Category: Uncategorized

306-b and SOL

Fernandez v McCarthy, 2020 NY Slip Op 03079 [1st Dept. 2020]

Under the circumstances, we find that, although plaintiff delayed in seeking an extension of his time to re-serve the complaint, the motion court appropriately exercised its discretion when it extended plaintiff’s time in the interest of justice (CPLR 306-b), as plaintiff established the existence of several relevant factors weighing in favor of an extension (see Leader v Maroney, Ponzini & Spencer, 97 NY2d 95, 104-105 [2001]; Chase Home Fin. LLC v Adago, 171 AD3d 533 [1st Dept 2019]). Plaintiff’s legal malpractice claim, which would otherwise be lost due to the running of the statute of limitations, seems to be potentially meritorious, and defendants have not established that they would suffer substantial prejudice from the extension, where they had actual notice of this action and the allegations against them from early on (see Wimbledon Fin. Master Fund, Ltd. v Laslop, 169 AD3d 550 [1st Dept 2019]; Pennington v Da Nico Rest., 123 AD3d 627 [1st Dept 2014]).

Bold is mine.

What I’ve been reading

I’ve always been interested in legal writing or writing in general because I never liked how I wrote.  And I see so much terrible writing in legal papers.

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A few weeks ago, I picked up Quack This Way, which is an interview of David Foster Wallace, by Bryan Garner.  As a lawyer, I was familiar with Garner through his books on legal writing and a legal writing CLE I took with him years ago.  I know David Foster Wallace from reading Infinite Jest[1] years ago.  So bizarre that those two had any relationship at all.

As it turns out, David Foster Wallace wrote a review of Bryan Garner’s Dictionary of Modern American Usage, which started their relationship.  Through that relationship Garner introduced David Foster Wallace to Scalia of all people (pp 13–15, if you are interested).  And they got along.  You wouldn’t think they would.  At least I didn’t.

98154667_4067775853263086_1945768859675918336_nSo, I picked up Consider the Lobster, which has David Foster Wallace’s review of Bryan Garner’s Dictionary of Modern American usage.

 

 

Going back to the interview, it explains why so much legal writing is terrible— we want to show that we belong, that we are members of that group (“I think it often stems from insecurity and that people feel that unless they can mimic the particular jargon and style of their peers, they won’t be taken seriously, and their ideas won’t be taken seriously.“) (pp 48–49).

I also learned what a Snoot is and that I am not smart enough to be a Snoot—One of “the Few, the Proud, the More or Less Constantly Appalled at Everyone Else.”

[1] I don’t remember much about it other than that it was really long, very hard to read, and it involved tennis.

Assorted waivers

Clark v Deutsche Bank Natl. Trust Co., 2020 NY Slip Op 02456 [2d Dept. 2020]

As a threshold matter, under the circumstances of this case, the Supreme Court providently exercised its discretion in finding that the plaintiff had waived her contention that the defendants’ motion to dismiss was untimely made (see Rozz v Law Offs. of Saul Kobrick, P.C., 134 AD3d 920, 921-922; Spagnoletti v Chalfin, 131 AD3d 901, 901-902; Glass v Captain Hulbert House, 103 AD3d 607, 608). Accordingly, we agree with the court’s denial of that branch of the plaintiff’s cross motion which was for leave to enter a default judgment against Deutsche Bank.

Hui-Lin Wu v City of New York, 2020 NY Slip Op 02721 [1st Dept. 2020]

