This was going to be a post about snow.

Snow and the music I've been listening to.  But I got distracted and the moment passed.

"moral schizophrenia"

Interesting change of topic right?  I wish I could take credit for that phrase.  I was reading a post on "the joy[s] of anarchy," and three quarters of the way through I ran into the phrase.  I ran into it and stopped. Not since murum aries attigit¹ has a phrase stopped me dead in my tracks. For sure the context is important, but the phrase stands on its own.  You don't need the context; it just makes sense.

There is a longer, better, post in here somewhere, but I'm not writing it today. 

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1. I mentioned the phrase a while ago in an equally pointless post.  I found it through popehat who–i don't really remember, but I'm pretty sure–linked to the legal satyricon whose owner wrote the letter.  Sure I cite the same sites over and over again, but that's what I read.  I have a short attention span and they keep it.  By now you are problably trying to decide whether it's worth it to google the phrase.  I'll save you the trouble.  

 

Strange relief

Bedford Med. Care, P.C. v Encompass Ins. Co., 2011 NY Slip Op 21023 (Civ Ct City NY, Kings County)

In general, a default judgment is a presumptively valid judgment entitled to enforcement, unless or until reversed or set aside (All Terrain Properties, Inc. v Hoy, 265 AD2d 87 [1st Dept 2000]; but see also Fleet Business Credit, LLC v Michael P Costelloe, Inc., 19 Misc 3d 29 [App Term 2d & 11th Jud Dists 2008] [limited exception for out-of-state defaults where defendant alleges a lack of personal jurisdiction in the prior action]). To avoid enforcement of a default judgment, a defendant must move to vacate and offer both a reasonable excuse for its default and a meritorious defense to the underlying action (CPLR 317). In the court's view, a declaratory judgment, issued on default, should be treated in the same manner. Plaintiff's proper recourse, if it wishes to proceed with this action, is to move to vacate the default judgment in the declaratory judgment action by offering a reasonable excuse for its failure to appear and a meritorious defense to that action.

The court is empowered to stay its own proceedings "[e]xcept where otherwise prescribed by law…in a proper case, upon such terms as may be just" (CPLR 2201). One instance in which the staying of a given action is often deemed appropriate is when another (collateral) action is pending (see CPLR 2201, Comment 4 [discussing implied stay provision on a motion to dismiss pursuant to CPLR 3211(a)(4)]). Since plaintiff contends that the declaratory judgment cannot be given preclusive effect because it was not "actually litigated," this court will stay the instant matter to afford plaintiff the opportunity to move to vacate its Supreme Court default and, if granted, to "actually litigate" the coverage question in the declaratory judgment action.

What if a motion to vacate is made, but denied?  What then?  At what point does the stay end.  A better approach, in my opinion, would be to grant defendant a stay on the condition that it vacate the default, allow an answer to be interposed, and actually litigate the matter.  Problem solved.

 

What if it was a bench trial?

Kelly v Metropolitan Ins. & Annuity Co., 2011 NY Slip Op 00417 (App. Div., 1st 2011)

But rather than issuing a simple curative instruction, as would have been appropriate under the circumstances, the court interrogated each of the jurors individually concerning the nature of the gesture or sigh made by the expert. This protracted episode left the jurors with the distinct and unmistakable impression that the court disapproved of plaintiffs' expert and credited none of her testimony. Indeed, shortly following this interrogation, the court threatened to preclude plaintiffs' expert from testifying further, leaving plaintiffs without expert testimony on the crucial issue of defendants' negligence.

This prejudicial treatment of plaintiffs' expert is to be contrasted with the court's treatment of the defense expert, whom the court accorded wide latitude. Notably, the court did not similarly chide the defense's expert when he transgressed courtroom protocol. Defendant's expert, during direct, inappropriately interjected that the infant plaintiff "[p]robably should have left the [training wheels] on to begin with," a gratuitous statement intended to undermine the court's ruling that in light of the infant's age, neither he nor his parents could be considered comparatively negligent. This statement, in direct contravention of the court's ruling, arguably tainted the jury, and, unlike plaintiffs' expert's "sigh" or gesticulation, was an unambiguous statement, uttered directly to and intended to prejudice the jury. Indeed, plaintiffs' counsel pointed out that, in contradistinction to plaintiffs' expert, the defense expert had "intentionally responded . . . having nothing to do with the question to insert his opinion about the happening of the accident in the first place." The court agreed that the actions of the expert were "egregious," but nonetheless denied the plaintiffs' motion to strike his testimony, issuing instead a simple curative instruction.

