[App Div 2d Dept]

CPLR § 3101 (facebook/myspace)

CPLR 3101 Scope of disclosure

Lentz v Nic's Gym Inc., 2010 NY Slip Op 06620 (App. Div., 2nd 2010)

CPLR 3101(a) is to be construed liberally so that there should be disclosure of any material that is even arguably relevant (see Shanahan v Bambino, 271 AD2d 519). However, "unlimited disclosure is not required, and supervision of disclosure is generally left to the trial court's broad discretion" (Palermo Mason Constr. v Aark Holding Corp., 300 AD2d 460, 461 [internal quotation marks omitted]; see Silcox v City of New York, 233 AD2d 494). The essential test is one based on "usefulness and reason" (Andon v 302-304 Mott St. Assoc., 94 NY2d 740, 746 [internal quotation marks omitted]). Here, the Supreme Court providently exercised its discretion in granting that branch of the plaintiff's motion which was to direct the defendant to allow the plaintiff to inspect the gym mats which allegedly caused her to fall and sustain injuries, and in denying the defendant's cross motion for a protective order.

And here is a recent decision on interweb discovery. Look for many more in the future.

Romano v Steelcase Inc., 2010 NY Slip Op 06620 (Supreme Court, Suffolk County 2010)

The present application was brought on by Order to Show Cause. The Court has reviewed the submissions both in favor of and in opposition to the relief sought, as well as the applicable federal statutory law, specifically the Stored [*2]Communications Act, 18 U.S.C. ¶ 2701 et seq., which prohibits an entity, such as Facebook and MySpace from disclosing such information without the consent of the owner of the account (see, 18 U.S.C. ¶ 2702(b)(3); Flagg v City of Detroit, 252 FRD 352 [ED Mich 2008]).

You can read more over at NFP.

Farked

Cheour v Pete & Sals Harborview Transp., Inc., 2010 NY Slip Op 06614 (App. Div., 2nd 2010)

Contrary to the Supreme Court's determination, the defendants failed to demonstrate, prima facie, that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957). In support of their motion, the defendants relied on, inter alia, the affirmed medical report of Dr. S. Farkas. In his report, Dr. Farkas, an orthopedist, noted during lumbar testing that the plaintiff had a "jog" of flexion and lateral bending, but he failed to compare those findings to what is normal (see Spanos v Harrison, 67 AD3d 893; Gibson-Wallace v Dalessandro, 58 AD3d 679). Furthermore, Dr. Farkas noted during his examination of the plaintiff that she had significant limitations in cervical spine, left knee, and left shoulder range of motion (see Mondevil v Kumar, 74 AD3d 1295; Smith v Hartman, 73 AD3d 736; Quiceno v Mendoza, 72 AD3d 669; Giacomaro v Wilson, 58 AD3d 802; McGregor v Avellaneda, 50 AD3d 749; Wright v AAA Constr. Servs., Inc., 49 AD3d 531). While Dr. Farkas stated that the plaintiff presented with "extreme exaggeration of symptoms" and that the decreased ranges of motion noted by him were "not true pathologic findings" and were instead exaggerated subjective complaints, he failed to explain or substantiate those conclusions with any objective medical evidence (see Reitz v Seagate Trucking, Inc., 71 AD3d 975; Bengaly v Singh, 68 AD3d 1030; Ortiz v S & A Taxi Corp., 68 AD3d 734).

The defendants also relied on the affirmed medical report of Dr. Sarasavani Jayaram, a neurologist, which also set forth significant limitations in the plaintiff's lumbar spine range of motion when the plaintiff was examined (see Mondevil v Kumar, 74 AD3d at 1295; Smith v [*2]Hartman, 73 AD3d at 736; Quiceno v Mendoza, 72 AD3d at 669; Giacomaro v Wilson, 58 AD3d at 802).

Since the defendants failed to meet their prima facie burden, it is unnecessary to consider whether the plaintiff's papers in opposition to the defendants' motion were sufficient to raise a triable issue of fact (see Coscia v 938 Trading Corp., 283 AD2d 538).

The bold is mine. For a discussion of this decision head over to JT's blog.

CPLR § 511(b) Sufficiency of affidavit can’t be weighed, but contents may be considered.

