Category: CPLR

3216, Administrative Dismissals, and Law of the Case

Deutsche Bank Natl. Trust Co. v Gambino, 2020 NY Slip Op 01476 [2d Dept 2020]

In an order dated May 3, 2012, the Bank was directed to move for an order of reference on or before May 31, 2012, “or the matter will be dismissed for plaintiff’s failure to prosecute.” The Bank took no further action, and the 2009 action was “administratively dismissed” in July 2012.

In 2015, the Bank, denominated as “Deutsche Bank National Trust Company, as Trustee for Morgan Stanley ABS Capital I Inc. Trust 2004-NC4, Mortgage Pass-Through Certificates, Series 2004-NC4,” commenced a new action against, among others, Gambino, to foreclose the same mortgage (hereinafter the 2015 foreclosure action). In the complaint, the Bank recited that it intended to have the 2009 action discontinued. Gambino moved, inter alia, to dismiss the complaint in the 2015 foreclosure action insofar as asserted against her as time-barred, contending that more than six years had elapsed since the acceleration of the debt in the 2009 action, and that the 2009 action had been “administratively dismissed” in 2012. In an order dated March 17, 2016, the Supreme Court denied the motion on the ground that the 2009 action had never been properly dismissed because a 90-day demand was never served upon the Bank pursuant to CPLR 3216. Gambino appealed from the order dated March 17, 2016.

On Gambino’s prior appeal, this Court determined that the Supreme Court erred in denying Gambino’s motion on a ground that the parties had not litigated, namely that the 2009 action had never been properly dismissed. This Court reversed the Supreme Court’s denial of Gambino’s motion to dismiss the complaint in the 2015 foreclosure action insofar as asserted against her, determining that it was time-barred (see Deutsche Bank Natl. Trust Co. v Gambino, 153 AD3d 1232 [hereinafter Gambino I]).

In December 2016, while the prior appeal was pending before this Court, the Bank moved, inter alia, to restore the 2009 action to the active calendar. In relevant part, the Bank argued that the Supreme Court was without authority to dismiss this action due to its failure to comply with CPLR 3216(b). Gambino opposed the motion, contending, among other things, that the time to seek restoration had expired, and she cross-moved to dismiss the complaint insofar as asserted against her. In an order dated April 14, 2017, the Supreme Court, inter alia, denied that branch of the Bank’s motion which was to restore the 2009 action to the active calendar and granted Gambino’s cross motion to dismiss the complaint insofar as asserted against her. The Bank appeals.

Contrary to Gambino’s contention, this Court’s determination in Gambino I did not constitute the law of the case with regard to the propriety of the dismissal of the 2009 action. The doctrine of the law of the case “applies only to legal determinations that were necessarily resolved on the merits in [a] prior decision, and to the same questions presented in the same case” (Mosby v Parilla, 140 AD3d 1129, 1130-1131 [internal quotation marks omitted]; see Ramanathan v Aharon, 109 AD3d 529, 530). In Gambino I, this Court concluded only that the 2015 foreclosure action was time-barred. As this Court expressly stated, in Gambino I, the plaintiff did not dispute the propriety of the dismissal of the 2009 action and, therefore, any issue as to whether the 2009 action had been properly dismissed was not before this Court (see Deutsche Bank Natl. Trust Co. v Gambino, 153 AD3d at 1234).

Nor is the Bank precluded by the concept of judicial estoppel from disputing the administrative dismissal of the 2009 action. While, in an effort to successfully prosecute the 2015 foreclosure action, the Bank represented that it would seek to discontinue the 2009 action, it is not judicially estopped from changing its position. ” [A] party who assumes a certain position in a prior legal proceeding and secures a favorable judgment therein is precluded from assuming a contrary position in another action simply because his or her interests have changed'” (Barker v Amorini, 121 AD3d 823, 824, quoting GECMC 2007-C1 Burnett St., LLC v Hoti Enters., L.P., 115 AD3d 642, 643). The Bank did not obtain a favorable judgment in the 2015 foreclosure action.

The Supreme Court should have granted that branch of the Bank’s motion which was to restore the 2009 action to the active calendar. The 2009 action was never formally dismissed, as the marking-off procedures of CPLR 3404 do not apply to pre-note of issue actions such as this one (see WM Specialty Mortg., LLC v Palazzollo, 145 AD3d 714, 715; JPMorgan Chase Bank, N.A. v Mehrnia, 143 AD3d 946, 947). Since the 2009 action could not properly be marked off pursuant to CPLR 3404, the Bank was not required to move to restore within any specified time frame and was not obligated to demonstrate a reasonable excuse and a potentially meritorious claim (see Bank of N.Y. v Arden, 140 AD3d 1099, 1100; Yunga v Yonkers Contr. Co., Inc., 134 AD3d 1031, 1033; Rakha v Pinnacle Bus Servs., 98 AD3d 657, 657-658). Further, there was neither a 90-day notice pursuant to CPLR 3216 (see Onewest Bank, FSB v Kaur, 172 AD3d 1392, 1393; Campbell v New York City Tr. Auth., 109 AD3d 455, 455), nor an order dismissing the complaint pursuant to 22 NYCRR 202.27 (see Wells Fargo Bank, N.A. v Drago, 170 AD3d 1083, 1084; JPMorgan Chase Bank, N.A. v Mehrnia, 143 AD3d at 947). Finally, Gambino does not contend that the 2009 action was dismissed pursuant to CPLR 3215(c).

