theCPLRblog

"No appeal lies as of right from an order directing a hearing..."

Uzamere v Uzamere, 2009 NY Slip Op 09214 (App. Div., 2nd, 2009)

Oral Decision, Not Reduced to Writing, Does Not Get Res Judicata Effect (last case)

Res Judicata
Collateral Estoppel
Law of the Case

Specialized Indus. Servs. Corp. v Carter, 2009 NY Slip Op 09018 (App. Div., 2nd, 2009)

In the underlying action, judgment was entered against the plaintiff upon its default in answering or appearing. The plaintiff obtained an order vacating the default judgment, which was ultimately reversed by this Court (see Dave Sandel, Inc. v Specialized Indus. Servs. Corp., 35 AD3d 790). Generally, a party who has lost a case as a result of alleged fraud or false testimony cannot collaterally attack the judgment in a separate action for damages against the party who adduced the false evidence, and the plaintiff's remedy lies exclusively in moving to vacate the default judgment (see North Shore Envtl. Solutions, Inc. v Glass, 17 AD3d 427; Retina Assoc. of Long Is. v Rosberger, 299 AD2d 533; New York City Tr. Auth. v Morris J. Eisen, P.C., 276 AD2d 78, 87; Yalkowsky v Century Apts. Assoc., 215 AD2d 214, 215). Under an exception to that rule, a separate lawsuit may be brought where the [*2]alleged perjury or fraud in the underlying action was "merely a means to the accomplishment of a larger fraudulent scheme" (Newin Corp. v Hartford Acc. & Indem. Co., 37 NY2d 211, 217) which was "greater in scope than the issues determined in the prior proceeding" (Retina Assoc. of Long Is. v Rosberger, 299 AD2d at 533 [internal quotation marks omitted]). The plaintiff here, in its amended verified complaint and supplemental affidavits, has sufficiently alleged a larger fraudulent scheme to fit within the exception to the rule against collateral attack (see New York City Tr. Auth. v Morris J. Eisen, P.C., 276 AD2d at 80, 87-88; cf. North Shore Envtl. Solutions, Inc. v Glass, 17 AD3d at 428).

Contrary to the defendant's contention, the first cause of action in the amended verified complaint is not barred by the doctrine of res judicata since the Judiciary Law cause of action did not arise out of the factual transaction which was the subject matter of that action (see Matter of Hodes v Axelrod, 70 NY2d 364, 372; Mahler v Campagna, 60 AD3d at 1011; Lazides v P & G Enters., 58 AD3d 607, 609; Triboro Fastener & Chem. Prods. Corp. v Lee, 236 AD2d 603, 603-604). Nor is the first cause of action precluded by principles of collateral estoppel in that the claim was not litigated in the underlying action and much of the evidence upon which the plaintiff relies was discovered subsequent to entry of the default judgment in the underlying action (see Kaufman v Eli Lilly & Co., 65 NY2d 449, 456-457; Izko Sportswear Co., Inc. v Flaum, 25 AD3d at 537; Chambers v City of New York, 309 AD2d 81, 85).

Man Choi Chiu v Chiu, 2009 NY Slip Op 08792, (App. Div., 2nd, 2009)

On a prior appeal in this action, this Court affirmed, inter alia, the Supreme Court's determination to award an attorney's fee to the plaintiffs (see Man Choi Chiu v Chiu, 38 AD3d 619). Thus, the doctrine of the law of the case (see People v Evans, 94 NY2d 499, 502) precludes consideration of whether the plaintiffs were properly awarded an attorney's fee (see Matter of Pantelidis v New York City Bd. of Stds. & Appeals, 43 AD3d 314, affd 10 NY3d 846; Toyos v City of New York, 54 AD3d 628; Combier v Anderson, 34 AD3d 333).

