact that medical services or medical [*2]equipment billed for were never actually provided (see Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556[2008]). If an insurer is precluded from asserting a defense due to its failure to pay or deny a claim within the 30-day claim determination period, it may not later seek to recover amounts it paid on the claim based on a theory of unjust enrichment (see e.g. Cornell Med., P.C. v Mercury Cas. Co., 24 Misc 3d 58 [App Term, 2d, 11th & 13th Jud Dists 2009]). However, where, as here, an insurer timely pays a claim within the 30-day claim determination period, the insurer is not foreclosed from affirmatively commencing an action to recover the amounts paid on the claim when the insurer later discovers that the claim is fraudulent (see State Farm Mut. Auto Ins. Co. v Grafman, 655 F Supp 2d 212, 223-224 [ED NY 2009]; State Farm Mut. Auto Ins. Co. v James M. Liguori, M.D., P.C., 589 F Supp 2d 221 [ED NY 2008]; see also Carnegie Hill Orthopedic Servs. P.C. v GEICO Ins. Co., 19 Misc 3d 1111[A], 2008 NY Slip Op 50639[U] [Sup Ct, Nassau County 2008, Austin, J.]; Progressive Northeastern Ins. Co. v Advanced Diagnostic & Treatment Med., NYLJ, Aug. 2, 2001, at 18, col 2 [Sup Ct, NY County, Gammerman, J.]). The fact that the insurer chose to pay first-party no-fault benefits within the 30-day claim determination period, at a point when the insurer had no reason to deny the claim, "cannot in any sense be taken as a concession that the claim is legitimate" (Dermatossian v New York City Tr. Auth., 67 NY2d 219, 224 [1986]). Indeed, an opinion letter issued by the New York State Department of Insurance specifically states that the No-Fault Law "is in no way intended and should not serve as a bar to subsequent actions by an insurer for the recovery of fraudulently obtained benefits from a claimant, where such action is authorized under the auspices of any statute or under common law" (Ops Gen Counsel NY Ins Dept [Nov. 29, 2000]). The rationale behind this interpretation is that "payment of fraudulently obtained No-Fault benefits, without available recourse, serves to undermine and damage the integrity of the No-Fault system, which was created as a social reparations system for the benefit of consumers. To conclude that the No-Fault statute bars the availability of other legal remedies, where the payment of benefits [was] secured through fraudulent means, renders the public as the ultimate victim of such fraud, in the form of higher premiums based upon the resultant increased costs arising from the fraudulent actions" (id.). Moreover, "[t]here is nothing in the legislative history or case law interpretations of the statute or in Insurance Department regulations, opinions or interpretations of the statute that supports the argument that the statute bars such actions" (id.).

Accordingly, contrary to the conclusion of the District Court, plaintiff is not barred from bringing this action seeking recovery of the amount it paid to defendant. As plaintiff demonstrated its compliance with CPLR 3215 (f) and CPLR 3215 (g) (4) (i), the District Court should have granted plaintiff's motion for leave to enter a default judgment.

62-41 Woodhaven Med., P.C. v Adirondack Ins. Exch., 2011 NY Slip Op 50026(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2011)

Defendant's cross motion papers set forth detailed and specific reasons for believing that plaintiff is ineligible to recover no-fault benefits because plaintiff fails to meet applicable state and local licensing requirements (see Insurance Department Regulations [11 NYCRR] § 65-3.16 [a] [12]; State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]). As defendant's cross motion papers were sufficient to establish that special circumstances exist which warrant [*2]disclosure of plaintiff's corporate tax returns and its professional employees' tax records (see CPLR 3101; One Beacon Ins. Group, LLC v Midland Med. Care, P.C., 54 AD3d 738 [2008]; Great Wall Acupuncture v State Farm Mut. Auto. Ins. Co., 20 Misc 3d 136[A], 2008 NY Slip Op 51529[U] [App Term, 2d & 11th Jud Dists 2008]; Statewide Med. Servs., P.C. v Travelers Ins. Co., 13 Misc 3d 134[A], 2006 NY Slip Op 52014[U] [App Term, 1st Dept 2006], revg 9 Misc 3d 1124[A], 2005 NY Slip Op 51773[U] [Civ Ct, Bronx County 2005]; see also Dore v Allstate Indem. Co., 264 AD2d 804 [1999]; cf. Benfeld v Fleming Props., LLC, 44 AD3d 599, 600 [2007]; Altidor v State-Wide Ins. Co., 22 AD3d 435 [2005]), the order, insofar as appealed from, is affirmed.

