Civil Court shenanigans

Unique Physical Rehab, PT, P.C. v Global Liberty Ins. Co. of N.Y., 2021 NY Slip Op 50325(U)(App. Term 2d Dept. 2021)

Pre-pandemic Civil Court

“In this action by a provider to recover assigned first-party no-fault benefits, defendant moved, pursuant to CPLR 603, to sever the first cause of action from the remaining four causes of action. Plaintiff opposed the motion and cross-moved to compel discovery or preclude defendant from offering evidence at trial. By order entered August 17, 2016, the Civil Court (Steven Z. Mostofsky, J.) denied defendant’s motion and granted plaintiff’s unopposed cross motion to the extent of compelling defendant to provide discovery “within 60 days of the date of the order or be precluded.” By decision and order dated October 14, 2016, this court granted defendant’s motion for a stay pending appeal of the August 17, 2016 order, but provided that, if defendant’s appeal was not perfected by January 6, 2017, this “court, on its own motion, may vacate the stay, or [plaintiff] may move to vacate the stay on three days’ notice.” Defendant was unable to perfect the appeal by January 6, 2017 because the clerk of the Civil Court did not file [*2]the return as required by CCA 1704 (b). Nevertheless, the stay imposed by this court’s October 14, 2016 decision and order was not vacated until October 18, 2019. Meanwhile, immediately upon learning that the papers necessary to perfect its appeal were missing from the Civil Court’s file, defendant moved to deem copies of the papers to be originals. On October 3, 2017, plaintiff moved to preclude defendant from offering evidence at trial. By order entered January 30, 2018, the Civil Court (Odessa Kennedy, J.) granted both unopposed motions.

Defendant then made the instant motion for leave to reargue or renew plaintiff’s motion to preclude defendant from offering evidence at trial, or, in the alternative, to vacate so much of the January 30, 2018 order as had granted plaintiff’s preclusion motion. By order entered July 23, 2018, the Civil Court (Sharon Bourne-Clarke, J.) denied defendant’s motion, finding that “defendant failed to demonstrate that there was a stay order in effect that prevented [the Civil Court] from issuing its January 30, 2018 order.”

The branch of defendant’s motion seeking leave to reargue or renew should have been denied on the ground that there was no opposition to plaintiff’s prior motion that could have been reargued or renewed (see Hudson City Sav. Bank v Bomba, 149 AD3d 704 [2017]). While defendant argues on appeal that so much of the January 30, 2018 order as granted plaintiff’s preclusion motion should be vacated pursuant to CPLR 5015 (a) (4), that argument lacks merit because the violation of a stay does not implicate subject matter jurisdiction within the meaning of CPLR 5015 (a) (4).

However, vacatur is appropriate in the “interests of substantial justice” (Woodson v Mendon Leasing Corp., 100 NY2d 62, 68 [2003]; cf. also PDQ Aluminum Prods. Corp. v Smith, 20 Misc 3d 94 [App Term, 2d Dept, 9th & 10th Jud Dists 2008]), since plaintiff’s preclusion motion, which resulted in the January 30, 2018 order, violated a stay of this court. Contrary to the Civil Court’s statement, it had enough information to conclude that there had been a stay in effect that precluded the instant motion.

Accordingly, the order entered July 23, 2018, insofar as appealed from, is reversed….”

Three observations. With the new record on appeal system, this should never happened again. Second, why isn’t Civil Court an e-file court yet? It is 2021. Florida became an e-file court system wide in 2012. Third, I enjoy the 5015(a)(4) v. inherent jurisdiction distinction. I believed that violating a court order was void under (a)(4). Apparently, we learn that is not the case.

Fourth, this probably will not happen in the zoom, controlled calendar environment.

Interest of justice vacatur

New Age Acupuncture, P.C. v Global Liberty Ins. Co.. 2020 NY Slip Op 51225(U)(App. Term 2d Dept. 2020)

“In our view, the Civil Court improvidently exercised its discretion in denying defendant’s motion when this action is barred by the August 1, 2016 order and judgment of the Supreme Court (cf. e.g. Vital Meridian Acupuncture, P.C. v Republic W. Ins. Co., 46 Misc 3d 147[A], 2015 NY Slip Op 50222[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). Under the circumstances, defendant’s motion should have been granted “for sufficient reason and in the interests of substantial justice” (Woodson v Mendon Leasing Corp., 100 NY2d 62, 68 [2003]).

In this one, the defendant missed the calendar call, yet the claim was barred by res judicata. The court appropriately vacated the default and dismissed the matter on motion.