As a general rule, we do not consider any issue raised on a subsequent appeal that was raised, or could have been raised, in an earlier appeal that was dismissed for lack of prosecution, although we have the inherent jurisdiction to do so (see Rubeo v National Grange Mut. Ins. Co., 93 NY2d 750; Bray v Cox, 38 NY2d 350). Here, the defendants appealed from an order of the Supreme Court dated September 7, 2007, which, inter alia, denied their motion to cancel the hearing on the issue of the amount of attorney's fees to be awarded. That appeal was dismissed by decision and order on motion of this Court dated June 18, 2008, for failure to prosecute. We decline to exercise our discretion to determine the merits of that appeal on the instant appeal from the judgment, as amended (see Bray v Cox, 38 NY2d [*2]350; Blue Chip Mtge. Corp. v Strumpf, 50 AD3d 936, 937).

Jespersen v Li Sheng Liang, 2009 NY Slip Op 09000 (App. Div., 2nd, 2009)

As a general rule, a dismissal "with prejudice" signifies that the court intended dismiss the action "on the merits" (Yonkers Contr. v Port Auth. Trans Hudson Corp., 93 NY2d 375, 380). However, an oral decision which has never been reduced to a written order or judgment is not entitled to res judicata effect and thus is ineffective as a bar to subsequent proceedings (see Towne v Asadourian, 277 AD2d 800; Begelman v Begelman, 170 AD2d 562; see also 73 NY Jur 2d, Judgments §§ 354, 436, 437). Moreover, it is clear from the hearing transcript, as well as from the order appealed from, that the Supreme Court did not intend its dismissal of the first action to be on the merits. In addition, while a "duplicate" action is subject to dismissal pursuant to CPLR 3211(a)(4), there was no procedural bar to the plaintiff commencing the second action before the first action had been dismissed.

The bold is mine.

Post Appeal Motion to Renew: CPLR R. 2221(e)

CPLR R. 2221(e) Motion for Leave to Renew

Estate of Anna K. Essig v 5670 58 St. Holding Corp., 2009 NY Slip Op 07581 (App. Div., 2nd, 2009)

On prior appeals, this Court, inter alia, affirmed an order granting that branch of the plaintiffs' prior motion which was for summary judgment on their cause of action for a judgment declaring that they are the owners of 225 shares of the capital stock of the defendant 5670 58 Street Holding Corp. and affirmed an order denying the respondents' prior motion for leave to renew their opposition to that branch of the plaintiffs' prior motion (see Estate of Essig v 5670 58 St. Holding Corp., 50 AD3d 948). Thereafter, the respondents moved again for leave to renew based upon documents discovered four months earlier. The Supreme Court granted the motion and, upon renewal, vacated the judgment entered August 7, 2008, and denied that branch of the plaintiffs' prior motion which was for summary judgment on their declaratory judgment cause of action. We reverse.

Pursuant to CPLR 2221(e), a motion for leave to renew "shall be based upon new facts not offered on the prior motion that would change the prior determination . . . and shall contain reasonable justification for the failure to present such facts on the prior motion" (CPLR 2221[e][2],[3]). Moreover, while "a court of original jurisdiction may entertain a motion to renew or to vacate a prior order or judgment on the ground of newly discovered evidence even after an appellate court has affirmed the original order or judgment . . . on [a] postappeal motion [to renew] the [movant] bears a heavy burden of showing due diligence in presenting the new evidence to the [*2]Supreme Court in order to imbue the appellate decision with a degree of certainty" (Levitt v County of Suffolk, 166 AD2d 421, 422-423 [citations omitted][emphasis added]). Here, the respondents failed to offer a reasonable explanation for their failure to present the "new facts" in conjunction either with their opposition to that branch of the plaintiffs' prior motion which was for summary judgment on their declaratory judgment cause of action or with their first motion for leave to renew (see Elder v Elder, 21 AD3d 1055; Renna v Gullo, 19 AD3d 472, 473). Accordingly, the respondents' motion for leave to renew should have been denied.

