Category: Uncategorized

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.

 

Corroborated Hearsay

U.S. Bank Trust, N.A. v Ellis, 2020 NY Slip Op 01569 [1st Dept 2020]

We agree, however, with defendant that the 2016 notice is not an authenticated business record and, therefore, it is not admissible as presented in the record, leading us to modify Supreme Court’s order by denying plaintiff’s motion for summary judgment. This hearsay document, however, is sufficient to defeat Ellis’s summary judgment motion, because it is sufficiently corroborated by other evidence (see Zupan v Price Chopper Operating Co., Inc., 132 AD3d 1211, 1213 [3d Dept 2015]).

Moot

Matter of Gorman v Gardyn, 2020 NY Slip Op 01501 [2d Dept. 2020]

“It is a fundamental principle of our jurisprudence that the power of a court to declare the law only arises out of, and is limited to, determining the rights of persons which are actually controverted in a particular case pending before the tribunal” (Matter of Hearst Corp. v Clyne, 50 NY2d 707, 713; see Matter of Kirkland v Annucci, 150 AD3d 736, 737). “Courts are generally prohibited from issuing advisory opinions or ruling on hypothetical inquiries. Thus, an appeal is [*2]moot unless an adjudication of the merits will result in immediate and practical consequences to the parties” (Matter of Kirkland v Annucci, 150 AD3d at 738 [internal quotation marks omitted]; see Matter of Sweeney v Schneider, 123 AD3d 1049, 1050). Here, as the Board had subsequently appointed a new president of Nassau Community College and held another election of officers, the petition and the relief sought therein was rendered academic (see Matter of Hearst Corp. v Clyne, 50 NY2d at 713; Matter of Kirkland v Annucci, 150 AD3d at 738; Matter of Sweeney v Schneider, 123 AD3d at 1050). Accordingly, we agree with the Supreme Court’s determination to deny the petition and dismiss the proceeding.

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).