Category: CPLR

Matter of Fildon, LLC v Planning Bd. of the Inc. Vil. of Hempstead, 2018 NY Slip Op 05591 [2d Dept 2018]

Initially, the Supreme Court should not have transferred this proceeding to this Court pursuant to CPLR 7804(g) because the determination to be reviewed was "not made after a trial-type hearing held pursuant to direction of law at which evidence was taken" (Matter of M & V 99 Franklin Realty Corp. v Weiss, 124 AD3d 783, 784; see CPLR 7803[4]; Village Law § 7-725-a[11]; Matter of Navaretta v Town of Oyster Bay, 72 AD3d 823, 824; Matter of Halperin v City of New Rochelle, 24 AD3d 768, 769). Municipal land use agencies are "quasi-legislative, quasi-administrative bodies," and "the public hearings they conduct are informational in nature and [do] not involve the receipt of sworn testimony or taking of evidence within the meaning of CPLR 7803(4)" (Matter of Halperin v City of New Rochelle, 24 AD3d at 770 [internal quotation marks and citations omitted]). "Accordingly, determinations of such agencies are reviewed under the arbitrary and capricious' standard of CPLR 7803(3), and not the substantial evidence' standard of CPLR 7803(4)" (id.; see Matter of M & V 99 Franklin Realty Corp. v Weiss, 124 AD3d at 784). In the interest of judicial economy, this Court will nevertheless decide the petition on the merits, as the full administrative record is before this Court (see Matter of M & V 99 Franklin Realty Corp. v Weiss, 124 AD3d at 784; [*2]Matter of Halperin v City of New Rochelle, 24 AD3d at 772-773).

Laroche v Laroche, 2018 NY Slip Op 04708 [2d Dept 2018]

"If a party dies and the claim for or against him [or her] is not thereby extinguished the court shall order substitution of the proper parties" (CPLR 1015[a]). "A motion for substitution may be made by the successors or representatives of a party or by any party" (CPLR 1021). Further, "[i]f the event requiring substitution occurs before final judgment and substitution is not made within a reasonable time, the action may be dismissed as to the party for whom substitution should have been made" (CPLR 1021). "The Supreme Court is a court of general jurisdiction with the power to appoint a temporary administrator, and may do so to avoid delay and prejudice in a pending action" (Dieye v Royal Blue Servs., Inc., 104 AD3d 724, 726). The determination whether to exercise its authority to appoint a temporary administrator is addressed to the broad discretion of the Supreme Court (see Rosenfeld v Hotel Corp. of Am., 20 NY2d 25, 28; Lambert v Estren, 126 AD3d 942, 943; see e.g. Meczkowski v E.W. Howell Co., Inc., 63 AD3d 803). "In most instances the personal representative of the decedent's estate should be substituted in the action" (Weinstein-Korn-Miller, NY Civ Prac, ¶ 1015.06; see Grillo v Tese, 113 AD2d 871, 873).

Here, contrary to Allstate's contention, CPLR 1021 did not give Allstate authority to move to dismiss the complaint, but rather only gave permission to "any party" to move for substitution. Further, Allstate did not submit any proof that it gave notice to the persons interested in the defendant's estate of its motion as required by statute (see CPLR 1021). Moreover, CPLR 1021 provides that an action may be dismissed as to the party for whom substitution should have been made if substitution is not made within a reasonable time. "The determination of reasonableness requires consideration of several factors, including the diligence of the party seeking substitution, the prejudice to the other parties, and whether the party to be substituted has shown that the action or the defense has potential merit" (Terpis v Regal Hgts. Rehabilitation & Health Care Ctr., Inc., 108 AD3d 618, 619; see Alejandro v North Tarrytown Realty Assoc., 129 AD3d 749, 749; Riedel v Kapoor, 123 AD3d 996; Largo-Chicaiza v Westchester Scaffold Equip. Corp., 90 AD3d 716, 717). Absent from the record are any details regarding the diligence employed in seeking substitution, any demonstration that the defense would be prejudiced by the substitution, or a showing of the merits of either the complaint or the defense (cf. Borruso v New York Methodist Hosp., 84 AD3d 1293, 1295). Accordingly, the Supreme Court should have denied Allstate's motion pursuant to CPLR 1021 to dismiss the complaint.

However, with respect to the cross motion, the plaintiff failed to demonstrate any reasonable excuse for the delay in moving for the appointment and substitution of a representative for the defendant's estate. The plaintiff only cross-moved for the appointment and substitution in response to Allstate's motion to dismiss the complaint, and did not submit an affidavit of merit (see Alejandro v North Tarrytown Realty Assoc., 129 AD3d at 750; Terpis v Regal Hgts. Rehabilitation & Health Care Ctr., Inc., 108 AD3d at 619). Moreover, the plaintiff did not demonstrate the steps taken to secure the appointment of a personal representative or show that it was necessary for the Supreme Court to appoint a temporary administrator to avoid delay and prejudice in the pending action where issue had yet to be joined and Karen L. Lawrence had not appeared on behalf of the defendant (see CPLR 1015[a]; Kastrataj v Blades, 136 AD3d 756, 758; Lambert v Estren, 126 AD3d at 944). Accordingly, we agree with the Supreme Court's denial of the plaintiff's cross motion under the circumstances presented.

