Category: CPLR

Vacatur

2004 McDonald Ave. Corp. v KGYM Holdings Group, Inc.,  2018 NY Slip Op 06508 [2d Dept. 2018]

CPLR 317 applies where a defendant was served by means other than personal delivery, did not receive notice of the action, and has a potentially meritorious defense (see Booso v Tausik Bros. LLC., 148 AD3d 1108). Here, the defendants claimed they were never served. Therefore, they sought to vacate the default judgment against them pursuant to CPLR 5015(a)(4) for lack of personal jurisdiction. On this point, the affidavit of service of a process server generally constitutes prima facie evidence of proper service (see US Bank N.A. v Ramos, 153 AD3d 882; Central Mtge. Co. v Ward, 127 AD3d 803). In this case, however, the process server submitted affidavits of exercising due diligence to attempt service, not affidavits of service.

If service is not made, the default judgment is a nullity (see Ariowitsch v Johnson, 114 AD2d 184). If a defendant is not served, “notice received by means other than those authorized by statute cannot serve to bring a defendant within the jurisdiction of the court” (Feinstein v Bergner, 48 NY2d 234, 241).

Sposito v Cutting, 2018 NY Slip Op 06782 [2d Dept. 2018]

“As a general rule, a defendant who seeks to vacate a default in appearing at a compliance conference is required to demonstrate both a reasonable excuse for the default and a potentially meritorious defense” (Foley Inc. v Metropolis Superstructures, Inc., 130 AD3d 680, 680; see Polsky v Simon, 145 AD3d 693). Here, the defendant demonstrated a reasonable excuse for his failure to appear at the compliance conference on November 29, 2016, including the fact that he had been hospitalized from mid-September to late October 2016 for injuries sustained in a fall. In addition, notice of the conference was sent to the subject property and, although the defendant’s grandson resided there, it was never the defendant’s residence and the defenedant denied any knowledge of the November 29, 2016, conference. The defendant also demonstrated that he did not receive notice of the adjourned conference date of January 24, 2017, and the record is devoid of any evidence demonstrating that such notice was, in fact, given to him. Under such circumstances, the defendant’s nonappearance for the conference on January 24, 2017, could not constitute a default, as there was no failure to perform a legal duty (see Notaro v Performance Team, 161 AD3d 1093; Foley Inc. v Metropolis Superstructures, Inc., 130 AD3d at 681). “This is analogous to the situation of a defendant who has not been served with process and suffers a default judgment. In both situations, the default’ is a nullity along with the remedy the court renders in response” (Pelaez v Westchester Med. Ctr., 15 AD3d 375, 376). As the defendant’s default in appearing at the conference on January 24, 2017, is considered a nullity, vacatur of that default ” is required as a matter of law and due process, and no showing of a potentially meritorious defense is required'” (Notaro v Performance Team, 161 AD3d at 1095, quoting Bonik v Tarrabocchia, 78 AD3d 630, 632; see Matter of 542 A Realty, LLC, 118 AD3d 993, 994; Pavlou v Associates Food Stores, Inc., 96 AD3d 919). Therefore, the Supreme Court should have vacated the default and the notice of inquest as a matter of law and due process, and no showing of a potentially meritorious defense was required.

In addition, the Supreme Court should have granted that branch of the defendant’s motion which was to vacate the note of issue and certificate of readiness. Since the defendant moved for such relief more than 20 days after service of the note of issue and certificate of readiness, he had to show good cause for vacatur (see 22 NYCRR 202.21[e]). “To satisfy the requirement of good cause,’ the party seeking vacatur must demonstrate that unusual or unanticipated circumstances developed subsequent to the filing of the note of issue and certificate of readiness requiring additional pretrial proceedings to prevent substantial prejudice'” (Ferraro v North Babylon Union Free School Dist., 69 AD3d 559, 561, quoting White v Mazella-White, 60 AD3d 1047, 1049 [internal quotation marks omitted]). Here, for the reasons set forth above, particularly that the defendant’s failure to appear at the conference on January 24, 2017, did not constitute a default and warranted vacatur of the default and the notice of inquest as a matter of law and due process, the defendant established good cause for vacating the note of issue and certificate of readiness.