Castaldini v Walsh, 2020 NY Slip Op 04822 (2d Dept. 2020)

“A defaulting defendant “admits all traversable allegations in the complaint, including the basic allegation of liability, but does not admit the plaintiff’s conclusion as to damages” (Rokina Opt. Co., Inc. v Camera King, Inc., 63 NY2d 728, 730; see Amusement Bus. Underwriters v American Intl. Group, 66 NY2d 878, 880). “The sole issue to be determined at an inquest is the extent of damages sustained by the plaintiff,” and the inquest court should not consider the question of whether the defendant caused the damages sustained by the plaintiff (Gonzalez v Wu, 131 AD3d 1205, 1206; see Rokina Opt. Co., Inc. v Camera King, Inc., 63 NY2d at 730; Arluck v Brezinska, 180 AD3d 634; Jihun Kim v S & M Caterers, Inc., 136 AD3d 755, 756). Thus, there is no merit to [*2]Walsh’s contention that the Supreme Court should have granted his motion to dismiss the complaint at the close of the plaintiffs’ evidence for failure to establish causation.

Nonetheless, we disagree with the Supreme Court’s determination to admit into evidence the written sworn statement of Castaldini’s treating physician without making the physician available for cross-examination. At an inquest to ascertain damages upon a defendant’s default, the plaintiff may submit proof by written sworn statements of the witnesses (see CPLR 3215[b]; 22 NYCRR 202.46[b]). However, where, as here, the defaulting defendant gives notice that he or she will appear at the inquest, the plaintiff must make the witnesses available for cross-examination (see CPLR 3215[b]; Reynolds Sec. v Underwriters Bank & Trust Co., 44 NY2d 568, 572). Since Walsh did not make the physician available for cross-examination, the court should not have admitted into evidence the physician’s written sworn statement over Walsh’s objection. Further, since the court relied on the physician’s statement in making its findings of fact on damages, we remit the matter to the Supreme Court, Suffolk County, for a new inquest on the issue of damages (see Dejesus v H.E. Broadway, Inc., 175 AD3d 1485, 1486; Tamburello v Bensonhurst Car & Limo Serv., 305 AD2d 664, 665; Beresford v Waheed, 302 AD2d 342, 343).”

This one is interesting.

Improvident to examine papers

Elusma v Jackson, 2020 NY Slip Op 04920 (2d Dept. 2020)

“The Supreme Court improvidently exercised its discretion in considering the plaintiffs’ opposition papers, which were submitted after the return date of the motion. The plaintiffs’ vague and unsubstantiated proffered excuse of law office failure did not constitute a reasonable excuse for the late service of their opposition papers (see CPLR 2214[b], [c]; Nakollofski v Kingsway Props., LLC, 157 AD3d 960, 961; Taylor Appraisals v Prokop, 99 AD3d 985, 985). Nevertheless, the court’s consideration of the opposition papers is of no moment since the defendants failed to establish their prima facie entitlement to summary judgment on the issue of liability.”

Motion for leave to enter a default insufficient

Freedom Chiropractic, P.C. v 21st Century Ins. Co., 2020 NY Slip Op 50686(U)(App. Term 2d Dept. 2020)

“As plaintiff acknowledges on appeal, defendant argued that defendant “did not receive at least 13 days’ notice [of plaintiff’s motion for leave to enter a default judgment], the minimum required for motions served by regular mail (see CPLR 2103 [b] [2]; 2214 [b]). “

My question here is since a party in default (unless they previously appeared) is not legally entitled to a notice of an application for a default (whether made to the court or clerk), is this decision correct?

Guarantee the argument is not preserved and the Court did nit have to reach it.

Absolutely horrible decision

New Age Med., P.C. v GEICO Gen. Ins. Co.., 2020 NY Slip Op 50316(U)(App. Term 2d Dept. 2020)

I am not the Gecko’s biggest defender for many reasons, but this takes the prize for what I have to call a bad decision and one that the Second Department might even look at if an application is made. I say might because they hate granting leave to no-fault cases, but this is so ridiculous that I hope they do.

The facts as I can tell (again New York refuses to join every other state and make all their Court’s e-file friendly) is that Geico’s answer was timely but the index number was wrong. Here is irony: before NY moved to file and serve in the lower courts 15 years ago, carriers received summonses without an index number.

Anyway, Plaintiff was looking to score an easy default and rejected the answer because the index number was wrong. Now, if the absence of an out of state certificate of conformity or a caption is a non-actionable defect, why should the wrong index or docket number be treated any differently? It is careless but not enough to put someone into default.

Well Geico waits a year to fix their mistake. The Civil Court and Appellate Term sanction the default and the ensuing clerk’s judgment. I am sorry but this is a crazy decision because I cannot even fathom how Geico, in the first instance, was in default.

