NYCRR – Page 5

22 NYCRR 202.27 requires CPLR R. 5015 analysis.

22 NYCRR 202.27 Defaults

(b) If the defendant appears but the plaintiff does
not, the judge may dismiss the action and may order a severance of
counterclaims or cross-claims.

Brown v Vanchieri, 2009 NY Slip Op 05942 (App. Div., 2nd, 2009)

Where, as here, an action on the trial calendar is dismissed pursuant
to 22 NYCRR 202.27(b), the dismissal of the action may be vacated, and
the action restored to the trial calendar, only if the plaintiff can
demonstrate both a reasonable excuse for the default and a meritorious
cause of action (see CPLR 5015[a][1]; Santiago v Santana, 54 AD3d 929, 930; Cazeau v Paul, 2 AD3d 477).
Under all of the circumstances, including the plaintiff's failure to
provide a reasonable excuse for his lengthy delay in moving for that
relief, the Supreme Court providently exercised its discretion in
denying the plaintiff's motion (see Seven Acre Wood St. Assoc. v Wood, 286 AD2d 432; Piacentini v Mineola Union Free School Dist., 267 AD2d 290, 291; cf. Matter of Putnam County Natl. Bank v JP Morgan Chase Bank, N.A., 57 AD3d 677, 678; Malik v Noe, 54 AD3d 733, 734).

The bold is mine.

CPLR R. 5015(a); 22 NYCRR 202.48; Stipulatons

CPLR R. 5015 Relief from judgment or order
(a) On motion
(1) excusable default…

22 NYCRR 202.48 Submission of orders, judgments and decrees for signature

Klughaupt v Hi-Tower Contrs., Inc., 2009 NY Slip Op 05750 (App. Div., 2nd, 2009)

The Supreme Court providently exercised its discretion in denying the
plaintiff's motion for leave to enter a default judgment against the
defendant Lynch Park, LLC (hereinafter Lynch Park), and in granting
Lynch Park's cross motion to vacate its default in answering and for
leave to serve a late answer (see CPLR 5015). Considering the
lack of any prejudice to the plaintiff as a result of the relatively
short three-week delay in serving an answer, the existence of a
potentially meritorious defense, and the public policy favoring the
resolution of cases on the merits, the Supreme Court properly excused
the de minimis delay in answering (see Schonfeld v Blue & White Food Prods. Corp., 29 AD3d 673; Yonkers Rib House, Inc. v 1789 Cent. Park Corp., 19 AD3d 687; Trimble v SAS Taxi Co., Inc., 8 AD3d 557; see e.g. Perez v Linshar Realty Corp., 259 AD2d 532; Swidler v World-Wide Volkswagen Corp., 85 AD2d 239, cf. Leifer v Pilgreen Corp.,AD3d,
2009 NY Slip Op 03872 [2d Dept 2009] [10-month delay in moving to
vacate default in answering or appearing, with no meritorious defense,
does not warrant vacatur of default]).

Diane v Ricale Taxi, Inc., 2009 NY Slip Op 05680 (App. Div., 1st, 2009)

Plaintiff fails to show that a judgment was ever issued, much
less served on appellant. The only exhibits attached to plaintiff's
opposition are an order granting a default judgment and directing an
inquest, with no notice of entry or affidavit of service, and a copy of
this Court's subsequent order (291 AD2d 320) involving another
defendant and containing no references to any judgment in any amount
against appellant. Accordingly, it does not appear that appellant's
one-year time limit under CPLR 5015(a)(1) to move for relief from a
judgment or order ever began to run, and appellant's motion should not
have been denied as untimely. For present purposes, appellant, who was
named a defendant only because he was one of two employees who
regularly drove the taxi involved in the accident, comes forward with
sufficient evidence that he could not have been the driver since the
accident occurred at night while he worked only days. Indeed, the
possibility that appellant had nothing to do with the accident would,
given a reasonable excuse, warrant vacatur of the default judgment in
the interest of justice even if the one-year time limit had run (see Johnson v Minskoff & Sons, 287 AD2d 233, 236 [2001]). We accept appellant's excuse that he did not understand the import of the legal documents he was [*2]receiving and trusted his employer's assurances that it would take care of the matter for him.

Another rare, "in the interests of justice" vacatur.

