theCPLRblog

CPLR 2101 and translations. Also No SJ with out issue being joined (this time)

CPLR R. 2101 Form of papers

CPLR R. 3212

Reyes v Arco Wentworth Mgt. Corp., 2011 NY Slip Op 01988 (App. Div., 2nd 2011)

This Court has held that the absence of a translator's affidavit, required of foreign language witnesses, renders the witness's English affidavit facially defective and inadmissible (see Martinez v 123-16 Liberty Ave. Realty Corp., 47 AD3d 901, 902). The requirement of CPLR 2101(b) that affidavits of non-English speaking witnesses be accompanied by a translator's affidavit setting forth the translator's qualifications and the accuracy of the English version submitted to the Court makes sense. Summary judgment is a drastic remedy made in lieu of a trial which resolves the case as a matter of law (see Andre v Pomeroy, 35 NY2d 361, 364). Parties opposing a motion for summary judgment are required to proffer evidence that is in admissible form, with rare exceptions not applicable here. A witness at trial would not be permitted to testify in a foreign language, or to proffer documents in a foreign language, without the benefit of a sworn English language translation (see Quispe v Leml & Wolff, Inc., 266 AD2d 95, 96; cf. People v Watkins, 12 AD3d 165, 166), and there is no valid reason why a more relaxed evidentiary standard should govern summary judgment applications. Accordingly, the plaintiff's English-language affidavit, without a corresponding affidavit from a qualified translator, cannot be considered in opposition to Ramapo's motion.

Ramapo's argument about the inadmissibility of the plaintiff's English-language affidavit in opposition, while correct, does not change the outcome of this appeal. Ramapo proffered the plaintiff's translated deposition transcript in reply papers, ostensibly to show the plaintiff's need at that time of a translator. While documents which are submitted for the first time in reply cannot be used by a movant to meet the prima facie burden of proof for summary judgment (see Tingling v C.I.N.H.R., Inc., 74 AD3d 954, 956; Yeum v Clove Lakes Health Care & Rehabilitation Ctr., Inc., 71 AD3d 739; Edwards v Great Atl. & Pac. Tea Co., Inc., 71 AD3d 721; Rengifo v City of New York, 7 AD3d 773), here, the deposition transcript was not proffered by Ramapo to meet its prima facie burden. Instead, the transcript of the plaintiff's translated deposition, which sufficiently mirrors his non-compliant affidavit (see CPLR 2101[b]), was proffered to address perceived deficiencies in the plaintiff's opposition to summary judgment. The transcript independently raised questions of fact so as to defeat Ramapo's own motion. Ramapo, as the party proffering the deposition transcript in its reply, cannot object to this Court's consideration of the entirety of the exhibit, including those portions that raise triable issues of fact sufficient to defeat summary judgment.

Contrary to Ramapo's contention set forth in footnote eight of its brief, that the Supreme Court failed to disregard the plaintiff's inadmissible English language affidavit, a close reading of the order appealed from does not demonstrate that the Supreme Court relied on the plaintiff's inadmissible affidavit at all. The order describes facts and allegations to which the "plaintiff testified." Such "testimony," as described, may carefully and appropriately refer merely [*5]to the plaintiff's deposition which, as noted, is admissible.
IV.Appeal by Arco

Arco separately moved for summary judgment dismissing the complaint. The Supreme Court denied the motion on the ground that since issue had not yet been joined between Arco and the plaintiff, the motion was premature (see CPLR 3212[a]). Furthermore, the Supreme Court declined to treat what was in actuality a pre-answer motion to dismiss as a motion for summary judgment. We affirm the Supreme Court's determination (see CPLR 3212[a]; City of Rochester v Chiarella, 65 NY2d 92, 101; Shaibani v Soraya, 71 AD3d 1121).

CPLR R. 2101 English?

CPLR R. 2101 Form of papers

CPLR R. 3212(f)

Monteleone v Jung Pyo Hong, 2010 NY Slip Op 09484 (App. Div., 2nd 2010)

In opposition, the defendant failed to submit any evidence in admissible form sufficient to raise a triable issue of fact with respect to the issue of liability (see Pitt v Alpert, 51 AD3d at 651; Ramos v Triboro Coach Corp., 31 AD3d 625; Iqbal v Petrov, 9 AD3d 416). The defendant failed to proffer any excuse for his failure to submit his affidavit, translated from Korean to English by his wife, in admissible form (seeCPLR 2101[b]; Chemical Bank v PIC Motors Corp., 58 NY2d 1023, 1026; Martinez v 123-16 Liberty Ave. Realty Corp, 47 AD3d 901, 902; Allstate Ins. Co. v Keil, 268 AD2d 545; Schiffren v Kramer, 225 AD2d 757) and, under the circumstances of this case, the Supreme Court correctly declined to consider the translated affidavit.

