An odd stipulation case

RCS Recovery Servs., LLC v Mensah, 2018 NY Slip Op 07766 [2d Dept. 2018]

We agree with the Supreme Court’s denial of that branch of the defendant’s motion which was pursuant to CPLR 5015(a)(3) to vacate the judgment. Absent any proof of intrinsic or extrinsic fraud in the procurement of the judgment, the defendant was not entitled to that relief (see LaSalle Bank N.A. v Oberstein, 146 AD3d 945, 945-946; Dunkin Donuts v HWT Assoc., 181 AD2d 713, 714; Central Funding Co. v Kimler, 54 AD2d 748, 748).

However, under the circumstances of this case, the Supreme Court should have granted the alternate branch of the defendant’s motion, which was, in effect, to preclude the plaintiff from enforcing the default provision of the stipulation without affording the defendant a reasonable opportunity to cure his default. “Under almost any given state of facts, where to enforce a stipulation would be unjust or inequitable or permit the other party to gain an unconscionable advantage, courts will afford relief” (Goldstein v Goldsmith, 243 App Div 268, 272; see Weitz v Murphy, 241 AD2d 547, 548; Bank of N.Y. v Forlini, 220 AD2d 377, 378).

Here, the defendant’s default was inadvertent and minor in nature when measured against the harsh result that would be obtained upon literal enforcement of the default provision in the stipulation (see Bank of N.Y. v Forlini, 220 AD2d at 378). Insofar as the plaintiff failed to offer the defendant any opportunity to cure his default before seeking to recover the full amount due under the judgment, the plaintiff’s conduct could be interpreted as an attempt to take advantage of a technical default to obtain payment of the far greater sum which the plaintiff had originally sought, but agreed to forgo as part of the settlement (compare Weitz v Murphy, 241 AD2d at 548-549 and Bank of N.Y. v Forlini, 220 AD2d at 378, with McKenzie v Vintage Hallmark, 302 AD2d 503, 504).

Compare IndyMac Bank, FSB v Izzo, 2018 NY Slip Op 08014 [2d Dept. 2018]

5015(a)(2)(3)

Kondaur Capital Corp. v Stewart, 2018 NY Slip Op 07713 [2d Dept. 2018]

The defendant failed to demonstrate her entitlement to relief based upon newly discovered evidence (see CPLR 5015[a][2]; Deutsche Bank Natl. Trust Co. v Morris, 160 AD3d 613; Wall St. Mtge. Bankers, Ltd. v Rodgers, 148 AD3d 1088, 1089). Notably, even if the evidence cited by the defendant could be considered newly discovered, she failed to establish that such evidence would probably have produced a different result (see Bank of N.Y. v Tobing, 155 AD3d 596, 596-597; U.S. Bank N.A. v Galloway, 150 AD3d 1174, 1175; IMC Mtge. Co. v Vetere, 142 AD3d 954, 955; Federated Conservationists of Westchester County v County of Westchester, 4 AD3d 326, 327).

Additionally, the defendant failed to demonstrate her entitlement to vacatur pursuant to CPLR 5015(a)(3). A party seeking to vacate a judgment pursuant to CPLR 5015(a)(3) must make the motion within a reasonable time. Here, the defendant’s delay in moving to vacate the judgment of foreclosure and sale was unreasonable (see Dimery v Ulster Sav. Bank, 82 AD3d 1034, 1034; Bank of N.Y. v Stradford, 55 AD3d 765, 765). In any event, the defendant failed to demonstrate any fraud, misrepresentation, or other misconduct warranting vacatur of the judgment (see Summitbridge Credit Invs., LLC v Wallace, 128 AD3d 676, 677-678).

The defendant contends that the Supreme Court lacked jurisdiction to issue the judgment of foreclosure and sale because Kondaur lacked standing. However, ” an alleged lack of standing is not a jurisdictional defect'” (HSBC Bank USA, N.A. v Dalessio, 137 AD3d 860, 863, quoting JP Morgan Mtge. Acquisition Corp. v Hayles, 113 AD3d 821, 823; see CPLR 5015[a][4]).

