Appellate Division

CPLR § 311(a)(1); CPLR R. 5015(a)(1)(4)

CPLR § 311 Personal service upon a corporation or governmental subdivision

(a)(1)

CPLR R. 5015 Relief from judgment or order

(a) On motion

CPLR R. 5015(a)(4) lack of jurisdiction to render the judgment or order

CPLR R. 5015(a)(1) excusable default

Aguilera v Pistilli Constr. & Dev. Corp., 2009 NY Slip Op 04844 (App. Div., 2nd, 2009)

The affidavit of the plaintiff's process server showed that on July
25, 2005, Pistilli was served with a summons and complaint by delivery
to its general agent at its office located in Astoria. Since no answer
was served by Pistilli, the plaintiff sought and obtained leave to
enter a default judgment against it.

Pistilli sought to vacate the default pursuant to, inter alia,
CPLR 5015(a)(4), claiming that service of process was improper under
CPLR 311(a)(1), and/or pursuant to CPLR 5015(a)(1) on the ground that
its default was excusable. By order dated October 2, 2007, the Supreme
Court, inter alia, directed a hearing to determine whether service of
process was effected. Contrary to Pistilli's position, the Supreme
Court properly ordered the hearing (see CLE Assoc., Inc. v Greene, 43 AD3d 382, 384; Skyline Agency v Ambrose Coppotelli, Inc., 117 AD2d 135, 139).

Pursuant to CPLR 311(a)(1), service upon a corporation shall be
made by delivering the summons to an officer, director, managing agent,
general agent, cashier, or assistant cashier, or to any other agent
authorized by appointment or by law to receive service. In addition,
service may be made upon someone whom the corporation cloaks with
authority (see Fashion Page v Zurich Ins. Co., 50 NY2d 265; Rokicki v 24 Hour Courier Serv., 282 AD2d 664, 665; Eastman Kodak Co. v Miller & Miller Consulting Actuaries, 195 AD2d 591; Seda v Armory Estates, 138 AD2d 362, 363-364).

The Supreme Court correctly determined that it acquired
jurisdiction over Pistilli through proper service of process. The
evidence adduced at the hearing established that Angela Rodriguez, to
whom the summons and complaint was delivered, was seated behind the
cashier/reception desk when the process server entered Pistilli's
office, that the process server, who had served Pistilli in the same
office and the same manner on at least three prior occasions, read the
summons and complaint out loud to Rodriguez, and that Rodriguez
informed the process server that she could accept service on behalf of
Pistilli. While Rodriguez claimed that she was not employed by
Pistilli, the record demonstrates that the company by which she was
employed shared offices with Pistilli and was owned by the same
principals. She also testified that service of process was regularly
made by delivering documents to the reception desk for the various
entities that operated out of the same office. Under these
circumstances, "the plaintiff's process server acted reasonably and
with due diligence" and it was reasonable for the process server to
believe that Rodriguez was authorized to accept service on behalf of
Pistilli (Rokicki v 24 Hour Courier Serv., 282 AD2d at 664; see Fashion Page v Zurich Ins. Co., 50 NY2d 265; Eastman Kodak Co. v Miller & Miller Consulting Actuaries, 195 AD2d at 591; Seda v Armory Estates, 138
AD2d at 363-364). Furthermore, we decline to disturb any credibility
determination made by the hearing court, as its determination is amply
supported by the record (see Lattingtown Harbor Prop. Owners Assn., Inc. v Agostino, 34 AD3d 536, 538).

The Supreme Court also properly denied that branch of Pistilli's
renewed motion which was to vacate the default pursuant to CPLR
5015(a)(1). "A party seeking to vacate a default pursuant to CPLR 5015
(a)(1) must demonstrate a reasonable excuse for its delay in appearing
and answering the complaint and a meritorious defense to the action'" (New York & Presbyt. Hosp. v American Home Assur. Co., 28 AD3d 442, quoting Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141; see CPLR 5015[a][1]; Koyenov v Twin-D Transp., Inc., 33 AD3d 967).
"The decision as to the setting aside of a default in answering is
generally left to the sound discretion of the Supreme Court, the
exercise of which will generally not be disturbed if there is support
in the record therefor" (Mjahdi v Maguire, 21 AD3d 1067, 1068, quoting MacMarty, Inc. v Scheller, 201 AD2d 706, 707).