Furthermore, in view of the fact that the defendant had personal knowledge of the relevant facts underlying the accident, his purported need to conduct discovery did not warrant denial of the motion (see Emil Norsic & Son, Inc. v L.P. Transp., Inc., 30 AD3d 368, 369;Rainford v Sung S. Han, 18 AD3d 638; Niyazov v Bradford, 13 AD3d 501).

National Puerto Rican Day Parade, Inc. v Casa Publs., Inc., 2010 NY Slip Op 09387 (App. Div., 1st 2010)

Casa sought dismissal of the complaint under CPLR 2101(b), arguing that plaintiffs failed to attach an English translation for each article in its entirety, and that the translator affidavits were insufficient because the affidavits were not signed contemporaneously with the verified complaint, because they did not include an itemized list of the translators' qualifications, and because the translators' names were not printed below the signature line. Additionally, Feliciano sought to dismiss the eleventh and thirteenth causes of action, arguing that by merely providing [*2]information to Casa he did not cause the articles to be published. Plaintiffs submitted an attorney affidavit in opposition to Feliciano's motion to dismiss, stating that they would be able to show that Feliciano authorized Casa to recommunicate his statements, and that he also paid Casa to publish his "open letter," which discusses individual members associated with NPRDP.

A statute should be interpreted "so as to give effect to the plain meaning of the words used" (Doctors Council v New York City Employees' Retirement Sys., 71 NY2d 669, 675 [1988]). Under CPLR 2101(b) each paper served or filed shall be in the English language and where an affidavit or exhibit annexed to a paper served or filed is in a foreign language, it shall be accompanied by an English translation and an affidavit by the translator stating his or her qualifications and that the translation is accurate. Plaintiffs provided sufficient translator affidavits because both affidavits state that the translators are "qualified professional[s]," competent in both Spanish and English, and that the translations are an "accurate and complete rendering of the content of the original document." (see Polish Am. Immigration Relief Comm. v Relax, 172 AD2d 374 [1991]).

The certification that the translation was done by a professional translator competent in both languages is sufficient, especially in this particular case. The statute does not require that the translator affidavit include an "itemized" list of qualifications. Moreover, Casa had adequate notice and it shows no prejudice from the lack of an itemized list of qualifications. Casa does not allege that it — the publisher, editor and writer for a Spanish language newspaper — could not read and understand the articles in the language in which they were written, nor is there any claim that the translations are inaccurate.

The statute also does not require that the translator's affidavit list what was translated. Nor do the words of the statute mandate a "complete translation" as argued by Casa. Moreover, it is perfectly apparent that the articles themselves were the translated documents because they were annexed to the translators' affidavits and submitted with the complaint. Indeed, each of the 19 articles is individually identified within the body of the complaint by the publication date, author's name, and exhibit letter. These identifying characteristics can be matched directly to 

 

Mere Irregularities. CPLR § 2001. CPLR R. 2101(f)

CPLR § 2001 Mistakes, omissions, defects & irregularities

CPLR R. 2101 Form of papers
(f) Defects in form; waiver

Martin v Castaneda, 2010 NY Slip Op 03881 (App. Div, 2nd, 2010)

After a hearing, in an unsigned report dated February 13, 2009, a referee made certain findings of facts and conclusions of law. By notice of motion dated March 20, 2009, the plaintiffs moved, inter alia, to confirm that portion of the referee's report which recommended that the property be sold to effect partition. In support of their motion, the plaintiffs submitted, among other things, a copy of the referee's report and a transcript of the hearing, both of which contained the referee's recommendations. In opposition, the defendant contended that the subject branch of the motion should be denied because the report was unsigned and unfiled. By order entered July 2, 2009, the Supreme Court granted the subject branch of the plaintiffs' motion. The defendant contends that the report was defective as it was unfiled (see CPLR 4320[b]; 22 NYCRR 202.44), and unsigned. We affirm the order insofar as appealed from.

Although the referee did not sign his report, it was filed on July 2, 2009, and, under the circumstances, any alleged defects were mere irregularities and not fatal, as no substantial right of the defendant has been or will be prejudiced (see CPLR 2001, 2101[f]; cf. Allison v Allison, 28 AD3d 406, 407, cert denied 549 US 1307; Matter of Lipsky v Koplen, 282 AD2d 462, 463; John Hancock Mut. Life Ins. Co. v 491-499 Seventh Ave. Assoc., 169 Misc 2d 493, 498-499).

In case anyone is curious, all of the cases the court cites to at the bottom involve referees.  I thought that maybe some of them would involve "mere irregularities" in other contexts, but alas, I was wrong.

New York County Clerk told to take it and like it.

Well, just to take it.  He doesn't really have to like it.  But he might.  He just needs to try it.

