Assorted waivers

Clark v Deutsche Bank Natl. Trust Co., 2020 NY Slip Op 02456 [2d Dept. 2020]

As a threshold matter, under the circumstances of this case, the Supreme Court providently exercised its discretion in finding that the plaintiff had waived her contention that the defendants’ motion to dismiss was untimely made (see Rozz v Law Offs. of Saul Kobrick, P.C., 134 AD3d 920, 921-922; Spagnoletti v Chalfin, 131 AD3d 901, 901-902; Glass v Captain Hulbert House, 103 AD3d 607, 608). Accordingly, we agree with the court’s denial of that branch of the plaintiff’s cross motion which was for leave to enter a default judgment against Deutsche Bank.

Hui-Lin Wu v City of New York, 2020 NY Slip Op 02721 [1st Dept. 2020]

The trial court properly denied plaintiff’s motion to strike defendants’ pleadings or preclude defendants from calling witnesses on the ground of their alleged failure to provide discovery, since, by filing a note of issue, plaintiff waived her entitlement to any further discovery (see 22 NYCRR 202.21; Escourse v City of New York, 27 AD3d 319 [1st Dept 2006]; Abbott v Memorial Sloan-Kettering Cancer Ctr., 295 AD2d 136 [1st Dept 2002]). The court properly rejected plaintiff’s attempt to authenticate her medical records through the testimony of someone who merely became the records’ physical custodian after the sale of the surgical center at which they were created (see Irizarry v Lindor, 110 AD3d 846 [2d Dept 2013]). The court correctly declined to admit the officers’ disciplinary files, since plaintiff had never requested the requisite in camera review (see Civil Rights Law § 50-a[2], [3]; see also People v Gissendanner, 48 NY2d 543, 551 [1979]; Telesford v Patterson, 27 AD3d 328 [1st Dept 2006]). Nor could plaintiff show that the records were relevant, particularly since the City admitted that the officers were acting in the scope of their employment during the incident (see Cheng Feng Fong v New York City Tr. Auth., 83 AD3d 642 [2d Dept 2011]; Weinberg v Guttman Breast & Diagnostic Inst., 254 AD2d 213 [1st Dept 1998]). There is no indication in the record that plaintiff [*2]requested and was denied interested witness charges. The court properly determined that any explanation as to missing witnesses was better addressed by counsel in their summations than by a jury charge.

Wilmington Sav. Fund Socy., FSB v Chishty, 2020 NYSlipOp 00641 [2d Dept. 2020]

The defendant also waived her right to seek dismissal of the complaint insofar as asserted against her pursuant to CPLR 3215 (c) by filing two notices of appearance (see Bank of Am., N.A. v Rice, 155 AD3d 593 [2017]; Myers v Slutsky, 139 AD2d 709, 710 [1988])

Deutsche Bank Natl. Trust Co. v Abrahim, 2020 NY Slip Op 02764 [2d Dept. 2020]

Contrary to the defendant’s contention, she waived the right to seek a dismissal pursuant to CPLR 3215(c) by appearing in the action and, inter alia, engaging in motion practice as early as 2012 (see HSBC Bank USA v Lugo, 127 AD3d 502, 503; Myers v Slutsky, 139 AD2d 709, 710-711).

And, not a waiver

Wells Fargo Bank, N.A. v Martinez, 2020 NYSlipOp 01693 [1st Dept 2020]

Plaintiff’s argument that defendant waived his right to seek dismissal pursuant to section 3215 (c) because he participated in the settlement conferences is equally unavailing. Although a party may waive it rights under CPLR 3215 (c) “by serving an answer or taking any other steps which may be viewed as a formal or informal appearance” (Private Capital Group, LLC v Hosseinipour, 170 AD3d 909, 910 [2d Dept 2019] [internal quotation marks omitted]), defendant’s participation in settlement conferences did not constitute either a formal or an informal appearance “since [he] did not actively litigate the action before the Supreme Court or participate in the action on the merits” (Slone, 174 AD3d at 867).

The above bold is mine.

