Prior restraint and contempt

Brummer v Wey, 2018 NY Slip Op 07843 [1st Dept. 2018]

Initially, we reiterate that, although it may ultimately be determined that defendants have libeled plaintiff, “[p]rior restraints are not permissible . . . merely to enjoin the publication of libel” (Rosenberg, 290 AD2d at 239; see also Giffuni v Feingold, 299 AD2d 265, 266 [1st Dept 2002]; cf. Dennis v Napoli, 148 AD3d 446 [1st Dept 2017] [affirming preliminary injunction against sending unsolicited defamatory communications about the plaintiff, who was not a public figure, directly to her colleagues, friends and family]). Accordingly, as plaintiff appears to recognize, the preliminary injunction can be affirmed only if it enjoins a “true threat” against plaintiff (Virginia v Black, 538 US at 359 [internal quotation marks omitted]). We find, however, that the speech at issue, as offensive as it is, cannot reasonably be construed as truly threatening or inciting violence against plaintiff. Rather, the lynching imagery at issue was plainly intended to draw a grotesque analogy between lynching and FINRA’s banning of Harris, ]who is an African American (and is identified as such in the posts)[FN2]. While this analogy is incendiary and highly inappropriate, plaintiff has not established that any reasonable viewer would have understood the posts as threatening or calling for violence against him. Moreover, even if the posts could reasonably be construed as advocating unlawful conduct, plaintiff has not established that any “such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action” (Brandenburg v Ohio, 395 US 444, 447 [1969]).

Regardless of the subject injunction’s constitutionality, defendants were not free to disobey an order within the jurisdiction of the issuing court, and not void on its face, until they had obtained judicial relief from it [FN3]. Further, contrary to defendants’ contention, the injunction, at least as modified by this Court’s partial stay, was not impermissibly vague or ambiguous. Moreover, we are satisfied that, assuming that defendants controlled the website, a substantial part of the posted material forming the basis for the contempt finding violated the terms of the injunction as modified by the partial stay. However, it cannot be determined on the present record whether defendants exercised control and authority over the website, an issue that we find to have been sufficiently preserved by defendants. Accordingly, we vacate the contempt adjudication and direct that, on remand, an evidentiary hearing be held to determine whether defendants had control of the website at the times of the alleged contemptuous conduct.

Lueker v Lueker, 2018 NY Slip Op 07421 [2d Dept. 2018]

The order appealed from, holding the father in contempt for failing to comply with the July 2013 order by not posting a bond, is not subject to reversal based on this Court’s modification of the July 2013 order by deleting the requirement that the plaintiff post a bond, as “[o]bedience to a lawful order of the court is required even if the order is thereafter held erroneous or improvidently made or granted by the court under misapprehension or mistake” (Department of Hous. Preserv. & Dev. of City of New York v Mill Riv. Realty, 169 AD2d 665, 670, affd 82 NY2d 794 [internal quotation marks omitted]; see Matter of Saffra v Rockwood Park Jewish Ctr., 249 AD2d 480). Moreover, this Court’s modification of the July 2013 order “does not render the instant appeal academic, since a party may be adjudicated in contempt of a court mandate which is later overturned on appeal” (Matter of Village of Chestnut Ridge v Town of Ramapo, 99 AD3d 928, 930).

Nevertheless, we reverse the order appealed from, since, in response to the defendant’s showing that she was prejudiced by the plaintiff’s knowing disobedience of a lawful order of the court which expressed an unequivocal mandate, the plaintiff proffered credible evidence of his inability to obtain the required bond. Inability to comply with an order is a defense to both civil and criminal contempt (see El-Dehdan v El-Dehdan, 26 NY3d 19, 35; Matter of Powers v Powers, 86 NY2d 63, 70; Gomes v Gomes, 106 AD3d 868, 869; Yeager v Yaeger, 38 AD3d 534; Ferraro v Ferraro, 272 AD2d 510, 512).

Matter of Palmitesta v Palmitesta, 2018 NY Slip Op 07731 [2d Dept. 2018]

Here, at the time the father’s motion was decided, the mother was complying with the parties’ stipulation. Thus, although the mother may have failed to comply with the stipulation in the past, at the time the father’s motion was decided, a civil contempt finding no longer could have served its intended purpose of compelling obedience to the parties’ stipulation. The only purpose of a civil contempt sanction at that point would have been to punish the mother, but punishment is the purpose of criminal contempt, not civil contempt. Thus, we agree with the Family Court’s determination, in effect, denying the father’s motion (see id. at 239; Matter of Peer, 50 AD3d 1511, 1512; Carr v Decesare, 280 AD2d 852, 853).


