Aspen Specialty Ins. Co. v Ironshore Indem. Inc., 2018 NY Slip Op 08253 [1st Dept. 2018]

Order, Supreme Court, New York County (Arthur F. Engoron, J.), entered January 29, 2018, which denied defendant Ironshore Indemnity Incorporated (Ironshore’s) motion for leave to renew a prior motion to dismiss the complaint, unanimously affirmed, without costs. Appeal from order, same court and Justice, entered on or about March 27, 2018, which, inter alia, denied Ironshore’s motion to reargue the court’s January 29, 2018 decision, unanimously dismissed, without costs, as taken from a non-appealable order.

The court properly denied Ironshore’s renewal motion on the ground that the parties’ rights and responsibilities under the respective insurance contracts, or specifically, Alphonse Hotel’s entitlement to additional insured status under the Ironshore policy, was conclusively adjudicated by our decision in Aspen Specialty Ins. Co. v Ironshore Indem. Inc. (144 AD3d 606, 606 [1st Dept 2016]), an order from which Ironshore did not appeal. At this juncture, the time to appeal has expired, and the court properly determined that renewal based upon the Court of Appeals decision in Burlington Insurance Company v NYC Tr. Auth. (29 NY3d 313 [2017]), is no longer available (see Matter of Huie (Furman), 20 NY2d 568, 572 [1967]).

no appeal from a default

Matter of Fatima K. v Ousmane F., 2018 NY Slip Op 08431 [1st Dept., 2018]

The court correctly considered the father’s untimely appearance at the custody hearing, without explanation, and entered its order on default (see Matter of Nyree S. v Gregory C., 99 AD3d 561, 562 [1st Dept 2012], lv denied 20 NY3d 854 [2012]; Matter of Anita L. v Damon N., 54 AD3d 630, 631 [1st Dept 2008]). As the father did not avail himself of the opportunity to vacate his default, and no appeal lies from an order entered upon the aggrieved party’s default, the appeal is dismissed (see CPLR 5511; Nyree S., 99 AD3d at 562).

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 888Vigo v 501 Second St. Holding Corp., 100 AD3d 872Impastato 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).

Personal Jurisdiction waived and waited too long to bring up 317

JPMorgan Chase Bank, N.A. v Soussis, 2018 NY Slip Op 07294 [2d Dept. 2018]

The defendant waived any claim that the Supreme Court lacked personal jurisdiction over her. The defendant appeared in the action by serving a notice of appearance, and neither she nor her attorney moved to dismiss the complaint on the ground of lack of personal jurisdiction at that time or asserted lack of personal jurisdiction in a responsive pleading (see CPLR 320[a], [b]; U.S. Bank N.A. v Pepe, 161 AD3d 811, 812-813; Wilmington Sav. Fund Socy., FSB v Zimmerman, 157 AD3d 846, 847; American Home Mtge. Servicing, Inc. v Arklis, 150 AD3d 1180, 1181; National Loan Invs., L.P. v Piscitello, 21 AD3d 537, 538).

The defendant’s contention that she was entitled to relief pursuant to CPLR 317 is improperly raised for the first time on appeal (see Deutsche Bank Natl. Trust Co. v Saketos, 158 AD3d 610, 612).

Appeal from Judgment: 5501

Anderson & Anderson LLP-Guangzhou v North Am. Foreign Trading Corp., 2018 NY Slip Op 06971 [1st Dept. 2018]

The February 2017 order, which denied plaintiffs’ motion to vacate an October 2014 order that disqualified counsel for plaintiffs, and the September 2017 order, which denied plaintiffs’ motion for leave for West to appear as counsel, are not brought up for review by the instant appeal from the judgment, because they do not “necessarily affect[] the final judgment” (see CPLR 5501[a][1]; Paul v Cooper, 100 AD3d 1550, 1552 [4th Dept 2012], lv denied 21 NY3d 855 [2013]). However, the November 2016 order, which granted defendant’s motion to vacate the note of issue and denied plaintiffs’ motion for summary judgment, is reviewable, because, if reversed, it could be dispositive (see CPLR 5501[a][1]; Siegmund Strauss, Inc. v East 149th Realty Corp., 20 NY3d 37, 41-43 [2012]).

