Confession of Judgment CPLR § 3218(a)(2)

CPLR § 3218 Judgment by
(a) Affidavit of defendant
(2) if the judgment to be confessed is for money due or to become due, stating concisely the facts out of which the debt arose and showing that the sum confessed is justly due or to become due

Cole-Hatchard v Nicholson, 2010 NY Slip Op 04131 (App. Div., 2nd, 2010)

Contrary to the plaintiffs' contention, the Receiver had standing to
seek vacatur of the judgment by confession on the ground that the
affidavit of confession of judgment does not [*2]comply
with CPLR 3218(a)(2)
(see County Nat'l Bank v Vogt, 28 AD2d 793,
794, affd 21 NY2d 800; In re Horowitz, 98 NYS2d 881, 882,
affd 277 App Div 1130; 7-3218 New York Civil Practice: CPLR P
3218.00; see generally Eberhard v Marcu, 530 F3d 122, 133; Scholes
v Lehmann,
56 F3d 750, 755, cert denied sub nom. African
Enterprise, Inc. v Scholes,
516 US 1028; SEC v Shiv, 379 F
Supp 2d 609; cf. Burtner v Burtner, 144 AD2d 417, 418; Magalhaes
v Magalhaes,
254 App Div 880, 881), and the Receiver was not
required to commence a plenary action to the extent he sought to vacate
the judgment by confession on that ground (see County Natl. Bank v
28 AD2d 793, affd 21 NY2d 800; Mall Commercial Corp.
v Chrisa Rest.,
85 Misc 2d 613, 614; cf. Engster v Passonno, 202
AD2d 769, 769; Affenita v Long Indus., 133 AD2d 727, 728; Bufkor,
Inc. v Wasson & Fried,
33 AD2d 636, 637).

Also contrary to the plaintiffs' contention, the affidavit of
confession of judgment, which failed, inter alia, to set forth any facts
explaining why Nicholson was indebted to the plaintiffs with respect to
the money they invested with him, or why such debt was justly due, does
not comply with CPLR 3218(a)(2)
(see Franco v Zeltser, 111 AD2d
367, 368; County Nat'l Bank v Vogt, 28 AD2d at 793; Wood v
117 NY 439, 441; cf. Harrison v Gibbons, 71 NY 58,
60; Perkins Davis Group, Inc. v Chelsea 82973, LLC, 24
AD3d 645
, 645; Eurofactors Intl., Inc. v Jacobowitz, 21 AD3d 443,
445; ILMS Realty Assn. v Madden, 174 AD2d 603, 603; Princeton
Bank & Trust Co. v Berley,
57 AD2d 348, 352-354). In that
regard, given that the affidavit of confession of judgment does not
simply contain some minor error of fact, but rather, is wholly
insufficient under CPLR 3218(a)(2),
the Supreme Court providently
exercised its discretion in declining to amend the judgment by
confession as an alternative to granting the Receiver's motion to vacate
it (see Baehre v Rochester Dental Prosthetics, 112 Misc 2d 270,
276; cf. Princeton Bank & Trust Co. v Berley, 57 AD2d at

The bold is mine.

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.
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.

CPLR § 3218(b) Judgment by confession not filed within 3 years

CPLR § 3218 Judgment by confession

Shasho v Pruco Life Ins. Co. of N.J., 2009 NY Slip Op 08000 (App. Div., 2nd, 2009)

The plaintiff seeks a preliminary injunction based, in part, on her
contention that the confession of judgment was obtained in connection
with a usurious promissory note. "No law regulating the maximum rate of
interest which may be charged, taken or received shall apply to any
loan or forebearance in the amount of two million five hundred thousand
dollars or more" (General Obligations Law § 5-501[6][b]). Thus, the
plaintiff failed to establish a likelihood of success on her claim that
a promissory note that she and her late husband executed in favor of
the defendant, and upon which the confession of judgment was
predicated, is usurious, as the face of the note provides that the
amount owed was $3,500,000 (see General Obligations Law 5-501[6][b]; Tides Edge Corp. v Central Fed. Sav., 151 AD2d 741; see also Ujueta v Euro-Quest Corp., 29 AD3d 895; Hochman v LaRea, 14
AD3d 653, 654). Moreover, the confession of judgment was signed and
notarized on December 31, 2005, and, thus, at the time that the Supreme
Court determined that branch of plaintiff's motion which was for a
preliminary injunction, the three-year period for filing the confession
of judgment (see CPLR 3218[b]) had yet to lapse. Consequently,
the Supreme Court properly denied that branch of the plaintiff's motion
which was for a preliminary injunction enjoining the defendant from
entering, filing, and enforcing the confession of judgment. Further,
the Supreme Court properly permitted the release of the proceeds from
certain life insurance policies to the defendant.

Nonetheless, the defendant failed to file the confession of
judgment by December 31, 2008, and thus failed to file it within three
years after the plaintiff's affidavit of confession was executed.
Accordingly, the confession of judgment became void after that date
(see CPLR 3218[b]; Ray v Ray, 61
AD3d 442, 443). Thus, in the order dated March 12, 2009, the Supreme
Court erred in granting that branch of the defendant's application
which was, in effect, to permit him to enter, file, and enforce the
confession of judgment.

