[App Div 2d Dept]

Interesting insufficient SJ

Alexander v Annarumma, 2018 NY Slip Op 07695 [2d Dept. 2018]

Since the defendant did not sustain her prima facie burden, it is unnecessary to determine whether the papers submitted by the plaintiff—either in opposition to the defendant’s original motion or in support of that branch of the plaintiff’s motion which was for leave to renew her opposition to that motion—were sufficient to raise a triable issue of fact (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853). Therefore, the Supreme Court, upon renewal and reargument, should have vacated the order entered October 22, 2015, which granted the defendant’s motion for summary judgment dismissing the complaint, and thereupon, denied that motion.

Not aggrieved, not an application for leave to appeal

Logan v Pula 200, LLC, 2018 NY Slip Op 08016 [2d Dept. 2018]

The appeal must be dismissed, as the defendants are not aggrieved by the portion of the order appealed from (see CPLR 5511; Day v Syosset Cent. Sch. Dist., 105 AD3d 888; Vigo v 501 Second St. Holding Corp., 100 AD3d 872; Impastato v Impastato, 62 AD3d 752, 752) and, in any event, no appeal lies as of right from an order which does not determine a motion made on notice (see CPLR 5701[a][2]). Under the circumstances of this case, we cannot appropriately deem the notice of appeal filed in the names of the defendants to be an application for leave to appeal by their attorney (see Scopelliti v Town of New Castle, 92 NY2d 944; Day v Syosset Cent. Sch. Dist., 105 AD3d at 889).

Gamesmanship

Cram v Keller, 2018 NY Slip Op 08007 [2d Dept. 2018]

While defense counsel has the right to hold the plaintiff to the burden of proof on disputed issues, here, the record shows that the defendants’ ownership of the property was never genuinely disputed. In fact, Keller explicitly admitted in a portion of his deposition testimony not read by the plaintiff at trial that he and his wife owned the property. Defense counsel successfully objected to the reading of this testimony despite the lack of any apparent good faith basis in which to do so, making this an exercise in gamesmanship. The defendants did not offer any evidence at trial to dispute their ownership of the property. At an early stage of the case, the defendants submitted an answer to the complaint in which they denied having knowledge or information sufficient to form a belief as to the truth of the plaintiff’s allegation of the defendants’ ownership of the subject property. While the answer was verified by counsel, it is difficult to accept the denial of information sufficient to form a belief as to ownership as having been asserted in good faith, as there is no reason to believe that the defendants did not know that they owned the property, given that Keller admitted at his deposition that he and his wife owned the property. While the defendants did not amend their answer after Keller’s deposition, plaintiff’s counsel knew that the defendants did not dispute ownership and defense counsel knew that as well. Under the circumstances of this case, the defendants’ posttrial motion to set aside the verdict, to the extent predicated on the issue of ownership, was frivolous, given the evidence presented by the plaintiff at trial, the failure of the defendants to offer any contrary evidence at trial, the known fact that the defendants owned the property, the lack of good faith underlying the denial of ownership appearing in the defendants’ answer, and the lack of a good faith basis for the exclusion of the additional deposition testimony that would have eliminated any doubt on the issue of ownership.

Not immune from service

Sandella v Hill, 2018 NY Slip Op 08051 [2d Dept. 2018]

The defendant thereafter moved pursuant to CPLR 5015(a) to vacate the judgment, asserting that he was not properly served with process. In support of the motion, the defendant submitted an affidavit averring that, on the date of service, he was a resident of Nevada and was in New York solely for the purpose of attending a court proceeding related to a criminal matter. According to the defendant, as he was waiting for his case to be called, an unknown person came into the courtroom, called out his name, and dropped some papers on the floor. The defendant indicated that he did not pick the papers up because his attorney told him that he could not be served in court. The Supreme Court, without a hearing, denied the defendant’s motion to vacate the default judgment.

“If a defendant resists service of process, service may be effected pursuant to CPLR 308(1) by leaving a copy of the summons in the defendant’s general vicinity, provided that the defendant is made aware that this is being done” (Hall v Wong, 119 AD3d 897, 897; see Bossuk v Steinberg, 58 NY2d 916, 918). Here, the defendant admitted that the summons and complaint were left in his general vicinity and that he was aware that this was being done. Thus, the plaintiff satisfied his burden of demonstrating that the defendant was properly served pursuant to CPLR 308(1) (see Hall v Wong, 119 AD3d at 897).