CPLR § 503 Venue based on residence

CPLR § 510 Grounds for change of place of trial

CPLR R. 511 Change of place of trial

HVT, Inc. v Safeco Ins. Co. of Am., 2010 NY Slip Op 06571 (App. Div., 2nd 2010)

On this appeal, we must determine whether an affidavit served by a plaintiff in accordance with CPLR 511(b) may be scrutinized to ensure that it does, in fact, "show[ ] either that the county specified by the defendant is not proper or that the county designated by him is proper," or if the mere service of such an affidavit, irrespective of its content, satisfies the plaintiff's burden. We hold that, while the sufficiency of the factual averments set forth in such affidavits may not be weighed, the contents of the affidavits may nonetheless be considered to confirm that the averments therein do indeed "show[ ] either that the county specified by the defendant is not proper or that the county designated by [the plaintiff] is proper" as required by the statute (CPLR 511[b]).

It's a long decision, but it's worth reading. I'll add more later.

A Class Denied

CPLR § 901 Prerequisites to a class action

Corsello v Verizon N.Y., Inc., 2010 NY Slip Op 06563 (App. Div., 2nd 2010)

Contrary to the plaintiffs' contentions, the Supreme Court properly denied their motion, inter alia, for class action certification. The Supreme Court properly found that the proposed class definition was overbroad (see Klein v Robert's Am. Gourmet Food, Inc., 28 AD3d 63, 71). Furthermore, the plaintiffs failed to establish that questions of law or fact common to the class predominate over any questions affecting only individual members (see CPLR 901[a][2]; Morrissey v Nextel Partners, Inc., 72 AD3d 209; Solomon v Bell Atl. Corp., 9 AD3d 49, 53; Hazelhurst v Brita Prods. Co., 295 AD2d 240, 241-242; Small v Lorillard Tobacco Co., 252 AD2d 1, 9, affd 94 NY2d 43; Mitchell v Barrios-Paoli, 253 AD2d 281, 291), and that their claims or defenses were typical of those of the class (see CPLR 901[a][3]; Dimich v Med-Pro, Inc., 34 AD3d 329, 330; Ross v Amrep Corp., 57 AD2d 99, 102-103).

The NYLJ has something special for you.

My week started off with the littlest child breaking my glasses into two. As you can see, I fixed it with a mix of crazy glue and sewing thread. Now when I wear them I look like Sloth and it makes my vision all crazy like. And today, while I was walking home I walked past an electronics store with a Pickachu statute on the outside and I swear, it looked like it was flipping me the bird. I blame that on my lack of sleep. What I can't explain is that for second, I was genuinely pissed at Pickachu.¹

And onto the law. Yesterday's Law Journal had one of those special fancy pants pull out sections: Court of Appeals and Appellate Practice. One of the sections, indeed, the most important section is, Civil Practice: Substantive Impact of the CPLR. Sure, there are other sections, but you didn't come here for them. You can here to see if I would actually fight a statue of a cartoon character and read about the CPLR.

The section covers, among other things CPLR CPLR § 205(a), CPLR § 5511, CPLR § 5304, CPLR § 901(a).

The discussion of CPLR 205(a) revolved around Matter of Goldstein v New York State Urban Dev. Corp., 13 NY3d 511 (Ct. App., 2009), a case I posted way back when. Next is CPLR 5511. The author, Thomas F. Gleason, starts with Batavia Turf Farms v. County of Genesee, 91 NY 2d 906 (Ct. App. 1998), a remarkably terse decision. From there he moves to Adams v Genie Indus., Inc., 14 NY3d 535 (Ct. App. 2010), a case I didn't post. Adams, Mr. Gleason writes, rejected the "more restrictive premise of Batavia, viz., "a stipulation on one issue (such as damages) would foreclose an appeal on other unrelated issues, because a party who had consented to an order could not claim to be aggrieved by any part of it within the meaning of CPLR 5511."²

In his discussion of class actions, namely CPLR 901(a), he refers to City of New York v Maul, 14 NY3d 499 (Ct. App. 2010), another case I managed to miss.

There's more. But you have to go read it for yourself.

Norman A. Olch, blogger and appellate guru, provides a several book reviews, including Making Your Case, by Scalia and Garner. Everyone should read it. You shouldnt need him to tell you to, but, if it that's what it takes, then fine.

Harry Steinberg has a must read section on how not to completely screw up your appeal. Part of it involves preserving the issues for appeal. A decision came out today on just that issue: Arrieta v Shams Waterproofing, Inc., 2010 NY Slip Op 06508 (App. Div., 1st 2010).

