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.

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

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

CPLR § 3215 Default judgment

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
. 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.

CPLR § 3215 Default judgment

(f) Proof

CPLR R 306 Proof of service

(a) Generally

Jian Zheng v Evans, 2009 NY Slip Op 04863 (App. Div., 2nd, 2009)

In opposition, the plaintiffs failed to raise a triable issue of
fact. The plaintiffs produced only an attorney's affirmation offering
speculation, unsupported by any evidence, that the defendants acted in
bad faith and failed to abide by the terms of the contract of sale (see Cordova v Vinueza,
20 AD3d 445). Moreover, the plaintiffs' contention that the granting of
summary judgment was premature is without merit. The plaintiffs failed
to "show more than a mere hope that [they] might be able to uncover
some evidence during the discovery process," nor did they show that
their "ignorance was unavoidable and that reasonable attempts were made
to discover the facts which would give rise to a triable issue of fact"
(Companion Life Ins. Co. of N.Y. v All State Abstract Corp., 35 AD3d 519, 521).

The Supreme Court also properly
granted that branch of the defendants' motion which was for leave to
enter a default judgment on their counterclaim for the return of their
down payment upon the plaintiffs' failure to serve a reply to the
counterclaim. The defendants submitted proof of service of their
verified answer and counterclaim, proof of the facts constituting the
counterclaim, and an affirmation from their attorney regarding the
plaintiffs' default in serving a reply (see CPLR 3215[f]). In
opposition, the plaintiffs failed to demonstrate that they served a
reply on the defendants. Although they annexed a reply to their
attorney's affirmation, it was not signed and they did not provide
sufficient evidence of service (see CPLR 306[a], [d]; Celleri v Pabon, 299 AD2d 385, 385-86; cf. Dixon v Motor Veh Acc. Indem. Corp.,
224 AD2d 382, 383-384). Moreover, the plaintiffs did not provide a
reasonable excuse for their failure to timely serve a reply, and a
potentially meritorious defense (see ACME ANC Corp. v Read, 55 AD3d 854, 855; Twersky v Kasaks, 24 AD3d 657, 658; cf. MMG Design, Inc. v Melnick, 35 AD3d 823).

The bold is mine.

CPLR § 3215(f)

CPLR § 3215 Default judgment

Lamb v Moody, 2009 NY Slip Op 04031 (App. DIv., 2nd, 2009)

In support of their motion for leave to enter a default
judgment against the respondent upon his failure to appear or to answer
the complaint, the plaintiffs failed to proffer either an affidavit of
the facts or a complaint verified by a party with personal knowledge of
the facts as required by CPLR 3215(f)
(see Peniston v Epstein, 10 AD3d 450; DeVivo v Sparago, 287 AD2d 535, 536; Fiorino v Yung Poon Yung, 281 AD2d 513). Accordingly, the Supreme Court properly denied the motion.

The bold is mine.

CPLR § 3215; CPLR § 3012; CPLR § 308

CPLR § 3215 Default judgment

CPLR § 3012 Service of pleadings and demand for complaint

(d) Extension of time to appear or plead

CPLR § 308 Personal service upon a natural person

CPLR § 308(4)

Zareef v Wong, 2009 NY Slip Op 02990 (App. Div., 2nd, 2009)

In an action to recover damages for personal injuries, the plaintiff
appeals from an order of the Supreme Court, Queens County (Taylor, J.),
dated August 4, 2008, which denied her motion pursuant to CPLR 3215 for
leave to enter judgment against the defendants upon their default in
appearing or answering, and granted the defendants' cross motion
pursuant to CPLR 3012(d) to compel the plaintiff to accept their

ORDERED that the order is affirmed, with costs.

The plaintiff served the defendants pursuant to CPLR 308(4) by
affixing copies of the summonses and complaints to the address of the
defendants' "actual place of business, dwelling place, or usual place
of abode" on November 12, 2007, and by mailing copies to the same
address on November 13, 2007. The proofs of service were filed on
December 20, 2007, well beyond the 20-day filing period required by
CPLR 308(4). In opposition to the plaintiff's motion pursuant to CPLR
3215 for leave to enter judgment against the defendants upon their
default in appearing or answering, the defendants served an answer on
March 4, 2008, and cross-moved to compel the plaintiff to accept their
The Supreme Court denied the plaintiff's motion and granted the
defendants' cross motion.