The bold is mine.

CPLR R. 5526 Record insufficient -- Appeal dismissed

CPLR R. 5526 Content and form of record on appeal

Keita v United Parcel Serv., 2009 NY Slip Op 06165 (App. Div., 2nd, 2009)

In two decisions and orders on motion, dated December 24, 2008, and March 12, 2009, respectively, this Court directed the plaintiffs to serve and file a supplemental record containing, inter alia, the answers to the complaint and "the notice of motion and affidavits annexed thereto, answering affidavits, if any, and reply affidavits, if any, submitted in connection with the motion that resulted in the order being appealed." The plaintiffs have failed to do so.

It is the appellants' obligation to assemble a proper record on appeal (see Salem v Mott, 43 AD3d 397; Cohen v Wallace & Minchenberg, 39 AD3d 689, 689). In this regard, "[t]he record must contain all of the relevant papers that were before the Supreme Court" (Cohen v Wallace & Minchenberg, 39 AD3d 689; see CPLR 5526; Matter of Allstate Ins. Co. v Vargas, 288 AD2d 309, 310). Where, as here, meaningful appellate review of the Supreme Court's determination is made "virtually impossible" because of the incomplete nature of the record submitted, dismissal of the appeal is the appropriate disposition (Salem v Mott, 43 AD3d 397, 397).

The bold is mine,

Appellate Procedure: I don't know why, but I kind of like this decision

CPLR § 5701 Appeals to appellate division from supreme and county courts
(a) Appeals as of right
(2) from an order not specified in subdivision (b), where the motion it decided was made upon notice...

Reyes v Sequeira, 2009 NY Slip Op 05986 (App. Div., 1st, 2009)

Supreme Court requested appraisals for both parcels from Skyline Appraisals Inc. and [*3]East Coast Appraisals, and the appraisals were performed. While neither party objected to the appraisals performed by Skyline, defendant sent a letter to Supreme Court objecting to the appraisal performed by East Coast. Defendant was concerned that the East Coast appraisal was inaccurate and greatly undervalued the parcels. Defendant requested a conference between the parties and the court to "resolve" issues relating to the East Coast appraisal; no motion was made by either party for any relief.

...

Without the prompting of a motion, Supreme Court determined the value of the parcels.

...

The court did not discuss the terms of the stipulation of settlement that required the court to determine the value of the properties by averaging two appraisals, and did not explain how its decision to average the three appraisals was consonant with the terms of stipulation of settlement. Nor did the court explain why it believed that one of the valuation methods was to discard the lowest and highest appraisals, a method that would entail no averaging. This appeal by defendant ensued.

Prior to oral argument on this appeal, defendant moved to vacate the stipulations of settlement — both defendant and the court that heard and decided that motion treated the court's August 7, 2007 on-the-record statements as a stipulation; plaintiff, however, asserts that the court gave directives to which the parties did not stipulate. After oral argument of the appeal, Supreme Court granted the motion to vacate. The court concluded that no binding stipulations existed, and stated that the parties were free to conduct disclosure and file a note of issue when the matter was ready for trial. Thus, although the order appears not to have expressly vacated the order on appeal determining the value of the properties, it implicitly does so (see generally Banker v Banker, 56 AD3d 1105, 1107 [2008]; Savino v "ABC Corp.," 44 AD3d 1026, 1027 [2007]; Matter of Jefferson County Dept. of Social Servs. v Mark L.O., 12 AD3d 1037, 1037-1038 [2004], lv denied 4 NY3d 794 [2005]). Moreover, of course, the order on appeal depends entirely on the existence and validity of the stipulations.