Rowley v Amrhein, 2009 NY Slip Op 05834 (App. Div., 1st, 2009)

Defendant's challenge to the judgment on the ground that it
inaccurately reflects the stipulation of settlement by including terms
that are inconsistent therewith is not preserved for appellate review
since there is no record that defendant raised
any objection to plaintiff's proposed judgment, as required by 22 NYCRR 202.48(c)(2) (see Salamone v Wincaf Props., 9 AD3d 127, 140 [2004], lv dismissed
4 NY3d 794 [2005]). Defendant's claim that he had no opportunity to
object to plaintiff's proposed judgment because he was not properly
served with a copy thereof is properly directed to Supreme Court in a
motion to vacate the judgment pursuant to CPLR 5015(a)(1), not to this
Court on appeal (see McCue v McCue, 225 AD2d 975, 976 [1996]; Levy v Blue Cross & Blue Shield of Greater N.Y., 124 AD2d 900, 901 [1986]).

Defendant's challenges to the judgment on the bases that it
grants plaintiff a divorce on a ground that he contests and fails to
adjudicate his counterclaim allege substantive errors in the judgment
that affect his substantial rights and not mere inconsistencies with
the intentions of the court and the parties as demonstrated by the
record. Thus, review may be obtained either through an appeal from the
judgment or through a motion to vacate pursuant to CPLR 5015(a) (Salamone,
9 AD3d at 133-134). The record reveals that Supreme Court did not
address the grounds for divorce or defendant's counterclaim.
Accordingly, we remand the matter for further proceedings to determine
these issues.

Defendant's contention that the stipulation disposing of the
parties' economic issues is unenforceable against him is not properly
before us, since defendant never moved in Supreme Court to set aside
the stipulation (see Garrison v Garrison, 52 AD3d 927, 928 [2008]; Hopkins v Hopkins, 97 AD2d 457 [1983]). In any event, the terms of the stipulation were memorialized in [*2]a
proposed preliminary conference order that the court reviewed during
the October 30, 2007 proceedings, the stipulation was signed and
initialed by both parties, and the court expressly informed the parties
on the record that it was a binding contract. The stipulation contained
no express reservation of the right not to be bound until the execution
of a more formal agreement. To the contrary, all the essential terms
and conditions of an agreement were set forth in the stipulation, and
all that remained was their translation into a more formal document (see Brause v Goldman, 10 AD2d 328, 332 [1960], affd 9 NY2d 620 [1961]).

The bold is mine.

Discovery: CPLR § 3126 ;R. 3124 & 22 NYCRR § 202.7; Spoilation & Waiver & a little CPLR R. 3212(a)

CPLR § 3126 Penalties for refusal to comply with order or to disclose

CPLR R. 3124 Failure to disclose; motion to compel disclosure

22 NYCRR § 202.7 Calendaring of Motions; Uniform Notice of Motion Form; Affirmation of Good Faith
(a)(2)

Holland v W.M. Realty Mgt., Inc., 2009 NY Slip Op 05844 (App. Div., 2nd, 2009)

Under the common-law doctrine of spoliation, when a party
negligently loses or intentionally destroys key evidence, the
responsible party may be sanctioned under CPLR 3126 (see Ingoglia v Barnes & Noble Coll. Booksellers, Inc., 48 AD3d 636, 637; Baglio v St. John's Queens Hosp., 303
AD2d 341, 342). However, striking a pleading as a sanction for
spoliation is appropriate only where the missing evidence deprives the
moving party of the ability to establish his or her claim or defense (see Enstrom v Garden Place Hotel, 27 AD3d 1084, 1086; Iannucci v Rose, 8 AD3d 437, 438; Baglio v St. John's Queens Hosp., 303 AD2d at 342).

The Supreme Court has broad discretion in determining what, if any, sanction should be imposed for the spoliation of evidence (see Iannucci v Rose, 8 AD3d at 438; Allstate Ins. Co. v Kearns, 309 AD2d 776; Puccia v Farley, 261
AD2d 83, 85). We should substitute our judgment for that of the Supreme
Court only if its discretion was exercised improvidently (see Melendez v City of New York, 2 AD3d 170, 170-171).

A motion for leave to renew "shall be based upon new facts not
offered on the prior motion that would change the prior determination"
(CPLR 2221[e][2]) and "shall contain reasonable justification for the
failure to present such facts on the prior motion" (CPLR 2221[e][3]).
However, it is within a court's discretion to grant leave to renew upon
facts known to the moving party at the time of the original motion (see J.D. Structures v Waldbaum, 282 AD2d 434, 435).