The trial court properly denied plaintiff’s motion to strike defendants’ pleadings or preclude defendants from calling witnesses on the ground of their alleged failure to provide discovery, since, by filing a note of issue, plaintiff waived her entitlement to any further discovery (see 22 NYCRR 202.21; Escourse v City of New York, 27 AD3d 319 [1st Dept 2006]; Abbott v Memorial Sloan-Kettering Cancer Ctr., 295 AD2d 136 [1st Dept 2002]). The court properly rejected plaintiff’s attempt to authenticate her medical records through the testimony of someone who merely became the records’ physical custodian after the sale of the surgical center at which they were created (see Irizarry v Lindor, 110 AD3d 846 [2d Dept 2013]). The court correctly declined to admit the officers’ disciplinary files, since plaintiff had never requested the requisite in camera review (see Civil Rights Law § 50-a[2], [3]; see also People v Gissendanner, 48 NY2d 543, 551 [1979]; Telesford v Patterson, 27 AD3d 328 [1st Dept 2006]). Nor could plaintiff show that the records were relevant, particularly since the City admitted that the officers were acting in the scope of their employment during the incident (see Cheng Feng Fong v New York City Tr. Auth., 83 AD3d 642 [2d Dept 2011]; Weinberg v Guttman Breast & Diagnostic Inst., 254 AD2d 213 [1st Dept 1998]). There is no indication in the record that plaintiff [*2]requested and was denied interested witness charges. The court properly determined that any explanation as to missing witnesses was better addressed by counsel in their summations than by a jury charge.

Wilmington Sav. Fund Socy., FSB v Chishty, 2020 NYSlipOp 00641 [2d Dept. 2020]

The defendant also waived her right to seek dismissal of the complaint insofar as asserted against her pursuant to CPLR 3215 (c) by filing two notices of appearance (see Bank of Am., N.A. v Rice, 155 AD3d 593 [2017]; Myers v Slutsky, 139 AD2d 709, 710 [1988])

Deutsche Bank Natl. Trust Co. v Abrahim, 2020 NY Slip Op 02764 [2d Dept. 2020]

Contrary to the defendant’s contention, she waived the right to seek a dismissal pursuant to CPLR 3215(c) by appearing in the action and, inter alia, engaging in motion practice as early as 2012 (see HSBC Bank USA v Lugo, 127 AD3d 502, 503; Myers v Slutsky, 139 AD2d 709, 710-711).

And, not a waiver

Wells Fargo Bank, N.A. v Martinez, 2020 NYSlipOp 01693 [1st Dept 2020]

Plaintiff’s argument that defendant waived his right to seek dismissal pursuant to section 3215 (c) because he participated in the settlement conferences is equally unavailing. Although a party may waive it rights under CPLR 3215 (c) “by serving an answer or taking any other steps which may be viewed as a formal or informal appearance” (Private Capital Group, LLC v Hosseinipour, 170 AD3d 909, 910 [2d Dept 2019] [internal quotation marks omitted]), defendant’s participation in settlement conferences did not constitute either a formal or an informal appearance “since [he] did not actively litigate the action before the Supreme Court or participate in the action on the merits” (Slone, 174 AD3d at 867).

The above bold is mine.

On mailing and service

Wilmington Sav. Fund Socy., FSB v Sheikh, 2020 NY Slip Op 02823 [2d Dept. 2020]

Here, in support of his cross motion, the defendant established that the plaintiff failed to properly serve its motion for summary judgment and for an order of reference because the plaintiff mailed the motion papers to an incorrect address for the defendant’s counsel, resulting in the defendant’s lack of notice of the motion. In opposition, the plaintiff merely speculated that the motion papers may have been forwarded to the defendant’s counsel by the U.S. Postal Service, or that counsel may have otherwise received notice of the motion. Given that defective service of the motion was established (see generally Matter of Community Hous. Improvement Program v Commissioner of Labor, 166 AD3d 1135, 1137; Jagmohan v City of New York, 14 AD3d 491, 492), the defendant was not obligated to demonstrate a reasonable excuse for the default or a potentially meritorious defense (see Wells Fargo Bank, N.A. v Whitelock, 154 AD3d 906, 907). Moreover, the failure to give the defendant timely notice of the motion deprived the Supreme Court of jurisdiction to entertain the motion and rendered the resulting order entered October 3, 2016, void (see Wells Fargo Bank, N.A. v Whitelock, 154 AD3d at 907; Nationstar Mtge., LLC v Chase, 147 AD3d 964, 965; Golden v Golden, 128 AD2d 672, 673).

