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]

CPLR 3213

JFURTI, LLC v First Capital Real Estate Advisors, L.P., 2018 NY Slip Op 06493 [1st Dept. 2018]

On the issue of the applicability of CPLR 3213, the documents herein are not “instruments for the payment of money only,” as contemplated by the statute, because they contain obligations beyond just the payment of money and require that payment be made in the future for an unidentified amount (see Weissman v Sinorm Deli, 88 NY2d 437, 444 [1996]). Moreover, the guaranty does not qualify because it is a guaranty for both payments and performance (Dresdner Bank AG. [N.Y. Branch] v Morse/Diesel, Inc., 115 AD2d 64, 68 [1st Dept 1986]). However, when a “plaintiff has mistaken his remedy and CPLR 3213 is in fact not available, the action typically should not be dismissed but simply converted to ordinary form as the statute provides,” unless the court orders otherwise (Weissman, 88 NY2d at 445; CPLR 3213). If the claims can be decided on the merits, the court can grant summary judgment accordingly (id. at 445).

UCC, why not

dd

CPLR § 3215 Default judgment

Gmac v Jones, 2011 NY Slip Op 08560 (2nd Dept., 2011)

The plaintiff commenced this action against the defendants, inter alia, for a deficiency judgment representing the balance allegedly due on a retail installment contract (hereinafter the contract) after the plaintiff sold the vehicle which was the subject of the contract at a private automobile auction. The plaintiff moved for summary judgment on the complaint. The defendants opposed the motion and cross-moved for summary judgment dismissing the complaint, arguing that the plaintiff failed to provide proper notice as required by certain provisions of the Uniform Commercial Code, and that the plaintiff failed to conduct a commercially reasonable sale of the vehicle.

When a secured party seeks to dispose of collateral after a default, it must send the debtor "a reasonable authenticated notification of disposition" (UCC 9-611[b]). Moreover, "[a] secured party seeking a deficiency judgment from the debtor after sale of the collateral bears the burden of showing that the sale was made in a commercially reasonable' manner" (Associates Commercial Corp. v Liberty Truck Sales & Leasing, 286 AD2d 311, 312 [internal quotation marks omitted]; see UCC 9-610).

Here, the plaintiff established its prima facie entitlement to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320, 324). The defendants do not dispute that they entered into the subject contract or that they stopped making the required payments. The plaintiff met its burden of showing that it provided the defendants with reasonable notice that it intended to sell the vehicle at a private automobile auction (see UCC 9-614, 9-613). The plaintiff also met its burden of showing that it sold the vehicle in a commercially reasonable manner (see UCC 9-610, 9-627; cf. Paco Corp. v Vigliarola, 611 F Supp 923, 925-926, affd 835 F2d 1429; Associates Commercial Corp. v Liberty Truck Sales & Leasing, 286 AD2d at 312; Federal Deposit Ins. Corp. v Forte, 144 AD2d 627, 629).

In opposition, the defendants failed to raise a triable issue of fact as to whether the vehicle was sold in a commercially reasonable manner. The vehicle was two years old, with an odometer reading of 47,008 miles. The plaintiff sold the vehicle for the sum of $23,000, which was $1,700 greater than its estimated wholesale value of $21,300 (see Orix Credit Alliance v East End Dev. Corp., 260 AD2d 454, 455).

Accordingly, the Supreme Court properly granted the plaintiff's motion for summary judgment on the complaint and denied the defendants' cross motion for summary judgment dismissing the complaint.

3215

CPLR § 3215 Default judgment

Anderson v Vasquez, 2011 NY Slip Op 08550 (2nd Dept., 2011)

In support of her unopposed motion pursuant to CPLR 3215(f) for leave to enter a judgment in the principal sum of $41,500 against the defendant, upon the defendant's default in appearing or answering the complaint, the plaintiff presented proof that was sufficient to establish that she had a viable cause of action against the defendant (see Woodson v Mendon Leasing Corp., 100 NY2d 62, 71). The plaintiff presented, among other things, her affidavit attesting to her claim that she made a series of loans to the defendant, that the defendant promised to repay the loans, that the defendant failed to do so, and proof of the amount due on the loans (see Golding v Gottesman, 41 AD3d 430; Langenbach v Renna, 255 AD2d 366; Wallach v Dryfoos, 140 App Div 438, 440). Furthermore, the plaintiff submitted a process server's affidavit attesting to service of the summons and complaint on the defendant, and her attorney's affidavit regarding the defendant's default in appearing or answering the complaint (see CPLR 3215[f]). Accordingly, the plaintiff's unopposed motion for leave to enter a default judgment in the principal sum of $41,500 against the defendant should have been granted (see Hermitage Ins. Co. v Trance Nite Club, Inc., 40 AD3d 1032; Zino v Joab Taxi, Inc., 20 AD3d 521).

IMP Plumbing & Heating Corp. v 317 E. 34th St., LLC., 2011 NY Slip Op 08470 (1st Dept., 2011)

Dismissal of NYU's cross claims against the general contractor was also not warranted. NYU correctly asserts that, as in third-party actions, CPLR 3215(c)'s mandate that an action is deemed abandoned unless "proceedings" towards a default are taken within one-year of the default, does not apply to indemnification claims until liability is established in the main action (see Multari v Glalin Arms Corp., 28 AD2d 122, 124 [1967], appeal dismissed 23 NY2d 740 [1968]). Indeed, the motion court recognized such principle, but applied it only to the first cross claim. To the extent the second cross claim is one for contribution, the same principle applies, as the claim is asserted in the verified answer as specifically contingent upon a finding of liability against NYU in the main action.

