Procedural faux pas

Citimortgage, Inc. v Dulgeroff, 2016 NY Slip Op 02573

The Civil Court, Kings County briefing schedule notwithstanding:”Contrary to the motion court’s ruling, West Fork’s failure to attach the judgment of foreclosure to its motion to intervene and to vacate the judgment is not a fatal defect. At most, the court should have directed West Fork to supplement or resubmit its papers (see Sea Trade Mar. Corp. v Coutsodontis, 111 AD3d 483, 486 [1st Dept 2013]). However, contrary to West Fork’s argument, the order on appeal need not be vacated for failure to recite the papers on which it is based (see Singer v Board of Educ. of City of N.Y., 97 AD2d 507 [2d Dept 1983]).”


The 120-day requirement does not apply to pro-se actions in the lower courts

Bryan L. Salamone, P.C. v Digiacomo, 2015 NY Slip Op 25025 (App. Term 2d Dept. 2015)

“After issue was joined, the matter was transferred to the arbitration calendar (see Rules of the Chief Judge [22 NYCRR] § 28.2 [b]) in September of 2012. (The record is silent as to whether the matter was ever arbitrated.) In June of 2013, plaintiff moved for summary judgment. By order dated July 1, 2013, the District Court denied plaintiff’s motion as untimely, on the ground that the motion had been made more than 240 days after the matter had been “transferred to the arbitration.”

“The District Court erred in finding that plaintiff’s time to make the motion for summary judgment commenced upon the matter being “transferred to the arbitration calendar,” since there is no such provision which governs the timeliness of a motion for summary judgment (see CPLR 3212 [a]; UDCA 1001, 1301; see also Uniform Rules for the District Courts [22 NYCRR] § 212.10). Inasmuch as no notice of trial, the District Court equivalent of a note of issue (see Chimbay v Palma, 14 Misc 3d 130[A], 2007 NY Slip Op 50019[U] [App Term, 2d & 11th Jud Dists 2006]), or certificate of readiness for trial had been filed (see e.g. Vinueza v Tarar, 100 AD3d 742 [2012]; Farrington v Heidkamp, 26 AD3d 459 [2006]; cf. Arbay v Sunoco, Inc., 31 Misc 3d 148[A], 2011 NY Slip Op 50977[U] [App Term, 9th & 10th Jud Dists 2011]), and there is no indication that the court clerk had fixed a date for trial (see UDCA 1301), plaintiff’s time to make its motion for summary judgment had not commenced. “

Just another reason why the 120-day limitation to file dispositive motions should not apply in Civil Court and District Court.  First, the CPLR deals with a Note of Issue, not a Notice of Trial.  Second, when one party is pro-se, that silly formality is dispensed with.  Thus, eve of trial summary judgment motions would be allowed.   There is no “rational basis” for why a different set of rules should apply in the general civil part for a party that has representation as opposed to a party who elects not to have representation.


Paid in full?

Nwulu-Njoku v Azuaru, 2014 NY Slip Op 51878(U)(App. Term 2d Dept. 2014)

“Contrary to defendant’s contention, plaintiff’s acceptance of her check did not constitute an accord and satisfaction. It is well settled that “acceptance of part payment of a liquidated claim is no defense to an action for the balance, even where part payment is in the form of a check reciting that it is in full settlement, in the absence of a signed agreement or some consideration which is new or collateral to the partial payment”

This goes against the usual thought that if you write “paid in full”, the claim is not necessarily “paid in full”.



Inability to pay will not allow vacatur of stipulation

Allstate Ins. Co. v McNeil, 2014 NY Slip Op 51875(U)(App. Term 2d Dept. 2014)

“Stipulations of settlement are favored by the courts and not lightly cast aside” (Hallock v State of New York, 64 NY2d 224, 230 [1984]). Patrick McNeil’s unsupported assertions of financial hardship do not constitute a valid ground to fail to comply with the so-ordered stipulation (see Glover v Sattan, 43 Misc 3d 132[A], 2014 NY Slip Op 50618[U] [App Term, 2d, 11th & 13th Jud Dists 2014]; see also Nash v Yablon-Nash, 61 AD3d 832 [2009]). We note that while Patrick McNeil had indicated, in support of his final application, that he was prepared to pay the amount he owed plaintiff pursuant to the stipulation, there is no evidence that he tendered any further payments.”

