[App Div 2d Dept]

CPLR § 3213

CPLR § 3213 Motion for summary judgment in lieu of complaint

Agai v Diontech Consulting, Inc., 2009 NY Slip Op 05839 (App. Div., 2nd, 2009)

The appeal from the intermediate 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, 248). The issues
raised on the appeal from the order are brought up for review and have
been considered on the appeal from the judgment (see CPLR 5501[a][1]).

The plaintiff established his prima facie entitlement to
judgment as a matter of law by submitting proof of the promissory note
and guarantee, and of the defendants' default (see Cutter Bayview Cleaners, Inc. v Spotless Shirts, Inc., 57 AD3d 708; Black Rock, Inc. v Z Best Car Wash, 27 AD3d 409; Brennan v Shapiro, 12 AD3d 547,
549). However, in response, the defendants showed the existence of a
triable issue of fact as to whether money allegedly owed to them in
connection with a project completed by a limited liability corporation
jointly owned by the plaintiff and the defendant Dennis Mihalatos was
retained by the plaintiff in partial satisfaction of the loan [*2]as per a subsequent agreement of the parties. Accordingly, the motion should have been denied (see Cor Rte. 5 Co., LLC v Saracene, 59 AD3d 1006; Khoury v Khoury, 280 AD2d 453).

I posted this case, not because it's particularly profound, but because you don't see too many 3213 appeals.

CPLR R. 3212; Watch your Stip (2nd to last decision)

CPLR R. 3212 Motion for summary judgment
(f) Facts unavailable to opposing party

Baines v G&D Ventures, Inc., 2009 NY Slip Op 05735 (App. Div., 2nd, 2009)

A defendant may be held liable for a slip-and-fall incident
involving snow and ice on its property upon a showing that, among other
things, the defendant had actual or constructive notice of the
allegedly dangerous condition (see Taylor v Rochdale Vil., Inc., 60 AD3d 930; Raju v Cortlandt Town Ctr., 38 AD3d 874).
Thus, "[o]n a motion for summary judgment to dismiss the complaint
based upon lack of notice, the defendant is required to make a prima
facie showing affirmatively establishing the absence of notice as a
matter of law" (Goldman v Waldbaum, Inc., 248 [*2]AD2d 436, 437). This burden cannot be satisfied merely by pointing out gaps in the plaintiff's case, as the defendant did here (see Totten v Cumberland Farms, Inc., 57 AD3d 653; South v K-Mart Corp., 24 AD3d 748).
In support of its motion, the defendant submitted the deposition
testimony of its president, who allegedly inspected the premises on an
"almost" daily basis. However, the defendant's president failed to
provide any testimony as to when he last inspected the subject sidewalk
prior to the accident or what it looked like when he last inspected it.
Further, the mere fact that the icy condition which allegedly caused
the plaintiff to fall was open and obvious does not preclude a finding
of liability, but rather raises an issue of fact regarding comparative
negligence (see Sewitch v Lafrese, 41 AD3d 695; Ettari v 30 Rampasture Owners, Inc., 15 AD3d 611).

Accordingly, the defendant failed to meet its initial burden as
the movant, and the Supreme Court should have denied its motion for
summary judgment dismissing the complaint insofar as asserted against
it. Since the defendant did not meet its initial burden, we need not
review the sufficiency of the plaintiff's opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851).

Financial Freedom Senior Funding Corp. v Rose, 2009 NY Slip Op 05745 (App. Div., 2nd, 2009)

There was no need to join the estate of the now-deceased mortgagor,
the father of the respondents Steven Rose and Debra Rosenberg, as it
appears that he died intestate and the complaint does not seek a
deficiency judgment (see Countrywide Home Loans, Inc. v Keys, 27 AD3d 247; Winter v Kram, 3 AD2d 175).

However, the Supreme Court properly denied summary judgment to
the plaintiff, although the motion should have been denied without
prejudice to renewal upon completion of discovery. The respondents
alleged that the now-deceased mortgagor was incompetent when he
executed the subject loan, and that the plaintiff knew or should have
known of the incompetence, which, if both facts are proven, would
constitute a basis to void this transaction (see Ortelere v Teachers' Retirement Bd., 25 NY2d 196; Matter of Loretta I., 34 AD3d 480; see generally Peterson v Spartan Ind., 33 NY2d 463, 465-466; Matter of People v Jaguar Sales, LLC, 61 AD3d 872; Benfeld v Fleming Props, LLC, 38 AD3d 814; Ying Jun Chen v Lei Shi, 19 AD3d 407).
Since the respondent Steven Rose set out a sufficient basis for his
inability to include medical evidence as to the decedent's mental
capacity in his opposition papers, further discovery was warranted.

Woods v 126 Riverside Dr. Corp., 2009 NY Slip Op 05634 (App. Div., 1st, 2009)

Insofar as plaintiffs claim that the motion was premature, they failed
to show that facts essential to the motion were in defendants'
exclusive knowledge or that discovery might lead to facts relevant to
the issues (see Voluto Ventures, LLC v Jenkens & Gilchrist Parker Chapin LLP, 44 AD3d 557
[2007]). Since plaintiffs were relying on statements they claim were
made to them by defendants' representatives, such facts were not within
defendants' exclusive knowledge.