Under the peculiar facts of this action, the Supreme Court
should have granted that branch of the plaintiffs' motion which was for
leave to renew his earlier opposition, and, upon renewal, the prior
order of preclusion should have been vacated. It was uncontested that
the mold samples taken in 2002 had a testable "shelf life" of only six
months. That being the case, the destruction of the swabbed mold
samples caused no prejudice to the defendant inasmuch as those samples
had quickly and naturally lost their testable value (see Bannon v Auerbach, 6 Misc 3d 219,
220-221). The defendant, having been put on notice of the plaintiffs'
claims beginning in December 2001, could have obtained its own mold
samples in 2002, but did not do so. Moreover, the wood sample taken
from the apartment has been recently located, for reasons adequately
explained in the plaintiffs' renewal papers.

Jennosa v Vermeer Mfg. Co., 2009 NY Slip Op 05845 (App. Div., 2nd, 2009)

Moreover, under the circumstances of this case, Governale's loss of the
undeveloped film of the post-accident scene did not warrant the Supreme
Court's determination that he was precluded from offering certain
evidence at trial and allowing an adverse inference charge against him.
"When a party negligently [loses] or intentionally destroys key
evidence, thereby depriving the non-responsible party from being able
to prove its claim or defense, the responsible party may be sanctioned
by the striking of its pleading" (Utica Mut. Ins. Co. v Berkoski Oil Co., 58 AD3d 717,
718). However, "where the evidence lost is not central to the case or
its destruction is not prejudicial, a lesser sanction, or no sanction,
may be appropriate" (Klein v Ford Motor Co., 303 AD2d 376, 377).
Contrary to the plaintiff's contentions, the post-accident photographs
that were lost by Governale were not central to the case, and the loss
did not prejudice the plaintiff in opposing Governale's motion for
summary judgment, or otherwise. The plaintiff himself testified that he
inspected the premises prior to commencing his work and that the
underground hose only became visible after it was entangled in the
stump grinder. Thus, any contention that the post-accident photographs
would have depicted conditions demonstrating that Governale had
constructive notice of the alleged dangerous condition is speculative.
Under these circumstances, Governale's loss of the post-accident
photographs did not warrant the imposition of a sanction.

Jones v Grand Opal Constr. Corp., 2009 NY Slip Op 05748 (App. Div., 2nd, 2009)

The defendants waived their right to conduct physical examinations
of the plaintiffs by their failure to arrange for such examinations
within the 45-day period set forth in the parties' preliminary
conference order (see Rodriguez v Sau Wo Lau, 298 AD2d 376; James v New York City Tr. Auth., 294 AD2d 471, 472; Schenk v Maloney, 266
AD2d 199, 200), and by their failure to move to vacate the note of
issue within 20 days after service of it and the certificate of
readiness (see 22 NYCRR 202.21[e]; James v New York City Tr. Auth., 294 AD2d 471, 472; Schenk v Maloney, 266 AD2d 199, 200; Williams v Long Is. Coll. Hosp., 147
AD2d 558, 559). However, under certain circumstances and absent a
showing of prejudice to the opposing party, the court may exercise its
discretion to relieve a party of a waiver of the right to conduct a
physical examination (see Barbosa v Capolarello, 52 AD3d 629; Cespuglio v SA Bros. Taxi Corp., 44 AD3d 697, 698; Williams v Long Is. Coll. Hosp., 147 AD2d 559, 559; Kanterman v Palmiotti, 122
AD2d 116). Here, the plaintiffs served a note of issue and statement of
readiness 10 days after the expiration of the time period set forth in
the preliminary conference order for conducting physical examinations
of the plaintiffs and five months prior to the date in said order for
filing a note of issue. Within seven days after the plaintiffs
prematurely filed a note of issue, the defendants designated an
orthopedist and a neurologist to examine the plaintiffs. Thereafter,
the defendants promptly made the instant motion, inter alia, to compel
the plaintiffs to submit to physical examinations. No prejudice to the
plaintiffs has been shown by reason of the short delay, since the case
will be retained on the trial calendar (see Williams v Long Is. Coll. Hosp., 147 AD2d 558, 560; Kanterman v Palmiotti, 122 AD2d 116, 117). Accordingly, the Supreme Court providently exercised its discretion in relieving the defendants of [*2]their
waiver and in granting that branch of the defendants' motion which was
to compel the plaintiffs to submit to physical examinations.

The Supreme Court providently exercised its discretion in
granting that branch of the defendants' motion which was for leave to
extend their time to move for summary judgment to the extent of
permitting such motion no later than 45 days after the completion of
physical examinations, since there was significant discovery
outstanding at the time the note of issue was filed (see CPLR 3212[a]; Gonzalez v 98 Mag Leasing Corp., 95 NY2d 124; Marks v Mode, 53 AD3d 533; Sclafani v Washington Mut., 36 AD3d 682; Herrera v Felice Realty Corp., 22 AD3d 723, 724).

