theCPLRblog

CPLR § 317

CPLR § 317 Defense by person to whom summons not personally delivered

M. R. v 2526 Valentine LLC, 2009 NY Slip Op 00300 (App. Div., 1st 2009)

"A person served with a summons other than by personal delivery . . . may be allowed to defend the action within one year after he obtains knowledge of entry of the judgment . . . upon a finding . . . that [it] did not personally receive notice of the summons in time to defend and has a meritorious defense" (CPLR 317). Valentine cannot seek relief under this statute, which requires [*2]only a showing of a potentially meritorious defense (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138 [1986]), because it failed to establish that it had not received notice of the summons and complaint in time to interpose a timely appearance or answer (see Commissioners of State Ins. Fund v Nobre, Inc., 29 AD3d 511 [2006]; Metropolitan Steel Indus. v Rosenshein Hub Dev. Corp., 257 AD2d 422 [1999]). Therefore, Valentine must satisfy the requirements of CPLR 5015(a)(1), wherein a defendant seeking to vacate a default judgment must demonstrate both a reasonable excuse for its default and a potentially meritorious defense.

Valentine failed to demonstrate a reasonable excuse for its default. Plaintiff demonstrated that she served Valentine through the Secretary of State on January 29, 2007 and sent Valentine a letter two months later informing it that plaintiff would seek a default judgment if Valentine did not answer or appear within 10 days. Plaintiff also demonstrated that on January 8 and April 13, 2007, Valentine's insurer sent Valentine letters stating the insurer's disclaimer of coverage for the assault. In his conclusory affidavit, Valentine's managing member did not deny receiving the summons and complaint from the Secretary of State, plaintiff's letter or the disclaimer letters from Valentine's insurer, all of which had been sent to Valentine before plaintiff sought and obtained the default judgment. In light of the disclaimer letters, which, again, Valentine never denied receiving, its managing member's stated belief that the insurance company had appeared and answered was patently insufficient to establish a reasonable excuse for the default (see Rosario v Beverly Rd. Realty Co., 38 AD3d 875 [2007]). Because Valentine failed, as a matter of law, to proffer a reasonable excuse for its default, which is a necessary precondition to relief under CPLR 5015(a)(1), its motion to vacate the judgment must be denied, regardless of whether Valentine demonstrated a potentially meritorious defense.

CPLR § 317 Defense by person to whom summons not personally delivered

M. R. v 2526 Valentine LLC, 2009 NY Slip Op 00300 (App. Div., 1st 2009)

"A person served with a summons other than by personal delivery . . . may be allowed to defend the action within one year after he obtains knowledge of entry of the judgment . . . upon a finding . . . that [it] did not personally receive notice of the summons in time to defend and has a meritorious defense" (CPLR 317). Valentine cannot seek relief under this statute, which requires [*2]only a showing of a potentially meritorious defense (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138 [1986]), because it failed to establish that it had not received notice of the summons and complaint in time to interpose a timely appearance or answer (see Commissioners of State Ins. Fund v Nobre, Inc., 29 AD3d 511 [2006]; Metropolitan Steel Indus. v Rosenshein Hub Dev. Corp., 257 AD2d 422 [1999]). Therefore, Valentine must satisfy the requirements of CPLR 5015(a)(1), wherein a defendant seeking to vacate a default judgment must demonstrate both a reasonable excuse for its default and a potentially meritorious defense.

