Category: CPLR

Not an appealable paper and waiver

US Bank N.A. v Calle, 2020 NY Slip Op 02075 [2d Dept. 2020]

The paper appealed from is designated “MEMORANDUM” and directs the parties to “[s]ettle order” (see Funk v Barry , 89 NY2d 364, 367). Thus, the paper appealed from constitutes a decision, not an order. The appeal from the decision must be dismissed, as no appeal lies from a decision (see CPLR 5512[a]; Schicchi v J.A. Green Constr. Corp ., 100 AD2d 509).

Wells Fargo Bank, N.A. v Trupia, 2020 NY Slip Op 02085 [2d Dept. 2020]

The defendant waived her contention that the plaintiff lacked standing, since she failed to specifically raise that contention on the prior appeal (see Wells Fargo Bank, N.A. v Trupia, 150 AD3d 1049; see also Candea v Candea, 173 AD3d 667, 669; Czernicki v Lawniczak, 103 AD3d 769, 770; Dimery v Ulster Sav. Bank, 82 AD3d 1034, 1034).

Appeal from judgment brings up…

Wells Fargo Bank, N.A. v Davis, 2020 NY Slip Op 02053 [2d Dept. 2020]

Although no appeal lies from a judgment entered upon the default of an appealing party (see CPLR 5511; Development Strategies Co., LLC, Profit Sharing Plan v Astoria Equities, Inc., 71 AD3d 628; Murphy v Shaw, 34 AD3d 657, 658), an appeal from such a judgment brings up for review those matters which were the subject of contest before the Supreme Court (see Geffner v Mercy Med. Center, 167 AD3d 571, 572; Bottini v Bottini, 164 AD3d 556, 558; Sarlo-Pinzur v Pinzur, 59 AD3d 607, 607-608; see also James v Powell, 19 NY2d 249, 256 n 3). The only issue the defendant raises on this appeal is whether the plaintiff established its standing to maintain the action. This issue was litigated at the inquest and was determined by the Supreme Court at the inquest. Thus, the issue of the plaintiff’s standing is properly before us.

3116(a) use of transcripts

Greenman v 2451 Broadway Mkt., Inc., 2020 NY Slip Op 01962 [1st Dept. 2020]

The trial court erred in permitting defendants to use the transcripts of plaintiff’s and his nonparty wife’s depositions at trial, since the transcripts had never been served upon plaintiff and his wife in accordance with CPLR 3116(a) (Li Xian v Tat Lee Supplies Co., Inc., 170 AD3d 538 [1st Dept 2019]; Ramirez v Willow Ridge Country Club, 84 AD3d 452 [1st Dept 2011]). Defendants used the transcripts extensively, both on cross-examination and as direct evidence, and, given the centrality of the issue of credibility, the error cannot be regarded as harmless (see Rivera v New York City Tr. Auth., 54 AD3d 545, 548 [1st Dept 2008]).

The trial court further erred in permitting defense counsel to argue that the actual cause of plaintiff’s fall was the effect of the Valium he had been given earlier that day in connection with a medical visit, since no evidence had been offered as to the dose plaintiff was given, the length of time the Valium would have remained in his system after his medical procedure, or the effect the Valium would have had on his ability to ambulate at the time of his accident (see Kaminer v John Hancock Mut. Ins. Co., 199 AD2d 53 [1st Dept 1993]).

Preliminary injunction should not grant ultimate relief requested

Berman v TRG Waterfront Lender, LLC, 2020 NY Slip Op 01902 [2d Dept. 2020]

“[A]bsent extraordinary circumstances, a preliminary injunction will not issue where to do so would grant the movant the ultimate relief to which he or she would be entitled in a final judgment” (SHS Baisley, LLC v Res Land, Inc., 18 AD3d 727, 728; accord Zoller v HSBC Mtge. Corp [USA], 135 AD3d 932, 933; see Board of Mgrs. of Wharfside Condominium v Nehrich, 73 AD3d 822, 824). Here, as TRG and Hansen contend, the Supreme Court should not have, in effect, granted the ultimate relief requested in Berman’s complaint, which was the return of the down payment. In ordering Hansen to return the down payment to Berman, the court, in effect, treated Berman’s motion as one for summary judgment (see CPLR 3212; St. Paul Fire & Mar. Ins. Co. v York Claims Serv., 308 AD2d 347, 349), which was improper, as issue had not been joined (see CPLR 3212[a]; City of Rochester v Chairella, 65 NY2d 92, 101; St. Paul Fire & Mar. Ins. Co. v York Claims Serv., 308 AD2d at 349).

