CPLR R. 3211

3211(a)(7) standard

Leader v Steinway, Inc., 2020 NY Slip Op 01153 [2d Dept. 2020]

“[T]he sole criterion [on such a motion] is whether the pleading states a cause of action, and if from its four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law a motion for dismissal will fail” (Guggenheimer v Ginzburg, 43 NY2d 268, 275). The complaint must be construed liberally, the factual allegations deemed to be true, and the nonmoving party granted the benefit of every possible favorable inference (see Leon v Martinez, 84 NY2d at 87-88).

3211(f) “service was necessary in order to trigger the running of the defendants’ time to respond to the complaint”

Citibank, N.A. v Brooks, 2020 NY Slip Op 01142 [2d Dept. 2020]

In March 2016, the plaintiff commenced this action against, among others, the defendants Jacqueline Brooks and Glen F. Brooks (hereinafter together the defendants) to foreclose a mortgage executed by them. The defendants moved to dismiss the complaint insofar as asserted against them, and the motion was denied in an order dated December 16, 2016 (see Citibank, N.A. v Brooks, ___ AD3d ___ [Appellate Division Docket No. 2017-04077; decided herewith]). By notice of motion dated August 14, 2017, the plaintiff moved, inter alia, for leave to enter a default judgment and for an order of reference, asserting that the defendants had defaulted in responding to the summons and complaint. The attorney affirmation submitted in support of the motion did not, in its discussion of the procedural history, disclose the prior motion practice. It did not mention the December 2016 order and did not assert that such order had been served with notice of entry, even though such service was necessary in order to trigger the running of the defendants’ time to respond to the complaint (see CPLR 3211[f]). The Supreme Court granted the plaintiff’s motion. Jacqueline Brooks (hereinafter the appellant) appeals.

In order to obtain a default judgment against the appellant and an order of reference, the plaintiff was required to submit evidence of service of a copy of the summons and complaint, evidence of the facts constituting the cause of action to foreclose the mortgage, and evidence that the appellant failed to appear or answer within the time allowed (see RPAPL 1321[1]; CPLR 3215[f]; JPMorgan Chase Bank, N.A. v Grinkorn, 172 AD3d 1183, 1185; Aurora Loan Servs., LLC v Movtady, 165 AD3d 1025, 1026; 21st Mtge. Corp. v Palazzotto, 164 AD3d 1293, 1294). While the defendants did not submit an answer to the complaint, the plaintiff failed to establish that the defendants were in default in responding to the complaint in that the plaintiff did not assert that the [*2]plaintiff served the order denying the defendants’ motion to dismiss with notice of entry. Without service of the order with notice of its entry, the time within which the defendants were required to answer the complaint did not begin to run (see CPLR 3211[f]). Accordingly, the Supreme Court should have denied those branches of the plaintiff’s motion were for leave to enter a default judgment against the appellant and for an order of reference.

Standing

Cenlar FSB v Lanzbom, 2019 NY Slip Op 00092 [2d Dept. 2019]

“On a motion for summary judgment, the burden is on the moving defendant to establish, prima facie, the plaintiff’s lack of standing, rather than on the plaintiff to affirmatively establish its standing in order for the motion to be denied'” (Deutsche Bank Natl. Trust Co. v Homar, 163 AD3d 522, 523, quoting Deutsche Bank Trust Co. Ams. v Vitellas, 131 AD3d 52, 59-60; see Citicorp Mtge. v Adams, 153 AD3d 779, 780). “To defeat a defendant’s motion, the plaintiff has no burden of establishing its standing as a matter of law” (Deutsche Bank Trust Co. Ams. v Vitellas, 131 AD3d at 60; see Deutsche Bank Natl. Trust Co. v Homar, 163 AD3d at 523). Here, the defendant merely pointed to alleged gaps in the plaintiff’s case and failed to meet her burden of establishing, prima facie, the plaintiff’s lack of standing as a matter of law (see Deutsche Bank Natl. Trust Co. v Homar, 163 AD3d at 523-524).