Valentine failed to demonstrate a reasonable excuse for its default. Plaintiff demonstrated that she served Valentine through the Secretary of State on January 29, 2007 and sent Valentine a letter two months later informing it that plaintiff would seek a default judgment if Valentine did not answer or appear within 10 days. Plaintiff also demonstrated that on January 8 and April 13, 2007, Valentine's insurer sent Valentine letters stating the insurer's disclaimer of coverage for the assault. In his conclusory affidavit, Valentine's managing member did not deny receiving the summons and complaint from the Secretary of State, plaintiff's letter or the disclaimer letters from Valentine's insurer, all of which had been sent to Valentine before plaintiff sought and obtained the default judgment. In light of the disclaimer letters, which, again, Valentine never denied receiving, its managing member's stated belief that the insurance company had appeared and answered was patently insufficient to establish a reasonable excuse for the default (see Rosario v Beverly Rd. Realty Co., 38 AD3d 875 [2007]). Because Valentine failed, as a matter of law, to proffer a reasonable excuse for its default, which is a necessary precondition to relief under CPLR 5015(a)(1), its motion to vacate the judgment must be denied, regardless of whether Valentine demonstrated a potentially meritorious defense.

CPLR § 8004(b)

CPLR § 8004 Commissions of receivers

(b) Allowance where funds depleted

Flotteron v JEL Realty, 2009 NY Slip Op 00339 (App. Div., 2nd)

Upon application of a receiver, the court may direct the parties who sought that appointment to pay necessary expenses and compensation which exceeds the money in the receiver's hands upon termination of the receivership (see generally CPLR 8004[b]).

CPLR § 5511; § 3123

CPLR § 5511 Permissible appellant and respondent

CPLR § 3213 Motion for summary judgment in lieu of complaint

D'Agostino Law Off., P.C. v Parlante, 2009 NY Slip Op 00331 (App. Div., 2nd)

The defendants failed to submit papers in opposition to the plaintiff's motion for summary judgment in lieu of complaint within the time provided in the notice of motion (see CPLR 3213), and the plaintiff's motion for summary judgment in lieu of complaint was granted on default. No appeal lies from an order or judgment granted upon the default of the appealing party (see CPLR 5511; Sanchez v Village of Ossining, 271 AD2d 674; Lumbermen's Mut. Cas. Co. v Fireman's Fund Am. Ins. Co., 117 AD2d 588). Since the judgment was entered pursuant to an order granting the plaintiff's motion for summary judgment upon the defendants' default in appearing and opposing the motion, the appeal must be dismissed (see Lumbermen's Mut. Cas. Co. v Fireman's Fund Am. Ins. Co., 117 AD2d 588).

The bold is mine.

CPLR R. 2104

CPLR R. 2104 Stipulations

Canarelli v Canarelli, 2009 NY Slip Op 00322 (App. Div., 2nd)

While a stipulation of settlement may be set aside where there is evidence of fraud, overreaching, mistake, or duress (see Matter of Dillon v Dillon, 257 AD2d 621), the defendant failed [*2]to tender evidence in admissible form sufficient to warrant a hearing on her motion to vacate the parties' stipulation (see O'Shell v O'Shell, 54 AD3d 914, 915; Shockome v Shockome, 53 AD3d 610; Chernow v Chernow, 51 AD3d 705, 706). The defendant's contention that the appointment of a receiver to sell certain real property should be set aside because of a purported failure to comply with the Court Rules (see 22 NYCRR, Part 36) was not raised before the Supreme Court and, therefore, is not properly before this Court (see Sandoval v Juodzevich, 293 AD2d 595, 595-596; Mourounas v Shahin, 291 AD2d 537; Weber v Jacobs, 289 AD2d 226).

The bold is mine.

CPLR § 3126; R. 3120(1)(i)

CPLR § 3126 Penalties for refusal to comply with order or to disclose

CPLR R. 3120 Discovery and production of documents and things for inspection, testing, copying or photographing

1. After commencement of an action, any party may serve on any other party a notice or on any other person a subpoena duces tecum:

(i) to produce and permit the party seeking discovery, or someone acting on his or her behalf, to inspect, copy, test or photograph any designated documents or any things which are in the possession, custody or control of the party or person served

Argo v Queens Surface Corp., 2009 NY Slip Op 00320 (App. Div., 2nd)

A court may, inter alia, issue an order "striking out pleadings or . . . rendering a judgment by default" as a sanction against a party who "refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed" (CPLR 3126[3]; see Carabello v Luna, 49 AD3d 679). Striking a defendant's answer is a drastic remedy which is "inappropriate absent a clear showing that failure to comply with discovery demands was willful and contumacious" (Paca v City of New York, 51 AD3d 991, 993, quoting Brandes v North Shore Univ. Hosp., 22 AD3d 778; see Jenkins v City of New York, 13 AD3d 342).

