No need for traverse hearing where there was no opposition

Wells Fargo Bank, N.A. v DeCesare, 2017 NY Slip Op 01592 (2d Dept. 2017)

“The detailed and specific evidence submitted by DeCesare in support of her motion was sufficient to rebut the allegations contained in the process server’s affidavit of service, thereby shifting the burden of proof to the plaintiff to establish jurisdiction at a hearing by a preponderance of the evidence (see Wells Fargo Bank, NA v Chaplin, 65 AD3d 588, 589; Bankers Trust Co. of Cal. v Tsoukas, 303 AD2d 343, 344). However, because the plaintiff, which was well aware of the existence of the motion, elected not to file any opposition papers, no hearing was required, and the Supreme Court should have granted DeCesare’s unopposed motion and vacated the order of reference (see Walter v Jones, Sledzik, Garneau & Nardone, LLP, 67 AD3d 671).”

The added bonus is that the statute of limitations has probably run and now the Defendant has a house free and clear.

Consolidation and belated discovery denied

SEE COMMENTS FROM DAMIN TOELL, ESQ. – for further explanation of this case.

Kipor Medicine, P.C. v GEICO, 2010 NY Slip Op 51247(U)(App. Term 2d Dept. 2010)

The branch of defendant’s motion seeking consolidation should have been denied since defendant failed to demonstrate that the actions it sought to consolidate had common questions of law or fact (see CPLR 602 [a]; S & B Neurocare, P.C. v GEICO Ins. Co., 20 Misc 3d 132[A], 2008 NY Slip Op 51450[U] [App Term, 2d & 11th Jud Dists 2008]). In addition, the branch of [*2]defendant’s motion seeking leave to amend the answer should have been denied since defendant’s papers presented no evidence that the proposed amendment might have merit (see CPLR 3025 [b]; Ingrami v Rovner, 45 AD3d 806, 808 [2007]). Defendant sought to amend its answer to assert that plaintiff’s certificate of incorporation had been revoked following the surrender, in April 2006, of the medical license of plaintiff’s sole shareholder. Plaintiff, however, is entitled to wind up its affairs and seek to recover no-fault benefits for the services it rendered to its assignors prior to April 2006 (see e.g. A.B. Med. Servs., PLLC v Travelers Indem. Co., 26 Misc 3d 69 [App Term, 9th & 10th Jud Dists 2009]). Defendant has not demonstrated that the facts herein are akin to a fraudulent incorporation (see State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]).

Moreover, since defendant failed to submit an affidavit specifying that any unusual or unanticipated conditions had developed after the notice of trial had been filed which made it necessary for defendant to engage in further pretrial proceedings (see Uniform Rules for New York City Civ Ct [22 NYCRR] § 208.17 [d]; S & B Neurocare, P.C. v GEICO Ins. Co., 20 Misc 3d 132[A], 2008 NY Slip Op 51450[U]), the branch of defendant’s motion seeking to compel plaintiff to respond to discovery demands and produce its sole shareholder for an examination before trial should also have been denied.

Two points.  One, consolidation motions seem to have the same rules as severance motions.  While it is easy to sever, it is equally as difficult to consolidate.  Two, belated discovery following the filing of a notice of trial is shunned upon.

A better question is assuming the facts as presented by Justice Golia are accurate (see below), why would anybody prosecute this type of action.  Does this make the law firm prosecuting this action a co-conspirator or accessory after the fact to a fraud?  I am not sure –

“Unlike the majority, I do not find that defendant failed to demonstrate that the actions it sought to consolidate had common questions of law or fact,” or that defendant’s papers presented no evidence that the proposed amendment might have merit,” or that additional discovery should also have been denied.” Notwithstanding the foregoing, I agree with the majority in the ultimate result in that defendant waited nearly two years from the time it knew that Dr. Meisher had committed insurance fraud and was losing his medical license. Indeed, it was this very defendant, GEICO, that was the named victim” in the case to which Dr. Meisher entered his guilty plea. I can find no valid reason for this particular defendant to have ignored these concerns for such an extended period of time. Certainly, if defendant had submitted the same motion within a reasonable time, I would have voted to affirm the order of the Civil Court.”

Summary judgment denied based upon the failure to plead the “emergency doctrine” as an affirmative defense

Franco v G. Michael Cab Corp., 2010 NY Slip Op 02744 (2d Dept. 2010)

“The defendant could not properly rely on the emergency doctrine in support of its motion. Since the defendant failed to plead the emergency doctrine as an affirmative defense in its answer, and the facts relating to the emergency were known only to the defendant and Badrane, the motion raised new issues of fact not appearing on the face of the pleadings, which resulted in unfair surprise to the plaintiff.”

This is interesting because the trend in the case law has been to either excuse unpleaded affirmative defenses or to almost always grant a motion to amend the complaint to plead the affirmative defense, provided the proposed affirmative defense has merit.  There was a no-fault case a year ago – its name escapes me now – where the Appellate Term, Second Department held, point blank, that the failure to plead an affirmative defense or move to amend the complaint to include the proposed affirmative defense was of no moment.

Summary judgment denied based upon the failure to plead the "emergency doctrine" as an affirmative defense

Franco v G. Michael Cab Corp., 2010 NY Slip Op 02744 (2d Dept. 2010)

“The defendant could not properly rely on the emergency doctrine in support of its motion. Since the defendant failed to plead the emergency doctrine as an affirmative defense in its answer, and the facts relating to the emergency were known only to the defendant and Badrane, the motion raised new issues of fact not appearing on the face of the pleadings, which resulted in unfair surprise to the plaintiff.”

This is interesting because the trend in the case law has been to either excuse unpleaded affirmative defenses or to almost always grant a motion to amend the complaint to plead the affirmative defense, provided the proposed affirmative defense has merit.  There was a no-fault case a year ago – its name escapes me now – where the Appellate Term, Second Department held, point blank, that the failure to plead an affirmative defense or move to amend the complaint to include the proposed affirmative defense was of no moment.

Leave to amend should not be granted on the eve of trial

We often see motions to amend being denied because an amendment is palpably devoid of merit.  We rarely see these motions denied because the motion to amend was made too late.  Here is an example: American Cleaners, Inc. v American Intl. Specialty Lines Ins. Co., 2009 NY Slip Op 09172 (2d Dept. 2009)

“However, where the application for leave to amend is made long after the action has been certified for trial, judicial discretion in allowing such amendments should be discrete, circumspect, prudent, and cautious'” (Morris v Queens Long Is. Med. Group, P.C., 49 AD3d at 828, quoting Clarkin v Staten Isl. Univ. Hosp., 242 AD2d 552, 552). “Moreover, when . . . leave is sought on the eve of trial, judicial discretion should be exercised sparingly” (Morris v Queens Long Is. Med. Group, P.C., 49 AD3d at 828; see Comsewogue Union Free School Dist. v Allied-Trent Roofing Sys., Inc., 15 AD3d 523, 525; Rosse-Glickman v Beth Israel Med. Ctr.-Kings Hwy. Div., 309 AD2d 846). “In exercising its discretion, the court should consider how long the party seeking the amendment was aware of the facts upon which the motion was predicated, whether a reasonable excuse for the delay was offered, and whether prejudice resulted therefrom”