Appellate Division

Service

US Bank, N.A. v Daskal, 2018 NY Slip Op 05792 [2d Dept 2018]

Schwartz's contention that he was never properly served with process is without merit. "A process server's affidavit of service gives rise to a presumption of proper service" (Deutsche Bank Natl. Trust Co. v O'King, 148 AD3d 776, 776). "A sworn denial containing a detailed and specific contradiction of the allegations in the process server's affidavit will defeat the presumption of proper service" (id. at 776-777; see HSBC Bank USA v Whitter, 159 AD3d 942). "If the presumption is rebutted, a hearing to determine the propriety of service of process is necessary" (Deutsche Bank Natl. Trust Co. v O'King, 148 AD3d at 777).

The process server averred in his affidavit of service that on July 14, 2008, at the subject premises, he served the summons and complaint on Schwartz by delivering a copy thereof to a person of suitable age and discretion, namely, "family member" Bracha Rosenbaum, and that on July 16, 2008, he mailed copies of the documents to Schwartz at the same address. These statements in the affidavit of service give rise to a presumption that Schwartz was properly served with process (see CPLR 308[2]).

Although Schwartz denied ever having resided at the subject premises, he failed to support his assertion (see U.S. Bank, N.A. v Tauber, 140 AD3d 1154, 1155). Moreover, he did not specifically deny that Rosenbaum was a family member and a person of suitable age and discretion (see HSBC Bank USA v Whitter, 159 AD3d 942). Accordingly, Schwartz failed to rebut the presumption of proper service (see Bank of N.Y. v Espejo, 92 AD3d 707; 96 Pierrepont v Mauro, 304 AD2d 631).

CPLR 5001 and 5002

Kachkovskiy v Khlebopros, 2018 NY Slip Op 05671 [2d Dept 2018]

We agree with the Supreme Court's determination that the plaintiff was not entitled to prejudgment interest. CPLR 5001(a) provides that interest shall be recovered upon a sum awarded for a breach of contract. CPLR 5001 further mandates that "[i]nterest shall be computed from the earliest ascertainable date the cause of action existed" (CPLR 5001[b]). "Where such damages were incurred at various times, interest shall be computed upon each item from the date it was incurred or upon all of the damages from a single reasonable intermediate date" (CPLR 5001[b]; see Baer v Anesthesia Assoc. of Mount Kisco, LLP, 57 AD3d 817, 819; Hayden v P. Zarkadas, P.C., 18 AD3d 500, 501; 155 Henry Owners Corp. v Lovlyn Realty Co., 231 AD2d 559, 560-561). CPLR 5001 further provides that "[t]he date from which interest is to be computed shall be specified in the verdict, report or decision" (CPLR 5001[c]). With limited exception, "[i]f a jury is discharged without specifying the date, the court upon motion shall fix the date" (id.). The party seeking prejudgment interest bears the burden of demonstrating the date from which interest should be computed (see Matter of Kelligrew, 63 AD3d 1064, 1066; see also Siegel, NY Prac § 411 at 720 [5th ed 2011]).

Here, the plaintiff failed to demonstrate when the damages were incurred. Under the particular circumstances of this case, the Supreme Court's determination that the damages were not incurred until the jury rendered its verdict was warranted (see generally Lee v Joseph E. Seagram & Sons, Inc., 592 F2d 39 [2d Cir]; accord Siegel, NY Prac § 411 at 720 [5th ed]; cf. Matter of Kelligrew, 63 AD3d at 1066). Accordingly, we agree with the court's determination to deny that branch of the plaintiff's posttrial cross motion which sought prejudgment interest pursuant to CPLR 5001.

We also agree with the Supreme Court's determination to deny that branch of the plaintiff's posttrial cross motion which sought prejudgment interest pursuant to CPLR 5002. That statute provides that "[i]nterest shall be recovered upon the total sum awarded . . . from the date the verdict was rendered . . . to the date of entry of final judgment" (CPLR 5002). Here, however, the defendant tendered the total amount due under the verdict, $81,000, on the same date that the verdict was returned. Under the circumstances, the defendant's tender of the verdict amount prevented the accrual of interest under CPLR 5002 (see O'Rourk v Berner, 249 AD2d 975, 976; Meiselman v Allstate Ins. Co., 197 AD2d 561, 561-562; see also 10-5001 Weinstein-Korn-Miller, NY Civ Prac CPLR ¶ 5001.10).