...

The plaintiff did not show that the defendants engaged in willful or contumacious conduct by failing to provide items "which are in [their] possession, custody or [*2]control" (CPLR 3120[1][i]). Indeed, the defendants demonstrated that the records and reports that the plaintiff sought with respect to the defendant Queens Surface Corp. — a bus company no longer in existence — were now in the possession of its successor, the MTA Bus Co., which company was not under their control. Accordingly, the defendants cannot be compelled to produce or be sanctioned for failing to produce information which they do not possess or which does not exist (see Carabello v Luna, 49 AD3d at 680; Tolz v Valente, 39 AD3d 737, 738; Corriel v Volkswagen of Am., 127 AD2d 729, 731).

The bold is mine.

CPLR R. 4511(b)

CPLR R. 4511(b) When judicial notice may be taken without request; when it shall be taken on request.

Kingsbrook Jewish Med. Ctr. v Allstate Ins. Co., 2009 NY Slip Op 00351 (App. Div., 2nd)

We are asked to determine whether the definition of diagnosis and procedure codes adopted by the United States Department of Health and Human Services (hereinafter HHS) as part of its regulatory authority may be a proper subject for judicial notice under CPLR 4511. If so, we must also determine whether the defined diagnostic codes, in and of themselves, permit a finding that a patient's hospital care and treatment is wholly outside the scope of no-fault automobile coverage. Until now, we are not aware of any appellate court that has addressed the issue of whether the diagnosis and procedure codes key of the United States. government can be judicially noticed by courts, so that it may then be used to decipher no-fault billing forms.

...

CPLR 4511(b) provides that upon request of a party, a court may take judicial notice of federal, state, and foreign government acts, resolutions, ordinances, and regulations, including those of their officers, agencies, and governmental subdivisions. While the concept of judicial notice is elastic (see Richardson on Evidence § 52 [10th ed]) and applicable to a wide range of subject matter, official promulgations of government appear to be particularly appropriate for judicial notice, given the manner that CPLR 4511 expressly singles them out for such treatment.

Judicial notice has never been strictly limited to the constitutions, resolutions, ordinances, and regulations of government, but has been applied by case law to other public documents that are generated in a manner which assures their reliability. Thus, the concept has been applied to census data (see Affronti v Crosson, 95 NY2d 713, 720; Buffalo Retired Teachers 91-94 Alliance v Board of Educ. for City School Dist. of City of Buffalo, 261 AD2d 824, 825; Mackston v State of New York, 126 AD2d 710), agency policies (see Matter of Albano v Kirby, 36 NY2d 526, 532), certificates of corporate dissolution maintained by the Secretary of State (see Brandes Meat Corp. v Cromer, 146 AD2d 666, 667), the resignation of public officials (see Matter of Soronen v Comptroller of State of N.Y., 248 AD2d 789, 791; Matter of Maidman, 42 AD2d 44, 47), legislative proceedings (see Outlet Embroidery Co. v Derwent Mills, 254 NY 179, 183), legislative journals (see Browne v City of New York, 213 App Div 206, 233), the consumer price index (see Sommers v Sommers, 203 AD2d 975, 976; City of Hope v Fisk Bldg. Assoc., 63 AD2d 946, 947), the location of real property recorded with a clerk (see Andy Assoc. v Bankers Trust Co., 49 NY2d 13, 23-24), death certificates maintained by the Department of Health (see Matter of Reinhardt, 202 Misc 424, 426), and undisputed court records and files (see e.g. Perez v New York City Hous. Auth., 47 AD3d 505; Walker v City of New York, 46 AD3d 278, 282; Matter of Khatibe v Weill, 8 AD3d 485; Matter of Allen v Strough, 301 AD2d 11, 18). Even material derived from official government websites may be the subject of judicial notice (see Munaron v Munaron, 21 Misc [*5]3d 295 [Sup Ct Westchester County 2008]; Parrino v Russo, 19 Misc 3d 1127[A] [Civ Ct Kings County 2008]; Nairne v Perkins, 14 Misc 3d 1237[A] [Civ Ct Kings County 2008]; Proscan Radiology of Buffalo v Progressive Cas. Ins. Co., 12 Misc 3d 1176[A] [Buffalo City Ct 2006]).