Insurer related delay

Bank of N.Y. Mellon v Van Roten, 2020 NY Slip Op 01471 [2d Dept. 2020]

“To extend the time to answer the complaint and to 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” (Bank of N.Y. Mellon v Tedesco, 174 AD3d 490, 491; see Aurora Loan Servs., LLC v Movtady, 165 AD3d 1025, 1027). Here, the defendant’s allegations of an insurer-related delay, without more, were insufficient to establish a reasonable excuse for his default (see Hamilton v Adriatic Dev. Corp., 150 AD3d 835, 836; Blythe v BJ’s Wholesale Club, Inc., 123 AD3d 1073, 1073; Gartner v Unified Windows, Doors & Siding, Inc., 71 AD3d 631, 632). Accordingly, we need not address whether he has a potentially meritorious defense to the action (see New Century Mtge. Corp. v Corriette, 117 AD3d 1011).

” On a motion for leave to enter a default judgment against a defendant based on the failure to answer or appear, a plaintiff must submit proof of service of the summons and complaint, proof of the facts constituting the cause of action, and proof of the defendant’s default”‘ (U.S. Bank N.A. v Gilchrist, 172 AD3d 1425, 1427, quoting L & Z Masonry Corp. v Mose, 167 AD3d 728, 729; see CPLR 3215[f]). “Given that in default proceedings the defendant has failed to appear and the plaintiff does not have the benefit of discovery,” the plaintiff’s proof “need only allege enough facts to enable a court to determine that a viable cause of action exists” (Woodson v Mendon Leasing Corp., 100 NY2d 62, 70-71; see L & Z Masonry Corp. v Mose, 167 AD3d at 729).

Inherent authority to vacate

Braunstein v Hodges, 2020 NY Slip Op 00842 [2d Dept 2020]

Although the court retains inherent discretionary power to relieve a party from a judgment or order for sufficient reason and in the interest of substantial justice, “[a] court’s inherent power to exercise control over its judgment is not plenary, and should be resorted to only to relieve a party from judgments taken through [fraud,] mistake, inadvertence, surprise or excusable neglect” (Matter of McKenna v County of Nassau, Off. of County Attorney, 61 NY2d 739, 742 [internal quotation marks omitted]; see Citimortgage, Inc. v Maldonado, 171 AD3d 1007, 1008). Further, “[t]his discretion is reserved for unique or unusual’ circumstances that warrant such action” (Cox v Marshall, 161 AD3d 1140, 1142, quoting Katz v Marra, 74 AD3d 888, 891).

Under the circumstances of this case, we agree with the Supreme Court’s determination denying the plaintiffs’ motion (see Torres v Rely On Us, Inc., 165 AD3d 731, 734; Kleynerman v MJGC Home Care, 153 AD3d 1246, 1247). The plaintiffs failed to show the existence of any actual conflict of interest, impropriety, or bias with respect to the March 2016 order (see Matter of Serkez v Serkez, 34 AD3d 592, 592; see also People v Smith, 63 NY2d 41, 68).

CPLR 317

Bookman v 816 Belmont Realty, LLC, 2020 NY Slip Op 01318 [2d Dept. 2020]

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 (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141; Dove v 143 Sch. St. Realty Corp., 172 AD3d 1315, 1316). Here, the defendant was not entitled to vacatur of its default pursuant to CPLR 317. The record reflects that, since September 2011, the defendant [*2]had not filed, with the Secretary of State, the required biennial form that would have apprised the Secretary of State of its current address (see Limited Liability Company Law § 301[e]), thus raising an inference that the defendant deliberately attempted to avoid notice of actions commenced against it (see Cruz v Keter Residence, LLC, 115 AD3d 700, 701; see also Santiago v Sansue Realty Corp., 243 AD2d 622, 622-623).

5015 in the Second Department

The Second Department is usually way more strict than the First (“not particular compelling”).  This seems to be a change.

P&H Painting, Inc. v Flintlock Constr. Servs., LLC, 2020 NY Slip Op 00603 [2d Dept. 2020]

Although the general rule is that in order to vacate a default, a party must demonstrate a reasonable excuse for the default and a potentially meritorious defense (see CPLR 5015[a][1]), the sufficiency of an excuse is not as significant where the default is only a short period (see Vallario v 25 W. 24th St. Flatiron, LLC, 149 AD3d 791, 792-793; Chakmakian v Maroney, 78 AD3d 1103, 1104).

