Ratificaton

Dinhofer v Medical Liab. Mut. Ins. Co., 92 AD3d 480 (1st Dept., 2012)

Plaintiff's claims against the MLMIC defendants of fraud, deceitful business practices, and breach of their duty to defend him in good faith are barred by the doctrine of equitable estoppel. The MLMIC defendants established that in reasonable reliance upon plaintiff's execution of the consent to settle the underlying medical malpractice action they made a prejudicial change in their position by, inter alia, disbanding the advisory committee that, pursuant to the policy, would have resolved the matter of settlement absent plaintiff's consent, and paying to settle the claim against him (see River Seafoods, Inc. v JPMorgan Chase Bank, 19 AD3d 120, 122 [2005]). These claims are also barred by the doctrine of ratification, since plaintiff failed to act promptly to seek rescission of the consent (see Matter of Guttenplan, 222 AD2d 255, 257 [1995], lv denied 88 NY2d 812 [1996]), and indeed accepted and retained the benefits of the settlement (see Napolitano v City of New York, 12 AD3d 194 [2004]).

Contracts

Eitan Ventures, LLC v Peeled, Inc., 2012 NY Slip Op 03085 (1st Dept., 2012)

When construing a contract, the most important consideration is to give effect to the parties' intentions (Federal Ins. Co v Americas Ins. Co., 258 AD2d 39, 44 [1999]). To ascertain those intentions, a court should examine the contract as a whole and interpret its parts with reference to the whole (see Kass v Kass, 91 NY2d 554, 566-567 [1998]).

Kaplan v Madison Park Group Owners, LLC, 2012 NY Slip Op 03086 (1st Dept., 2012)

By definition an anticipatory breach cannot be committed by a party already in material breach of an executory contract. It is well settled that an anticipatory breach of a contract is one that occurs before performance by the breaching party is due. For example, in Norcon Power Partners v Niagara Mohawk Power Corp. (92 NY2d 458 [1998]) the Court of Appeals defined an anticipatory repudiation as one that occurs "prior to the time designated for performance" (id. at 462-463). Consistently, in American List Corp. v U.S. News & World Report (75 NY2d 38 [1989]) the Court defined an anticipatory breach in terms of "a wrongful repudiation of the contract by one party before the time for performance" (id. at 44). Applying New York law, the United States Court of Appeals for the Second Circuit held that "[a]nticipatory repudiation occurs when, before the time for performance has arisen, a party to a contract declares his intention not to fulfill a contractual duty" (Lucente v International Bus. Machs. Corp., 310 F3d 243, 258 [2d Cir 2002] [citations omitted]). The rationale behind the doctrine of anticipatory breach is that it gives the non-repudiating party an opportunity to treat a repudiation as an anticipatory breach without having to futilely tender performance or wait for the other party's time for performance to arrive (see Cooper v Bosse, 85 AD2d 616, 618 [1981]). As noted above, plaintiffs were in default as of July 27, 2009, two days before the letter was sent. Once plaintiffs defaulted on July 27, Lipman did not have to tender performance or wait for a law date because [*3]he could have resorted to the contractual remedies for plaintiffs' breach set forth under paragraph 13. Accordingly, the July 29, 2009 letter did not give rise to an anticipatory repudiation because it was not issued "prior to the time designated for performance" within the meaning of Norcon and the other cases cited above.

Princes Point, LLC v AKRF Eng'g, P.C., 2012 NY Slip Op 02954 (1st Dept., 2012)

Plaintiff's motion to amend the complaint to add additional causes of action was properly denied. Plaintiff's claims for promissory estoppel and fraud relating to the June 2004 contract fail since, pursuant to the contract, the property was being purchased "AS IS . . . AND WITH ALL FAULTS," and plaintiff was relying solely on its own inspections of the property. Thus, plaintiff accepted all defects in the premises and was not relying on any assurances made by defendants as to the condition of the property (see Barnes v Gould, 83 AD2d 900 [1981], affd 55 NY2d 943 [1982). In addition, the proposed promissory estoppel claim is deficient because the contract included a clause stating that it represented the entire understanding between the parties (see Fariello v Checkmate Holdings, LLC, 82 AD3d 437, 438 [2001]).

Furthermore, the new damages sought, consequential and punitive, are unavailable to plaintiff on the claims asserted. Damages for fraud are to compensate plaintiffs for what they [*2]lost, " not to compensate them for what they might have gained'" (Starr Found. v American Intl. Group, Inc., 76 AD3d 25, 27 [2010], quoting Lama Holding Co. v Smith Barney Inc., 88 NY2d 413, 421 [1996]), and punitive damages are not warranted since plaintiff has not alleged wrongdoing evincing a high degree of moral turpitude that demonstrates such wanton dishonesty as to imply a criminal indifference to civil obligations (Ross v Louise Wise Servs., Inc., 8 NY3d 478 [2007]).