Interesting insufficient SJ

Alexander v Annarumma, 2018 NY Slip Op 07695 [2d Dept. 2018]

Since the defendant did not sustain her prima facie burden, it is unnecessary to determine whether the papers submitted by the plaintiff—either in opposition to the defendant’s original motion or in support of that branch of the plaintiff’s motion which was for leave to renew her opposition to that motion—were sufficient to raise a triable issue of fact (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853). Therefore, the Supreme Court, upon renewal and reargument, should have vacated the order entered October 22, 2015, which granted the defendant’s motion for summary judgment dismissing the complaint, and thereupon, denied that motion.

Not aggrieved, not an application for leave to appeal

Logan v Pula 200, LLC, 2018 NY Slip Op 08016 [2d Dept. 2018]

The appeal must be dismissed, as the defendants are not aggrieved by the portion of the order appealed from (see CPLR 5511; Day v Syosset Cent. Sch. Dist., 105 AD3d 888; Vigo v 501 Second St. Holding Corp., 100 AD3d 872; Impastato v Impastato, 62 AD3d 752, 752) and, in any event, no appeal lies as of right from an order which does not determine a motion made on notice (see CPLR 5701[a][2]). Under the circumstances of this case, we cannot appropriately deem the notice of appeal filed in the names of the defendants to be an application for leave to appeal by their attorney (see Scopelliti v Town of New Castle, 92 NY2d 944; Day v Syosset Cent. Sch. Dist., 105 AD3d at 889).

Gamesmanship

Cram v Keller, 2018 NY Slip Op 08007 [2d Dept. 2018]

While defense counsel has the right to hold the plaintiff to the burden of proof on disputed issues, here, the record shows that the defendants’ ownership of the property was never genuinely disputed. In fact, Keller explicitly admitted in a portion of his deposition testimony not read by the plaintiff at trial that he and his wife owned the property. Defense counsel successfully objected to the reading of this testimony despite the lack of any apparent good faith basis in which to do so, making this an exercise in gamesmanship. The defendants did not offer any evidence at trial to dispute their ownership of the property. At an early stage of the case, the defendants submitted an answer to the complaint in which they denied having knowledge or information sufficient to form a belief as to the truth of the plaintiff’s allegation of the defendants’ ownership of the subject property. While the answer was verified by counsel, it is difficult to accept the denial of information sufficient to form a belief as to ownership as having been asserted in good faith, as there is no reason to believe that the defendants did not know that they owned the property, given that Keller admitted at his deposition that he and his wife owned the property. While the defendants did not amend their answer after Keller’s deposition, plaintiff’s counsel knew that the defendants did not dispute ownership and defense counsel knew that as well. Under the circumstances of this case, the defendants’ posttrial motion to set aside the verdict, to the extent predicated on the issue of ownership, was frivolous, given the evidence presented by the plaintiff at trial, the failure of the defendants to offer any contrary evidence at trial, the known fact that the defendants owned the property, the lack of good faith underlying the denial of ownership appearing in the defendants’ answer, and the lack of a good faith basis for the exclusion of the additional deposition testimony that would have eliminated any doubt on the issue of ownership.

Not immune from service

Sandella v Hill, 2018 NY Slip Op 08051 [2d Dept. 2018]

The defendant thereafter moved pursuant to CPLR 5015(a) to vacate the judgment, asserting that he was not properly served with process. In support of the motion, the defendant submitted an affidavit averring that, on the date of service, he was a resident of Nevada and was in New York solely for the purpose of attending a court proceeding related to a criminal matter. According to the defendant, as he was waiting for his case to be called, an unknown person came into the courtroom, called out his name, and dropped some papers on the floor. The defendant indicated that he did not pick the papers up because his attorney told him that he could not be served in court. The Supreme Court, without a hearing, denied the defendant’s motion to vacate the default judgment.

“If a defendant resists service of process, service may be effected pursuant to CPLR 308(1) by leaving a copy of the summons in the defendant’s general vicinity, provided that the defendant is made aware that this is being done” (Hall v Wong, 119 AD3d 897, 897; see Bossuk v Steinberg, 58 NY2d 916, 918). Here, the defendant admitted that the summons and complaint were left in his general vicinity and that he was aware that this was being done. Thus, the plaintiff satisfied his burden of demonstrating that the defendant was properly served pursuant to CPLR 308(1) (see Hall v Wong, 119 AD3d at 897).

