Category: CPLR

3126 [the records did not exist]

Tanriverdi v United Skates of Am., Inc., 2018 NY Slip Op 05885 [2nd Dept 2018]

As a result of the plaintiffs' failure to disclose salon appointment records dating back to February 2011, the conditional order became absolute (see Wilson v Galicia Contr. & Restoration Corp., 10 NY3d 827, 830; Mars v Sharp, 90 AD3d 865, 865-866; Zouev v City of New York, 32 AD3d 850, 850). To be relieved of the adverse impact of the conditional order, the plaintiffs were required to demonstrate a reasonable excuse and a potentially meritorious cause of action (see Gibbs v St. Barnabas Hosp., 16 NY3d 74, 79-83; Corex-SPA v Janel Group of N.Y., Inc., 156 AD3d 599, 602; Zouev v City of New York, 32 AD3d at 850-851). Here, in response to the defendant's motion, the plaintiffs submitted evidence indicating that the conditional order of dismissal directed them to produce appointment records that did not exist, thereby demonstrating a reasonable excuse for their failure to produce the records in question (see Smith v County of Nassau, 138 AD3d 726, 728; Gottfried v Maizel, 68 AD3d 1060, 1061). The plaintiffs additionally demonstrated a potentially meritorious cause of action (see Miskanic v Roller Jam USA, Inc., 71 AD3d 1102, 1102-1103). Consequently, the Supreme Court improvidently exercised its discretion in granting the defendant's motion to dismiss the complaint.

Contrary to the defendant's contention, CPLR 3126 did not otherwise justify the Supreme Court's determination to dismiss the complaint. "Actions should be resolved on their merits whenever possible, and the drastic remedy of striking a pleading should not be employed without a clear showing that the failure to comply with court-ordered discovery was willful and contumacious" (Nunez v Laidlaw, 150 AD3d 1124, 1125; see Zakhidov v Boulevard Tenants Corp., 96 AD3d 737, 739). The defendant failed to make a clear showing that the plaintiffs' conduct was willful and contumacious, since, among other things, the plaintiffs complied with many discovery demands and substantially complied with the court's disclosure orders once the parties resumed discovery after failing to reach a settlement agreement. The plaintiffs' conduct did not warrant dismissal (see Nunez v Laidlaw, 150 AD3d at 1126; McDermott v Bahnatka, 83 AD3d 1014, 1015; LOP Dev., LLC v ZHL Group, Inc., 78 AD3d 1020, 1020).

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.

3212(a) prior to service of the answer

Ferrera v City of New York, 2018 NY Slip Op 05824 [2d Dept 2018]

To the extent the defendants sought to have their motion treated as one for summary judgment, because the defendants moved prior to service of their answer, their motion could not properly be considered as a motion for summary judgment (see CPLR 3212[a]), and the Supreme Court did not convert it to a motion for summary judgment (see CPLR 3211[c]). Thus, neither the plaintiff nor the City (which had cross-claimed against the defendants) was required to "lay[ ] bare their proof," and both were entitled to a reasonable opportunity to conduct discovery (Wesolowski v St. Francis Hosp., 108 AD3d 525, 526 [internal quotation marks omitted]).

3216

Deutsche Bank Natl. Trust Co. v Bastelli, 2018 NY Slip Op 05822 [2d Dept 2018]

"CPLR 3216 permits a court, on its own initiative, to dismiss an action for want of prosecution where certain conditions precedent have been complied with" (BankUnited v Kheyfets, 150 AD3d 948, 949; see CPLR 3216[b][3]). As relevant here, an action cannot be dismissed pursuant to CPLR 3216(a) "unless a written demand is served upon the party against whom such relief is sought' in accordance with the statutory requirements, along with a statement that the default by the party upon whom such notice is served in complying with such demand within said ninety day period will serve as a basis for a motion by the party serving said demand for dismissal as against him for unreasonably neglecting to proceed'" (Cadichon v Facelle, 18 NY3d 230, 235, quoting CPLR 3216[b][3]; see Deutsche Bank Natl. Trust Co. v Cotton, 147 AD3d 1020, 1021). While a conditional order of dismissal may have "the same effect as a valid 90-day notice pursuant to CPLR 3216" (Byers v Winthrop Univ. Hosp., 100 AD3d 817, 818; see Griffith v Wray, 109 AD3d 512, 513; Stallone v Richard, 95 AD3d 875, 876), the conditional order here "was defective in that it failed to state that the plaintiff's failure to comply with the notice will serve as a basis for a motion' by the court to dismiss the action for failure to prosecute" (Deutsche Bank Natl. Trust Co. v Cotton, 147 AD3d at 1021, quoting CPLR 3216[b][3] [emphasis added]). Moreover, the conditional order failed to satisfy the notice requirement on the additional ground that there was "no indication that the plaintiff's counsel was present at the status conference at which the court issued the conditional order of dismissal," nor was there "evidence that the order was ever properly served upon the plaintiff" (BankUnited v Kheyfets, 150 AD3d at 949). In the absence of proper notice, "the court was without power to dismiss the action for the plaintiff's failure to comply with the conditional order of dismissal" (id.). Lastly, the Supreme Court erred in administratively dismissing the action without further notice to the parties and without benefit of further judicial review (see Cadichon v Facelle, 18 NY3d at 235-236; Deutsche Bank Natl. Trust Co. v Cotton, 147 AD3d at 1021; US Bank N.A. v Saraceno, 147 AD3d 1005, 1006; Armstrong v B.R. Fries & Assoc., Inc., 95 AD3d 697, 698). Accordingly, the Supreme Court should have granted the plaintiff's motion to vacate the order dated October 3, 2013, and to restore the action to the active calendar.

