CPLR R. 2215

Settlement and Cross-motion timing

Zisholtz & Zisholtz, LLP v Mandel, 2018 NY Slip Op 07349 [2d Dept. 2018]

Contrary to the plaintiff’s contention, it failed to submit any evidence that the purported open court settlement agreement of January 28, 2016, constituted a valid and binding settlement agreement pursuant to CPLR 2104 (see Diarassouba v Urban, 71 AD3d 51, 54; Maldonado v Novartis Pharms. Corp., 40 AD3d 940). Rather, the plaintiff submitted only the January 29 stipulation, which was not executed by the plaintiff. Therefore, the January 29 stipulation did not constitute an enforceable settlement agreement binding upon the plaintiff and the appellant (see CPLR 2104). In the absence of an enforceable settlement agreement, the Supreme Court should have denied the plaintiff’s motion.

We also disagree with the Supreme Court’s determination denying the cross motion as untimely. The plaintiff served its motion by regular mail on March 17, 2016, with a return date of April 6, 2016. In order to make effective its demand for seven days’ notice of answering papers or a cross motion (see CPLR 2214[b]; CPLR 2215), the plaintiff was required to have mailed its motion papers at least 21 days prior to the return date (see CPLR 2103[b][2]; CPLR 2214[b]; Matter of Hartford Fire Ins. Co. v Fell, 53 AD3d 760, 761-762). The plaintiff mailed its motion papers only 20 days before the return date. Thus, the cross motion, which was served six days before the return date, was timely (see CPLR 2215).

Demetriou v Wolfer, 2018 NY Slip Op 07288 [2d Dept. 2018]

In July 2012, the plaintiff commenced this action to recover damages for dental malpractice. On Friday, October 30, 2015, the plaintiff, by text message, directed her former attorney to discontinue the action. On that date, the former attorney and defense counsel executed a stipulation of discontinuance (see CPLR 3217[a][2]). On Saturday, October 31, 2015, the plaintiff, by text message, directed her former attorney to, among other things, “not dismiss my case under any circumstances; please retract . . . instructions to discontinue.” Within 30 minutes of receiving that message, the plaintiff’s former counsel advised the plaintiff that the case had already been discontinued. The stipulation of discontinuance was then filed on Monday, November 2, 2015. The plaintiff moved, inter alia, to vacate the stipulation of discontinuance. The Supreme Court denied the motion, and the plaintiff appeals.

We agree with the Supreme Court’s determination to deny the plaintiff’s motion, inter alia, to vacate the stipulation of discontinuance. CPLR 2104 provides that, “[a]n agreement between parties or their attorneys relating to any matter in an action, other than one between counsel in open court, is not binding upon a party unless it is in a writing subscribed by him or his attorney or reduced to the form of an order and entered.” Here, there is no dispute that on October 30, 2015, the plaintiff’s former counsel had actual authority from his client to enter into the stipulation discontinuing the action on her behalf (see Hallock v State of New York, 64 NY2d 224, 230; Weil, Gotshal & Manges LLP v Fashion Boutique of Short Hills, 56 AD3d 334, 335). Contrary to the plaintiff’s contention, the stipulation of discontinuance clearly evidenced the plaintiff’s intent to discontinue the action as of October 30, 2015, notwithstanding that she changed her mind prior to the filing of the stipulation on November 2, 2015 (see Lim v Choices, Inc., 60 AD3d 739, 740). Pursuant to CPLR 2104, the stipulation must be regarded as a valid, binding contract (see Pile v Grant, 41 AD3d 810), even though it did not effect a discontinuance until it was filed with the clerk of the court on November 2, 2015 (CPLR 3217[a][2]). In seeking to vacate the stipulation, the plaintiff failed to meet her burden to establish good cause sufficient to invalidate a contract, such as that the stipulation was the result of duress, fraud, mistake, or overreaching, or that the terms of the stipulation were unconscionable (see Chae Shin Oh v Jeannot, 160 AD3d 701; Pieter v Polin, 148 AD3d 1191).

The bold is mine.

