[App Div 2d Dept]

Choose your reasonable excuse wisely, you might get stuck with it. CPLR R. 5015

CPLR R. 5015

Tadco Constr. Corp. v Allstate Ins. Co., 2010 NY Slip Op 04362 (App. Div., 2nd, 2010)

The plaintiff moved for leave to enter a default judgment upon the
defendant's failure to answer or appear and the defendant thereafter
cross-moved to vacate its default on the ground that it had not been
properly served with the Summons with Notice. Although the Supreme Court
determined, after a hearing, that the defendant had been properly
served pursuant to CPLR 308(2), it vacated the defendant's default and
granted the defendant leave to serve an answer.

On appeal, the plaintiff contends that the Supreme Court erred in
vacating the defendant's default. In addition, the defendant seeks to
challenge by way of cross-appeal the Supreme Court's determination that
it was properly served with process. Although the defendant's
cross-appeal must be dismissed on the ground that it is not aggrieved by
the order vacating its default, the contentions raised by the defendant
can be considered as alternative grounds for affirmance (see
Parochial Bus Sys. v Board of Educ. of City of N.Y., 60 NY2d 539,
545-546; Matter of Allstate Ins. Co. v Leach, 15 AD3d 649).
[*2]

In seeking to vacate its
default, the defendant was required to demonstrate a reasonable excuse
for the default and a potentially meritorious defense (see Sime v
Ludhar, 37 AD3d 817; Professional Bookkeeper, Inc. v L & L
N.Y. Food Corp., 18 AD3d 851; Fekete v Camp Skwere, 16 AD3d
544). Contrary to the defendant's contentions, the evidence adduced at
the hearing fully supports the Supreme Court's determination that it was
properly served with process pursuant to CPLR 308(2) (see Fashion
Page v Zurich Ins. Co., 50 NY2d 265, 271-272; Aguilera v Pistilli
Constr. & Dev. Corp., 63 AD3d 765; Eastman Kodak Co. v
Miller & Miller Consulting Actuaries, 195 AD2d 591).

Since the defendant offered no other excuse for its default, the
Supreme Court improvidently exercised its discretion in vacating the
default (see Pezolano v Incorporated City of Glen Cove, 71 AD3d
970; Sime v Ludhar, 37 AD3d 817; Professional Bookkeeper, Inc.
v L & L N.Y. Food Corp., 18 AD3d at 851). Accordingly, the
Supreme Court should have denied the defendant's cross motion and
granted the plaintiff's motion for leave to enter a default judgment.

This case inspired me to add a new tag, "It's kind of a big deal."

Civil Contempt

Delijani v Delijani, 2010 NY Slip Op 04332 (App. Div., 2nd, 2010)

" To sustain a finding of civil contempt based upon a violation of a
court order, it is necessary to establish that a lawful court order
clearly expressing an unequivocal mandate was in effect and the
person alleged to have violated the order had actual knowledge of its
terms'" (Ottomanelli v Ottomanelli, 17 AD3d 647, 648
[emphasis added], quoting Kawar v Kawar, 231 AD2d 681, 682
[internal quotation marks omitted]; see Judiciary Law § 753; McCain
v Dinkins, 84 NY2d 216, 227; Miller v Miller, 61 AD3d 651, 652; Massimi v Massimi, 56 AD3d 624). Moreover,
"due process requires that, in contempt proceedings, the contemnor be
afforded an opportunity to be heard at a meaningful time and in a
meaningful manner'" (Matter of Mosso v Mosso, 6 AD3d 827, 829,
quoting 16D CJS, Constitutional Law § 1425; see Chamberlain v Chamberlain, 24 AD3d 589,
595; Matter of Janczuk v Janczuk, 305 AD2d 680, 681).