Furthermore, with respect to all three cross claims, the standard employed by the motion court — one year from service of the verified answer — is not required by CPLR 3215(c), which mandates the one-year period as accruing from the default in answering the claim. Here, the moving papers do not indicate the date of the general contractor's alleged default, and only provide the date NYU's pleading containing the cross claims was served.

Very Interesting 3215 decision: half sum certain, half not

CPLR 3215

Stephan B. Gleich & Assoc. v Gritsipis, 2011 NY Slip Op 05483 (App. Div., 2nd 2011)

III. The Clerk's Judgment Under CPLR 3215(a)

The defendant's argument that the clerk of the court lacked authority to enter a judgment is raised for the first time on appeal. However, where, as here, an argument presents an issue of law appearing on the face of the record which could not have been avoided if raised at the proper juncture, it may be considered by an appellate court (see Parry v Murphy, 79 AD3d 713; Verde Elec. Corp. v Federal Ins. Co., 50 AD3d at 673; Chrostowski v Chow, 37 AD3d 638, 639; Beepat v James, 303 AD2d 345, 346; Hanna v Ford Motor Co., 252 AD2d 478). The nature of this appeal warrants the exercise of our discretion in reaching on its merits the issue of the propriety of the clerk's judgment.

CPLR 3215(a) allows a party to seek a default judgment by application to the clerk if the claim is "for a sum certain or for a sum which can by computation be made certain" (CPLR 3215[a]). Where the clerk is presented with the requisite proof, he or she "shall enter judgment for the amount demanded in the complaint or stated in the [summons with notice], plus costs and interest" (CPLR 3215[a]). While the statute directs that the amount of the judgment shall be the amount demanded in the complaint or summons with notice, the language has been interpreted by the Court of Appeals as allowing the plaintiff to elect a lesser sum (see McClelland v Climax Hosiery Mills, 252 NY 347, 352 [interpreting a similar predecessor statute, CPA 485]).

The limitation of clerk's judgments to claims for a "sum certain" "contemplates a situation in which, once liability has been established, there can be no dispute as to the amount due" (Reynolds Sec. v Underwriters Bank & Trust Co., 44 NY2d 568, 572; Pikulin v Mikshakov, 258 AD2d 450, 451). The statute is intended to apply to only the most liquidated and undisputable of claims, such as actions on money judgments and negotiable instruments (see Reynolds Sec. v Underwriters Bank & Trust Co., 44 NY2d at 572; Pikulin v Mikshakov, 258 AD2d at 451; Siegel, David D., NY Practice, at 477 [4th ed]).

On the face of the plaintiff's 1993 summons with notice, the plaintiff did not allege the existence of a written retainer agreement, and did not specifically describe the nature of the action as one for breach of contract. Furthermore, no copy of a retainer agreement was annexed to the affidavit of facts submitted to the clerk. The claim "to recover for legal services" may be viewed as stating a cause of action sounding in quantum meruit, for which there must be evidence of (1) the performance of services in good faith, (2) the acceptance of the services by the person to whom they are rendered, (3) an expectation of compensation therefor, and (4) the reasonable value of the services allegedly rendered (see AHA Sales, Inc. v Creative Bath Prods., Inc., 58 AD3d 6, 19; Cruz v McAneney, 31 AD3d 54, 59; Citibank, N.A. v Walker, 12 AD3d 480, 481). The cause of action alleging unjust enrichment, which is clearly stated in the summons with notice, requires proof that (1) the defendant was enriched, (2) at the plaintiff's expense, and (3) that it is against equity and good conscience to permit the defendant to retain what is sought to be recovered (see AHA Sales, Inc. v Creative Bath Prods., Inc., 58 AD3d at 19; Cruz v McAneney, 31 AD3d at 59; Citibank, N.A. v Walker, 12 AD3d at 481). Quantum meruit and unjust enrichment theories are equitable in nature, and are appropriate only if there is no valid and enforceable contract between the parties covering the dispute at issue (see AHA Sales, Inc. v Creative Bath Prods., Inc., 58 AD3d at 20; Hochman v LaRea, 14 AD3d 653, 654-655; Zuccarini v Ziff-Davis Media, 306 AD2d 404, 405; Old Salem Dev. Group v Town of Fishkill, 301 AD2d 639). Such causes of action are not for a sum certain and, therefore, are not eligible for the entry of a clerk's judgment under CPLR 3215(a) (see Ayers Mem. Animal Shelter, Inc. v Montgomery County Socy. for Prevention of Cruelty to Animals, 17 AD3d 904, 904-905 [quantum meruit]; Maxwell v First Port Jefferson Corp., 31 AD2d 813 [quantum meruit]). 

By contrast, an account stated is an agreement between parties to an account based upon prior transactions between them with respect to the correctness of the account items and the balance due (see Landau v Weissman, 78 AD3d 661; Jim-Mar Corp. v Aquatic Constr., 195 AD2d 868, 869). By retaining billing statements and failing to object to the account within a reasonable time, the recipient of the bill implies that he or she agrees with the sender regarding the amount owed (see Rodkinson v Haecker, 248 NY 480, 485; American Express Centurion Bank v Cutler, 81 AD3d 761, 762; Landau v Weissman, 78 AD3d at 661; O'Connell & Aronowitz v Gullo, 229 AD2d 637, 638; Ruskin, Moscou, Evans & Faltischek v FGH Realty Credit Corp., 228 AD2d 294, 295-296; Shea & Gould v Burr, 194 AD2d 369, 370; Rosenman Colin Freund Lewis & Cohen v Edelman, 160 AD2d 626; Brown Rudnick Berlack Israels LLP v Zelmanovitch, 11 Misc 3d 1090[A], 2006 NY Slip Op 50800[U], *5). Generally, an account stated may qualify for relief under CPLR 3215 (see Cavalry Portfolio Servs., LLC v Reisman, 55 AD3d 524; Imperial Medical Supply & Surgical Sup. v Country Wide Ins. Co., 2002 NY Slip Op 50352[U] n 6; cf. Commissioners of State Ins. Fund v Khondoker, 55 AD3d 525).

