[App Div 2d Dept]

I Loves Me Some Venue: CPLR § 510 R. 511

CPLR § 510 Grounds for change of place of trial

CPLR R. 511 Change of place of trial

Thomas v Guttikonda, 2009 NY Slip Op 09212 (App. Div., 2nd, 2009)

A demand to change venue based on the designation of an improper county (see CPLR 510[1]) "shall be served with the answer or before the answer is served" (CPLR 511[a]). Since the appellants failed to serve a timely demand for a change of venue and failed to make a motion within the 15-day period required under the statute (see CPLR 511[b]), they were not entitled to change the venue of this action as of right (see Baez v Marcus, 58 AD3d 585, 586; Jeffrey L. Rosenberg & Assoc., LLC v Lajaunie, 54 AD3d 813, 816; Obas v Grappell, 43 AD3d 431). Thus, their motion "became one addressed to the court's discretion" (Callanan Indus. v Sovereign Constr. Co., 44 AD2d 292, 295; see Baez v Marcus, 58 AD3d at 586; Jeffrey L. Rosenberg & Assoc., LLC v Lajaunie, 54 AD3d at 816; Obas v Grappell, 43 AD3d at 432). While the appellants contend that their noncompliance with the time limit should be overlooked since they moved promptly after discovering the purported true residence of the defendant Edwin M. Chang, there was no evidence of any willful omissions or misleading statements regarding Chang's residence by the plaintiff (see Joyner-Pack v Sykes, 30 AD3d 469; P.T.R. Co. v Teitelbaum, 2 AD3d 609, 610; Pittman v Maher, 202 AD2d 172, 175; cf. Horowicz v RSD Transp., 249 AD2d 511). Accordingly, the Supreme Court providently exercised its discretion in denying that branch of the appellants' motion which was to change the venue of this action pursuant to CPLR 510(1).

The Supreme Court providently exercised its discretion in denying that branch of the appellants' motion which was to change the venue of this action pursuant to CPLR 510(3) since the [*2]appellants failed to demonstrate that "the convenience of material witnesses and the ends of justice [would] be promoted by the change" (O'Brien v Vassar Bros. Hosp., 207 AD2d 169, 171, quoting CPLR 510[3]).

Notice that 510 is a section and 511 is rule. What does it mean? Not a damn thing.

Motion to Renew and The Value of a General Release

CPLR R. 2221
(e) Motion for Leave to Renew

Huma v Patel, 2009 NY Slip Op 09191 (App. Div., 2nd, 2009)

Although a court has the discretion to grant renewal upon facts known to the movant at the time of the original motion (see Ramirez v Khan, 60 AD3d 748; Matter of Progressive Northeastern Ins. Co. v Frenkel, 8 AD3d 390, 391; Hasmath v Cameb, 5 AD3d 438, 439; Bloom v Primus Automotive Fin. Serv., 292 AD2d 410), a motion for leave to renew “is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation” (Renna v Gullo, 19 AD3d 472, 473; see Ramirez v Khan, 60 AD3d at 748; Sobin v Tylutki, 59 AD3d 701, 702; Lardo v Rivlab Transp. Corp., 46 AD3d 759; Worrell v Parkway Estates, LLC, 43 AD3d 436, 437).

Here, the new evidence offered in support of the appellant’s motion, in effect, for leave to renew consisted of copies of general releases executed by the plaintiffs Mohammed U. Farooq and Mozzam Berlas in settlement of a prior action, which allegedly extinguished the debt underlying the two promissory notes which are the subject of this action. However, the appellant was aware of the existence of these releases at the time the summary judgment motion was made, and failed to demonstrate that he could not have obtained copies of the releases in time to oppose summary judgment with the exercise of [*2]due diligence. In any event, the appellant failed to demonstrate that the existence of the releases warranted a change in the prior determination awarding summary judgment to the plaintiffs Uzma Huma and Faiza Berlas, who are the payees on the subject promissory notes. “The meaning and coverage of a general release depends on the controversy being settled and upon the purpose for which the release was actually given” (Lefrak SBN Assoc. v Kennedy Galleries, 203 AD2d 256; see Cahill v Regan, 5 NY2d 292, 299; Matter of Brown, 65 AD3d 1140; Zichron Acheinu Levy, Inc. v Ilowitz, 31 AD3d 756), and a general release may not be read to cover matters which the parties did not desire or intend to dispose of (see Matter of Schaefer v Liberty National Bank and Trust Co., 18 NY2d 314, 317; Cahill v Regan, 5 NY2d at 299; Spears v Spears Fence, Inc., 60 AD3d 752, 753; Rotondi v Drewes, 31 AD3d 734, 735-736). Although the appellant predicated his motion for leave to renew upon the releases executed by the plaintiffs Mohammed U. Farooq and Mozzam Berlas in settlement of a prior action, the record does not disclose the nature of the prior action, and the appellant failed to offer sufficient evidentiary proof to raise a triable issue of fact as to whether the releases were intended to extinguish the debt underlying the subject promissory notes.