Further, contrary to the defendant’s contention, he was not immune from such service. “The doctrine of immunity from service protects nondomiciliaries of New York from civil process when they voluntarily appear in New York to participate in legal proceedings of any kind” (Moreo v Regan, 140 AD2d 313, 315; see Thermoid Co. v Fabel, 4 NY2d 494). However, to be entitled to such immunity, a defendant must demonstrate that she or he “was, in fact, a nonresident, that [her or] his sole purpose in appearing in New York was to [participate in the relevant legal] proceeding, and that there were no available means of acquiring jurisdiction over [her or] his person other than personal service in New York” (Moreo v Regan, 140 AD2d at 315). Here, even assuming that the defendant’s appearance in New York was voluntary (see Thermoid Co. v Fabel, 4 NY2d 494), he was not entitled to immunity because personal jurisdiction could have been obtained over him by serving him outside of New York pursuant to CPLR 302 and 313 (see Bokara Rug Co., Inc. v Kapoor, 93 AD3d 583, 584; Olbi USA v Agapov, 294 AD2d 139, 139; Brause 59 Co. v Bridgemarket Assoc., 216 AD2d 200, 201).

Successive vacate motions

Shannon v Ifemesia, 2018 NY Slip Op 07478 [2d Dept. 2018]

We also agree with the Supreme Court’s denial of the defendant’s second motion to vacate the default judgment and to dismiss the complaint. The defendant was precluded from making a second motion to vacate her default on the same ground raised in the prior motion (see Viva Dev. Corp. v United Humanitarian Relief Fund, 108 AD3d 619, 620; JMP Pizza, LLC v 34th St. Pizza, LLC, 104 AD3d 648).

CPLR 3016(f)

SSG Door & Hardware, Inc. v APS Contr., Inc., 2018 NY Slip Op 07481 [2d Dept. 2018]

In an action involving, inter alia, goods sold and delivered, CPLR 3016(f) permits a plaintiff to “set forth and number in his [or her] verified complaint the items of his [or her] claim and the reasonable value or agreed price of each.” “To meet the requirements of CPLR 3016(f), a complaint must contain a listing of the goods or services provided, with enough detail that it may readily be examined and its correctness tested entry by entry'” (Teal, Becker & Chiaramonte, CPAs v Sutton, 197 AD2d 768, 768-769, quoting Innis, Pearce & Co. v Poppenberg, Inc., 213 App Div 789, 790; see Raytone Plumbing Specialities, Inc. v Sano Constr. Corp., 92 AD3d 855, 856). If the complaint meets these requirements, the defendant may not generally deny allegations of the complaint, but must, instead, specifically dispute the items on the plaintiff’s list (see Summit Sec. Servs., Inc. v Main St. Lofts Yonkers, LLC, 73 AD3d 906).

Here, the complaint failed to comply with CPLR 3016(f). The three invoices failed to state the price of each individual invoice item, or the date when each item was delivered. Although it was acknowledged that partial payment was made, the plaintiff did not specify what the partial payment was for. The plaintiff also alleged that the defendant made a partial payment toward one invoice without specifying to which of the invoiced items the defendant’s payment was applied (see Anderson & Anderson, LLP-Guangzhou v Incredible Invs. Ltd., 107 AD3d 1520; Summit Sec. Servs., Inc. v Main St. Lofts Yonkers, LLC, 73 AD3d 906; Epstein, Levinsohn, Bodine, Hurwitz & Weinstein, LLP v Shakedown Records, Ltd., 8 AD3d 34; Innis Pearce & Co. v Poppenberg, Inc., 213 App Div 789).

In any event, even assuming CPLR 3016(f) was complied with, a general denial is sufficient where a defense to the cause of action pursuant to CPLR 3016(f) speaks to the “entirety of the parties’ dealings” (Anderson & Anderson, LLP-Guangzhou v Incredible Invs. Ltd., 107 AD3d at 1522 [internal quotation marks omitted]; see Harbor Seafood v Quality Fish Co., 194 AD2d 713). In this case, the defense—that the plaintiff breached the contract by untimely delivering the items in the contract—goes to the entirety of the parties’ dealings. Further, damages awarded on the counterclaim may offset liability for goods sold and delivered if the circumstances warrant it (see Created Gemstones v Union Carbide Corp., 47 NY2d 250, 255; Panda Capital Corp. v Kopo Intl., 242 AD2d 690, 692).