Plaintiff failed to plead facts that are sufficient to support a cause of action for prima facie tort because the allegations do not establish that defendants' purportedly tortious conduct was motivated by an otherwise lawful act performed with the intent to injure or with a "disinterested malevolence" (see Curiano v Suozzi, 63 NY2d 113, 117 [1984]; Kleinerman v 245 E. 87 Tenants Corp., 74 AD3d 448 [2010]). Plaintiff's allegation of malevolence is contrary to its allegation concerning defendants' alleged profit motives (see Meridian Capital Partners, Inc. v Fifth Ave. 58/59 Acquisition Co. L.P., 60 AD3d 434 [2009]).

Josephson LLC v Column Fin., Inc., 2012 NY Slip Op 02588 (1st Dept., 2012)

Defendants contend that the breach of contract cause of action should be dismissed because the subject contract expressly prohibits oral modifications and the alleged oral agreement is barred by the Statute of Frauds (see General Obligations Law § 15-301). Plaintiffs failed to raise an issue of fact whether there was a partial performance of the contract that would permit enforcement of the oral modification (see F. Garofalo Elec. Co. v New York Univ., 270 AD2d 76, 80-81 [2000], lv dismissed 95 NY2d 825 [2000]). The act they identify as partial performance, i.e., the delivery of the purchase price to the title company, is not "unequivocally referable" to the oral modification; it can also reasonably be regarded as preparatory to performing the contract (see e.g. Merrill Lynch Interfunding, Inc. v Argenti, 155 F3d 113, 122-123 [1998]). Further, the record demonstrates that the parties did not agree on all the material terms of the alleged oral agreement. The deposition testimony upon which plaintiffs rely reflects a mere agreement to agree (see e.g. Meyers Assoc., L.P. v Conolog Corp., 61 AD3d 547 [2009]). [*2]

Plaintiffs abandoned their remaining claims by failing to oppose the parts of defendants' motion that sought summary judgment dismissing those claims.

Garber v Stevens, 2012 NY Slip Op 02437 (1st Dept., 2012)

Defendants' affirmative defenses of fraud and/or unconscionability, which were not asserted in their answer or raised on a prior motion, were properly rejected (see BMX Worldwide v Coppola N.Y.C., 287 AD2d 383, 384 [2001]).

Defendants' reliance on plaintiffs' silence and inaction to establish the defenses of waiver and/or equitable estoppel is misplaced (Fundamental Portfolio Advisors, Inc. v Tocqueville Asset Mgt., L.P., 7 NY3d 96, 105-107 [2006]; EchoStar Satellite L.L.C. v ESPN, Inc., 79 AD3d 614, 617 [2010]. Plaintiffs did not discover many of the acts about which they now complain until long after they entered into the agreement, in part, because of defendants' subterfuge and violation of that agreement. Moreover, defendants' last alleged violation occurred in 2005, the same year the complaint was filed.

Finally, laches is unavailable as a defense to the claims of breach of contract, breach of fiduciary duty and for the return of management fees, which, although brought together as a derivative action, are not equitable in nature (see e.g. Cadlerock, L.L.C. v Renner, 72 AD3d 454, 454 [2010]; see also Pfeiffer v Berke, 4 Misc 2d 918 [Sup Ct, Kings County 1953]).

Hearsay

Rosado v Phipps Houses Servs., Inc., 2012 NY Slip Op 02385 (1st Dept., 2012)

Plaintiff alleges that she slipped and fell in a puddle located on an exterior landing of premises owned, managed and/or operated by defendants, and that two yellow caution cones had been placed against the wall, to her right and left, as she exited, but not in the area of the liquid condition. The presence of caution cones here created a triable issue of fact as to prior actual notice of the condition, as defendants' witness admitted that they would place such caution cones to alert others to a slippery condition and plaintiff denied that the cones were being used to prop open a door, as had been alleged by defendants' witness (see Felix v Sears, Roebuck & Co., 64 AD3d 499 [2009]; Hilsman v Sarwil Assoc., L.P., 13 AD3d 692 [2004]). Additionally, while the hearsay portions of a witness affidavit submitted in opposition to the motion, which referred to an unidentified person or persons having admitted prior notice of the condition, were inadmissible (see Cassanova v General Cinema Corp. of N.Y., 237 AD2d 155 [1997]; Pascarella v Sears, Roebuck and Co., 280 AD2d 279 [2001]), the witness's first hand account of providing defendants with notice of the condition at least 45 minutes before the accident raised triable issues of fact as to prior actual and constructive notice of the condition.