Accordingly, the Supreme Court should have granted the defendant’s motion pursuant to CPLR 5015(a)(1) to, in effect, vacate his default in appearing for two scheduled court conferences

Rosario v Naranjo, 2018 NY Slip Op 06780 [2d Dept. 2018]

A defendant seeking to vacate a default in appearing or answering the complaint pursuant to CPLR 5015(a)(1) must demonstrate both a reasonable excuse for the default and a potentially meritorious defense to the action (see Eugene Di Lorenzo, Inc. v A. C. Dutton Lbr. Co., 67 NY2d 138, 141; Goldfarb v Zhukov, 145 AD3d 757, 758; Li Fen Li v Cannon Co., Inc., 155 AD3d 858, 859). “Whether there is a reasonable excuse for a default is a discretionary, sui generis determination to be made by the court based on all relevant factors, including the extent of the delay, whether there has been prejudice to the opposing party, whether there has been willfulness, and the strong public policy in favor of resolving cases on the merits” (Harcztark v Drive Variety, Inc., 21 AD3d 876, 876-877; see Gomez v Gomez-Trimarchi, 137 AD3d 972, 973).

A.G. Parker, Inc. v 246 Rochester Partners, LLC, 2018 NY Slip Op 06711 [2d Dept. 2018]

A party is precluded from moving to vacate its default on grounds asserted in a prior motion to vacate the default that had been previously denied in an order from which it took no appeal as well as on grounds that were apparent at the time that the party made the prior motion but were not asserted therein (see U.S. Bank N.A. v Davis, 161 AD3d 808; LaSalle Natl. Bank Assn. v Odato, 126 AD3d 675, 676; Eastern Sav. Bank, FSB v Brown, 112 AD3d 668, 670; Lambert v Schreiber, 95 AD3d 1282, 1283; Bianco v Dougherty, 54 AD2d 681).

Itshaik v Singh, 2018 NY Slip Op 06888 [2d Dept. 2018]

“When a defendant seeking to vacate a default judgment raises a jurisdictional objection pursuant to CPLR 5015(a)(4), the court is required to resolve the jurisdictional question before determining whether it is appropriate to grant a discretionary vacatur of the default under CPLR 5015(a)(1)” (Canelas v Flores, 112 AD3d 871, 871; see Community W. Bank, N.A. v Stephen, 127 AD3d 1008, 1009; HSBC Bank USA, N.A. v Miller, 121 AD3d 1044, 1045). A defendant moving to vacate a judgment entered upon his or her default in appearing or answering the complaint on the ground of lack of personal jurisdiction “is not required to demonstrate a reasonable excuse for the default and a potentially meritorious defense” (Prudence v Wright, 94 AD3d 1073, 1073; see Falvo v Cerra, 127 AD3d 919, 920). “[T]he failure to serve process in an action leaves the court without personal jurisdiction over the defendant, and all subsequent proceedings are thereby rendered null and void” (Krisilas v Mount Sinai Hosp., 63 AD3d 887, 889 [internal quotation marks omitted]).

Here, through his submissions, the defendant established that the Supreme Court did not acquire personal jurisdiction over him (see CPLR 5015[a][4]). The plaintiff contends that the defendant was estopped from challenging service upon him at the West End Avenue address pursuant to Vehicle and Traffic Law § 505(5), which requires that every motor vehicle licensee notify the Commissioner of the DMV of any change in residence within 10 days of the change and make a notation of such change of residence on the license. However, under the circumstances of this case, where the defendant did not provide the West End Avenue address at the time of the accident, where the record does not contain a DMV driver’s abstract for the defendant, and where the plaintiff identified the motor vehicle allegedly involved in this accident as belonging to a neighbor, the plaintiff’s contention is without merit (cf. Canelas v Flores, 112 AD3d at 871-872). Accordingly, we agree with the Supreme Court’s granting of the defendant’s motion to vacate the order dated July 11, 2016, and for leave to serve a late answer, based on lack of jurisdiction (see CPLR 5015[a][4]; Falvo v Cerra, 127 AD3d at 920).

In light of our determination of the jurisdictional issue, we need not reach the parties’ contentions regarding a discretionary vacatur pursuant to CPLR 5015(a)(1). Moreover, the parties’ contentions regarding CPLR 317, which were not raised before the Supreme Court, are not properly before this Court.