CPLR 3404 and a pure question of law

Thompkins v Ortiz, 2018 NY Slip Op 06503 [1st Dept. 2018]

Plaintiff challenges the applicability of CPLR 3404, on which the motion court apparently relied in denying her motion to restore the case to the calendar, for the first time on appeal. Since it is a legal argument that appears on the face of the record and could not have been avoided if brought to defendant’s attention at the proper juncture, we will review it (see Chateau d’If Corp. v City of New York, 219 AD2d 205, 209 [1st Dept 1996], lv denied 88 NY2d 811 [1996]).

The order that marked the case off the calendar directed plaintiff to provide additional discovery. It thus effectively vacated the note of issue and returned the case to pre-note of issue status (see Matos v City of New York, 154 AD3d 532[1st Dept 2017]). As CPLR 3404 does not apply to cases in which either no note of issue has been filed or the note of issue has been vacated (Turner v City of New York, 147 AD3d 597 [1st Dept 2017]), it does not apply to this case.

1625 Mkt. Corp. v 49 Farm Mkt., Inc., 2018 NY Slip Op 06498 [1st Dept. 2018]

Defendant’s argument, raised for the first time on appeal, that plaintiff’s counsel violated Rules of Professional Conduct (22 NYCRR 1200.0) rule 4.2(a) (“Communication with person represented by counsel”) does not pose a pure question of law, and will not be considered (see Gonzalez v New York City Health & Hosps. Corp., 29 AD3d 369, 370 [1st Dept 2006]).

Appellate procedure and such

Budoff v City of New York, 2018 NY Slip Op 05817 [2d Dept 2018]

As a general rule, we do not consider any issue raised on a subsequent appeal that could have been raised in an earlier appeal which was dismissed for lack of prosecution, although this Court has the inherent jurisdiction to do so (see Faricelli v TSS Seedman's, 94 NY2d 772, 774; Rubeo v National Grange Mut. Ins. Co., 93 NY2d 750; Bray v Cox, 38 NY2d 350; Green Tree Credit, LLC v Jelks, 120 AD3d 1299, 1300). Here, the plaintiff appealed from the order dated September 24, 2014, which granted the defendants' motions for summary judgment and directed dismissal of the complaint. In March 2016, this Court dismissed the plaintiff's appeal from that order for failure to perfect in accordance with the rules of this Court (see 22 NYCRR 670.8[h]). In the order appealed from, the Supreme Court, in effect, granted the plaintiff's motion to reargue his opposition to the defendants' motions for summary judgment and, upon reargument, adhered to its original determination in the order appealed from dated August 20, 2015. While the better practice would have been for the plaintiff to withdraw the prior appeal, rather than abandon it, we nevertheless exercise our discretion to review the issues raised on the appeal from the order made upon reargument (see Ismail v Burnbury, 118 AD3d 756, 757; Franco v Breceus, 70 AD3d 767, 768; Neuburger v Sidoruk, 60 AD3d 650, 652).

Note: "As the Supreme Court reviewed the merits of the plaintiff's contentions raised in his motion for leave to reargue, "the court, in effect, granted reargument and adhered to its original determination" (NYCTL 1998-2 Trust v Michael Holdings, Inc., 77 AD3d 805, 806). Accordingly, contrary to the City's contention, the order dated August 20, 2015, "made, in effect, upon reargument, is appealable" (id. at 806; see Matter of Mattie M. v Administration for Children's Servs., 48 AD3d 392, 393; Rivera v Glen Oaks Vil. Owners, Inc., 29 AD3d 560, 561)." 


And, in the First Department: Oparaji v Yablon159 AD3d 539 [1st Dept. 2018] ("Since the court addressed the merits of plaintiffs' motion for reargument, it effectively granted the motion, and we treat the order that decided the motion as appealable (see Jones v City of New York, 146 AD3d 690 [1st Dept 2017]).")