The Appellate Division, First Department, directly addressed the question of whether a clerk may enter a judgment pursuant to CPLR 3215(a) when one or more causes of action in a plaintiff's pleading is for a sum certain and one or more other causes of action is not. It held, in Geer, Du Bois & Co. v Scott & Sons Co. (25 AD2d 423), that a clerk is without authority to enter a judgment under such circumstances (id.; see Gaynor & Bass v Arcadipane, 268 AD2d 296; Bouker Contr. Co. v Neale, 161 App Div 617). Although the First Department did not explain its reasoning, we find its result to be sound. A clerk entering a judgment for a sum certain, in actions where other nonconforming causes of action also are alleged, would, in effect, be severing the nonconforming causes of action from the pleading or, viewed another way, be rendering academic the nonconforming causes of action. Such action is more in the nature of a judicial function than a ministerial function of the type contemplated for a clerk by CPLR 3215(a) (see Reynolds Sec. v Underwriters Bank & Trust Co., 44 NY2d at 572). Accordingly, as the plaintiff's summons with notice asserted equitable causes of action that were not, by definition, for a sum certain, the Nassau County Clerk was without statutory authority to render a clerk's judgment (see Geer Du Bois & Co. v Scott & Sons, Inc., 25 AD2d at 423; Bouker Contr. Co. v Neale, 161 App Div at 617).

Our finding that the clerk's judgment is void raises a secondary issue, namely, whether vacating the clerk's judgment also requires the vacatur of the underlying finding that the defendant was in default or, alternatively, whether upon vacatur, the underlying default finding remains intact and the matter should be remitted to the Supreme Court only to conduct an inquest on damages. In certain cases, the Appellate Divisions have vacated the clerks' judgments only and remitted the matters for inquests (see Fidelity Natl. Tit. Ins. Co. v Valtech Research, Inc., 73 AD3d 686, 687; General Elec. Tech. Servs. Co. v Perez, 156 AD2d 781, 784; Woodward v Eighmie Moving & Stor., 151 AD2d 892, 893; Falso v Norton, 89 AD2d 635, 635-636). In other cases, the Appellate Divisions made clear that the vacatur of the clerks' judgments has the effect of also vacating the underlying finding that the defendants were in default (see Gaynor & Bass v Arcadipane, 268 AD2d at 297; Gibbs v Hoot Owl Sportsman's Club, 257 AD2d 942, 943; Action Lawn & Landscaping v East Glenville Fire Dist., 254 AD2d 585, 587; Jannon v Van Buskirk, 227 AD2d 844, 844-845; Maxwell v First Port Jefferson Corp., 31 AD2d at 813; Geer, Du Bois & Co. v Scott & Sons Co., 25 AD2d at 423).

These seemingly inconsistent cases can be reconciled. In the first set of cases, the issue of whether to vacate the defendants' defaults pursuant to CPLR 5015, on the basis that a reasonable excuse and a potentially meritorious defense were presented, was before the Courts, and the Appellate Divisions concluded in each instance that the defendants failed to establish either reasonable excuses for their respective defaults or potentially meritorious defenses. Since there was no basis to vacate the underlying defaults on the papers submitted in those cases, the only procedures that remained to be undertaken, where the clerks' judgments were found to be unauthorized, were inquests on damages (see Reynolds Sec. v Underwriters Bank & Trust Co., 44 NY2d at 573-574; General Elec. Tech. Servs. Co. v Perez, 156 AD2d 781; Woodward v Eighmie Moving & Stor. 151 AD2d at 893; Falso v Norton, 89 AD2d at 635-636; Fidelity Natl. Tit. Ins. Co. v Valtech Research, Inc., 73 AD3d at 687). By contrast, in the other set of cases, the vacatur of the defendants' underlying defaults was not raised as an issue (see Gibbs v Hoot Owl Sportsman's Club, 257 AD2d at 943; Maxwell v First Port Jefferson Corp., 31 AD2d at 813; Geer, Du Bois & Co. v Scott & Sons Co., 25 AD2d at 423), the defendants' defaults were found on appeal to be excusable so that the actions reverted to their pre-default status (see Gaynor & Bass v Arcadipane, 268 AD2d at 297; Action Lawn & Landscaping v East Glenville Fire Dist., 254 AD2d at 587), or the defendant's default was unresolved upon further application to the Supreme Court to permit service of a late answer (see Jannon v Van Buskirk, 227 AD2d at 844-845). Accordingly, where a defendant's default is found to be excusable, or at least subject to further proceedings at the Supreme Court, the clerk's judgment must be vacated, along with any underlying finding that the defendant was in default.

Here, the Supreme Court found that in the 1993 action, the defendant has demonstrated neither a reasonable excuse for his underlying default nor a potentially meritorious defense to that action. Its finding, which we are affirming on appeal, establishes the law of the case that the defendant is in default and is not entitled to vacatur of the judgment pursuant to CPLR 5015(a). The only remaining action to be undertaken beyond the vacatur of the clerk's judgment is the conduct of a damages inquest on any cause of action asserted in the 1993 summons with notice (see General Elec. Tech. Servs. Co. v Perez, 156 AD2d at 784; Falso v Norton, 89 AD2d at 635-636; Fidelity Natl. Tit. Ins. Co. v Valtech Research Inc., 73 AD3d at 687).