Regardless of whether Supreme Court correctly vacated the stipulations that are the [*5]subject of this appeal, the stipulations have been vacated and this appeal is moot because the rights of the parties cannot be affected by a determination of this appeal (Matter of Hearst Corp. v Clyne, 50 NY2d 707, 714 [1980]; see Matter of Feustel v Rosenblum, 6 NY3d 885 [2006] ["Appeal taken as of right from the Appellate Division judgment . . . and motion for leave to appeal from said judgment . . . dismissed as moot upon the ground that the judgment of the Appellate Division has been vacated by a subsequent order of that Court"]; Matter of Rodriguez v Johnson, 45 AD3d 279 [2007], lv denied 10 NY3d 705 [2008] ["Petitioner's appeal is moot because Supreme Court vacated the judgment on appeal"]; Fidata Trust Co. Mass. v Leahy Bus. Archives, 187 AD2d 270, 271 [1992] ["The order on appeal was subsequently vacated and thus rendered moot"]; see also Perez v Morse Diesel Intl., 10 AD3d 497 [2004]; Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C5517:1, at 208 [1995] ["If the disposition of [a] motion [to reargue, renew or vacate an order] does substantially affect the original order . . . it may have some impact on the appeal. If it alters the order in such a way as to remove the grievance that accounts for the appeal, it should abate the appeal"]). Because the appeal has been rendered moot we cannot and do not pass on the issues presented (see Hearst Corp., 50 NY2d at 713-714 ["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. This principle, which forbids courts to pass on academic, hypothetical, moot, or otherwise abstract questions, is founded both in constitutional separation-of-powers doctrine, and in methodological strictures which inhere in the decisional process of a common-law judiciary"]).

The dissent asserts that "by ruling that the intervening order implicitly' vacates the order on appeal, [we] thereby pass[] on a substantive issue" and "render[] an advisory opinion construing both the status of the order appealed from and [the] effect of an order not even before us." As is obvious from our decision, we pass on no substantive issues relating to the rights of the parties. Equally as obvious, we are not "rendering an advisory opinion construing both the status of the order appealed from and [the] effect of an order not even before us." Rather, we simply conclude that the order on appeal is moot (and, as discussed below, nonappealable) and therefore the appeal must be dismissed. Of course, we first conclude that the order vacating the stipulations implicitly vacates the order on appeal. But that conclusion merely reflects the exercise of our jurisdiction to determine our jurisdiction (see United States v Mine Workers, 330 US 258, 291 [1947]).

The dissent states that by moving to vacate the stipulations, defendants "unilaterally prevent[ed] this Court from deciding whether the motion court erred in vacating what appears to be a valid agreement between the parties." In the first place, however, defendants took no "unilateral" action. Defendants made a motion on notice to vacate the stipulations, a motion Supreme Court granted. Second, this Court is not precluded from determining whether the stipulations are valid. To the contrary, we may determine that precise issue should plaintiff perfect his appeal from the order vacating the stipulations.

...

The appeal should be dismissed for another reason — it is from a sua sponte order from which no appeal lies (see Sholes v Meagher, 100 NY2d 333 [2003]; Person v Einhorn, 44 AD3d 363 [2007]; Unanue v Rennert, 39 AD3d 289 [2007]; Diaz v New York Mercantile Exch., 1 AD3d 242 [2003]). In Sholes the Court of Appeals addressed the issue of the appealability of sua sponte orders. There, an attorney was sanctioned by Supreme Court for engaging in frivolous conduct in the course of a personal injury case. From the bench the trial court gave the parties a briefing schedule, requiring the attorney to submit an affidavit explaining why she should not be sanctioned for her conduct and directing her adversary to submit an affidavit detailing his costs and expenditures at trial. After both sides submitted papers, the trial court ordered the attorney to pay her adversary approximately $14,000. The attorney appealed to the Second Department, which dismissed the appeal because the order imposing sanctions did not decide a motion made on notice (295 AD2d 593 [2002]).