White Plains Hospital argues that the code key available on the HHS website does not qualify for judicial notice, by relying upon the language of this Court in Ptasznik v Schultz (247 AD2d 197). In Ptasznik, then-Justice Albert Rosenblatt defined the test for judicial notice as "whether the fact rests upon knowledge or sources so widely accepted and unimpeachable that it need not be evidentiarily proven" (id. at 198, citing Hunter v New York, Ontario & W.R.R. Co., 116 NY 615). White Plains Hospital maintains that code numbers which require deciphering do not constitute general information widely accepted by the average lay person. However, Ptasznik discusses specifically, and the universe of case law recognizes generally, two disjunctive circumstances where information may be judicially noticed. The first is when information "rests upon knowledge [that is] widely accepted" (Ptasznik v Schultz, 247 AD2d at 198 [emphasis added]) such as calendar dates, geographical locations, and sunrise times (id. at 198). The second "rests upon . . . sources [that are] widely accepted and unimpeachable" (id. [emphasis added]), such as reliable uncontested governmental records.

Here, the diagnosis and procedure codes key maintained by the United States Government on its HHS website is of sufficient authenticity and reliability that it may be given judicial notice. The accuracy of the codes key is not contested by White Plains Hospital, and is not subject to courtroom factfinding (see Affronti v Crosson, 95 NY2d at 720). The fact that the code system might not be readily understood by the lay public is of no significance, as the information is proffered for judicial notice not on the basis of being generally understood by the public, but rather, on the basis of its reliable source.

We hold, therefore, that the diagnosis and procedure codes key published by the United States Government on its HHS website may properly be given judicial notice (see CPLR 4511[b]), as the key is reliably sourced and its accuracy not contested.

The bold is mine.

CPLR R. 3211 motion to dismiss not properly converted to 3212 Motion

CPLR R. 3211 Motion to dismiss

CPLR R. 3212 Motion for summary judgment

Stainless Broadcasting Co. v Clear Channel Broadcasting Licenses, L.P., 2009 NY Slip Op 00180 (App. Div., 3d 2009)

On December 29, 2006, defendant removed its broadcasting equipment and vacated the premises. Thereafter, plaintiff made a written demand for defendant to remit $299,700, a sum which plaintiff claimed represented rent payments for the balance of the five-year 2006 lease term. Upon defendant's refusal, plaintiff commenced this action on the theories of breach of contract, breach of implied duty of good faith and fair dealing, unjust enrichment, quantum meruit and fraud. Plaintiff also sought a declaration that the 2006 lease was in full force and effect. In lieu of an answer, defendant moved for dismissal of the complaint and summary judgment pursuant to CPLR 3211 and/or 3212. In an order without a supporting decision, Supreme Court granted defendant's motion and dismissed the complaint, prompting this appeal.