Furthermore, the Supreme Court properly declined to award the plaintiff an attorney's [*4]fee. "Under the general rule, the prevailing party in litigation may not collect his or her counsel fees unless supported by statute, court rule, or written agreement of the parties" (Rosenthal v Rosenthal, 151 AD3d 773, 774; see Markham Gardens, L.P. v 511 9th, LLC, 143 AD3d 949, 953). Here, the plaintiff failed to establish that he was entitled to recover an attorney's fee under the parties' agreements (see Fitzpatrick v Animal Care Hosp., PLLC, 104 AD3d 1078, 1081). Moreover, the court properly concluded that the plaintiff did not receive substantial relief, so as to warrant the conclusion that he prevailed on a central claim (see Chainani v Lucchino, 94 AD3d 1492, 1494).

3211(e) single motion rule

41st Rd. Props., LLC v Wang Real Prop., LLC, 2018 NY Slip Op 05565 [2d Dept 2018]

The Wang defendants' second motion pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against them on the ground that another action was pending was properly denied. As the Supreme Court observed, that motion violated the single-motion rule of CPLR 3211(e) (see Oakley v County of Nassau, 127 AD3d 946, 946-947).

Sweet release

Chiappone v North Shore Univ. Hosp., 2018 NY Slip Op 05569 [2d Dept 2018]

The meaning and coverage of a release necessarily depends upon the controversy being settled and upon the purpose for which the release was given (see Cahill v Regan, 5 NY2d 292, 299; Nucci v Nucci, 118 AD3d 762, 763). While a broad general release will be given effect regardless of the parties' unexpressed intentions, such "release may not be read to cover matters which the parties did not intend to cover" (Gale v Citicorp, 278 AD2d 197; see Cahill v Regan, 5 NY2d at 299; Mazzurco v PII Sam, LLC, 153 AD3d 1341, 1342; Clerico v Pollack, 148 AD3d 769, 771; Nucci v Nucci, 118 AD3d at 763; Desiderio v Geico Gen. Ins. Co., 107 AD3d 662, 663; Apfel v Prestia, 41 AD3d 520, 520-521; Hughes v Long Is. Univ., 305 AD2d 462, 462-463).

Contrary to the Supreme Court's determination, NSUH failed to establish, as a matter of law, that the release executed by the parties settling Action No. 1 was intended to preclude the plaintiff from recovering for claims that allegedly arose during and as a result of the second admission, which were not yet in dispute at the time the release was executed (see Glassberg v Lee, 82 AD3d 836, 837; Apfel v Prestia, 41 AD3d at 521; Alcantara v 603-607 Realty Assoc., 273 AD2d 329, 329-330). While the plaintiff may have been aware of the incident giving rise to Action No. 2 when she signed the release, any such awareness is insufficient, itself, to establish that the release was intended to cover any potential claims which were not the subject of Action No. 1. Accordingly, the court should have denied NSUH's motion for summary judgment dismissing the complaint insofar as asserted against it.

Bold is mine.

Matter of Travelers Home & Mar. Ins. Co. v Fiumara, 2018 NY Slip Op 05681 [2d Dept 2018]

The petitioner then commenced this proceeding pursuant to CPLR article 75 to permanently stay arbitration on the ground that the SUM claim was barred by the general release. The appellant opposed the petition, arguing that she was not barred from pursuing the claim against the petitioner because her SUM claim did not exist at the time that the general release was given. The Supreme Court rejected the appellant's argument and granted the petition.

"A release is a contract, and its construction is governed by contract law" (Schiller v Guthrie, 102 AD3d 852, 853 [internal quotation marks omitted]; see Cardinal Holdings, Ltd. v Indotronix Intl. Corp., 73 AD3d 960, 962). A valid general release will apply not only to known claims, but "may encompass unknown claims, . . . if the parties so intend and the agreement is fairly and knowingly made'" (Centro Empresarial Cempresa S.A. v América Móvil, S.A.B. de C.V., 17 NY3d 269, 276, quoting Mangini v McClurg, 24 NY2d 556, 566-567; see A.A. Truck Renting Corp. [*2]v Navistar, Inc., 81 AD3d 674, 675; Matter of Brooklyn Resources Recovery, 309 AD2d 931, 932). "Where a release is unambiguous, the intent of the parties must be ascertained from the plain language of the agreement" (Schiller v Guthrie, 102 AD3d at 853-854 [internal quotation marks omitted]; see Sicuranza v Philip Howard Apts. Tenants Corp., 121 AD3d 966, 967-968; Alvarez v Amicucci, 82 AD3d 687, 688). Here, the general release, in clear and unambiguous terms, releases all claims and future claims the appellant had or may have against the petitioner by reason of the subject accident. The plain language of the release thus precludes the appellant's SUM claim against the petitioner.