The Court of Appeals granted leave and concluded that the Second Department had correctly dismissed the appeal. The Court of Appeals stated that, "[w]ith limited exceptions, an appeal may be taken to the Appellate Division as of right from an order deciding a motion made upon notice when — among other possibilities — the order affects a substantial right. There is, however, no right of appeal from an ex parte order, including an order entered sua sponte" (100 NY2d at 335 [internal citations omitted]). The Court also stated "[t]hat an order made sua sponte is not an order deciding a motion on notice is apparent from various CPLR provisions, including the definition of motion (see CPLR 2211) and the provision for dismissal for failure to prosecute, which distinguishes between a court initiative' and a party's motion' (see CPLR 3216)" (id. at 335 n 2). While the trial court had created a procedure to ensure that the parties had an opportunity to be heard before the court acted, the Court stressed that "the submissions ordered sua sponte by the trial court were not made pursuant to a motion on notice as contemplated by CPLR 5701(a)(2). While the procedure in this particular case may well have produced a record sufficient for appellate review, there is no guarantee that the same would be true in the next case. Moreover, the amount of notice will vary from case to case, and its sufficiency may often be open to debate. Adherence to the procedure specified by CPLR 5701(a) uniformly provides for certainty, while at the same time affording the parties a right of [*7]review by the Appellate Division. We are therefore unwilling to overwrite that statute" (id. at 336).

As is evident from the briefs, the record and the attorneys' statements at oral argument, the order determining the value of the parcels was not the product of a motion made on notice. Rather, that order was issued sua sponte and therefore is not appealable as of right (id.; Person, supra; Unanue, supra; Diaz, supra).

The bold is mine.

Maybe it's the dissent.  Maybe it's the procedural wonk in me.  Maybe I'm just weird.  But I like this decision.

Appellate Procedure: issue may be raised for first time on appeal...

Honeyman Point Beach Assn., Ltd. v Schiff, 2009 NY Slip Op 05946 (App. Div., 2nd, 2009)

On appeal, the plaintiffs have abandoned their claim that the right to use the beach was automatically renewed upon the absence of a written termination agreement, and they argue for the first time that the right to use the beach did not constitute a "covenant" subject to expiration under the terms of the declaration, but rather an easement that runs with the land and passes to successive lot owners. Contrary to the defendants' contention, this issue may be raised for the first time on appeal because it is one of law which appears on the face of the record and could not have been avoided if it had been raised at the proper juncture (see Romain v Grant, 60 AD3d 838, 839; Beepat v James, 303 AD2d 345). However, since the plaintiffs interchangeably referred to the right to use the beach as both a "covenant" and "easement" before the lower court, and relied upon the language in the declaration that they now seek to disavow, they are estopped from raising the new claim, which is inconsistent with the position taken before the Supreme Court (see Matter of Sbuttoni, 16 AD3d 693, 694; Kohilakis v Smithtown, 167 AD2d 513, 514). In any event, the language of the declaration did not unequivocally establish an intent to create a right in the nature of an easement rather than a revocable license (see Willow Tex v Dimacopoulos, 68 NY2d 963, 965). Accordingly, the Supreme Court properly granted the defendants' separate motions to dismiss the complaint.

The bold is mine.

Evidentiary Ruling Before "Trial on Motion Papers" is Not Appealable.

Marilyn C. Y. v Mark N. Y., 2009 NY Slip Op 05855 (App. Div., 2nd, 2009)

In a consolidated action for a divorce and ancillary relief, and proceeding to establish paternity pursuant to Family Court Act article 5, the mother appeals, as limited by her brief, from so much of an order of the Supreme Court, Suffolk County (Bivona, J.), dated June 27, 2007, as denied that branch of her cross motion which was to limit the court's consideration of the in camera interview with the subject children, held December 21, 2006, to factual matter that transpired prior to consolidation of the action and proceeding.

ORDERED that the appeal is dismissed, with costs.

The appeal must be dismissed because it concerns an evidentiary ruling which, even when "made in advance of trial on motion papers . . . is neither appealable as of right nor by permission" (Cotgreave v Public Adm'r of Imperial County [Cal.], 91 AD2d 600, 601; see Barnes v Paulin, 52 AD3d 754).