Molyneaux v City of New York, 2009 NY Slip Op 05610 (App. Div., 1st, 2009)

The court improperly granted plaintiffs' CPLR 3126 motion in the
absence of the required affirmation by their attorney that the latter
had conferred with defendants' attorney in a good faith effort to
resolve the issues raised by the motion (22 NYCRR 202.7[a][2]; see Cerreta v New Jersey Tr. Corp.,
251 AD2d 190 [1998]). In addition, there was also no clear showing that
any failure by the City to comply with the conditional order was
willful, contumacious or in bad faith (see Reidel v Ryder TRS, Inc., 13 AD3d 170, 171 [2004]).

Defendants represent in their brief that they "recently filed a
stipulation withdrawing [their] appeal from the August [10] 2007 Order"
denying their cross motion seeking, inter alia, renewal of their motion
for summary judgment; such withdrawal apparently was in response to [*2]such
leave having been granted during the pendency of the appeal. The
stipulation, however, is not on file with the Clerk of this Court.
Accordingly, we deem the appeal from the August 10, 2007 order
abandoned, and dismiss it.

The bold is mine.

22 NYCRR 202.42(a): To Bifurcate or Not to Bifurcate

22 NYCRR 202.42(a) Bifurcated Trials

Carbocci v Lake Grove Entertainment, LLC, 2009 NY Slip Op 05739 (App. Div., 2nd, 2009)

Trial courts are encouraged to conduct bifurcated trials in personal injury cases (see 22
NYCRR 202.42[a]). However, where the nature of the plaintiff's injuries
has an important bearing on the question of liability, a unified trial
should be held (see Wahid v Long Is. R.R. Co., 59 AD3d 712; Wright v New York City Hous. Auth., 273
AD2d 378). The party opposing bifurcation has the burden of showing
that the nature of the injuries necessarily assists the factfinder in
making a determination with respect to the issue of liability (see Barrera v Skaggs-Walsh, Inc., 279 AD2d 442).

Here, the plaintiff, Dolores Carbocci (hereinafter Carbocci),
fell while ice skating at a rink owned and operated by the defendant
Lake Grove Entertainment, LLC, doing business as Sports Plus
(hereinafter Sports Plus). The plaintiffs alleged that Carbocci was
removed from the ice [*2]by the defendant
Patrick Lever, an employee of Sports Plus, either negligently or
forcibly, despite Carbocci's instructions to not touch her and to call
an ambulance. The defendants assert that Carbocci stood up on her own
and was merely assisted from the ice by Lever and other employees of
Sports Plus. The plaintiffs moved for a unified trial asserting that
evidence with respect to her medical treatment was necessary to prove
her case. The Supreme Court denied the motion and, sua sponte, directed
the trial court to give a particular preliminary instruction to the
jury relating to the bifurcation of the case. We reverse.

The plaintiffs established that Carbocci's injuries are
interwoven with the existence or extent of the defendants' liability on
both the negligence and battery causes of action (see Sokolovsky v Mucip, Inc., 32 AD3d 1011). Evidence relating to Carbocci's injuries is probative in determining how the incident occurred (see Byrd v New York City Tr. Auth., 172 AD2d 579, 581; DeGregorio v Lutheran Med. Ctr., 142
AD2d 543). Accordingly, the plaintiffs' request for a unified trial was
improperly denied as the issues of liability and damages are
inseparable (see Jacobs v Broidy, 88 AD2d 904; cf. Pasquaretto v Cohen, 37 AD3d 440).

In light of the foregoing, the preliminary instruction the
Supreme Court directed the trial court to give to the jury is
unnecessary.

The bold is mine.

Law of the case

Yetnikoff v Mascardo, 2009 NY Slip Op 04712 (App. Div., 1st, 2009)

Plaintiff moved to vacate his default, arguing he had never received
the landlord defendants' motion for summary judgment on the
counterclaims. This motion was also denied on the ground that plaintiff
failed to provide a reasonable excuse for his default or evidence of a
meritorious defense.

With respect to the court's modification of its statement
concerning the landlord's position on rescission, the court correctly
found that counsel's statement that she had made a mistake in
communicating to the court was new evidence properly considered on the
motion. The law of the case is not implicated when a court alters its
own ruling (see Wells Fargo Bank, N.A. v Zurich Am. Ins. Co., 59 AD3d 333, 335 [2009]).