I might add some more later.

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1. I'm recycling facebook updates today.

2. For more cases discussing what it means to be "aggrieved" click HERE. I think all of them are from the Appellate Division, Second Department. Mixon v TBV, Inc., 2010 NY Slip Op 05521 (App. Div., 2nd, 2010) is the most recent and probably the most useful.

W-9’s and Settlements: CPLR § 5003-a

CPLR § 5003-a. Prompt payment following settlement

Klee v Americas Best Bottling Co., Inc., 2010 NY Slip Op 06361 (App. Div., 2nd, 2010)

When the defendants failed to pay the sum due under the settlement agreement within 21 days of tender of the release and stipulation of discontinuance, the plaintiff sought to enter judgment against them in accordance with CPLR 5003-a. On August 11, 2009, a judgment was entered in favor of the plaintiff in the agreed-upon settlement amount, together with interest, costs, and disbursements. Shortly thereafter, the defendants moved, inter alia, to vacate the judgment, arguing that the Internal Revenue Code required the plaintiff's attorney to comply with their request [*2]for a completed Form W-9, and that the plaintiff had procured the judgment by misrepresenting that he had provided them with all necessary settlement documents. While the motion was pending, the plaintiff's attorney completed Form W-9, and the defendants paid the sum of $400,000 required by the settlement agreement. The plaintiff opposed vacatur of the judgment, contending that the defendants' failure to pay the settlement proceeds within 21 days after his tender of the release and stipulation of discontinuance entitled him to recover interest, costs, and disbursements pursuant to CPLR 5003-a. The plaintiff also noted that his attorney had provided the defendants with his taxpayer identification number in the cover letter accompanying the settlement documents, and argued that an attorney receiving "gross proceeds" had no obligation to certify his or her taxpayer identification number to the payor on Form W-9. The Supreme Court granted the defendants' motion, relying upon the decision of the Appellate Division, First Department, in Cely v O'Brien & Kreitzberg (45 AD3d 368) to conclude, in essence, that the plaintiff's attorney was required to provide the defendants with a completed Form W-9 as a condition precedent to payment of the settlement proceeds. We disagree.

CPLR 5003-a was enacted in 1992 to encourage prompt payment of settlements (see Cunha v Shapiro, 42 AD3d 95, 101; Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C5003-a: 121). To this end, the statute requires any settling defendant, subject to certain exceptions not applicable here (see CPLR 5003-a[b], [c], [d]), to pay all sums due to any settling plaintiff "within twenty-one days of tender, by the settling plaintiff to the settling defendant[s], of a duly executed release and a stipulation discontinuing [the] action executed on behalf of the settling plaintiff"(CPLR 5003-a[a]). Where, as here, the release and stipulation of discontinuance are tendered by mail, the 21-day period is measured from receipt of the documents (see Leipold v Arnot Ogden Med. Ctr., 46 AD3d 1299, 1300; Cunha v Shapiro, 42 AD3d at 101). If the settling defendant fails to pay the sum due under the settlement agreement within 21 days of tender of the required documents, the statute authorizes the plaintiff to enter, without further notice, a judgment in the amount of the settlement, which is to include interest, costs, and disbursements (see CPLR 5003-a[e]).

Here, the plaintiff fulfilled his obligations under CPLR 5003-a by tendering a duly executed release and stipulation of discontinuance to the defendants' attorney. Neither CPLR 5003-a, nor the parties' stipulation of settlement, imposed any additional requirement on the plaintiff or his attorney. Regardless of whether the defendants' request that the plaintiff's attorney complete Form W-9 certifying his tax identification number was reasonable, as they contend, there is no statutory authority for elevating the completion of this form to a condition precedent for payment of the sum due in settlement of a personal injury claim (see In re Emergency Beacon Corp., 52 B.R. 828, 830; cf. Liss v Brigham Park Coop. Apts. Sec. No. 3, 264 AD2d 717).