CPLR 317

Stevens v Stepanski, 2018 NY Slip Op 05954 [2d Dept 2018]

CPLR 317 permits a defendant who has been served with a summons other than by personal delivery 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 (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141; Xiao Lou Li v China Cheung Gee Realty, LLC, 139 AD3d 724, 724-725). "[S]ervice on a corporation through delivery of process to the Secretary of State is not personal delivery' to the corporation" (Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d at 142). "The mere denial of receipt of the summons and complaint is not sufficient to establish lack of actual notice of the action in time to defend for the purpose of CPLR 317" (Goldfarb v Zhukov, 145 AD3d 757, 758; see Ultimate One Distrib. Corp. v 2900 Stillwell Ave., LLC, 140 AD3d 1054, 1055). Whether to grant relief pursuant to CPLR 317 is discretionary (see Goldfarb v Zhukov, 145 AD3d at 759), and relief may be denied "where, for example, a defendant's failure to personally receive notice of the summons was a result of a deliberate attempt to avoid such notice" (Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d at 143).

Here, Greenville did not contend that the address it kept on file with the Secretary of State was incorrect, and its shareholders effectively claimed ignorance as to why the summons and complaint were "unclaimed," without offering any details as to how Greenville ordinarily received mail at that address. Further, Greenville offered no explanation as to why it did not receive any of the other correspondence from the plaintiff, all of which were sent to the same address. Under these circumstances, Greenville's conclusory and unsubstantiated denial of service of the certified mailing card and other correspondence from the plaintiff was insufficient to establish that it did not have actual notice of the action in time to defend (see Xiao Lou Li v China Cheung Gee Realty, LLC, 139 AD3d at 725-726; see also Moran v Grand Slam Ventures, LLC, 160 AD3d 944). Although the return of a summons and complaint to the Secretary of State as "unclaimed" may be sufficient to warrant a hearing on the issue of whether a defendant had notice of the action in time to defend (see Drillman v Marsam Realty 13th Ave., LLC, 129 AD3d 903, 903-904), here, Greenville's failure to offer any details as to why it did not receive the certified mailing card or any of the other correspondence from the plaintiff during the pendency of the action was insufficient to raise a triable issue of fact warranting a hearing (see Baez v Ende Realty Corp., 78 AD3d 576, 576; see also Clover M. Barrett, P.C. v Gordon, 90 AD3d 973, 973-974). In light of the foregoing, it is unnecessary to determine whether Greenville demonstrated the existence of a potentially meritorious defense (see Xiao Lou Li v China Cheung Gee Realty, LLC, 139 AD3d at 726).

CPLR 2001, the fixer

Lipinsky v Yarusso, 2018 NY Slip Op 05925 [2d Dept 2018]

 Contrary to the defendant's contention, Walters' affidavit was admissible, notwithstanding that it was subscribed and sworn to out of state and not accompanied by a certificate of conformity as required by CPLR 2309(c), as such a defect is not fatal, and no substantial right of the defendant was prejudiced by disregarding the defect (see CPLR 2001; Voskoboinyk v Trebisovsky, 154 AD3d 997, 998; Bank of N.Y. Mellon v Vytalingam, 144 AD3d 1070, 1071). The defendant's contention that Walters' affidavit should not be considered because Walters had not previously been disclosed as a witness, raised for the first time on appeal, is not properly before this Court (see Warren v Carreras, 133 AD3d 592, 594).

Why bother having a rule (2309(c)), if it does not matter if it is followed?

Subpoenas and trial defaults and CPLR 5511

Bottini v Bottini, 2018 NY Slip Op 05665 [2d Dept 2018]

The Supreme Court properly determined that the plaintiff's conduct at trial was a knowing and willing default, as she attended the first day of trial and then voluntarily chose not to attend the remainder of the trial (see Sarlo-Pinzur v Pinzur, 59 AD3d 607, 607; Matter of Anita L. v Damon N., 54 AD3d 630, 631). Although no appeal lies from a judgment entered on the default of the appealing party (see CPLR 5511), an appeal from such a judgment brings up for review "those matters which were the subject of contest before the Supreme Court" (Sarlo-Pinzur v Pinzur, 59 AD3d at 607-608 [internal quotations omitted]; see James v Powell, 19 NY2d 249, 256 n 3; Alam v Alam, 123 AD3d 1066, 1067; Tun v Aw, 10 AD3d 651, 652). Here, contrary to the defendant's contention, the order dated March 28, 2016, in which the court granted the defendant's motion to quash to the extent of declining to so-order the 24 proposed subpoenas, is brought up for review.