Pistilli failed to offer a reasonable excuse for its failure to answer or appear in this action (see Eastman Kodak Co. v Miller & Miller Consulting Actuaries, 195 AD2d at 592). Contrary [*3]to
Pistilli's position, its default was not attributable to its insurance
carrier's assertion that it would represent it in this matter, as it
was served with the summons and complaint approximately five months
prior to any communication that it received from its insurance carrier
regarding representation (cf. Perez v Linshar Realty Corp., 259
AD2d 532, 533). In view of the lack of a reasonable excuse, it is
unnecessary to consider whether Pistilli sufficiently demonstrated the
existence of a meritorious defense (see Mjahdi v Maguire, 21 AD3d at 1068; Krieger v Cohan, 18 AD3d 823).

The bold is mine.

Triable issue of fact as to service by mail

Liriano v Eveready Ins. Co., 2009 NY Slip Op 04871 (App. Div., 2nd, 2009)

The Supreme Court improperly granted the plaintiff's motion for summary
judgment. The plaintiff submitted a process server's affidavit of
service indicating that the defendant was served by mail with a default
judgment against its insured in the underlying action on August 13,
2007, which constituted prima facie evidence of proper service (see Kihl v Pfeffer, 94 NY2d 118, 122; Matter of de Sanchez,
57 AD3d 452, 454). In response, the defendant came forward with a sworn
denial of receipt and an affidavit of an employee with personal
knowledge regarding the defendant's regular practices and procedures in
retrieving, opening, and indexing its mail and in maintaining its files
on existing claims. That affidavit indicated that the defendant did not
receive the judgment in the mail, and instead first learned of it on
March 13, 2008, promptly issuing a disclaimer only six days later.
Under the circumstances of this [*2]case,
the defendant's submissions sufficed to raise a triable issue of fact
regarding the service of the judgment, and the question of whether the
defendant's disclaimer of coverage was timely must await the resolution
of that issue (see e.g. Matter of TNT Petroleum, Inc. v Sea Petroleum, Inc., 40 AD3d 771; Johnson v Deas, 32 AD3d 253; First Union Mtge. Corp. v Silverman, 242 AD2d 258; Long Is. Sav. Bank v Meliso, 229 AD2d 478; Poet v Kolenda, 142 AD2d 633).

The bold is mine.

UPDATE!

The decision has since been recalled.

[Recalled and vacated by order of the Appellate Division, Second Department entered June 12, 2009, see 2009 NY Slip Op 75125(U).]

CPLR R. 5015(a)(2)

CPLR R. 5015 Relief from judgment or order

(a) On motion.
The court which rendered a judgment or order may relieve a party from
it upon such terms as may be just, on motion of any interested person
with such notice as the court may direct, upon the ground of:

2.
newly-discovered evidence which, if introduced at the trial, would
probably have produced a different result and which could not have been
discovered in time to move for a new trial under section 4404

Woori Am. Bank v Winopa Intl. Ltd., 2009 NY Slip Op 04734 (App. Div., 1st, 2009)

Defendants were properly denied relief under CPLR 5015 (a)(2) since
they did not show that their new evidence refuted the essential
findings underlying the order and would probably have resulted in a
different outcome (see Bongiasca v Bongiasca, 289 AD2d 121, 122 [2001]). The evidence submitted did not establish that the statements in question were fabricated (cf. McCarthy v Port of N.Y. Auth.,
21 AD2d 125, 127 [1964]). In any event, Justice Heitler's determination
did not rest solely on those statements, but also on defendants'
initial failure to deny their indebtedness and their inability to offer
any other evidence that they had made the payments as they claimed.

The bold is mine.

