Since proof of standing is generally not an affirmative part of a no-fault claimant’s prima facie case, this case from the First Department might be of minimal importance to the no-fault bar. For those of us who are called to help friends, loved ones and members of the armed services avoid foreclosures, the “assignment” defense has scored major victories at the Appellate Division, Second Department.
The matter of IRB-Brasil Resseguros S.A. v Eldorado Trading Corp. Ltd., 2009 NY Slip Op 09395 (1st Dept. 2009), takes away some steam from this defense as set forth herein:
“Plaintiff’s original motion for summary judgment was denied because of the court’s concern that the Euroclear statement and other documents suggested that BB Securities, rather than plaintiff, may have been the true holder under the terms of the note. Plaintiff moved to renew, submitting an affidavit by BB’s managing director, clearly averring that it held the note solely as custodian for plaintiff, as well as an assignment agreement between BB and plaintiff, establishing the latter’s exclusive entitlement to sue under the note. Under these circumstances, the court providently exercised its discretion in granting renewal in the interest of justice (see Garner v Latimer, 306 AD2d 209 ). The additional affidavit by an officer familiar with the corporate records, accompanying a true copy of the assignment agreement, was admissible (see DeLeon v Port Auth. of N.Y. & N.J., 306 AD2d 146 ), and established plaintiff’s entitlement to summary judgment.
In view of our finding that summary judgment was correctly granted upon renewal, we dismiss plaintiff’s appeal of the denial of its original motion for summary judgment as academic. However, had we not done so, we would hold that plaintiff met its prima facie burden on the initial motion for summary judgment by submitting evidence of defendant Eldorado Trading’s promise to pay under the note, the guarantee by defendants Eldorado S.A. and Verpar, and nonpayment (see Eastbank v Phoenix Garden Rest., 216 AD2d 152 , lv denied 86 NY2d 711 ). Plaintiff also submitted evidence demonstrating it had purchased the note, which was held by BB Securities on its behalf in a secure account at Euroclear. Contrary to defendants’ contention, the affidavit of a corporate officer with personal knowledge, together with [*2]authenticated business records, is admissible in support of a motion for summary judgment (see First Interstate Credit Alliance v Sokol, 179 AD2d 583, 584 ).”
This case also has a rare appearance of the “interest of justice” exception to the general rule that renewal is not allowed unless new facts are presented. It also has a standard business records discussion. I will cross-link this on the evidence blog.
What happens if you draft an affirmation that is missing the magical “2106” language and the defect is properly objected to? You lose.
Can you move to renew? As we learn in Arkin v Resnick 8 2009 NY Slip Op 08980 (2d Dept. 2009), the answer is a qualified “yes”.
“The motion papers included a document by their medical expert, Dr. Alan Mensch, that was labeled as an “affirmation,” but was prefaced with a statement that he had been “duly sworn.” However, the document did not have either a jurat or a statement pursuant to CPLR 2106 that Dr. Mensch affirmed the statement to be true under the penalties of perjury. By order dated December 30, 2007, the Supreme Court denied the motion on the ground that the affirmation did not comply with CPLR 2106 or 2309, and thus, the movants failed to proffer evidence in admissible form. In support of their motion, in effect, for leave to renew, the movants submitted a substantively identical affirmation with the proper language required by CPLR 2106. By order dated June 9, 2008, the court, upon renewal, granted the motion for summary judgment dismissing the complaint as to the movants, and on July 22, 2008, entered judgment thereon. Contrary to the plaintiff’s contention, the Supreme Court did not improvidently exercise its discretion in granting the motion for leave to renew, allowing the movants the opportunity to correct their inadvertent mistake by submitting an identical affirmation in the proper form (see CPLR 2201, 2221[e]; Simpson v Tommy Hilfiger U.S.A., Inc., 48 AD3d 389, 391; Acosta v Rubin, 2 AD3d 657, 658; DeLeonardis v Brown, 15 AD3d 525, 526; Baluchinsky v General Motors Corp., 248 AD2d 574, 575).”
I am not sure we would have the same result if a chiropractor improperly affirmed a document and, following an adverse result, the “losing” attorney sought leave to renew in order to place the document in affidavit form. This would not be inadvertent. Rather, it would be considered a strategical gaff, which would not lend itself to relief through a motion to renew.
From a procedural standpoint, a question that has arisen is whether a motion seeking leave to reargue or, in certain cases, leave to renew is timely made. Following the 1999 amendment to the statute, there has been debate as to whether the 30-day period to make the motion will be tolled when a timely notice of appeal is filed. This was answered in the negative a few times, but the recent trend has been to answer this inquiry in the affirmative. A recent case highlights this point.
Terio v. Spodek, 2009 N.Y. Slip Op. 04412 (2d Dept. 2009)
“Contrary to the plaintiff’s contention, the Supreme Court providently exercised its discretion in granting that branch of the motion…which was for leave to reargue. Reich’s appeal from the Supreme Court’s order dated December 17, 2007, was pending and unperfected as of the time that the motion for reargument was made. Under these circumstances, the Supreme Court providently entertained that branch of Reich’s motion which was for leave to reargue notwithstanding that it was made beyond the 30-day limit set forth in CPLR 2221(d)(3)”
It follows that as long as a Notice of Appeal has been filed and the appellate brief is unperfected, the 30-day time period to move to reargue or to take advantage of the “change in law” provision in the leave to renew statute remains tolled.