We note that pursuant to CPLR 3012(d), a defendant who has failed to timely appear in an action may move to compel the plaintiff's acceptance of an untimely answer "upon such terms as may be just and upon a showing of reasonable excuse for [the] delay or default" (CPLR 3012[d]; see New York & Presbyt. Hosp. v Auto One Ins. Co., 28 AD3d 441; Beecher v State Farm Mut. Auto. Ins. Co., 186 AD2d 1012). We find that the showing of reasonable excuse that a defendant must establish to be entitled to serve a late answer under CPLR 3012(d) is the same as that which a defendant must make to be entitled to the vacatur of a default under CPLR 5015(a)(1). Since the defendant here has been found to lack a reasonable excuse for his failure to timely appear on the 1993 action, the law of the case forecloses any further remedy under CPLR 3012(d), again leading to the conclusion that an inquest on damages is all that remains for the Supreme Court (see General Elec. Tech. Servs. Co. v Perez, 156 AD2d at 784; Falso v Norton, 89 AD2d at 635-636; cf. Jannon v Van Buskirk, 227 AD2d at 844-845).

We do not suggest that plaintiffs who assert alternative legal and equitable causes of action are always foreclosed from obtaining clerks' judgments under CPLR 3215(a). Plaintiffs' attorneys do not know at the time they draft summonses with notice or complaints that the defendant will fail to appear and answer, and accordingly, all potential causes of action will typically be included. Plaintiffs who later seek a clerk's judgment, instead of applying to the court itself, may be able to avail themselves of CPLR 3217(a)(1), which allows the voluntary discontinuance of any claim, without leave of court, at any time before a responsive pleading is served or within 20 days after service of the pleading asserting the claim, whichever is earlier. If plaintiffs seeking to discontinue non-sum certain causes of action do not meet the time requirements of CPLR 3217(a)(1), they could then move before the court to discontinue pursuant to CPLR 3217(b). It would seem, however, that seeking court intervention to discontinue non-sum certain causes of action would defeat the purpose of seeking a clerk's judgment in the first instance. In any event, assuming the time requirements for a voluntary discontinuance are met, a plaintiff's affidavit of facts, submitted in support of the entry of the clerk's judgment, can include an expressed voluntary discontinuance of all causes of action except for the cause of action seeking a sum certain. Upon the voluntary discontinuance of all claims that do not fall within the scope of CPLR 3215(a), the clerk would then be authorized to enter a judgment upon the submitted proof of the sum certain amount demanded (cf. Time Warner City Cable v TriState Auto, 5 AD3d 153). Here, the plaintiff did not seek to discontinue the non-sum certain causes of action prior to submitting its affidavit of facts to the clerk, rendering the clerk's judgment infirm.

Given the defendant's default in this action and other circumstances in the record, the 1994 clerk's judgment affected by this opinion and order shall stand as security pending the assessment of damages and, during that time, the plaintiff shall be enjoined from enforcing that judgment (see Reynolds Sec. v Underwriters Bank & Trust Co., 44 NY2d at 574; Woodward v Eighmie Moving & Stor., 151 AD2d at 893).

Defaults and legal (as opposed to factual) conclusions to be drawn by the Court.

CPLR 3215 Default Judgment
(a) Default and Entry
(b) Procedure before court

McGee v Dunn, 2010 NY Slip Op 06233 (App. Div., 2nd, 2010)

The defendant was personally served with the summons and verified complaint on July 23, 2008, and failed to answer the complaint, appear, or move with respect thereto within the 20-day statutory period (see CPLR 320[a]). In late August 2008 the plaintiff moved for leave to enter a judgment against the defendant upon his default in answering and for an inquest on the issue of damages. The defendant cross-moved to dismiss the complaint pursuant to CPLR 3211(a). The Supreme Court denied the plaintiff's motion and granted the defendant's motion to dismiss the complaint. We modify.

Although a defaulting defendant is deemed to have admitted all the allegations in the complaint, "the legal conclusions to be drawn from such proof are reserved for the Supreme Court's determination" (Venturella-Ferretti v Ferretti,AD3d, 2010 NY Slip Op 04777, *1 [2d Dept 2010]; see CPLR 3215[b]; Green v Dolphy Constr. Co., 187 AD2d 635, 636). There is no " mandatory ministerial duty'" to enter a default judgment against a defaulting party (Resnick v Lebovitz, 28 AD3d 533, 534, quoting Gagen v Kipany Prods., 289 AD2d 844, 846 [internal quotation marks omitted]). Instead, the court must determine whether the motion was supported with "enough facts to enable [the] court to determine that a viable cause of action exists" (Woodson v Mendon Leasing Corp., 100 NY2d 62, 71; see Cardo v Board of Mgrs., Jefferson Vil. Condo 3, 29 AD3d 930, 932; Beaton v Transit Facility Corp., 14 AD3d 637). "In determining whether the plaintiff has a viable cause of action, the court may consider the complaint, affidavits, and affirmations submitted by the plaintiff" (Litvinskiy v May Entertainment Group, Inc., 44 AD3d 627, [*2]627).

The Supreme Court properly denied the plaintiff's motion for leave to enter judgment upon the defendant's default in answering and for an assessment of damages, as the plaintiff's motion papers failed to set forth sufficient facts to enable the court to determine that there exists a viable cause of action to recover damages for either libel (see Rosenberg v MetLife, Inc., 8 NY3d 359, 365; Rufeh v Schwartz, 50 AD3d 1002, 1004) or malicious prosecution (see Baker v City of New York, 44 AD3d 977, 979; Paisley v Coin Device Corp., 5 AD3d 748, 749-750). However, the Supreme Court should not have granted the defendant's motion pursuant to CPLR 3211(a) to dismiss the complaint as it was not made prior to the time by which the defendant was required to serve an answer or notice of appearance (see CPLR 320[a]; 3211[e]). Furthermore, the defendant's motion failed to request an extension of time to answer or appear (see CPLR 2004). In addition, the defendant's motion to dismiss the complaint failed to set forth a reasonable excuse for the default, which, along with a showing of a potentially meritorious defense, is generally necessary to avoid the entry of a default judgment (see DeStaso v Bottiglieri, 52 AD3d 453, 454; Juseinoski v Board of Educ. of City of N.Y., 15 AD3d 353, 355-356).