CPLR 503(a)

Fensterman v Joseph, 2018 NY Slip Op 04532 [2d Dept 2018]

It is undisputed that, pursuant to CPLR 503(a), venue of the Ulster County Action is properly in Ulster County, where Bacci, one of the Ulster plaintiffs, resided at the time the action was commenced (see O'Brien v Vassar Bros. Hosp., 207 AD2d 169, 171). A motion to change venue on discretionary grounds, unlike motions made as of right, must be made in the county in which the action is pending, or in any county in that judicial district, or in any adjoining county (see CPLR 2212[a]; Minenko v Swinging Bridge Camp Grounds of N.Y., Inc., 155 AD3d 1413; Schwartz v Yellowbook, Inc., 118 AD3d 691, 692; Rubens v Fund, 23 AD3d 636, 637). The Fenstermen parties, therefore, were required to make a motion pursuant to CPLR 510(3) either in Ulster County, where the Ulster County Action was pending, in another county in the 3rd Judicial District, or in a county contiguous to Ulster County (see CPLR 2212[a]; Minenko v Swinging Bridge Camp Grounds of N.Y., Inc., 155 AD3d 1413; Schwartz v Yellowbook, Inc., 118 AD3d at 692; Rubens v Fund, 23 AD3d at 637). Since Ulster County and Nassau County are not contiguous, and Nassau County is not in the 3rd Judicial District, the Fensterman parties' motion to change venue pursuant to CPLR 510(3) based on discretionary grounds was improperly made in the Supreme Court, Nassau County (see Minenko v Swinging Bridge Camp Grounds of N.Y., Inc., 155 AD3d 1413; Schwartz v Yellowbook, Inc., 118 AD3d at 692; Rubens v Fund, 23 AD3d at 637-638). Although not argued by the parties in the Supreme Court, Nassau County, but argued on appeal, we reach this issue in the exercise of our discretion because it appears on the face of the record and could not have been avoided or explained if raised in the Supreme Court (see Rubens v Fund, 23 AD3d at 638; see also Coscia v Jamal, 156 AD3d 861).

The parties' remaining contentions need not be reached in light of our determination.

Accordingly, the Supreme Court, Nassau County, should have denied the plaintiffs' motion pursuant to CPLR 510(3) to change venue of the Ulster County Action to Nassau County for the convenience of witnesses, with leave to renew in the Supreme Court, Ulster County.

Bold is mine.

Patiwana v Shah, 2018 NY Slip Op 04746 [2d Dept. 2018]

CPLR 503(a) provides, in pertinent part, "except where otherwise prescribed by law, the place of trial shall be in the county in which one of the parties resided when it was commenced." Here, since the plaintiff and the defendants, the only parties to this derivative action (see Niles v New York Cent. & Hudson Riv. R. R. Co., 176 NY 119, 124; Flynn v Brooklyn City R. R. Co., 158 NY 493, 508; Jones v Van Heusen Charles Co., 230 App Div 694, 697; cf. Jacobs v Cartalemi, 156 AD3d 605; Barbaro v Spinelli, 121 AD3d 727, 728), were residents of Nassau County when it was commenced, venue was improperly placed in Queens County. Contrary to the plaintiff's contention, the fact that two of the corporations and the LLC are located in Queens County did not make Queens County a proper venue to commence this action, since those entities are not parties to the action.

Furthermore, venue could not have been properly placed in Queens County pursuant to CPLR 507. While CPLR 507 mandates that venue of an action which seeks a judgment that will "affect the title to, or the possession, use or enjoyment of, real property" shall be placed in the county where the property is located (see Clark v Clark, 93 AD3d 812, 816), here, the action seeks, inter alia, a determination of the plaintiff's membership interest in the LLC (see Fish v Davis, 146 AD3d 485, 486; Rubinstein v Bullard, 285 AD2d 366, 367; Suddin v Lynbrook Gardens Co., 127 Misc 2d 406, 409 [Sup Ct, Special Term, NY County]). In opposition to the motion, the plaintiff failed to demonstrate that the relief he is seeking will affect real property in Queens County.

The plaintiff failed to move by notice of cross motion to retain venue in Queens County pursuant to CPLR 510(3), and we decline to review the plaintiff's informal request in the exercise of discretion (see CPLR 2215; Fried v Jacob Holding, Inc., 110 AD3d 56, 64, 65).