22 NYCRR § 104.1 Application
(b) The term court records shall include all documents and records that are part of the court file of each case and all books, papers, calendars, statistical schedules and reports and other records pertaining to the management of court cases.

CPLR § 3218 Judgment by confession
(b) Entry of judgment

CPLR R. 2101 Form of papers
(e) Copies

CPLR R. 2102 Filing of papers

(a) Except where otherwise prescribed by law or order of court, papers required to be filed shall be filed with the clerk of the court in which the action is triable. In an action or proceeding in supreme or county court and in a proceeding not brought in a court, papers required to be filed shall be filed with the clerk of the county in which the proceeding is brought.

(b) A paper filed in accordance with the rules of the chief administrator or any local rule or practice established by the court shall be deemed filed. Where such rules or practice allow for the filing of a paper other than at the office of the clerk of the court, such paper shall be transmitted to the clerk of the court.

(c) A clerk shall not refuse to accept for filing any paper presented for that purpose except where specifically directed to do so by statute or rules promulgated by the chief administrator of the courts, or order of the court.

Gehring v Goodman, 2009 NY Slip Op 29351 (Supreme Court, New York County, 2009)

This is an article 78 proceeding. The only specific relief that petitioner seeks is an "order" directing respondent Norman Goodman, County Clerk of the County of New York (respondent), along with his agents and representatives, to accept for filing copies of affidavits that petitioner wants to file pursuant to CPLR 3218 (b). Respondents have not submitted any papers in opposition.

Petitioner submitted to respondent a copy of an affidavit by a defendant confessing judgment. According to petitioner, respondent, in interpreting CPLR 3218 (b), took the position that because the statute says "the affidavit", that means the original affidavit must be filed, and thus he would not accept a copy thereof for filing. Petitioner brought this challenge on August 18, 2009 by order to show cause on an emergency basis because the three year deadline to file the affidavit would have expired two days after the proposed order to show cause was submitted to this court. The court signed the order to show cause and made it returnable the following day.

CPLR 3218 (b) provides in part:

At any time within three years after the affidavit is executed, it may be filed with the clerk of the county where the defendant stated in his affidavit that he resided when it was executed or, if the defendant was then a non-resident, with the clerk of the county designated in the affidavit. Thereupon the clerk shall enter a judgment in the supreme court for the sum confessed. He shall tax costs to the amount of fifteen dollars, besides disbursements taxable in an action. The judgment may be docketed and enforced in the same manner and with the same effect as a judgment in an action in the supreme court.

CPLR 2101 (e) states in pertinent part: [*2]

Except where otherwise specifically prescribed, copies, rather than originals, of all papers, including orders, affidavits and exhibits may be served or filed.

CPLR 2102 (c) provides:

A clerk shall not refuse to accept for filing any paper presented for that purpose except where specifically directed to do so by statute or rules promulgated by the chief administrator of the courts, or order of the court.

Petitioner presented the affidavit to respondent for the purpose of filing the paper in order to make it part of the court record, as defined by 22 NYCRR 104.1 (b), and thus obtain a judgment by confession pursuant to CPLR 3218 (b). Contrary to respondent's position as stated by petitioner, CPLR 3218 (b) does not specify that only the original of the affidavit must be accepted for filing and does not proscribe the filing of a copy of the affidavit. The purpose of CPLR 3218 (b) is to afford a party the discretion to file the affidavit if desired. CPLR 2101 (e) allows the filing of copies of affidavits (see Lynch v Betts, 12 Misc 3d 295 [Sup Ct, Yates County 2006]), which filing under CPLR 3218 (b) is not otherwise specifically prescribed.

There is neither a statute nor rule of the chief administrator of the courts that directs respondent to refuse to accept for filing a copy of an affidavit under CPLR 3218 (b), nor has respondent shown that there is any court order that so directs him. Professor Alexander comments that the purpose of CPLR 2102 (c) is to strip clerks of any authority to reject papers offered for filing unless the refusal is directed by law, rule, or court order (Alexander, Supp Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, Civil Practice Law and Rules 2102, 2009 Pocket Part, at 283).

Therefore, pursuant to this court's August 20, 2009 decision, judgment, and order, this court has directed respondent, and his agents and representatives, to accept for filing copies of the affidavits pursuant to CPLR 3218 (b). That is all of the specific relief requested by petitioner. This court is not directing respondent as to how he should act in fulfilling his duties after he accepts the affidavits for filing.

The bold is mine.

The county clerk offered no opposition.  Why?  Well, anyone who has tried to file something in any of New York's courts has run across clerks who refuse to accept documents for a variety of reasons.  Some are legitimate and others are directly related to how early the clerk woke up in the morning.  You get the idea.  So why no response?  Because the County Clerk felt that the affidavits should be accepted (or didn't care one way or the other), and probably decided that the easiest way to deal with issue would be to leave it up to the Court.  This way, they wouldn't have to deal with any internal discord on the issue.  If a judge tells them to do it, they have to do it.