As a pro se litigant, the plaintiff was unable to issue subpoenas on her own, and her subpoenas need to be so-ordered by the Supreme Court (see CPLR 2302; Hamilton v Touseull, 48 AD3d 520, 521). A subpoena duces tecum may not be used for the purposes of general discovery (see Matter of Terry D., 81 NY2d 1042, 1044; Wahab v Agris & Brenner, LLC, 106 AD3d 993, 994; Matter of Board of Educ. of City of N.Y. v Hankins, 294 AD2d 360, 360). Rather, the purpose of a subpoena duces tecum is " to compel the production of specific documents that are relevant and material to facts at issue in a pending judicial proceeding'" (Matter of Terry D., 81 NY2d at 1044, quoting Matter of Constantine v Leto, 157 AD2d 376, 378). Here, the plaintiff submitted the 24 proposed subpoenas to the court in February 2016, which was several months after the completion date for post-note of issue discovery. In addition to being overly broad, the subpoenas improperly sought the production of documents for the time period from 2007 through 2011, which was in violation of the court's prior orders. Under these circumstances, the court providently exercised its discretion by declining to so-order the 24 proposed subpoenas, thus effectively denying the plaintiff's ability to issue the subpoenas (see Wahab v Agris & Brenner, LLC, 106 AD3d at 994; Matter of Board of Educ. of City of N.Y. v Hankins, 294 AD2d at 360).

CPLR 5001 and 5002

Kachkovskiy v Khlebopros, 2018 NY Slip Op 05671 [2d Dept 2018]

We agree with the Supreme Court's determination that the plaintiff was not entitled to prejudgment interest. CPLR 5001(a) provides that interest shall be recovered upon a sum awarded for a breach of contract. CPLR 5001 further mandates that "[i]nterest shall be computed from the earliest ascertainable date the cause of action existed" (CPLR 5001[b]). "Where such damages were incurred at various times, interest shall be computed upon each item from the date it was incurred or upon all of the damages from a single reasonable intermediate date" (CPLR 5001[b]; see Baer v Anesthesia Assoc. of Mount Kisco, LLP, 57 AD3d 817, 819; Hayden v P. Zarkadas, P.C., 18 AD3d 500, 501; 155 Henry Owners Corp. v Lovlyn Realty Co., 231 AD2d 559, 560-561). CPLR 5001 further provides that "[t]he date from which interest is to be computed shall be specified in the verdict, report or decision" (CPLR 5001[c]). With limited exception, "[i]f a jury is discharged without specifying the date, the court upon motion shall fix the date" (id.). The party seeking prejudgment interest bears the burden of demonstrating the date from which interest should be computed (see Matter of Kelligrew, 63 AD3d 1064, 1066; see also Siegel, NY Prac § 411 at 720 [5th ed 2011]).

Here, the plaintiff failed to demonstrate when the damages were incurred. Under the particular circumstances of this case, the Supreme Court's determination that the damages were not incurred until the jury rendered its verdict was warranted (see generally Lee v Joseph E. Seagram & Sons, Inc., 592 F2d 39 [2d Cir]; accord Siegel, NY Prac § 411 at 720 [5th ed]; cf. Matter of Kelligrew, 63 AD3d at 1066). Accordingly, we agree with the court's determination to deny that branch of the plaintiff's posttrial cross motion which sought prejudgment interest pursuant to CPLR 5001.

We also agree with the Supreme Court's determination to deny that branch of the plaintiff's posttrial cross motion which sought prejudgment interest pursuant to CPLR 5002. That statute provides that "[i]nterest shall be recovered upon the total sum awarded . . . from the date the verdict was rendered . . . to the date of entry of final judgment" (CPLR 5002). Here, however, the defendant tendered the total amount due under the verdict, $81,000, on the same date that the verdict was returned. Under the circumstances, the defendant's tender of the verdict amount prevented the accrual of interest under CPLR 5002 (see O'Rourk v Berner, 249 AD2d 975, 976; Meiselman v Allstate Ins. Co., 197 AD2d 561, 561-562; see also 10-5001 Weinstein-Korn-Miller, NY Civ Prac CPLR ¶ 5001.10).

Furthermore, the Supreme Court properly declined to award the plaintiff an attorney's [*4]fee. "Under the general rule, the prevailing party in litigation may not collect his or her counsel fees unless supported by statute, court rule, or written agreement of the parties" (Rosenthal v Rosenthal, 151 AD3d 773, 774; see Markham Gardens, L.P. v 511 9th, LLC, 143 AD3d 949, 953). Here, the plaintiff failed to establish that he was entitled to recover an attorney's fee under the parties' agreements (see Fitzpatrick v Animal Care Hosp., PLLC, 104 AD3d 1078, 1081). Moreover, the court properly concluded that the plaintiff did not receive substantial relief, so as to warrant the conclusion that he prevailed on a central claim (see Chainani v Lucchino, 94 AD3d 1492, 1494).

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).