In its September 2, 2009, order, the Supreme Court granted that
branch of the plaintiff's motion which was to hold the defendant in
contempt of court "insofar as defendant is found in contempt for his
violation of the June 18, 2009 Order of this Court." However, as noted,
there is no indication that any court order was entered or even issued
on June 18, 2009. Nor can the promise made by defense counsel during
colloquy in open court on that date, regarding restoration of the
electric power, qualify as the " lawful order of the court, clearly
expressing an unequivocal mandate,'" which is necessary before a finding
of contempt can be made (Massimi v Massimi, 56 AD3d at 624;
quoting Matter of McCormick v Axelrod, 59 NY2d 574, 583; see Ottomanelli v Ottomanelli 17 AD3d 647; Kawar
v Kawar, 231 AD2d at 682).

We further note that in the order dated September 2, 2009, the
Supreme Court specifically concluded that the plaintiff had failed to
demonstrate her compliance with the December 5, 2008, order and, thus,
that the "defendant cannot be held in contempt for his non-compliance"
with said order (emphasis added). Accordingly, inasmuch as the
defendant was not found to have willfully violated any "order" of the
court, the finding of contempt against him was erroneous (see Massimi
v Massimi, 56 AD3d at 625; Rienzi v Rienzi, 23 AD3d 447; Ottomanelli v Ottomanelli, 17 AD3d 647).

On a sort of related note, I ran across a case where the trial court was affirmed after sanctioning a party,

Miller v Cruise Fantasies, Ltd., 2010 NY Slip Op 04970 (App. Div., 2nd, 2010)

"A court may sua sponte impose sanctions against an attorney or a
party to the litigation, or against both, but the attorney or party to
be sanctioned must be afforded a reasonable opportunity to be heard" (Kamen v Diaz-Kamen, 40 AD3d 937, 937; see
22 NYCRR 130-1.1[a], [d]; Matter of Griffin v Panzarin, 305 AD2d
601, 603; Kelleher v Mt. Kisco Med. Group, 264 AD2d 760, 761; Morrison
v Morrison, 246 AD2d 634). Conduct during litigation is frivolous
and subject to sanction and/or the award of costs under 22 NYCRR 130-1.1
"if it is completely without merit in law and cannot be supported by a
reasonable argument for an extension, modification or reversal of
existing law or . . . it is undertaken primarily to delay or prolong the
resolution of the litigation, or to harass or maliciously injure
another" (Astrada v Archer, 71 AD3d 803, 807 [internal
quotation marks omitted]; see Greene v Doral Conference Ctr. Assoc., 18
AD3d 429, 431; Tyree Bros. Envtl. Servs. v Ferguson Propeller,
247 AD2d 376, 377).

CPLR R. 3212; 4518 Gaps in proof not enough. Records not admissible. Plus CPLR 3116(a): Deposition not signed

CPLR R. 3212 Motion for summary judgment

CPLR R. 4518 Business records

CPLR R. 3116 Signing deposition; physical preparation; copies

(a) Signing.

Shafi v Motta, 2010 NY Slip Op 03895 (App. Div., 2nd, 2010)

On their motion for summary judgment, the defendants had the burden of
establishing, by proof in admissible form, their prima facie entitlement
to judgment as a matter of law (see CPLR 3212[b]; Zuckerman v
City of New York, 49 NY2d 557, 561; Myers v Ferrara, 56 AD3d
78, 83). This burden may be satisfied only by the defendant's
affirmative demonstration of the merit of the defense, rather than
merely by reliance on gaps in the plaintiffs' case (see DeFalco v
BJ's Wholesale Club, Inc., 38 AD3d 824, 825; Cox v Huntington
Quadrangle No. 1 Co., 35 AD3d 523, 524; Pearson v Parkside Ltd.
Liab. Co., 27 AD3d 539; Mondello v DiStefano, 16 AD3d 637,
638). Here, the defendants submitted [*2]hospital
laboratory reports and records of the New York City Department of
Health and Mental Hygiene. As the Supreme Court concluded, however,
because these documents were neither certified nor authenticated, and
thus were not in admissible form, they could not be considered on the
motion (see CPLR 4518[c]; Banfield v New York City Tr. Auth.,
36 AD3d 732; Baez v Sugrue, 300 AD2d 519, 520; cf. Whitfield v
City of New York, 48 AD3d 798, 799). Moreover, the affirmation of
the defendants' attorney submitted with very brief excerpts of
deposition testimony was insufficient to establish the defendants'
entitlement to judgment as a matter of law (see Irving v Great Atl.
& Pac. Tea Co., 269 AD2d 358, 359; Cicolello v Limb, 216
AD2d 434). Inasmuch as the defendants failed to carry their burden,
denial of the motion was required without regard to the sufficiency of
the papers submitted in opposition (see Winegrad v New York Univ.
Med. Ctr., 64 NY2d 851, 853; Molina v Belasquez, 1 AD3d 489).