I probably should have waited until I found more 2221 decisions, but this one really stands out.

[edit]

Spoke too soon. This decision (Morgan v Windham Realty, LLC) involves a 2221 motion, but that’s not what I’m going to quote. It’s still procedural, but different.

The plaintiffs’ contention that Francis and Talbots failed, on their cross motion for summary judgment, to include an affidavit of a person with personal knowledge of the facts or appropriate deposition testimony was not raised in the Supreme Court and, thus, is not properly before this Court (see Kruszka v City of New York, 29 AD3d 742, 743; Medugno v City of Glen Cove, 279 AD2d 510, 511; Rosendale v Galin, 266 AD2d 444, 445; Gross v Aetna Cas. & Sur. Co., 240 AD2d 468, 469).

Deposition of Person In A Faraway Land: CPLR R. 3110, CPLR R. 3108, CPLR R. 3113

CPLR R. 3110 Where the deposition is to be taken within the state
(1) when the person to be examined is a party or an officer, director, member or employee of a party, within the county in which he resides or has an office for the regular transaction of business in person or where the action is pending; or

CPLR R. 3108 Written questions; when permitted

CPLR R. 3113 Conduct of the examination
(d) The parties may stipulate that a deposition be taken by telephone or other remote electronic means and that a party may participate electronically. The stipulation shall designate reasonable provisions to ensure that an accurate record of the deposition is generated, shall specify, if appropriate, reasonable provisions for the use of exhibits at the deposition; shall specify who must and who may physically be present at the deposition; and shall provide for any other provisions appropriate under the circumstances. Unless otherwise stipulated to by the parties, the officer administering the oath shall be physically present at the place of the deposition and the additional costs of conducting the deposition by telephonic or other remote electronic means, such as telephone charges, shall be borne by the party requesting that the deposition be conducted by such means.

Gartner v Unified Windows, Doors & Siding, Inc., 2009 NY Slip Op 09186 (App. Div., 2nd, 2009)

While depositions of the parties to an action are generally held in the county where the action is pending (see CPLR 3110[1]), if a party demonstrates that conducting his or her deposition in that county would cause undue hardship, the Supreme Court can order the deposition to be held elsewhere (see LaRusso v Brookstone, Inc., 52 AD3d 576, 577; Hoffman v Kraus, 260 AD2d 435, 437). Here, the Supreme Court providently exercised its discretion in denying the appellant's motion to compel Dora Lillian Alvarado Hernandez, a plaintiff in Action No. 1, and the infant children of David Leonard Coy-Sanchez and Elquin Astaiza Ceballos, the decedents in Action Nos. 1 and 2, respectively, to appear in New York for depositions upon oral examination. The Supreme Court further providently exercised its discretion in granting the cross motion of the plaintiffs in Action No. 1 to compel the appellant to take any deposition upon oral examination of Hernandez and Coy-Sanchez's infant son (hereinafter the infant son) in Colombia, or to take the depositions of those persons upon written questions, when it determined that the infant son and Hernandez, the wife of the decedent in Action No. 1—who are the next of kin and the real parties in interest—were unable to leave Colombia to travel to New York for deposition (see Hoffman v Kraus, 260 AD2d at 437). Given this undue hardship, it was appropriate for the Supreme Court to [*2]find that an exception to the rule articulated in CPLR 3110(1) was warranted.