Matter of Wilson v Brown, 2018 NY Slip Op 04743 [2d Dept 2018]

"An appearance by a defendant in an action is deemed to be the equivalent of personal service of a summons upon him [or her], and therefore confers personal jurisdiction over him [or her], unless he [or she] asserts an objection to jurisdiction either by way of motion or in his [or her] answer" (Countrywide Home Loans Servicing, LP v Albert, 78 AD3d 983, 984 [internal quotation marks omitted]; see National Loan Invs., L.P. v Piscitello, 21 AD3d 537, 537-538). " By statute, a party may appear in an action by attorney (CPLR 321), and such an appearance constitutes an appearance by the party for purposes of conferring jurisdiction'" (National Loan Invs., L.P. v Piscitello, 21 AD3d at 537-538, quoting Skyline Agency v Coppotelli, Inc., 117 AD2d 135, 140). Here, by actively participating in the proceedings through her counsel, the mother waived any claim that the Family Court did not acquire personal jurisdiction over her (see Matter of Tylan C. [Patricia H.], 140 AD3d 1161, 1162; Matter of El-Sheemy v El-Sheemy, 35 AD3d 738, 739; Matter of Borggreen v Borggreen, 13 AD3d 756, 757; Matter of Fallon v Fallon, 4 AD3d 426, 427; Matter of Brozzo v Brozzo, 192 AD2d 878, 880).

The bold is mine.

JPMorgan Chase Bank N.A. v Wenegieme, 2018 NY Slip Op 04541 [2d Dept. 2018]

The plaintiff, who is the original lender, established its prima facie entitlement to judgment as a matter of law through the production of the mortgage, the unpaid note, and evidence of the defendant's default (see Wells Fargo Bank, N.A. v Ali, 122 AD3d 726, 726; Midfirst Bank v Agho, 121 AD3d 343, 347). In opposition, the defendant failed to raise a triable issue of fact.

Contrary to the defendant's contention, in the absence of a court order directing otherwise, the plaintiff had the capacity to continue this action after assigning the mortgage and note (see CPLR 1018; Woori Am. Bank v Global Universal Group Ltd., 134 AD3d 699, 700; Wells Fargo Bank, N.A. v Hudson, 98 AD3d 576, 577-578).

U.S. Bank, N.A. v Hossain, 2018 NY Slip Op 04593 [2d Dept. 2018]

This appeal was taken by notice of appeal dated February 18, 2016, and served on February 19, 2016. The notice of appeal was signed by an attorney from a law firm which identified itself as the attorneys for "Plaintiff's assignee," the assignee being identified as Wilmington Trust, National Association, not in its individual capacity but as Trustee for ARLP Securitization Trust Series 2015 (hereinafter Wilmington Trust). The brief filed in support of the appeal by Wilmington Trust characterizes Wilmington Trust as "Nonparty-Appellant." According to the brief, the subject mortgage was assigned by the plaintiff to Christiana Trust, a Division of Wilmington Savings Fund Society, FSB, not in its individual capacity but as Trustee of ARLP Trust 2 (hereinafter Christiana Trust), by assignment dated April 19, 2016, and recorded on July 18, 2016. Further, the brief asserts that the mortgage was assigned by Christiana Trust to Wilmington Trust by assignment dated May 18, 2016, and recorded on June 23, 2016.

The appeal must be dismissed as, according to the information provided by the appellant, it was neither a party to the action nor an assignee of a party at the time the appeal was taken (see CPLR 5511).

The bold is mine.

Hernstat v Anthony's Windows on the Lake, Inc., 2018 NY Slip Op 04311 [2d Dept. 2018]

The plaintiff commenced this personal injury action after she fell from an interior staircase at the defendants' premises. The defendants subsequently moved for summary judgment dismissing the complaint based on spoliation of evidence. The defendants contended that their efforts to defend against the action by arguing that the high-heeled shoes worn by the plaintiff at the time of her accident caused or contributed to her fall were fatally compromised by the plaintiff's disposal of the shoes shortly after her accident. In opposition to the motion, the plaintiff contended that the sanction of dismissal was unwarranted, and proposed the imposition of the lesser sanction of an adverse inference charge to be given to the jury at trial. The Supreme Court denied the defendants' motion and imposed the lesser sanction of an adverse inference charge, as requested by the plaintiff. The plaintiff appeals.

The appeal must be dismissed, as the plaintiff is not aggrieved by the order appealed from, which denied the defendants' motion for summary judgment and imposed the lesser sanction of an adverse inference charge in accordance with the plaintiff's request (see CPLR 5511; Pillai v Pillai, 153 AD3d 1290).