Further, contrary to the defendant’s contention, he was not immune from such service. “The doctrine of immunity from service protects nondomiciliaries of New York from civil process when they voluntarily appear in New York to participate in legal proceedings of any kind” (Moreo v Regan, 140 AD2d 313, 315; see Thermoid Co. v Fabel, 4 NY2d 494). However, to be entitled to such immunity, a defendant must demonstrate that she or he “was, in fact, a nonresident, that [her or] his sole purpose in appearing in New York was to [participate in the relevant legal] proceeding, and that there were no available means of acquiring jurisdiction over [her or] his person other than personal service in New York” (Moreo v Regan, 140 AD2d at 315). Here, even assuming that the defendant’s appearance in New York was voluntary (see Thermoid Co. v Fabel, 4 NY2d 494), he was not entitled to immunity because personal jurisdiction could have been obtained over him by serving him outside of New York pursuant to CPLR 302 and 313 (see Bokara Rug Co., Inc. v Kapoor, 93 AD3d 583, 584; Olbi USA v Agapov, 294 AD2d 139, 139; Brause 59 Co. v Bridgemarket Assoc., 216 AD2d 200, 201).

Condition Precedent Preclusion 2–1

This will make its way to the Court of Appeals.

Nationwide Affinity Ins. Co. of Am. v Jamaica Wellness Med., P.C., 2018 NY Slip Op 07850 [4th Dept. 2018]

We agree with defendant that, inasmuch as the defense based on nonappearance at an EUO is subject to the preclusion remedy, Nationwide was required to establish that it issued timely denials on that ground, and that Nationwide failed to meet its initial burden on the motion. The assertions in the affidavit of Nationwide’s claims specialist that Nationwide issued timely denial forms to defendant for nonappearance at the EUOs are conclusory and unsupported by any such denial forms; therefore, Nationwide did not establish as a matter of law that it issued timely and proper denials. Inasmuch as Nationwide “failed to establish [its] prima facie entitlement to judgment as a matter of law on the issue of [its] timely and proper denial of coverage, summary judgment should have been denied regardless of the sufficiency of . . . defendant’s opposition” (Progressive Cas. Ins. Co. v Infinite Ortho Prods., Inc., 127 AD3d 1050, 1052 [2d Dept 2015]).

Successive vacate motions

Shannon v Ifemesia, 2018 NY Slip Op 07478 [2d Dept. 2018]

We also agree with the Supreme Court’s denial of the defendant’s second motion to vacate the default judgment and to dismiss the complaint. The defendant was precluded from making a second motion to vacate her default on the same ground raised in the prior motion (see Viva Dev. Corp. v United Humanitarian Relief Fund, 108 AD3d 619, 620; JMP Pizza, LLC v 34th St. Pizza, LLC, 104 AD3d 648).

CPLR 3016(f)

SSG Door & Hardware, Inc. v APS Contr., Inc., 2018 NY Slip Op 07481 [2d Dept. 2018]

In an action involving, inter alia, goods sold and delivered, CPLR 3016(f) permits a plaintiff to “set forth and number in his [or her] verified complaint the items of his [or her] claim and the reasonable value or agreed price of each.” “To meet the requirements of CPLR 3016(f), a complaint must contain a listing of the goods or services provided, with enough detail that it may readily be examined and its correctness tested entry by entry'” (Teal, Becker & Chiaramonte, CPAs v Sutton, 197 AD2d 768, 768-769, quoting Innis, Pearce & Co. v Poppenberg, Inc., 213 App Div 789, 790; see Raytone Plumbing Specialities, Inc. v Sano Constr. Corp., 92 AD3d 855, 856). If the complaint meets these requirements, the defendant may not generally deny allegations of the complaint, but must, instead, specifically dispute the items on the plaintiff’s list (see Summit Sec. Servs., Inc. v Main St. Lofts Yonkers, LLC, 73 AD3d 906).