Marmer
v IF USA Express, Inc., 2010 NY Slip Op 04151 (App. Div., 2nd, 2010)

The defendants did not meet their prima facie burden of showing that the
plaintiff did not sustain a serious injury as a result of the subject
accident. Specifically, the defendants failed to show that the plaintiff
did not sustain a medically-determined injury or impairment of a
nonpermanent nature which prevented her from performing substantially
all of the material acts which constituted her usual and customary daily
activities for a period of not less than 90 days during the 180-day
period immediately following the subject motor vehicle accident, as
articulated in Insurance Law § 5102(d) (hereinafter the 90/180-day
category) (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy
v Eyler, 79 NY2d 955, 956-957). In the plaintiff's bill of
particulars, she clearly set forth that, as a result of the subject
motor vehicle accident, she sustained, inter alia, a serious injury
under the 90/180-day category of Insurance Law § 5102(d). The affirmed
reports of the defendants' examining physicians did not specifically
relate any of their findings to this 90/180-day category of serious
injury (see Negassi v Royle, 65 AD3d 1311; Ismail v Tejeda, 65
AD3d 518; Neuberger v Sidoruk, 60 AD3d 650; Miller v Bah, 58
AD3d 815; Scinto v Hoyte, 57 AD3d 646). Further, the unsigned
deposition transcript of the plaintiff, which the defendants submitted
in support of their motion, did not constitute admissible evidence in
light of the defendants' failure to demonstrate that the transcript was
forwarded to the plaintiff for her review pursuant to CPLR 3116(a) (see
Martinez v 123-16 Liberty Ave. Realty Corp., 47 AD3d 901; McDonald
v Mauss, 38 AD3d 727; Pina v Flik Intl. Corp., 25 AD3d 772; Santos
v Intown Assoc., 17 AD3d 564). Since the defendants [*2]failed to meet their prima facie burden, we
need not consider whether the plaintiff's opposition papers were
sufficient to raise a triable issue of fact (see Negassi v Royle, 65
AD3d 1311; Ismail v Tejeda, 65 AD3d 518; Neuberger v Sidoruk,
60 AD3d 650; Miller v Bah, 58 AD3d 815).

The bold is mine.

CPLR 3101(a)(4) Non-Party disclosure. App. Div., 2nd. Non-party subpoena quashed.

On May 7th I posted a case where the Appellate Division, Second Department found that a parties non-party subpoenas were proper. Today, in an unusually long decision, the same court came to a different conclusion. It's a long decision. Read it anyway.

Kooper v Kooper, 2010 NY Slip Op 04147 (App. Div., 2nd, 2010)

On this appeal we consider principles governing the discovery of
documents from nonparties pursuant to CPLR 3101(a)(4), which provides
that the party seeking disclosure must give notice stating "the
circumstances or reasons such disclosure is sought or required" from the
nonparty. Specifically, the question arises whether a party must
establish the existence of "special circumstances" warranting discovery
from a nonparty in order to successfully oppose a motion to quash a
subpoena duces tecum served on that nonparty. Many of our cases
continued to apply that standard after CPLR 3101(a)(4) was amended to
remove the requirement that discovery from a nonparty be obtained only
"where the court on motion determines that there are adequate special
circumstances." We hereby disapprove the further application of the
"special circumstances" standard in this context. We, nevertheless, look
behind that language in our cases and find underlying considerations
which are appropriate and relevant to the trial court's exercise of its
discretion in determining whether a request for discovery from a
nonparty should go forward or be quashed. Here, the Supreme Court
providently exercised its discretion in granting the plaintiff's motion
to quash the subpoenas at issue.