The prejudice was compounded by the failure of the trial court to give the charge requested by plaintiffs, i.e., that the absence of a building code violation is not tantamount to the absence of negligence. This left the jury with the distinct impression that defendants' compliance with the building code was a defense to liability.

***

Because these errors served cumulatively to deprive plaintiffs of a fair trial, we hereby modify the judgment as indicated, and order a new trial.

The bold is mine.

Mandamus requires refusal.

Donoghue v New York City Dept. of Educ., 2011 NY Slip Op 00425 (App. Div. 1st 2011)

Article 78 is not limited to review of administrative determinations since a court also has subject matter jurisdiction to review a body's or officer's failure to act (see CPLR 7801; 7803[1]). On March 6, 2009, petitioner asked respondent New York City Department of Education (DOE) to retroactively grant her tenure in earth science, but DOE failed to act on her request.

Nor is this proceeding, which was commenced on April 6, 2009, barred by the statute of limitations. "In a proceeding for mandamus relief, it is necessary to make a demand and await a refusal, and the limitations period does not commence until the refusal" (Adams v City of New York, 271 AD2d 341, 341-342 [2000]). If there is no refusal, the limitations period does not begin to run (see id. at 342). Even if, arguendo, the clock began to run on March 6, 2009, petitioner brought the instant proceeding well within the four-month deadline set forth in CPLR 217(1).

It is true that petitioner's March 6, 2009 request was made more than four months after October 28, 2008. However, we exercise our discretion (see Matter of Densmore v Altmar-Parish-Williamstown Cent. School Dist., 265 AD2d 838, 839 [1999], lv denied 94 NY2d 758 [2000]) and determine that this proceeding is not barred by laches. If a petition and answer "can be construed as the necessary demand and refusal" (Matter of Triana v Board of Educ. of City School Dist. of City of N.Y., 47 AD3d 554, 557-558 [2008]), petitioner's pre-petition demand should not be deemed untimely.

We remand to permit respondents to answer (see CPLR 7804[f]; Matter of Nassau [*2]BOCES Cent. Council of Teachers v Board of Coop. Educ. Servs. of Nassau County, 63 NY2d 100, 103 [1984]).

 

The bold is mine.

Notice by any other means

CPLR R. 3211(a)(8)

Williams v DRBX Holdings, LLC, 2011 NY Slip Op 00423 (App. Div., 1st 2011)

In attempting to serve process on defendant, a foreign limited liability company authorized to do business in New York, plaintiff served defendant's attorneys instead of serving the Secretary of State, as required by Limited Liability Company Law § 303. Despite being twice alerted to the error by defense counsel, plaintiff never served the Secretary of State. "Notice received by means other than those authorized by statute does not bring a defendant within the jurisdiction of the court" (Macchia v Russo, 67 NY2d 592, 595 [1986]). The fact that defendant's attorneys would have received a copy of process from the Secretary of State does not avail plaintiff (see Fwu Chyuang Chow v Kenteh Enters. Corp., 169 AD2d 572 [1991]).

The bold is mine.

Injunctions, generally.

Zutt v State of New York, 2011 NY Slip Op 00509 (App. Div., 2nd 2011)

Contrary to the defendant's contention, the Supreme Court properly granted the plaintiffs' motion for summary judgment on their cause of action to permanently enjoin the defendant from continuing to drain storm water runoff onto their property (see Higgins v Village of Orchard Park, 277 AD2d 989, 991, cf. Warm v State of New York, 308 AD2d 534, 536). The plaintiffs made a prima facie showing of entitlement to judgment as a matter of law, and the defendant failed to raise any triable issues of fact in opposition (see Alvarez v Prospect Hosp., 68 NY2d 320, 324; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853). The conclusory assertions of the defendant's expert witness were insufficient to oppose the motion for summary judgment (see generally Gonzalez v 98 Mag Leasing Corp., 95 NY2d 124, 129; Mandel v Benn, 67 AD3d 746).

"[A] court of equity has an obligation to go no further than absolutely necessary to protect the rights of the complaining parties. The injunction must be framed as narrowly as possible" (Antinelli v Toner, 74 AD2d 996, 997 [citations omitted]). Here, the Supreme Court properly directed the defendant to comply with the recommendations of the plaintiffs' expert to direct storm water away from the plaintiffs' property and into a natural stream nearby.