U.S. Bank N.A. v Quinones, 2018 NY Slip Op 05955 [2d Dept 2018]

The defendant's appeal from so much of the first order as denied his motion to stay further proceedings pending the determination of his prior appeal must be dismissed. The only basis on which the defendant requested the stay was to await the determination of his appeal from the order dated March 12, 2015. That appeal has since been dismissed based on the defendant's failure to prosecute. Therefore, the relief requested by the defendant is no longer available, and the reversal of so much of the first order as denied the defendant's motion for a stay pending the determination of the appeal would not affect the defendant's rights (see Taub v Schon, 148 AD3d 1202, 1203; DeFilippo v Miller, 106 AD3d 770, 770-771). Moreover, the defendant's arguments regarding why the Supreme Court should have vacated his default in answering or appearing in the action could have been raised on his appeal from the order dated March 12, 2015. The dismissal of that appeal for failure to prosecute constitutes an adjudication on the merits of all claims that could have been raised on that appeal (see NP Funding II v Newsome, 258 AD2d 445, 446, citing Bray v Cox, 38 NY2d 350, 355), and we decline to exercise our discretion to consider such issues (see Berezyuk v City of New York, 102 AD3d 901, 902).

The bold is mine.

in pari delicious

Matter of Wimbledon Fin. Master Fund, Ltd. v Wimbledon Fund, SPC, 2018 NY Slip Op 04075 [1st Dept. 2018]

On appeal, Class C now argues that petitioner's claims are barred by the doctrine of in pari delicto. This doctrine may be raised for the first time on appeal (see Janke v Janke, 47 AD2d 445, 449-450 [4th Dept 1975] [unclean hands can be considered for first time on appeal], affd 39 NY2d 786 [1976]); FIA Leveraged Fund Ltd. v Grant Thornton LLP, 50 Misc 3d 1213[A], 2016 NY Slip Op 50093[U], [Sup Ct, NY County 2016] [in pari delicto is equivalent to unclean hands], affd 150 AD3d 492 [1st Dept 2017]). 


Vista Eng'g Corp. v Everest Indem. Ins. Co., 2018 NY Slip Op 03730 [1st Dept. 2018] (note the dissent)

It is well settled that a party may not argue on appeal a theory never presented to the court of original jurisdiction (see Tortorello v Carlin, 260 AD2d 201, 205 [1st Dept 1999]; Sean M. v City of New York, 20 AD3d 146, 149-150 [1st Dept 2005] [same]; Admiral Ins. Co. v Marriott Intl.Inc., 79 AD3d 572 [1st Dept 2010], lv denied 17 NY3d 708 [2017] [same]; Elter v New York City Hous. Auth., 260 AD2d 232 [1st Dept 1999] [same]; Botfeld v Wong, 104 AD3d 433, 434 [1st Dept 2013] [argument improperly raised for the first time on appeal since the issue was not a purely legal issue apparent on the face of the record but required for resolution facts not brought to the opposing party's attention on the motion]). In Preserver Ins. Co. v Ryba (10 NY3d 635 [2008]), the Court of Appeals held that although the policy at issue covered risks in New York, the insured was a New Jersey company, with its only offices located in New Jersey, and, hence, the insured was not located in New York. Nor was the policy "issued for delivery" in New York (id. at 642). While the Court of Appeals in Carlson held that the "meaning of issued or delivered' is informed by our decision in" Preserver (Carlson, 10 NY3d at 296), the Court expanded on the definition of "located in" by adding a substantial business presence element. The dissent discounts the fact that this element was not briefed before the motion court, or before us. We decline to grant Vista summary judgment on an incomplete record and on a theory that was not raised below.

Removal from Civil to Supreme and why you should serve with NOE

Hart v New York City Hous. Auth., 2018 NY Slip Op 03123 [2d Dept. 2018]

Since the defendant was not served with a proper notice of entry, the defendant's time to appeal never commenced running, and its notice of appeal was therefore timely filed (see CPLR 5513[a]; Matter of Oliver v City of New York, 76 AD3d 1017, 1018; Nagin v Long Is. Sav. Bank, 94 AD2d 710).

A motion to remove an action from the Civil Court to the Supreme Court pursuant to CPLR 325(b) must be accompanied by a request for leave to amend the ad damnum clause of the complaint pursuant to CPLR 3025(b) (see Martin v Waldbaum's Supermarket, 172 AD2d 804). Here, the amount stated in the ad damnum clause was within the jurisdictional limits of the Civil Court, and no request for leave to amend the ad damnum clause was made. In the absence of an application to increase the ad damnum clause, the plaintiff's motion to remove the action to the Supreme Court should have been denied (see id.; Francilion v Epstein, 144 AD2d 633, 633-634). [*2]Accordingly, we remit the matter to the Supreme Court, Kings County, to restore the matter to the Civil Court, Kings County.