First Department upholds EUO DJ victory

Allstate Ins. Co. v Pierre, 2014 NY Slip Op 08921 (1st Dept. 2014)

“Plaintiff established that defendants are not entitled to no-fault benefits because their assignors failed to appear at scheduled examinations under oath (EUOs). This Court in Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC (82 AD3d 559 [1st Dept 2011], lv denied 17 NY3d 705 [2011]) held that the failure to submit to requested independent medical examinations (IMEs) constitutes a breach of a condition precedent to coverage under a no-fault policy and voids coverage regardless of the timeliness of the denial of coverage (id. at 560). Although the instant case involves the failure to appear at EUOs, and not IMEs, this Court’s holding in Unitrinapplies to EUOs (see e.g. Interboro Ins. Co. v Perez, 112 AD3d 483, 483 [1st Dept 2013]; Seacoast Med., P.C. v Praetorian Ins. Co., 38 Misc 3d 127[A] [App Term, 1st Dept 2012]; Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [2d Dept 2014]). Defendants do not dispute that their assignors failed to appear at their first EUOs, and plaintiff established, through admissible evidence, that the assignors failed to appear at their second EUOs (see Arco Med. NY, P.C. v Metropolitan Cas. Ins. Co., 41 Misc 3d 140[A], 2013 NY Slip Op 52001[U], *2 [App Term, 2d Dept 2013]; Quality Psychological Servs., P.C. v Interboro Mut. Indem. Ins. Co., 36 Misc 3d 146[A], 2012 NY Slip Op 51628[U] [App Term, 2d Dept 2012]). Plaintiff also established that the statements on the record were business records (see e.g. People v Cratsley, 86 NY2d 81, 90-91 [1995]; One Step Up, Ltd. v Webster Bus. Credit Corp., 87 AD3d 1, 11-12 [1st Dept 2011]). Although plaintiff was required to show (and did show) that the assignors each failed to appeared at two EUOs (see DVS Chiropractic, P.C. v Interboro Ins. Co., 36 Misc 3d 138[A], 2012 NY Slip Op 51443[U], *2 [App Term, 2d Dept 2012]), plaintiff was not required to demonstrate that the assignors’ nonappearances were willful (see Unitrin, 82 AD3d at 561).

Defendants’ argument that plaintiff failed to establish that it had mailed the EUO notices to the assignors’ correct addresses is unpreserved (see e.g. Ta-Chotani v Doubleclick, Inc., 276 AD2d 313, 313 [1st Dept 2000]) and unavailing (see American Tr. Ins. Co. v Leon, 112 AD3d 441, 442 [1st Dept 2013]). Similarly, their argument that plaintiff waived the defense of the assignors’ nonappearance because plaintiff did not establish that it ever denied defendants’ claims is unpreserved (see 276 AD2d at 313). In any event, the argument is unavailing, as defendants’ own verified answer alleged that plaintiff had denied their claims.

Defendants failed to show that summary judgment is premature due to outstanding discovery (see Interboro, 113 AD3d at 597).”


What is crazy about this case is that I see a body of work I created both good (American Transit v. Leon; Interboro v. Clennon; Quality v. Interboro) and bad (Interboro v. Perez; DVS v. Interboro) cited herein.  Perhaps a deja vu moment for me?  I have Rybak to thank for another great appeal.  And at the rate Rybak is going, the insurance carriers will not even need an affidavit to prove they mailed something.

In actuality, I thought this was going to get reversed because the second EUO no-shows were placed on the record and the EUO bust statements were missing the Court reporter’s certificate.   Also, the record was devoid of an NF-2 or any record proof from where the address came.  Not a bad case to take up actually, but a disastrous result for the providers.  It looks like the Court took the scheduling affidavit where the EUO transcripts were deemed business records and the Court went along with it.  The Court expanded “Leon” and said the carrier does not have to provide record evidence as to where it got the addresses of the Claimants.   Clever, and indeed a good job by Allstate.  Yet, a very sloppy set of motion papers.  Quixotic.