Corchado v City of New York, 2009 NY Slip Op 05642 (App. Div., 1st, 2009)

The parties' so-ordered stipulation clearly provided that summary
judgment motions were "to be filed" within 60 days of the filing of the
note of issue. Since the note of issue was filed on October 24, 2007,
summary judgment motions were to be filed by December 23, 2007. While
Hallen served its motion on December 21, 2007, it did not file the
motion until January 4, 2008. Plaintiff's opposition asserted the
untimeliness of Hallen's motion, to which Hallen replied that its
motion was timely because served within 90 days of the filing of the
note of issue. We reject Hallen's argument that CPLR 3212(a) authorizes
a court to set a deadline only for the making, i.e., service, not the
filing, of summary judgment motions (see e.g. Corbi v Avenue Woodward Corp.,
260 AD2d 255, 255 [1999]) because the parties, with the court's
consent, were free to chart a procedural course that deviated from the
path established by the CPLR (see Katz v Robinson Silverman Pearce Aronsohn & Berman LLP,
277 AD2d 70, 73 [2000] ["Parties are afforded great latitude in
charting their procedural course through the courts, by stipulation or
otherwise"] [internal citations omitted]). Thus, we affirm the denial
of Hallen's motion as untimely since Hallen offered no excuse for the
late filing (see Brill v City of New York, 2 NY3d 648, 652 [2004]), and we decline to consider Hallen's contention that good cause exists to [*2]consider
the motion because the parties misread the so-ordered stipulation and
believed that the 60-day deadline applied to the serving, not the
filing, of summary judgment motions. That contention was raised
improperly for the first time on appeal. In view of the foregoing, we
decline to reach the merits of Hallen's motion.

Not something you see very often.

Braudy v Best Buy Co., Inc., 2009 NY Slip Op 05499 (App. Div., 2nd, 2009)

"To meet its initial burden on the issue of lack of constructive
notice, the defendant must offer some evidence as to when the area in
question was last cleaned or inspected relative to the time when the
plaintiff fell" (Birnbaum v New York Racing Assn., Inc., 57 AD3d 598,
598-599). Since the defendant failed to do so here, the Supreme Court
correctly denied the defendant's motion without regard to the
sufficiency of the plaintiff's opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 852).

The bold is mine.

Another Sighting of the Rare Motion to Replead (CPLR R. 3211(e))

CPLR R. 3211 Motion to dismiss

CPLR R. 3211(e) Motion to replead

For some much needed background on this procedural novelty read Janssen v Incorporated Vil. of Rockville Ctr., 2008 NY Slip Op 09962 (App. Div., 2nd). For the shorter, highlighted version, click HERE.

Clark v Pfizer, Inc., 2009 NY Slip Op 05743 (App. Div., 2nd, 2009)

The defendant correctly contends that the appeal from the order
dated November 2, 2007, must be dismissed, inasmuch as the plaintiff
failed to file a notice of appeal within 35 days after service upon him
by mail of that order with notice of entry (see CPLR 2103[b][2]; 2103[c], 5513[a]; Matter of Wei v New York State Dept. of Motor Vehs., 56 AD3d 484, 485; Jones Sledzik Garneau & Nardone, LLP v Schloss, 37 AD3d 417; Matter of Eagle Ins. Co. v Soto, 254 AD2d 483).

Moreover, the Supreme Court properly denied that branch of the
plaintiff's motion which was, in effect, for leave to replead so as to
assert a cause of action to recover damages for discrimination in the
terms, privileges, and conditions of employment in violation of
Executive Law [*2]§ 296. A motion
for leave to replead, although now constituting little more than a
"poor substitute" or "arcane alternative" to a motion for leave to
amend a pleading under CPLR 3025(b) (Janssen v Incorporated Vil. of Rockville Ctr., 59 AD3d 15, 19), is still cognizable and is not expressly "constrained by any time limitation" (id.).
Nonetheless, in the matter before us, the proposed complaint, as sought
to be repleaded, is palpably insufficient and patently devoid of merit (see Lucido v Mancuso, 49 AD3d 220, 226-227; see also Barnum v New York City Tr. Auth., 62 AD3d 736).

The bold is mine.

22 NYCRR 202.42(a): To Bifurcate or Not to Bifurcate

22 NYCRR 202.42(a) Bifurcated Trials

Carbocci v Lake Grove Entertainment, LLC, 2009 NY Slip Op 05739 (App. Div., 2nd, 2009)

Trial courts are encouraged to conduct bifurcated trials in personal injury cases (see 22
NYCRR 202.42[a]). However, where the nature of the plaintiff's injuries
has an important bearing on the question of liability, a unified trial
should be held (see Wahid v Long Is. R.R. Co., 59 AD3d 712; Wright v New York City Hous. Auth., 273
AD2d 378). The party opposing bifurcation has the burden of showing
that the nature of the injuries necessarily assists the factfinder in
making a determination with respect to the issue of liability (see Barrera v Skaggs-Walsh, Inc., 279 AD2d 442).