The bold is mine

New York County Clerk told to take it and like it.

Well, just to take it.  He doesn't really have to like it.  But he might.  He just needs to try it.

22 NYCRR § 104.1 Application
The term court records
shall include all documents and records that are part of the court file
of each case and all books, papers, calendars, statistical schedules
and reports and other records pertaining to the management of court

CPLR § 3218 Judgment by confession
Entry of judgment

CPLR R. 2101 Form of papers
(e) Copies

CPLR R. 2102 Filing of papers

Except where otherwise prescribed by law or order of court, papers
required to be filed shall be filed with the clerk of the court in
which the action is triable. In an action or proceeding in supreme or
county court and in a proceeding not brought in a court, papers
required to be filed shall be filed with the clerk of the county in
which the proceeding is brought.

A paper filed in accordance with the rules of the chief administrator
or any local rule or practice established by the court shall be deemed
filed. Where such rules or practice allow for the filing of a paper
other than at the office of the clerk of the court, such paper shall be
transmitted to the clerk of the court.

A clerk shall not refuse to accept for filing any paper presented for
that purpose except where specifically directed to do so by statute or
rules promulgated by the chief administrator of the courts, or order of
the court.

Gehring v Goodman, 2009 NY Slip Op 29351 (Supreme Court, New York County, 2009)

This is an article 78 proceeding. The only specific relief that
petitioner seeks is an "order" directing respondent Norman Goodman,
County Clerk of the County of New York (respondent), along with his
agents and representatives, to accept for filing copies of affidavits
that petitioner wants to file pursuant to CPLR 3218 (b)
. Respondents
have not submitted any papers in opposition.

Petitioner submitted to respondent a copy of an affidavit by a
defendant confessing judgment. According to petitioner, respondent, in
interpreting CPLR 3218 (b), took the position that because the statute
says "the affidavit", that means the original affidavit must be filed,
and thus he would not accept a copy thereof for filing.
brought this challenge on August 18, 2009 by order to show cause on an
emergency basis because the three year deadline to file the affidavit
would have expired two days after the proposed order to show cause was
submitted to this court. The court signed the order to show cause and
made it returnable the following day.

CPLR 3218 (b) provides in part:

At any time within three years after the affidavit is executed,
it may be filed with the clerk of the county where the defendant stated
in his affidavit that he resided when it was executed or, if the
defendant was then a non-resident, with the clerk of the county
designated in the affidavit. Thereupon the clerk shall enter a judgment
in the supreme court for the sum confessed. He shall tax costs to the
amount of fifteen dollars, besides disbursements taxable in an action.
The judgment may be docketed and enforced in the same manner and with
the same effect as a judgment in an action in the supreme court.

CPLR 2101 (e) states in pertinent part:

Except where otherwise
specifically prescribed, copies, rather than originals, of all papers,
including orders, affidavits and exhibits may be served or filed.

CPLR 2102 (c) provides:

A clerk shall not refuse to accept for filing any paper
presented for that purpose except where specifically directed to do so
by statute or rules promulgated by the chief administrator of the
courts, or order of the court.

Petitioner presented the affidavit to respondent for the
purpose of filing the paper in order to make it part of the court
record, as defined by 22 NYCRR 104.1 (b), and thus obtain a judgment by
confession pursuant to CPLR 3218 (b). Contrary to respondent's position
as stated by petitioner, CPLR 3218 (b) does not specify that only the
original of the affidavit must be accepted for filing and does not
proscribe the filing of a copy of the affidavit. The purpose of CPLR
3218 (b) is to afford a party the discretion to file the affidavit if
desired. CPLR 2101 (e) allows the filing of copies of affidavits (see Lynch v Betts, 12 Misc 3d 295
[Sup Ct, Yates County 2006]), which filing under CPLR 3218 (b) is not otherwise specifically prescribed.

There is neither a statute nor rule of the chief administrator
of the courts that directs respondent to refuse to accept for filing a
copy of an affidavit under CPLR 3218 (b), nor has respondent shown that
there is any court order that so directs him. Professor Alexander
comments that the purpose of CPLR 2102 (c) is to strip clerks of any
authority to reject papers offered for filing unless the refusal is
directed by law, rule, or court order
(Alexander, Supp Practice
Commentaries, McKinney's Cons Laws of NY, Book 7B, Civil Practice Law
and Rules 2102, 2009 Pocket Part, at 283).

Therefore, pursuant to this court's August 20, 2009 decision,
judgment, and order, this court has directed respondent, and his agents
and representatives, to accept for filing copies of the affidavits
pursuant to CPLR 3218 (b). That is all of the specific relief requested
by petitioner. This court is not directing respondent as to how he
should act in fulfilling his duties after he accepts the affidavits for

The bold is mine.

The county clerk offered no opposition.  Why?  Well, anyone who has tried to file something in any of New York's courts has run across clerks who refuse to accept documents for a variety of reasons.  Some are legitimate and others are directly related to how early the clerk woke up in the morning.  You get the idea.  So why no response?  Because the County Clerk felt that the affidavits should be accepted (or didn't care one way or the other), and probably decided that the easiest way to deal with issue would be to leave it up to the Court.  This way, they wouldn't have to deal with any internal discord on the issue.  If a judge tells them to do it, they have to do it.