South Nassau Orthopedic Surgery & Sports Medicine, P.C. v MVAIC, 2011 NY Slip Op 50028(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2011)

Plaintiff, as assignee, is required to exhaust its remedies against the owner of the vehicle in which plaintiff's assignor was riding before seeking relief from MVAIC (Hauswirth v American Home Assur. Co., 244 AD2d 528 [1997]; Modern Art Med., P.C. v MVAIC, 22 Misc 3d 126[A], 2008 NY Slip Op 52586[U] [App Term, 2d & 11th Jud Dists 2008]; Doctor Liliya Med., P.C. v MVAIC, 21 Misc 3d 143[A], 2008 NY Slip Op 52453[U] [App Term, 2d & 11th Jud Dists 2008]; Dr. Abakin, D.C., P.C. v MVAIC, 21 Misc 3d 134[A], 2008 NY Slip Op 52186[U] [App Term, 2d & 11th Jud Dists 2008]; Complete Med. Servs. of NY, P.C. v MVAIC, 20 Misc 3d 137[A], 2008 NY Slip Op 51541[U] [App Term, 2d & 11th Dists 2008]; see also Knight v Motor Veh. Acc. Indem. Corp., 62 AD3d 665, 666 [2009]; cf. Matter of MVAIC v Interboro Med. Care & Diagnostic PC, 73 AD3d 667 [2010]). Until plaintiff [*2]exhausts its remedies, its claim against MVAIC is premature (Complete Med. Servs. of NY, P.C. v MVAIC, 20 Misc 3d 137[A], 2008 NY Slip Op 51541[U]). Accordingly, the order is reversed and MVAIC's motion for summary judgment dismissing the complaint is granted.

Sound Shore Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 2011 NY Slip Op 50033(U) (App. Term, 9th & 10th Jud. Dists. 2011)

In support of its cross motion and in opposition to defendant's motion for summary judgment, plaintiff did not assert that it had never received the initial and follow-up verification requests nor did it assert that it had fully complied with these requests. Plaintiff's attorney merely argued that since the affidavit of the hospital biller, taken together with the copy of the certified return receipt card, established that defendant had received the bill on December 22, 2008, defendant's initial verification request, sent on November 26, 2008, pre-dated defendant's receipt of the bill and was therefore a nullity. However, the record establishes that defendant's initial verification request was sent to plaintiff after plaintiff had sent, and defendant had received, a UB-04 form, which specified the treatment rendered. The UB-04 form is the successor to the UB-92 form and the functional equivalent of the NF-5 form (see Insurance Department Regulations [11 NYCRR] § 65-3.5 [a], [f]). Accordingly, defendant's initial verification request was not untimely (cf. Mount Sinai Hosp. v Triboro Coach, 263 AD2d 11 [1999]).

Since plaintiff has not rebutted defendant's prima facie showing that defendant's initial request and follow-up request for verification were timely and that plaintiff failed to respond to same, defendant established that its time to pay or deny the claim was tolled. Consequently, defendant's motion for summary judgment dismissing the complaint, on the ground that the action was premature, should have been granted (see Hospital for Joint Diseases v New York Cent. Mut. Fire Ins. Co., 44 AD3d 903 [2007]; Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]; Mary Immaculate Hosp. v New York Cent. Mut. Fire Ins. Co., 21 Misc 3d 130[A], 2008 NY Slip Op 52046[U] [App Term, 9th & 10th Jud Dists 2008]). Accordingly, the order is reversed, defendant's motion is granted and plaintiff's cross motion for summary judgment is denied.

Radiology Today, P.C. v GEICO Gen. Ins. Co., 2011 NY Slip Op 50035(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2011)

In light of the subsequent order granting defendant's motion to dismiss the complaint (Rudolph Greco, J.) and the judgment entered thereon on November 16, 2009, the right of direct appeal from the order entered September 25, 2009 terminated (see Matter of Aho, 39 NY2d 241, 248 [1976]).