Here, the plaintiff, Dolores Carbocci (hereinafter Carbocci),
fell while ice skating at a rink owned and operated by the defendant
Lake Grove Entertainment, LLC, doing business as Sports Plus
(hereinafter Sports Plus). The plaintiffs alleged that Carbocci was
removed from the ice [*2]by the defendant
Patrick Lever, an employee of Sports Plus, either negligently or
forcibly, despite Carbocci's instructions to not touch her and to call
an ambulance. The defendants assert that Carbocci stood up on her own
and was merely assisted from the ice by Lever and other employees of
Sports Plus. The plaintiffs moved for a unified trial asserting that
evidence with respect to her medical treatment was necessary to prove
her case. The Supreme Court denied the motion and, sua sponte, directed
the trial court to give a particular preliminary instruction to the
jury relating to the bifurcation of the case. We reverse.

The plaintiffs established that Carbocci's injuries are
interwoven with the existence or extent of the defendants' liability on
both the negligence and battery causes of action (see Sokolovsky v Mucip, Inc., 32 AD3d 1011). Evidence relating to Carbocci's injuries is probative in determining how the incident occurred (see Byrd v New York City Tr. Auth., 172 AD2d 579, 581; DeGregorio v Lutheran Med. Ctr., 142
AD2d 543). Accordingly, the plaintiffs' request for a unified trial was
improperly denied as the issues of liability and damages are
inseparable (see Jacobs v Broidy, 88 AD2d 904; cf. Pasquaretto v Cohen, 37 AD3d 440).

In light of the foregoing, the preliminary instruction the
Supreme Court directed the trial court to give to the jury is
unnecessary.

The bold is mine.

Standing Waived; CPLR R. 3211(e)

CPLR R. 3211(e) Number, time and waiver of objections; motion to plead over

Lot 57 Acquisition Corp. v Yat Yar Equities Corp., 2009 NY Slip Op 05512 (App. Div., 2nd, 2009)

Since the defendant Yat Yar Equities Corp. (hereinafter Yat Yar) did
not raise the defense of lack of standing in a timely motion to dismiss
the complaint or in its responsive pleading, that defense is waived (see CPLR 3211[e]; Gager v White, 53 NY2d 475, 488, cert denied 454 US 1086; Aames Funding Corp. v Houston, 57 AD3d 808, 809).

Standing can be waived through other, less obvious, means. See, Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556 (Ct. App., 2008). Fair Price can of course be limited to it facts. Can it be expanded outside no-fault, to other statutory or contract driven arenas.

Experts and Their Reports. And a Engineer’s Report that Made its Way into Evidence

Starting last first, here we go.

McPartlan v Basile, 2009 NY Slip Op 05521 (App. Div., 2nd, 2009)

Contrary to the appellants' contention, the engineer's report was
admitted into evidence, and properly so, not to prove the truth or
accuracy of its contents, but to establish that the plaintiffs had a
good faith basis for determining that the report was unacceptable.
Furthermore, the record supports the conclusion that the plaintiffs
did, in fact, act in good faith, and thus their termination of the
contract of sale pursuant to Paragraph 39 of the contract was valid (see Hirsch v Food Resources, Inc., 24 AD3d 293, 296; Tradewinds Fin. Corp. v Refco Sec., 5 AD3d 229, 230-31; Richbell Info. Sers. v Jupiter Partners,
309 AD2d 288, 302). Accordingly, the Supreme Court properly determined
that the plaintiffs were entitled to the return of their down payment.

Yun v Barber, 2009 NY Slip Op 05535 (App. Div., 2nd, 2009)

The plaintiffs' remaining submissions did not constitute admissible evidence since they were unsworn (see Grasso v Angerami, 79 NY2d 813; McNeil v New York City Tr. Auth., 60 AD3d 1018; Sapienza v Ruggiero, 57 AD3d 643, 644).

Vickers v Francis, 2009 NY Slip Op 05540 (App. Div., 2nd, 2009)

Initially, the X ray report dated September 22, 2006, the magnetic
resonance imaging (hereinafter MRI) reports of Dr. Robert Diamond, the
medical records from Alliance Medical Office, the plaintiff's emergency
room and hospital records, and the reports of Dr. Nunzio Saulle dated
August 31, 2006, and October 19, 2006, were not in admissible form
because they were unsworn (see Grasso v Angerami, 79 NY2d 813, 814-815; McNeil v New York City Tr. Auth., 60 AD3d 1018; Sapienza v Ruggiero, 57 AD3d 643, 644; Uribe-Zapata v Capallan, 54 AD3d 936, 937; Choi Ping Wong v Innocent, 54 AD3d 384, 385).

The affirmed medical reports of Dr. Saulle were insufficient to
raise a triable issue of fact as to whether the plaintiff sustained a
serious injury to her cervical or lumbar spine as a result of the
subject accident. Neither the plaintiff nor Dr. Saulle proffered
competent objective medical evidence revealing the existence of a
significant limitation in either region of the plaintiff's spine that [*2]was contemporaneous with the subject accident (see Leeber v Ward, 55 AD3d 563; Ferraro v Ridge Car Serv., 49 AD3d 498; D'Onofrio v Floton, Inc., 45
AD3d 525). Furthermore, in reaching his conclusion in his affirmed
medical reports, Dr. Saulle clearly relied on the unsworn MRI reports
of Dr. Diamond (see Magid v Lincoln Servs. Corp., 60 AD3d 1008; Sorto v Morales, 55 AD3d 718; Malave v Basikov, 45 AD3d 539; Verette v Zia, 44 AD3d 747; Furrs v Griffith, 43 AD3d 389; see also Friedman v U-Haul Truck Rental, 216
AD2d 266, 267). Moreover, Dr. Saulle failed to address, in any of his
affirmed reports, the fact that the plaintiff injured her neck and back
in a subsequent accident in October 2007. His failure to address that
accident and the resulting injuries rendered speculative his
conclusions that the range of motion limitations he noted in the
plaintiff's cervical and lumbar regions after October 2007 were caused
by the subject accident (see Donadio v Doukhnych, 55 AD3d 532; Seck v Minigreen Hacking Corp., 53 AD3d 608).