The bold is mine.

Confession of Judgment CPLR § 3218(a)(2)

CPLR § 3218 Judgment by
confession
(a) Affidavit of defendant
(2) if the judgment to be confessed is for money due or to become due, stating concisely the facts out of which the debt arose and showing that the sum confessed is justly due or to become due

Cole-Hatchard v Nicholson, 2010 NY Slip Op 04131 (App. Div., 2nd, 2010)

Contrary to the plaintiffs' contention, the Receiver had standing to
seek vacatur of the judgment by confession on the ground that the
affidavit of confession of judgment does not [*2]comply
with CPLR 3218(a)(2) (see County Nat'l Bank v Vogt, 28 AD2d 793,
794, affd 21 NY2d 800; In re Horowitz, 98 NYS2d 881, 882,
affd 277 App Div 1130; 7-3218 New York Civil Practice: CPLR P
3218.00; see generally Eberhard v Marcu, 530 F3d 122, 133; Scholes
v Lehmann, 56 F3d 750, 755, cert denied sub nom. African
Enterprise, Inc. v Scholes, 516 US 1028; SEC v Shiv, 379 F
Supp 2d 609; cf. Burtner v Burtner, 144 AD2d 417, 418; Magalhaes
v Magalhaes, 254 App Div 880, 881), and the Receiver was not
required to commence a plenary action to the extent he sought to vacate
the judgment by confession on that ground (see County Natl. Bank v
Vogt, 28 AD2d 793, affd 21 NY2d 800; Mall Commercial Corp.
v Chrisa Rest., 85 Misc 2d 613, 614; cf. Engster v Passonno, 202
AD2d 769, 769; Affenita v Long Indus., 133 AD2d 727, 728; Bufkor,
Inc. v Wasson & Fried, 33 AD2d 636, 637).

Also contrary to the plaintiffs' contention, the affidavit of
confession of judgment, which failed, inter alia, to set forth any facts
explaining why Nicholson was indebted to the plaintiffs with respect to
the money they invested with him, or why such debt was justly due, does
not comply with CPLR 3218(a)(2) (see Franco v Zeltser, 111 AD2d
367, 368; County Nat'l Bank v Vogt, 28 AD2d at 793; Wood v
Mitchell, 117 NY 439, 441; cf. Harrison v Gibbons, 71 NY 58,
60; Perkins Davis Group, Inc. v Chelsea 82973, LLC, 24
AD3d 645, 645; Eurofactors Intl., Inc. v Jacobowitz, 21 AD3d 443,
445; ILMS Realty Assn. v Madden, 174 AD2d 603, 603; Princeton
Bank & Trust Co. v Berley, 57 AD2d 348, 352-354). In that
regard, given that the affidavit of confession of judgment does not
simply contain some minor error of fact, but rather, is wholly
insufficient under CPLR 3218(a)(2), the Supreme Court providently
exercised its discretion in declining to amend the judgment by
confession as an alternative to granting the Receiver's motion to vacate
it (see Baehre v Rochester Dental Prosthetics, 112 Misc 2d 270,
276; cf. Princeton Bank & Trust Co. v Berley, 57 AD2d at
354).

The bold is mine.