This one is too long to quote. You’re on your own.

US Bank N.A. v Nelson, 2019 NY Slip Op 00494 [2d Dept. 2019].

The short version is that standing was waived.

3211(a)(4) [pending action]

Jaber v Elayyan, 2019 NY Slip Op 00102 [2d Dept. 2019]

Under CPLR 3211(a)(4), a court has ” broad discretion in determining whether an action should be dismissed based upon another pending action where there is a substantial identity of the parties, the two actions are sufficiently similar, and the relief sought is substantially the same. It is not necessary that the precise legal theories presented in the first action also be presented in the second action so long as the relief . . . is the same or substantially the same'” (Dec v BFM Realty, LLC, 153 AD3d 497, 497, quoting Swartz v Swartz, 145 AD3d 818, 822; see Whitney v Whitney, 57 NY2d 731, 732). Similarly, while a complete identity of parties is not a necessity for dismissal under CPLR 3211(a)(4) (see Proietto v Donohue, 189 AD2d 807, 807; Barringer v Zgoda, 91 AD2d 811, 811), there must at least be a “substantial” identity of parties, “which generally is present when at least one plaintiff and one defendant is common in each action” (Morgulas v Yudell Realty, 161 [*2]AD2d 211, 213; see Cellino & Barnes, P.C. v Law Off. of Christopher J. Cassar, P.C., 140 AD3d 1732, 1734; Cherico, Cherico & Assoc. v Midollo, 67 AD3d 622, 622; Proietto v Donohue, 189 AD2d at 807-808).
Here, there is no common plaintiff in the New York County and Richmond County actions, as the former action was commenced by the plaintiff’s brother and others, while the instant action was commenced by the plaintiff. Moreover, the subject matter of the two actions, although related, is not sufficiently similar to warrant the dismissal of the complaint in this action insofar as asserted against the defendant. The relief sought in each action is different, and the resolution of the former action would not necessarily resolve the instant plaintiff’s claim of equitable ownership of the property (see generally Sprecher v Thibodeau, 148 AD3d 654, 656; Parker v Rich, 140 AD2d 177, 178; Corporate Inv. Co. v Mount Vernon Metal Prods. Co., Inc., 206 App Div 273, 276). Since there is no sufficiently substantial identity of parties and subject matter in the two actions, the Supreme Court providently exercised its discretion in denying that branch of the defendant’s motion which was pursuant to CPLR 3211(a)(4) to dismiss the complaint insofar as asserted against him.

3211(a)(7) and no-fault

Abruscato v Allstate Prop., 2018 NY Slip Op 07279 [2d Dept. 2018]

“Where evidentiary material is submitted and considered on a motion to dismiss the complaint pursuant to CPLR 3211(a)(7), and the motion is not converted into one for summary judgment, the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one, and unless it has been shown that a material fact as claimed by the plaintiff to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it, dismissal should not eventuate” (Rabos v R & R Bagles & Bakery, Inc., 100 AD3d 849, 851-852; see Guggenheimer v Ginzburg, 43 NY2d 268, 275).

We agree with the Supreme Court’s determination granting that branch of the defendant’s motion which was pursuant to CPLR 3211(a)(7) to dismiss so much of the first cause of action as sought to recover no-fault insurance benefits for lost wages. It is undisputed that the plaintiff did not submit a claim for reimbursement for lost wages, and therefore the defendant’s obligation to pay or deny such a claim never arose (see 11 NYCRR 65-3.8; see also Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498; Sound Shore Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 106 AD3d 157).

We also agree with the Supreme Court’s determination granting those branches of the defendant’s motion which were to dismiss the second and third causes of action to recover damages for intentional and negligent infliction of emotional distress, respectively. The conduct alleged, even if proven, was not sufficiently extreme and outrageous to support the cause of action to recover damages for intentional infliction of emotional distress (see Brunache v MV Transp., Inc., 151 AD3d 1011, 1014; Long Is. Care Ctr., Inc. v Goodman, 137 AD3d 874, 875). Additionally, the relationship between the plaintiff and the defendant does not give rise to a duty which could furnish a basis for tort liability in negligence (see Pirrelli v OCWEN Loan Servicing, LLC, 129 AD3d 689, 692; Baumann v Hanover Community Bank, 100 AD3d 814, 816).