Maybe the appeal was late, maybe it wasn’t:CPLR 5513

Deutsche Bank Natl. Trust Co. v James, 2018 NY Slip Op 05572 [2d Dept 2018]

Initially, since the record does not reveal when the order and judgment of foreclosure and sale and written notice of its entry was served on the defendant, we reject the plaintiff's contention that the defendant's appeal must be dismissed as untimely taken (see CPLR 5513[a]; Zapata v County of Suffolk, 23 AD3d 553, 554).

3212 – limited to the issues or defenses that are the subject of the motion

Green v Price Chopper, Inc., 2018 NY Slip Op 05578 [2d Dept 2018]

In determining a motion for summary judgment, a court is generally limited to the issues or defenses that are the subject of the motion (see Rosenblatt v St. George Health & Racquetball Assoc., LLC, 119 AD3d 45, 52). Here, the Supreme Court should not have granted the motion on the ground that the plaintiff did not know what caused her to fall, since the issue was not raised by the defendants in their motion papers

CPLR 3211(c)

Karimian v Time Equities, Inc., 2018 NY Slip Op 05583 [2d Dept 2018]

With respect to the defendants' cross appeal, CPLR 3211(c) provides, "[u]pon the hearing of a motion made under subdivision (a) or (b), either party may submit any evidence that could properly be considered on a motion for summary judgment. Whether or not issue has been joined, the court, after adequate notice to the parties, may treat the motion as a motion for summary judgment." Although the path the defendants took in moving pursuant to CPLR 3211(c) was procedurally questionable, they charted their own course in this instance. There was no need to give the plaintiff an opportunity to file additional papers because the defendants failed to establish their prima facie entitlement to judgment as a matter of law by failing to tender sufficient evidence to eliminate any issues of fact with respect to those causes of action. Accordingly, the defendants were properly denied summary judgment, without regard to the sufficiency of the opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853).

The bold is mine.

CPLR 2103(b)(2) CPLR 2103(b)(6), no sua sponte dismissal

Moran v BAC Field Servs. Corp., 2018 NY Slip Op 05586 [2d Dept 2018]

Contrary to the Supreme Court's determination, CPLR 2103(b)(2) does not apply to render BAC's motion timely since BAC did not attempt service of its motion by using "the post office or official depository under the exclusive care and custody of the United States Postal Service within the state" (CPLR 2103[f][1]). Rather, BAC utilized Federal Express. CPLR 2103(b)(6) provides that "[s]ervice by overnight delivery service shall be complete upon deposit of the paper . . . into the custody of the overnight delivery service for overnight delivery" (emphasis added). The record demonstrates that BAC failed to use Federal Express's overnight delivery service, and instead deposited its papers with Federal Express on Friday for weekday delivery on Monday. Accordingly, the court should have denied BAC's motion as untimely.

We agree with the Supreme Court's denial, as untimely, of the plaintiff's cross motion for leave to enter a default judgment against BAC, since the plaintiff failed to serve his cross motion within the time period required by CPLR 2215(b).

However, the Supreme Court should not have, sua sponte, directed the dismissal of the complaint insofar as asserted against Omega, and should have granted the plaintiff's separate motion for leave to enter a default judgment against Omega. " On a motion for leave to enter a default judgment pursuant to CPLR 3215, the movant is required to submit proof of service of the summons and complaint, proof of the facts constituting the claim, and proof of the defaulting party's default in answering or appearing'" (Dupps v Betancourt, 99 AD3d 855, quoting Atlantic Cas. Ins. Co. v RJNJ Servs., Inc., 89 AD3d 649, 651; see CPLR 3215[f]). Here, in support of his motion, the plaintiff met all of these requirements as to Omega. Further, Omega never appeared in the action and failed to move to vacate its default (see BAC Home Loans Servicing, LP v Reardon, 132 AD3d 790).

The Supreme Court also should not have, sua sponte, directed the dismissal of the complaint insofar as asserted against Boehm. There was no motion before the court seeking such relief, and the plaintiff was not on notice that such relief could be granted by the court (see Abinanti v Pascale, 41 AD3d 395).