Best Evidence Rule

Clarke v Rodriguez, 2010 NY Slip Op 03861 (App. Div., 2nd, 2010)

The plaintiff submitted secondary evidence of the contents of the
original contract of sale in this case, which sufficiently explained
"the unavailability of the primary evidence" (Schozer v William Penn
Life Ins. Co. of N.Y., 84 NY2d 639, 644; see Lipschitz v Stein, 10 AD3d 634, 637). The
plaintiff established, by a preponderance of the evidence, that the
defendant's former attorney, who did not testify at the trial, was in
possession of the original contract of sale (see Glatter v Borten, 233
AD2d 166, 168; Dependable Lists v Malek, 98 AD2d 679, 680;
Prince, Richardson on Evidence §§ 10-209, 10-210 [Farrell 11th ed]).

Attorney Witness Rule

Falk v Gallo, 2010 NY Slip Op 03864 (App. Div., 2nd, 2010)

The disqualification of an attorney is a matter that rests within the
sound discretion of the Supreme Court (see Nationscredit Fin. Servs. Corp. v Turcios, 41
AD3d 802). A party's entitlement to be represented by counsel of
his or her choice is a valued right which should not be abridged absent a
clear showing that disqualification is warranted (see Aryeh v Aryeh, 14 AD3d 634). Thus, the
party seeking to disqualify an attorney bears the burden on the motion (see
S & S Hotel Ventures Ltd. Partnership v 777 S.H. Corp., 69 NY2d
437; Nationscredit Fin. Servs. Corp. v Turcios, 41
AD3d 802).

The advocate-witness rules contained in the Code of Professional
Responsibility, which have been superseded by the Rules of Professional
Conduct, provide guidance, but are not binding authority, for the courts
in determining whether a party's attorney should be disqualified during
litigation (see S & S Hotel Ventures Ltd. Partnership v 777 S.H.
Corp., 69 NY2d 437). Rule 3.7 of the Rules of Professional Conduct
provides that unless certain exceptions apply, "[a] lawyer shall not act
as an advocate before a tribunal in a matter in which the lawyer is
likely to be a witness on a significant issue of fact" (Rules of
Professional Conduct [22 NYCRR 1200.0] rule 3.7). Here, since the
plaintiffs' attorney was the only person, other than the parties, who
had knowledge of any discussions regarding the terms of the oral
agreement underlying this litigation, he is "likely to be [*2]a witness on a significant issue of fact"
(Rules of Professional Conduct [22 NYCRR 1200.0] rule 3.7; see Matter
of Stober v Gaba & Stoba, P.C., 259 AD2d 554). Accordingly, the
Supreme Court properly granted the defendants' motion to disqualify the
plaintiffs' attorney (see Matter of Stober v Gaba & Stober, 259
AD2d 554; Rules of Professional Conduct [22 NYCRR 1200.0] rule 3.7).

Sum Certain. CPLR § 3215(a)(b)

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

Fidelity Natl. Tit. Ins. Co. v Valtech Research, Inc., 2010 NY Slip Op 03865 (App. Div., 2nd, 2010)

The Supreme Court erred in excusing the defendant's default in
appearing and answering, and in allowing it to serve an answer. The
defendant failed to sustain its burden of demonstrating that it had not
received the summons and complaint in time to defend itself so as to
entitle it to vacatur of its default under CPLR 317 (see Guayara v
First Rockaway Coast Corp., 35 AD3d 659; cf. Taieb v Hilton
Hotels Corp., 60 NY2d 725; Brockington v Brookfield Dev. Corp., 308
AD2d 498). The defendant also failed to establish a reasonable excuse
for that default. Thus, it was not entitled to vacatur under CPLR 5015 (see
Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141; Taylor
v Saal, 4 AD3d 467; Dominguez v Carioscia, 1 AD3d 396; Kaplinsky
v Mazor, 307 AD2d 916).