Moreover, Berman failed to demonstrate his entitlement to temporary injunctive relief pursuant to CPLR 6301, as he failed to establish any of the three required elements for such relief: (1) likelihood of ultimate success on the merits, (2) irreparable injury absent granting of a preliminary injunction, (3) and a balancing of equities in his favor (see Keller v Kay, 170 AD3d 978, 981; Carroll v Dicker, 162 AD3d 741, 742; St. Paul Fire & Mar. Ins. Co. v York Claims Serv., 308 AD2d at 348).

 

 

5015(a)(1)(2)(3)

M&T Bank v Crespo, 2020 NY Slip Op 01608 [2d Dept. 2020]

“CPLR 5015(a) authorizes a court to relieve a party from an order or judgment, on motion, based on the existence of specified grounds[, including]: . . . newly discovered evidence (see CPLR 5015[a][2]); [and] fraud, misrepresentation, or other misconduct of an adverse party (see CPLR 5015[a][3])” (Bank of N.Y. Mellon Trust Co., N.A. v Thonfeld, 172 AD3d 665, 666). “A party seeking to vacate a judgment pursuant to CPLR 5015(a)(2) must establish, inter alia, that the newly discovered evidence probably would have produced a different result” (OneWest Bank, FSB v Galloway, 148 AD3d 818, 819; see Wall St. Mtge. Bankers, Ltd. v Rodgers, 148 AD3d 1088, 1089; Meltzer v Meltzer, 140 AD3d 716, 717).

Here, we agree with the Supreme Court’s determination granting the plaintiff’s motion for a judgment of foreclosure and sale and denying the defendant’s cross motion. The defendant failed to demonstrate that the newly discovered evidence probably would have produced a different result (see Wall St. Mtge. Bankers, Ltd. v Rodgers, 148 AD3d at 1089; OneWest Bank, FSB v Galloway, 148 AD3d at 819; Meltzer v Meltzer, 140 AD3d at 717). Further, the defendant failed to establish that the plaintiff engaged in any fraud, misrepresentation, or other misconduct warranting vacatur of the judgment pursuant to CPLR 5015(a)(3) (see Deutsche Bank Natl. Trust Co. v Conway, 169 AD3d 641, 642; Kondaur Capital Corp. v Stewart, 166 AD3d 748, 750; Bank of N.Y. Mellon Trust Co., N.A. v Sukhu, 163 AD3d 748, 751).

Maruf v E.B. Mgt. Props., LLC, 2020 NY Slip Op 01610 [2d Dept. 2020]

A party seeking to vacate an order entered upon his or her default in opposing a motion must demonstrate both a reasonable excuse for the default and a potentially meritorious [*2]opposition to the motion (see CPLR 5015[a][1]; Seaman v New York Univ., 175 AD3d 1578, 1579). Law office failure may qualify as a reasonable excuse for a party’s default if the claim of such failure is supported by a credible explanation of the default (see Singh v Sukhu, ___ AD3d ___, 2020 NY Slip Op 01105 [2d Dept 2020]). Nevertheless, ” [w]hile CPLR 2005 allows courts to excuse a default due to law office failure, it was not the Legislature’s intent to routinely excuse such defaults, and mere neglect will not be accepted as a reasonable excuse'” (Ortega v Bisogno & Meyerson, 38 AD3d 510, 511, quoting Incorporated Vil. of Hempstead v Jablonsky, 283 AD2d 553, 553-554; see Bank of N.Y. Mellon Trust Co., N.A. v Talukder, 176 AD3d 772, 774; Seaman v New York Univ., 175 AD3d at 1579).