CPLR 3215 and 317 standard

Kircher v William Penn Life Ins. Co. of N.Y., 2018 NY Slip Op 07295 [2d Dept. 2018]

“On a motion for leave to enter judgment against a defendant for the failure to answer or appear, a plaintiff must submit proof of service of the summons and complaint, proof of the facts constituting its claim, and proof of the defendant’s default” (Triangle Props. # 2, LLC v Narang, 73 AD3d 1030, 1032; see CPLR 3215[f]; Mercury Cas. Co. v Surgical Ctr. at Milburn, LLC, 65 AD3d 1102). Here, the plaintiff submitted proof that it properly effected service of process upon the defendant pursuant to Insurance Law § 1212 by delivering a copy of the summons and complaint to the Superintendent of Insurance (see Insurance Law § 1212[a]). The plaintiff also submitted proof of the facts constituting the claim and proof of the defendant’s default in appearing or answering the complaint. Thus, the plaintiff established her entitlement to enter a default judgment against the defendant (see Seidler v Knopf, 153 AD3d 874, 875; Cruz v Keter Residence, LLC, 115 AD3d 700).

However, in opposition, the defendant established its entitlement to relief from its default under CPLR 317. “Pursuant to CPLR 317, a defaulting defendant who was served with a summons other than by personal delivery’ may be permitted to defend the action upon a finding by the court that the defendant did not personally receive notice of the summons in time to defend and has a potentially meritorious defense” (Booso v Tausik Bros., LLC, 148 AD3d 1108, 1108, quoting CPLR 317; see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141; Gershman v Midtown Moving & Stor., Inc., 123 AD3d 974, 975). There is no necessity for a defendant moving pursuant to CPLR 317 to show a reasonable excuse for its delay (see Eugene Di Lorenzo, Inc. v A. C. Dutton Lbr. Co., 67 NY2d at 141; Booso v Tausik Bros., LLC, 148 AD3d at 1108; see also Samet v Bedford Flushing Holding Corp., 299 AD2d 404, 405). Here, the defendant met its burden of showing that it did not receive actual notice of the summons, which was delivered to the Superintendent of Insurance, in time to defend itself against this action (see Gershman v Midtown Moving & Stor., Inc., 123 AD3d at 975; Ferguson v Shu Ham Lam, 59 AD3d 387, 388; Hospital for Joint Diseases v Lincoln Gen. Ins. Co., 55 AD3d 543, 544). Moreover, there is no basis in the record upon which to conclude that the defendant was deliberately attempting to avoid service of process (see Gershman v Midtown Moving & Stor., Inc., 123 AD3d at 975; Samet v Bedford Flushing Holding Corp., 299 AD2d at 405). Furthermore, the defendant met its burden of demonstrating the existence of a potentially meritorious defense.

CPLR 3215(b)

Matter of Yonkers Firefighters v City of Yonkers, 2018 NY Slip Op 06751 [2d Dept. 2018]

The Supreme Court should not have denied the petitioners’ motion to discontinue prior to the indicated return date (see CPLR 3215[b]). Nevertheless, upon exercise of this Court’s authority to review the record, including the reply papers ultimately submitted by the petitioners, we find that the motion was properly denied (see Matter of Oneida Indian Nation of N.Y. v Pifer, 43 AD3d 579, 581). A motion to discontinue should not be granted where discontinuance is being sought in an apparent attempt to avoid the consequences of a potentially adverse determination (see Tucker v Tucker, 55 NY2d 378, 383-384; Matter of Catherine Commons, LLC v Town of Orangetown, 157 AD3d 785, 785; Marinelli v Wimmer, 139 AD3d 914, 915; New York Mtge. Trust, Inc. v Dasdemir, 116 AD3d 679Jamaica Hosp. Med. Ctr., Inc. v Oxford Health Plans [NY], Inc., 58 AD3d 686, 687; Matter of Oneida Indian Nation of N.Y. v Pifer, 43 AD3d 579Kaplan v Village of Ossining, 35 AD3d 816, 817). Here, the petitioners’ motion to discontinue was made after they received a favorable arbitration award concerning the very same issues raised in the CPLR article 78 proceeding, in an apparent attempt to evade a determination on the merits in the CPLR article 78 proceeding adverse to the favorable determination obtained in arbitration (see Matter of Oneida Indian Nation of N.Y. v Pifer, 43 AD3d 579).