Rosario v Vasquez, 2012 NY Slip Op 01874 (1st Dept., 2012)

In opposition, defendants failed to provide a nonnegligent explanation for the collision (Avant, 74 AD3d at 534); (cf. Ebanks v Triboro Coach Corp., 304 AD2d 406 [2003]). The uncertified police accident report submitted by defendants constitutes hearsay and, in any event, does not support Guzman-Sosa's account of the accident (see Rivera v GT Acquisition 1 Corp., 72 AD3d 525, 526 [2010]).

Contrary to the motion court's finding, depositions are not needed, since Guzman-Sosa had personal knowledge of the facts (see Avant, 74 AD3d at 534).

Quinche v Gonzalez, 2012 NY Slip Op 03158 (2nd Dept., 2012)

Contrary to the plaintiff's contention, the Supreme Court did not err in admitting into evidence at the subject hearing certain audio recordings. The recordings did not constitute inadmissible hearsay. "Hearsay is an out-of-court statement offered to prove the truth of the matter asserted therein" (Gelpi v 37th Ave. Realty Corp., 281 AD2d 392, 392). "However, a statement which is not offered to establish the truth of the facts asserted therein is not hearsay" (id.). Here, the recordings at issue were not offered for the truth of the matter asserted therein. Accordingly, the Supreme Court did not err in admitting the recordings into evidence on this ground. The plaintiff's remaining contentions concerning the admission of these recordings are unpreserved for appellate review.

 

5501 and appellate procedure

CPLR § 5501 Scope of review

Retta v 160 Water St. Assoc., L.P., 2012 NY Slip Op 03092 (1st Dept., 2012)

An appeal must be taken "within thirty days after service by a party upon the appellant of a copy of the judgment or order appealed from and written notice of its entry" (CPLR 5513[a]). The time period for filing a notice of appeal is nonwaivable and jurisdictional (see Matter of Haverstraw Park v Runcible Props. Corp., 33 NY2d 637 [1973]; Jones Sledzik Garneau & Nardone, LLP v Schloss, 37 AD3d 417 [2007]).

Pursuant to CPLR 5501(a)(1), "[a]n appeal from a final judgment brings up for review . . . any non-final judgment or order which necessarily affects the final judgment" (see also Siegmund Strauss, Inc. v East 149th Realty Corp., 81 AD3d 260, 267 [2010], lv granted in part, dismissed in part 17 NY3d 936 [2011]). "[W]hen an appeal from an intermediate order is perfected together with an appeal from a final judgment, the appeal from the intermediate order must be dismissed and any error alleged, to the extent that it affects the final judgment, may be reviewed upon the appeal from the final judgment" (Chase Manhattan Bank, N.A. v Roberts & [*2]Roberts, 63 AD2d 566, 567 [1978]).

Gregware v City of New York, 2012 NY Slip Op 02578 (1st Dept., 2012)

Defendant Burtis Construction Co. did not oppose Romero and Romero-Valerezo's and Hasan and Dochenka Taxi's motions, and therefore may not appeal from the order that decided them (see Tortorello v Carlin, 260 AD2d 201, 205 [1999]).

Rj and CJ and JE and EE

DirecTV Latin Am., LLC v Pratola, 2012 NY Slip Op 03098 (1st Dept., 2012)

The issue whether New York courts have personal jurisdiction over defendants Pratola and Clemente pursuant to CPLR 301 and 302 was determined in the prior federal action and, pursuant to the doctrine of collateral estoppel, may not be relitigated (see Keeler v West Mtn. Corp., 105 AD2d 953, 955 [1984]). Although plaintiff Latin American Sports, LLC was not a party to the federal action, it may be collaterally estopped because it is a
limited liability company wholly owned by DirecTV, and its interests with respect to the claims against defendants are identical to those of DirecTV (see D'Arata v New York Cent. Mut. Fire Ins. Co., 76 NY2d 659, 664 [1990]).

No determination was made in the federal action as to personal jurisdiction over defendant Zunda, allegedly a citizen of the United States with a domicile in Argentina, who, until his termination, was employed as a senior officer at DirecTV Argentina, a subsidiary of DirecTV. Plaintiffs' sole allegation in support of their position is that defendants deposited funds into a New York bank account owned by Clemente, from which they funneled money to Pratola and Zunda. This is insufficient to invoke personal jurisdiction over Zunda pursuant to CPLR 302(a)(l), which authorizes exercise of personal jurisdiction over a non-domiciliary who "transacts any business within the state" (see Pramer S.C.A. v Abaplus Intl. Corp., 76 AD3d 89, 96 [2010]).

Gonzalez v City of New York, 2012 NY Slip Op 02791 (1st Dept., 2012)

Contrary to plaintiff's argument, the City is not equitably estopped from claiming that it is not a proper party. In its answer, the City specifically denied plaintiff's allegations that it controlled, maintained, or managed the school premises, or had any duty to remove snow and ice from the grounds (see Flores v City of New York, 62 AD3d 506 [2009]). That denial should have alerted plaintiff that she had sued the wrong party, and, when the City served the answer, plaintiff had adequate time to seek leave to file a late notice of claim naming the correct defendant.