Rodriguez v 60 Graham, LLC, 173 AD3d 1095 [2d Dept. 2020]

“Ordinarily, a process server’s affidavit of service establishes a prima facie case as to the method of service and, therefore, gives rise to a presumption of proper service” (Wells Fargo Bank, N.A. v Leonardo, 167 AD3d 816, 817 [2018] [internal quotation marks omitted]; see Chichester v Alal-Amin Grocery & Halal Meat, 100 AD3d 820, 820 [2012]; Indymac Fed. Bank FSB v Quattrochi, 99 AD3d 763, 764 [2012]). “To be entitled to vacatur of a default judgment . . . a defendant must overcome the presumption raised by the process server’s affidavit of service” (Machovec v Svoboda, 120 AD3d 772, 773 [2014]). “A defendant’s sworn denial of receipt of service generally rebuts the presumption of proper service established by the process server’s affidavit and necessitates an evidentiary hearing; however, no hearing is required where the defendant fails to swear to specific facts to rebut the statements in the affidavit of service” (Wells Fargo Bank, N.A. v Leonardo, 167 AD3d at 817). The sworn denial of receipt of service must be a “detailed and specific contradiction” of the allegations in the process server’s affidavit (Bankers Trust Co. of Cal. v Tsoukas, 303 AD2d 343, 344 [2003]; see Scarano v Scarano, 63 AD3d 716 [2009]).

Here, City Signs relied on an affidavit of the individual allegedly served in support of its contention that there were discrepancies between her appearance and the description of her provided in the process server’s affidavit. However, the claimed discrepancies were minor and did not warrant a hearing on the issue of service (see US Bank N.A. v Cherubin, 141 AD3d 514, 515-516 [2016]; Citimortgage, Inc. v Baser, 137 AD3d 735, 736 [2016]; Indymac Fed. Bank, FSB v Hyman, 74 AD3d 751, 751 [2010]; Wells Fargo Bank, N.A. v McGloster, 48 AD3d 457 [2008]). Additionally, City Signs failed to substantiate the claimed discrepancies (see US Bank N.A. v Cherubin, 141 AD3d at 516; Indymac Fed. Bank, FSB v Hyman, 74 AD3d at 751).

Deutsche Bank Natl. Trust Co. v Dennis, 2020 NYSlipOp 02039 [2d Dept. 2020]

RPAPL 1304 provides that at least 90 days before a lender, an assignee, or a mortgage loan servicer commences an action to foreclose the mortgage on a home loan as defined in the statute, such lender, assignee, or mortgage loan servicer must give notice to the borrower. The statute provides the required content for the notice and provides that the notice must be sent by registered or certified mail and also by first-class mail to the last known address of the borrower (see RPAPL 1304 [2]). “Strict compliance with RPAPL 1304 notice to the borrower or borrowers is a condition precedent to the commencement of a foreclosure action” (Citibank, N.A. v Conti-Scheurer, 172 AD3d 17, 20 [2019]; see Citimortgage, Inc. v Banks, 155 AD3d 936, 936-937 [2017]; HSBC Bank USA, N.A. v Ozcan, 154 AD3d 822, 825-826 [2017]), “and the plaintiff has the burden of establishing satisfaction of this condition” (Aurora Loan Servs., LLC v Weisblum, 85 AD3d 95, 106 [2011]). “By requiring the lender or mortgage loan servicer to send the RPAPL 1304 notice by registered or certified mail and also by first-class mail, the Legislature implicitly provided the means for the plaintiff to demonstrate its compliance with the statute, i.e., by proof of the requisite mailing, which can be established with proof of the actual mailings, such as affidavits of mailing or domestic return receipts with attendant signatures, or proof of a standard office mailing procedure designed to ensure that items are properly addressed and mailed, sworn to by someone with personal knowledge of the procedure” (Citibank, N.A. v Conti-Scheurer, 172 AD3d at 20-21 [internal quotation marks omitted]; see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498, 508-509 [2015]; Bank of Am., N.A. v Bittle, 168 AD3d 656, 658 [2019]; Wells Fargo Bank, NA v Mandrin, 160 AD3d 1014, 1016 [2018]).