We also agree with the Supreme Court’s determination granting that branch of the defendant’s motion which was to dismiss the fourth cause of action, which sought declaratory relief, since the plaintiff has an adequate alternative remedy in the form of a cause of action to recover no-fault insurance benefits (see Stuckey v Lutheran Care Found. Network, Inc., 140 AD3d 734, 736; Alizio v Feldman, 82 AD3d 804, 805; BGW Dev. Corp. v Mount Kisco Lodge No. 1552 of Benevolent & Protective Order of Elks of U.S. of Am., 247 AD2d 565, 568).

Further, the Supreme Court providently exercised its discretion in denying the plaintiff’s cross motion for leave to amend the complaint, because the proposed amendments were palpably insufficient and patently devoid of merit (see White Knight of Flatbush, LLC v Deacons of Dutch Congregation of Flatbush, 159 AD3d 939; Ferrandino & Son, Inc. v Wheaton Bldrs., Inc., LLC, 82 AD3d 1035, 1037; Lucido v Mancuso, 49 AD3d 220, 229).

However, the Supreme Court should have denied that branch of the defendant’s motion which was to dismiss so much of the first cause of action as sought to recover no-fault insurance benefits for medical expenses. The defendant contends, inter alia, that the plaintiff lacked standing because he had assigned his right to no-fault insurance benefits for medical expenses to his medical providers. Although the defendant submitted evidence that the plaintiff assigned his right to no-fault benefits to two medical providers (hereinafter the assignees), the plaintiff’s evidentiary submissions showed that other medical providers had also billed him for their services. Moreover, upon the defendant’s determination that the injury was not causally related to the motor vehicle accident, the assignees were no longer precluded from seeking payment from the plaintiff (see Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312, 318; Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199; Rotwein v Stancil, 15 Misc 3d 19, 21). Since there was a failure of insurance coverage rendering the plaintiff personally responsible for the medical bills (see Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d at 318; Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d at 199; Rotwein v Stancil, 15 Misc 3d at 21), the plaintiff has a cause of action to recover no-fault insurance benefits for medical expenses from the defendant (see Guggenheimer v Ginzburg, 43 NY2d at 275).

Standing waived

BAC Home Loans Servicing, L.P. v Chertov, 2018 NY Slip Op 07281 [2d Dept. 2018]

The defendant waived the defense of lack of standing (see Wells Fargo Bank, N.A. v Erobobo, 127 AD3d 1176; Wells Fargo Bank Minn., N.A. v Mastropaolo, 42 AD3d 239). Therefore, BAC was not required to establish its standing in order to demonstrate its prima facie entitlement to judgment as a matter of law (see Citigroup v Kopelowitz, 147 AD3d 1014, 1015; JP Morgan Chase Bank, N.A. v Butler, 129 AD3d 777, 780).

Personal Jurisdiction waived and waited too long to bring up 317

JPMorgan Chase Bank, N.A. v Soussis, 2018 NY Slip Op 07294 [2d Dept. 2018]

The defendant waived any claim that the Supreme Court lacked personal jurisdiction over her. The defendant appeared in the action by serving a notice of appearance, and neither she nor her attorney moved to dismiss the complaint on the ground of lack of personal jurisdiction at that time or asserted lack of personal jurisdiction in a responsive pleading (see CPLR 320[a], [b]; U.S. Bank N.A. v Pepe, 161 AD3d 811, 812-813; Wilmington Sav. Fund Socy., FSB v Zimmerman, 157 AD3d 846, 847; American Home Mtge. Servicing, Inc. v Arklis, 150 AD3d 1180, 1181; National Loan Invs., L.P. v Piscitello, 21 AD3d 537, 538).

