theCPLRblog

CPLR R. 5015(a); 22 NYCRR 202.48; Stipulatons

CPLR R. 5015 Relief from judgment or order
(a) On motion
(1) excusable default...

22 NYCRR 202.48 Submission of orders, judgments and decrees for signature

Klughaupt v Hi-Tower Contrs., Inc., 2009 NY Slip Op 05750 (App. Div., 2nd, 2009)

The Supreme Court providently exercised its discretion in denying the plaintiff's motion for leave to enter a default judgment against the defendant Lynch Park, LLC (hereinafter Lynch Park), and in granting Lynch Park's cross motion to vacate its default in answering and for leave to serve a late answer (see CPLR 5015). Considering the lack of any prejudice to the plaintiff as a result of the relatively short three-week delay in serving an answer, the existence of a potentially meritorious defense, and the public policy favoring the resolution of cases on the merits, the Supreme Court properly excused the de minimis delay in answering (see Schonfeld v Blue & White Food Prods. Corp., 29 AD3d 673; Yonkers Rib House, Inc. v 1789 Cent. Park Corp., 19 AD3d 687; Trimble v SAS Taxi Co., Inc., 8 AD3d 557; see e.g. Perez v Linshar Realty Corp., 259 AD2d 532; Swidler v World-Wide Volkswagen Corp., 85 AD2d 239, cf. Leifer v Pilgreen Corp.,AD3d, 2009 NY Slip Op 03872 [2d Dept 2009] [10-month delay in moving to vacate default in answering or appearing, with no meritorious defense, does not warrant vacatur of default]).

Diane v Ricale Taxi, Inc., 2009 NY Slip Op 05680 (App. Div., 1st, 2009)

Plaintiff fails to show that a judgment was ever issued, much less served on appellant. The only exhibits attached to plaintiff's opposition are an order granting a default judgment and directing an inquest, with no notice of entry or affidavit of service, and a copy of this Court's subsequent order (291 AD2d 320) involving another defendant and containing no references to any judgment in any amount against appellant. Accordingly, it does not appear that appellant's one-year time limit under CPLR 5015(a)(1) to move for relief from a judgment or order ever began to run, and appellant's motion should not have been denied as untimely. For present purposes, appellant, who was named a defendant only because he was one of two employees who regularly drove the taxi involved in the accident, comes forward with sufficient evidence that he could not have been the driver since the accident occurred at night while he worked only days. Indeed, the possibility that appellant had nothing to do with the accident would, given a reasonable excuse, warrant vacatur of the default judgment in the interest of justice even if the one-year time limit had run (see Johnson v Minskoff & Sons, 287 AD2d 233, 236 [2001]). We accept appellant's excuse that he did not understand the import of the legal documents he was [*2]receiving and trusted his employer's assurances that it would take care of the matter for him.

Another rare, "in the interests of justice" vacatur.

Rowley v Amrhein, 2009 NY Slip Op 05834 (App. Div., 1st, 2009)

Defendant's challenge to the judgment on the ground that it inaccurately reflects the stipulation of settlement by including terms that are inconsistent therewith is not preserved for appellate review since there is no record that defendant raised any objection to plaintiff's proposed judgment, as required by 22 NYCRR 202.48(c)(2) (see Salamone v Wincaf Props., 9 AD3d 127, 140 [2004], lv dismissed 4 NY3d 794 [2005]). Defendant's claim that he had no opportunity to object to plaintiff's proposed judgment because he was not properly served with a copy thereof is properly directed to Supreme Court in a motion to vacate the judgment pursuant to CPLR 5015(a)(1), not to this Court on appeal (see McCue v McCue, 225 AD2d 975, 976 [1996]; Levy v Blue Cross & Blue Shield of Greater N.Y., 124 AD2d 900, 901 [1986]).

Defendant's challenges to the judgment on the bases that it grants plaintiff a divorce on a ground that he contests and fails to adjudicate his counterclaim allege substantive errors in the judgment that affect his substantial rights and not mere inconsistencies with the intentions of the court and the parties as demonstrated by the record. Thus, review may be obtained either through an appeal from the judgment or through a motion to vacate pursuant to CPLR 5015(a) (Salamone, 9 AD3d at 133-134). The record reveals that Supreme Court did not address the grounds for divorce or defendant's counterclaim. Accordingly, we remand the matter for further proceedings to determine these issues.

Defendant's contention that the stipulation disposing of the parties' economic issues is unenforceable against him is not properly before us, since defendant never moved in Supreme Court to set aside the stipulation (see Garrison v Garrison, 52 AD3d 927, 928 [2008]; Hopkins v Hopkins, 97 AD2d 457 [1983]). In any event, the terms of the stipulation were memorialized in [*2]a proposed preliminary conference order that the court reviewed during the October 30, 2007 proceedings, the stipulation was signed and initialed by both parties, and the court expressly informed the parties on the record that it was a binding contract. The stipulation contained no express reservation of the right not to be bound until the execution of a more formal agreement. To the contrary, all the essential terms and conditions of an agreement were set forth in the stipulation, and all that remained was their translation into a more formal document (see Brause v Goldman, 10 AD2d 328, 332 [1960], affd 9 NY2d 620 [1961]).