The Supreme Court proposed three viable, nonexclusive solutions to the appellant with respect to conducting the outstanding depositions of Hernandez and the infant son pursuant to CPLR 3108: (1) flying the appellant's New York counsel to Bogota, Colombia, to conduct the depositions upon oral examination at the United States Embassy in that city, with the travel costs and cost of translation to be borne by the plaintiffs in Action No. 1, (2) retaining local counsel in Bogota to conduct the depositions upon oral examination at that location, and (3) conducting the depositions upon written questions. We note that, in addition, those depositions may also be conducted via videoconferencing pursuant to CPLR 3113(d), with the deponents remaining at the United States Embassy in Bogota, Colombia (see Rogovin v Rogovin, 3 AD3d 352, 353). If the appellant elects to pursue this option, the cost of such videoconferencing is to be borne by the plaintiffs in Action No. 1 (see CPLR 3113[d]).

You can read more on the decision here.

CPLR R. 4518(c) Applied to Chiro Reports

CPLR R. 4518 Business records
(c) Other records. All records, writings and other things referred to in sections 2306 and 2307 are admissible in evidence under this rule and are prima facie evidence of the facts contained, provided they bear a certification or authentication by the head of the hospital, laboratory, department or bureau of a municipal corporation or of the state, or by an employee delegated for that purpose or by a qualified physician. Where a hospital record is in the custody of a warehouse, or “warehouseman” as that term is defined by paragraph (h) of subdivision one of section 7-102 of the uniform commercial code, pursuant to a plan approved in writing by the state commissioner of health, admissibility under this subdivision may be established by a certification made by the manager of the warehouse that sets forth (i) the authority by which the record is held, including but not limited to a court order, order of the commissioner, or order or resolution of the governing body or official of the hospital, and (ii) that the record has been in the exclusive custody of such warehouse or warehousemen since its receipt from the hospital or, if another has had access to it, the name and address of such person and the date on which and the circumstances under which such access was had. Any warehouseman providing a certification as required by this subdivision shall have no liability for acts or omissions relating thereto, except for intentional misconduct, and the warehouseman is authorized to assess and collect a reasonable charge for providing the certification described by this subdivision.

Clickety.

CPLR R: 3212 Multiple Summary Judgment Motions Allowed in Some Circumstances

CPLR R. 3212

North Fork Preserve, Inc. v Kaplan, 2009 NY Slip Op 09006 (App. Div., 2nd, 2009)

After extensive discovery, the defendants moved for summary judgment dismissing the remaining claims in the amended complaint. Although the defendants had made two previous motions for summary judgment, the third motion did not violate the general proscription against successive motions for summary judgment since it was based on deposition testimony and numerous documents that had been elicited after the prior motions were denied (see Auffermann v Distl, 56 AD3d 502; Kobre v United Jewish Appeal-Fedn. of Jewish Philanthropies of N.Y., Inc., 32 AD3d 218; Staib v City of New York, 289 AD2d 560).

***

Finally, the Supreme Court providently exercised its discretion in denying that branch of the plaintiffs' motion which was for leave to renew their opposition to the defendants' motion for summary judgment, since the alleged new evidence was improperly submitted for the first time in the plaintiffs' reply papers (see GJF Constr. Corp. v Cosmopolitan Decorating Co. Inc., 35 AD3d 535; Adler v Suffolk County Water Auth., 306 AD2d 229). In any event, the plaintiffs did not offer a reasonable justification for their failure to present this evidence on the prior motion (see CPLR 2221[e]; Williams v Nassau County Med. Ctr., 37 AD3d 594).

Alexandru v Pappas, 2009 NY Slip Op 08978 (App. Div., 2nd, 2009)

However, to the extent that the plaintiff's motion sought to compel the defendants to specifically perform their obligations under the stipulations of settlement, which is the ultimate relief sought in the action, that branch of the motion was, in effect, for summary judgment, which procedurally could not be granted, as issue had yet to be joined (see CPLR 3212[a]). Thus, that branch of the motion was properly denied.

Compare Alexandru with Roche v Claverack Coop. Ins. Co., 2009 NY Slip Op 01390 (App. Div., 3d, 2009) (Treating defendant's SJ motion as if issue had been joined).