3212(a)

Mack v Harley, 2018 NY Slip Op 06521 [2d Dept. 2018]

The plaintiff commenced this negligence action to recover damages for the personal injuries she allegedly sustained as a result of the accident. A first note of issue was filed on September 20, 2013, but the parties subsequently stipulated to take the matter off the trial calendar in order to resolve outstanding discovery issues. In an order dated July 31, 2015, the Supreme Court directed the plaintiff to file a new note of issue no later than August 20, 2015. The plaintiff filed the second note of issue on or about August 6, 2015. The plaintiff then moved for summary judgment on the issue of liability. In an order dated January 29, 2016, the Supreme Court granted the motion. The defendants appeal.

Contrary to the defendants’ contention, the plaintiff’s motion was not untimely pursuant to CPLR 3212(a). The note of issue filed on September 20, 2013, was, in effect, nullified when the case was removed from the trial calendar (see Lance Intl., Inc. v First Natl. City Bank, 86 [*2]AD3d 479, 480; Farrington v Heidkamp, 26 AD3d 459, 460; Negron v Helmsley Spear, Inc., 280 AD2d 305, 305; Bono v Barzallo, 260 AD2d 592). Therefore, the operative note of issue was filed on or about August 6, 2015 (see Lance Intl., Inc. v First Natl. City Bank, 86 AD3d at 480; Williams v Peralta, 37 AD3d 712, 713), and the motion was timely.

Khan v Macchia, 2018 NY Slip Op 06519 [2d Dept. 2018]

Upon the filing of a note of issue, there are two separate and distinct methods to obtain further disclosure. The first method, pursuant to Uniform Rules for Trial Courts (22 NYCRR) § 202.21(e), provides, in pertinent part, that: “Within 20 days after service of a note of issue and certificate of readiness, any party to the action or special proceeding may move to vacate the note of issue, upon affidavit showing in what respects the case is not ready for trial, and the court may vacate the note of issue if it appears that a material fact in the certificate of readiness is incorrect, or that the certificate of readiness fails to comply with the requirements of this section in some material respect.”

The second method, pursuant to Uniform Rules for Trial Courts (22 NYCRR) § 202.21(d), provides, in pertinent part, that: “Where unusual or unanticipated circumstances develop subsequent to the filing of a note of issue and certificate of readiness which require additional pretrial [*2]proceedings to prevent substantial prejudice, the court, upon motion supported by affidavit, may grant permission to conduct such necessary proceedings.”

Here, it appears that Macchia did not comply with either method, but, because depositions of the parties had not yet been conducted, the Court Attorney Referee so-ordered a stipulation which directed that further discovery take place beyond the date that summary judgment motions were to be filed. Given the Court Attorney Referee’s implicit consent to the basis for the extension of the time to move for summary judgment, Macchia reasonably believed that the deadline for summary judgment motions would likewise be extended. Thus, under these particular facts and circumstances, we find that Macchia demonstrated good cause for allowing an extension of time to move for summary judgment (see Brill v City of New York, 2 NY3d 648, 652; Parker v LIJMC-Satellite Dialysis Facility, 92 AD3d 740; 741-742; Grochowski v Ben Rubins, LLC, 81 AD3d 589, 591; Richardson v JAL Diversified Mgt., 73 AD3d 1012, 1012-1013; Kung v Zheng, 73 AD3d 862, 863; Abdalla v Mazl Taxi, Inc., 66 AD3d 803, 804; Jones v Grand Opal Constr. Corp., 64 AD3d 543, 544; McArdle v 123 Jackpot, Inc., 51 AD3d 743, 745; Sclafani v Washington Mut., 36 AD3d 682, 682). Accordingly, the Supreme Court should have granted Macchia’s motion for leave to extend the time to move for summary judgment, and we remit the matter to the Supreme Court, Queens County, for the selection of a new date by which summary judgment motions shall be filed.

