The Appellate Division First Department has on numerous occasions has held that CPLR 3404 applies to Civil Court actions, while the Second Department has found that otherwise. Compare, Kaufman v Bauer, 36 AD3d 841 (1st Dept. 2007), with Chavez v 407 Seventh Ave. Corp., 39 AD3d 454 (2d Dept. 2007).
The matter of Fair Price Med. Supply, Inc. v GEICO Ins. Co., 2010 NY Slip Op 50120(U)(App. Term 1st Dept. 2010), a First Department case, should not surprise anyone. My only question is why didn’t Geico cross-move to have the case dismissed in accordance with CPLR 3404?
I must conclude this post with my observations, or thoughts. It appears that the application of CPLR 3404 to the Civil Courts is about as haphazard as the application 0f 2309(c) and the proof necessary to vacate a default in accordance with 5015(a)(1). The relief these statutes offers is really dependent on the judicial department in which the underlying case is pending. This is very scary for a court system that calls itself “uniform”.