Oral Decision, Not Reduced to Writing, Does Not Get Res Judicata Effect (last case)

Res Judicata
Collateral Estoppel
Law of the Case

Specialized Indus. Servs. Corp. v Carter, 2009 NY Slip Op 09018 (App. Div., 2nd, 2009)

In the underlying action, judgment was entered against the plaintiff upon its default in answering or appearing. The plaintiff obtained an order vacating the default judgment, which was ultimately reversed by this Court (see Dave Sandel, Inc. v Specialized Indus. Servs. Corp., 35 AD3d 790). Generally, a party who has lost a case as a result of alleged fraud or false testimony cannot collaterally attack the judgment in a separate action for damages against the party who adduced the false evidence, and the plaintiff's remedy lies exclusively in moving to vacate the default judgment (see North Shore Envtl. Solutions, Inc. v Glass, 17 AD3d 427; Retina Assoc. of Long Is. v Rosberger, 299 AD2d 533; New York City Tr. Auth. v Morris J. Eisen, P.C., 276 AD2d 78, 87; Yalkowsky v Century Apts. Assoc., 215 AD2d 214, 215). Under an exception to that rule, a separate lawsuit may be brought where the [*2]alleged perjury or fraud in the underlying action was "merely a means to the accomplishment of a larger fraudulent scheme" (Newin Corp. v Hartford Acc. & Indem. Co., 37 NY2d 211, 217) which was "greater in scope than the issues determined in the prior proceeding" (Retina Assoc. of Long Is. v Rosberger, 299 AD2d at 533 [internal quotation marks omitted]). The plaintiff here, in its amended verified complaint and supplemental affidavits, has sufficiently alleged a larger fraudulent scheme to fit within the exception to the rule against collateral attack (see New York City Tr. Auth. v Morris J. Eisen, P.C., 276 AD2d at 80, 87-88; cf. North Shore Envtl. Solutions, Inc. v Glass, 17 AD3d at 428).

Contrary to the defendant's contention, the first cause of action in the amended verified complaint is not barred by the doctrine of res judicata since the Judiciary Law cause of action did not arise out of the factual transaction which was the subject matter of that action (see Matter of Hodes v Axelrod, 70 NY2d 364, 372; Mahler v Campagna, 60 AD3d at 1011; Lazides v P & G Enters., 58 AD3d 607, 609; Triboro Fastener & Chem. Prods. Corp. v Lee, 236 AD2d 603, 603-604). Nor is the first cause of action precluded by principles of collateral estoppel in that the claim was not litigated in the underlying action and much of the evidence upon which the plaintiff relies was discovered subsequent to entry of the default judgment in the underlying action (see Kaufman v Eli Lilly & Co., 65 NY2d 449, 456-457; Izko Sportswear Co., Inc. v Flaum, 25 AD3d at 537; Chambers v City of New York, 309 AD2d 81, 85).

Man Choi Chiu v Chiu, 2009 NY Slip Op 08792, (App. Div., 2nd, 2009)

On a prior appeal in this action, this Court affirmed, inter alia, the Supreme Court's determination to award an attorney's fee to the plaintiffs (see Man Choi Chiu v Chiu, 38 AD3d 619). Thus, the doctrine of the law of the case (see People v Evans, 94 NY2d 499, 502) precludes consideration of whether the plaintiffs were properly awarded an attorney's fee (see Matter of Pantelidis v New York City Bd. of Stds. & Appeals, 43 AD3d 314, affd 10 NY3d 846; Toyos v City of New York, 54 AD3d 628; Combier v Anderson, 34 AD3d 333).

As a general rule, we do not consider any issue raised on a subsequent appeal that was raised, or could have been raised, in an earlier appeal that was dismissed for lack of prosecution, although we have the inherent jurisdiction to do so (see Rubeo v National Grange Mut. Ins. Co., 93 NY2d 750; Bray v Cox, 38 NY2d 350). Here, the defendants appealed from an order of the Supreme Court dated September 7, 2007, which, inter alia, denied their motion to cancel the hearing on the issue of the amount of attorney's fees to be awarded. That appeal was dismissed by decision and order on motion of this Court dated June 18, 2008, for failure to prosecute. We decline to exercise our discretion to determine the merits of that appeal on the instant appeal from the judgment, as amended (see Bray v Cox, 38 NY2d [*2]350; Blue Chip Mtge. Corp. v Strumpf, 50 AD3d 936, 937).

