Motion Practice

___ 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.

Summary Judgment – Timeliness – Stipulations to Extend The Deadline

May 14, 2015

CPLR 3212, Motion Practice, Summary Judgment

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Bennett v St. John’s Home & St. John’s Health Care Corp.,

___ AD3d ___, ___ NYS2d ___, 2015 NY Slip Op 03952 [4^th Dept., 2015]

Can the parties stipulate to extend the 120-day deadline set by CPLR 3212 (a) for summary judgment motions? If they do, may the court honor the stipulation? The Appellate Division here answered that the court acted within its discretion by considering the motion on its merits, and granting the motion, dismissing the complaint. The court held that the plaintiff had waived any objection to the untimely motion by consenting to it in advance.

Clearly, the court was not required to accept the stipulation. In Coty v County of Clinton, 42 A.D.3d 612 [3rd Dept., 2007], the motion court rejected the parties’ stipulation, denied the untimely motion, and the Appellate Division affirmed. Does it retain discretion to do so? The seminal decision here, of course, is Brill v City of New York, 2 NY3d 648 [2004], where the Court of Appeals stated unequivocally that the statute requires “good cause” for a late motion, and “[n]o excuse at all, or a perfunctory excuse, cannot be good ‘cause’ ” (Brill v City of New York, 2 NY3d 648, 652)

Here, the Appellate Division held that the plaintiff had waived any objection by entering into the stipulation, and that the court did indeed retain discretion to accept the stipulation and extend the deadline based on it and nothing else. The court held that Brill had not established a non-waivable public policy against extension of the deadline.

There was a one-judge dissent, which did view Brill as establishing a public policy against late summary judgment motions without sufficient excuse.

Two Actions Pending

February 16, 2015

CPLR 3211, Dismissal Motions, Motion Practice

Jadron v 10 Leonard St., LLC,

___ AD3d ___, ___ NYS2d ___, 2015 NY Slip Op 00730 [2nd Dept,. 2015]

There were two actions pending between the parties, and the question was whether the second action should be dismissed pursuant to CPLR 3211 (a)(4), on the grounds that the first action was already pending.
The plaintiff had been injured while working on the roof of a building owned by the defendants, and sued in Supreme Court, Suffolk County, alleging various Labor Law violations. The defendants included two LLCs which plaintiff alleged owned and maintained the building, the sole member of the LLCs, and the general contractor. Two days after the personal injury action was commenced, one of the LLCs transferred half of its assets to the other.
Two years later, while the action was in full swing, plaintiff commenced another action, in Supreme Court, Dutchess County, seeking to set the conveyance aside as fraudulent under the Debtor and Creditor Law. The defendants moved to dismiss the second action, on the grounds of the pendency of the first.

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What is “a change in the law?”

January 12, 2015

Appellate Practice, CPLR 2221, Motion Practice

D’Alessandro v Carro, 123 A.D.3d 1, 992 N.Y.S.2d 520 [1st Dept., 2014]

The First Department here left undisturbed a ruling which was clearly against the settled law of the Department, on an issue which the Court of Appeals subsequently settled statewide by agreeing with the First Department. Two procedural issues are presented: the effect on subsequent appeals of the dismissal of an appeal for failure to prosecute; and the meaning of “a change in the law” as it applies to motions to reargue or renew. The substantive question was whether nonpecuniary damages are available in a legal malpractice case, where the malpractice led to unnecessary years in prison. Read More

Failure to State a Cause of Action – Use of Affidavits

January 9, 2015

Dismissal Motions, Motion Practice

Basis Yield Alpha Fund (Master) v Goldman Sachs Group, Inc., 115 A.D.3d 128, 980 N.Y.S.2d 21 [1st Dept., 2014]
Liberty Affordable Hous., Inc. v Maple Ct. Apts., ___ AD3d ___, ___ NYS2d ___, 2015 NY Slip Op 00003 [4th Dept., 2015]
In these cases the First and Fourth Departments addressed whether or not the Court of Appeals intended, in Miglino v Bally Total Fitness of Greater N.Y., Inc., to change a long-standing construction of the role of evidence on a motion to dismiss for failure to state a cause of action. On such a motion, is the question limited to whether the pleading alleges a cause of action within its four corners, or can the movant submit evidentiary proof sufficient to show that something alleged to be a fact is not a fact at all? Read More

—Arguments & Demonstrations

A New York Civil Procedure Blog by David H. Rosen

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