The bold is mine.

22 NYCRR 202.48; Order never settled on decision is abandoned and without effect AND a case where it didn't apply

22 NYCRR 202.48 Submission of orders, judgments and decrees for signature

Redeemed Christian Church of God Tabernacle of Restoration v Green, 2009 NY Slip Op 04125 (App. Div., 1st, 2009)

Appeal from order, Supreme Court, New York County (Norma Ruiz, J.), entered February 5, 2008, which, to the extent appealed from, in this action for specific performance of a contract for the sale of real property, denied plaintiff's motion pursuant to CPLR 3211(a)(4) to dismiss a related holdover proceeding in Civil Court or, in the alternative, to stay the holdover proceeding or to consolidate it with this action, and awarded defendants, sua sponte, use and occupancy, unanimously dismissed, without costs, as academic.

It is undisputed that on February 28, 2008, the Civil Court entered a default judgment against plaintiff in the related holdover proceeding. As such, that proceeding has concluded, thereby rendering moot the portion of this appeal addressing it. The appeal is also moot to the extent it addresses the motion court's sua sponte grant of use and occupancy to defendants. Since defendants never settled an order on that decision, as directed by the motion court, it was abandoned and never took effect (see Uniform Rules for Trial Cts [22 NYCRR] § 202.48(b)]).

Capogrosso v Reade Broadways Assoc., 2009 NY Slip Op 04280 (App. Div., 1st, 2009)

There is no merit to plaintiff's argument that because defendant did not settle an order within 60 days of the trial court's decision, defendant's claims underlying the award of damages in the judgment should be deemed abandoned pursuant to 22 NYCRR 202.48. The directive in the decision to "[s]ettle order on notice" pertained only to so much of the decision as determined that defendant was entitled to reasonable attorneys' fees and referred defendant's claim therefor to a Special Referee for a report or, upon the parties' stipulation, a determination. The settle order directive could not have had any pertinence to so much of the decision as awarded defendant a sum certain, " which speaks for itself'" (Farkas v Farkas, 11 NY3d 300, 309 [2008], quoting Funk v Barry, 89 NY2d 364, 367 [1996]). Indeed, the decision was fairly explicit in "permit[ting]" defendant to enter a money judgment for that sum certain without further court involvement.

The bold is mine.

CPLR § 5601 Appeal as of right to the Court of Appeals and Submission of orders

CPLR § 5601 Appeals to the court of appeals as of right

CPLR § 5601(a).  Dissent

22 NYCRR 202.48 Submission of orders, judgments and decrees for signature

The short version:
1. If there are two dissents at the Appellate Division you can appeal as of right; and
2. Rule 202.48's 60-day requirement does not apply to the "entry [of judgment] process."

Farkas v Farkas, 2008 NY Slip Op 07988 (Court of Appeals)

The wife appealed the Appellate Division's May 2007 order to us as of right, based on the dual dissent (see CPLR 5601[a])¹. The husband sought leave to appeal from the same order, which we granted. His appeal brings up for review the Appellate Division's June 1998 order affirming the 1996 judgment (see CPLR 5501[a][1]). We now reverse the Appellate Division's May 2007 order, and uphold its June 1998 order.

The 1996 judgment and the 1999 amended judgment unquestionably were not subject to Rule 202.48's 60-day requirement. These judgments carried out the 1996 decision, which directed the parties to "[s]ettle judgment." Moreover, the decretal paragraph specifically addressing the Chemical Bank monies provided that the wife was "entitled to enter a money judgment against [the husband] for the total amount due and owing to Chemical Bank without further order" ([emphasis added]). That is, this paragraph set out a "simple judgment for a sum of money which speaks for itself," and therefore falls outside the ambit of Rule 202.48 (Funk v Barry, 89 NY2d 364, 367 [1996]). As we emphasized in Funk, the "settle" or "submit" trigger for the 60-day limitation of Rule 202.48(a) "does not purport to govern the flow of the entry process, which is a ministerial recording function that is separate and distinct from the procedure of obtaining the court's signature on a proposed judgment" (89 NY2d at 368 [citations omitted]). And to further drive home the point that no further court action was, in fact, contemplated or [*7]required with respect to the monies owed Chemical Bank, Supreme Court added the phrase "without further order" to the typewritten text of the proposed counter-judgment submitted in 1996.

1. CPLR § 5601(a) reads:

An appeal may be taken to the court of appeals as of right in an action originating in the supreme court, a county court, a surrogate's court, the family court, the court of claims or an administrative agency, from an order of the appellate division which finally determines the action, where there is a dissent by at least two justices on a question of law in favor of the party taking such appeal.

The bold and the footnote are mine.

A curious decision.