The circumstances of this case can be readily distinguished from those of Padilla v Department of Educ. of the City of N.Y. (90 AD3d 458 [2011]), which concerned another injury on the grounds of a City public school. In Padilla, we held that the doctrine of equitable estoppel barred the City from denying that it was a proper party because its answer did not alert the plaintiff that it lacked control over the school premises, but instead merely objected that the attempted service of the notice of claim was improper (90 AD3d at 458). We also found that, [*2]after the notice of claim was filed, the City's wrongful or negligent actions discouraged the plaintiff from serving a timely amended notice of claim (id. at 459).

Truong v Litman, 2012 NY Slip Op 02172 (1st Dept., 2012)

Dismissal of this action was proper as it is barred by the doctrine of res judicata (see generally O'Brien v City of Syracuse, 54 NY2d 353 [1981]). The transactions upon which this action is premised were the subject of prior claims brought by and concluded against plaintiffs in both state and federal court (see id. at 357; Elias v Rothschild, 29 AD3d 448 [2006]). Contrary to plaintiffs' argument, the claims alleging violations of plaintiffs' civil rights under 42 USC § 1983 and § 1985 were decided against plaintiffs on the merits and the breach of contract claim was fully litigated and decided against plaintiffs in Civil Court, New York County.

Pierre v Mary Manning Walsh Nursing Home Co., Inc., 2012 NY Slip Op 02060 (1st Dept., 2012)

Defendants' federal preemption claim is unavailing, as the Labor Management Relations Act (29 USCS § 185) has preclusive effect only when resolution of a state law claim is substantially dependent upon the analysis of a CBA (Allis-Chalmers Corp. v Lueck, 471 US 202, 220 [1985]). Here, as explained, the CBA relied upon by defendants when seeking to compel arbitration is not applicable to plaintiffs. Contrary to defendants' urging, plaintiffs' subsequent action to compel arbitration, which was unsuccessful, does not compel invocation of the doctrine of judicial estoppel, as they have not "secured a judgment in [their] favor" by assuming "a certain position in a prior legal proceeding," and then assumed "a contrary position in another action simply because [their] interests have changed" (Jones Lang Wootton USA v LeBoeuf, Lamb, Greene & MacRae, 243 AD2d 168, 176 [1998], lv dismissed 92 NY2d 962 [1998]).

Zurich Am. Ins. Co. v Illinois Natl. Ins. Co., 2012 NY Slip Op 02065 (1st, 2012)

Plaintiffs' argument that Illinois National is equitably estopped to deny coverage to Moretrench is unsupported by the record (see River Seafoods, Inc. v JPMorgan Chase Bank, 19 AD3d 120, 122 [2005]). The documentary evidence does not establish that Illinois National (through its agents) ever conceded that Moretrench was covered during the relevant period (2006). Nor could Moretrench have relied on any such concession years after the underlying complaint was filed and Illinois National disclaimed coverage. Moreover, Moretrench cannot invoke equitable estoppel against Illinois National on the basis of promises made by defendant [*2]Urban Foundation Engineering, LLC (the contractor that subcontracted with Moretrench).

Anderson v New York City Dept. of Educ., 2012 NY Slip Op 02056 (1st Dept., 2012)

The complaint was properly dismissed as barred by the doctrine of res judicata. Plaintiff's action arose out of the same set of circumstances as his prior article 78 proceeding, which was dismissed. "[O]nce a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if based upon different theories or if seeking a different remedy" (O'Brien v City of Syracuse, 54 NY2d 353, 357 [1981]; see Daved Fire Sys. Inc. v New York City Health & Hosps. Corp., 46 AD3d 364 [2007]).

Gomez v Brill Sec., Inc., 2012 NY Slip Op 01877 (1st Dept., 2012)

Hough v USAA Cas. Ins. Co., 2012 NY Slip Op 01549 (1st Dept., 2012)

Defendant's disclaimer of its duty to defend its insured in the underlying action does not bar it from asserting that its insured injured plaintiff intentionally, because that assertion is not a defense extending to the merits of plaintiff's personal injury claims against the insured (see Robbins v Michigan Millers Mut. Ins. Co., 236 AD2d 769, 771 [1997]). Since the underlying action culminated in a default judgment and the issue whether the insured's acts were intentional or negligent was not litigated, defendant is not collaterally estopped to assert in this action that its insured caused plaintiff's injuries intentionally (see id.). There is support for this assertion in the record (compare Rucaj v Progressive Ins. Co., 19 AD3d 270, 273 [2005] [insurer's defenses rejected as a matter of law]).