The defendant’s contention that she was entitled to relief pursuant to CPLR 317 is improperly raised for the first time on appeal (see Deutsche Bank Natl. Trust Co. v Saketos, 158 AD3d 610, 612).

3211(a) Capacity

Rely-On-Us, Inc. v Torres, 2018 NY Slip Op 06583 [2d 2018]

Contrary to the plaintiff’s contention, although a dismissal for lack of capacity to sue is not a dismissal on the merits (see Matter of United Envtl. Techniques v State of N.Y. Dept. of Health, 88 NY2d 824, 825; Robles v Brooklyn-Queens Nursing Home, Inc., 131 AD3d 1032, 1033), “[a] judgment of default which has not been vacated is conclusive for res judicata purposes, and encompasses the issues which were raised or could have been raised in the prior action” (Tromba v Eastern Fed. Sav. Bank, FSB, 148 AD3d 753, 754; see Albanez v Charles, 134 AD3d 657, 658; 83-17 Broadway Corp. v Debcon Fin. Servs., Inc., 39 AD3d 583, 585; Martins v Wood, 251 AD2d 465). Consequently, the dismissal, on default, of a prior action to foreclose the mortgage, as well as the default judgment taken in the action pursuant to RPAPL 1501(4) (see Torres v Rely On Us, Inc., _____ AD3d _____ [decided herewith]), bar the plaintiff’s cause of action to foreclose the mortgage (see Trisingh Enters. v Kessler, 249 AD2d 45).

Further, “[a] cause of action seeking reformation of an instrument on the ground of mistake, including an alleged scrivener’s error, is governed by the six-year statute of limitations pursuant to CPLR 213(6), which begins to run on the date the mistake was made” (Lopez v Lopez, 133 AD3d 722, 723; see Matter of Wallace v 600 Partners Co., 86 NY2d 543, 547). Here, the cause of action seeking reformation is time-barred since the note, including the alleged scrivener’s error regarding the lender’s name, was made in 2006, yet the plaintiff commenced this action in 2015. Moreover, under the circumstances of this case, absent reformation of the note, the plaintiff cannot recover on the note (see UCC 3-202[1]; 3-301).

Accordingly, we agree with the Supreme Court’s determination to grant that branch of the defendants’ motion which was pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against them, and to deny the plaintiff’s cross motion, inter alia, for leave to amend the complaint and to reform the note.

The bold is mine

Being duly sworn and a personal jurisdiction problem

Ulster Sav. Bank v Fiore, 2018 NY Slip Op 06588 [2d Dept. 2018]

Contrary to Nicholas's contention, the affidavit of the plaintiff's Collections Officer, submitted by the plaintiff in support of its motion, was not improperly sworn and, therefore, was adequate to support the motion, since the affidavit expressly contained the phrase "being duly sworn" and was notarized (Citibank, NA v Abrams, 144 AD3d 1212, 1216; see Matter of Bennett, 148 AD3d 1449, 1449-1450). In opposition to the motion, the defendants failed to raise a triable issue of fact.

We also agree with the Supreme Court's determination to deny, without a hearing, that branch of the defendants' cross motion which was pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against Nicholas for lack of personal jurisdiction. Nicholas waived the defense of lack of personal jurisdiction by failing to assert it in his answer or in a pre-answer motion to dismiss (see MidFirst Bank v Ajala, 146 AD3d 875, 875; cf. Hopstein v Cohen, 143 AD3d 859, 860).

The bold is mine.

3211(e) single motion rule

41st Rd. Props., LLC v Wang Real Prop., LLC, 2018 NY Slip Op 05565 [2d Dept 2018]

The Wang defendants' second motion pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against them on the ground that another action was pending was properly denied. As the Supreme Court observed, that motion violated the single-motion rule of CPLR 3211(e) (see Oakley v County of Nassau, 127 AD3d 946, 946-947).