Initially, we note that Supreme Court's order fails to specify the ground upon which it granted defendant's motion. In the event that the court treated defendant's motion as one for summary judgment, we find this to be error. A motion for summary judgment may not be made prior to joinder of issue (see CPLR 3212 [a]) and, although a motion to dismiss pursuant to CPLR 3211 may be converted to a summary judgment motion by the court after giving the parties adequate notice (see CPLR 3211 [c]; Lockheed Martin Corp. v Aatlas Commerce, Inc., 283 AD2d 801, 802 [2001]), the record discloses no such notice by the court. While "the notice requirement may be obviated in cases where it can be found that the parties 'deliberately chart[ed] a summary judgment course'" (Henbest & Morrisey v W. H. Ins. Agency, 259 AD2d 829, 829-830 [1999], quoting Four Seasons Hotels v Vinnik, 127 AD2d 310, 320 [1987]), the record before us does not support such a finding. Although plaintiff made some effort to controvert the evidenc epresented in support of defendant's motion, we cannot conclude that it clearly intended to chart a summary judgment course (see Wadsworth v Beaudet, 267 AD2d 727, 730 [1999]). As a result, we proceed to determine defendant's motion to dismiss and, in doing so, we "must afford the pleadings a liberal construction, take the allegations of the complaint as true and provide plaintiff the benefit of every possible inference" (EBC I, Inc. v Goldman, Sachs & Co., 5 NY3d 11, 19 [2005]; see Team Mktg. USA Corp. v Power Pact, LLC, 41 AD3d 939, 940 [2007]).

CPLR R. 2106 If plaintiff is an attorney, an affidavit must be used, not affirmation

CPLR R. 2106 Affirmation of truth of statement by attorney, physician, osteopath or dentist

Lessoff v 26 Ct. St. Assoc., LLC, 2009 NY Slip Op 00195 (App. Div., 2d 2009)

It was improper for the plaintiff to submit his own affirmation rather than an affidavit, since he was a party to the action (see CPLR 2106; Muniz v Katlowitz, 49 AD3d 511, 513; DeLeonardis v Brown, 15 AD3d 525, 526; Matter of Sassower v Greenspan, Kanarek, Jaffe & Funk, 121 AD2d 549). Furthermore, the purported date of the accident contained in the physician's report constituted inadmissible hearsay, since the source of that information was unknown and may have been part of the history relayed by the plaintiff (see Albrecht v Area Bus Corp., 249 AD2d 253, 255; Ginsberg v North Shore Hosp., 213 AD2d 592; Echeverria v City of New York, 166 AD2d 409, 410). Moreover, the affidavit of the office manager of the plaintiff's law firm was improperly submitted in surreply (see CPLR 2214; Boockvor v Fischer, 56 AD3d 405; Flores v Stankiewicz, 35 AD3d 804, 805; Mu Ying Zhu v Zhi Rong Lin, 1 AD3d 416, 417). In any event, that affidavit was of no probative value. Since the plaintiff failed to produce any evidentiary facts with respect to the date of the accident, that branch of the motion which was pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against the appellant as time-barred should have been granted.

The bold is mine.

CPLR R. 3212(f) "mere hope" is not enough

CPLR R. 3212(f) Facts unavailable to opposing party

Clochessy v Gagnon, 2009 NY Slip Op 00179 (App. Div., 3d)

Defendant failed to raise a material issue of fact. Initially, we reject defendant's assertion that Supreme Court erred in granting plaintiffs summary judgment without permitting him to obtain further discovery. Specifically, defendant sought to obtain the testimony of Mayes to establish that Mayes had acquired the right-of-way by means of abandonment or adverse possession, that she owned and used the right-of-way exclusively and that she had conveyed exclusive title and possession thereof to defendant ^[FN4]. "[I]f 'facts essential to justify opposition [to a motion for summary judgment] may exist but cannot then be stated'" (Mazzaferro v Barterama Corp., 218 AD2d 643, 643 [1995], quoting CPLR 3212 [f]), a trial court may deny a motion for summary judgment (see CPLR 3212 [f]). However, "[t]he 'mere hope' that evidence sufficient to defeat the motion may be uncovered during the discovery process is not enough" (Mazzaferro v Barterama Corp., 218 AD2d at 643, quoting Jones v Gameray, 153 AD2d 550, 551 [1989]. [*3]