3215(c) and waiver

Federal Natl. Mtge. Assn. v Heilpern, 2018 NY Slip Op 05752 [2d Dept 2018]

The plaintiff failed to seek a default judgment on the unanswered complaint within one year after the default, as required by CPLR 3215(c) (see Giglio v NTIMP, Inc., 86 AD3d 301, 307). To avoid dismissal of the action as abandoned pursuant to CPLR 3215(c), the plaintiff was required to demonstrate a reasonable excuse for its delay in seeking a default judgment and a potentially meritorious cause of action (see Wells Fargo Bank, N.A. v Bonanno, 146 AD3d 844, 846; U.S. Bank, N.A. v Dorvelus, 140 AD3d 850, 852; Ohio Sav. Bank v Decaudin, 129 AD3d 925, 926). The plaintiff failed to offer a reasonable excuse for its delay in seeking a default judgment. Since the plaintiff failed to proffer a reasonable excuse for its delay in seeking a default judgment, this Court need not consider whether it had a potentially meritorious cause of action (see U.S. Bank, N.A. v Dorvelus, 140 AD3d at 852).

A defendant may waive the right to seek a dismissal pursuant to CPLR 3215(c) by serving an answer or taking any other steps which may be viewed as a formal or informal appearance (see HSBC Bank USA, N.A. v Grella, 145 AD3d 669Myers v Slutsky, 139 AD2d 709, 711). Here, the defendants did not appear in the action, either formally or informally.

CPLR 3215 and 308

First Fed. Sav. & Loan Assn. of Charleston v Tezzi, 2018 NY Slip Op 05826 [2d Dept 2018]

In order to establish entitlement to a default judgment, the plaintiff was required to [*2]submit proof of valid service of process, the facts constituting the causes of action, and the default (see CPLR 3215[f]; Miterko v Peaslee, 80 AD3d 736, 737; Valiotis v Psaroudis, 78 AD3d 683, 683-684). The plaintiff allegedly served process on the defendant pursuant to CPLR 308(4). Once the "affixing and mailing" was accomplished, the plaintiff was required to file proof of service with the clerk of the court within 20 days of either the affixing or mailing, whichever was later (see CPLR 308[4]). Once such timely filing is accomplished, service is deemed completed 10 days thereafter (see id.).

Here, the affidavit of service was not filed within 20 days of either the mailing or affixing; thus, service was never completed (see id.). Since service was never completed, the defendant's time to answer the complaint had not yet started to run and, therefore, she could not be in default (see Pipinias v J. Sackaris & Sons, Inc., 116 AD3d 749, 750; Bank of New York v Schwab, 97 AD2d 450).

However, the "failure to file proof of service is a procedural irregularity, not a jurisdictional defect, that may be cured by motion or sua sponte by the court in its discretion pursuant to CPLR 2004" (Khan v Hernandez, 122 AD3d 802, 803; see Buist v Bromley Co., LLC, 151 AD3d 682, 683; Pipinias v J. Sackaris & Sons, Inc., 116 AD3d at 750). Thus, we agree with the Supreme Court's determination to deem the affidavit of service timely filed, sua sponte, pursuant to CPLR 2004.

In granting this relief, however, the court must do so upon such terms as may be just, and only where a substantial right of a party is not prejudiced (see CPLR 2001; Discover Bank v Eschwege, 71 AD3d 1413, 1414). The court may not make such relief retroactive, to the prejudice of the defendant, by placing the defendant in default as of a date prior to the order (see Khan v Hernandez, 122 AD3d at 803; Discover Bank v Eschwege, 71 AD3d at 1414), "nor may a court give effect to a default judgment that, prior to the curing of the irregularity, was a nullity requiring vacatur" (Discover Bank v Eschwege, 71 AD3d at 1414 [internal quotation marks omitted]; see Bank of New York v Schwab, 97 AD2d 450). Rather, the defendant must be afforded an additional 30 days to appear and answer after service upon her of a copy of the decision and order (see CPLR 320[a]; Buist v Bromley Co., LLC, 151 AD3d at 683; Khan v Hernandez, 122 AD3d at 803; Pipinias v J. Sackaris & Sons, Inc., 116 AD3d at 750; Discover Bank v Eschwege, 71 AD3d at 1414).

Accordingly, the Supreme Court should have vacated the default judgment, and, upon deeming the affidavit of service timely filed, nunc pro tunc, should have extended the time for the defendant to serve and file an answer.

 

bold is mine.