No cross-motion, no problem

Silvering v Sunrise Family Med., P.C., 2018 NY Slip Op 03556 [2d Dept. 2018]

To the extent the Supreme Court concluded that it lacked discretion to consider the plaintiffs' application pursuant to CPLR 306-b to extend their time to serve the defendant, which was not presented in a proper cross motion pursuant to CPLR 2215, we disagree. Although "a party seeking relief in connection with another party's motion is, as a general rule, required to do so by way of a cross motion," courts "retain discretion to entertain requests for affirmative relief that do not meet the requirements of CPLR 2215" (Fried v Jacob Holding, Inc., 110 AD3d 56, 64-65; see Smulczeski v Smulczeski, 128 AD3d 671, 672).

Cross motions and SJ

CPLR R. 2215 Relief Demanded by other than moving party

CPLR § 2001 Mistakes, omissions, defects, and irregularities

Daramboukas v Samlidis, 2011 NY Slip Op 03796 (App. Div., 2nd 2011)

Furthermore, the Supreme Court erred in denying Osdoby's motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against her on the ground that it was incorrectly labeled a cross motion. Although "[a] cross motion is an improper vehicle for seeking affirmative relief from a nonmoving party" (Mango v Long Is. Jewish-Hillside Med. Ctr., 123 AD2d 843, 844; see CPLR 2215; Kleeberg v City of New York, 305 AD2d 549, 550), a technical defect of this nature may be disregarded where, as here, there is no prejudice, and the opposing parties had ample opportunity to be heard on the merits of the relief sought (see CPLR 2001; Sheehan v Marshall, 9 AD3d 403, 404; Kleeberg v City of New York, 305 AD2d at 550; Volpe v Canfield, 237 AD2d 282, 283). While the Supreme Court also denied Osdoby's motion on the ground that it was not supported by pleadings and other available proof, Osdoby incorporated by reference the pleadings and exhibits submitted by Albert in support of his original motion, and those pleadings and exhibits were therefore properly before the court (see Carlson v Town of Mina, 31 AD3d 1176, 1177; Welch v Hauck, 18 AD3d 1096, 1098; Mahone v Washington, 17 AD3d 1059). On the merits, Osdoby made a prima facie showing, through her deposition testimony, that she could not be held liable for the plaintiffs' injuries. That testimony demonstrated that she was driving in a nonnegligent manner when her vehicle was struck in the rear by the white van driven by Manginaro, and that her vehicle did not come into contact with any of the vehicles involved in the second collision about 20 car lengths east of the location where she was struck (see Vehicle and Traffic Law § 1129[a]; Savarese v Cerrachio, 79 AD3d 725). In opposition, the plaintiffs, Manginaro, and Langaman failed to raise a triable issue of fact.

The Supreme Court similarly erred in denying the Tam defendants' motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against them on the ground that it was incorrectly labeled a cross motion (see CPLR 2001; Sheehan v Marshall, 9 AD3d at 404; Kleeberg v City of New York, 305 AD2d at 550; Volpe v Canfield, 237 AD2d at 283). On the merits, the Tam defendants made a prima facie showing that Daniel Tam was lawfully stopped at a red light when his vehicle was struck in the rear, and that he had a nonnegligent explanation for coming into contact with other vehicles at the scene after his vehicle was struck in the rear (see Savarese v Cerrachio, 79 AD3d 725; Franco v Breceus, 70 AD3d at 769; Ortiz v Haidar, 68 AD3d 953; Malak v Wynder, 56 AD3d at 623; Katz v Masada II Car & Limo Serv., Inc., 43 AD3d at 877). In opposition, the plaintiffs, Manginaro, and Langaman failed to raise a triable issue of fact.

Fine v One Bryant Park, LLC, 2011 NY Slip Op 03659 (App. Div., 1st 2011)

It is undisputed that defendants failed to file the motion within the time period set by the assigned IAS judge. The motion court concluded that defendants failed to establish good cause for the delay in making the motion (see CPLR 3212[a]; Brill v City of New York, 2 NY3d 648, 652 [2004]). A motion court's exercise of its broad discretion in determining whether the moving party has established good cause for delay will not be overturned unless it was improvident (see Daley v M/S Capital NY LLC, 44 AD3d 313, 315 [2007]; Pena v Women's Outreach Network, Inc., 35 AD3d 104, 108 [2006]). Inasmuch as the record establishes that defendants could have easily determined which judge was assigned to the matter (see Giudice v Green 292 Madison, LLC, 50 AD3d 506 [2008]), the court's exercise of its discretion was not improvident.

