Reasonable excuse satisfied despite claim of lack of personal jurisdiction January 26, 2010

In another CPLR issue, the Appellate Division affirmed the order of the Supreme Court that allowed a defendant to open an entered default.

Rodgers v 66 E. Tremont Hgts. Hous. Dev. Fund Corp., 2010 NY Slip Op 00552 (1st Dept. 2010)

“In the case at bar, defendant submitted affidavits wherein it denied ever being served with process. However, upon receipt of a letter from plaintiff’s counsel which contained a copy of the pleadings, defendant immediately forwarded the correspondence and pleadings to its insurer. Thus, it was reasonable for defendant to believe that its insurer would take the appropriate action to appear and defend the action.”

Would the same result occur in the Second Department?  Probably not.  See here.  A more detailed discussion is set forth here in CPLR blog land.

3212(f) does not apply January 26, 2010

In a tribute to the CPLR blog, and DG’s CPLR R. 3212(f) quest, vendetta or obsession (you pick the appropriate one), here is another case where the Appellate Division held that the absence of discovery could not save a litigant from the sword of a summary judgment motion.  The common denominator of this and ever 3212 (f) case involves whether the non-moving party has sufficient knowledge of the events so as to provide an affidavit explaining his or her position.  If the non-moving party is alleging not to have sufficient information to properly oppose the summary judgment motion, then that non-moving party better explain with great specificity why he or she does not have enough information to oppose the said motion, lest he or she wants to succumb to the same.

Plaintiff failed to demonstrate a reasonable excuse for the late submission of its bill January 25, 2010

Synergy First Med. PLLC v ELRAC Inc, 2010 NY Slip Op 50048(U)(App. Term 1st Dept. 2009).

I missed this case, although it was pretty well discussed here and here.

Was she a resident relative? January 25, 2010

When looking for a secondary source of coverage (or primary in New Jersey and Florida), the question that must be answered is whether the injured person is a resident relative of a policyholder.  The latter of the two words “relative” is easy to define.  It is the term “resident” that has caused much uncertainty through the years.  Each query involving who is a resident is factually specific, similar to whether someone is within the “use and operation” of a motor vehicle.  The Matter of State Farm Mut. Auto. Ins. Co. v Bonifacio, 2010 NY Slip Op 00523 (2d Dept. 2010) proves not to be any different as seen herein:

“At the framed-issue hearing, the respondent testified that she lived most of her life at her parents’ residence in Yorktown Heights until she graduated from college in 2005. Shortly thereafter, in September of that year, she rented an apartment in Manhattan with two other people. Two months later, the respondent began employment in Manhattan where she worked five days a week, 11 to 12 hours a day. More than two years later, the respondent, after spending a Sunday afternoon with some friends near her hometown, was struck by a car while crossing Route 9A in Ardsley.

Although the respondent testified at the hearing that she visited her parents at the Yorktown residence at least once a month, “most often more,” and that her parents maintained a room for her there where she kept some of her personal belongings, the respondent was emancipated from her parents, paid rent at the Manhattan residence, filed her own tax returns, and was no longer a dependent on her parents’ [*2]tax returns. Evidence that the respondent’s driver’s license still listed her parents’ address as her home address, that she possessed a key to her parents’ home and, in 2008, voted in Yorktown Heights, and that she previously opened a bank account at a Chase branch in Yorktown Heights, was insufficient to establish that the respondent was residing at the Yorktown residence of her parents at the time of the accident (see Matter of Aetna Cas. & Sur. Co. v Gutstein, 80 NY2d 773; Matter of Aetna Cas. & Sur. Co. v Panetta, 202 AD2d 662; D’Amico v Pennsylvania Millers Mut. Ins. Co., 72 AD2d 783, affd 52 NY2d 1000; cf. Dutkanych v United States Fid. & Guar. Co., 252 AD2d 537). Moreover, physical presence in the parents’ home was insufficient to establish residency, particularly where, as here, the respondent had previously established another legal residence in Manhattan and signed a new one-year lease at that residence only two months before the accident (see Hollander v Nationwide Mut. Ins. Co., 60 AD2d 380, 383; Appleton v Merchants Mut. Ins. Co., 16 AD2d 361; Allstate Ins. Co. v Jahrling, 16 AD2d 501).

Based on the evidence presented, the respondent was not a covered person under the subject policy and, therefore, the petition to permanently stay the arbitration should have been granted.”

An untimely MSJ is deemed timely if another party moves on identical grounds January 23, 2010

Lennard v Khan, 2010 NY Slip Op 00482 (2d Dept. 2010)

If an untimely MSJ  by another party addresses identical issues of a timely moving party’s summary judgment motion, then the court must address the untimely motion for summary judgment.

“Where one party makes a timely summary judgment motion, the court may properly consider an untimely summary judgment motion, provided the late motion is based on “nearly identical” grounds as the timely motion (Perfito v Einhorn, 62 AD3d 846, 847 [internal quotation marks omitted]; see Step-Murphy, LLC v B & B Bros. Real Estate Corp., 60 AD3d 841, 844-845; Ianello v O’Connor, 58 AD3d 684; Grande v Peteroy, 39 AD3d 590, 591-592; Miranda v Devlin, 260 AD2d 451, 452). In effect, the “nearly identical” nature of the grounds supporting both motions serves as good cause sufficient to permit review on the merits of the untimely motion (Grande v Peteroy, 39 AD3d at 592). “Notably, the court, in the course of deciding the timely motion, is, in any event, empowered to search the record and award summary judgment to a nonmoving party” (see CPLR 3212[b]; Grande v Peteroy, 39 AD3d at 592).

Since the respondents’ motion was already properly before the court, it improvidently exercised its discretion in refusing to consider the separate motion of Prescod and Klass, made on identical grounds, on the ground that the separate motion was untimely made (see Joyner-Pack v Sykes, 54 AD3d 727; Grande v Peteroy, 39 AD3d at 591; Miranda v Devlin, 260 AD2d 451). Further, since the plaintiff did not challenge the movants’ contentions regarding serious injury, the separate motion should have been granted”