Wartski v C.W. Post Campus of Long Is. Univ., 2009 NY Slip Op 05115 (App. Div., 2nd, 2009)

In opposition, the plaintiff failed to raise a triable issue of fact
as to whether the defendant had actual notice of a recurring dangerous
condition such that it could be charged with constructive notice of
each specific recurrence of that condition (see Erikson v J.I.B. Realty Corp., 12 AD3d 344, 346; Weisenthal v Pickman,
153 AD2d 849, 851). Here, at most, the evidence submitted by the
plaintiff established that the defendant had only a general awareness
that the stairs became wet when ice and snow was tracked into the
building, which was insufficient to establish constructive notice of
the particular condition which caused the plaintiff to fall (see Arrufat v City of New York, 45 AD3d 710; Curtis v Dayton Beach Park No. 1 Corp., 23 AD3d 511; Gonzalez v Jenel Mgt. Corp., 11 AD3d 656; Andujar v Benenson Inv. Co., 299 AD2d at 504; Yearwood v Cushman & Wakefield, Inc., 294 AD2d 568, 569).

The plaintiff's expert affidavit should not have been considered
in determining the motion since the expert was not identified by the
plaintiff until after the note of issue and certificate of readiness
were filed attesting to the completion of discovery, and the plaintiff
offered no valid excuse for her delay [*2]in identifying the expert (see CPLR 3101[d][1]; Construction by Singletree, Inc. v Lowe, 55 AD3d 861, 863; Gerry v Commack Union Free Sch. Dist., 52 AD3d 467, 469; Gralnik v Brighton Beach Assocs., LLC, 3 AD3d 518; Dawson v Cafiero,
292 AD2d 488). In any event, even if the plaintiff's expert affidavit
could have properly been considered, the result would not have been
different.

The bold is mine.

CPLR R.3211 Roundup with a smattering of CPLR § 308. CPLR § 205(a) too.

These are some of the more interesting CPLR R. 3211 decision's I've found in the past few weeks. At least two revolve around CPLR § 308 ( Personal service upon a natural person). Another discussed CPLR § 306-b. One decision discussed the preclusive effect of a CPLR R. 3211(a)(7) dismissal (in that case none), adding that it received the tolling benefit of CPLR § 205(a)

CPLR R. 3211

(a)(1) defense is founded upon documentary evidence

(a)(5) the
cause of action may not be maintained because of arbitration and award,
collateral estoppel, discharge in bankruptcy, infancy or other
disability of the moving party, payment, release, res judicata, statute
of limitations, or statute of frauds

(a)(7) pleading fails to state a cause of action

Fitzgerald v Federal Signal Corp., 2009 NY Slip Op 05288 (App. Div., 2nd, 2009)

"Upon a motion to dismiss for failure to state a cause of action
under CPLR 3211(a)(7), the court must determine whether from the four
corners of the pleading factual allegations are discerned which taken
together manifest any cause of action cognizable at law'" (Salvatore v Kumar, 45 AD3d 560, 563, quoting Morad v Morad, 27 AD3d 626, 627; see Arnav Indus., Inc. Retirement Trust v Brown, Raysman, Millstein, Felder & Steiner, 96 NY2d 300, 303; Leon v MartÍnez, 84
NY2d 83, 87-88). "In determining such a motion, the court may freely
consider additional facts contained in affidavits submitted by the
plaintiff to remedy any defects in the complaint" (Sheridan v Carter, 48 AD3d 444, 445; see International Oil Field Supply Servs. Corp. v Fadeyi, 35 AD3d 372, 375).

Viewing the allegations in the complaint as true, and according
the plaintiffs the benefit of every reasonable inference, the Supreme
Court properly determined that the plaintiffs failed to state a cause
of action to recover damages for strict products liability based on
Federal's alleged duty and failure to warn them, as the risk alleged is
"open and obvious" and "readily apparent as a matter of common sense" (Liriano v Hobart Corp., 92 NY2d 232, 241-242; see Warlikowski v Burger King Corp., 9 AD3d 360, 362; Schiller v National Presto Indus., 225
AD2d 1053, 1054). "There is no duty to warn of an open and obvious
danger of which the product user is actually aware or should be aware
as a result of ordinary observation or as a matter of common sense" (O'Boy v Motor Coach Indus., Inc., 39 AD3d 512, 514; see Jones v W + M Automation, Inc., 31 AD3d 1099, 1101-1102; Vail v KMart Corp., 25 AD3d 549,
551).

Stubbolo v City of New York, 2009 NY Slip Op 04971 (App. Div., 1st, 2009)

The motion court erred in denying dismissal of plaintiffs' 42 USC §
1983 claim based on the theory of fabrication of evidence prior to the
initiation of the grand jury proceedings and prosecutions against
plaintiff Frank J. Stubbolo under Indictment Nos. 724/02 and 4133/03.
The complaint fails to sufficiently allege such prosecutorial
misconduct and, as a result, the claim is barred by absolute
prosecutorial immunity (see Buckley v Fitzsimmons, 509 US 259, 269-270 [1993]; Imbler v Pachtman, 424 US 409, 430-31 [1970]; Hill v City of New York, 45 F3d 653, 661 [2d Cir 1995]).

