[App Term 1st Dept]

I’ll bet this happens a lot. CPLR 5015

CPLR R. 5015

CPLR
§ 105 Definitions
(u) Verified
pleading. A “verified pleading” may be utilized as an affidavit
whenever the latter is required.

Ramos v Jake Realty Co., 2010 NY Slip Op 50934(U (App. Term, 1st, 2010)

While plaintiff's excuse for his failure to appear for trial was hardly
overwhelming, under the particular circumstances here presented and in
light of the policy favoring the resolution of actions on their merits,
it was sufficient to warrant affording plaintiff vacatur relief.
Plaintiff's attorney, while on vacation abroad, received a message from
defense counsel requesting an adjournment of the trial date due to the
unavailability of a defense witness. Plaintiff's attorney orally
consented to the adjournment and, believing that defense counsel would
obtain the adjournment, did not appear for trial. Notably, a letter from
defense counsel to the court, which defense counsel shared with
plaintiff's counsel, corroborates plaintiff's counsel's belief that
defense counsel would seek the adjournment. Although the better practice
would have been for plaintiff's counsel to appear for trial to confirm
that the matter would be adjourned (and be prepared to go forward if the
request for the adjournment was denied), we conclude that plaintiff's
default was attributable to excusable law office failure (see
generally Delagatta v McGillicuddy,31 AD3d 549 [2006]; Cannon v
Ireland's Own, 21 AD3d 264 [2005]). Plaintiff also established a
potentially meritorious claim against defendants through his verified
pleadings (see Gironda v Katzen, 19 AD3d 644 [2005]; Key Bank,
N.A. v NY Cent. Mut. Fire Ins. Co., 144 AD2d 847 [1988]). We note
too that the Appellate Division, First Department previously concluded
that numerous triable issues exist in this action precluding summary
judgment in defendants' favor (Ramos v Jake Realty Co., 21 AD3d
744 [2005]).

Notice the meritorious defense through the verified pleadings bit. See, CPLR
§ 105.

Would the the excuse have flown in the Second Department? Probably not. A.B.
Med. Servs., PLLC v GLI Corporate Risk Solutions, Inc., 25 Misc 3d 137(A) (App. Term, 2nd, 2009) ("Plaintiffs'
allegation of law office failure is factually insufficient (see
Robinson v New York City Tr.
Auth., 203 AD2d 351 [1994]), in that they failed to explain whether
the normal two-part
procedure for assigning a per diem attorney to cover a court appearance,
as outlined in their
submission to the court, was followed in its entirety.").

CPLR § 2309: What’s the point?

CPLR § 2309 Oaths and affirmations
(c) Oaths and affirmations taken without the state.

CPLR § 2309 has been watered down so as to be non-existent. And from what I can tell, it serves no useful purpose. Why not just scrap the damn thing. I really don’t care whether we have the section or not; however, it’s dumb to keep it there for the sake of keeping it there.

Why the sudden outburst?

JT over at No-Fault Defender has been going on and on and on about 2309. And after seeing several decisions on the issue, came to the same conclusion. Actually, he came to the conclusion first. We do however, disagree as to the application of 2309. I say, if it’s there, just apply the damn thing. Don’t get cute with it. Don’t allow parties to fix it at the appellate level, like the Appellate Term did in Eastern Star Acupuncture, P.C. v Clarendon Natl. Ins. Co., 2010 NY Slip Op 50043(U) (App. Term, 1st, 2010):

Order (Raul Cruz, J.), entered October 16, 2008, reversed, without costs, motion granted and complaint dismissed on the condition that defendant, within 60 days of service upon it of a copy of this order with notice of entry, files with the Clerk of the Civil Court and serves upon plaintiffs an affidavit of Steven Esteves that is accompanied by a certificate demonstrating that the notary administered the oath as prescribed by the laws of the State of New Jersey. In the event defendant fails to duly file and serve such an affidavit, the order is affirmed, without costs.

The affidavit submitted by defendant of its employee (Esteves) established defendant’s entitlement to summary judgment dismissing this action to recover first-party no-fault benefits. Plaintiffs, however, raised a timely objection to the form of this affidavit, asserting that it did not comply with CPLR 2309(c). Specifically, plaintiffs correctly note that the affidavit failed to include a certificate demonstrating that the notary administered the oath as prescribed by the laws of the State of New Jersey, the state in which the oath was administered (see CPLR 2309[c]; Real Property Law § 299-a[1]; PRA III, LLC v Gonzalez, 54 AD3d 917 [2008]). Inasmuch as the document can be given nunc pro tunc effect once the appropriate certificate is obtained (Nandy v Albany Med. Ctr. Hosp., 155 AD2d 833, 834 [1989]; see Moccia v. Carrier Car Rental, Inc., 40 AD3d 504, 505 [2008]; see also Matapos Tech. Ltd. v Compania Andina de Comercio Ltda, ___AD3d___, 2009 NY Slip Op. 09713 [Dec. 29, 2009]), we reverse the order and grant defendant’s motion for summary judgment dismissing the complaint on the conditions stated above (cf. Sandoro v Andzel, 307 AD2d 706, 708-708 [2003]).

JT made a very similar suggestion right before the decision was published. What happens if defendant screws up the 2309(c) affidavit? It happens more often than you think.

A Brief CPLR R. 5015 Roundup and CPLR R. 2214(d) Appears For The First Time In this Blog.

