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 1361Credit 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).

3211(f) “service was necessary in order to trigger the running of the defendants’ time to respond to the complaint”

Citibank, N.A. v Brooks, 2020 NY Slip Op 01142 [2d Dept. 2020]

In March 2016, the plaintiff commenced this action against, among others, the defendants Jacqueline Brooks and Glen F. Brooks (hereinafter together the defendants) to foreclose a mortgage executed by them. The defendants moved to dismiss the complaint insofar as asserted against them, and the motion was denied in an order dated December 16, 2016 (see Citibank, N.A. v Brooks, ___ AD3d ___ [Appellate Division Docket No. 2017-04077; decided herewith]). By notice of motion dated August 14, 2017, the plaintiff moved, inter alia, for leave to enter a default judgment and for an order of reference, asserting that the defendants had defaulted in responding to the summons and complaint. The attorney affirmation submitted in support of the motion did not, in its discussion of the procedural history, disclose the prior motion practice. It did not mention the December 2016 order and did not assert that such order had been served with notice of entry, even though such service was necessary in order to trigger the running of the defendants’ time to respond to the complaint (see CPLR 3211[f]). The Supreme Court granted the plaintiff’s motion. Jacqueline Brooks (hereinafter the appellant) appeals.

In order to obtain a default judgment against the appellant and an order of reference, the plaintiff was required to submit evidence of service of a copy of the summons and complaint, evidence of the facts constituting the cause of action to foreclose the mortgage, and evidence that the appellant failed to appear or answer within the time allowed (see RPAPL 1321[1]; CPLR 3215[f]; JPMorgan Chase Bank, N.A. v Grinkorn, 172 AD3d 1183, 1185; Aurora Loan Servs., LLC v Movtady, 165 AD3d 1025, 1026; 21st Mtge. Corp. v Palazzotto, 164 AD3d 1293, 1294). While the defendants did not submit an answer to the complaint, the plaintiff failed to establish that the defendants were in default in responding to the complaint in that the plaintiff did not assert that the [*2]plaintiff served the order denying the defendants’ motion to dismiss with notice of entry. Without service of the order with notice of its entry, the time within which the defendants were required to answer the complaint did not begin to run (see CPLR 3211[f]). Accordingly, the Supreme Court should have denied those branches of the plaintiff’s motion were for leave to enter a default judgment against the appellant and for an order of reference.

New Rules for Appellate Term, Second Department

On October 16, 2019, the Appellate Division, Second Judicial Department repealed its rules relating to its Appellate Terms (22 NYCRR Parts 730, 731 and 732) and adopted new rules. Those Rules, now laid out in Parts 730 and 731 of the Rules of the Second Department (22 NYCRR Parts 730 and 731), are effective on January 1, 2020, and shall apply to appeals in which a notice of appeal to one of the Appellate Terms is filed on or after that date.

Counsel practicing in the Second Department are advised to familiarize themselves with the new Rules for the Appellate Terms, as in may respects they represent a change in the way in which those Court’s practice.

Below are some of the highlights of the new rules.

Merging 22 NYCRR Parts 731 and 732

Nearly all of the rules pertaining specifically to the Appellate Term for the 2nd, 11th & 13th Judicial Districts, currently set forth in 22 NYCRR Part 731, and the rules pertaining specifically to the Appellate Term for the 9th & 10th Judicial Districts, currently set forth in 22 NYCRR Part 732, are identical. For the benefit of our litigants and with an eye toward simplification, those rules have been combined into a new 22 NYCRR Part 731, within which is also addressed the few differences between the rules for the two courts.

Printed Record

The centerpiece of the new rules is the requirement in some appeals that the parties file a printed record. Currently the Appellate Terms for Second Judicial Department are the only appellate courts in New York State (including the Appellate Term, First Department) that do not require a printed record on any appeal. Under the new rules, a printed record would be required where all parties to a civil appeal are represented by counsel, and where such requirement is permitted by the appropriate court act. Recognizing that in some cases it would be inappropriate to require the time and expense of a printed record, the rules provide an easy process for those who seek to be exempted from the requirement upon a showing of good cause.

More Time to Perfect

Under the new rules, appellants will have six months from the filing of the notice of appeal within which to perfect. In contrast, under the current rules the appellant has 90 days from the Appellate Term’s receipt of the original record to perfect its appeal. The current system often creates uncertainty and confusion among the parties to the appeal, who may not have a clear indication of when the appeal must be perfected. With the notice of appeal, the appellant must file a copy of the order or judgment being appealed from, along with a completed Request for Appellate Term Action form.


Choice of law: procedure and substance

Royal Park Invs. SA/NV v Morgan Stanley, 2018 NY Slip Op 06695 [1st Dept. 2018]

“[C]ourts will generally enforce choice-of-law clauses” (Ministers & Missionaries Benefit Bd. v Snow, 26 NY3d 466, 470 [2015]). However, “when parties include a choice-of-law provision in a contract, they intend application of only that state’s substantive law” (Id. at 474 [internal quotation marks omitted]). In other words, “[c]hoice of law provisions typically apply to only substantive issues” (Portfolio Recovery Assoc., LLC v King, 14 NY3d 410, 416 [2010]).