However, because the plaintiff is not seeking to recover a "sum
certain" within the meaning of CPLR 3215(a), its claim that the Clerk
had the authority to enter the judgment in its favor is without merit (see
Congregation Chaim Barucha v Friedman, 62 AD3d 933; Ayres Mem.
Animal Shelter, Inc. v Montgomery County Socy. for Prevention of Cruelty
of Animals, 17 AD3d 904, 905; Geer, Du Bois & Co. v Scott
& Sons Co., 25 AD2d 423, 423-424; see also Reynolds Sec. [*2]v Underwriters Bank & Trust Co., 44
NY2d 568, 572). Accordingly, the matter must be remitted to the Supreme
Court, Nassau County for an inquest and the entry thereafter of an
appropriate judgment (see CPLR 3215[b]).

CPLR 3101(a)(4) Non-Party disclosure

CPLR § 3101 Scope of disclosure

(a)
Generally.
There shall be full disclosure of all matter material and necessary in
the prosecution or defense of an action, regardless of the burden of
proof, by:

(4) any other person, upon notice
stating the circumstances or reasons such disclosure is sought or
required.

Kondratick v Orthodox Church in Am., 2010 NY Slip Op 03877 (App. Div., 2nd, 2010)

Although the general rule is that there shall be "full disclosure of all
matter material and necessary in the prosecution . . . of an action"
(CPLR 3101[a]; see Auerbach v Klein, 30 AD3d 451), nevertheless,
"unlimited disclosure is not permitted" (Silcox v City of New York, 233
AD2d 494). A party seeking disclosure from a nonparty witness, in
addition to demonstrating that the disclosure sought is material and
necessary, must also set forth circumstances or reasons why disclosure
is sought or required from a nonparty (see CPLR 3101[a][4]; Tenore
v Tenore, 45 AD3d 571, 571-572). Here, the Orthodox Church in
America (hereinafter the appellant) satisfied this requirement. In light
of the claims made by the plaintiff in Action No. 1, the information
sought in the subpoenas by the appellant is relevant, material, and [*2]necessary, and unavailable through other
means. Accordingly, the Supreme Court should have denied the motion to
quash the subpoenas (see Tenore v Tenore, 45 AD3d at 571-572; Thorson
v New York City Tr. Auth., 305 AD2d 666; Maxwell v Snapper,
Inc., 249 AD2d 374).

Mere Irregularities. CPLR § 2001. CPLR R. 2101(f)

CPLR § 2001 Mistakes, omissions, defects & irregularities

CPLR
R. 2101 Form of papers
(f) Defects in form; waiver

Martin v Castaneda, 2010 NY Slip Op 03881 (App. Div, 2nd, 2010)

After a hearing, in an unsigned report dated February 13, 2009, a
referee made certain findings of facts and conclusions of law. By notice
of motion dated March 20, 2009, the plaintiffs moved, inter alia, to
confirm that portion of the referee's report which recommended that the
property be sold to effect partition. In support of their motion, the
plaintiffs submitted, among other things, a copy of the referee's report
and a transcript of the hearing, both of which contained the referee's
recommendations. In opposition, the defendant contended that the subject
branch of the motion should be denied because the report was unsigned
and unfiled. By order entered July 2, 2009, the Supreme Court granted
the subject branch of the plaintiffs' motion. The defendant contends
that the report was defective as it was unfiled (see CPLR
4320[b]; 22 NYCRR 202.44), and unsigned. We affirm the order insofar as
appealed from.

Although the referee did not sign his report, it was filed on
July 2, 2009, and, under the circumstances, any alleged defects were
mere irregularities and not fatal, as no substantial right of the
defendant has been or will be prejudiced (see CPLR 2001, 2101[f];
cf. Allison v Allison, 28 AD3d 406, 407, cert denied 549
US 1307; Matter of Lipsky v Koplen, 282 AD2d 462, 463; John
Hancock Mut. Life Ins. Co. v 491-499 Seventh Ave. Assoc., 169 Misc
2d 493, 498-499).

In case anyone is curious, all of the cases the court cites to at the bottom involve referees. I thought that maybe some of them would involve "mere irregularities" in other contexts, but alas, I was wrong.