Here, the complaint failed to comply with CPLR 3016(f). The three invoices failed to state the price of each individual invoice item, or the date when each item was delivered. Although it was acknowledged that partial payment was made, the plaintiff did not specify what the partial payment was for. The plaintiff also alleged that the defendant made a partial payment toward one invoice without specifying to which of the invoiced items the defendant’s payment was applied (see Anderson & Anderson, LLP-Guangzhou v Incredible Invs. Ltd., 107 AD3d 1520; Summit Sec. Servs., Inc. v Main St. Lofts Yonkers, LLC, 73 AD3d 906; Epstein, Levinsohn, Bodine, Hurwitz & Weinstein, LLP v Shakedown Records, Ltd., 8 AD3d 34; Innis Pearce & Co. v Poppenberg, Inc., 213 App Div 789).

In any event, even assuming CPLR 3016(f) was complied with, a general denial is sufficient where a defense to the cause of action pursuant to CPLR 3016(f) speaks to the “entirety of the parties’ dealings” (Anderson & Anderson, LLP-Guangzhou v Incredible Invs. Ltd., 107 AD3d at 1522 [internal quotation marks omitted]; see Harbor Seafood v Quality Fish Co., 194 AD2d 713). In this case, the defense—that the plaintiff breached the contract by untimely delivering the items in the contract—goes to the entirety of the parties’ dealings. Further, damages awarded on the counterclaim may offset liability for goods sold and delivered if the circumstances warrant it (see Created Gemstones v Union Carbide Corp., 47 NY2d 250, 255; Panda Capital Corp. v Kopo Intl., 242 AD2d 690, 692).

22 NYCRR 202.48

Solomon v Burden, 2018 NY Slip Op 07480 [2d Dept. 2018]

The plaintiffs made a second motion for an order of reference. The Supreme Court denied this motion without prejudice, finding that the plaintiffs abandoned their motion for an order of reference since they failed to submit the order of reference within 60 days after the signing and filing of the order directing submission, without showing good cause for their failure, in violation of 22 NYCRR 202.48(a). The plaintiffs then moved, inter alia, in effect, to extend the time to submit an order of reference, and for an order of reference. In the order appealed from, the court granted those branches of the plaintiffs’ motion, excusing the plaintiffs’ failure to submit some of the supporting documents the court had directed them to provide in its earlier order.

” It is within the sound discretion of the court to accept a belated order or judgment for settlement'” (Curanovic v Cordone, 134 AD3d 978, 979, quoting Russo v Russo, 289 AD2d 467, 468; see Dime Sav. Bank of N.Y. v Anzel, 232 AD2d 446). “Moreover, a court should not deem an action or judgment abandoned where the result would not bring the repose to court proceedings that 22 NYCRR 202.48 was designed to effectuate, and would waste judicial resources'” (Curanovic v Cordone, 134 AD3d at 979, quoting Meany v Supermarkets Gen. Corp., 239 AD2d 393, 394; see Zaretsky v Ok Hui Kim, 17 AD3d 455, 456; Matter of Argento v New York State Div. of Hous. & Community Renewal, 269 AD2d 443, 444; Crawford v Simmons, 226 AD2d 667).

Here, under the particular facts of this case, the interests of justice dictate that the court not be burdened with a trial where liability is certain. To hold otherwise would be contrary to the intent of 22 NYCRR 202.48 and would lead to a waste of judicial resources (see Russo v City of New York, 206 AD2d 355, 356). Accordingly, the Supreme Court providently exercised its discretion in granting that branch of the plaintiffs’ motion which was, in effect, to extend their time to submit an order of reference.

The Supreme Court also did not violate the law of the case doctrine in excusing the plaintiffs’ failure to submit some of the supporting documents the court had directed them to provide in its earlier order. Generally, a plaintiff in a foreclosure action who is awarded summary judgment on the complaint is entitled to an order of reference appointing a referee (see e.g. Citibank, N.A. v Gentile, 156 AD3d 859). Consequently, the court’s original direction, made after the plaintiffs had already been awarded summary judgment, that supporting documents be submitted along with an order of reference was a discretionary ruling to which the law of the case doctrine does not apply (see Clark v Great Atl. & Pac. Tea Co., Inc., 23 AD3d 510, 511; Latture v Smith, 304 AD2d 534; Brothers v Bunkoff Gen. Contrs., 296 AD2d 764, 765).