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Tag Archives: motion practice

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.

Connolly v 129 E. 69th St. Corp.,

___ AD3d ___, 2015 NY Slip Op 03450 [1st Dept., 2015]

The issue presented is whether the act of “filing” motion papers can be given controlling status for summary judgment deadline purposes. The motion court and the Appellate Division said “yes,” but the argument here is that it should not.

In this case, the assigned justice’s individual part rules set a deadline for summary judgment motions not based on the date the motion was “made,” but rather on the date it was “filed.” Motions were to be “filed” within 60 days of the filing of the note of issue. The movant “made” the motion within the time limit, but “filed” the papers the day after it expired. The judge denied the motion as untimely, and the Appellate Division affirmed.

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Matter of Kickertz v New York Univ.,

___ NY3d ___, 2015 NY Slip Op 02800

In an Article 78 proceeding, if the respondent raises objections in point of law by pre-answer motion, and the motion is denied, “the court shall permit the respondent to answer”. (CPLR 7804 [f]) Despite the mandatory language there is an exception, recognized in Matter of Nassau BOCES Cent. Council of Teachers v Board of Coop. Educ. Servs. of Nassau County, 63 N.Y.2d 100 [1984], which allows the answer to be bypassed where the facts are so fully developed in the parties’ presentations as to be undisputed, and where there will be no prejudice from taking the shortcut. In BOCES, for example, the objection in point of law had been to standing, and while the papers developed the facts they did not clearly rule out triable issues. An answer was therefore required before the merits could be ruled on.

Here, both Supreme Court and the Appellate Division majority found the facts sufficiently developed to allow decisions on the merits without an answer. They then reached opposite conclusions on those merits. The Court of Appeals, however, found the facts sufficiently in doubt as to disallow the procedural shortcut, vacated the judgment and directed the service of an answer by the respondent. Read More

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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Quinones v Joan & Sanford I. Weill Med. Coll.,

114 A.D.3d 472, 980 N.Y.S.2d 88 [1st Dept., 2014]

When the court sets a deadline for summary judgment motions, shorter than the statutory 120 days, what standard governs applications for extensions of time? Is it the strict “good cause” provided for summary judgment motions generally, or is it the more lenient “procrastinator’s friend” standard of CPLR 2004? The First Department held here that the strict standard applies, no matter how the deadline was set. The purported “good cause” here, which was nothing more than the attorney’s confession of error, did not suffice. Read More

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