Since issues of fact exist whether the underlying incident was an "occurrence" within the meaning of the policy, i.e., an accident, or an intentional act outside the scope of coverage, which would render a disclaimer pursuant to Insurance Law § 3420(d) unnecessary, it cannot yet be determined whether defendant's noncompliance with the statute precludes it from disclaiming coverage (see Matter of Worcester Ins. Co. v Bettenhauser, 95 NY2d 185, 188-189 [2000]; Seneca Ins. Co. v Naprawa, 294 AD2d 183 [2002]).

3211(b) dismiss affirmative defenses

3211(b)

South Point, Inc. v Redman, 2012 NY Slip Op 03165 (2nd Dept., 2012)

The Supreme Court erred in determining that the doctrine of law of the case precluded the granting of the plaintiff's motion pursuant to CPLR 3211(b) to dismiss the affirmative defense asserted by the defendant Helen M. Prescod. The doctrine of law of the case "applies to determinations which were necessarily resolved on the merits in [a] prior order" (Hampton Val. Farms, Inc. v Flower & Medalie, 40 AD3d 699, 701; see Lehman v North Greenwich Landscaping, LLC, 65 AD3d 1293, 1294). Here, contrary to the Supreme Court's determination, the prior order at issue did not address the merits of Prescod's affirmative defense (see Lehman v North Greenwich Landscaping, LLC, 65 AD3d at 1294).

Nevertheless, we affirm the denial of the plaintiff's motion to dismiss Prescod's affirmative defense, albeit on a different ground from that relied upon by the Supreme Court (see [*2]Montalvo v Nel Taxi Corp., 114 AD2d 494, 494; see also Menorah Nursing Home v Zukov, 153 AD2d 13, 19). "A party may move for judgment dismissing one or more defenses, on the ground that a defense is not stated or has no merit" (CPLR 3211[b]). Upon such a motion, the movant bears the burden of demonstrating that a defense is not stated or is without merit as a matter of law (see Butler v Catinella, 58 AD3d 145, 148; Vita v New York Waste Servs., LLC, 34 AD3d 559, 559). The nonmoving defendant is "entitled to the benefit of every reasonable intendment of its pleading, which is to be liberally construed. If there is any doubt as to the availability of a defense, it should not be dismissed" (Federici v Metropolis Night Club, Inc., 48 AD3d 741, 743; see Butler v Catinella, 58 AD3d at 148).

Here, the plaintiff failed to satisfy its burden of demonstrating as a matter of law that the defense at issue was without merit. The defense was premised on Prescod's claim that she has a valid mortgage on the subject property with priority over the plaintiff's mortgage. Although the plaintiff raised numerous issues of fact regarding the validity of Prescod's mortgage, the manner in which it was procured, and the extent to which its existence was disclosed to the plaintiff's predecessor in interest, the plaintiff failed to offer evidence demonstrating as a matter of law that Prescod's defense was without merit (cf. Vita v New York Waste Servs., LLC, 34 AD3d at 559). Accordingly, the plaintiff was not entitled to the relief sought.

Stipulations

Albert Jacobs, LLP v Parker, 2012 NY Slip Op 02819 (2nd Dept., 2012)

"[A] written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms" (Greenfield v Philles Records, 98 NY2d 562, 569; see MHR Capital Partners LP v Presstek, Inc., 12 NY3d 640, 645). Here, the parties' written escrow agreement clearly enumerates certain conditions to the release of escrow funds. None of those conditions was met.

Altonen v Kmart of NY Holdings, Inc., 2012 NY Slip Op 02820 (2nd Dept., 2012)

The Supreme Court providently exercised its discretion in denying the defendants' cross motion to compel production of a confidential settlement agreement from certain prior personal injury actions unrelated to this action, as the settlement agreement is not material and necessary to their defense of this action (see CPLR 3101[a]; Allstate Ins. Co. v Belt Parkway Imaging, P.C., 70 AD3d 530; Matter of New York County Data Entry Worker Prod. Liab. Litig., 222 AD2d 381).

5015(a)(1)(4)

CPLR R. 5015 Relief from judgment or order
(a) On motion
(1) excusable default…
(2) newly-discovered evidence…
(3) fraud, misrepresentation, or other misconduct of an adverse party
(4) lack of jurisdiction to render the judgment or order
(5) reversal, modification or vacatur of a prior judgment or order upon which it is based

Mr. Ho Charter Serv., Inc. v Ho, 2012 NY Slip Op 03102 (1st Dept., 2012)

The order entered on or about August 1, 2011 is nonappealable, as it was entered on default within the meaning of CPLR 5511 (see Armin A. Meizlik Co. Inc. v L & K Jewelry Inc., 68 AD3d 530, 531 [2009]).