MERS

US Bank Natl. Assn. v Madero, 2011 NY Slip Op 00505 (App. Div., 2nd 2011)

Where, as here, a plaintiff's standing is put into issue by the defendants, the plaintiff must prove its standing to be entitled to relief (see U.S. Bank, N.A. v Collymore, 68 AD3d 752, 753; Wells Fargo Bank Minn., N.A. v Mastropaolo, 42 AD3d 239, 242). "In a mortgage foreclosure action, a plaintiff has standing where it is both the holder or assignee of the subject mortgage and the holder or assignee of the underlying note at the time the action is commenced" (U.S. Bank, N.A. v Collymore, 68 AD3d at 753). "Where a mortgage is represented by a bond or other instrument, an assignment of the mortgage without assignment of the underlying note or bond is a nullity" (id. at 754). "Either a written assignment of the underlying note or the physical delivery of the note prior to the commencement of the foreclosure action is sufficient to transfer the obligation, and the mortgage passes with the debt as an inseparable incident" (id.; see LaSalle Bank Natl. Assn. v Ahearn, 59 AD3d 911, 912). Here, the plaintiff failed to demonstrate its prima facie entitlement to judgment as a matter of law because it did not establish that it had standing, as the lawful holder or assignee of the subject note on the date it commenced this action, to commence the action (see U.S. Bank, N.A. v Collymore, 68 AD3d 752; see also Suraleb, Inc. v International Trade Club, Inc., 13 AD3d 612; Tawil v Finkelstein Bruckman Wohl Most & Rothman, 223 AD2d 52, 55). Accordingly, the Supreme Court should have denied those branches of the plaintiff's motion which were for summary judgment on the complaint as to the Maderos and for an order of reference.

The Supreme Court properly denied those branches of the Maderos' cross motion which were for summary judgment dismissing the complaint insofar as asserted against them (cf. U.S. Bank, N.A. v Collymore, 68 AD3d 752), or for a framed-issue hearing (see Gillman v Chase Manhattan Bank, 73 NY2d 1).

The bold is mine.

Sworn denial of service not always sufficient. Specific facts required.

CPLR 3211(a)(8)

Tikvah Enters., LLC v Neuman, 2011 NY Slip Op 00502 (App. Div., 2nd 2011)

Moreover, the Supreme Court properly denied, without a hearing, the defendant's motion pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against him for lack of personal jurisdiction. A process server's affidavit of service constitutes prima facie evidence of proper service (see Associates First Capital Corp. v Wiggins, 75 AD3d 614; Scarano v Scarano, 63 AD3d 716). "Although a defendant's sworn denial of receipt of service generally rebuts the presumption of proper service established by the process server's affidavit and necessitates an evidentiary hearing . . . no hearing is required where the defendant fails to swear to specific facts to rebut the statements in the process server's affidavits'" (Scarano v Scarano, 63 AD3d at 716, quoting Simonds v Grobman, 277 AD2d 369, 370; see Associates First Capital Corp. v Wiggins, 75 AD3d at 614-615; City of New York v Miller, 72 AD3d 726, 727). Here, the defendant never denied the specific facts contained in the process server's affidavits. Accordingly, no hearing was required (see Scarano v Scarano, 63 AD3d at 716-717; Roberts v Anka, 45 AD3d 752, 754).

Keep this in mind when opposing motions to vacate.

The bold is mine.

An unqualified expert

Pellechia v Partner Aviation Enters., Inc., 2011 NY Slip Op 00496 (App. Div., 2nd 2011)

To the extent the plaintiff's claims against the defendant are not preempted by federal law, in opposition to the defendant's prima facie showing of entitlement to judgment as a matter of law, the plaintiff failed to raise a triable issue of fact (see Scoppettone v ADJ Holding Corp., 41 AD3d 693, 694; Hagan v P.C. Richards & Sons, Inc., 28 AD3d 422; Earle v Channel Home Ctr., 158 AD2d 507). The plaintiff's expert affidavit was properly rejected by the Supreme Court because the plaintiff never complied with any of the disclosure requirements of CPLR 3101(d)(1)(i), and only [*2]first identified his expert witness in opposition to the defendant's summary judgment motion, after the plaintiff filed the note of issue and certificate of readiness (see King v Gregruss Mgt. Corp., 57 AD3d 851, 852-853). Further, the expert failed to demonstrate that he was qualified to render an opinion (Hofmann v Toys R Us, NY Ltd. Partnership, 272 AD2d 296). Moreover, the expert's opinion which was speculative and conclusory, and was not based on accepted industry standards, was insufficient to raise a triable issue of fact (see Rabon-Willimack v Robert Mondavi Corp., 73 AD3d 1007, 1009; Pappas v Cherry Cr., Inc., 66 AD3d 658; Rivas-Chirino v Wildlife Conservation Socy., 64 AD3d 556).