Unlike substantive law, “matters of procedure are governed by the law of the forum state” (FIA Leveraged Fund Ltd. v Grant Thornton LLP, 150 AD3d 492, 496 [1st Dept 2017]). The question of whether a plaintiff has standing “is a procedural matter” (O’Neill v Warburg, Pincus & Co., 39 AD3d 3d 281 [1st Dept 2007]; see also Mertz v Mertz, 271 NY 466, 473 [1936] [“The law of the forum determines … the capacity of parties to sue or to be sued”]).

Judiciary Law § 753(A)(3)

Union Temple of Brooklyn v Seventeen Dev., LLC, 2018 NY Slip Op 04023 [2d Dept. 2018]

To prevail on a motion to hold a party in contempt pursuant to Judiciary Law § 753(A)(3), the movant must demonstrate by clear and convincing evidence that (1) a lawful order of the court, clearly expressing an unequivocal mandate, was in effect, (2) the order was disobeyed, (3) the party to be held in contempt had knowledge of the court's order, and (4) the movant was prejudiced by the offending conduct (see El-Dehdan v El-Dehdan, 26 NY3d 19, 29; McCain v Dinkins, 84 NY2d 216, 226; Matter of Savas v Bruen, 154 AD3d 859, 860). Here, the plaintiff established by clear and convincing evidence that Seventeen failed to comply with the order dated May 19, 2015, of which it was aware, and that such conduct prejudiced the plaintiff. Contrary to Seventeen's contention, it was not necessary to show that its disobedience was deliberate or willful (see Town of Huntington v Reuschenberg, 70 AD3d 814, 815; Hinkson v Daughtry-Hinkson, 31 AD3d 608). Once the plaintiff made its prima facie showing, the burden shifted to Seventeen to refute the plaintiff's showing or to offer evidence of a defense, such as an inability to comply with the order (see El-Dehdan v El-Dehdan, 26 NY3d at 35-36; Matter of Savas v Bruen, 154 AD3d at 860; Lundgren v Lundgren, 127 AD3d 938, 941). Seventeen failed to make such a showing or to raise a factual issue warranting a hearing (see Bais Yoel Ohel Feige v Congregation Yetev Lev D'Satmar of Kiryas Joel, Inc., 78 AD3d 626, 627; Town of Huntington v Reuschenberg, 70 AD3d at 815).


Lee v 13th St. Entertainment LLC, 2018 NY Slip Op 03751 [1st Dept. 2018] (note the dissent)

A court may strike an answer only when the moving party establishes "a clear showing that the failure to comply is willful, contumacious or in bad faith" (Palmenta v Columbia Univ., 266 AD2d 90, 91 [1st Dept 1999]). Here, it was improper for the motion court to strike defendants' answer because plaintiff failed to establish that defendants' conduct was willful, contumacious or in bad faith. Although defendants failed to produce deposition witnesses in violation of two court orders, defendants' business was defunct and its former employees and officers were no longer within their control(see Ewadi v City of New York, 66 AD3d 583 [1st Dept 2009]; Schneider v 17 Battery Place N. Assoc. II, 289 AD2d 164, 165 [1st Dept 2001]).

Defendants provided plaintiff with contact information for their employees and plaintiff could have subpoenaed such employees as nonparty witnesses. Furthermore, defendants did not receive prior warning from the court that a failure to comply with the court orders would result in CPLR 3126 sanctions. Accordingly, in light of the strong preference to resolve actions on their merits, plaintiff's motion to strike should have been denied (see e.g. Catarine v Beth Israel Med. Ctr., 290 AD2d 213, 215 [1st Dept 2002]).

Vizcaino v Western Beef, Inc., 2018 NY Slip Op 03752 [1st Dept. 2018]

We see no reason to disturb the motion court's exercise of discretion in declining to strike defendants' answer (seeCPLR 3126[3]). Defendants ultimately provided current contact information for the cashier who assisted plaintiff after her accident at their store, and explained their delay in providing this information as the result of a series of purported good faith mistakes. However, in view of the length of time it took and multiple discovery motions and court orders for defendants finally to provide complete and accurate information, we find that monetary sanctions are warranted. An award of the costs of this motion and appeal is appropriate to compensate plaintiff for the extraordinary time and effort necessitated by defendants' lack of diligence.