Here, the plaintiff failed to submit an affidavit of mailing or proof of mailing by the United States Postal Service evidencing that it properly mailed notice to the defendant pursuant to RPAPL 1304. Instead, the plaintiff relied on an affidavit of Rashad Blanchard, who was employed as a loan analyst by the parent company of the plaintiff’s loan servicer, and copies of the purported notices. The plaintiff submitted only one letter that purported to constitute the statutorily required 90-day notice of default, dated December 22, 2008. Although the letter contained the statement “sent via certified mail,” with a 20-digit number below it, no receipt or corresponding document issued by the United States Postal Service was submitted proving that the letter was actually sent by certified mail more than 90 days prior to commencement of the action. The plaintiff also failed to submit any documentary evidence that notice was sent by first-class mail. Further, Blanchard did not aver that the notice was sent in the manner required pursuant to RPAPL 1304, i.e., by certified mail and first-class mail. Moreover, since he did not aver that he personally mailed the notice, or that he was familiar with the mailing practices and procedures of American Home Mortgage Servicing, Inc., the entity that purportedly sent the notices, he did not establish proof of a standard office practice and procedure designed to ensure that items are properly addressed and mailed (see U.S. Bank N.A. v Offley, 170 AD3d 1240, 1242 [2019]; U.S. Bank N.A. v Henderson, 163 AD3d 601, 603 [2018]; Bank of Am., N.A. v Wheatley, 158 AD3d 736, 738 [2018]).

The bold is mine.

 

 

 

4518 and hearsay. You have to attach the records.

Wells Fargo Bank, N.A. v Sesey, 2020 NY Slip Op 02822 [App Div 2d 2020]

In opposition, the plaintiff failed to raise a triable issue of fact. The plaintiff submitted, inter alia, an attorney affirmation to which documents were appended purporting to be the note and an allonge. The plaintiff also submitted the affidavit of Nancy Chouanard, a vice president employed by the plaintiff. The attorney affirmation was insufficient to authenticate the documents purporting to be the note and an allonge. The Chouanard affidavit also failed to authenticate such documents. Furthermore, while Chouanard claimed that the plaintiff’s business records showed that the plaintiff received the original note endorsed to it as trustee on November 10, 2005, which would have been prior to the commencement of the Option One foreclosure action, Chouanard failed to identify what documents she relied upon to support that conclusory assertion, much less submit any properly authenticated business records. Even assuming that Chouanard’s affidavit was sufficient to establish a proper foundation for the admission of business records pursuant to CPLR 4518(a), the plaintiff failed to submit copies of the business records themselves. “[T]he business record exception to the hearsay rule applies to a writing or record’ (CPLR 4518[a]) . . . [and] it is the business record itself, not the foundational affidavit, that serves as proof of the matter asserted” (Bank of N.Y. Mellon v Gordon, 171 AD3d 197, 205 [citation omitted]). “While a witness may read into the record from the contents of a document which has been admitted into evidence (see HSBC Bank USA, N.A. v Ozcan, 154 AD3d 822, 826-827), a witness’s description of a document not admitted into evidence is hearsay” (U.S. Bank N.A. v 22 S. Madison, LLC, 170 AD3d 772, 774). Thus, Chouanard’s assertions as to the contents of the records were inadmissible hearsay as the documents themselves were not submitted (see id. at 774; JPMorgan Chase Bank, N.A. v Grennan, 175 AD3d 1513, 1516). A review of records maintained in the normal course of business does not vest an affiant with personal knowledge (see JPMorgan Chase Bank, N.A. v Grennan, 175 AD3d at 1517).

Bold is mine.

