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Monthly Archives: August 2015

An Apportionment Problem

August 25, 2015
CPLR Article 16
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Artibee v Home Place Corp.,

___ AD3d ___, ___ NYS3d ___, 2015 NY Slip Op 06556

Our supposedly Unified Court System is in fact notoriously fractured, with many courts of limited jurisdiction. This sometimes creates wholly unnecessary difficulties, and this case is one of them.

There were two joint tortfeasors involved in plaintiff’s accident, but because one of them was the State, plaintiff could not sue them both in the same court. The action against the State had to be brought separately in the Court of Claims. This is not only expensive for plaintiff, with obvious dangers of inconsistent verdicts, but presents the problem of apportioning fault between the tortfeasors. The problem is interesting as a technical exercise, perhaps, but the court system we have allows no good result. It would not arise if there were a single-tier trial court.

The plaintiff was driving on a state highway and was injured by a tree limb falling from the property of the present defendant. Plaintiff alleged that the State was also liable, for failing to maintain the trees adjoining the highway. Plaintiff was forced to commence parallel actions, suing the tree owner in Supreme Court, and the State in the Court of Claims. The tree owner claimed the benefits of Article 16 limited liability but this requires an apportionment between the tortfeasors. How is this to be accomplished if they are not joined in one action?

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Informal Appearances – A Review of Cases

August 19, 2015
Appearances, CPLR 320, CPLR 3211, Default Judgments
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One of the things I love about legal research is the way one issue leads to another. This series of posts started with two cases about motions for default judgments, and the jurisdictional consequences of failing to give notice where it is required. (Deutsche Bank Natl. Trust Co. v Gavrielova, Here and Paulus v Christopher Vacirca, Inc., Here) These discussions have already led to a side issue about marking motions “off calendar.” Here is another side issue, involving “informal appearances,” that is, actions which will be the functional equivalent of an appearance, even though the defendant has not made a formal appearance as specified in CPLR 320. That is, he has not served a formal notice of appearance, an answer, or a motion to dismiss.

Now, in both of our main cases, the defendants made a formal appearance by moving to dismiss under CPLR 3211 (a), but then failed to answer. They were therefore clearly entitled to notice of the motion for default judgments. Whether or not the defendants had appeared was not an issue. Reading some of the cases cited by these decisions, however, we come across fact patterns where the appearance was not so clear.

In some cases, the defendant’s “informal appearance” will entitle him to notice of a default motion. Since our recent cases have held that lack of notice renders the default judgment jurisdictionally defective (at least in the Second Department) a plaintiff who relies on the lack of a formal appearance and moves without notice may be unpleasantly surprised.

In others, it will be the defendant who is unpleasantly surprised, when he finds that his “informal appearance” has been sufficient to waive his objections to personal jurisdiction.

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Notice on Default Motions

August 7, 2015
CPLR 3215, CPLR 5015, Default Judgments
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Paulus v Christopher Vacirca, Inc.,

128 AD3d 116 [2d Dept., 2015]

I have posted twice on Deutsche Bank v Gavrielova: once on the main issue of notice to appearing defendants who are nonetheless in default of answering, and again on the side issue of marking motions off the motion calendar.

The case noted here is the precedent followed in Deutsche Bank, and re-reading it prompts further thoughts on the rationale for the holding, and to note a departmental conflict on the issue.

The essential question is why the lack of notice to an appearing defendant is a jurisdictional defect, and not a mere error. The significance of that distinction is that a mere error does not leave the default judgment subject to later attack under CPLR 5015 (a)(1). If the defaulting defendant lacks either a reasonable excuse or proof of a meritorious defense, a mere procedural error provides no path to vacating the judgment. A jurisdictional defect renders the judgment a nullity, vulnerable to attack at any time.

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Was This Defendant Really In Default? More On Marking Motions “Off”

August 4, 2015
CPLR 3211, Motion Practice
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Deutsche Bank Natl. Trust Co. v Gavrielova, 

___ AD3d ___, 2015 NY Slip Op 05907 [2d Dept., 2015]

An afterthought: I don’t think that the “defaulting” defendant in this case was in default at all.

I posted on this case on July 9, primarily on the issue of notice to the supposedly defaulting defendant. The plaintiff had failed to give notice of the motion for a default judgment to an appearing defendant, which was deemed to be a jurisdictional defect, leaving the resulting judgment open to attack, presumably in perpetuity. The defendant’s motion to vacate the default should therefore have been granted.

The path to default was interesting: the defendant had moved to dismiss under CPLR 3211, thus establishing an appearance and his entitlement to notice of any motion for default judgment. The motion was denied without prejudice, since the defendant had not included a copy of the complaint in the motion papers. The defendant renewed the motion but the motion was marked off, and the defendant thereafter failed to serve an answer.

As a secondary comment on the case, I noted my objection to the whole idea of a motion being marked off, rather than decided. It occurs to me now that the result of that procedure here is that the defendant was not, in fact, in default. Making the motion to dismiss extended his time to answer until ten days after service of notice of entry of the order deciding the motion (CPLR 3211 [f]). Since there has not been an order, the defendant’s time to answer remains open. The motion itself, in my view, remains pending and undecided.

Supreme Court’s order denying the motion to vacate notes that the motion was marked off in the Centralized Motion Part. By whom it was marked off, or by what authority, remains unclear. In any event, there was no order deciding the motion. For a clerk or referee to note the mark-off on the court’s internal records may suffice for the purposes of the court’s internal housekeeping, but it is not an acceptable substitute for an order.

Recommended Reading – Note of Issue

August 3, 2015
Calendar Practice, Note of Issue
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Bill Altreuter, who writes the Outside the Law blog, has some fascinating comments on Note of Issue practice in the 8th Judicial District (that’s Allegany, Cattaraugus, Chautauqua, Erie, Genesee, Niagara, Orleans & Wyoming Counties). He relates that it is common practice for the trial date to be set long before the Note of Issue is filed, and the filing itself is treated as a mere revenue-generating formality. Where other procedural steps such as summary-judgment motions and amended or supplemental Bills of Particulars have timing requirements related to the filing of the Note, this can have what he describes as “odd” effects.

I find most telling his comment that the judicial attitude toward the Note of Issue is a consequence, at least in part, of the OCA calendar requirements, known as Differentiated Case Management. I’ve spent most of my professional time in Supreme Queens, where the common complaint has been that compliance with DCM rules made a mockery of the Note of Issue and its related rules. Is anyone at OCA paying attention to the actual consequences of DCM?