Although we are aware that the Appellate Division First Department, reached a contrary conclusion in Cely v O'Brien & Kreitzberg (45 AD3d 368), we do not find the rationale of that case persuasive. Compensation for personal injuries does not generally constitute gross income (see 26 USC § 104[a][2]), and the defendants made no showing that the portion of the personal injury settlement which the plaintiff's attorney may be entitled to retain as a legal fee is actually a "reportable payment" subject to the reporting requirements of the Internal Revenue Code (see 26 USC § 3406). Moreover, even assuming that the defendants' insurance carrier is mandated to report payment of the settlement proceeds to the plaintiff's attorney, the defendants have not demonstrated that the provision of Form W-9 is the sole means by which the carrier can comply with its reporting obligations. Under these circumstances, we decline to effectively amend the terms of the parties' stipulation of settlement by conditioning payment of the settlement proceeds upon completion of the form. Granting settling defendants the unilateral right to withhold payment in these circumstances would significantly undercut the statutory goal of CPLR 5003-a to ensure the prompt payment of settlement proceeds upon tender of the statutorily prescribed documents. Accordingly, the defendants' failure to timely pay the sum due under the settlement agreement entitled the plaintiff to enter judgment including interest, costs, and disbursements pursuant to CPLR 5003-a(e) (see Leipold v Arnot Ogden Med. Ctr., 46 AD3d 1299; Sealey v Jamaica Buses, Inc., 39 AD3d 526, 527; Hadier v Remington Place Assoc., 302 AD2d 428). [*3]

The defendants' contention that this appeal is barred by the doctrine of accord and satisfaction because the plaintiff cashed the settlement check while their motion to vacate the judgment was pending is without merit (see Merrill Lynch Realty/Carll Burr, Inc. v Skinner, 63 NY2d 590, 596; Pepe v Tannenbaum, 279 AD2d 620).

The bold is mine. Head over to New York Appellate Law Blog for the short version. 5003-a is oddly similar to the no-fault regs.

CPLR R. 3212(f)

CPLR R. 3212(f)

Anne Koplick Designs, Inc. v Lite, 2010 NY Slip Op 06356 (App. Div., 2nd, 2010)

Here, the plaintiffs made a prima facie showing of their entitlement to judgment as a matter of law on the issue of liability (see CPLR 3212[b]; Yiouti Rest. v Sotiriou, 151 AD2d 744, 745). In support of their motion, the plaintiffs submitted an expert affirmation of an attorney establishing that the defendant Justin N. Lite failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession by, among other things, advising the plaintiffs to default in a lawsuit commenced against them in California and advising them that a default judgment obtained in California would not be enforceable in New York, a clearly incorrect statement of the law (see Logalbo v Plishkin, Rubano & Baum, 163 AD2d 511; Yiouti Rest. v Sotiriou, 151 AD2d at 745). The plaintiffs' submissions also established that, but for the defendants' malpractice, they would have succeeded in defending the underlying claim. In opposition, the defendants failed to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324). [*2]

Moreover, while determination of a summary judgment motion may be delayed to allow for further discovery where evidence necessary to oppose the motion is unavailable to the opponent (see CPLR 3212[f]), "[a] determination of summary judgment cannot be avoided by a claimed need for discovery unless some evidentiary basis is offered to suggest that discovery may lead to relevant evidence" (Ruttura & Sons Constr. Co. v Petrocelli Constr., 257 AD2d 614, 615; see Williams v D & J School Bus, Inc., 69 AD3d 617, 619; Wyllie v District Attorney of County of Kings, 2 AD3d 714, 717). The defendants failed to provide an evidentiary basis for their assertion that further discovery would lead to additional relevant evidence (see Lambert v Bracco, 18 AD3d 619, 620).

Also interesting was the portion of about out-of-state default judgments. I checked the two sites that the Court cites to, but neither appear to say anything about out-of-state default judgments. Compare Magic Recovery Med. & Surgical Supply Inc. v State Farm Mut. Auto. Ins. Co., 2010 NY Slip Op 20130 (App. Term, 2nd, 11th and 13th, Jud. Dists., 2010), which cites to Zimmerman v Tower Ins. Co. of N.Y., 13 AD3d 137 (App. Div., 1st, 2004)

CPLR R. 5015: Can’t require a bond to vacate a judgment that doesn’t exist

CPLR R. 5015 Relief from judgment or order

Doris v Lewis, 2010 NY Slip Op 06357 (App. Div., 2nd, 2010)

The Supreme Court erred in requiring the defendant to post a bond. A court which renders a "judgment or order may relieve a party from it upon such terms as may be just" (CPLR 5015[a]), including the imposition of a bond or undertaking (see Yadid, LLC v GCW Bell Corp., 48 [*2]AD3d 799, 800; Civil Serv. Empls. Assn. v County of Nassau, 296 AD2d 474, 475; Testwell Craig Labs. v Charles Assoc., 264 AD2d 836; Harp v Tednick Corp., 256 AD2d 904, 905; F & K Supply v Balbec Corp., 182 AD2d 911). However, in the instant case, the Supreme Court did not issue an order granting the plaintiffs' motion for leave to enter judgment upon the defendant's default and did not render a default judgment. Thus, there was no judgment or order from which the defendant was seeking to be relieved.