Under such circumstances, the Supreme Court improvidently exercised its discretion in granting the defendant's untimely motion to dismiss the complaint, as it, in effect, excused the defendant's default in the absence of a request for such relief (see May v Hartsdale Manor Owners Corp., 73 AD3d 713; Zino v Joab Taxi, Inc., 20 AD3d 521, 522; see also Tirado v Miller,AD3d, 2010 NY Slip Op 04364 [2d Dept 2010]).

Compare Balance Chiropractic, P.C. v Property & Cas. Ins. Co. of Hartford, 27 Misc 3d 138(A) (App. Term, 2nd, 11th & 13th Jud. Dists. 2010).  Read more about it at JT.

Sum Certain. CPLR § 3215(a)(b)

CPLR § 3215 Default Judgment
(a) Default and Entry
(b) Procedure before court

Fidelity Natl. Tit. Ins. Co. v Valtech Research, Inc., 2010 NY Slip Op 03865 (App. Div., 2nd, 2010)

The Supreme Court erred in excusing the defendant's default in
appearing and answering, and in allowing it to serve an answer. The
defendant failed to sustain its burden of demonstrating that it had not
received the summons and complaint in time to defend itself so as to
entitle it to vacatur of its default under CPLR 317 (see Guayara v
First Rockaway Coast Corp.,
35 AD3d 659; cf. Taieb v Hilton
Hotels Corp.,
60 NY2d 725; Brockington v Brookfield Dev. Corp., 308
AD2d 498). The defendant also failed to establish a reasonable excuse
for that default. Thus, it was not entitled to vacatur under CPLR 5015 (see
Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co.,
67 NY2d 138, 141; Taylor
v Saal,
4 AD3d 467; Dominguez v Carioscia, 1 AD3d 396; Kaplinsky
v Mazor,
307 AD2d 916).

However, because the plaintiff is not seeking to recover a "sum
certain" within the meaning of CPLR 3215(a), its claim that the Clerk
had the authority to enter the judgment in its favor is without merit (see
Congregation Chaim Barucha v Friedman,
62 AD3d 933; Ayres Mem.
Animal Shelter, Inc. v Montgomery County Socy. for Prevention of Cruelty
of Animals,
17 AD3d 904, 905; Geer, Du Bois & Co. v Scott
& Sons Co.,
25 AD2d 423, 423-424; see also Reynolds Sec. [*2]v Underwriters Bank & Trust Co., 44
NY2d 568, 572). Accordingly, the matter must be remitted to the Supreme
Court, Nassau County for an inquest and the entry thereafter of an
appropriate judgment (see CPLR 3215[b]).

Interesting to Me (CPLR 3215; 4518; 3121; 602; 3018)

Of all the decisions that came out this past week, these are the ones that I read and though, "hey, that's interesting."

New S. Ins. Co. v Dobbins, 2010 NY Slip Op 01773 (App. Div., 2nd, 2010)

The Supreme Court properly, upon renewal and reargument, adhered to so much of its original determination as denied the plaintiff leave to enter judgment against the defendants James Dobbins, Jr., and Felita Dobbins, upon their default in answering the complaint. In support of its motion, the plaintiff offered the complaint, which was verified by plaintiff's counsel, and an affidavit of the plaintiff's investigator, neither of whom possessed personal knowledge of the facts constituting the claim (see CPLR 3215; Woodson v Mendon Leasing Corp., 100 NY2d 62, 70-71; Hosten v Oladapo, 44 AD3d 1006; Finnegan v Sheahan, 269 AD2d 491). The statements from the driver of the other vehicle that the plaintiff's investigator relied upon in his affidavit constituted inadmissible hearsay (see CPLR 4518[a]; Hochhauser v Electric Ins. Co., 46 AD3d 174, 179-183; Metropolitan Cas. Ins. Co. v Shaid, 23 Misc 3d 1140[A]). Accordingly, entry of a default judgment against these defendants was properly denied on the papers before the Supreme Court.

Ok, this one is a little older.  I accidentally put it with the others.  But since it's already here, I might as well keep it.

Tucker v Bay Shore Stor. Warehouse, Inc., 2010 NY Slip Op 00134 (App. Div., 2nd, 2010)

Contrary to the defendants' contentions, the Supreme Court did not improvidently exercise its discretion in denying that branch of their motion which was to compel the plaintiff to undergo a second independent medical examination. "The supervision of disclosure and the setting of reasonable terms and conditions therefor rests within the sound discretion of the trial court and, absent an improvident exercise of that discretion, its determination will not be disturbed" (Mattocks v White Motor Corp., 258 AD2d 628, 629 [internal quotation marks and citations omitted]; see Kaplan v Herbstein, 175 AD2d 200). While CPLR 3121 does not limit the number of examinations to which a party may be subjected, a party seeking a further examination must demonstrate the necessity for it (see Young v Kalow, 214 AD2d 559; see also Huggins v New York City Tr. Auth., 225 AD2d 732). Here, the defendants failed to show that a further physical examination of the plaintiff was required. While we strongly disapprove of the plaintiff's counsel instructing the plaintiff to refuse to respond to questions relating to her relevant past medical history, there was no indication by the defendants' examining physician that his prior examination was hindered, or that he required additional information.