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 R. 2214 Motion papers; service; time
(d) Order to show cause

MBF Leasing, LLC v Sisco, 25 Misc 3d 128(A) (App. Term, 1st, 2009)

Civil Court correctly denied, without a traverse hearing, that branch of defendant's motion seeking vacatur of the default judgment and dismissal of the complaint for lack of personal jurisdiction under CPLR 5015(a)(4) because defendant failed to sufficiently refute the factual averments contained in plaintiff's process server's affidavit of service. Defendant is nonetheless entitled to vacatur of the default judgment and an opportunity to answer the action on the merits. In light of defendant's potentially meritorious defense to the action (see Pludeman v N. Leasing Sys., 10 NY3d 486 [2008]), the absence of any discernable prejudice to plaintiff (which did not oppose defendant's motion and has not filed a respondent's brief on this appeal), defendant's showing that the default was not willful, and our preference for resolving actions on the merits, we vacate the default judgment under our "inherent discretionary power" to relieve defendant of his default "for sufficient reason and in the interests of substantial justice" (Woodson v Mendon Leasing Corp., 100 NY2d 62, 68 [2003]; see Siegel, NY Practice § 426, 725 [4th ed]).

Although the court in its discretionary power may vacate a default even though the party did not satisfy any of the conditions in CPLR R. 5015, I don't understand why the court would say that the defendant was entitled to vacatur. Going by Webster's definition of entitle, the word hardly seems to fit. Vacatur was a gift in this case. Also interesting is that the defendant's motion to vacate was unopposed. Neither was the appeal. Unless defendant attached plaintiff's affidavit or service, how was it before the lower court? Judicial Notice?

Speaking of weird…

Merriwether v Osborne, 2009 NY Slip Op 07602 (App. Div., 2nd, 2009)

By order dated May 22, 2007, the Supreme Court granted, apparently without opposition, the defendants' separate motions for summary judgment dismissing, inter alia, the complaint insofar as asserted against them, and a judgment dismissing the complaint was entered subsequently. Although the plaintiff was duly served with both the order and the judgment with notice of entry, he neither appealed nor moved to vacate. Nearly two years later, the Supreme Court, sua sponte, without explanation, vacated the order dated May 22, 2007, and, in effect, the judgment, and denied the defendants' motions for summary judgment.

On appeal, the defendants contend that the Supreme Court exceeded its authority in, sua [*2]sponte, vacating the order and, in effect, the judgment. We agree.

"A trial court has no revisory or appellate jurisdiction, sua sponte, to vacate its own order or judgment" (Adams v Fellingham, 52 AD3d 443, 444-445; see Armstrong Trading, Ltd. v MBM Enters., 29 AD3d 835, 836; Matter of Owens v Stuart, 292 AD2d 677, 678-679; cf. Liss V Trans Auto Sys., 68 NY2d 15, 20). Here, the court exceeded its powers by its unexplained sua sponte attempt to reconsider the summary judgment motions anew almost two years after the case was dismissed by judgment (see Matter of Owens v Stuart, 292 AD2d at 679).

WTF?

Wells Fargo Bank, N.A. v Leiba, 2009 NY Slip Op 07833 (App. Div., 2nd, 2009)

The Supreme Court properly denied the motion of the defendant Lisa Morris to vacate a judgment of foreclosure and sale dated October 27, 2005, as she failed to serve the order to show cause by which the motion was initiated in the manner specified, and within the time provided (see CPLR 2214[d]; Alden Personnel, Inc. v David, 38 AD3d 697, 698).

A bad employee can be a reasonable excuse. See below.

Rodriguez v Rodriguez, 2009 NY Slip Op 08150 (App. Div., 1st, 2009)

Defendant's attorney's representation that a former employee had been misdirecting or misplacing mail provides a reasonable excuse for his failure to present such evidence of law office failure on defendant's original motion to vacate the default judgment as well as his failure to appear in court on various dates (see Solowij v Otis Elev. Co., 260 AD2d 226 [1999]). Defendant's affidavit shows a meritorious defense.

The bold is mine.

CPLR R. 3108 Court declines to issue commision to compel deposition of out of state witness

CPLR R. 3108 Written questions; when permitted

Hinds v Fischer, 2009 NY Slip Op 51594(U) (App. Term, 1st, 2009)

The motion court did not improvidently exercise its
broad discretion in the supervision of discovery-related matters (see Red Apple Supermarkets, Inc. v Malone & Hyde, Inc.,
251 AD2d 78 [1998]) by denying defendant's eleventh-hour motion to take
the deposition of several nonparty witnesses in Connecticut. Viewing
the pro se defendant's application as one seeking the issuance of a
commission pursuant to CPLR 3108, the motion was properly denied in the
absence of any showing that "the proposed out-of-State deponent[s]
would not cooperate with a notice of deposition or would not
voluntarily come within this State or that the judicial imprimatur
accompanying a commission will be necessary or helpful when the
[designee] seeks the assistance of the foreign court in compelling the
witness[es] to attend the examination[s]'" (Reyes v Riverside Park Community [Stage I], Inc., 59 AD3d 219 [2009], quoting, inter alia, Wiseman v American Motors Sales Corp, 103 AD2d 230, 235 [1984]).

We also sustain the denial of that branch of defendant's motion
for discovery of plaintiff's medical records pertaining to plaintiff's
physical condition (including "AIDS, sexually transmitted diseases
[and] alcohol and/or substance abuse"), since such records are
privileged and are not "material and necessary" to the defense of
plaintiff's sole remaining defamation cause of action (CPLR 3101[a]; see generally Monica W. v Milevoi, 252 AD2d 260, 262-263 [1999]). Defendant's remaining discovery request has been rendered moot.

Keep in mind that defendant is pro se, the "eleventh-hour" timing, and that the matter is in civil court.

Even if the lower court issued a commission, a Connecticut court would have to enforce it. For an interesting example of a New York court being asked to enforce an out of state commission, click here.