CPLR 3216 again

Restoration Sports & Spine v Geico Ins. Co., 2014 NY Slip Op 51729(U)(App. Term 2d Dept. 2014)

Plaintiffs commenced this action to recover assigned first-party no-fault benefits in September 2008. On June 25, 2011, defendant served a 90-day notice pursuant to CPLR 3216 (b) (3). Plaintiffs did not file a notice of trial, move to vacate the 90-day notice, or move to extend the 90 days. In April 2012, defendant moved to dismiss the complaint pursuant to CPLR 3216. The Civil Court denied defendant’s motion.”

Except under circumstances not presented here, a plaintiff seeking to avoid dismissal pursuant to CPLR 3216 is required to demonstrate both a justifiable excuse for its delay and a meritorious cause of action (see CPLR 3216 [e]; Belson v Dix Hills Air Conditioning, Inc., 119 AD3d 623 [2014]; Davis v Goodsell, 6 AD3d 382, 384 [2004];Lama v Mohammad, 29 Misc 3d 68 [App Term, 2d, 11th & 13th Jud Dists 2010]). Here, plaintiffs’ attorney’s conclusory statement that bills had been submitted to defendant and had not been paid within 30 days of their submission was insufficient to demonstrate the merit of plaintiffs’ case (see Sortino v Fisher, 20 AD2d 25 [1963]; Lama, 29 Misc 3d 68;Comeau v McClacken, 5 Misc 3d 134[A], 2004 NY Slip Op 51455[U] [App Term, 2d & 11th Jud Dists 2004]). Moreover, plaintiff did not commence this action upon a verified complaint (CPLR 105 [U]).”

CPLR 3216 at work…

Waiver through silence

Grace v New York City Tr. Auth., 2014 NY Slip Op 08362 (1st Dept. 2014)

When you sit at the charge conference, make sure you note your objections to the jury charges, or the instructions.  CPLR 4110-b.  The failure to do this will result in a waiver.  The Appellate Division discussed this in detail:

(The verdict sheet disaggregated loss of enjoyment of life from pain and suffering – which is wrong.  I am unsure with the Trial Justice allowed this, but I was not there so I cannot comment)

“The record reflects that the jury charge correctly advised that loss of enjoyment of life was a component of pain and suffering (see Nussbaum v Gibstein, 73 NY2d 912, 914 [1989]). Defendant argues that the verdict sheet was inconsistent with this instruction. However, defendant concedes that it failed to object to the verdict sheet. Thus, defendant failed to preserve the issue of the error in the verdict sheet for review by this Court (see Klein-Bullock v North Shore Univ. Hosp. at Forest Hills, 63 AD3d 536, 536-537 [1st Dept 2009]; London v Lepley, 259 AD2d 298, 299 [1st Dept 1999]).

Where a party fails to object to errors in a verdict sheet, the charge becomes the law applicable to the determination of the case, and on appeal, this Court will review only if the error was “fundamental” (Aguilar v New York City Tr. Auth., 81 AD3d 509, 510 [1st Dept 2011]). We find that the alleged conflict between the jury charge and the verdict sheet was not fundamental since it did not confuse or create doubt as to the principle of law to be applied, or improperly shift fault, such that the “jury was prevented from fairly considering the issues at trial” (Curanovic v New York Cent. Mut. Fire Ins. Co., 22 AD3d 975, 977 [3d Dept 2005];Clark v Interlaken Owners, 2 AD3d 338, 340 [1st Dept 2003]).