22 NYCRR 202.48

Solomon v Burden, 2018 NY Slip Op 07480 [2d Dept. 2018]

The plaintiffs made a second motion for an order of reference. The Supreme Court denied this motion without prejudice, finding that the plaintiffs abandoned their motion for an order of reference since they failed to submit the order of reference within 60 days after the signing and filing of the order directing submission, without showing good cause for their failure, in violation of 22 NYCRR 202.48(a). The plaintiffs then moved, inter alia, in effect, to extend the time to submit an order of reference, and for an order of reference. In the order appealed from, the court granted those branches of the plaintiffs’ motion, excusing the plaintiffs’ failure to submit some of the supporting documents the court had directed them to provide in its earlier order.

” It is within the sound discretion of the court to accept a belated order or judgment for settlement'” (Curanovic v Cordone, 134 AD3d 978, 979, quoting Russo v Russo, 289 AD2d 467, 468; see Dime Sav. Bank of N.Y. v Anzel, 232 AD2d 446). “Moreover, a court should not deem an action or judgment abandoned where the result would not bring the repose to court proceedings that 22 NYCRR 202.48 was designed to effectuate, and would waste judicial resources'” (Curanovic v Cordone, 134 AD3d at 979, quoting Meany v Supermarkets Gen. Corp., 239 AD2d 393, 394; see Zaretsky v Ok Hui Kim, 17 AD3d 455, 456; Matter of Argento v New York State Div. of Hous. & Community Renewal, 269 AD2d 443, 444; Crawford v Simmons, 226 AD2d 667).

Here, under the particular facts of this case, the interests of justice dictate that the court not be burdened with a trial where liability is certain. To hold otherwise would be contrary to the intent of 22 NYCRR 202.48 and would lead to a waste of judicial resources (see Russo v City of New York, 206 AD2d 355, 356). Accordingly, the Supreme Court providently exercised its discretion in granting that branch of the plaintiffs’ motion which was, in effect, to extend their time to submit an order of reference.

The Supreme Court also did not violate the law of the case doctrine in excusing the plaintiffs’ failure to submit some of the supporting documents the court had directed them to provide in its earlier order. Generally, a plaintiff in a foreclosure action who is awarded summary judgment on the complaint is entitled to an order of reference appointing a referee (see e.g. Citibank, N.A. v Gentile, 156 AD3d 859). Consequently, the court’s original direction, made after the plaintiffs had already been awarded summary judgment, that supporting documents be submitted along with an order of reference was a discretionary ruling to which the law of the case doctrine does not apply (see Clark v Great Atl. & Pac. Tea Co., Inc., 23 AD3d 510, 511; Latture v Smith, 304 AD2d 534; Brothers v Bunkoff Gen. Contrs., 296 AD2d 764, 765).

pre-judgment interest: CPLR 5001(a)

Scotti v Barrett, 2018 NY Slip Op 07477 [2d Dept. 2018]

On a prior appeal in this action, this Court awarded summary judgment to the plaintiff, inter alia, on the cause of action to recover damages for conversion in the sum of $69,500, representing the amount of estate funds that were wrongfully converted by the defendant Rick Barrett. The Supreme Court subsequently entered an amended judgment that awarded the plaintiff the sum of $69,500 but failed to award prejudgment interest at the statutory rate of 9% per annum on that sum. The plaintiff appeals from so much of the amended judgment as failed to award prejudgment interest at the statutory rate on the $69,500 damages award.

“The usual measure of damages for conversion is the value of the property at the time and place of conversion, plus interest” (Fantis Foods v Standard Importing Co., 49 NY2d 317, 326; see Hoffman v Dorner, 86 AD2d 651). Indeed, CPLR 5001(a) provides for the award of prejudgment interest upon sums awarded for the deprivation of or interference with another’s property, and relevant case law clearly establishes that such interest is properly awarded as part of the recovery on a cause of action sounding in conversion (see 23 E. 39th St. Mgt. Corp. v 23 E. 39th St. Dev., LLC, 134 AD3d 629, 632; Hunt v Hunt, 13 AD3d 1041, 1043; Zimmerman v Tarshis, 300 AD2d 477, 478; Eighteen Holding Corp. v Drizin, 268 AD2d 371, 372; Phillips v Catania, 188 AD2d 1029, 1030). Moreover, interest is to be awarded at the statutory rate of 9% per annum (see CPLR 5004; Zimmerman v Tarshis, 300 AD2d at 478; Phillips v Catania, 188 AD2d at 1030; Long Playing Sessions v Deluxe Labs., 129 AD2d 539, 540).

Accordingly, we remit the matter to the Supreme Court, Nassau County, for the entry of a second amended judgment that includes an award of prejudgment interest at the statutory rate of 9% per annum on the damages awarded in favor of the plaintiff on the cause of action to recover damages for conversion.