3215(g)(1)

Citimortgage, Inc. v Reese, 2018 NY Slip Op 04527 [2d Dept 2018]

Contrary to the plaintiff's contention, the issue of its failure to comply with CPLR 3215(g)(1) may be raised for the first time on appeal (see Editorial Photocolor Archives v Granger Collection, 61 NY2d 517, 523; VNB N.Y., LLC v Y.M. Intercontinental Gem Corp., 154 AD3d 903, 906). The failure to give a party proper notice of a motion deprives the court of jurisdiction to entertain the motion and renders the resulting order void (see Wells Fargo Bank, N.A. v Whitelock, 154 AD3d 906, 907; Paulus v Christopher Vacirca, Inc., 128 AD3d 116, 117).

3215(c) and reasonable excuse

Ibrahim v Nablus Sweets Corp., 2018 NY Slip Op 03515 [2d Dept. 2018]

The Supreme Court providently exercised its discretion in rejecting the plaintiff's excuse of law office failure and properly, in effect, directed dismissal of the complaint insofar as asserted against the defendants as abandoned pursuant to CPLR 3215(c). The plaintiff's excuse of law office failure did not rise to the level of a reasonable excuse, as it was vague, conclusory, and unsubstantiated (see U.S. Bank, N.A. v Dorvelus, 140 AD3d at 852; Baruch v Nassau County, 134 AD3d 658, 659; Mattera v Capric, 54 AD3d 827, 828). The excuse was contained in a brief paragraph in the supporting affirmation of an associate who stated, in sum and substance, that the attorney who commenced the action left the employ of the law firm of record, and the plaintiff's file was only discovered in May 2016 when the firm was relocating its offices. There was no affirmation from a principal of the law firm and no indication in the associate's affirmation that he had any personal knowledge of the purported law office failure or that he was even employed by the firm at the time it allegedly occurred. The one-year period to move for the entry of a default judgment lapsed in August 2015, and there is no indication that the attorney had left prior thereto. Since the plaintiff failed to demonstrate a reasonable excuse for her delay in moving for a default judgment, the Supreme Court providently exercised its discretion in denying that branch of the plaintiff's motion which was pursuant to CPLR 2004 for an extension of time to move for a default judgment (see T. Mina Supply, Inc. v Clemente Bros. Contr. Corp., 139 AD3d 1038).

Perils of not having the client verify the answer

CPLR § 105 Definitions


(u) Verified pleading. A “verified pleading” may be utilized as an affidavit whenever the latter is required.

Loughran v Giannoti, 2018 NY Slip Op 02451 [2d Dept 2018]

"On a motion for leave to enter judgment against a defendant for the failure to answer or appear, a plaintiff must submit proof of service of the summons and complaint, proof of the facts constituting its claim, and proof of the defendant's default" (Triangle Props. #2, LLC v Narang, 73 AD3d 1030, 1032; see CPLR 3215[f]; Liberty County Mut. v Avenue I Med., P.C., 129 AD3d 783, 784-785; Atlantic Cas. Ins. Co. v RJNJ Servs., Inc., 89 AD3d 649, 651). "To demonstrate the facts constituting the cause of action, the plaintiff need only submit sufficient proof to enable a court to determine if the cause of action is viable" (Clarke v Liberty Mut. Fire Ins. Co., 150 AD3d 1192, 1194; see Woodson v Mendon Leasing Corp., 100 NY2d 62, 70-71). Here, the plaintiff satisfied all of the requirements for demonstrating her entitlement to enter a default judgment (see Jing Shan Chen v R & K 51 Realty, Inc., 148 AD3d 689, 690; Mercury Cas. Co. v Surgical Ctr. at Milburn, LLC, 65 AD3d 1102).