CPLR R. 5015 Plaintiff not required to reject late answer where it moved to enter a default instead

CPLR R. 5015 Relief from judgment or order

CPLR R. 2101 Form of papers
(f) Defects in form; waiver

CPLR § 3012 Service of pleadings and demand for complaint
(d) Extension of time to appear or plead

CPLR § 2005 Excusable delay or default

J.O. Dedicated Med., P.C. v State Farm Mut. Auto. Ins. Co., 2009 NY Slip Op 51089(U) (App. Term, 2nd, 2009)

Defendant's contention that plaintiff should be compelled to accept its answer because plaintiff did not reject the answer within two days of its receipt, as mandated by CPLR 2101 (f), is without merit. Although a plaintiff's retention of an answer without a timely objection constitutes a waiver of objection as to untimeliness, precluding entry of a default judgment (see e.g. AVA Acupuncture P.C. v Lumbermens Mut. Cas. Co., 14 Misc 3d 138[A], 2007 NY Slip Op 50263[U] [App Term, 2d & 11th Jud Dists 2007]), a review of the record in the instant case demonstrates that plaintiff made its application for leave to enter a default judgment long before it was in receipt of the answer. Once plaintiff made said application, it thereby objected to defendant's failure to serve a timely answer, brought that objection to the attention of defendant and the court, and therefore cannot be deemed to have waived any objection to untimeliness (see [*2]Katz v Perl, 22 AD3d 806 [2005]).

We note that a default judgment had already been entered against defendant when it moved to compel the acceptance of its answer or, in the alternative, to extend its time to serve the answer pursuant to CPLR 3012 (d). Accordingly, defendant should have instead moved to vacate the default judgment, pursuant to CPLR 5015 (a). In either situation, however, a defendant is required to establish both a reasonable excuse for the default and a meritorious defense (see Juseinoski v Board of Educ. of the City of New York, 15 AD3d 353 [2005]) and, in the case at bar, defendant failed to do so.

While a court may, in the exercise of its discretion, accept a claim of law office failure as a reasonable excuse (see CPLR 2005), defense counsel was required to "submit supporting facts in evidentiary form sufficient to justify the default" (Incorporated Vil. of Hempstead v Jablonsky, 283 AD2d 553, 554 [2001]), and include "a detailed explanation of [the] oversights" (Hospital for Joint Diseases v ELRAC, Inc., 11 AD3d 432, 433 [2004]). The mere statement in defense counsel's affirmation in support of the motion that his office failed to timely process the summons and complaint "due to clerical inadvertence," and that law office failure was excusable, did not establish a reasonable excuse for the default (see Ave T MPC Corp. v Chubb Indem. Ins. Co., 20 Misc 3d 142[A], 2008 NY Slip Op 51681[U] [App Term, 2d & 11th Jud Dists 2008]).

Because we find that defendant did not establish a reasonable excuse for the default, it is unnecessary for us to address whether defendant demonstrated a meritorious defense.

Leifer v Pilgreen Corp., 2009 NY Slip Op 03872 (App. Div., 2nd, 2009)

It is uncontested that the defendant failed to timely serve its answer. The stipulation extending its time to do so expired in October 2006 and no extension thereof was granted or even sought. Thus, in order to successfully oppose the plaintiffs' motion for leave to enter a default judgment against it, the defendant was required to demonstrate a justifiable excuse for its default and the existence of a meritorious defense (see CPLR 5015[a][1]; Kouzios v Dery, 57 AD3d 949; Mjahdi v Maguire, 21 AD3d 1067, 1068; cf. Giovanelli v Rivera, 23 AD3d 616). The defendant failed to do so.

The defendant's insurance carrier's long delay before defending this action, without more, was insufficient to establish a reasonable excuse for the default (see Martinez v D'Alessandro [*2]Custom Bldrs. & Demolition, Inc., 52 AD3d 786, 787; Segovia v Delcon Constr. Corp., 43 AD3d 1143; Lemberger v Congregation Yetev Lev D'Satmar, Inc., 33 AD3d 671, 672). Additionally, the defendant failed to demonstrate the existence of a meritorious defense. Accordingly, the plaintiffs' motion for leave to enter a default judgment and to set the matter down for an inquest should have been granted and the defendant's cross motion for leave to serve a late answer nunc pro tunc should have been denied (see CPLR 3012[d]).

Furthermore, the court erred in deeming the issue of timeliness of the answer waived by the plaintiffs' withdrawal of their prior motion for a default judgment. After the defendant served a late answer, the plaintiffs promptly moved for the same relief, bringing their objection to the attention of the defendant and the court (see Katz v Perl, 22 AD3d 806, 807).