Informal Judicial Admission

Dietrich v Puff Cab Corp., 2009 NY Slip Op 04853 (App. Div., 2nd, 2009)

In opposition, the plaintiffs raised a triable issue of fact by the
submission of the reports of Dr. William Buchmann. Dr. Buchmann's
reports demonstrated that Dietrich's range of motion in her cervical
spine was significantly limited, when read in conjunction with the
report of the defendants' expert, Dr. Mesh. Dr. Mesh's report had set
forth the applicable normal ranges of motion against which Dr.
Buchmann's findings could be compared. A statement by an expert that is
put forward by a party in litigation constitutes an informal judicial
admission (see Chock Full O'Nuts Corp. v NRP LLC I, 47 AD3d 189, 192; Matter of City of New York,
73 AD2d 932, 933) that is admissible against, although not binding
upon, the party that submitted it. Thus, just as a nonmoving plaintiff
in a serious injury case may rely upon the unsworn report of the
plaintiff's treating physician once it has been submitted by the moving
defendant (see Pagano v Kingsbury, 182 AD2d 268), a nonmoving
plaintiff may also rely upon the statement by the moving defendant's
expert of the normal range of motion (see Djetoumani v Transit, Inc., 50 AD3d 944, 946).

The bold is mine.

CPLR § 3101(a)

CPLR § 3101 Scope of disclosure

Rivera v NYP Holdings Inc., 2009 NY Slip Op 04706 (App. Div., 1st, 2009)

We conclude that the denial of defendants' motion to compel constituted
an improvident exercise of discretion. Full disclosure is required of
"all matter material and necessary" to the defense of an action (CPLR
3101[a]), and the words "material and necessary" are "to be interpreted
liberally to require disclosure . . . of any facts bearing on the
controversy" (Allen v Crowell-Collier Publ. Co., 21 NY2d 403,
406 [1968]). Defendants are entitled to the discovery they seek in
their efforts both to establish their defense of truth to plaintiff's
defamation claims (see Wright v Snow, 175 AD2d 451 [1991], lv dismissed 79 NY2d 822 [1991]), and to defend against plaintiff's assertion of damage to his reputation (cf. Burdick v Shearson Am. Express, 160 AD2d 642 [1990], lv denied 76 NY2d 706 [1990]). Moreover, defendants are entitled to the opportunity to demonstrate the truth of the articles as a wholesee Miller v Journal News,
211 AD2d 626, 627 [1995]), warranting disclosure even as to assertions
in those articles that are not directly challenged in plaintiff's
complaint. Therefore, the inquiries related to grand jury testimony by
plaintiff, information sought from or provided by plaintiff to the
Commission on [*2]Judicial Conduct, and
plaintiff's arrest record, if any, seek information sufficiently
material and relevant to the defense of the action to warrant
disclosure. (

Laguna v Mario's Express Serv., Inc., 2009 NY Slip Op 04869 (App. Div., 2nd, 2009)

In an action to recover damages for personal injuries, the plaintiff
appeals, as limited by her brief, from so much of an order of the
Supreme Court, Kings County (Bayne, J.), dated November 21, 2007, as
granted the defendants' motion for renewal and reargument of their
prior oral application for access to the plaintiff's medical records
"beyond a 3 year period," which was denied by order of the same court
(Ambrosio, J.) dated June 28, 2007, and upon renewal and reargument
granted the defendants access to "the complete medical records relating
the plaintiffs' initial diagnosis & follow up treatment to present
for cerebral palsy."

ORDERED that the order dated November 21, 2007, is reversed
insofar as appealed from, on the facts and in the exercise of
discretion, with costs, and the motion is denied.

The evidence submitted by the defendants upon their motion for
renewal and reargument was insufficient to justify a new determination.
The defendants failed to establish that the additional disclosure was
material and necessary to the defense of the action (see Cynthia B. v New Rochelle Hosp. Med Ctr, 60 NY2d 452, 465, 457; Chevrin v Macura, 28 AD3d 600; DeStrange v Lind, 277
AD2d 344), nor did they demonstrate that "access to earlier medical
records would result in the discovery of admissible or relevant
evidence" (DeStrange v Lind, 277 AD2d at 345).

The bold is mine.