While the failure to file a timely proof of service is a
curable procedural irregularity, here, the plaintiff did not obtain an
order permitting a late filing of proof of service (see Bank of New [*2]York v Schwab, 97 AD2d 450). Accordingly, the late filings were nullities and the defendants' time to answer never began to run
(see Bank of New York v Schwab, 97 AD2d 450; Marazita v Nelbach, 91
AD2d 604). Since the defendants never defaulted, the plaintiff's motion
pursuant to CPLR 3215 for leave to enter judgment against them was
properly denied (see Hausknecht v Ackerman, 242 AD2d 604, 606; Paracha v County of Nassau, 228 AD2d 422; Rosato v Ricciardi, 174
AD2d 937). Moreover, the defendants' cross motion pursuant to CPLR
3012(d) to compel the plaintiff to accept their answer was properly

  The bold is mine.

CPLR § 3215

CPLR § 3215 Default judgment

Lancer Ins. Co. v Whitfield, 2009 NY Slip Op 02975 (App. Div., 2nd, 2009)

The Whitfield defendants did not interpose an answer in the instant
action, and by order of the Supreme Court, Nassau County (Feinman, J.),
dated November 5, 2007, the court granted that branch of a prior motion
of the plaintiff which was pursuant to CPLR 3215 for a default judgment
against them. By defaulting, the Whitfield defendants admitted the
allegations in the instant complaint and all reasonable inferences
therefrom, to wit, that the driver had borrowed the subject vehicle "to
visit friends in North Babylon, and was on his way home when the
accident occurred" and that at the time of the accident, he "was not
operating the [subject vehicle] in furtherance of the garage business"
(see Woodson v Mendon Leasing Corp., 100 NY2d 62, 71; Matter of Gupta, 38 AD3d 445, 446; Lamm v Stevenson, 276 AD2d 531; Fleet Bank v Powerhouse Trading Corp., 267 AD2d 276, 277; see also Hermitage Ins. Co. v Trance Nite Club, Inc., 40 AD3d 1032; Silberstein v Presbyterian Hosp. in City of N.Y., 96
AD2d 1096). Based on the foregoing, the plaintiff established, prima
facie, that the accident was not covered by the subject policy which
requires it to pay damages for bodily injury caused by an accident and
resulting from "garage operations" involving the ownership, maintenance
or use of a covered auto (see Singh v Allcity Ins. Co., 1 AD3d 501; Empire Group Allcity Ins. Co. v Cicciaro, 240 AD2d 362, 363; Dumblewski v ITT Hartford Ins. Group, 213 AD2d 823).

Since the plaintiff, as movant, demonstrated its prima facie
entitlement to summary judgment, the burden shifted to the respondents,
as opponents of the motion, to provide evidence, in proper admissible
form, sufficient to raise a triable issue of fact (see generally Alvarez v Prospect Hosp., 68 NY2d 320, 324; Zuckerman v City of New York, 49
NY2d 557, 562). The respondents failed to meet their burden since their
opposing papers consisted solely of the affirmation of counsel in which
hearsay statements of the Whitfield defendants were proffered to defeat
the motion (see Zuckerman v City of New York, 49 NY2d 557, 562; Collins v Laro Serv. Sys. of N.Y., Inc., 36 AD3d 746, 746-747; Salzano v Korba, 296 AD2d 393, 395; Heifets v Lefkowitz, 271 AD2d 490, 491; cf. Municipal Testing Lab., Inc. v Brom, 38 AD3d 862; Mazzola v City of New York, 32 AD3d 906; Orelli v Showbiz Pizza Time, 302 AD2d 440, 441; Ritts v Teslenko, 276 AD2d 768, 769; Dan's Supreme Supermarkets v Redmont Realty Co., 261 AD2d 353, 354; Lukin v Bruce, 256 AD2d 388, 389; Gomes v Courtesy Bus Co., 251 AD2d 625, 626).

The bold is mine.