Contrary to plaintiffs' contentions on appeal, the motion court properly dismissed [*2]plaintiffs'
remaining federal and state law claims as time-barred or for failure to
state a cause of action (CPLR 3211[a][1], [7]).

HNH Intl., Ltd. v Pryor Cashman Sherman & Flynn LLP, 2009 NY Slip Op 04964 (App. Div., 1st, 2009)

The court dismissed the legal malpractice complaint, pursuant to
CPLR 3211(a)(1), based on documentary evidence from which it concluded
that the state of the law at the time the advice was given was
unsettled and defendants therefore had not " failed to exercise the
ordinary reasonable skill and knowledge commonly possessed by a member
of the legal profession'" at that time (quoting Darby & Darby v VSI Intl., 95 NY2d 308, 313 [2000]).

We conclude, however, that the state of the law was not so
unsettled at the time the advice was given as to bar as a matter of law
plaintiffs' claim that a reasonably skilled attorney would have advised
that the CDs were or might be entitled to common-law copyright
protection and would not have advised that the release of the CDs would
not result in any copyright liability. Although defendant maintains
that it did advise plaintiffs of the possibility of common-law
liability and did not advise plaintiffs that the release of the CDs
would not result in any copyright liability, we must accept the facts
alleged in the complaint as true and accord plaintiffs the benefit of
every possible
favorable inference (Arnav Indus., Inc. Retirement Trust v Brown, Raysman, Millstein, Felder & [*2]Steiner,
96 NY2d 300, 303 [2001]). The determination whether defendant exercised
the requisite level of skill and care must await expert testimony (compare Merlin Biomed Asset Mgt., LLC v Wolf Block Schorr & Solis-Cohen LLP, 23 AD3d 243 [2005] [expert testimony required], with Darby & Darby, supra [legal malpractice counterclaim dismissed on summary judgment]).

Continue reading “CPLR R.3211 Roundup with a smattering of CPLR § 308. CPLR § 205(a) too.”

CPLR R. 5015(a)(1)&(4); CPLR § 308(2)&(4); CPLR § 317

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

CPLR § 308 Personal service upon a natural person
(2) by delivering the summons within the state to a person of suitable age and discretion...
(4) where service under paragraphs one and two cannot be made with due diligence, by affixing the summons to the door

CPLR § 317 Defense by person to whom summons not personally delivered

CPLR R. 320 Defendant's appearance
(a) Requirement of appearance

Caba v Rai, 2009 NY Slip Op 05252 (App. Div., 1st, 2009)

CPLR 317 and 5015(a)(1) allow a defendant against whom a default
judgment has been rendered to move to vacate that default. CPLR 317
provides that

"[a] person served with a summons other than by personal delivery
to him or to his agent for service designated under rule 318 . . . who
does not appear may be allowed to defend the action within one year
after he obtains knowledge of entry of the judgment, but in no event
more than five years after such entry, upon a finding of the court that
he did not personally receive notice of the summons in time to defend
and has a meritorious defense."

Thus, this statute is available only to a defendant who (1) was
served by a method other than personal delivery, (2) moves to vacate
the judgment within one year of learning of it (but not more than five
years after entry), and (3) demonstrates a potentially meritorious
defense to the action. By contrast, CPLR 5015(a)(1) is available to any
defendant against whom a default judgment was entered, provided that
the defendant can demonstrate both a reasonable excuse for the default
and a potentially meritorious defense. A defendant seeking relief under
5015(a)(1) must move to vacate the default judgment within one year of
service on defendant of the default judgment with notice of entry. Both
provisions assume personal jurisdiction exists over the defaulting
defendant and provide that party with an opportunity to open the
default and contest the merits of the plaintiff's claim (see Alexander, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C317:1, at 249-250 [main vol]; see also
Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B,
CPLR C5015:6, at 210). If the defaulting defendant asserts that the
court lacked personal jurisdiction over him or her, the defendant
should seek dismissal of the action under CPLR 5015(a)(4) (see Alexander, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C317:1, at 250 [main vol]), a
motion that has no stated time limit and can be made at any time
(Siegel, Practice Commentaries, McKinney's Cons Laws, Book 7B, CPLR
C5015:3, at 205-206 [main vol]).