Gladstein v Martorella, 2010 NY Slip Op 01732 (App. Div., 1st, 2010)

When parties set down their agreement in a clear, complete document, their writing should, as a rule, be enforced according to its terms. Evidence outside the four corners of the document as to what was really intended but unstated or misstated is generally inadmissible to add to or vary the writing. Extrinsic and parol evidence are not admissible to create an ambiguity in a written agreement which is complete, clear and unambiguous on its face (see W.W.W. Assoc. v Giancontieri, 77 NY2d 157, 162 [1990]).

The agreement herein is unambiguous on its face. Both sale and lease contracts may be utilized in meeting the 75% requirement. "The best evidence of what parties to a written agreement intend is what they say in their writing" (Greenfield v Philles Records, 98 NY2d 562, 569 [2002] [internal quotation marks and citation omitted]). If the parties intended to exclude lease contracts from consideration, they made a mistake in the agreement. "An omission or mistake in a contract does not constitute an ambiguity" (Reiss v Financial Performance Corp., 97 NY2d 195, 199 [2001] [internal quotation marks and citation omitted]).

Progressive Northeastern Ins. Co. v North State Autobahn, Inc., 2010 NY Slip Op 01779 (App. Div., 2nd, 2010)

The Supreme Court did not improvidently exercise its discretion in denying that branch of the defendants' motion which was, in the alternative, to direct that this action be tried jointly with an action entitled North State Autobahn v Progressive Insurance Group, pending in the Supreme Court, Westchester County, under Index No. 02761/07. Inasmuch as the two actions did not involve common questions of law or fact (see CPLR 602[a]), a joint trial was not warranted (see Beerman v Morhaim, 17 AD3d 302, 303).

At the close of the plaintiff's case, which arises out of the defendants' repair of a motor vehicle owned by the plaintiff's insured, the defendants moved for judgment as a matter of law on the ground that the plaintiff had failed to establish a prima facie case (see CPLR 4401). The Supreme Court granted the motion on a ground not argued by the defendants, namely, that the plaintiff's payment of the full amount of the final bill for the repair of the vehicle without asserting that the payment was, in some [*2]manner, "under protest," barred the plaintiff's claims under the doctrine of accord and satisfaction (see Merrill Lynch Realty/Carll Burr, Inc. v Skinner, 63 NY2d 590, 596; Uniform Commercial Code § 1-207). In granting the motion on that ground, the Supreme Court erred in two respects. First, accord and satisfaction is an affirmative defense which must be pleaded and proved (see CPLR 3018[b]; Conboy, McKay, Bachman & Kendall v Armstrong, 110 AD2d 1042; see also Arias-Paulino v Academy Bus Tours, Inc., 48 AD3d 350; Dec v Auburn Enlarged School Dist., 249 AD2d 907, 908). The defendants did not plead accord and satisfaction as an affirmative defense, and it was improper for the Supreme Court to raise it sua sponte (see Trustco Bank N.Y. v Cohn, 215 AD2d 840, 841; cf. Rienzi v Rienzi, 23 AD3d 450). Second, the doctrine of accord and satisfaction is not applicable because it contemplates full knowledge of the facts on the part of both parties who, in effect, enter into a new contract to expeditiously settle a contract dispute (see Horn Waterproofing Corp v Bushwick Iron & Steel Co., 66 NY2d 321, 325). In this action, inter alia, to recover damages for fraud, the gravamen of the plaintiff's claim is that it was without such knowledge because of the defendants' alleged misrepresentation of material facts. Thus, a new trial is warranted.

We note that, upon retrial, the plaintiff should not be limited to damages in the sum of $2,808.65, the amount of the allegedly fraudulent charges contained in the final bill of the defendant North State Autobahn, Inc., d/b/a North State Custom Auto, but rather to the amount sought in the complaint.

Another older one.

Simmons v New York City Health & Hosps.
Corp.
,
2010 NY Slip Op 01692 (App. Div., 1st, 2010)

The motion court, by declining to grant defendant's motion to dismiss the complaint and ordering discovery, limited to plaintiff's assertion of the insanity toll, necessarily rejected defendant's res judicata defense. Thus, the order at issue, at least to the extent that it denied defendant's motion to dismiss on grounds of res judicata is appealable insofar as it affects a substantial right (see Fellner v Morimoto, 52 AD3d 352, 353 [2008]; CPLR 5701[a][2][v]).

However, contrary to the lower court's implicit conclusion the instant action is in fact barred by res judicata. Plaintiff's prior action was against a doctor employed by defendant, arose from the same course of treatment alleged in the instant action, and was dismissed on statute of limitations grounds. While defendant was not a party to the prior action, as defendant doctor's employer, required to indemnify defendant doctor in the prior action, it was in privy with defendant doctor (Beuchel v Bain, 97 NY2d 295, 304-305 [2001], cert denied 535 US 1096 [2002]; Prospect Owners Corp. v Tudor Realty Servs., 260 AD3d 299 [1999]), the real party in interest in that action (Ebert v New York City Health and Hosp. Corp., 82 NY2d 863, 866-867 [1993]), and the abbreviated statute of limitations applicable to defendant was thus applied to him (see International Shared Servs. v County of Nassau, 222 AD2d 407, 408 [1995]; Urraro v Green, 106 AD2d 567 [1984]). Plaintiff cannot avoid res judicata by varying facts, changing his causes of action and omitting references to the previously named doctor (see Reilly v Reed, 45 NY2d 24, 28-30 [1978]; Marinelli v Assocs. v Helmsley Noyes Co., 265 AD2d 1 [2000]).

The bold, that I will eventually use, will be mine.