It's pretty rare that you find a decision where the court requires a bond as a condition of vacatur. Even with the facts as they are in this case, it's still an interesting decision.

Reconcile This: Hearsay

LaVecchia v Bilello, 2010 NY Slip Op 06363 (App. Div., 2nd, 2010)

The requisite elements of proof in a dental malpractice action are a deviation or departure from accepted standards of dental practice, and evidence that such departure was a proximate cause of the plaintiff's injury (see Koi Hou Chan v Yeung, 66 AD3d 642; Terranova v Finklea, 45 AD3d 572; Clarke v Limone, 40 AD3d 571). Therefore, on a motion for summary judgment, the defendant dentist has the initial burden of establishing the absence of any departure from good and accepted practice, or that the plaintiff was not injured thereby (see Koi Hou Chan v Yeung, 66 AD3d at 642; Terranova v Finklea, 45 AD3d at 572; Williams v Sahay, 12 AD3d 366, 368). "To sustain this burden, the defendant must address and rebut any specific allegations of malpractice set forth in the plaintiff's bill of particulars" (Koi Hou Chan v Yeung, 66 AD3d at 643; see Ward v Engel, 33 AD3d 790, 791; Johnson v Ladin, 18 AD3d 439).

Here, as the Supreme Court correctly determined, the defendant Raphaelson Dental Associates (hereinafter RDA) failed to make a prima facie showing of its entitlement to judgment as a matter of law. RDA's dental expert relied upon, inter alia, an unsworn dental report by Dr. Jenal and dental records that were not annexed to the motion (see Farmer v City of New York, 25 AD3d 649, 650). Moreover, the affidavit of RDA's dental expert was conclusory, and failed to rebut all of the specific allegations of dental malpractice set forth in the plaintiff's verified bill of particulars (see Terranova v Finklea, 45 AD3d at 572; Ward v Engel, 33 AD3d at 791). The expert affirmation submitted by the defendant Rita Marie Bilello likewise was insufficient to establish RDA's prima facie entitlement to judgment as a matter of law. Accordingly, the Supreme Court properly denied [*2]RDA's motion, regardless of the sufficiency of the plaintiff's opposing papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853; Koi Hou Chan v Yeung, 66 AD3d at 644).

Compare this with Urban Radiology, P.C. v Tri-State Consumer Ins. Co., 27 Misc 3d 140(A) (App. Term, 2nd, 11th & 13th Jud. Dists. 2010)

Moreover, we note that, while defendant's peer review doctor may have considered medical records received from other providers who had rendered treatment to the assignor, defendant was not seeking to use such records to establish the truth of the facts set forth therein. Defendant was not attempting to prove that Rafailova was injured as documented in her medical records, or that she was treated as set forth in those records. Instead, defendant's peer review doctor simply opined that, assuming the facts set forth in Rafailova's records were true, the treatment allegedly provided was not medically necessary. Therefore, as defendant was not using the underlying medical records for their truth, such records were not being used for a hearsay purpose (see e.g. Dawson v Raimon Realty Corp., 303 AD2d 708 [2003]; Splawn v Lextaj Corp., 197 AD2d 479 [1993]). This is distinguishable from a situation in which a medical expert relies upon medical records to establish the fact of an injury (see e.g. Hambsch v New York City Tr. Auth., 63 NY2d 723 [1984]; Wagman v Bradshaw, 292 AD2d 84 [2002]). Consequently, plaintiff's argument that defendant failed to establish the reliability of the underlying medical records in support of its claim that the treatment provided was not medically necessary is irrelevant.

Can these two decisions be reconciled? For those of you that don't practice in the Civil Court, this might not mean anything to you. But you never know if and when this issue will creep into Supreme Court. For more background on the issue, read THIS, THIS, and THIS.¹

Also of interest is the fact that the Urban decision is an unreported decision, which could be the Appellate Term's way of saying, "hey, this is only for no fault."