In moving to vacate the default judgment, defendant argued that
she was entitled to relief under CPLR 317 or 5015(a)(1) and sought to
vacate the judgment and for an extension of time to interpose an
answer; she did not seek relief under 5015(a)(4) or request that the
complaint be dismissed for want of personal jurisdiction. To be sure,
in her notice of cross motion, defendant requested an order "vacating
and setting aside the defendant's [default] pursuant to CPLR 5015
and/or CPLR 317, extending the defendant's time to answer and
compelling plaintiff to accept defendant's answer pursuant to CPLR
2004." Nowhere in her motion papers, however, did defendant suggest
that the action should be dismissed because the court lacked personal
jurisdiction over her. Although defendant did argue that she had not
received the summons and complaint (or the default judgment), that
argument was asserted by defendant in an effort to establish that she
had a reasonable excuse for her default. What the concurring Justice
considers to be part of the "crux" of defendant's motion, "the absence
of any personal jurisdiction," was never stated in the motion.
Accordingly, since defendant sought to vacate the judgment and defend
the action on the merits, Supreme Court erred in ordering a traverse
hearing; defendant charted a specific procedural course that Supreme
Court improperly altered (see Mitchell v New [*3]York Hosp., 61 NY2d 208, 214 [1984]).^[FN1]

With respect to her contention that she was entitled to relief
under CPLR 317, defendant obtained knowledge of the judgment in January
2004 when she received a credit report listing the judgment, and did
not move to vacate the default until August 2007. Thus, that portion of
defendant's cross motion seeking relief under CPLR 317 was untimely.

Regarding that portion of the cross motion that sought relief
under CPLR 5015(a)(1), there is no indication when the default judgment
with notice of entry was served on defendant. Thus, assuming without
deciding that defendant properly could seek relief under 5015(a)(1),^[FN2]
the motion appears timely and plaintiff does not argue to the contrary.
Nonetheless, defendant is not entitled to relief under 5015(a)(1).
Although defendant denied receiving the summons and complaint or any
other papers in this matter until she was served with plaintiff's
motion to compel the sheriff to seize and sell her property, defendant
learned of the judgment in January 2004. She did not move to vacate the
default, however, until August 2007 and only did so in response to
plaintiff's motion to seize and sell her property. Moreover,
plaintiff's counsel [*4]averred that both
defendant and her attorney contacted plaintiff's counsel on May 11,
2005 about vacating the judgment, an averment that is corroborated by
phone message slips generated by plaintiff's counsel's secretary and
which defendant does not dispute. Thus, defendant failed to proffer a
reasonable excuse for her substantial delay in moving to vacate the
judgment (see Bekker v Fleischman, 35 AD3d 334 [2006]; Robinson v 1068 Flatbush Realty, Inc., 10 AD3d 716 [2004]; Duran v Edderson,
259 AD2d 728 [1999]). In light of our conclusion that defendant failed
to proffer a reasonable excuse, we need not determine whether she
offered a potentially meritorious defense to the action.

To read the concurring opinion, click the link for the decision above.

Kalamadeen v Singh, 2009 NY Slip Op 05296 (App. Div., 2nd, 2009)

The plaintiff and the defendant allegedly were involved in an
automobile accident on February 26, 2001. The police accident report
lists two different addresses for the defendant, one from his driver's
license and a different one from his vehicle registration. The
plaintiff commenced this action in February 2004, and contends that he
served the defendant pursuant to CPLR 308(4) at the defendant's address
then on record at the Department of Motor Vehicles (hereinafter the
DMV). This address was different from the two addresses on the police
accident report. The defendant did not appear in the action and a
judgment was entered against him on August 18, 2004, upon his default.

Upon discovering the judgment against him, the defendant moved
to vacate it, contending that at the time service allegedly was made he
did not live at the address where process was affixed and mailed, he
did not receive process, and that the subject accident was the
plaintiff's fault. A hearing to determine the validity of service of
process was ordered. At the hearing, the process server admitted that
on the fourth occasion that he attempted to personally deliver the
summons and complaint to the defendant at the defendant's address then
on record with the DMV, he was told by the owner of the premises that
the defendant had moved from that address several months earlier.
Nevertheless, the process server affixed the summons and complaint to
the door at that address and mailed process to that address, [*2]purportedly
in compliance with CPLR 308(4). The Civil Court of the City of New
York, Queens County, granted the defendant's motion to vacate the
default, and the Appellate Term for the Second, Eleventh, and
Thirteenth Judicial Districts affirmed, with one Justice dissenting. We
granted leave to appeal and now reverse and deny the defendant's motion
to vacate the default judgment.

CPLR 308(4) requires that the summons be affixed to the door of
the defendant's "actual place of business, dwelling place or usual
place of abode." Although the required subsequent mailing to the
defendant's last known residence will suffice for the second element of
service under CPLR 308(4), affixing process to the door of the
defendant's last known residence will not be sufficient to meet the
first element of the statute (see Feinstein v Bergner, 48 NY2d
234). The issue here is whether there is sufficient evidence, including
the defendant's failure to notify the Commissioner of the DMV of his
change of address, as required by Vehicle and Traffic Law § 505(5), to
estop the defendant from obtaining vacatur of the default judgment on
the ground that service of process was not made in strict compliance
with CPLR 308(4) (see Cruz v Narisi, 32 AD3d 981).

To the extent that the defendant's motion to vacate his default
was made pursuant to CPLR 5015(a)(1), based upon excusable default, it
should have been denied, as the defendant's change of address is not a
reasonable excuse because he failed to comply with Vehicle and Traffic
Law § 505(5) (see Candela v Johnson, 48 AD3d 502; Labozzetta v Fabbro, 22 AD3d 644; Traore v Nelson, 277
AD2d 443). Likewise, to the extent that the motion was made pursuant to
CPLR 5015(a)(4), based on lack of personal jurisdiction, it should have
been denied, as the defendant is estopped from challenging the
propriety of service due to his failure to comply with Vehicle and
Traffic Law § 505(5) (see Labozzetta v Fabbro, 22 AD3d 644; Kandov v Gondal, 11 AD3d 516).