Here, the plaintiff’s counsel asserted that they failed to oppose the defendant’s motion because they had the action marked in their calendaring system as “stayed.” However, the plaintiff’s counsel made no effort to explain if or why the action remained marked as stayed after having entered into the January 10, 2017, stipulation lifting the stay on motion practice. Further, the plaintiff’s counsel appeared on the return date of the motion to strike the complaint, despite allegedly believing that motion practice was stayed, and the matter was adjourned so as to allow the plaintiff additional time to oppose the motion. Notwithstanding the adjournment, the plaintiff failed to file opposition papers. The plaintiff also did not offer any excuse for the nine-month delay in moving to vacate the default (see Nanas v Govas, 176 AD3d 956, 957). Under these circumstances, the plaintiff failed to offer a reasonable excuse for his default.

In any event, the plaintiff failed to demonstrate a potentially meritorious defense to the motion to strike the complaint. Before a court invokes the drastic remedy of striking a pleading, there must be a clear showing that the failure to comply with discovery was willful and contumacious (see Harris v City of New York, 117 AD3d 790; Almonte v Pichardo, 105 AD3d 687, 688). Willful and contumacious conduct may be inferred from a party’s repeated failure to comply with discovery, coupled with inadequate explanations for those failures, or a failure to comply with discovery over an extended period of time (see Teitelbaum v Maimonides Med. Ctr., 144 AD3d 1013; Orgel v Stewart Tit. Ins. Co., 91 AD3d 922, 923). Here, on his motion to vacate, the plaintiff did not provide an explanation for his failure to comply with discovery over the course of one year, despite four stipulations requiring the disclosure (see Orgel v Stewart Tit. Ins. Co., 91 AD3d at 924).

 

CPLR 503 and 510 [Venue]

Drayer-Arnow v Ambrosio & Co., Inc., 2020 NY Slip Op 01601 [2d Dept. 2020]

CPLR 503 provides, in pertinent part, that “[e]xcept where otherwise prescribed by law, the place of trial shall be in the county in which one of the parties resided when it was commenced” (CPLR 503[a]). The sole residence of a domestic corporation for venue purposes is the county designated in its certificate of incorporation, despite its maintenance of an office or facility in another county (see CPLR 503[c]; O.K. v Y.M. & Y.W.H.A. of Williamsburg, Inc., 175 AD3d 540; Kidd v 22-11 Realty, LLC, 142 AD3d 488, 489; Matoszko v Kielmanowicz, 136 AD3d 762, 763).

“To effect a change of venue pursuant to CPLR 510(1), a defendant must show that the plaintiff’s choice of venue is improper and that its choice of venue is proper” (Gonzalez v Sun Moon Enters. Corp., 53 AD3d 526, 526; see Kidd v 22-11 Realty, LLC, 142 AD3d at 489). To succeed on their motions here, the moving defendants were obligated to demonstrate that, on the date that this action was commenced, none of the parties resided in Queens County (see Pomaquiza v 145 WS Owner, LLC, 172 AD3d 1119, 1120; Campbell v Western Beef, 123 AD3d 966, 967; Ramos v Cooper Tire & Rubber Co., 62 AD3d 773). Only if the moving defendants made such a showing was the plaintiff required to establish, in opposition, that the venue she selected was proper (see Deas v Ahmed, 120 AD3d 750, 751; Chehab v Roitman, 120 AD3d 736, 737).

Here, the moving defendants failed to submit the certificate of incorporation of Inshallah. In support of its motion, Northridge admitted that the address of Inshallah’s principal office listed on the website of the New York State Department of State, Division of Corporations, was located in Queens County, which only confirmed that the plaintiff’s choice of venue was proper. Although Inshallah’s chief executive officer claimed that Inshallah’s principal office was in Suffolk County and that it no longer maintained its principal office in Queens County, the moving defendants failed to establish that Inshallah’s certificate of incorporation had been amended to designate a county other than Queens (see Kidd v 22-11 Realty, LLC, 142 AD3d at 489; Matoszko v Kielmanowicz, 136 AD3d at 763; Hamilton v Corona Ready Mix, Inc., 21 AD3d 448, 449). The plaintiff’s submission, in opposition, of a certified copy of Inshallah’s certificate of incorporation, which demonstrated that Inshallah’s principal office was located in Queens County, conclusively established that her choice of venue was proper. Accordingly, those branches of their motions which were pursuant to CPLR 510(1) and 511(a) to change the venue of the action from Queens County to Suffolk County should have been denied (see O.K. v Y.M. & Y.W.H.A. of Williamsburg, Inc., 175 AD3d 540; Kidd v 22-11 Realty, LLC, 142 AD3d at 489; Ramos v Cooper Tire & Rubber Co., 62 AD3d at 773).