The motion to vacate the order entered on or about August 1, 2011 should have been granted, as defendant demonstrated a meritorious defense and a reasonable excuse for failing to appear at a preliminary conference (see Armin, 68 AD3d at 531; CPLR 5015[a][1]). Defendant showed that his failure to appear was neither willful nor a pattern of dilatory behavior, but was simply the result of illness and inadvertent law office failure. Indeed, defendant submitted affirmations by his attorneys stating that they failed to note the scheduled preliminary conference date set forth in two prior orders, that the primary attorney assigned to the case was sick and unable to attend the scheduled conference, and that a substitute attorney from the same law office had advised the court that she would not be able to arrive to the conference by the scheduled time (see Armin, 68 AD3d at 531; Chelli v Kelly Group, P.C., 63 AD3d 632 [2009]). 

Plaintiff's corporate records and the affidavits based on personal knowledge submitted by the parties, together with prior orders of the court that evaluated the evidence and denied plaintiff injunctive relief, demonstrate merit to the defense.

Feldman v Delaney, 2012 NY Slip Op 03133 (2nd Dept., 2012)

In an action to recover damages for medical malpractice, etc., the plaintiff Tuvia Feldman appeals from an order of the Supreme Court, Westchester County (Colabella, J.), entered April 15, 2011, which denied his motion (1) to vacate an order of the same court dated December 21, 2009, granting the application of the defendants Veronica B. Delaney, Nephrology Associates of Westchester, and Praveen Chander pursuant to 22 NYCRR 202.27 to dismiss the complaint insofar as asserted against those defendants upon his failure to proceed with the trial, and (2) to restore the action to the trial calendar.

ORDERED that the order entered April 15, 2011, is affirmed, with costs.

The appellant's motion, inter alia, to vacate an order dated December 21, 2009, granting the application of the defendants Veronica B. Delaney, Nephrology Associates of Westchester, and Praveen Chander pursuant to 22 NYCRR 202.27 to dismiss the complaint insofar as asserted against them, was properly denied, as it was not made within one year after service of a copy of the order with notice of entry (see CPLR 5015[a][1]; Wold v City of New York, 85 AD3d 776, 777; Valentin v City of New York, 73 AD3d 755, 756; Cazeau v Paul, 2 AD3d 477, 478; Lopez v Imperial Delivery Serv., 282 AD2d 190, 197). Furthermore, the one-year time period should not be extended in the exercise of discretion, since the appellant failed to demonstrate a reasonable excuse for his lengthy delay in moving, among other things, to vacate the order dated December 21, 2009 (see Valentin v City of New York, 73 AD3d at 756; Leinas v Long Is. Jewish Med. Ctr., 72 AD3d 905, 906; Carter v City of New York, 231 AD2d 485, 486). In any event, the appellant failed to demonstrate a reasonable excuse for his failure to proceed with the trial and a potentially meritorious cause of action (see CPLR 5015[a][1]; Schmitt v Jeyalingam, 71 AD3d 757; Nowell v NYU Med. Ctr., 55 AD3d 573, 574; Santiago v Santana, 54 AD3d 929, 930; Bollino v Hitzig, 34 AD3d 711).

Prudence v Wright, 2012 NY Slip Op 03157 (2nd Dept., 2012)

Where, as here, a defendant moves to vacate a judgment entered upon his or her default in appearing or answering the complaint on the ground of lack of personal jurisdiction, the defendant is not required to demonstrate a reasonable excuse for the default and a potentially meritorious defense (see Harkless v Reid, 23 AD3d 622, 622-623; Steele v Hempstead Pub Taxi, 305 AD2d 401, 402). Contrary to the determination of the Supreme Court, the defendant established entitlement to relief from default on the ground that she was not properly served with the summons and complaint pursuant to CPLR 308(4). The affidavit of service of the plaintiff's process server alleged that the process server attempted to deliver the summons and complaint to the defendant at her "dwelling house" or "usual place of abode," rather than her actual place of business, on January 19, 2009, at 7:17 P.M., January 26, 2009, at 6:51 A.M., and February 25, 2009, at 4:03 P.M. After all three unsuccessful attempts, the process server affixed a copy of the summons and complaint to the defendant's door and mailed a copy to the same address, which was alleged to be the defendant's "last known residence." Contrary to these averments in the affidavit of service, the defendant presented proof, inter alia, that the address where service was attempted, as alleged in the affidavit of service, was in fact her office address.

