CPLR R. 3211 – Page 2

CPLR 3211(c)

Karimian v Time Equities, Inc., 2018 NY Slip Op 05583 [2d Dept 2018]

With respect to the defendants' cross appeal, CPLR 3211(c) provides, "[u]pon the hearing of a motion made under subdivision (a) or (b), either party may submit any evidence that could properly be considered on a motion for summary judgment. Whether or not issue has been joined, the court, after adequate notice to the parties, may treat the motion as a motion for summary judgment." Although the path the defendants took in moving pursuant to CPLR 3211(c) was procedurally questionable, they charted their own course in this instance. There was no need to give the plaintiff an opportunity to file additional papers because the defendants failed to establish their prima facie entitlement to judgment as a matter of law by failing to tender sufficient evidence to eliminate any issues of fact with respect to those causes of action. Accordingly, the defendants were properly denied summary judgment, without regard to the sufficiency of the opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853).

The bold is mine.

3211(c) standard

Soroush v Citimortgage, Inc., 2018 NY Slip Op 03724 [2d Dept. 2018]

CPLR 3211(c) provides that, "[u]pon the hearing of a motion made under subdivision (a) or (b), either party may submit any evidence that could properly be considered on a motion for summary judgment. Whether or not issue has been joined, the court, after adequate notice to the parties, may treat the motion as a motion for summary judgment." Here, the Supreme Court should not have converted Citimortgage's motion pursuant to CPLR 3211(a) to dismiss the complaint to one for summary judgment without providing "adequate notice to the parties" (CPLR 3211[c]; see Sunset Café, Inc. v Mett's Surf & Sports Corp., 103 AD3d 707; Saleh v New York Post, 78 AD3d 1149; Neurological Servs. of Queens, P.C. v Farmingville Family Med. Care, 63 AD3d 703; Moutafis v Osborne, 18 AD3d 723; Steiner v Lazzaro & Gregory, 271 AD2d 596; Glendora v Kofalt, 224 AD2d 485; Pearsal Props. Corp. v Arzina Realty Corp., 139 AD2d 638; Camarda v Vanderbilt, 100 AD2d 836). None of the recognized exceptions to the notice requirement is applicable here. No specific request for summary judgment was made by any party, the parties did not deliberately chart a summary judgment course, and the action did not exclusively involve issues of law which were fully appreciated and argued by the parties (see Sunset Café, Inc. v Mett's Surf & Sports Corp., 103 AD3d at 708; Moutafis v Osborne, 18 AD3d at 724). Moreover, since Citimortgage's motion to dismiss the complaint should not have been converted to one for summary judgment, the court also should not have searched the record and awarded summary judgment to the plaintiff (see Moutafis v Osborne, 18 AD3d at 724).

Documentary evidence

Sims v Prom Realty Co., LLC, 2018 NY Slip Op 02822 [2d Dept. 2018]

"In order for evidence to qualify as documentary,' it must be unambiguous, authentic, and undeniable" (Granada Condominium III Assn. v Palomino, 78 AD3d 996, 996-997 [internal quotation marks omitted]). "Neither affidavits, deposition testimony, nor letters are considered documentary evidence within the intendment of CPLR 3211(a)(1)" (Granada Condominium III Assn. v Palomino, 78 AD3d at 997 [internal quotation marks omitted]; see Suchmacher v Manana Grocery, 73 AD3d 1017, 1017; Fontanetta v John Doe 1, 73 AD3d at 86).

3211(a)(7) standard

Yu Chen v Kupoint (USA) Corp., 2018 NY Slip Op 02498 [2d Dept. 2018]