Riskin v Pam Vic Enters., Ltd., 2009 NY Slip Op 04730 (App. Div., 1st, 2009)

The court did not err in re-referring the matter of calculating the
amount due to plaintiffs to a referee, inasmuch as no report was filed
after the previous referral. Plaintiffs' claim, that the previous grant
of partial summary judgment to them as against defendants in this
foreclosure action became the "law of the case" and extinguished the
claims of the proposed intervenor, Ted Singer, is unpreserved. Were we
to review it, we would find that the law of the case doctrine does not
apply, since Singer was not a party to the earlier proceedings herein (see Hass & Gottlieb v Sook Hi Lee, 11 AD3d 230, 231-232 [2004]).

The bold is mine.

22 NYCRR 202.21(d); CPLR § 3126; CPLR 5015; Presumption of receipt

CPLR § 3126 Penalties for refusal to comply with order or to disclose

CPLR R. 5015 Relief from judgment or order

22 NYCRR 202.21 Note of issue and certificate of readiness
(d) Pretrial proceedings
Where a party is prevented from filing a note of issue and certificate
of readiness because a pretrial proceeding has not been completed for
any reason beyond the control of the party, the court, upon motion
supported by affidavit, may permit the party to file a note of issue
upon such conditions as the court deems appropriate. Where unusual or
unanticipated circumstances develop subsequent to the filing of a note
of issue and certificate of readiness which require additional pretrial
proceedings to prevent substantial prejudice, the court, upon motion
supported by affidavit, may grant permission to conduct such necessary
proceedings.

Redmond v Jamaica Hosp. Med. Ctr., 2009 NY Slip Op 04042 (App. Div., 2nd, 2009)

In an action to recover damages for medical malpractice and wrongful
death, the plaintiff appeals from an order of the Supreme Court, Queens
County (O'Donoghue, J.), entered September 16, 2008, which denied her
motion to vacate an order of the same court dated April 10, 2008, sua
sponte, precluding her from conducting examinations before trial of the
defendants Kenneth Fretwell and Jeffrey Chan pursuant to CPLR 3126.

ORDERED that the order entered September 16, 2008, is reversed,
on the law and in the exercise of discretion, without costs or
disbursements, and the motion to vacate the order dated April 10, 2008,
is granted.

The record does not demonstrate that the plaintiff's counsel
willfully and contumaciously obstructed the progress of disclosure with
respect to the examinations before trial of the defendants Kenneth
Fretwell and Jeffrey Chan (hereinafter the defendant doctors) (see Maceno v Franklin Hosp. Med. Ctr., 14 AD3d 663, 664; Santigate v Linsalata, 304 AD2d 639, 641; Gorokhova v Belulovich,
267 AD2d 202, 203). Accordingly, the Supreme Court improvidently
exercised its discretion in, sua sponte, imposing the sanction of
preclusion with respect to the examination before trial of the
defendant doctors (see CPLR 3126; cf., Mahopac Ophthalmology, P.C. v Tarasevich, 21 AD3d 351, 352), and in denying the plaintiff's motion to vacate the order imposing that sanction.
[*2]

Meadow Lane Equities Corp. v Hill, 2009 NY Slip Op 04396 (App. Div., 2nd, 2009)

In an action, inter alia, for a permanent injunction, the defendants
appeal from so much of an order of the Supreme Court, Nassau County
(Phelan, J.), entered June 11, 2008, as denied their motion, inter
alia, to direct nonparty First New York Partners to preserve certain
evidence contained on electronic databases and to permit the
examination thereof.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The Supreme Court properly exercised its discretion in
determining that the defendants did not demonstrate unusual or
unanticipated circumstances warranting the discovery requested through
their motion (see 22 NYCRR 202.21[d]; Gomez v New York City Tr. Auth., 19 AD3d 366, 366-367; cf. Scanga v Family Practice Assoc. of Rockland, P.C., 41 AD3d 576, 576-577).

Caprio v 1025 Manhattan Ave. Corp., 2009 NY Slip Op 04367 (App. Div., 2nd, 2009)