The defendant established that the plaintiff's process server failed to exercise "due diligence" in attempting to effectuate service pursuant to CPLR 308(1) or (2) before using the "affix and mail" method pursuant to CPLR 308(4) (JPMorgan Chase Bank, N.A. v Iancu Pizza, Ltd., 78 AD3d 902, 903 [internal quotation marks omitted]; see Lombay v Padilla, 70 AD3d 1010, 1012). [*2]Due diligence was not exercised because two of the three attempts at service were at times when the defendant could not reasonably be expected to be at work, a national holiday (January 19, 2009) and at 6:51 A.M. on January 26, 2009 (see Krisilas v Mount Sinai Hosp., 63 AD3d 887, 889; O'Connell v Post, 27 AD3d 630; Earle v Valente, 302 AD2d 353; Annis v Long, 298 AD2d 340). Furthermore, no attempt to effectuate service was made at the defendant's actual "dwelling place or usual place of abode" (JPMorgan Chase Bank, N.A. v Iancu Pizza, Ltd., 78 AD3d at 903 [internal quotation marks omitted]; see Earle v Valente, 302 AD2d at 353), nor did the process server make genuine inquiries to ascertain the defendant's actual residence or place of employment (see McSorley v Spear, 50 AD3d 652, 654; Estate of Edward S. Waterman v Jones, 46 AD3d 63, 66).

Under these circumstances, the service of the summons and complaint pursuant to CPLR 308(4) was defective as a matter of law (see JPMorgan Chase Bank, N.A. v Iancu Pizza, Ltd., 78 AD3d at 903; Earle v Valente, 302 AD2d at 354; Gurevitch v Goodman, 269 AD2d 355, 356). Since the Supreme Court had not acquired personal jurisdiction over the defendant, the default judgment entered against her was a nullity (see Fleisher v Kaba, 78 AD3d 1118, 1120; Steele v Hempstead Pub Taxi, 305 AD2d at 402). Accordingly, the defendant's motion, in effect, to vacate the judgment entered upon her default and to dismiss the complaint on the ground of lack of personal jurisdiction should have been granted.

We note that the action was timely commenced by filing the summons and complaint in the office of the Clerk of Kings County. Under the circumstances of this case, despite the dismissal of the complaint on the ground of lack of personal jurisdiction, the plaintiff should be permitted, if she be so advised, to re-serve the appellant within 120 days of the date of this decision and order (see CPLR 306-b; Gurevitch v Goodman, 269 AD2d at 356).

Rocco v Family Foot Ctr., 2012 NY Slip Op 03161 (2nd Dept., 2012)

Almost a year later, on April 20, 2010, Lombardi served the plaintiff with a copy of the order entered May 22, 2009, with notice of entry. The plaintiff was unaware that the complaint had been dismissed until she received the notice of entry of the order. The plaintiff then moved by notice of motion dated May 14, 2010, (a) pursuant to CPLR 5015(a)(1) to vacate the order entered May 22, 2009, (b) to restore the action to the trial calendar, and (c) pursuant to CPLR 3124 to compel Zawada to appear for a deposition. In the order appealed from, the Supreme Court denied the plaintiff's motion. The plaintiff appeals, and we reverse.

In order to vacate a default in opposing a motion pursuant to CPLR 5015(a)(1), the moving party is required to demonstrate a reasonable excuse for his or her default and a potentially meritorious opposition to the motion (see Thapt v Lutheran Med. Ctr., 89 AD3d 837, 837; Bazoyah v Herschitz, 79 AD3d 1081, 1081; Raciti v Sands Point Nursing Home, 54 AD3d 1014; Montague v Rivera, 50 AD3d 656, 657; St. Rose v McMorrow, 43 AD3d 1146). Here, the plaintiff established that her failure to oppose Zawada's motion was neither willful nor deliberate (see Raciti v Sands Point Nursing Home, 54 AD3d 1014; Simpson v Tommy Hilfiger U.S.A., Inc., 48 AD3d 389; Franco Belli Plumbing & Heating & Sons, Inc. v Imperial Dev. & Constr. Corp., 45 AD3d 634). Her attorney's affirmation established that the failure of the attorney's firm to diary the return date of Zawada's motion was inadvertent and an isolated incident.

The plaintiff also established that her opposition to Zawada's motion was potentially meritorious. In opposition to a motion pursuant to CPLR 3404 to dismiss the complaint for failure to prosecute, the plaintiff must "demonstrate a [potentially] meritorious cause of action, a reasonable excuse for the delay, and a lack of intent to abandon the action, and that the defendant[] would not be prejudiced by the delay" (Botsas v Grossman, 51 AD3d 617, 617). Here, the plaintiff demonstrated through the affidavit of her expert that she had a potentially meritorious cause of action (see Kahgan v Alwi, 67 AD3d 742; Rodriguez v United Parcel Serv., Inc. of Ohio, 17 AD3d 658, 658; Sanchez v Denkberg, 284 AD2d 446). The plaintiff also demonstrated a reasonable excuse for her delay in moving to restore the action to the trial calendar and her lack of intent to abandon the action through her attorney's affirmation and exhibits presented on the motion and in reply, which showed that her attorney had been diligently attempting to schedule the depositions, but was unable to do so as of the date of Zawada's motion (see Kahgan v Alwi, 67 AD3d 742; Rodriguez v United Parcel Serv., Inc. of Ohio, 17 AD3d at 658; Sanchez v Denkberg, 284 AD2d 446). In addition, the plaintiff demonstrated that Zawada and Lombardi would not suffer any prejudice if the action was restored to the trial calendar (see Kahgan v Alwi, 67 AD3d 742; Rodriguez v United Parcel Serv., Inc. of Ohio, 17 AD3d at 658; Sanchez v Denkberg, 284 AD2d 446). The plaintiff also acted promptly to cure her default upon learning of it (see Raciti v Sands Point Nursing Home, 54 AD3d at 1014). [*3]