On a motion pursuant to CPLR 3211(a)(7) to dismiss for failure to state a cause of action, the court must afford the complaint a liberal construction, accept all facts as alleged in the complaint to be true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory (see Leon v Martinez, 84 NY2d 83, 87; Murphy v Department of Educ. of the City of N.Y., 155 AD3d 637). Accordingly, a motion to dismiss made pursuant to CPLR 3211(a)(7) must fail if, upon taking all the facts alleged in the complaint as true and according them every possible inference favorable to the plaintiff, "the complaint states in some recognizable form any cause of action known to our law" (Shaya B. Pac., LLC v Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, 38 AD3d 34, 38). While a court is permitted to consider evidentiary material submitted by a defendant in support of a motion to dismiss pursuant to CPLR 3211(a)(7) (see Phillips v Taco Bell Corp., 152 AD3d 806, 807), "affidavits submitted by a defendant will almost never warrant dismissal under CPLR 3211 unless they establish conclusively that [the plaintiff] has no cause of action" (Bokhour v GTI Retail Holdings, Inc., 94 AD3d 682, 683 [internal quotation marks omitted]; see Phillips v Taco Bell Corp., 152 AD3d at 808; Dolphin Holdings, Ltd. v Gander & White Shipping, Inc., 122 AD3d 901, 902). The plaintiff "may not be penalized for failure to make an evidentiary showing in support of a complaint that states a claim on its face" (Miglino v Bally Total Fitness of Greater N.Y., Inc., 20 NY3d 342, 351, citing Rovello v Orofino Realty Co., 40 NY2d 633, 635). Indeed, if a plaintiff chooses to stand on his or her pleading alone, "confident that its allegations are sufficient to state all the necessary elements of a cognizable cause of action, he [or she] is at liberty to do so and, unless the motion to dismiss is converted by the court to a motion for summary judgment, he [or she] will not be penalized because he [or she] has not made an evidentiary showing in support of his [or her] complaint" (Rovello v Orofino Realty Co., 40 NY2d at 635).

emphasis is mine

Usury waived. CPLR 3211(e)

Power Up Lending Group, Ltd. v Cardinal Resources, Inc., 2018 NY Slip Op 02351 [2d Dept 2018]

The Supreme Court erred when it severed those provisions of the agreements which it found to be illegal pursuant to the criminal usury statute. Usury is an affirmative defense which a defendant must either assert in an answer or as a ground to move to dismiss the complaint pursuant to CPLR 3211. Otherwise, the defense is waived (see CPLR 3211[e]; 3018[b]; Whittemore v Yeo, 112 AD3d 475, 476; Hochman v LaRea, 14 AD3d 653, 654).

Sufficient Start [3211(d)]

Robins v Procure Treatment Ctrs., Inc., 2018 NY Slip Op 00464 [1st Dept 2018]

Plaintiff made a "sufficient start" in establishing that New York courts have jurisdiction over PPM under CPLR 301 and 302(a)(1) to be entitled to disclosure pursuant to CPLR 3211(d) (see Peterson v Spartan Indus., 33 NY2d 463, 467 [1974]). With regard to general jurisdiction, codified in CPLR 301, it is not clear whether PPM's "affiliations with the State [New York] are so continuous and systematic as to render [it] essentially at home in the [] State" (Daimler AG v Bauman, __ US __, 134 S Ct 746, 761 [2014] [internal quotation marks omitted]). However, the record contains a State filing in which PPM identified itself as having a principal place of business in Manhattan — "tangible evidence" upon which to question PPM's claims to the contrary (see SNS Bank v Citibank, 7 AD3d 352, 354 [1st Dept 2004] [internal quotation marks omitted]).

3211(a)(8) and 3211(e)

Deutsche Bank Natl. Trust Co. v Acevedo, 2018 NY Slip Op 00407 [2d 2018]

In December 2014, more than 60 days after service of the defendant's verified answer with affirmative defenses and counterclaims, and more than 60 days after the plaintiff served the defendant with a verified reply to the counterclaims, the defendant moved to dismiss the complaint pursuant to CPLR 3211(a)(8) for lack of personal jurisdiction based on improper service and to cancel the notice of pendency against the subject property. The plaintiff opposed the defendant's motion, arguing, among other things, that the defendant waived the defense of lack of personal jurisdiction based on improper service by failing to move for judgment on that ground within 60 days [*2]after serving the answer. This motion was marked off the calendar.

Subsequently, the defendant moved to restore his prior motion to the calendar, and thereupon, to grant the motion. The plaintiff opposed the motion, again arguing, inter alia, that the defendant waived this defense pursuant to CPLR 3211(e). The Supreme Court granted the defendant's motion. The plaintiff appeals.

Although the Supreme Court properly granted that branch of the defendant's motion which was to restore, the court should not have thereupon granted his prior motion.

