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).

Insanity toll: CPLR 208

Matter of Brigade v Olatoye, 2018 NY Slip Op 08437 [1st Dept., 2018]

The medical records submitted on the petition present an issue of fact as to whether petitioner possessed “an over-all ability to function” during the relevant period (see McCarthy v Volkswagen of Am. , 55 NY2d 543, 548 [1982]). Thus, a hearing must be held to determine whether the statute of limitations on this untimely filed proceeding should be tolled for insanity (CPLR 208; see Santana v Union Hosp. of Bronx , 300 AD2d 56, 58 [1st Dept 2002]).

 

Substitute Expert 3101(d)

Geffner v Mercy Med. Ctr., 2018 NY Slip Op 08280 [2d Dept. 2018]

Furthermore, contrary to the plaintiff’s contention, the Supreme Court did not improvidently exercise its discretion in precluding her from proffering the testimony of a “substitute expert” at trial. Pursuant to CPLR 3101(d)(1)(i), “where a party for good cause shown retains an expert an insufficient period of time before the commencement of trial to give appropriate notice thereof, the party shall not thereupon be precluded from introducing the expert’s testimony at the trial solely on grounds of noncompliance with this paragraph” (emphasis added). “A determination regarding whether to preclude a party from introducing the testimony of an expert witness at trial based on the party’s failure to comply with CPLR 3101(d)(1)(i) is left to the sound discretion of the court” (McGlauflin v Wadhwa, 265 AD2d 534, 534). Here, since the plaintiff offered only a vague excuse for the unavailability of the intended expert, without offering any details as to when the plaintiff learned of that expert’s unavailability, she failed to establish good cause to offer the testimony of the “substitute expert” (see Banister v Marquis, 87 AD3d 1046Caccioppoli v City of New York, 50 AD3d 1079Klatsky v Lewis, 268 AD2d 410, 411). Moreover, the plaintiff had previously been unprepared to proceed with trial due to, inter alia, the unavailability of experts (see Fava v City of New York, 5 AD3d 724, 725).

3216

JP Morgan Chase Bank v Faracco, 2018 NY Slip Op 08286 [2d Dept. 2018]

As the plaintiff correctly contends, the ministerial dismissal of the action was improper. Although the Supreme Court appears to have relied upon CPLR 3216 (b) as authority for its actions, the order dated April 11, 2013, failed to constitute a valid 90-day demand under that statute, since it did not recite that noncompliance with its terms “will serve as a basis for a motion . . . for dismissal . . . for unreasonably neglecting to proceed” (CPLR 3216[b][3]; see Deutsche Bank Natl. Trust Co. v Bastelli, 164 AD3d 748Deutsche Bank Natl. Trust Co. v Cotton, 147 AD3d 1020US Bank N.A. v Saraceno, 147 AD3d 1005). Moreover, the court never directed the parties to show cause as to why the action should not be dismissed, and did not enter a formal order of dismissal on notice to the parties as required by CPLR 3216(a) (see Cadichon v Facelle, 18 NY3d 230US Bank N.A. v Saraceno, 147 AD3d at 1006). Accordingly, the ministerial dismissal, made without notice and without benefit of further judicial review, was erroneous (see Cadichon v Facelle, 18 NY3d at 236). In any event, dismissal was improper because the letter sent by the plaintiff’s counsel to the court, which provided a good faith explanation for the delay in moving for a judgment of foreclosure and sale, adequately and timely complied with the terms of the order dated April 11, 2013, and the plaintiff’s conduct did not prejudice the defendant and did not support any inference of an intent to abandon the action (see US Bank N.A. v Saraceno, 147 AD3d at 1006).

3215(c)

Fling v Integrity Bus. Solutions, Inc.,  2018 NY Slip Op 07691 [1st Dept. 2018]

Order, Supreme Court, Bronx County (Mary Ann Brigantti, J.), entered April 21, 2017, which, to the extent appealed from as limited by the briefs, granted defendants’ motion pursuant to CPLR 3215(c) to dismiss the complaint for failing to move for a default judgment within the one-year deadline, unanimously reversed, on the law, without costs, and the motion denied.

Although plaintiff’s excuse for failing to move for a default judgment within one year of defendants’ default is not entirely compelling, it must, however, be weighed against the merits of plaintiff’s claim and the prejudice to defendants (see LaValle v Astoria Constr. & Paving Corp., 266 AD2d 28 [1st Dept 1999]). Here, plaintiff’s affidavit sets out a meritorious action, and defendant Hutchins’s denials, contained in his own affidavit, merely raise triable issues of fact. Furthermore, defendants have offered no evidence of any prejudice from the delay, and there is strong public policy in favor of deciding cases on the merits (see Nedeltcheva v MTE Transp. Corp., 157 AD3d 423 [1st Dept 2018]).