A default judgment may be vacated pursuant to CPLR 317 where the
defendant was served by a method other than personal delivery and did
not actually receive notice of the summons in time to defend, provided
that the defendant has a meritorious defense (see Thakurdyal v 341 Scholes St., LLC, 50
AD3d 889). However, "denial of relief under CPLR 317 might be
appropriate where . . . a defendant's failure to personally receive
notice of the summons was a deliberate attempt to avoid such notice" (Eugene Di Lorenzo, Inc. v A. C. Dutton Lbr. Co., 67
NY2d 138, 143). Here, considering that the defendant supplied the
police officer with two different addresses at the time of the
officer's investigation, and that there was yet another address on
record for the defendant at the DMV, his failure to comply with Vehicle
and Traffic Law § 505(5) raised an inference that the defendant
deliberately attempted to avoid notice of the action (see Cruz v Narisi, 32
AD3d 981). The defendant failed to rebut that inference. Accordingly,
the defendant was not entitled to relief under CPLR 317 (see Eugene Di Lorenzo, Inc. v A. C. Dutton Lbr. Co., 67 NY2d 138, 143; Paul Conte Cadillac v C.A.R.S. Purch. Serv., 126 AD2d 621, 622.

That's one harsh inference.

Weiqin Wu v Guo Dong Chen, 2009 NY Slip Op 51142(U) (App. Term, 2nd, 2009)

The decision of a fact-finding court should not be disturbed upon
appeal unless it is obvious that the court's conclusions could not have
been reached under any fair interpretation of the evidence (see Claridge Gardens v Menotti, 160 AD2d 544 [1990]). This standard applies with greater force to judgments rendered in the Small Claims Part of the court (see Williams v Roper,
269 AD2d 125, 126 [2000]). Furthermore, the determination of the trier
of fact as to issues of credibility is given substantial deference as
the court has the opportunity to observe and evaluate the testimony and
demeanor of the witnesses, thereby affording the trial court a better [*2]perspective from which to evaluate the credibility of the witnesses (see Vizzari v State of New York, 184 AD2d 564 [1992]; Kincade v Kincade, 178 AD2d 510, 511 [1991]).

In its decision after trial, the Civil Court explicitly stated
that it credited plaintiff's testimony, but not defendant's. The Civil
Court also implicitly found that plaintiff had established that there
was an agreement between plaintiff and defendant, acting in his
individual capacity, and that defendant had breached that agreement.
That finding is supported by the record and will not be disturbed on
appeal.

The Civil Court properly denied defendant's posttrial motion,
as defendant failed to establish that he had discovered any evidence
that he could not have discovered prior to trial or prior to the time
for making a timely CPLR 4404 motion (CPLR 5015 [a] [2]), or that
plaintiff had made any misrepresentations (CPLR 5015 [a] [3]). We note
that defendant also failed to establish that the agreement was void
pursuant to the statute of frauds (see e.g. Taranto v Fritz, 83 AD2d 864 [1981]; 61 NY Jur 2d, Statute of Frauds § 39).

Accordingly, the Civil Court's judgment and order provided the
parties with substantial justice according to the rules and principles
of substantive law (CCA 1807; see Ross v Friedman, 269 AD2d 584 [2000]; Williams, 269 AD2d at 126), and we affirm.

Saxon Mtge. Servs., Inc. v Bell, 2009 NY Slip Op 05312 (App. Div., 2nd, 2009)

Where, as here, the appellant submitted a detailed affidavit stating
that he was home on each of the occasions when the process server
purportedly attempted to serve process pursuant to CPLR 308(2), he
rebutted the allegations contained in the process server's affidavit
and was entitled to a hearing to determine whether personal
jurisdiction was acquired over him (see Bankers Trust Co. of Cal. v Tsoukas, 303 AD2d 343).

While the appellant eventually acquired actual notice of the
action, actual notice alone will not sustain the service or subject a
person to the court's jurisdiction when there has not been compliance
with prescribed conditions of service (see Frankel v Schilling, 149 AD2d 657; Skyline Agency v Coppotelli, Inc., 117 AD2d 135).

The bold is mine.

CPLR R. 2221CPLR § 2001

CPLR § 2001 Mistakes, omissions, defects & irregularities

CPLR R. 2221 Motion affecting prior order
(d) A motion for leave to reargue

Ayoub v Ayoub, 2009 NY Slip Op 05164 (App. Div., 1st, 2009)

The preliminary conference order indicated that the issue of equitable
distribution was resolved and that all financial and property issues
except for child support were resolved by the parties' prenuptial
agreement. In her motion to modify the preliminary conference order,
plaintiff did not demonstrate good cause (see 22 NYCRR
202.16[f][3]) to raise the issue of equitable distribution of the
marital residence. Indeed, contrary to her contention, the prenuptial
agreement is clear that the only property subject to equitable
distribution is that titled in joint names, of which there is none.
While the agreement contains a separate section dealing with a marital
residence, the plain language of paragraph 4 of that section provides
for equitable distribution only if "the Marital Residence is purchased
as Jointly Owned Property."