Amendment of caption is allowable

Orthopaedic Specialists of Greater NY, P.C. v Kemper Independence Ins. Co., 2014 NY Slip Op 51683(U)(App. Term 1st Dept. 2014)

“Defendant’s motion to dismiss the complaint was properly denied and the cross motion to amend the caption of the summons and complaint to designate plaintiff as “Orthopaedic Specialists of Greater New York, P.C. a/a/o Nancy Goris,” was properly granted. Plaintiff established that “the right party plaintiff [was] in court but under a defective name” (Covino v Alside Aluminum Supply Co., 42 AD2d 77, 80 [1973]) and defendant failed to establish any prejudice from the misnomer. Thus, plaintiff was properly permitted to amend the caption to reflect its true name (see CPLR 2001; Unique Laundry Corp. v. Hudson Park NY LLC, 55 AD3d 382 [2008; Homemakers, Inc., of Long Island v. Williams, 100 AD2d 505, 507 [1984]). Nor has defendant demonstrated that discovery on the issue of plaintiff’s corporate name is material and necessary to its defense of this action.”

I am unsure what the purpose of the appeal was.  Did plaintiff actually plead another corporation?  Assuming they did, the SOL expire (thus allowing a dismissal to effectively be with prejudice?)


Declaratory judgment action and Special proceeding are identical – dismissal denied

Mordini Estates, Inc. v Punto Zero, Inc., 2014 NY Slip Op 51661(U)

“In support of the branch of tenant’s motion seeking to dismiss the petition pursuant to CPLR 3211 (a) (4), tenant failed to demonstrate that the relief sought in tenant’s pending declaratory judgment action was the same or substantially the same as that sought by landlord in this holdover proceeding to recover possession. ” Dismissal on the ground of prior proceeding pending is not appropriate where substantially the same relief is not being sought in the two proceedings’ ”

The quick and dirty of this case is that where a declaratory action and the plenary action or special proceeding seek similar or the same relief, a dismissal motion may be appropriate.  I would note that the Court is Solorzano did not find the no-fault action (seeking recovery on overdue bills) and the declaratory judgment action (seeking a broad coverage based determination) are similar for purposes of this rule.

Certificate of conformity waived

Todd v Green, 2014 NY Slip Op 08004 (2d Dept. 2014)

Law Office of Jason Tenenbaum, P.C, Garden City, N.Y., for appellant. (shameless self promotion)

“The Supreme Court determined that the plaintiff’s affidavit of merit, notarized in Georgia, lacked a proper certificate of conformity as required by CPLR 2309(a), and denied the motion, with leave to renew upon the submission of a proper affidavit. The plaintiff appeals.”

” A party’s right to recover upon a defendant’s failure to appear or answer is governed by CPLR 3215′” (U.S. Bank, N.A. v Razon, 115 AD3d 739, 740, quoting Beaton v Transit Facility Corp., 14 AD3d 637, 637). Thus, a plaintiff moving for a default judgment against a defendant must submit proof of service of the summons and complaint, proof of the facts constituting the claim, and proof of the defaulting defendant’s failure to appear or answer (see CPLR 3215[f]; U.S. Bank N.A. v Poku, 118 AD3d 980U.S. Bank N.A. v Razon, 115 AD3d at 740; Dela Cruz v Keter Residence, LLC, 115 AD3d 700). Here, in support of his motion to enter a default judgment, the plaintiff met all of these requirements (see U.S. Bank N.A. v Poku, 118 AD3d 980). Although the Supreme Court [*2]found that the plaintiff’s affidavit lacked a proper certificate of conformity, it should have considered the affidavit since the absence of a certificate of conformity is not a fatal defect (see Midfirst Bank v Agho, 121 AD3d 349; Gonzalez v Perkan Concrete Corp., 110 AD3d 955, 960; Fredette v Town of Southampton, 95 AD3d 940, 942). Further, even if the subject certificate of conformity was inadequate, the defendant failed to answer or appear in opposition to the motion, and it was inappropriate for the Supreme Court to, sua sponte, raise the issue on the defendant’s behalf (see Midfirst Bank v Agho, 121 AD3d 349).

The moral of the story  is to take a stand when you think the Court is treating you like a no-fault defendant in Civil Kings, Special Term.  The appellate courts sometimes get it right.