When experts disagree:

Wexelbaum v Jean, 2011 NY Slip Op 00508 (App. Div., 2nd 2011)

"Summary judgment is not appropriate in a medical malpractice action where the parties adduce conflicting medical expert opinions. Such credibility issues can only be resolved by a jury" (Feinberg v Feit, 23 AD3d 517, 519 [citations omitted]; see Darwick v Paternoster, 56 AD3d 714, 715; Bjorke v Rubenstein, 53 AD3d 519, 520; Roca v Perel, 51 AD3d at 759). Accordingly, the appellants' motion for summary judgment was properly denied.

One day I'll remember to look at the cases the First Department cited to:

Bustos v Lenox Hill Hosp., 2011 NY Slip Op 00432 (App. Div., 1st 2011)

Under the particular circumstances presented, the affidavit of plaintiff's expert was properly considered by the court on renewal (see Mejia v Nanni, 307 AD2d 870, 871 [2003]; Garner v Latimer, 306 AD2d 209 [2003]; Tishman Constr. Corp. of N.Y. v City of New York, 280 AD2d 374, 376-377 [2001]). The affidavit was sufficient to raise triable issues of fact as to whether defendants' treatment of plaintiff before and during delivery departed from good and accepted standards of obstetric care (see Roques v Noble, 73 AD3d 204 [2010]; Frye v Montefiore Med. Ctr., 70 AD3d 15 [2009]).

Last one:

Alvarez v 1407 Broadway Real Estate LLC, 2011 NY Slip Op 00407 (App. Div., 1st 2011)

Plaintiff Luis Alvarez testified that a scaffold tipped over as he was climbing onto it. In opposition to this prima facie showing that a violation of Labor Law § 240(1) occurred and that it was a proximate cause of plaintiff's injuries (see Romanczuk v Metropolitan Ins. & Annuity Co., 72 AD3d 592 [2010]), defendants failed to raise an inference in support of their contention that the injured plaintiff's conduct was the sole proximate cause of the accident (see Torres v Monroe Coll., 12 AD3d 261 [2004]; Garcia v 1122 E. 180st St. Corp., 250 AD2d 550 [1998]). Their expert witness conceded that plaintiff's failure to lock the scaffold wheels before climbing onto the scaffold did not cause the scaffold to tip over. In any event, contributory negligence is not a defense to liability under Labor Law § 240(1) (see Crespo v Triad, Inc., 294 AD2d 145, 147 [2002]). While defendants' expert opined that plaintiff should have used a nearby A-frame ladder, rather than the ladder rungs of the scaffold, to gain access to the scaffold platform, defendants failed to submit any evidence that plaintiff knew or should have known that he was expected to use a ladder to climb onto the scaffold and "chose for no good reason not to do so" (see Cahill v Triborough Bridge & Tunnel Auth., 4 NY3d 35, 39-40 [2004]).

The bold is mine.

CPLR R. 5015: to default or to vacate

You can never have enough of these decisions handy.

CPLR R. 5015

CPLR R. 3215

Maida v Lessing's Rest. Servs., Inc., 2011 NY Slip Op 00490 (App. Div., 2nd 2011)

To vacate the order entered upon its default in opposing the motion for leave to enter a default judgment, the defendant Lessing's Restaurant Services, Inc. (hereinafter the appellant), was required to demonstrate, inter alia, a reasonable excuse for its default in appearing or answering the complaint and a potentially meritorious defense to the action (see CPLR 5015[a][1]; Abdul v Hirschfield, 71 AD3d 707; Bekker v Fleischman, 35 AD3d 334; Epps v LaSalle Bus, 271 AD2d 400). In support of its motion, which was not made until nine months after the order granting the plaintiff's motion for leave to enter a default judgment, the appellant did not offer a reasonable excuse for its failure to appear or answer the complaint (see Gartner v Unified Windows, Doors & Siding, Inc., 71 AD3d 631, 632; Kramer v Oil Servs., Inc., 65 AD3d 523, 524; Leifer v Pilgreen Corp., 62 AD3d 759, 760; Martinez v D'Alessandro Custom Bldrs. & Demolition, Inc., 52 AD3d 786, 787; Segovia v Delcon Constr. Corp., 43 AD3d 1143, 1144). Accordingly, it is unnecessary to consider whether the appellant sufficiently demonstrated the existence of a potentially meritorious defense to the action (see Abdul v Hirschfield, 71 AD3d at 709; Segovia v Delcon Constr. Corp., 43 AD3d at 1144; American Shoring, Inc. v D.C.A. Constr., Ltd., 15 AD3d 431). In addition, contrary to the appellant's contention, the plaintiff's submissions in support of her motion for leave to enter a default judgment were sufficient. The verified complaint and the plaintiff's affidavit set forth sufficient facts to enable the Supreme Court to determine that the plaintiff alleged a viable cause of action (see Woodson v Mendon Leasing Corp., 100 NY2d 62, 71; Neuman v Zurich N. Am., 36 AD3d 601, 602). Accordingly, the Supreme Court providently exercised its discretion in denying the appellant's motion to vacate the order dated November 24, 2008.