 

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

Fun with 5015

Torres v Rely On Us, Inc., 2018 NY Slip Op 06587 [2d Dept. 2018]

In addition, even after expiration of the one-year limitations period set forth in CPLR 5015, "a court may vacate its own judgment for sufficient reason and in the interests of substantial justice" (Woodson v Mendon Leasing Corp., 100 NY2d 62, 68; see U.S. Bank N.A. v Losner, 145 AD3d 935; Yung Chong Ho v Uppal, 130 AD3d at 812; Hudson City Sav. Bank v Cohen, 120 AD3d 1304; Wells Fargo Bank v Hodge, 92 AD3d 775).

Here, contrary to the plaintiffs' contention, that branch of ROU's motion which was pursuant to CPLR 5015(a)(1) was not untimely, since there is no evidence that the plaintiffs ever served ROU with written notice of entry of the order dated November 19, 2014 (see Capurso v Capurso, 134 AD3d 974, 975; Garcia v Pepe, 42 AD3d 427, 430). Accordingly, the one-year time period never commenced (see CPLR 5015[a][1]).

Nevertheless, we agree with the Supreme Court's determination to deny those branches of ROU's motion which were to vacate the order dated November 19, 2014, and to extend the time to serve an answer. While the court has the discretion to accept law office failure as a reasonable excuse (see CPLR 2005; Shin v ITCI, Inc., 115 AD3d 736, 737), "[a] party attributing his or her default to a former attorney must provide a detailed and credible explanation of the default. Conclusory and unsubstantiated allegations of law office failure are not sufficient" (U.S. Bank N.A. v Barr, 139 AD3d 937, 937-938 [citation and internal quotation marks omitted]; see LaSalle Bank, N.A. v LoRusso, 155 AD3d 706, 707; Morris v Metropolitan Transp. Auth., 191 AD2d 682). "[M]ere neglect is not a reasonable excuse" (Ki Tae Kim v Bishop, 156 AD3d 776, 777 [internal quotation marks omitted]).

Contrary to ROU's contention, it failed to provide a detailed and credible explanation of the default, and no other evidence was submitted to corroborate the allegation of law office failure (see OneWest Bank, FSB v Singer, 153 AD3d 714, 716). Accordingly, ROU's "bare allegations of incompetence on the part of prior counsel" (Huggins v Parkset Supply, Ltd., 24 AD3d 610, 611 [internal quotation marks omitted]) were insufficient to establish an excusable default under CPLR 5015(a)(1) (see LaSalle Bank, N.A. v LoRusso, 155 AD3d 706; LaSalle Bank N.A. v Calle, 153 AD3d 801; Carillon Nursing & Rehabilitation Ctr., LLP v Fox, 118 AD3d 933, 934; Beale v Yepes, 309 AD2d 886).

Since ROU failed to establish a reasonable excuse for its default in appearing or answering the complaint, it is unnecessary to consider whether it established the existence of a potentially meritorious defense (see CPLR 5015[a][1]; LaSalle Bank N.A. v Calle, 153 AD3d at 803).

Furthermore, the interests of substantial justice did not warrant vacating ROU's default in the exercise of the Supreme Court's inherent power (see Yung Chong Ho v Uppal, 130 AD3d at 813).

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.

Discovery of the claims file after the commencement of the action

Rickard v New York Cent. Mut. Fire Ins. Co., 2018 NY Slip Op 06333 [4th Dept. 2018]

During discovery, plaintiff served upon defendant a notice to produce its entire SUM claim file. Defendant, relying upon Lalka v ACA Ins. Co. (128 AD3d 1508 [4th Dept 2015]), responded by providing plaintiff with the contents of the claim file up until the date of commencement of this action. During a pretrial conference, defendant made an offer to resolve the matter. In a follow-up letter, plaintiff demanded that defendant provide the entire claim file, including those parts generated after commencement of this action. Defendant moved for a protective order and alternative relief, including an in camera review, plaintiff cross-moved to compel disclosure of the entire claim file, and defendant filed a second motion, seeking dismissal of the complaint, which is not relevant on appeal. Supreme Court, inter alia, denied defendant's motion for a protective order and granted plaintiff's cross motion in part by directing defendant to provide plaintiff with "any and all documents in the claim file pertaining to the payment or rejection of the subject claim including those prepared after the filing of this lawsuit up to the time the settlement offer was made . . . including reports prepared by Defendant's attorney(s)." Defendant appeals.