Jespersen v Li Sheng Liang, 2009 NY Slip Op 09000 (App. Div., 2nd, 2009)

As a general rule, a dismissal "with prejudice" signifies that the court intended dismiss the action "on the merits" (Yonkers Contr. v Port Auth. Trans Hudson Corp., 93 NY2d 375, 380). However, an oral decision which has never been reduced to a written order or judgment is not entitled to res judicata effect and thus is ineffective as a bar to subsequent proceedings (see Towne v Asadourian, 277 AD2d 800; Begelman v Begelman, 170 AD2d 562; see also 73 NY Jur 2d, Judgments §§ 354, 436, 437). Moreover, it is clear from the hearing transcript, as well as from the order appealed from, that the Supreme Court did not intend its dismissal of the first action to be on the merits. In addition, while a "duplicate" action is subject to dismissal pursuant to CPLR 3211(a)(4), there was no procedural bar to the plaintiff commencing the second action before the first action had been dismissed.

The bold is mine.

The Long Arm of New York

CPLR § 301 Jurisdiction over persons, property or status

CPLR § 302 Personal jurisdiction by acts of non-domiciliaries
(a) Acts which are the basis of jurisdiction
(1) transacts any business within the state or contracts anywhere to supply goods or services in the state

Executive Life Ltd. v Silverman, 2009 NY Slip Op 08994 (App. Div., 2nd, 2009)

The plaintiff, Executive Life Ltd., d/b/a Executive Alliance (hereinafter Executive), a New York-based executive search agency, allegedly contracted with the defendant, a Colorado-based collections attorney, to refer candidates for open paralegal and attorney positions in the defendant's law firm. The agreement between the parties provided that Executive would be entitled to a commission if it referred a person whom the defendant hired, and the person remained employed by the defendant for 60 consecutive days. The defendant was never physically present in New York, and the agreement between the parties was negotiated by telephone and email. Executive faxed the agreement, which provided that it would be governed by New York law, to the defendant, who executed it and returned it by fax. According to the complaint, Executive referred a candidate whom the defendant hired for the paralegal position and that person remained employed by the defendant for at least 60 consecutive days. Nevertheless, the defendant allegedly failed to pay the commission due. Executive commenced this action against the defendant in the Supreme Court, Suffolk County. The Supreme Court granted the defendant's motion to dismiss the complaint pursuant to CPLR 3211(a)(8) for lack of personal jurisdiction (see CPLR 302[a][1]). We affirm.

Under New York's long-arm statute, "a court may exercise personal jurisdiction over any non-domiciliary . . . who . . . transacts any business within the state . . ." (CPLR 302[a]), regardless of whether that nondomiciliary has actually set foot in New York State (see Fischbarg v Doucet, 9 NY3d 375, 380; Kreutter v McFadden Oil Corp., 71 NY2d 460, 467; Parke-Bernet Galleries v Franklyn, 26 NY2d 13, 17; Bogal v Finger, 59 AD3d 653). Whether a defendant has transacted business within New York is determined under the totality of the circumstances, and rests on whether the defendant, by some act or acts, has "purposefully avail[ed] itself of the privilege of conducting activities within [New York]" (Ehrenfeld v Bin Mahfouz, 9 NY3d 501, 508). "Purposeful activities are those with which a defendant, through volitional acts, avails itself of the [*2]privileges of conducting activities within the forum State, thus invoking the benefits and protections of its laws'" (Fischbarg v Doucet, 9 NY3d at 380, quoting McKee Elec. Co. v Rauland-Borg Corp., 20 NY2d 377, 382). The long-arm statute is a "single-act" statute (Deutsche Bank Sec., Inc. v Montana Bd. of Invs., 7 NY3d 65, 71, cert denied sub nom. Montana Bd. of Invs. v Deutsch Bank Sec., Inc., 549 US 1095; see George Reiner & Co. v Schwartz, 41 NY2d 648, 651-652) and, thus, evidence of even one such transaction is sufficient to confer jurisdiction over a nondomiciliary defendant, provided that the defendant's activities were purposeful and "there is a substantial relationship between the transaction and the claim asserted" (Kreutter v McFadden Oil Corp., 71 NY2d at 467; see Stardust Dance Prods., Ltd. v Cruise Groups, Intl., Inc., 63 AD3d 1262, 1264). "[I]t is the quality of the defendants' New York contacts that is the primary consideration" (Fischbarg v Doucet, 9 NY3d at 380).