Finally, I'm by the time you all got to this point in the post you were wondering whether you have been using "i.e." or "e.g." appropriately. Here you go:

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1. The last one is a NYLJ article and you need to pay to play, however, if the authors woudl post the article on their website, I could put a link to it and make everyone look smart.

Defaults and legal (as opposed to factual) conclusions to be drawn by the Court.

CPLR � 3215 Default Judgment
(a) Default and Entry
(b) Procedure before court

McGee v Dunn, 2010 NY Slip Op 06233 (App. Div., 2nd, 2010)

The defendant was personally served with the summons and verified complaint on July 23, 2008, and failed to answer the complaint, appear, or move with respect thereto within the 20-day statutory period (see CPLR 320[a]). In late August 2008 the plaintiff moved for leave to enter a judgment against the defendant upon his default in answering and for an inquest on the issue of damages. The defendant cross-moved to dismiss the complaint pursuant to CPLR 3211(a). The Supreme Court denied the plaintiff's motion and granted the defendant's motion to dismiss the complaint. We modify.

Although a defaulting defendant is deemed to have admitted all the allegations in the complaint, "the legal conclusions to be drawn from such proof are reserved for the Supreme Court's determination" (Venturella-Ferretti v Ferretti,AD3d, 2010 NY Slip Op 04777, *1 [2d Dept 2010]; see CPLR 3215[b]; Green v Dolphy Constr. Co., 187 AD2d 635, 636). There is no " mandatory ministerial duty'" to enter a default judgment against a defaulting party (Resnick v Lebovitz, 28 AD3d 533, 534, quoting Gagen v Kipany Prods., 289 AD2d 844, 846 [internal quotation marks omitted]). Instead, the court must determine whether the motion was supported with "enough facts to enable [the] court to determine that a viable cause of action exists" (Woodson v Mendon Leasing Corp., 100 NY2d 62, 71; see Cardo v Board of Mgrs., Jefferson Vil. Condo 3, 29 AD3d 930, 932; Beaton v Transit Facility Corp., 14 AD3d 637). "In determining whether the plaintiff has a viable cause of action, the court may consider the complaint, affidavits, and affirmations submitted by the plaintiff" (Litvinskiy v May Entertainment Group, Inc., 44 AD3d 627, [*2]627).

The Supreme Court properly denied the plaintiff's motion for leave to enter judgment upon the defendant's default in answering and for an assessment of damages, as the plaintiff's motion papers failed to set forth sufficient facts to enable the court to determine that there exists a viable cause of action to recover damages for either libel (see Rosenberg v MetLife, Inc., 8 NY3d 359, 365; Rufeh v Schwartz, 50 AD3d 1002, 1004) or malicious prosecution (see Baker v City of New York, 44 AD3d 977, 979; Paisley v Coin Device Corp., 5 AD3d 748, 749-750). However, the Supreme Court should not have granted the defendant's motion pursuant to CPLR 3211(a) to dismiss the complaint as it was not made prior to the time by which the defendant was required to serve an answer or notice of appearance (see CPLR 320[a]; 3211[e]). Furthermore, the defendant's motion failed to request an extension of time to answer or appear (see CPLR 2004). In addition, the defendant's motion to dismiss the complaint failed to set forth a reasonable excuse for the default, which, along with a showing of a potentially meritorious defense, is generally necessary to avoid the entry of a default judgment (see DeStaso v Bottiglieri, 52 AD3d 453, 454; Juseinoski v Board of Educ. of City of N.Y., 15 AD3d 353, 355-356).

Under such circumstances, the Supreme Court improvidently exercised its discretion in granting the defendant's untimely motion to dismiss the complaint, as it, in effect, excused the defendant's default in the absence of a request for such relief (see May v Hartsdale Manor Owners Corp., 73 AD3d 713; Zino v Joab Taxi, Inc., 20 AD3d 521, 522; see also Tirado v Miller,AD3d, 2010 NY Slip Op 04364 [2d Dept 2010]).

Compare Balance Chiropractic, P.C. v Property & Cas. Ins. Co. of Hartford, 27 Misc 3d 138(A) (App. Term, 2nd, 11th & 13th Jud. Dists. 2010). Read more about it at JT.