"[A]n objection that the summons and complaint . . . was not properly served is waived if, having raised such an objection in a pleading, the objecting party does not move for judgment on that ground within sixty days after serving the pleading, unless the court extends the time upon the ground of undue hardship" (CPLR 3211[e]). Here, the defendant failed to move for judgment on the ground of lack of personal jurisdiction based on improper service within 60 days after his answer was served. Additionally, he failed to made an adequate showing of undue hardship that prevented the making of the motion within the requisite statutory period. Although the plaintiff, appearing by its former attorneys, wrote to the defendant's attorney, stating that the verified answer with affirmative defenses and counterclaims was rejected, this Court has indicated that a "purported rejection of the defendants' answer did not extend the 60-day time limit" (Dimond v Verdon, 5 AD3d 718, 719). Further, less than one month after the defendant's verified answer with affirmative defenses and counterclaims was served, the plaintiff's responsive pleading was served. Under these circumstances, the defendant waived his objection to personal jurisdiction based on improper service (see id. at 719; see also Warsowe Acquisition Corp. v DeNoble, 116 AD3d 949, 950; Reyes v Albertson, 62 AD3d 855, 855).

CPLR 3211, 3013, 3016, 3018, 3019

CPLR 3211(a)(7)

CPLR 3016(b)

CPLR 3013

CPLR 3018(b)

CPLR 3019(a)

Friedland Realty, Inc. v 416 W, LLC, 2014 NY Slip Op 06052 [2nd Dept. 2014]

On a motion to dismiss a pleading pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the court must afford the pleading a liberal construction, accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory (see Nonnon v City of New York, 9 NY3d 825, 827; Leon v Martinez, 84 NY2d 83, 87-88; Siracusa v Sager, 105 AD3d 937, 938).

"A claim of mutual mistake is stated where the allegations indicate that the parties have reached an oral agreement and, unknown to either, the signed writing does not express that agreement" (Aventine Inv. Mgt. v Canadian Imperial Bank of Commerce, 265 AD2d 513, 514; see Chimart Assoc. v Paul, 66 NY2d 570, 573; Phillips v Phillips, 300 AD2d 642, 643). Absent fraud, "the mistake shown must be one made by both parties to the agreement, so that the intentions of neither are expressed in it" (Migliore v Manzo, 28 AD3d 620, 621; see Ribacoff v Chubb Group of Ins. Cos., 2 AD3d 153, 154; Matter of Shaw, 202 AD2d 433, 434). "A claim predicated on mutual mistake must be pleaded with the requisite particularity necessitated under CPLR 3016(b)" (Simkin v Blank, 19 NY3d 46, 52), which provides that "where a cause of action or defense is based upon misrepresentation, fraud, mistake, wilful default, breach of trust or undue influence, the circumstances constituting the wrong shall be stated in detail." Ultimately, the proponent of reformation based on mutual mistake must demonstrate the particulars of the actual agreement intended by the parties, based on the particularized allegations in the complaint (see Chimart Assoc. v Paul, 66 NY2d at 574; George Backer Mgt. Corp. v Acme Quilting Co., 46 NY2d 211, 220).

Here, the defendant's second counterclaim and third affirmative defense did not describe the terms of the oral modification that the parties allegedly agreed to, or how those terms differed from the terms of the written agreement. Instead, that counterclaim and affirmative defense recited, in conclusory fashion, that the terms that had actually been agreed to by the parties prior to the writing, and which were allegedly confirmed pursuant to the oral modification, provided that the plaintiff was only entitled to a "reduced fee," but provided no specifics as to the amount of that reduced fee, or under what circumstances such a reduced fee was to be paid. Similarly, the defendant alleged that the plaintiff "was to be compensated for an introduction" to a prospective lessee, but alleged no details as to how its obligation to compensate the plaintiff for securing such an introduction differed from the terms of the written agreement.

Since the allegations of mutual mistake set forth in the defendant's second counterclaim and third affirmative defense were not made with the requisite particularity (see generally CPLR 3016[b]; Greater N.Y. Mut. Ins. Co. v United States Underwriters Ins. Co., 36 AD3d 441, 443), they failed to state a cause of action or defense, respectively, and the Supreme Court correctly granted those branches of the plaintiff's motion which were to dismiss that counterclaim and affirmative defense.