CPLR R.3211(a)(8)

R. Scott Miterko v Peaslee, 2011 NY Slip Op 00492 (App. Div., 2nd 2011)

The Supreme Court properly denied the appellant's cross motion pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against it on the ground of lack of personal jurisdiction. In opposition to the appellant's cross motion asserting that service of process pursuant to CPLR 311(a)(1) was not properly effected, the plaintiffs established that valid service was made pursuant to Business Corporation Law § 306(b)(1) (see Perkins v 686 Halsey Food Corp., 36 AD3d 881).

However, the Supreme Court should not have granted the plaintiffs' motion for leave to enter a default judgment. To establish their entitlement to a default judgment, the plaintiffs were required to submit proof of service of the summons and the complaint, of the facts constituting the claim, and of the default (see CPLR 3215[f]; Levine v Forgotson's Cent. Auto & Elec., Inc., 41 [*2]AD3d 552, 553; 599 Ralph Ave. Dev., LLC v 799 Sterling Inc., 34 AD3d 726). The plaintiffs' initial moving papers for leave to enter a default judgment were predicated solely upon their assertion of proper personal service pursuant to CPLR 311(a)(1). They established, prima facie, their entitlement to a default judgment by submitting an affidavit of service attesting that the summons and complaint were delivered to a managing agent of the appellant, a copy of the verified complaint, and an attorney affirmation attesting to the appellant's default in answering the complaint (see CPLR 311[a][1]; Matone v Sycamore Realty Corp., 50 AD3d 978; McIntyre v Emanuel Church of God In Christ, Inc., 37 AD3d 562; Bankers Trust Co. of Cal. v Tsoukas, 303 AD2d 343, 343-344). In opposition, the appellant rebutted these allegations and raised issues of fact by submitting an affidavit from its president stating that the person upon whom service allegedly was made was not employed by the appellant, nor authorized to accept service of process on behalf of the appellant. The affidavit of the plaintiffs' process server submitted in reply to this opposition raised an additional issue of fact as to whether the recipient, if not a managing agent, was cloaked with an apparent authority to accept service on the appellant's behalf (see generally Fashion Page v Zurich Ins. Co., 50 NY2d 265, 271-273; McDonald v Ames Supply Co., 22 NY2d 111, 115-116; Aguilera v Pistilli Constr. & Dev. Corp., 63 AD3d 765, 766-767; Seda v Armory Estates, 138 AD2d 362, 363-364). Accordingly, a hearing is necessary to determine the issue of whether proper personal service was effected pursuant to CPLR 311(a)(1), solely for the purpose of determining the plaintiffs' entitlement to a default judgment (see McIntyre v Emanuel Church of God In Christ, Inc., 37 AD3d at 562-563; Garcia v Munseob, 33 AD3d 586; Mortgage Access Corp. v Webb, 11 AD3d 592, 593; Bankers Trust Co. of Cal. v Tsoukas, 303 AD2d at 343-344; Frankel v Schilling, 149 AD2d 657, 659).

Since the plaintiffs' assertion that they were entitled to a default judgment based on proper service pursuant to Business Corporation Law § 306(b)(1) was made in their reply papers supporting their motion, two days before the return date and the date of the order appealed from, and the appellant did not have an opportunity to respond, the Supreme Court should not have considered that claim in determining the motion (see Matter of Crawmer v Mills, 239 AD2d 844, 844-845; cf. Matter of Whittaker v New York City Bd. of Educ., 71 AD3d 776, 778; Valure v Century 21 Grand, 35 AD3d 591, 592).

The appellant's contention that the plaintiffs failed to state a cause of action insofar as asserted against it is raised for the first time on appeal and, thus, is not properly before this Court (see McLearn v Cowen & Co., 60 NY2d 686, 689; Viafax Corp. v Citicorp Leasing, Inc., 54 AD3d 846, 849; Resnick v Doukas, 261 AD2d 375, 376).

The bold is mine.