In light of the foregoing, the plaintiff established that the Supreme Court improvidently exercised its discretion by denying those branches of her motion which were pursuant to CPLR 5015(a)(1) to vacate the order entered May 22, 2009, and to restore the action to the trial calendar (see Kahgan v Alwi, 67 AD3d 742). The Supreme Court also improvidently exercised its discretion in denying that branch of the plaintiff's motion which was pursuant to CPLR 3124 to compel Zawada to appear for a deposition before trial given Zawada's failure to comply with prior court orders (see CPLR 3124).

Accordingly, the Supreme Court should have granted the plaintiff's motion, and thereupon denied Zawada's motion to dismiss the complaint for failure to prosecute, and we remit the matter to the Supreme Court, Queens County, to schedule depositions.

Bill of Particulars “not to be used to obtain evidentiary material”

Fremont Inv. & Loan v Gentile, 2012 NY Slip Op 03136 (2nd Dept., 2012)

The purpose of a bill of particulars is to amplify the pleadings, limit the proof, and prevent surprise at trial (see Jones v LeFrance Leasing L.P., 81 AD3d 900, 902; Mendelson v Szczupak, 199 AD2d 479; Nuss v Pettibone Mercury Corp., 112 AD2d 744, 744). "A bill of particulars may not be used to obtain evidentiary material" (Nuss v Pettibone Mercury Corp., 112 AD2d at 744; see Tully v Town of N. Hempstead, 133 AD2d 657; Ginsberg v Ginsberg, 104 AD2d 482, 484).

Here, the appellant's demand for a bill of particulars improperly included requests for detailed information of an evidentiary nature (see Posh Pillows v Hawes, 138 AD2d 472, 474). Thus, the responses in the plaintiff's bill of particulars objecting to those demands constituted an adequate response. Accordingly, the Supreme Court properly denied that branch of the appellant's motion which was to preclude the plaintiff from giving evidence at trial with respect to the denials of and defenses to the appellant's counterclaim, as set forth in the plaintiff's bill of particulars.

Preliminary Injunction treated as Summary Judgment

Grand Aerie of Fraternal Order of Eagles v Mostrando, 2012 NY Slip Op 03139 (2nd Dept., 2012)

A "motion for a temporary injunction opens the record and gives the court authority to pass upon the sufficiency of the underlying pleading" (Guggenheimer v Ginzburg, 43 NY2d 268, 272). However, this power does not extend to an evaluation of conflicting evidence (see Livas v Mitzner, 303 AD2d 381, 382; Ratner v Steinberg, 259 AD2d 744). Accordingly, the motion court may not, on its own initiative, convert a motion for a preliminary injunction into one for summary judgment without giving adequate notice to the parties and affording them an opportunity to lay bare their proof (see Ugiri Progressive Community, Inc. v Ukwuozo, 57 AD3d 656, 657; 68 Burns New Holding, Inc. v Burns St. Owners Corp., 18 AD3d 857). Here, there is no indication in the record that the Supreme Court provided notice to the parties that the motion and cross motion for preliminary injunctive relief would be treated as a motion and cross motion for summary judgment, or that the parties agreed to chart a summary judgment course (see Moore v Ruback's Grove Campers' Assn., Inc., 85 AD3d 1220, 1221; Teri-Nichols Indus. Food Merchants, LLC v Elk Horn Holding Corp., 37 AD3d 198, 200). Accordingly, the Supreme Court erred in treating the motion and cross motion as if they were for summary judgment and determining them on that basis.

Under the unique factual circumstances of this case, we decline to exercise our discretion to determine that branch of Grand Aerie's motion which was for a preliminary injunction, or the cross motion for a preliminary injunction (see Moore v Ruback's Grove Campers' Assn., Inc., 85 AD3d at 1221; Byrne Compressed Air Equip. Co. v Sperdini, 123 AD2d 368, 369). Rather, we [*3]remit the matter to the Supreme Court, Westchester County, for further proceedings, including the determinations of that branch of the motion and the cross motion (see Ugiri Progressive Community, Inc. v Ukwuozo, 57 AD3d at 657).