Nor is relief available under CPLR 2001, since the waiver of
the issue of equitable distribution in the preliminary conference order
was not simply a slight mistake (see People ex rel. Di Leo v Edwards,
247 App Div 331 [1936]). Similarly, no relief is available under CPLR
2221. In her motion papers, plaintiff did not even assert that the
preliminary conference order reflected a misapprehension of law or
facts. Furthermore, the court correctly found that plaintiff's hiring
of new counsel did not present a new fact permitting her to revisit the
issues resolved in the preliminary conference order

Caraballo v Kim, 2009 NY Slip Op 05279 (App. Div., 2nd, 2009)

The medical report of the injured plaintiff's treating chiropractor,
Dr. Alan C. Berger, dated May 8, 2006, did not constitute evidence
competent to oppose the defendants' motion because it was unaffirmed (see Grasso v Angerami, 79 NY2d 813; Niles v Lam Pakie Ho, 61 AD3d 657; Uribe-Zapata v Capallan, 54 AD3d 936; Patterson v NY Alarm Response Corp., 45 AD3d 656; Verette v Zia, 44 AD3d 747; Nociforo v Penna, 42 AD3d 514; Pagano v Kingsbury, 182 AD2d 268).

…

The affirmation of Dr. Stuart I. Springer, the injured
plaintiff's treating physician, also failed to raise a triable issue of
fact…

The affirmed magnetic resonance imaging reports of Dr. Mark
Shapiro and Dr. Marc Liebeskind merely revealed the existence of disc
bulges at L3-4 and L4-5, a disc herniation at L5-S1, possible tears in
the posterior horns of the medial menisci of the right and left knees,
and a possible tear (rupture) of the anterior cruciate ligament in the
left knee. This Court has held that a herniated or bulging disc, or
even a tear in a tendon, is not evidence of a serious injury in the
absence of objective evidence of the extent of the alleged physical
limitations resulting from the injury and its duration (see Magid v Lincoln Servs. Corp., 60 AD3d 1008; Washington v Mendoza, 57 AD3d 972; Cornelius v Cintas Corp., 50 AD3d 1085, 1087; Shvartsman v Vildman, 47 AD3d 700; Tobias v Chupenko, 41 AD3d 583).
A tendon is defined as "[t]he cord of tough connective tissue which
forms the end of a muscle and which connects the muscle to the bone"
(5-T-TG Attorneys' Dictionary of Medicine [2005 ed] at 974). Tendons
"are bands of fibrous connective tissue" (5-15A Attorneys' Textbook of
Medicine [3d ed] at 15A.10). A ligament is defined as "[a] band of
tough but flexible tissue which serves to connect bones (as in the
formation of a joint), to hold organs in place, etc." (3-L Attorneys'
Dictionary of Medicine [2005 ed] at 2302). Ligaments, like tendons, are
"bands of tough, fibrous connective tissue" (4-13 Attorneys' Textbook
of Medicine [3d ed] at 13.10). Thus, injuries involving tendons and
ligaments must be treated similarly under Insurance Law § 5102(d).
Evidence of the extent and duration of any alleged limitation arising
from injury to the plaintiff's discs or ligaments was clearly lacking
here. The deposition testimony of the injured plaintiff was
insufficient to supply such evidence (see Washington v Mendoza, 57 AD3d 972).

…

The Supreme Court providently exercised its discretion in
denying the plaintiffs' motion for leave to renew their opposition to
the defendants' motion for summary judgment (see Ramirez v Khan, 60 AD3d 748; Renna v Gullo, 19 AD3d 472).
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).
While it may be within the court's discretion to grant leave to renew
upon facts known to the moving party at the time of the original motion
(see Ramirez v Khan, 60 AD3d 748; J.D. Structures v Waldbaum, 282 AD2d 434; Cronwall Equities v International Links Dev. Corp.,
255 AD2d 354), 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 at 472, quoting Rubinstein v Goldman, 225 AD2d 328, 329; see Ramirez v Khan, 60 AD3d 748; O'Dell v Caswell, 12 AD3d 492; Hart v City of New York, 5 [*3]AD3d 438; Carota v Wu,
284 AD2d 614). In this case, the plaintiffs failed to provide
reasonable justification for the failure to include the findings in the
supplemental affidavit of Dr. Berger on the original motion (see Ramirez v Khan, 60 AD3d 748; Renna v Gullo, 19 AD3d 472).

The bold is mine.

CPLR § 5701(a)(2)

CPLR § 5701 Appeals to appellate division from supreme and county courts
(a) Appeals as of right
(2) from an order not specified in subdivision (b), where the motion it decided was made upon notice…

Rabinovich v Shevchenko, 2009 NY Slip Op 05310 (App. Div., 2nd, 2009)

The order appealed from did not determine a motion made on notice, and is therefore not appealable as of right (see CPLR 5701[a][2]; Steven L.Levitt & Assoc., P.C. v Computer Handlers Corp., 7 AD3d 613; Johnson v Ladin, 7 AD3d 674, 675; Stern v Stern, 273 AD2d 298, 299; Cuffie v New York City Health & Hosps. Corp., 260
AD2d 423). No motion for leave to appeal has been made, and under the
circumstances, we decline to grant leave on our own motion (see Independence Constr. Corp. v AMOCO Constr. Corp., 33 AD3d 963; Steven L.Levitt & Assoc., P.C. v Computer Handlers Corp., 7 AD3d 613; Cuffie v New York City Health & Hosps. Corp., 260 AD2d 423).

The bold is mine.