“Upon the record presented, we agree with the Civil Court that defendant failed to explain why defendant had waited a year after its initial answer was rejected before serving a new answer bearing the correct index number. Consequently, we find that defendant failed to demonstrate a reasonable excuse for its default and, therefore, we need not consider whether defendant offered a potentially meritorious defense to the action “

Part of me understands and has fallen victim to what I think is a very tight leash on the vacatur of defaults in no-fault matters. The cases are small, the volume is horrific at times and the cases at best only involve redistribution of wealth. The bigger picture is where is the right balance between mandating procedural regularity and preventing unbridled gamesmanship. This case sadly got it wrong and in a really big way. I could never fathom rejecting papers because someone put the wrong index or docket on the papers. Well, score one for lunacy.

Calendar service did not transmit the adjournment stipulation

Singh v Sukhu, 2020 NY Slip Op 01105 (2d Dept. 2020)

The Central Motion Part of the Supreme Court set a briefing schedule requiring that the plaintiff’s opposition papers be served by August 19, 2016. The plaintiff, unaware of the briefing schedule, served her opposition papers seven business days before the September 2, 2016, return date in accordance with CPLR 2214(b). On the return date, the plaintiff’s opposition was rejected as untimely. In an order entered September 20, 2016, the Supreme Court granted the DNJC defendants’ motion for summary judgment, noting that the plaintiff did not oppose the motion…

Here, the plaintiff demonstrated a reasonable excuse for her default. The affirmation of her attorney explained that the plaintiff’s default was reasonable and inadvertent due to the fact that the attorney’s “calender service” never communicated the briefing schedule to counsel’s office and that counsel first learned of the August 19, 2016, date when it attempted to file the opposition papers only six days later (see Bank of N.Y. Mellon v Faragalla, 174 AD3d 677).”

DJ following a default

Actual Chiropractic, P.C. v Global Liberty Ins. Co. of N.Y., 2020 NY Slip Op 50185(U)(App. Term 2d Dept. 2020)

“On the instant appeal, defendant has annexed to its brief an order of the Supreme Court, Bronx County, entered February 9, 2018, which held, among other things, that all civil lawsuits, judgments and other proceedings “that have been brought or may be brought by . . . Actual [*2]Chiropractic, P.C.” seeking no-fault benefits under the same claim number and regarding the same assignor and motor vehicle accident as in the case at bar are permanently stayed. As a court may take judicial notice “on appeal, of reliable documents, the existence and accuracy of which are not disputed” and, generally, “of matters of public record” (Brandes Meat Corp. v Cromer, 146 AD2d 666, 667 [1989]; see Headley v New York City Tr. Auth., 100 AD3d 700 [2012]), this court, in the interest of judicial economy, takes judicial notice of the Supreme Court’s order entered February 9, 2018, which permanently “stays” the parties from proceeding further in the action at bar.

In light of the stay issued by the Supreme Court, this appeal has “been rendered academic as any determination on [this] appeal[ ] would not, under the facts of this case, have a direct effect upon the parties” (Matter of Claudia G. [Ermelio G.], 71 AD3d 894, 895 [2010]).”


Market St. Surgical Ctr. v Autoone Ins. Co., 2019 NY Slip Op 52054(U)(App. Term 2d Dept. 2019)

“Pursuant to CPLR 5015 (a) (1), a court may vacate a default in opposing a motion where the moving party demonstrates both a reasonable excuse for the default and the existence of a meritorious defense to the motion” (SS Constantine & Helen’s Romanian Orthodox Church of Am. v Z. Zindel, Inc., 44 AD3d 744, 744-745 [2007]). As plaintiff failed to demonstrate that it possessed a meritorious defense to defendant’s motion, plaintiff’s motion to vacate its default should have been denied.”

I really thought they did not establish a reasonable excuse.

Settlement of a default judgment

Diagnostic Medicine, P.C. v Auto One Ins. Co., 2019 NY Slip Op 51891(U)

Five says notice to settle a judgment is necessary on default when the party previously appeared.

“A defendant which appears in an action, but subsequently defaults “is entitled to at least five days’ notice of the time and place” of an application to the court or the clerk for leave to enter a default judgment (CPLR 3215 [g] [1]; see Paulus v Christopher Vacirca, Inc., 128 AD3d 116 [2015]). In the case at bar, plaintiff’s application for the entry of the judgment was dated March 23, 2016 and apparently served on defendant on March 23, 2016. The judgment was entered the following day. While a court may, upon such a default, dispense with the notice requirement (see CPLR 3215 [g] [1]), there is no indication in the record before us that the Civil Court had exercised such discretion. Plaintiff’s failure to give defendant notice as required by CPLR 3215 (g) (1) deprived the court of jurisdiction to entertain plaintiff’s application to enter the judgment”

” However, where a judgment is vacated due to a jurisdictional defect of improper notice, such a defect “does not, standing alone, entitle [defendant] to be relieved of the underlying default upon which judgment is sought, and to defend the action on the merits”