Broderick v Edgewater Park Owners Coop., Inc., 2018 NY Slip Op 03924 [1st Dept. 2018]

Plaintiffs' motion to compel the depositions of certain witnesses was properly denied for failure to demonstrate that the witnesses already deposed had insufficient knowledge, and the substantial likelihood that those witnesses they sought to depose possessed information material and necessary to the prosecution of the case (see Colicchio v City of New York , 181 AD2d 528, 529 [1st Dept 1992]). Injured plaintiff's one-page supporting affidavit contradicted his prior deposition testimony and was properly disregarded by the court. Moreover, the affidavit did not address the testimony of the witnesses already deposed, and contained only vague assertions as to the relevant information the named witnesses might likely provide. Accordingly, there is no basis to disturb the court's determination (see generally Allen v Crowell-Collier Publ. Co. , 21 NY2d 403, 406-407 [1968])

Aggrieved / Appealable

Preferred Contrs. Ins. Co. Risk Retention Group, LLC v Nuway Interior Corp., 2018 NY Slip Op 03162 [2d Dept. 2018]

A party is aggrieved "when he or she asks for relief but that relief is denied in whole or in part" or "when someone asks for relief against him or her, which the person opposes, and the relief is granted in whole or in part" (Mixon v TBV, Inc., 76 AD3d 144, 156-157 [emphasis omitted]). Here, the order appealed from granted that branch of the plaintiff's motion which sought relief against the defendants Nuway, Antonyshyn, and Mytsyk, but not against the appellants. The order appealed from specifically states that the "plaintiff bears no duty to defend, or to indemnify, Nuway [*2]in the underlying personal injury action." Accordingly, the appellants are not aggrieved by the order appealed from, and their appeal must be dismissed (see Faicco v Mr. Lucky's Pub, Inc., 131 AD3d 920Soho Plaza Corp. v Birnbaum, 108 AD3d 518, 519).


Matter of Wood v Port Wash. Police Dist., 2018 NY Slip Op 03134 [2d Dept. 2018]

The order appealed from is not appealable as a matter of right, as no appeal lies as of right from a nonfinal order in a proceeding pursuant to CPLR article 78 (see CPLR 5701[b][1]; Matter of Scarcella v Village of Scarsdale Bd. of Trustees, 72 AD3d 831). Leave to appeal has not been granted and, under the circumstances of this case, we decline to grant leave to appeal sua sponte (see CPLR 5701[c]; Matter of Young Israel of Merrick v Board of Appeals of Town of Hempstead, 304 AD2d 834).

Daviotis v Kappa Servs. Corp., 2018 NY Slip Op 03121 [2d Dept. 2018]

A person is aggrieved within the meaning of CPLR 5511 when he or she asks for relief but that relief is denied in whole or in part, or when someone asks for relief against him or her, which the person opposed, and the relief is granted in whole or in part (see Faicco v Mr. Lucky's Pub, Inc., 131 AD3d 920Mixon v TBV, Inc., 76 AD3d 144). Here, the defendants moved, inter alia, to impose discovery sanctions against the plaintiff, and the order appealed from denied the defendants' motion as academic. Since the plaintiff is not aggrieved by the order appealed from, his appeal must be dismissed (see CPLR 5511; Fiacco v Mr. Lucky's Pub, Inc., 131 AD3d 920Edgar S. v Roman, 115 AD3d 931).

The Purge

Bilkho v Roosevelt Sq., LLC, 2018 NY Slip Op 00400 [2d 2018]

On November 27, 2011, the plaintiff allegedly was injured when he fell in an interior stairwell within the defendant's premises. On December 13, 2012, the plaintiff commenced this action against the defendant to recover damages for personal injuries. By order dated October 28, 2013, following a compliance conference, the plaintiff was directed, inter alia, to file a note of issue on or before April 11, 2014.

On April 10, 2014, the plaintiff filed a note of issue and certificate of readiness. However, by order dated June 10, 2015, the Supreme Court vacated the note of issue after it was reported that significant discovery remained outstanding, and the action was "restored to pre-note of issue status before the initially assigned IAS justice." However, the action was subsequently marked "disposed."

By notice of motion dated May 11, 2016, the plaintiff, represented by new counsel, moved to restore the action to active status, in effect, to vacate the "disposed" marking, and to extend his time to serve and file a note of issue. In an order entered September 15, 2016, the Supreme Court denied the motion, and the plaintiff appeals.

The defendant erroneously characterizes the plaintiff's motion as seeking to reinstate the note of issue and restore the action to the trial calendar (see 22 NYCRR 202.21[f]). Rather, the plaintiff moved, inter alia, to restore the action to active status and, in effect, to vacate the "disposed" marking. In light of the Supreme Court's order dated June 10, 2015, vacating the note of issue and restoring the action to pre-note of issue status, the subsequent "disposed" marking was tantamount to a purge or mark off of a pre-note of issue case (see Khaolaead v Leisure Video, 18 AD3d 820, 821), which is not permitted (see Florexile-Victor v Douglas, 135 AD3d 903Arroyo v Board of Educ. of City of N.Y., 110 AD3d 17, 19; Rakha v Pinnacle Bus Servs., 98 AD3d 657Casavecchia v Mizrahi, 62 AD3d 741, 742; Lopez v Imperial Delivery Serv., 282 AD2d 190, 193-194). Therefore, those branches of the plaintiff's motion which were to restore the action to active status and, in effect, vacate the "disposed" marking should have been granted (see Khaolaead v Leisure Video, 18 AD3d at 821).

By restoring the action to pre-note of issue status, the order dated June 10, 2015, also, in effect, extended the plaintiff's time to file a note of issue. Accordingly, that branch of the plaintiff's motion which was to extend the time to serve and file the note of issue should have been denied as unnecessary.