The Supreme Court properly dismissed the complaint. Although negotiations may have taken place by telephone, fax, and email, and the defendant allegedly faxed the agreement to Executive's office in New York, the defendant's actions did not amount to a purposeful invocation of the privileges of conducting business in New York. We note that the defendant did not specify that any applicant was to come from New York, and, indeed, the person he hired was already based in Colorado (see Kimco Exch. Place Corp. v Thomas Benz, Inc., 34 AD3d 433, 434; Professional Personnel Mgt. Corp. v Southwest Med. Assoc., 216 AD2d 958; Milliken v Holst, 205 AD2d 508, 509-510; cf. Corporate Campaign v Local 7837, United Paperworkers Intl. Union, 265 AD2d 274, 275-276). The choice of law provision in the agreement, while relevant, is insufficient by itself to confer personal jurisdiction over the defendant in New York under CPLR 302(a)(1) (see Goulds Pumps v Mazander Engineered Equip. Co., 217 AD2d 960, 961; Peter Lisec Glastechnische Industrie GmbH v Lenhardt Maschinenbau GmbH, 173 AD2d 70, 72).

CPLR R. 3216 Must Contain Certain Language & CC Order Can Have the Same Effect as a 90-day Notice

CPLR R. 3216 Want of prosecution

Itskov v Menorah Home & Hosp. for the Aged & Infirm, 2009 NY Slip Op 08999 (App. Div., 1st, 2009)

Here, the defendant's notice dated November 5, 2007, demanding that the plaintiffs serve and file a note of issue cannot be deemed a notice pursuant to CPLR 3216 because it failed to notify the plaintiffs that they were "to resume prosecution of the action and to serve and file a note of issue within ninety days after receipt of such demand" (CPLR 3216[b][3] [emphasis added]; cf. Johnson v Minskoff & Sons, 287 AD2d 233, 238). Since no proper notice was received by the plaintiffs prior to the defendant's motion, the Supreme Court was not authorized to dismiss the complaint pursuant to CPLR 3216 (see Rose v Aziz, 60 AD3d at 926; Harrison v Good Samaritan Hosp. Med. Ctr., 43 AD3d at 997; Schuering v Stella, 243 AD2d at 624).

Passet v Menorah Nursing Home, Inc., 2009 NY Slip Op 09009 (App. Div., 2nd, 2009)

CPLR 3216 permits a court to dismiss an action for want of prosecution only after the court or the defendant has served the plaintiff with a written notice demanding that the plaintiff resume prosecution of the action and serve and file a note of issue within 90 days after receipt of the demand, and also stating that the failure to comply with the demand will serve as the basis for a motion to dismiss the action (see Rose v Aziz, 60 AD3d 925, 926). Since CPLR 3216 is a legislative creation and not part of a court's inherent power (see Cohn v Borchard Affiliations, 25 NY2d 237, 248), the failure to serve a written notice that conforms to the provisions of CPLR 3216 is the failure of a condition precedent to dismissal of the action (see Airmont Homes v Town of Ramapo, 69 NY2d 901, 902; Rose v Aziz, 60 AD3d at 926; Harrison v Good Samaritan Hosp. Med. Ctr., 43 AD3d 996, 997; Schuering v Stella, 243 AD2d 623, 624).

Here, the defendants' notice demanding that the plaintiff serve and file a note of issue cannot be deemed a notice pursuant to CPLR 3216 because it failed to notify the plaintiff that she was "to resume prosecution of the action and to serve and file a note of issue within ninety days after receipt of such demand" (CPLR 3216[b][3] [emphasis added]; cf. Johnson v Minskoff & Sons, 287 AD2d 233, 238). Since no proper notice was received by the plaintiff prior to the defendants' motion, the Supreme Court was not authorized to dismiss the complaint pursuant to CPLR 3216 (see Rose v Aziz, 60 AD3d at 926; Harrison v Good Samaritan Hosp. Med. Ctr., 43 AD3d at 997; Schuering v Stella, 243 AD2d at 624).