In order to vacate their default in opposing the plaintiffs' motion
pursuant to CPLR 3126 to strike their answers, the defendants were
required to demonstrate a reasonable excuse for their default and a
meritorious defense to both the motion and the action (see CPLR 5015[a][1]; Nowell v NYU Med. Ctr., 55 AD3d 573; Raciti v Sands Point Nursing Home, 54 AD3d 1014; Simpson v Tommy Hilfiger U.S.A., Inc., 48 AD3d 389, 392; Diamond v Vitucci, 36 AD3d 650).
The defendants failed to set forth a reasonable excuse for their
default in opposing the plaintiffs' motion. Although the defendants'
attorney claimed that he did not receive the plaintiffs' motion papers,
his mere denial of receipt was insufficient to rebut the proof that the
motions papers were properly mailed and the presumption of receipt
arising from that proof (see Kihl v Pfeffer, 94 NY2d 118, 122; [*2]Diamond v Vitucci, 36 AD3d 650; Philippi v Metropolitan Transp. Auth., 16 AD3d 654, 655; Sarva v Chakravorty, 14 AD3d 689; Platonov v Sciabarra, 305
AD2d 651). The defendants also failed to demonstrate a meritorious
defense to the motion to strike their answers by offering an adequate
explanation for their failure to fully and timely respond to the
plaintiffs' discovery demands and court directives requiring compliance
with such demands (see Howe v Jeremiah, 51 AD3d 975; Watson v Hall, 43 AD3d 435, 436; Devito v J & J Towing, Inc., 17
AD3d 624). Under these circumstances, the defendants' motion to vacate
the order dated February 7, 2008, should have been denied.

The bold is mine.

22 NYCRR 202.48; Order never settled on decision is abandoned and without effect AND a case where it didn’t apply

22 NYCRR 202.48 Submission of orders, judgments and decrees for signature

Redeemed Christian Church of God Tabernacle of Restoration v Green, 2009 NY Slip Op 04125 (App. Div., 1st, 2009)

Appeal from order, Supreme Court, New York County (Norma Ruiz, J.),
entered February 5, 2008, which, to the extent appealed from, in this
action for specific performance of a contract for the sale of real
property, denied plaintiff's motion pursuant to CPLR 3211(a)(4) to
dismiss a related holdover proceeding in Civil Court or, in the
alternative, to stay the holdover proceeding or to consolidate it with
this action, and awarded defendants, sua sponte, use and occupancy,
unanimously dismissed, without costs, as academic.

It is undisputed that on February 28, 2008, the Civil Court
entered a default judgment against plaintiff in the related holdover
proceeding. As such, that proceeding has concluded, thereby rendering
moot the portion of this appeal addressing it. The appeal is also moot
to the extent it addresses the motion court's sua sponte grant of use
and occupancy to defendants. Since defendants never settled an order on
that decision, as directed by the motion court, it was abandoned and
never took effect (see Uniform Rules for Trial Cts [22 NYCRR] § 202.48(b)]).

Capogrosso v Reade Broadways Assoc., 2009 NY Slip Op 04280 (App. Div., 1st, 2009)

There is no merit to plaintiff's argument that because defendant did
not settle an order within 60 days of the trial court's decision,
defendant's claims underlying the award of damages in the judgment
should be deemed abandoned pursuant to 22 NYCRR 202.48. The directive
in the decision to "[s]ettle order on notice" pertained only to so much
of the decision as determined that defendant was entitled to reasonable
attorneys' fees and referred defendant's claim therefor to a Special
Referee for a report or, upon the parties' stipulation, a
determination. The settle order directive could not have had any
pertinence to so much of the decision as awarded defendant a sum
certain, " which speaks for itself'" (Farkas v Farkas, 11 NY3d 300, 309 [2008], quoting Funk v Barry,
89 NY2d 364, 367 [1996]). Indeed, the decision was fairly explicit in
"permit[ting]" defendant to enter a money judgment for that sum certain
without further court involvement.

The bold is mine.

CPLR 3404 and a Civil Court Distinction [22 NYCRR § 208.14 (b)]

CPLR R. 3404. Dismissal of abandoned cases

Casavecchia v Mizrahi, 2009 NY Slip Op 03858 (App. Div., 2nd, 2009)

The Supreme Court properly granted the plaintiff's motion to "restore"
this action to the active calendar after it had been marked "disposed,"
given that CPLR 3404 does not apply to this pre-note of issue action (see Lopez v Imperial Delivery Serv., 282
AD2d 190), there was no 90-day notice pursuant to CPLR 3216, and there
was no order dismissing the complaint pursuant to 22 NYCRR 202.27 (see Burdick v Marcus, 17 AD3d 388; 123X Corp. v McKenzie, 7 AD3d 769; Golan v Long Is. Jewish Med. Ctr., 7 AD3d 489, 490; Lucious v Rutland Nursing Home of Kingsbrook Jewish Med. Ctr., 2 AD3d 412).