3211(a)(7) and no-fault

Abruscato v Allstate Prop., 2018 NY Slip Op 07279 [2d Dept. 2018]

“Where evidentiary material is submitted and considered on a motion to dismiss the complaint pursuant to CPLR 3211(a)(7), and the motion is not converted into one for summary judgment, the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one, and unless it has been shown that a material fact as claimed by the plaintiff to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it, dismissal should not eventuate” (Rabos v R & R Bagles & Bakery, Inc., 100 AD3d 849, 851-852; see Guggenheimer v Ginzburg, 43 NY2d 268, 275).

We agree with the Supreme Court’s determination granting that branch of the defendant’s motion which was pursuant to CPLR 3211(a)(7) to dismiss so much of the first cause of action as sought to recover no-fault insurance benefits for lost wages. It is undisputed that the plaintiff did not submit a claim for reimbursement for lost wages, and therefore the defendant’s obligation to pay or deny such a claim never arose (see 11 NYCRR 65-3.8; see also Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498; Sound Shore Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 106 AD3d 157).

We also agree with the Supreme Court’s determination granting those branches of the defendant’s motion which were to dismiss the second and third causes of action to recover damages for intentional and negligent infliction of emotional distress, respectively. The conduct alleged, even if proven, was not sufficiently extreme and outrageous to support the cause of action to recover damages for intentional infliction of emotional distress (see Brunache v MV Transp., Inc., 151 AD3d 1011, 1014; Long Is. Care Ctr., Inc. v Goodman, 137 AD3d 874, 875). Additionally, the relationship between the plaintiff and the defendant does not give rise to a duty which could furnish a basis for tort liability in negligence (see Pirrelli v OCWEN Loan Servicing, LLC, 129 AD3d 689, 692; Baumann v Hanover Community Bank, 100 AD3d 814, 816).

We also agree with the Supreme Court’s determination granting that branch of the defendant’s motion which was to dismiss the fourth cause of action, which sought declaratory relief, since the plaintiff has an adequate alternative remedy in the form of a cause of action to recover no-fault insurance benefits (see Stuckey v Lutheran Care Found. Network, Inc., 140 AD3d 734, 736; Alizio v Feldman, 82 AD3d 804, 805; BGW Dev. Corp. v Mount Kisco Lodge No. 1552 of Benevolent & Protective Order of Elks of U.S. of Am., 247 AD2d 565, 568).

Further, the Supreme Court providently exercised its discretion in denying the plaintiff’s cross motion for leave to amend the complaint, because the proposed amendments were palpably insufficient and patently devoid of merit (see White Knight of Flatbush, LLC v Deacons of Dutch Congregation of Flatbush, 159 AD3d 939; Ferrandino & Son, Inc. v Wheaton Bldrs., Inc., LLC, 82 AD3d 1035, 1037; Lucido v Mancuso, 49 AD3d 220, 229).

However, the Supreme Court should have denied that branch of the defendant’s motion which was to dismiss so much of the first cause of action as sought to recover no-fault insurance benefits for medical expenses. The defendant contends, inter alia, that the plaintiff lacked standing because he had assigned his right to no-fault insurance benefits for medical expenses to his medical providers. Although the defendant submitted evidence that the plaintiff assigned his right to no-fault benefits to two medical providers (hereinafter the assignees), the plaintiff’s evidentiary submissions showed that other medical providers had also billed him for their services. Moreover, upon the defendant’s determination that the injury was not causally related to the motor vehicle accident, the assignees were no longer precluded from seeking payment from the plaintiff (see Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312, 318; Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199; Rotwein v Stancil, 15 Misc 3d 19, 21). Since there was a failure of insurance coverage rendering the plaintiff personally responsible for the medical bills (see Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d at 318; Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d at 199; Rotwein v Stancil, 15 Misc 3d at 21), the plaintiff has a cause of action to recover no-fault insurance benefits for medical expenses from the defendant (see Guggenheimer v Ginzburg, 43 NY2d at 275).

Standing waived

BAC Home Loans Servicing, L.P. v Chertov, 2018 NY Slip Op 07281 [2d Dept. 2018]

The defendant waived the defense of lack of standing (see Wells Fargo Bank, N.A. v Erobobo, 127 AD3d 1176; Wells Fargo Bank Minn., N.A. v Mastropaolo, 42 AD3d 239). Therefore, BAC was not required to establish its standing in order to demonstrate its prima facie entitlement to judgment as a matter of law (see Citigroup v Kopelowitz, 147 AD3d 1014, 1015; JP Morgan Chase Bank, N.A. v Butler, 129 AD3d 777, 780).