Collateral Estoppel & Law of the Case & CPLR § 3215(c)

Collateral Estoppel

Law of the Case

CPLR § 3215(c) Failure to take a default within a year

New York Cent. Mut. Fire Ins. Co. v Barry, 2009 NY Slip Op 05096 (App. Div., 2nd, 2009)

The facts of this case are set forth in prior appeals to this Court relating to this matter (see Barry v Hildreth, 9 AD3d 341; New York Cent. Mut. Fire Ins. Co. v Hildreth, 40 AD3d 602).

Contrary to the defendant's contention, the plaintiff
established its entitlement to judgment as a matter of law. The
plaintiff's claim for equitable subrogation was not barred by the
general release executed by the plaintiff's insured (see Fasso v Doerr, 12 NY3d 80, 88; Aetna Cas. & Sur. Co. v Bekins Van Lines Co., 67 NY2d 901, 902; Ocean Acc. & Guar. Corp. v Hooker Electrochemical Co., 240 NY 37; Group Health, Inc. v Mid-Hudson Cablevision, Inc., 58 AD3d 1029; New York Cent. Mut. Fire Ins. Co. v Hildreth, 40 AD3d 602; Travelers Prop. Cas. v Giorgio, 21 AD3d 1086; Lesnick & Mazarin v Cutler, 255 AD2d 367; Silinsky v State-Wide Ins. Co.,
30 AD2d 1, 3). Further, the plaintiff's claim was not barred by
collateral estoppel. The plaintiff's insured's apparent abandonment,
pursuant to CPLR 3215( c), of a counterclaim against the defendant for
contribution cannot be characterized as an adjudication on the merits
(see Sanders v Marino Falcone Brick Contr., 133 AD2d 342), precluding further litigation (see Bank of N.Y. v LS Monticello JV, 209 AD2d 464; see Peterson v Troy, 96 AD2d 856). In opposition, the defendant failed to raise a triable issue of fact.

Northbay Constr. Co., Inc. v Bauco Constr. Corp., 2009 NY Slip Op 05753 (App. Div., 2nd, 2009)

On a prior appeal by the defendants in both actions (hereinafter the defendants) (see Northbay Constr. Co., Inc. v Bauco Constr. Corp., 38 AD3d 737),
this Court reversed an interlocutory judgment in favor of the
plaintiffs in both actions (hereinafter the plaintiffs) directing an
accounting and imposing a constructive trust, and remitted the matter
to the Supreme Court, Westchester County, for a new trial, with costs
to abide the event. In response to this determination, the defendants
moved by order to show cause for summary judgment based, inter alia,
upon the decision and order of this Court and arguments that the
plaintiffs failed to submit sufficient evidence at the trial. Prior to
the commencement of the new trial, the plaintiffs cross-moved for
summary judgment, contending that the testimony of the defendant
Dominick Bauco at the first trial established their entitlement to
judgment as a matter of law.
[*2]

The Supreme Court, in the
order appealed from, awarded the plaintiffs partial summary judgment in
the sum of $27,345.50, based upon a concession by the defendants, but
otherwise denied the motion and cross motion on the ground, inter alia,
that the decision of this Court in Northbay Constr. Co., Inc. v Bauco Constr. Corp. (38 AD3d 737), constituted law of the case.

The doctrine of law of the case requires a court to follow the determinations of a court of coordinate jurisdiction (see Mosher-Simons v County of Alleghany, 99
NY2d 214, 219). Therefore this Court is not bound by prior orders of
the Supreme Court in this matter. However, this Court is bound by our
own prior decisions and orders in this case (see Aames Funding Corp. v Houston, 57 AD3d 808). Further, the Supreme Court was bound to follow the remittitur of this Court (see Matter of Davis, 56 AD3d 553; Sweeney, Cohn, Stahl & Vaccaro v Kane, 33 AD3d 785),
which directed a new trial. Upon remittitur, the parties submitted no
new information which would warrant a different determination
(see Stone v Bridgehampton Race Circuit, 244 AD2d 403).

Accordingly, the order must be affirmed insofar as appealed and cross-appealed from, and the parties should proceed to trial (see Northbay Constr. Co., Inc. v Bauco Constr. Corp., 38 AD3d 737).

The bold is mine.

CPLR Article 3: § 301; § 302; § 317 & Jurisdiction & CPLR § 3215(c)

CPLR § 301 Jurisdiction over persons, property or status

CPLR § 302 Personal jurisdiction by acts of non-domiciliaries
(a)(1)


CPLR § 317 Defense by person to whom summons not personally delivered

CPLR § 3215 Default judgment
(c)

Stevenson-Misischia v L'Isola D'Oro SRL, 2009 NY Slip Op 05687 (App. Div., 1st, 2009)

Contrary to plaintiff's claim, personal jurisdiction was not
obtained over defendant L'Isola D'Oro USA by service under Business
Corporation Law § 307. The record does not support a finding that
defendant Casamento was acting as a managing or general agent for this
New Jersey corporation at the time he was served, or that he was ever
authorized by appointment or by law to receive service on its behalf
(see Low v Bayerische Motoren Werke, AG, 88 AD2d 504 [1982]).

The action was also properly dismissed against the Italian
defendants, L'Isola D'Oro SRL and Sud Pesca SPA, for failure to show
they had any business connections with New York or transacted any
business here in any manner related to the allegedly tortious conduct
(CPLR 301, 302
; see Landoil Resources Corp. v Alexander & Alexander Servs., 77 NY2d 28 [1990]; McGowan v Smith, 52 NY2d 268 [1981]).