Christiano v Solovieff Realty Co., L.L.C., 2009 NY Slip Op 03942 (App. Div., 1st, 2009)

Plaintiffs failed to meet the criteria for vacating an automatic dismissal pursuant to CPLR 3404 (see Aguilar v Djonvic,
282 AD2d 366 [2001]). Their affidavit of merit was conclusory, they
offered no reasonable explanation for their failure to proceed with
discovery for nearly two years, they failed even to address the issue
of prejudice to defendants, and their lack of activity [*2]between
the time the case was struck from the calendar and their court-ordered
motion to restore fails to rebut the presumption of abandonment.

22 NYCRR § 208.14 Calendar default; restoration; dismissal

b) At
any scheduled call of a calendar or at a pretrial conference, if all
parties do not appear and proceed or announce their readiness to
proceed immediately or subject to the engagement of counsel, the judge
presiding may note the default on the record and enter an order as
follows:

(1) If the plaintiff appears but the defendant does not, the judge may grant judgment by default or order an inquest.

(2)
If the defendant appears but the plaintiff does not, the judge may
dismiss the action and may order a severance of counterclaims or
cross-claims.

(3) If no party appears, the judge may strike the action from the calendar or make such other order as appears just.

(c) Actions stricken from the calendar may be
restored to the calendar only upon stipulation of all parties so
ordered by the court or by motion on notice to all other parties, made
within one year after the action is stricken. A motion must be
supported by affidavit by a person having firsthand knowledge,
satisfactorily explaining the reasons for the action having been
stricken and showing that it is presently ready for trial.

V.S. Med. Servs., P.C. v Travelers Ins. Co., 2009 NY Slip Op 29226 (App. Term, 2nd)

On November 6, 2007, plaintiff moved to vacate the order of
dismissal and restore the matter to the trial calendar. Plaintiff's
counsel submitted an affidavit from counsel's employee, Polina
Shvartsberg, who stated that she is responsible for calendaring
counsel's trial dates and that she failed to do so in this matter.
Consequently, plaintiff's counsel was unprepared for trial.

…

The Civil Court denied plaintiff's motion, concluding that
plaintiff "has failed to show a reasonable excuse for its delay, as
well as a meritorious cause of action, lack of prejudice to the
defendant and a lack of intent to abandon this action." The court added
that plaintiff's motion was untimely, as the matter had been marked off
the calendar for more than a year.

Plaintiff now appeals, claiming that the Civil Court should
have granted its motion to vacate the default pursuant to CPLR 2005 and
CPLR 5015. We affirm.

Although both defendant and the Civil Court appear to rely on
Uniform Rules for the New York City Civil Court (22 NYCRR) § 208.14 (c)
to support the denial of plaintiff's motion, we conclude that this
provision is inapplicable under the circumstances of this case. Section
208.14 (c) governs restoration of cases within one year after the
action has been stricken from the calendar. Here, since the
case was never stricken from the trial calendar, but rather was
dismissed, section 208.14 (c) is inapplicable.

Although the Civil Court, in dismissing the case, did not
specifically note a default, it is clear from the record that the case
was dismissed on default. Uniform Rules for the New York City Civil
Court (22 NYCRR) § 208.14 (b) provides, in relevant part, that

"[a]t any scheduled call of a calendar . . . if all parties do not
appear and proceed or announce their readiness to proceed immediately .
. . the judge presiding may note the default on the record and enter an
order as follows:

* * *

(2) If the defendant appears but the plaintiff does not, the judge may dismiss the action . . . ."

In this case, a card attached to the notice of trial clearly states
that the case was dismissed because plaintiff was not ready to proceed.
Indeed, plaintiff — both in the Civil Court and on appeal — refers to
the dismissal as being entered on default and maintains that its motion
to vacate the default should have been granted pursuant to CPLR 5015.
In these circumstances, it was incumbent upon plaintiff to demonstrate
a reasonable excuse for the default and a meritorious cause of action (see CPLR 5015 [a]; Eugene Di Lorenzo, Inc. v Dutton Lbr. Co., 67 NY2d 138, 141 [1986]). Plaintiff failed to sustain this burden.

The sole explanation offered by plaintiff for its default is
that plaintiff's counsel's office failed to calendar the trial date.
Such conclusory and factually devoid allegations are insufficient to
constitute a reasonable excuse (see Juarbe v City of New York, 303 AD2d 462 [2003]). On this basis alone, plaintiff's motion was properly denied.

The bold is mine.