2221 Renewal in the interest of justice

Ross v Lewis, 2020 NY Slip Op 01461 [1st Dept. 2020]

The duty of a landowner to take reasonable measures to remedy a dangerous condition caused by a storm is suspended while the storm is in progress, and does not commence until a reasonable time after the storm has ended (see Solazzo v New York City Tr. Auth., 6 NY3d 734, 735 [2005]).

It was undisputed that the snow continued to fall, albeit in trace amounts, until 2:30 a.m. at the earliest, five and a half hours before the accident. The weather records and defendant’s expert’s affidavit, once presented in admissible form, indicated that it was snowing in more than trace amounts until 11 p.m. on January 23, 2016, and in trace amounts thereafter. Thus, a reasonable period of time to correct the snow and ice condition on the steps had not yet elapsed at the time of the accident, given the blizzard conditions.

Plaintiff asserts that the weather data was not in admissible form on defendant’s initial motion. However, the court in its discretion may grant renewal in the interest of justice, upon facts known to the movant at the time of the original motion so as not to “defeat substantive fairness” (see Rancho Santa Fe Assn. v Dolan-King, 36 AD3d 460, 461 [1st Dept 2007]). Here, the court improvidently exercised its discretion upon renewal in failing to consider the weather data, in that the charts were identical to the data submitted in connection with the initial motion and plaintiff did not challenge the information or authenticity of the data contained in the charts.

Plaintiff contends that, regardless of whether defendant was required to remove the snow at an earlier time, his efforts, as depicted in a photograph, exacerbated the dangerous condition.However, the photograph is too unclear to raise a triable issue of fact as to this speculative claim.

3124 Cell records

Dani v 551 W. 21st St. Owner LLC, 2020 NY Slip Op 01456 [1st Dept. 2020]

The court providently exercised its discretion in denying defendants’ motion (see generally Veras Inv. Partners, LLC v Akin Gump Strauss Hauer & Feld LLP, 52 AD3d 370, 373 [1st Dept 2008]). Defendants at this point have failed to satisfy the “threshold requirement” that the request was reasonably calculated to yield information that is “material and necessary” (Forman v Henkin, 30 NY3d 656, 661 [2018] [internal quotation marks omitted]). The affidavits submitted in support of the motion simply stated that plaintiff was holding his cell phone in his hand prior to the trip and fall accident, and that the cell phone was found near his body after the accident. As such, they were too speculative to warrant disclosure of plaintiff’s cell phone records (see Gough v Panorama Windows, Ltd., 133 AD3d 526 [1st Dept 2015]).

Default in opposing a motion

Singh v Sukhu, 2020 NY Slip Op 01105 [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 opposition to the motion (see CPLR 5015[a][1]; Credit Bur. of N.Y., Inc. v Rapid Realty 95, Inc., 137 AD3d 841, 841; J & J Alarcon Realty Corp. v Plantains Rest., Inc., 123 AD3d 886, 887; Bhuiyan v New York City Health & Hosps. Corp., 120 AD3d 1284, 1284; Schenk v Staten Is. Univ. Hosp., 108 AD3d 661, 662). “The determination of what constitutes a reasonable excuse lies within the trial court’s discretion” (Stewart v Berger, 137 AD3d 1103, 1105 [internal quotation marks omitted]). Law office failure may qualify as a reasonable excuse for a party’s default if the claim of such failure is supported by a detailed and credible explanation of the default (see Strunk v Revenge Cab Corp., 98 AD3d 1029, 1030.

Here, the plaintiff demonstrated a reasonable excuse for her default. The affirmation of her attorney explained that the plaintiff’s default was reasonable and inadvertent due to the fact that the attorney’s “calender service” never communicated the briefing schedule to counsel’s office and that counsel first learned of the August 19, 2016, date when it attempted to file the opposition papers only six days later (see Bank of N.Y. Mellon v Faragalla, 174 AD3d 677). The plaintiff also demonstrated a potentially meritorious defense to the DNJC defendants’ motion based upon the argument that the DNJC defendants were vicariously liable for Lopez’s negligence (see Galasso, Langione & Botter, LLP v Galasso, 176 AD3d 1176). Accordingly, the Supreme Court providently exercised its discretion in granting that branch of the plaintiff’s motion which was to vacate the prior order entered upon her default (see Advanced Remodeling of Long Is., Inc. v Monahan, 175 AD3d 1361; Credit Bur. of N.Y., Inc. v Rapid Realty 95, Inc., 137 AD3d at 841; Rocco v Family Foot Ctr., 94 AD3d 1077, 1079; Simpson v Tommy Hilfiger U.S.A., Inc., 48 AD3d 389, 392).

 

3211(a)(7) standard

Leader v Steinway, Inc., 2020 NY Slip Op 01153 [2d Dept. 2020]

 “[T]he sole criterion [on such a motion] is whether the pleading states a cause of action, and if from its four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law a motion for dismissal will fail” (Guggenheimer v Ginzburg, 43 NY2d 268, 275). The complaint must be construed liberally, the factual allegations deemed to be true, and the nonmoving party granted the benefit of every possible favorable inference (see Leon v Martinez, 84 NY2d at 87-88).