Cohen v Michelle Tenants Corp., 2009 NY Slip Op 05504 (App. Div., 2nd, 2009)

CPLR 317 permits a defendant who has been "served with a summons
other than by personal delivery" to defend the action upon a finding of
the court that the defendant "did not personally receive notice of the
summons in time to defend and has a meritorious defense" (CPLR 317; see Eugene Di Lorenzo, Inc. v A.C.Dutton Lbr. Co., 67 NY2d 138, 141; Taieb v Hilton Hotels Corp., 60 NY2d 725, 728; Reyes v DCH Mgt., Inc., 56 AD3d 644; Franklin v 172 Aububon Corp., 32 AD3d 454; Brockington v Brookfield Dev. Corp., 308
AD2d 498). The defendant, which was served by service of process upon
the Secretary of State, established that it did not receive personal
notice of the summons in time to defend
(see Calderon v 163 Ocean Tenants Corp., 27 AD3d 410, 410-411; Ford v 536 E. 5th St. Equities, 304
AD2d 615). Furthermore, there is no basis to conclude that the
defendant deliberately attempted to avoid notice of the action. There
was no evidence that the defendant was on notice that an old address
was on file with the Secretary of State
(see Tselikman v Marvin Ct, Inc., 33 AD3d 908, 909; Hon-Kuen Lo v Gong Park Realty Corp., 16 AD3d 553; Grosso v MTO Assoc. Ltd. Partnership., 12 AD3d 402). In addition, the defendant established the existence of a potentially meritorious defense (see Hawkins v Carter Community Hous. Dev. Fund [*2]Corp., 40 AD3d 812, 813; Joseph v Villages at Huntington Home Owners Assn., Inc., 39 AD3d 481, 482).

The Supreme Court properly denied that branch of the defendant's
motion which was pursuant to CPLR 3215(c) to dismiss the complaint. The
plaintiff actively took proceedings for the entry of judgment within
one year after the default and thereby complied with the statute
(see Bank of New York v Gray, 228 AD2d 399, 400; Q.P.I. Restaurants, Ltd. v Slevin, 93 AD2d 767, 768).

Zottola v AGI Group, Inc., 2009 NY Slip Op 05327 (App. Div., 2nd, 2009)

Due process requires that to exercise jurisdiction over a
nonresident defendant, the nonresident defendant must have "minimum
contacts" such that maintenance of the action does not offend
traditional notions of fair play and substantial justice
(see e.g. International Shoe Co. v Washington, 326
US 310). Due process is not offended "[s]o long as a party avails
itself of the benefits of the forum, has sufficient minimum contacts
with it, and should reasonably expect to defend its actions there . . .
even if not present' in that State. . . . New York's long-arm statute,
CPLR 302, was enacted in response to [inter alia that decision]" (Kruetter v McFadden Oil Corp., 71 NY2d 460, 466-467 [internal quotations and citations omitted]).

Under CPLR 302(a)(1), the provision at issue here, "a court may
exercise personal jurisdiction over any non-domiciliary, or his
executor or administrator, who in person or through an agent . . .
transacts any business within the state or contracts anywhere to supply
goods or services in the state"
(CPLR 302[a][1]). CPLR 302(a)(1) "is a
single act statute' and proof of one transaction in New York is
sufficient to invoke jurisdiction, even though the defendant never
enters New York, so long as the defendant's activities here were
purposeful and there is a substantial relationship between the
transaction and the claim asserted" (Kreutter v McFadden Oil Corp., 71 NY2d at 467; see Deutsche Bank Sec., Inc. v Montana Bd. of Invs., 7 NY3d 65, 71, cert denied 549
US 1095). Thus, to avail itself of this statute, a plaintiff must not
only establish that the defendant purposefully transacted business
within the State of New York, but must also show a substantial
relationship, which may pertain to a single act, between the
transaction and the claim asserted (see Deutsche Bank Sec., Inc. v Montana Bd. of Invs., 7 NY3d at 71, cert denied 549 US 1095; Kruetter v McFadden Oil Corp., 71 NY2d at 467).

To satisfy the "transacting business" requirement under CPLR
302(a)(1), a nonresident defendant must purposefully avail itself of
the privilege of conducting activities in New York, thus invoking the
benefits and protections of New York law (see McGowan v Smith, 52
NY2d 268, 271). The totality of the nonresident defendant's activities
within the forum state is considered in order to determine whether its
contacts satisfy the "transacting business" requirement
(see Longines-Wittnauer Watch Co. v Barnes & Reinecke, 15 NY2d 443, 457-458).

In response to AGI's assertions that it lacked the minimum
contacts, the plaintiff made a prima facie showing that there were
sufficient minimum contacts to permit New York to exercise in personam
jurisdiction over AGI. In his complaint, the plaintiff alleged first,
that "[both of] the defendants" (including AGI) agreed to deliver the
boat in New York. Second, he provided proof that the money for the
purchase of the boat was paid to AGI by wire transfer to a New York
bank branch, not a Florida bank. Third, according to the "Manufacture's
[sic] Statement of Origin," the boat in question was transferred on
March 14, 2005, to AGI, and on December 2, 2005, AGI transferred the
"Statement of Origin and boat" to the plaintiff at his New York
address. This was sufficient to show that AGI accomplished this
transaction in New York State, sufficiently availed itself of the
benefits of doing business in this State, and had a substantial
relationship with this State such that due process would not be
offended by subjecting it to this State's jurisdiction, and that it
thereby subjected itself to in personam jurisdiction under CPLR
302(a)(1)
. Thus, the motion by AGI pursuant to CPLR 3211(a)(8) to
dismiss the complaint insofar as asserted against it should have been
denied (see Bogal v Finger, 59 AD3d 653; Opticare Acquisition Corp. v Castillo, 25 AD3d 238, 243; People v Concert Connection, 211 AD2d 310, 315; cf. Farkas v Farkas, 36 AD3d 852; Kimco Exch. Place Corp. v Thomas Benz, Inc., 34 AD3d 433).

The bold is mine.