We note at the outset that defendant did not challenge plaintiff's notice to produce, which requested the entire claim file without designating any documents or categories of documents therein, on the ground that such request was palpably improper because it was overbroad or sought matter not "material and necessary" for the prosecution of plaintiff's action (CPLR 3101 [a]; see CPLR 3120 [1], [2]; see generally Battease v State of New York, 129 AD3d 1579, 1580 [4th Dept 2015]; Heimbach v State Farm Ins., 114 AD3d 1221, 1222 [4th Dept 2014]), and that defendant's motion for a protective order was based upon the assertion that any documents contained in the claim file after the date of commencement were materials protected from discovery. Thus, the sole issue on appeal is whether defendant met its burden of establishing that those parts of the claim file withheld from discovery contain material that is protected from discovery. We conclude that defendant did not meet that burden.

To the extent that Lalka (128 AD3d at 1508) holds that any documents in a claim file created after commencement of an action in a SUM case in which there has been no denial or disclaimer of coverage are per se protected from discovery, it should not be followed. Rather, a party seeking a protective order under any of the categories of protected materials in CPLR 3101 bears "the burden of establishing any right to protection" (Spectrum Sys. Intl. Corp. v Chemical Bank, 78 NY2d 371, 377 [1991]; see Heimbach, 114 AD3d at 1222). " [A] court is not required to accept a party's characterization of material as privileged or confidential' " (Optic Plus Enters., Ltd. v Bausch & Lomb Inc., 37 AD3d 1185, 1186 [4th Dept 2007]). Ultimately, "resolution of the issue whether a particular document is . . . protected is necessarily a fact-specific determination . . . , most often requiring in camera review' " (id., quoting Spectrum Sys. Intl. Corp., 78 NY2d at 378).

Here, we conclude that defendant failed to meet its burden inasmuch as it relied solely upon the conclusory characterizations of its counsel that those parts of the claim file withheld from discovery contain protected material. We nonetheless further conclude that, under the circumstances of this case, the court abused its discretion by ordering the production of allegedly protected documents and instead should have granted the alternative relief requested by defendant, i.e., allowing it to create a privilege log pursuant to CPLR 3122 (b) followed by an in camera review of the subject documents by the court (see Schindler v City of New York, 134 AD3d 1013, 1014-1015 [2d Dept 2015]; Baliva v State Farm Mut. Auto. Ins. Co., 275 AD2d 1030, 1031 [4th Dept 2000]). We therefore reverse the order insofar as appealed from, vacate the first and second ordering paragraphs, grant the motion for a protective order insofar as it seeks an in camera review, and remit the matter to Supreme Court to determine the motion and the cross motion following an in camera review of the allegedly protected documents.

The bold is mine.

The failure to annex the pleadings isn’t quite so terrible [CPLR 3212(b) and CPLR 2001]

Sensible Choice Contr., LLC v Rodgers, 2018 NY Slip Op 05790 [2d Dept 2018]

The defendants' contention that the plaintiff's failure to annex the pleadings to its motion papers was a fatal defect is without merit. CPLR 3212(b) requires, inter alia, that a moving party support its motion for summary judgment by attaching a copy of the pleadings. However, [*2]CPLR 2001 permits a court, at any stage of an action, to disregard a party's mistake, omission, defect, or irregularity if a substantial right of a party is not prejudiced (see Wade v Knight Transp., Inc., 151 AD3d 1107, 1109). Here, the pleadings were not only electronically filed and available to the Supreme Court and the parties, but the answer was submitted by the defendants in opposition to the motion, and the summons and complaint were submitted in reply by the plaintiff. The defendants did not assert that they were prejudiced by the omission. Under such circumstances, the court properly disregarded the plaintiff's omission (see Brightman v Prison Health Serv., Inc., 108 AD3d 739, 742; Studio A Showroom, LLC v Yoon, 99 AD3d 632; Welch v Hauck, 18 AD3d 1096, 1098).