22 NYCRR 130-1.1;

22 NYCRR 130-1.1 Costs; sanctions

(a) Appeals as of right
2. from an order not specified in subdivision

(c) Appeals by permission

CPLR § 5701 Appeals to appellate division from supreme and county courts

RKO Props. Ltd. v Boymelgreen, 2009 NY Slip Op 03709 (App. Div., 2nd, 2009)

"[W]hen parties set down their agreement in a clear, complete
document, their writing should as a rule be enforced according to its
terms'" (Reiss v Financial Performance Corp., 97 NY2d 195, 198, quoting W.W.W. Assoc. v Giancontieri, 77
NY2d 157, 162). Here, contrary to the appellants' contention, the
Supreme Court did not rewrite the parties' stipulation of settlement.
Rather, by directing the appellants to provide the general releases to
the respondents, the court properly enforced the stipulation according
to its terms. By agreeing to the subsequent stipulation and order dated
August 16, 2007, and accepting payment of the settlement amount, the
plaintiff waived any alleged breach of the stipulation of settlement.

The appeal from so much of the order entered January 28, 2008,
as, sua sponte, directed a hearing must be dismissed, as no appeal lies
as of right from an order entered sua sponte or from an order directing
a hearing, and leave to appeal from that portion of the order has not
been granted (see CPLR 5701[a][2], [c]; Shabtai v City of New York, 308 AD2d 532, 533; Matter of Kohn v Lawrence, 240 AD2d 496, 496-497).

Badillo v Badillo, 2009 NY Slip Op 03681 (App. Div., 2nd, 2009)

Under the circumstances herein, the plaintiff did not engage in
sanctionable conduct by opposing the defendant's motion, inter alia, to
vacate a portion of a prior support order (see 22 NYCRR 130-1.1; Rennie-Otote v Otote, 15 AD3d 380, 381; Hamilton v Cordero, 10 AD3d 702, 703; Stow v Stow, 262 AD2d 550, 551; see also Arciniega v Arciniega,
48 AD3d 607). Moreover, the Supreme Court did not follow the proper
procedure for imposing a sanction, since it failed to specify in a
written decision the conduct upon which the award was based, the
reasons why it found the conduct to be frivolous, and the reasons the
sanction was fixed in the sum indicated (see 22 NYCRR 130-1.2; Rennie-Otote v Otote, 15 AD3d at 381; Hamilton v Cordero, 10 AD3d at 703; Miller v DeCongilio, 269 AD2d 504; Gossett v Firestar Affiliates, 224 AD2d 487).
The plaintiff's contention that the Supreme Court improperly
denied her request for sanctions against the defendant is not properly
before this Court (see 22 NYCRR 130-1.1[d]; Kane v Triborough Bridge & Tunnel Auth., 40 AD3d 1040, 1041-1042; Jandru Mats v Riteway AV Corp., 1 AD3d 565, 566; Telemark Constr. v Fleetwood & Assoc., 236 AD2d 462; see also Matter of Mercury Ins. Group v Ocana, 46 AD3d 561, 562).

The bold is mine.

22 NYCRR 202.27; Adjournments

22 NYCRR 202.27 Defaults

At any
scheduled call of a calendar or at any conference, if all parties do
not appear and proceed or announce their readiness to proceed
immediately or subject to the engagement of counsel, the judge may note
the default on the record and enter an order as follows:

(a) If the plaintiff appears but the defendant does not, the judge may grant judgment by default or order an inquest.

(b) If the defendant appears but the plaintiff does
not, the judge may dismiss the action and may order a severance of
counterclaims or cross-claims.

(c) If no party appears, the judge may make such order as appears just.

Vorontsova v Priolo, 2009 NY Slip Op 03053 (App. Div., 1st, 2009)

Order, Supreme Court, New York County (Sheila Abdus-Salaam, J.),
entered February 13, 2008, which, in an action for medical malpractice,
denied plaintiff's motion to vacate the court's dismissal of the action
due to plaintiff's failure to proceed to trial, unanimously reversed,
on the law and the facts, without costs, the motion granted, and the
action restored to the trial calendar.

The court improvidently exercised its discretion in sua sponte
dismissing the action for failure to proceed to trial rather than
marking it off the trial calendar. The record shows that defendants had
not moved for dismissal of the action, that this was the first time
plaintiff had sought an adjournment, which the parties had agreed to
due to the unavailability of plaintiff's expert, and that both parties
appeared at the calendar call although plaintiff's counsel had to
temporarily leave to tend to another matter (see 22 NYCRR 202.27; Danne v Otis El. Corp., 31 AD3d 599 [2006]; Rodriguez v Pisa Caterers,
146 AD2d 686 [1989]). Furthermore, in seeking restoration, plaintiff
sufficiently demonstrated both a reasonable excuse and a meritorious
cause of action (CPLR 5015[a]).

The bold is mine