The bold is mine

CPLR 7804(g)

Matter of Fildon, LLC v Planning Bd. of the Inc. Vil. of Hempstead, 2018 NY Slip Op 05591 [2d Dept 2018]

Initially, the Supreme Court should not have transferred this proceeding to this Court pursuant to CPLR 7804(g) because the determination to be reviewed was "not made after a trial-type hearing held pursuant to direction of law at which evidence was taken" (Matter of M & V 99 Franklin Realty Corp. v Weiss, 124 AD3d 783, 784; see CPLR 7803[4]; Village Law § 7-725-a[11]; Matter of Navaretta v Town of Oyster Bay, 72 AD3d 823, 824; Matter of Halperin v City of New Rochelle, 24 AD3d 768, 769). Municipal land use agencies are "quasi-legislative, quasi-administrative bodies," and "the public hearings they conduct are informational in nature and [do] not involve the receipt of sworn testimony or taking of evidence within the meaning of CPLR 7803(4)" (Matter of Halperin v City of New Rochelle, 24 AD3d at 770 [internal quotation marks and citations omitted]). "Accordingly, determinations of such agencies are reviewed under the arbitrary and capricious' standard of CPLR 7803(3), and not the substantial evidence' standard of CPLR 7803(4)" (id.; see Matter of M & V 99 Franklin Realty Corp. v Weiss, 124 AD3d at 784). In the interest of judicial economy, this Court will nevertheless decide the petition on the merits, as the full administrative record is before this Court (see Matter of M & V 99 Franklin Realty Corp. v Weiss, 124 AD3d at 784; [*2]Matter of Halperin v City of New Rochelle, 24 AD3d at 772-773).

Rescission – material misrep

Piller v Otsego Mut. Fire Ins. Co. 2018 NY Slip Op 05615 [2d Dept 2018]

"To establish the right to rescind an insurance policy, an insurer must show that its insured made a material misrepresentation of fact when he or she secured the policy" (Joseph v Interboro Ins. Co., 144 AD3d 1105, 1106 [internal quotation marks omitted]; see Interboro Ins. Co. v Fatmir, 89 AD3d 993, 993-994; Novick v Middlesex Mut. Assur. Co., 84 AD3d 1330, 1330; Varshavskaya v Metropolitan Life Ins. Co., 68 AD3d 855, 856). "A representation is a statement as to past or present fact, made to the insurer by, or by the authority of, the applicant for insurance or the prospective insured, at or before the making of the insurance contract as an inducement to the making thereof" (Insurance Law § 3105[a]; see Morales v Castlepoint Ins. Co., 125 AD3d 947, 948). "A misrepresentation is material if the insurer would not have issued the policy had it known the facts misrepresented" (Interboro Ins. Co. v. Fatmir, 89 AD3d at 994; see Insurance Law § 3105[b][1]; Novick v Middlesex Mut. Assur. Co., 84 AD3d at 1330; Varshavskaya v Metropolitan Life Ins. Co., 68 AD3d at 856). "To establish materiality as a matter of law, the insurer must present documentation concerning its underwriting practices, such as underwriting manuals, bulletins, or rules pertaining to similar risks, that show that it would not have issued the same policy if the correct information had been disclosed in the application" (Morales v Castlepoint Ins. Co., 125 AD3d at 948 [internal quotation marks omitted] ; see Joseph v Interboro Ins. Co., 144 AD3d at 1106; Interboro Ins. Co. v Fatmir, 89 AD3d at 994; Schirmer v Penkert, 41 AD3d 688, 690-691).

Otsego Mutual established its prima facie entitlement to judgment as a matter of law by submitting evidence demonstrating that the plaintiffs' application for insurance contained a material misrepresentation regarding whether the townhouse would be owner-occupied and that it would not have issued the subject policy if the application had disclosed that the townhouse would not be owner-occupied (see Joseph v Interboro Ins. Co., 144 AD3d at 1106; Morales v Castlepoint Ins. Co., 125 AD3d at 948; Interboro Ins. Co. v. Fatmir, 89 AD3d at 993-994).

In opposition, the plaintiffs failed to raise a triable issue of fact. The plaintiffs' contention that Otsego Mutual was required to establish that their misrepresentation was willful lacks merit. With limited exception not applicable here, "a material misrepresentation, even if innocent or unintentional, is sufficient to warrant rescission of an insurance policy" (Joseph v Interboro Ins. Co., 144 AD3d at 1107; see Smith v Guardian Life Ins. Co. of Am., 116 AD3d 1031, 1032; Security Mut. Ins. Co. v Perkins, 86 AD3d 702, 703; Precision Auto Accessories, Inc. v Utica First Ins. Co., 52 AD3d 1198, 1201; McLaughlin v Nationwide Mut. Fire Ins. Co., 8 AD3d 739, 740; see also Insurance Law § 3105).

Bold is mine.