To successfully oppose a facially adequate motion for leave to enter a default judgment based on the failure to appear or timely serve an answer, a defendant must demonstrate a reasonable excuse for its delay and the existence of a potentially meritorious defense (see Clarke v Liberty Mut. Fire Ins. Co., 150 AD3d at 1195; Fried v Jacob Holding, Inc., 110 AD3d 56, 60). Similarly, "[t]o compel the plaintiff to accept an untimely answer as timely, a defendant must provide a reasonable excuse for the delay and demonstrate a potentially meritorious defense to the action" (Ryan v Breezy Point Coop., Inc., 76 AD3d 523, 524; see CPLR 3012[d]; Clarke v Liberty Mut. Fire Ins. Co., 150 AD3d at 1194; Mannino Dev., Inc. v Linares, 117 AD3d 995, 995; Juseinoski v Board. of Educ. of City of N.Y., 15 AD3d 353, 356-358). Here, although the defendants demonstrated a reasonable excuse for the delay in serving their answer (see Lehrman v Lake Katonah Club, 295 AD2d 322), they failed to establish that they had a potentially meritorious defense to the action. The defendants submitted a proposed answer which was verified only by their attorney, and an affirmation from their attorney who did not have personal knowledge of the facts. These documents were insufficient to demonstrate a potentially meritorious defense to the action (see State Farm Mut. Auto. Ins. Co. v Austin Diagnostic Med., P.C., 153 AD3d 576, 577; Ryan v Breezy Point Coop., Inc., 76 AD3d at 524).

emphasis is mine

3215(c)

HSBC Bank USA, N.A. v Seidner, 2018 NY Slip Op 02202 [2d Dept. 2018]

In the usual case, if a request for judicial intervention in a matter subject to mandatory settlement conferences is filed within the one-year deadline imposed by CPLR 3215(c), the time thereafter to move for a default judgment is tolled while settlement conferences are pending (see 22 NYCRR 202.12-a[c][7]; U.S. Bank, N.A. v Dorvelus, 140 AD3d at 852). Here, however, it is undisputed that this action was not subject to mandatory settlement conferences (see 22 NYCRR 202.12-a[a]) and, in any event, the matter was not transferred to the settlement conference part until well after the deadline of CPLR 3215(c) had passed.

CPLR 3215 and Collateral Estoppel

CPLR 3215

Collateral Estoppel

Abrahams v Commonwealth Land Tit. Ins. Co., 2014 NY Slip Op 06042 [2nd Dept. 2014]

In this action to recover damages for breach of fiduciary duty, the plaintiff moved pursuant to CPLR 3215 for leave to enter a default judgment against the defendant. In support of the motion, the plaintiff submitted, inter alia, a complaint dated April 7, 2012. The defendant opposed the motion, offering proof that this complaint was the same complaint that had been filed in a prior action to recover damages for breach of fiduciary duty. By order entered December 29, 2009, the Supreme Court granted the defendant's motion for summary judgment dismissing the complaint in that prior action, and this Court affirmed that order (see Abrahams v Commonwealth Land Tit. Ins. Co., 81 AD3d 759).

Contrary to the plaintiff's contention, the Supreme Court properly determined that the complaint in the instant action is barred by the doctrine of collateral estoppel. The doctrine of collateral estoppel bars relitigation in a subsequent action of an issue raised in a prior action and decided against that party (see Buechel v Bain, 97 NY2d 295, 303; Zanani v Schvimmer, 117 AD3d 941; Nappy v Nappy, 100 AD3d 843). "The litigant seeking the benefit of collateral estoppel must demonstrate that the decisive issue was necessarily decided in the prior action against a party," and "the party to be precluded from relitigating the issue bears the burden of demonstrating the absence of a full and fair opportunity to contest the prior determination" (Buechel v Bain, 97 NY2d at 304; see Nappy v Nappy, 100 AD3d at 845; Matter of Simmons v Simmons, 91 AD3d 960; Nachum v Ezagui, 83 AD3d 1017).

Here, the defendant established that the decisive issues in this case were necessarily decided against the plaintiff in the prior case, and the plaintiff failed to demonstrate that he was not afforded a full and fair opportunity to contest that prior determination. Thus, the doctrine of collateral estoppel barred the plaintiff from maintaining this action. Although the defendant allegedly defaulted in answering the complaint in the instant action, even where such a default has occurred, a plaintiff is only entitled to a default judgment if the complaint states a viable cause of action (see Aprea v New York State Bd. of Elections, 103 AD3d 1059, 1061; Elam v Altered Ego Realty Holding Corp., 114 AD3d 901; Venturella-Ferretti v Ferretti, 74 AD3d 792, 793; Garcia v Pepe, 42 AD3d 427, 430). Under these circumstances, the plaintiff has no viable cause of action against the defendant that would warrant entry of a default judgment against it (see Garcia v Pepe, 42 AD3d at 430).