Katz v Miller, 2014 NY Slip Op 05957 [2nd Dept. 2014]

However, the Supreme Court should have granted those branches of the plaintiffs' motion which were for summary judgment striking the first through twelfth affirmative defenses. The second and eleventh affirmative defenses were not substantiated with factual allegations, and were conclusory in nature (see CPLR 3013, 3018[b]; Becher v Feller, 64 AD3d 672, 677; Cohen Fashion Opt., Inc. v V & M Opt., Inc., 51 AD3d 619). The plaintiffs established their prima facie entitlement to judgment as a matter of law striking the first, third through tenth, and twelfth affirmative defenses, and the Toppin defendants failed to raise a triable issue of fact in opposition (see Zuckerman v City of New York, 49 NY2d 557, 562).

The Supreme Court should also have granted those branches of the plaintiffs' motion which were for summary judgment dismissing the second and third counterclaims, which were in the nature of defenses to the complaint and did not assert facts upon which affirmative relief may be granted (see CPLR 3019[a]; P.J.P. Mech. Corp. v. Commerce & Indus. Ins. Co., 65 AD3d 195, 199-200). The Supreme Court properly denied that branch of the plaintiffs' motion which was for summary judgment dismissing the first counterclaim (see Real Property Law § 282).

Personal Jurisdiction waived

CPLR 3211(e)
CPLR 320

Deutsche Bank Natl. Trust Co. v Ned, 2014 NY Slip Op 01122 [1st Dept. 2014]

In this mortgage foreclosure action, the motion court properly denied defendant's motion to dismiss the complaint on the ground of lack of jurisdiction. Defendant waived the defense of lack of personal jurisdiction since she failed to assert it in her answer and in the two prior motions she made (see CPLR 320; Ohio Sav. Bank v Munsey, 34 AD3d 659 [2d Dept 2006]). Although defendant is correct that the evidence of her physical description rebuts the presumption of proper service since it does not match the description provided by the process server, the court was not required to direct a traverse hearing since defendant waived this defense prior to alerting the court to the discrepancies.

Emphasis mine.

CPLR 3211(e) + alleged lack of standing is not a jurisdictional defect

CPLR 3211(e)
CPLR 5015

JP Morgan Mtge. Acquisition Corp. v Hayles, 2014 NY Slip Op 00485 [2nd Dept. 2015]

Hayles contends that the action should be dismissed insofar as asserted against her for lack of standing because the plaintiff was not the holder of the underlying note and mortgage when it commenced the action (see Homecomings Fin., LLC v Guldi, 108 AD3d 506, 507; Bank of N.Y. v Silverberg, 86 AD3d 274, 279). The Supreme Court properly rejected this claim because Hayles waived it by failing to challenge the plaintiff's standing in her answer or in a pre-answer motion to dismiss (see Deutsche Bank Natl. Trust Co. v Hussain, 78 AD3d 989, 990; see also CPLR 3211[e]; CitiMortgage, Inc. v Rosenthal, 88 AD3d 759, 761).

A defendant seeking to vacate a default pursuant to CPLR 5015(a)(1) must demonstrate a reasonable excuse for the default and a potentially meritorious defense to the action [*2](see Wells Fargo Bank v Malave, 107 AD3d 880). As Hayles failed to demonstrate any potentially meritorious defense to the foreclosure action or a reasonable excuse for her default in opposing the plaintiff's motion for summary judgment, the Supreme Court properly denied that branch of her motion which was to vacate the judgment of foreclosure and sale pursuant to CPLR 5015(a)(1) (see Deutsche Bank Natl. Trust Co. v Hussain, 78 AD3d at 990).

Furthermore, the Supreme Court properly denied those branches of Hayles' motion which were, in effect, pursuant to CPLR 5015(a)(3) and (4) to vacate the judgment of foreclosure and sale. In this regard, the record contains no evidence of fraud or misrepresentation, and an alleged lack of standing is not a jurisdictional defect (see U.S. Bank N.A. v Tate, 102 AD3d 859, 860; Deutsche Bank Natl. Trust Co. v Hunter, 100 AD3d 810, 811).

Bold is mine.