5015 and mere neglect

Campbell v TPK Heating, Ltd., 2020 NY Slip Op 01595 [2d Dept. 2020]

“The court has discretion to accept law office failure as a reasonable excuse (see CPLR 2005) where the claim is supported by a detailed and credible explanation of the default” (Option One Mtge. Corp. v Rose, 164 AD3d at 1252; see Seaman v New York Univ., 175 AD3d 1578; Soto v Chelsea W26, LLC, 166 AD3d 1048, 1049). “However, mere neglect is not a reasonable excuse” (Seaman v New York Univ., 175 AD3d at 1579). Where a claim of law office failure is conclusory and unsubstantiated or lacking in credibility, it should be rejected (see Kondrotas-Williams v Westbridge Enters., Inc., 170 AD3d 983, 985; Lefcort v Samowitz, 165 AD3d 772, 773).

Here, the plaintiff’s unsubstantiated allegation of law office failure was insufficient to demonstrate a reasonable excuse for its default in appearing at the calendar call on March 6, 2017 (see Option One Mtge. Corp. v Rose, 164 AD3d at 1252). Moreover, the plaintiff proffers no excuse for his more than one-year delay in moving to vacate the order directing dismissal of the action and in taking any steps to ascertain the status of the case (see Diamond Truck Leasing Corp. v Cross Country Ins. Brokerage, Inc., 62 AD3d 745; Edwards v Feliz, 28 AD3d 512, 513).

2309(c)

Lately, it seemed like the Courts were treating it as if did not exist, allowing parties to cure the defect whenever they wanted and even after the motion was submitted.  Not the case here.

Attilio v Torres, 2020 NY Slip Op 01578 [1st Dept. 2020]

We did not consider the affidavits by defendants’ putative expert biomechanical engineer, because they were notarized without the state and not accompanied by the requisite certificate of conformity (see CPLR 2309[c]; see generally Midfirst Bank v Agho, 121 AD3d 343, 350 [2d Dept 2014]). Moreover, the technical defect was not corrected, despite plaintiff’s timely objection in opposition to defendants’ motion (compare Sanchez v Oxcin, 157 AD3d 561, 563 [1st Dept 2018] [“assuming” burden shifted to plaintiff based on engineer’s unsworn report, “since she did not object to its form”]; Shinn v Catanzaro, 1 AD3d 195, 197-198 [1st Dept 2003] [defendant’s argument that plaintiffs’ submissions were not in admissible form was unpreserved for appellate review and therefore waived]).

Foundation without a document

Deutsche Bank Natl. Trust Co. v Kirschenbaum, 2020 NY Slip Op 01573 [1st Dept 2020]

 While an employee may lay a business record foundation for documents without having personal knowledge of their contents (see Bank of Am., N.A. v Brannon, 156 AD3d 1 [1st Dept 2017]), here no business record is attached that supports the employee’s conclusion regarding when plaintiff came into possession of the note. This is insufficient (see Residential Credit Solutions, Inc. v Gould, 171 AD3d 638, 638-643 [1st Dept 2019]; Deutsche Bank Natl. Trust Co. v Guevara, 170 AD3d 603, 603-605 [1st Dept 2019]). Unlike the plaintiffs in Bank of N.Y. Mellon v Knowles (151 AD3d 596 [1st Dept 2017]) and Nationstar Mtge. LLC v Islam (168 AD3d 583 [1st Dept 2019]), plaintiff did not attach a copy of the note to its summons and complaint.