Shcherbina v Queens Nassau Nursing Home, Inc., 2009 NY Slip Op 07615 (App. Div., 2nd, 2009)

In a compliance conference order dated April 1, 2003, the Supreme Court directed the plaintiff to file a note of issue on or before July 1, 2003, and warned that the action would be dismissed if the plaintiff failed to comply. Counsel for the plaintiff signed the order. This order had the same effect as a 90-day notice pursuant to CPLR 3216 (see Felix v County of Nassau, 52 AD3d 653, 653; Anjum v Karagoz, 48 AD3d 605, 605; Hoffman v Kessler, 28 AD3d 718). The plaintiff failed to comply with this order either by filing a timely note of issue or by moving to extend the period for doing so, and the action was properly dismissed pursuant to CPLR 3216 (see Felix v County of Nassau, 52 AD3d 653, 653-654; Anjum v Karagoz, 48 AD3d 605, 605). Since the plaintiff waited three years to move to vacate the dismissal of the action, the motion was untimely and should have been denied (see Vinikour v Jamaica Hosp., 2 AD3d 518, 519).

The bold is mine.

Compare the last two decisions with A.M. Med., P.C. v State Farm Mut. Ins. Co., 2008 NY Slip Op 28487 (App. Term, 2nd, 2008)

Wow, I just realized that these are all nursing home cases. Weird.

CPLR R. 5015 Don’t Try This at Home

CPLR R. 5015 Relief from judgment or order
(a) On motion
(1) excusable default…
(2) newly-discovered evidence…
(3) fraud, misrepresentation, or other misconduct of an adverse party
(4) lack of jurisdiction to render the judgment or order
(5) reversal, modification or vacatur of a prior judgment or order upon which it is based

Campbell-Jarvis v Alves, 2009 NY Slip Op 08986 (App. Div., 2nd, 2009)

In order to vacate her default in opposing the defendant's prior motion to dismiss, the plaintiff was required to demonstrate both a reasonable excuse for her default and a meritorious opposition to the motion (see Simpson v Tommy Hilfiger U.S.A., Inc., 48 AD3d 389, 392; Hospital for Joint Diseases v Dollar Rent A Car, 25 AD3d 534; Fekete v Camp Skwere, 16 AD3d 544, 545; Amato v Fast Repair, Inc., 15 AD3d 429, 430; Costanza v Gold, 12 AD3d 551, 552). Although the determination of what constitutes a reasonable excuse lies within the trial court's discretion (see Santiago v New York City Health & Hosps. Corp., 10 AD3d 393, 394; Roussodimou v Zafiriadis, 238 AD2d 568, 569; Grutman v Southgate At Bar Harbor Home Owners' Assn., 207 AD2d 526, 527), and the court has the discretion to accept law office failure as a reasonable excuse (see CPLR 2005), "a pattern of willful default and neglect" should not be excused (Roussodimou v Zafiriadis, 238 AD2d at 569 [internal quotation marks omitted]; see Santiago v New York City Health & Hosps. Corp., 10 AD3d 393; Kolajo v City of New York, 248 AD2d 512; Vierya v Briggs & Stratton Corp., 166 AD2d 645, 645-646; Chery v Anthony, 156 AD2d 414, 417), and the claim of law office failure should be supported by a "detailed and credible" explanation of the default or defaults at issue (Henry v Kuveke, 9 AD3d 476, 479; see Gironda v Katzen, 19 AD3d 644, 645). In this case, the plaintiff's attorney's conclusory, undetailed, and uncorroborated claim of law office failure did not amount to a reasonable excuse (see Forward Door of N.Y., Inc. v Forlader, 41 AD3d 535; Piton v Cribb, 38 AD3d 741; Matter of ELRAC, Inc. v Holder, 31 AD3d 636). In addition, the plaintiff failed to submit an affidavit of merit. Accordingly, the Supreme Court abused its discretion in granting the plaintiff's motion to vacate an order which granted the defendant's motion to dismiss the action upon her default in opposing the motion.