Similar holdings in HSBC Bank USA, N.A. v Dubose, 175 AD3d 1270 [2d Dept. 2019], Bank of N.Y. Mellon v Gordon, 171 AD3d 197 [2d Dept. 2019], Nationstar Mtge., LLC v Tamargo, 177 AD3d 750 [2d Dept. 2019], Wells Fargo Bank, N.A. v Springer, 2020 NYSlipOp 00176 [2d Dept. 2020], Nationstar Mtge., LLC v Cavallaro, 181 AD3d 688 [2d Dept. 2020], Deutsche Bank Natl. Trust Co. v Dennis, 2020 NYSlipOp 02039 [2d Dept. 2020]

O.K. v Y.M. & Y.W.H.A. of Williamsburg, Inc., 175 AD3d 540 [2d Dept. 2020]

Here, the defendants failed to submit their certificate of incorporation. Contrary to the defendants’ contention, the computer printout they submitted in support of their motion from the website of the New York State Department of State, Division of Corporations was inadmissible, since it was not certified or authenticated, and it was not supported by a factual foundation sufficient to demonstrate its admissibility as a business record (see Werner v City of New York, 135 AD3d 740, 741 [2016]; Dyer v 930 Flushing, LLC, 118 AD3d 742, 742-743 [2014]).

 

50-h from the Court of Appeals

Colon v Martin, 2020 NY Slip Op 02681 [2020]

General Municipal Law § 50-h requires a claimant to comply with a municipality’s demand for a pre-action oral examination before commencing suit against the municipality. The novel statutory interpretation issue on this appeal is whether a claimant has the right to observe a coclaimant’s section 50-h oral examination over the municipality’s objection. We hold that section 50-h provides no such right.

Potentially meritorious defense [CPLR 5015]

Lai v Montes, 2020 NY Slip Op 02134 [3d Dept. 2020]

Moreover, defendants have proffered several defenses that are potentially meritorious based upon their verified answer and affidavits in support of the motion to vacate the default judgment (see Global Liberty Ins. Co. v Shahid Mian, M.D., P.C., 172 AD3d 1332, 1333 [2019]; Luderowski v Sexton, 152 AD3d 918, 918 [2017]). “To establish the existence of a potentially meritorious defense, defendants needed only to make a prima facie showing of legal merit, as the quantum of proof needed to prevail on a CPLR 5015 (a) (1) motion is less than that required when opposing a summary judgment motion” (Luderowski v Sexton, 152 AD3d at 920 [internal quotation marks and citations omitted]). Defendants’ affidavits of merit indicate that plaintiffs breached the contract by misrepresenting that the dog was an “AKC [registerable] purebred English bulldog . . . that would be suitable for breeding or showing” when it is not suitable for same due to certain genetic defects. As a result, defendants claim that they were not unjustly enriched, as alleged in the complaint. Defendants also assert that the allegedly defamatory statements are true, an “absolute defense” provided they are “substantially true” (Hope v Hadley-Luzerne Pub. Lib., 169 AD3d 1276, 1277 [2019] [internal quotation marks and citations omitted]; see Cusimano v United Health Servs. Hosps., Inc., 91 AD3d 1149, 1151 [2012], lv denied 19 NY3d 801 [2012]). Further, defendants served an answer with numerous affirmative defenses and participated in depositions,[FN3] “indicat[ing] that they had no intention of abandoning their defense[s]” (Luderowski v Sexton, 152 AD3d at 920-921).

While these defenses may ultimately prove to be unsuccessful, we find that they are potentially meritorious so as to satisfy CPLR 5015 (a) (1), in that they “suffice to make the requisite prima facie showing of merit” (Luderowski v Sexton, 152 AD3d at 921; see Matter of Santander Consumer USA, Inc. v Kobi Auto Collision & Paint Ctr., Inc., 166 AD3d at 1366; Passeri v Tomlins, 141 AD3d 816, 818-819 [2016]). “Under these circumstances, and considering the strong public policy favoring the resolution of cases upon their merits” (Matter of Walker v Buttermann, 164 AD3d 1081, 1082-1083 [2018] [citations omitted]), we find that defendants’ motion to vacate the default judgment should have been granted. Accordingly, the final order issued following the inquest must be reversed and defendants’ remaining contentions addressed to the inquest have been rendered academic.

Bold is mine.