Rodriguez v Architron Envtl. Servs., Inc., 2018 NY Slip Op 07955 [1st Dept. 2018]

The summary judgment motion was premature and the motion court properly denied it on that basis. No discovery had been conducted before Architron moved for summary judgment; thus, plaintiff was not given a chance to depose two parties — defendants in a related action that has now been consolidated with this one — who might have knowledge concerning the relevant issues in this action (see Gonzalez v Vincent James Mgt. Co., Inc. , 306 AD2d 226 [1st Dept 2003]; La v New York Infirmary/Beekman Downtown Hosp. , 214 AD2d 425 [1st Dept 1995]).

Moreover, even if the documents that Architron submitted on its motion had sufficed to make a prima facie showing that it had completed its work at the site before plaintiff’s alleged accident, plaintiff nonetheless had an acceptable excuse for not offering any countervailing facts to oppose the motion — namely, the lack of any opportunity to conduct discovery (see Gonzalez , 306 AD2d at 226).

Haxhijaj v Ferrer, 2018 NY Slip Op 07416 [2d Dept. 2018]

In a personal injury action, a party should generally be afforded a reasonable opportunity to conduct discovery prior to the determination of a motion for summary judgment (see CPLR 3212[f]; Brea v Salvatore, 130 AD3d 956Malester v Rampil, 118 AD3d 855, 856). Here, little discovery has taken place, and depositions of the parties have not yet occurred. Moreover, the defendant submitted evidence suggesting that further discovery might lead to relevant evidence pertaining to the circumstances of the accident (see Hawana v Carbuccia, 164 AD3d 563Worley v Safemove Rental, 120 AD3d 667, 668). Accordingly, we will not disturb the Supreme Court’s determination to deny the plaintiff’s motion for summary judgment on the issue of liability without prejudice to renew (see Takhalov v Rottenberg, 128 AD3d 678Amico v Melville Volunteer Fire Co., Inc., 39 AD3d 784, 785).


Salinas v World Houseware Producing Co., Ltd., 2018 NY Slip Op 07938 [1st Dept. 2018]

Where the conclusion of an expert relies upon facts contrary to the plaintiff’s testimony, the affirmation will fail to raise an issue of fact sufficient to defeat summary judgment (see Feaster-Lewis v Rotenberg, 93 AD3d 421, 422 [1st Dept 2012], lv denied 19 NY3d 803 [2012]; Wengenroth v Formula Equip. Leasing, Inc., 11 AD3d 677, 679 [2d Dept 2004]). Here, the validity of plaintiff’s experts’ opinions rely upon the assumption that the subject potholder caught fire after contacting the heating element of plaintiff’s oven, a fact plaintiff specifically denied several times during her deposition. Plaintiff was not equivocal at her deposition, nor did she seek to correct her testimony at any time thereafter.


11 USC § 362[a]

Castaldini v Walsh, 2018 NY Slip Op 07407 [2d Dept. 2018]

The plaintiffs commenced this action to recover damages for personal injuries allegedly sustained by the plaintiff Richard Castaldini at the defendants’ home. The defendant Gia Walsh was served by personal delivery of the summons and complaint (see CPLR 308[1]). The defendant David Walsh was served by delivery of the summons and complaint to Gia Walsh, follow-up mailing, and filing of proof of service with the Suffolk County Clerk (see CPLR 308[2]). The defendants moved to dismiss the complaint pursuant to CPLR 3211(a) on the ground that because Gia Walsh had filed a petition for bankruptcy, the automatic bankruptcy stay (see 11 USC § 362[a]) was in effect when service was effectuated, and the stay extended to preclude service upon David Walsh by delivery of the summons and complaint to Gia Walsh. The Supreme Court granted that branch of the motion which was to dismiss the complaint insofar as asserted against Gia Walsh, but denied that branch of the motion which was to dismiss the complaint insofar as asserted against David Walsh. The defendants appeal.

We agree with the Supreme Court that the defendants’ contention that 11 USC § 1301(a) precluded service upon David Walsh by delivery of the summons and complaint to Gia Walsh under CPLR 308(2) is without merit (cf. 11 USC §§ 362[a], 1301[a]).

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]


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 613Wall 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 888Vigo v 501 Second St. Holding Corp., 100 AD3d 872Impastato 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).


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).