Now, compare that with

Lamar v City of New York, 2009 NY Slip Op 08974 (App. Div., 1st, 2009)

While the City's generalized assertion of law office failure as the excuse for its delay is not particularly compelling, it constitutes "good cause" for the delay (see Spira v New York City Tr. Auth., 49 AD3d 478 [2008]). No prejudice to plaintiff has been shown (see Cirillo v Macy's, Inc., 61 AD3d 538, 540 [2009]), and New York's public policy strongly favors litigating matters on the merits (see Silverio v City of New York, 266 AD2d 129 [1999]). An affidavit of merit is not required where no default order or judgment has been entered (see Cirillo, supra).

Performance Constr. Corp. v Huntington Bldg., LLC, 2009 NY Slip Op 09012 (App. Div., 2nd, 2009).

The Supreme Court providently exercised its discretion in denying that branch of the plaintiff's motion which was for leave to enter a default judgment against the defendant Corcoran Marble & Monument Co., Inc. (hereinafter Corcoran), and in granting Corcoran's cross motion for leave to serve a late answer (see CPLR 3012[d], 5015[a][1]). Considering the lack of any prejudice to the plaintiff as a result of the relatively short 11-day delay in Corcoran's service of an answer, the existence of a potentially meritorious defense, and the public policy favoring the resolution of cases on the merits, the Supreme Court providently excused Corcoran's de minimis delay in answering the complaint (see Klughaupt v Hi-Tower Contrs., Inc., 64 AD3d 545, 546; Schonfeld v Blue & White Food Prods. Corp., 29 AD3d 673, 674; Yonkers Rib House, Inc. v 1789 Cent. Park Corp., 19 AD3d 687, 688). Furthermore, the record reveals that Corcoran was actively engaged in settlement negotiations with the plaintiff's attorney, and that the plaintiff's attorney never mentioned that he would be moving for leave to enter a default judgment (see Armstrong Trading, Ltd. v MBM Enters., 29 AD3d 835, 836; Scarlett v McCarthy, 2 AD3d 623; Lehrman v Lake Katonah Club, 295 AD2d 322). [*2]

Moreover, the Supreme Court properly denied that branch of the plaintiff's motion which was for leave to enter a default judgment against the defendant Tritec Building Co. (hereinafter Tritec). The record reveals that Tritec and the plaintiff entered into a stipulation extending Tritec's time to answer "to and until March 3, 2008." Accordingly, Tritec's service of an answer was timely since the answer was served on March 3, 2008 (see CPLR 320[a]).

The bold is mine.

CPLR R. 2221(e) Motion to Renew

CPLR R. 2221
(e) Motion for Leave to Renew

Abayev v Zia, 2009 NY Slip Op 08565 (App. Div., 2nd, 2009)

A motion for leave to renew "shall be based upon new facts not offered on the prior motion that would change the prior determination" (CPLR 2221[e][2]) and "shall contain reasonable justification for the failure to present such facts on the prior motion" (CPLR 2221[e][3]; see Ramirez v Khan, 60 AD3d 748; Dinten-Quiros v Brown, 49 AD3d 588; Madison v Tahir, 45 AD3d 744). "Although a motion for leave to renew generally must be based on newly-discovered facts, this requirement is a flexible one, and a court has the discretion to grant renewal upon facts known to the movant at the time of the original motion, provided that the movant offers a reasonable justification for the failure to submit the additional facts on the original motion" (Matter of Allstate Ins. Co. v. Liberty Mut. Ins., 58 AD3d 727, 728).

Here, the Supreme Court providently exercised its discretion in granting the plaintiff leave to renew his opposition to the motion of the defendant Karen Mazuer for summary judgment dismissing the complaint insofar as asserted against her. The plaintiff submitted additional evidence and offered a reasonable justification for his failure to submit that additional evidence at the time of his opposition to the motion for summary judgment (see CPLR 2221[e]). However, upon renewal, the Supreme Court properly adhered to its original determination granting the motion for summary judgment.

Sajid v Glenwood Holding, LLC, 2009 NY Slip Op 09016 (App. Div., 2nd, 2009)

We affirm the denial of renewal on the ground that the defendants failed to offer a reasonable justification for failing to present the affidavit of the corporate defendants' principal in their opposition to the plaintiffs' original motion (see CPLR 2221[e]; Barnett v Smith, 64 AD3d 669, 670; Reshevsky v United Water N.Y., Inc., 46 AD3d 532, 533; St. Claire v Gaskin, 295 AD2d at 337).

The bold is mine.