Here, Mayes' anticipated testimony would not have controverted plaintiffs' establishment of the common right-of-way. The deeds from Mayes' predecessors to Mayes clearly provide that the right-of-way is to be held "in common with others" and Mayes sold the lots to the parties subject to the subdivision map. "[A]n easement created by reference to a filed map can be extinguished only by the united action of all lot owners for whose benefit the easement was created" (O'Hara v Wallace, 83 Misc 2d 383, 387 [1975], mod 52 AD2d 622 [1976]). Thus, under the circumstances here, Mayes could not have acquired the easement by abandonment or adverse possession and could not, alone, have conveyed the easement to defendant (see generally Will v Gates, 89 NY2d 778, 784-785, [1997]; O'Hara v Wallace, 83 Misc 2d at 386-387). Hence, neither evidence of her intent to do so, nor defendant's understanding thereof, would be sufficient to overcome plaintiffs' demonstrated entitlement to judgment as a matter of law, and Supreme Court properly denied defendant's request for further discovery before granting plaintiffs' motion for summary judgment.

All the bold is mine.

CPLR § 4519 (Dead Man's Statute); CPLR R. 4405

CPLR § 4519. Personal transaction or communication between witness and decedent or mentally ill person

CPLR R. 4405.  Time and judge before whom post-trial motion made

Peterson, Matter of, v See, 2009 NY Slip Op 29011 (App. Term, 2nd)

Initially, we note that contrary to defendant's contention, plaintiff's posttrial motion to set aside the verdict was not untimely. Although CPLR 4405 requires such motions to be made within 15 days "after decision, verdict or discharge of the jury," the time limit is not absolute, and a posttrial motion is not untimely if it is made within an extended time period set by the trial court without objection (see Manning v BrookhavenMem. Hosp. Med. Ctr., 11 AD3d 518 [2004]). The City Court set forth a motion schedule, and there is nothing in the record to indicate that any objection was made to such schedule. In any event, it does not appear that there was any prejudice suffered as a result of the delay in presenting written arguments to the court (see e.g. Brown v Two Exch. Plaza Partners, 146 AD2d 129 [1989]).

In support of the posttrial motion, plaintiff pointed to numerous instances where defendant's testimony was in violation of the Dead Man's Statute (CPLR 4519), which prohibits a party who has an interest in the outcome of the proceeding from testifying about communications or transactions with a decedent. CPLR 4519 (a) provides, in pertinent part, as follows: 

"Upon the trial of an action . . . a party or a person interested in the event . . . shall not be examined as a witness in his own behalf or interest . . . concerning a personal transaction or communication between the witness and the deceased person . . . except where the executor . . . is examined in his own behalf . . . concerning the same transaction or communication." 

In the instant case, the burden of establishing the defense of payment was upon defendant (see Lynch v Lyons, 131 App Div 120 [1909]). The sole evidence offered in support of his defense was his own testimony regarding his payments to the decedent, unsupported by any documentation. This testimony clearly violated CPLR 4519. In an action brought by the representative of a decedent's estate on a promissory note, the maker is not permitted to testify regarding his or her personal transactions with the deceased payee (Matter of Callister, 153 NY 294 [1897]; Alexander v Dutcher, 70 NY 385 [1877]; Cody v Hadcox, 98 App Div 467 [1904]) unless the representative "is examined in his own behalf . . . concerning the same transaction" (CPLR 4519). Plaintiff herein did not waive the protection of the statute nor, as defendant suggests, was plaintiff using the statute "as a sword rather than a shield" (Matter of Wood, 52 NY2d 139, 145 [1981]). Plaintiff's prima facie case was established via the documentary evidence submitted on plaintiff's direct case, which evidence did not "open the door" to defendant's testimony regarding his transactions with the decedent (id.).

In the instant case, the admission of defendant's testimony was improper as it concerned "a personal transaction or communication between the witness and the deceased person" (CPLR 4519) and was highly prejudicial to plaintiff. Accordingly, the trial court did not err in granting plaintiff's motion to the extent of setting aside the verdict and ordering a new trial.

The bold is mine.