B.Y., M.D., P.C. v GEICO Indem. Co., 2011 NY Slip Op 50036(U) (App. Term, 9th & 10th Jud. Dists. 2011)

Thereafter, the parties participated in mandatory arbitration (see Rules of the Chief Judge [22 NYCRR] part 28) and, after the arbitration hearing, the arbitrator found in favor of plaintiffs. Defendant served and filed a demand for a trial de novo (seeRules of the Chief Judge [22 NYCRR] § 28.12), and plaintiffs moved to strike defendant's demand. In support of plaintiffs' motion, plaintiffs' attorney asserted that, while defendant had appeared at the arbitration by its attorney, defendant's attorney's participation had been minimal, and, thus, defendant should have been deemed to be in default. As a result, plaintiffs contended, defendant was not entitled to demand a trial de novo (see Rules of the Chief Judge [22 NYCRR] § 28.12 [a]). Defendant submitted opposition papers, and the District Court denied plaintiffs' motion. The instant appeal ensued.

The Rules of the Chief Judge (22 NYCRR) § 28.12 (a) provides that a demand for a trial de novo "may be made by any party not in default." A party's failure to appear at an arbitration hearing constitutes a default (see Rules of the Chief Judge [22 NYCRR] § 28.7 [a]). Even where a defendant has appeared by counsel at an arbitration hearing, if such appearance is "without his client[]" and the defendant's counsel "refus[es] to participate in the hearing," the defendant is [*2]similarly deemed to have defaulted (Bitzko v Gamache, 168 AD2d 888, 888 [1990]; see also Finamore v Huntington Cardiac Rehabilitation Assn., 150 AD2d 426 [1989]). However, where, as here, a defendant's attorney appears on behalf of his client at the arbitration hearing without any witnesses, but otherwise participates in the hearing by attempting to refute the plaintiff's case, the defendant has not defaulted (see e.g. Tripp v Reitman Blacktop, 188 Misc 2d 317 [App Term, 9th & 10th Jud Dists 2001]; San-Dar Assoc. v Adams, 167 Misc 2d 727 [App Term, 1st Dept 1996]). Accordingly, the District Court properly denied plaintiffs' motion to strike defendant's demand for a trial de novo.

Appellate Division

Westchester Med. Ctr. v Allstate Ins. Co., 2011 NY Slip Op 00377 (App. Div., 2nd 2011)

The order entered December 21, 2009, did not decide the plaintiff's motion to hold the defendant in contempt for failure to comply with an information subpoena dated March 30, 2009, or the defendant's cross motion to quash the information subpoena, but instead, held that motion and cross motion in abeyance and referred them for a hearing. Accordingly, no appeal lies as of right from that portion of the order (see CPLR 5701[a][2][v]; Evan S. v Joseph R., 70 AD3d 668; Quigley v Coco's Water Café, Inc., 43 AD3d 1132), and we decline to grant leave.

A defendant seeking to vacate a judgment entered on default must demonstrate a [*2]reasonable excuse for its delay in appearing or answering the complaint and a potentially meritorious defense to the action (see CPLR 5015[a][1]; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141; Taddeo-Amendola v 970 Assets, LLC, 72 AD3d 677). The defendant established through an employee's affidavit, which attested to a clerical oversight regarding the delay in forwarding the summons and complaint to its attorney, a reasonable excuse for the short period of time following service of the complaint in which it failed either to appear or answer the complaint (see Perez v Travco Ins. Co., 44 AD3d 738; Sound Shore Med. Ctr. v Lumbermens Mut. Cas. Co., 31 AD3d 743). Furthermore, the defendant demonstrated that it has a potentially meritorious defense to the action. Accordingly, the Supreme Court improvidently exercised its discretion in denying the defendant's motion to vacate its default and to compel acceptance of its answer in light of the strong public policy that actions be resolved on their merits, the brief delay involved, the defendant's lack of willfulness, and the absence of prejudice to the plaintiff (see Perez v Travco Ins. Co., 44 AD3d 738; New York & Presbyt. Hosp. v American Home Assur. Co., 28 AD3d 442).

Almost related to no-fault.

Quinones v Ksieniewicz, 2011 NY Slip Op 00270 (App. Div., 1st 2011)

However, defendants failed to establish prima facie that plaintiff did not sustain a medically determined injury "of a non-permanent nature" that prevented him from performing substantially all of his customary and daily activities for 90 of the 180 days immediately following the accident (see Toussaint v Claudio, 23 AD3d 268 [2005]; Feaster v Boulabat, 77 AD3d 440, 441 [2010]). The reports of defendants' medical experts were based on examinations of plaintiff conducted nearly two years after the subject accident, and addressed plaintiff's condition as of the time of the examination, not during the six months immediately after the accident. The MRI studies that the defense experts reviewed were performed 10 months after the accident.