3012(b) and efiling

Mazzola v Village Hous. Assoc., LLC, 2018 NY Slip Op 05759 [2d Dept 2018]

To avoid dismissal of an action for failure to serve a complaint after a demand for the complaint has been made pursuant to CPLR 3012(b), a plaintiff must demonstrate both a reasonable excuse for the delay in serving the complaint and a potentially meritorious cause of action (see Lobel v Hilltop Vil. Coop., No. 4, 138 AD3d 938; Telian v Freund, 129 AD3d 828; Carducci v Russell, 120 AD3d 1375). The determination of what constitutes a reasonable excuse is within the sound discretion of the court (see Castor v Cuevas, 137 AD3d 734; Khamis v Corporate Transp. Group, Ltd., 135 AD3d 825, 826). While the court has the discretion to accept law office failure as a reasonable excuse (see CPLR 2005), a conclusory, undetailed, and uncorroborated claim of law office failure does not amount to a reasonable excuse (see Lobel v Hilltop Vil. Coop., No. 4, 138 AD3d at 939; Khamis v Corporate Transp. Group, Ltd., 135 AD3d at 826; Carducci v Russell, 120 AD3d at 1375-1376; Rock v New York City Tr. Auth., 78 AD3d 680; Leibowitz v Glickman, 50 AD3d 643; Miraglia v County of Nassau, 295 AD2d 411).

Here, the Supreme Court improvidently exercised its discretion in denying the defendant's motion pursuant to CPLR 3012(b) to dismiss the action on the ground that the plaintiff failed to timely serve the complaint. The excuse proffered by the plaintiff, that his counsel did not receive the demand for the complaint that was served upon him by regular mail, was unreasonable under the circumstances. The record demonstrates, and the plaintiff does not dispute, that this action was commenced as an electronically filed case in the New York State Courts Electronic Filing System (hereinafter NYSCEF). On August 2, 2016, the defendant uploaded a notice of appearance and demand for the complaint to the NYSCEF system, and also served a copy upon the plaintiff by regular mail. That same day, the NYSCEF system provided an email notification to the plaintiff's counsel that the notice of appearance and demand for the complaint had been uploaded. The plaintiff failed to proffer any excuse, let alone a reasonable excuse, for his failure to timely serve a complaint in response to this email notification. In light of the plaintiff's failure to demonstrate a reasonable excuse, we need not consider whether he had a potentially meritorious cause of action.

 

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 669; Myers v Slutsky, 139 AD2d 709, 711). Here, the defendants did not appear in the action, either formally or informally.

Amendment CPLR 3025

D'Angelo v Kujawski, 2018 NY Slip Op 05750 [2d Dept 2018]

"[A]n amendment which would shift a claim from a party without standing to another party who could have asserted that claim in the first instance is proper since such an amendment, by its nature, does not result in surprise or prejudice to the defendants who had prior knowledge of the claim and an opportunity to prepare a proper defense" (JCD Farms v Juul-Nielsen, 300 AD2d 446, 446 [internal quotation marks omitted]; see United Fairness, Inc. v Town of Woodbury, 113 AD3d 754, 755; Matter of Highland Hall Apts., LLC v New York State Div. of Hous. & Community Renewal, 66 AD3d 678, 682; Plotkin v New York City Tr. Auth., 220 AD2d 653, 654).

The Supreme Court providently exercised its discretion in granting the plaintiff leave to amend the complaint to substitute herself in her representative capacity as the plaintiff in place of herself in her individual capacity. The proposed amendment, which only sought to shift the causes of action from the plaintiff in her individual capacity to herself in her representative capacity, was proper since the allegations set forth in the complaint gave the appellants notice of the legal malpractice causes of action being asserted against them in the amended complaint (see United Fairness, Inc. v Town of Woodbury, 113 AD3d at 755; Matter of Highland Hall Apts., LLC v New York State Div. of Hous. & Community Renewal, 66 AD3d at 682; JCD Farms v Juul-Nielsen, 300 AD2d at 446; Plotkin v New York City Tr. Auth., 220 AD2d at 654). Moreover, the appellants' contention that they would be prejudiced by the amendment because the applicable statute of limitations had expired by the time the plaintiff sought leave to amend the complaint is without merit, since the original complaint was timely filed and gave the appellants notice of the transactions and occurrences pleaded in the amended complaint (see CPLR 203[f]; see also George v Mt. Sinai Hosp., 47 NY2d 170, 178; Wells Fargo Bank, N.A. v Eitani, 148 AD3d 193, 202).