Homeland Ins. Co. of N.Y. v National Grange Mut. Ins. Co., 2011 NY Slip Op 03805 (App. Div., 2nd 2011)

The Supreme Court improvidently exercised its discretion in denying, as untimely, National Grange's cross motion for summary judgment. While the cross motion was made more than 120 days after the note of issue was filed and, therefore, was untimely (see Brill v City of New York, 2 NY3d 648), "an untimely motion or cross motion for summary judgment may be considered by the court where, as here, a timely motion for summary judgment was made on nearly identical grounds" (Grande v Peteroy, 39 AD3d 590, 591-592; see Whitehead v City of New York, 79 AD3d 858, 860; Lennard v Khan, 69 AD3d 812, 814; Bressingham v Jamaica Hosp. Med. Ctr., 17 AD3d 496, 497). In such circumstances, the issues raised by the untimely cross motion are already properly before the motion court and, thus, the nearly identical nature of the grounds may provide the requisite good cause (see CPLR 3212[a]) to review the merits of the untimely cross motion (see Grande v Peteroy, 39 AD3d at 592). Notably, a court, in deciding the timely motion, may search the record and award summary judgment to a nonmoving party (see CPLR 3212[b]).

Lyebyedyev v Hoffman, 2011 NY Slip Op 03813 (App. Div., 2nd 2011)

Pursuant to the Uniform Civil Term Rules of the Supreme Court, Kings County, the defendant was required to make his motion for summary judgment no later than 60 days after the filing of the note of issue, unless he obtained leave of the court on good cause shown (see Kings County Supreme Court Uniform Civil Term Rules, Part C[6], formerly Rule 13). Here, the defendant moved for summary judgment approximately 90 days after the note of issue was filed. Since the vague and conclusory assertions made by the defendant's attorney regarding the pendency of a motion to strike the note of issue and a delay in the defendant's signing and notarizing of his own deposition transcript were insufficient to constitute good cause, the Supreme Court erred in entertaining the summary judgment motion (see Miceli v State Farm Mut. Auto Ins. Co., 3 NY3d 725; Brill v City of New York, 2 NY3d 648; Cohen-Putnam Agency, Ltd. v Hudson Bldg. Maintenance, Inc., 55 AD3d 653; State Farm Fire & Casualty v Parking Sys. Valet Serv., 48 AD3d 550; Simpson v Tommy Hilfiger U.S.A., Inc., 48 AD3d 389, 392; Pierre v Feldman, 41 AD3d 454, 455).

CPLR R. 2215 and R. 5015

CPLR R. 2215 Relief Demanded by other than moving party

At least three days prior to the time at which the motion is noticed to be heard, or seven days prior to such time if demand is properly made pursuant to subdivision (b) of rule 2214, a party may serve upon the moving party a notice of cross-motion demanding relief, with or without supporting papers; provided, however, that:

(a) if such notice and any supporting papers are served by mailing, as provided in paragraph two of subdivision (b) of rule 2103, they shall be served three days earlier than as prescribed in this rule;

and
(b) if served by overnight delivery, as provided in paragraph six of subdivision (b) of rule 2103, they shall be served one day earlier than as prescribed in this rule. Relief in the alternative or of several different types may be demanded; relief need not be responsive to that demanded by the moving party.

May v Hartsdale Manor Owners Corp., 2010 NY Slip Op 03882 (App. Div., 2nd, 2010)

To successfully oppose a motion for leave to enter a default judgment
based on the failure to timely serve an answer, a defendant must
demonstrate a reasonable excuse for its delay and the existence of a
meritorious defense (see Kouzios v Deny, 57 AD3d 949; Giovanelli
v Rivera, 23 AD3d 616; Mjahdi v Maguire, 21 AD3d 1067, 1068;
Thompson v Steuben Realty Corp., 18 AD3d 864, 865; Dinstber v
Fludd, 2 AD3d 670, 671). Here, the defendant CDT Real Estate
Management Corp. (hereinafter CDT) attempted to place the blame for its
default in answering upon its insurance company. However, CDT already
was in default by the time it finally forwarded the summons and
complaint to its insurance broker, and CDT failed to offer any
explanation for this delay. Accordingly, it was an improvident exercise
of discretion to excuse the default of CDT, and to extend its time to
serve an answer in the absence of a cross motion for such relief (see
CPLR 2215; Zino v Joab Taxi, Inc., 20 AD3d 521, 522; Hosten
v Oladapo, 44 AD3d 1006).