Compare with the Second Department: BAC Home Loans Servicing, LP v Broskie, 2018 NY Slip Op 08005 [2d Dept. 2018]

Don’t forget to preserve

WebMD LLC v Aid in Recovery, LLC, 2018 NY Slip Op 07677 [1st Dept. 2018]

Plaintiff moved not only for summary judgment on its complaint but also to dismiss the mitigation defense. Defendant failed to oppose that part of plaintiff’s motion; hence, we decline to review the arguments defendant makes about mitigation on appeal (see Callisto Pharm., Inc. v Picker, 74 AD3d 545 [1st Dept 2010]; Lally v New York City Health & Hosps. Corp., 277 AD2d 9 [1st Dept 2000], appeal dismissed 96 NY2d 896 [2001]).

Caminiti v Extell W. 57th St. LLC., 2018 NY Slip Op 07667 [1st Dept. 2018]

Contrary to plaintiff’s assertion, defendants preserved their arguments about triable issues of fact by asserting them in their memorandum of law in opposition to plaintiff’s partial summary judgment motion. However, defendants failed to preserve their argument that even if plaintiff was injured by the ladder, his conduct was the sole proximate cause of his injuries, and we decline to review this fact-sensitive argument in the interest of justice.

An odd stipulation case

RCS Recovery Servs., LLC v Mensah, 2018 NY Slip Op 07766 [2d Dept. 2018]

We agree with the Supreme Court’s denial of that branch of the defendant’s motion which was pursuant to CPLR 5015(a)(3) to vacate the judgment. Absent any proof of intrinsic or extrinsic fraud in the procurement of the judgment, the defendant was not entitled to that relief (see LaSalle Bank N.A. v Oberstein, 146 AD3d 945, 945-946; Dunkin Donuts v HWT Assoc., 181 AD2d 713, 714; Central Funding Co. v Kimler, 54 AD2d 748, 748).

However, under the circumstances of this case, the Supreme Court should have granted the alternate branch of the defendant’s motion, which was, in effect, to preclude the plaintiff from enforcing the default provision of the stipulation without affording the defendant a reasonable opportunity to cure his default. “Under almost any given state of facts, where to enforce a stipulation would be unjust or inequitable or permit the other party to gain an unconscionable advantage, courts will afford relief” (Goldstein v Goldsmith, 243 App Div 268, 272; see Weitz v Murphy, 241 AD2d 547, 548; Bank of N.Y. v Forlini, 220 AD2d 377, 378).

Here, the defendant’s default was inadvertent and minor in nature when measured against the harsh result that would be obtained upon literal enforcement of the default provision in the stipulation (see Bank of N.Y. v Forlini, 220 AD2d at 378). Insofar as the plaintiff failed to offer the defendant any opportunity to cure his default before seeking to recover the full amount due under the judgment, the plaintiff’s conduct could be interpreted as an attempt to take advantage of a technical default to obtain payment of the far greater sum which the plaintiff had originally sought, but agreed to forgo as part of the settlement (compare Weitz v Murphy, 241 AD2d at 548-549 and Bank of N.Y. v Forlini, 220 AD2d at 378, with McKenzie v Vintage Hallmark, 302 AD2d 503, 504).

Compare IndyMac Bank, FSB v Izzo, 2018 NY Slip Op 08014 [2d Dept. 2018]

5015(a)(2)(3)

Kondaur Capital Corp. v Stewart, 2018 NY Slip Op 07713 [2d Dept. 2018]

The defendant failed to demonstrate her entitlement to relief based upon newly discovered evidence (see CPLR 5015[a][2]; Deutsche Bank Natl. Trust Co. v Morris, 160 AD3d 613Wall St. Mtge. Bankers, Ltd. v Rodgers, 148 AD3d 1088, 1089). Notably, even if the evidence cited by the defendant could be considered newly discovered, she failed to establish that such evidence would probably have produced a different result (see Bank of N.Y. v Tobing, 155 AD3d 596, 596-597; U.S. Bank N.A. v Galloway, 150 AD3d 1174, 1175; IMC Mtge. Co. v Vetere, 142 AD3d 954, 955; Federated Conservationists of Westchester County v County of Westchester, 4 AD3d 326, 327).

Additionally, the defendant failed to demonstrate her entitlement to vacatur pursuant to CPLR 5015(a)(3). A party seeking to vacate a judgment pursuant to CPLR 5015(a)(3) must make the motion within a reasonable time. Here, the defendant’s delay in moving to vacate the judgment of foreclosure and sale was unreasonable (see Dimery v Ulster Sav. Bank, 82 AD3d 1034, 1034; Bank of N.Y. v Stradford, 55 AD3d 765, 765). In any event, the defendant failed to demonstrate any fraud, misrepresentation, or other misconduct warranting vacatur of the judgment (see Summitbridge Credit Invs., LLC v Wallace, 128 AD3d 676, 677-678).

The defendant contends that the Supreme Court lacked jurisdiction to issue the judgment of foreclosure and sale because Kondaur lacked standing. However, ” an alleged lack of standing is not a jurisdictional defect'” (HSBC Bank USA, N.A. v Dalessio, 137 AD3d 860, 863, quoting JP Morgan Mtge. Acquisition Corp. v Hayles, 113 AD3d 821, 823; see CPLR 5015[a][4]).

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.

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).