The bold is mine.

Appellate Procedure

Maksuta v Galiatsatos, 2009 NY Slip Op 04033 (App. Div., 2nd, 2009)

As a general rule, this Court does not consider an issue on a subsequent appeal which was [*2]raised or could have been raised in an earlier appeal which was dismissed for lack of prosecution, although the Court has the inherent jurisdiction to do so (see Rubeo v National Grange Mut. Ins. Co., 93 NY2d 750; Bray v Cox, 38 NY2d 350). The plaintiffs appealed from the order dated March 7, 2007, which, inter alia, granted that branch of the motion of the defendant Sorbara Construction Corp. (hereinafter Sorbara) which was for summary judgment dismissing the complaint insofar as asserted against it, but abandoned that appeal after the Supreme Court, in an order dated February 6, 2008, made, in effect, upon renewal and reargument, adhered to the original determination. As a consequence of the plaintiffs' failure timely to perfect their appeal from the order dated March 7, 2007, that appeal was dismissed for failure to prosecute. The better practice would have been for the plaintiffs to withdraw their prior appeal, rather than abandon it. Nonetheless, under the circumstances, we exercise our discretion to review the issues raised on the plaintiffs' appeal from the order made, in effect, upon renewal and reargument (see generally Cesar v Highland Care Ctr., Inc., 37 AD3d 393).

The Supreme Court, in effect, upon renewal and reargument, properly adhered to its original determination. Sorbara established, prima facie, that its alleged negligence was not a proximate cause of the accident (see generally Derdiarian v Felix Contr. Corp., 51 NY2d 308; Mannion v Lizza Indus., 127 AD2d 567). In opposition, the plaintiffs and the defendants C. Galiatsatos, a/k/a Chrisostomos Galiatsatos, and Pavlos Galiatsatos, failed to raise a triable issue of fact.

...

Motion by the respondent to dismiss an appeal by the plaintiffs from an order of the Supreme Court, Kings County, dated February 6, 2008, on the ground that review of the order is precluded by the doctrine enunciated in Rubeo v National Grange Mut. Ins. Co. (93 NY2d 750) and Bray v Cox (38 NY2d 350). By decision and order on motion of this Court dated August 21, 2008, the motion was held in abeyance and was referred to the panel of Justices hearing the appeal for determination upon the argument or submission of the appeal.

Xi Fang Temple v Hopetel, LLC, 2009 NY Slip Op 04053 (App. Div., 2nd, 2009)

As a general matter, this Court does not consider any issue raised on a subsequent appeal that was raised, or could have been raised, in an earlier appeal that was dismissed for lack of prosecution, although the Court has the inherent jurisdiction to do so (see Rubeo v National Grange Mut. Ins. Co., 93 NY2d 750, 756; Bray v Cox, 38 NY2d 350, 353; Matter of City of New York, S. Jamaica I Urban Renewal Area, 41 AD3d 595). Here, the plaintiff previously appealed from the order and judgment entered March 22, 2006, in which the Supreme Court determined, inter alia, that the agreement between the parties did not satisfy the statute of frauds and, therefore, was not enforceable as a real estate sales contract, and dismissed the second amended complaint. That appeal was dismissed for failure to prosecute by decision and order on motion of this Court dated August 13, 2007. The dismissal of that appeal constituted an adjudication on the merits with respect to all issues regarding the agreement that could have been reviewed therein, and there is no basis to review the same issues on this appeal (see Rubeo v National Grange Mut. Ins. Co., 93 NY2d at 756; Matter of Talt v Murphy, 35 AD3d 486; Motelson v Candon Ct. Homeowners Assn., [*2]Inc., 34 AD3d 543, 543-544). Accordingly, we dismiss the plaintiff's current appeal.

The bold is mine.