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” 

Default not vacated: competent evidence not presented

Shy v Shavin Corp., 2019 NY Slip Op 06011 (2d Dept. 2019)

” Here, the Supreme Court determined that the defendant established a reasonable excuse for its default based upon its insurance carrier’s delay before defending the action. However, in support of its motion, the defendant failed to submit admissible evidence to demonstrate that it notified its insurance carrier of the existence of this action prior to its default. In support of its motion, the defendant submitted an affidavit from a litigation consultant employed by the insurance carrier. The litigation consultant’s assertion that the insurance agent/broker for the defendant attempted to forward a copy of the summons and complaint to the insurance carrier in October 2017 was based upon inadmissible hearsay (see Alto v Firebaugh Realty Corp., N.V., 33 AD3d 738, 739). Thus, the defendant failed to demonstrate that its default was attributable to insurance carrier delay (see generally Gershman v Ahmad, 131 AD3d 1104, 1106). In addition, the evidence demonstrating that, following the order granting the plaintiff’s motion for leave to enter a default judgment, the insurance carrier delayed in assigning counsel to move on the defendant’s behalf to vacate the default, does not establish a reasonable excuse for the default.”

A primer on 5015(a)(1)

Pierre J. Renelique Physician, P.C. v Allstate Ins. Co., 2019 NY Slip Op 29225 (App. Term 2d Dept. 2019)

“As the basis for its claim of a reasonable excuse, defendant contended that it had not received process. However, absent from defendant’s moving papers was any affidavit by the person who had allegedly been served denying service or, for example, setting forth whether that person recalled having received the service in issue and, if he did, what had happened to those papers, or, if he could not recall whether he had received the papers, setting forth the usual business practices and procedures he employed upon the receipt of process. Nor was there an affidavit explaining why defendant did not proffer an affidavit from that person. Rather, defendant submitted only an affidavit by its claim representative, who merely stated that defendant did not have a record of having received process in this matter and that, if process had been received, it would have been recorded in defendant’s computer system in accordance with defendant’s business practices and procedures, which the affidavit set forth, but that no such record existed”.

The lesson here is when denying service, it will take more than the litigation representative to allege an absence of service. I think the inquiry is probably different when service is through DFS.