General prayer for relief

Nehmadi v Davis, 95 AD3d 1181 (2nd Dept. 2012)

The buyer now argues that the Supreme Court was without authority to appoint the referee, as neither party requested such relief in their respective motions. The buyer's argument is without merit.

"The court may grant relief, pursuant to a general prayer contained in the notice of motion or order to show cause, other than that specifically asked for, to such extent as is warranted by the facts plainly appearing [in] the papers on both sides. It may do so if the relief granted is not too dramatically unlike the relief sought, and if the proof offered supports it and the court is satisfied that no one has been prejudiced by the formal omission to demand it specifically (Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C2214:5 at 84). Whether to grant such relief is discretionary with the court" (HCE Assoc. v 3000 Watermill Lane Realty Corp., 173 AD2d 774, 774-775 [1991] [citations omitted]; see Tirado v Miller, 75 AD3d 153 [2010]).

Here, the relief granted was not unrelated to the relief actually sought (cf. Condon v Condon, 53 AD2d 622 [1976]), particularly where the seller's opposition to the buyer's motion included a request that, should the seller's summary judgment motion be denied, the court "set[ ] an immediate time and place for closing." Moreover, the buyer was not prejudiced by the formal omission to demand the appointment of a referee specifically (see HCE Assoc. v 3000 Watermill Lane Realty Corp., 173 AD2d at 774-775; see also Mastandrea v Pineiro, 190 AD2d 841 [1993]; cf. Goldstein v Haberman, 183 AD2d 807 [1992]).

 

3211(b) dismiss affirmative defenses

3211(b)

Chestnut Realty Corp. v Kaminski, 95 AD3d 1254 (2nd Dept. 2012)

A party may move to dismiss a defense "on the ground that a defense is not stated or has no merit" (CPLR 3211 [b]). "In reviewing a motion to dismiss an affirmative defense, the court must liberally construe the pleadings in favor of the party asserting the defense and give that party the benefit of every reasonable inference" (Fireman's Fund Ins. Co. v Farrell, 57 AD3d 721, 723 [2008]; see Greco v Christoffersen, 70 AD3d 769, 771 [2010]). "[I]f there is any doubt as to the availability of a defense, it should not be dismissed" (Fireman's Fund Ins. Co. v Farrell, 57 AD3d at 723; see Becker v Elm A.C. Corp., 143 AD2d 965, 966 [1988]). Here, the Supreme Court should have granted that branch of the plaintiff's cross motion which was to dismiss the third affirmative defense, which asserted that the complaint failed to state a cause of action, since the complaint was sufficient to state a cause of action.

However, the Supreme Court properly denied that branch of the plaintiff's cross motion which was to dismiss the defendants' other affirmative defenses. Taking the allegations in the first and second affirmative defenses as true, the defendants sufficiently stated an affirmative defense of surrender by operation of law (see e.g. Riverside Research Inst. v KMGA, Inc., 68 NY2d at 691-692), and the plaintiff has not shown that this affirmative defense is without merit as a matter of law. Furthermore, taking the allegations in the fourth affirmative defense as true, the defendants sufficiently stated an affirmative defense of wrongful accounting (see Fireman's Fund Ins. Co. v Farrell, 57 AD3d at 723), and the plaintiff did not show that this affirmative defense is without merit as a matter of law.

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

5701 and Appellate Procedure

CPLR § 5701 Appeals to appellate division from supreme and county courts

US Bank Natl. Assn. v Cange, 2012 NY Slip Op 04735 (2nd Dept. 2012)

The appeal from the order dated September 20, 2011, must be dismissed, as it was superseded by the order entered December 22, 2011. In any event, "[a]n order directing a hearing to aid in the determination of a motion does not dispose of the motion and does not affect a substantial right, and therefore is not appealable as of right" (Kornblum v Kornblum, 34 AD3d 749, 751; see CPLR 5701[a][2][v]; Iodice v City of White Plains, 60 AD3d 730) and leave to appeal from the order dated September 20, 2011, was not granted.

Baez v First Liberty Ins. Corp., 95 AD3d 1250 (2nd Dept. 2012)

The defendant appeals from so much of the order as made that determination. The appeal must be dismissed, however, as findings of fact and conclusions of law are not independently appealable (see Soehngen v Soehngen, 58 AD3d 829, 830 [2009]; Higgins v Higgins, 50 AD3d 852, 852 [2008]; Cosh v Cosh, 45 AD3d 798, 799 [2007]; Griggs v Griggs, 44 AD3d 710, 711 [2007]; ELRAC, Inc. v Belessis, 303 AD2d 445, 446 [2003]; Naar v Litwak & Co., 260 AD2d 613, 614 [1999]).

Remittitur or Remand

CPLR § 5524

Glassman v ProHealth Ambulatory Surgery Ctr., Inc., 2012 NY Slip Op 04713 (2nd Dept. 2012)

Upon an opinion of the Court of Appeals dated June 3, 2010, this matter was remitted to the Supreme Court, Nassau County, to determine whether the defendants were entitled, under the terms of the parties' employment agreement, to a setoff derived from certain specified funds, if any, held by the plaintiff, against the amount of the plaintiff's recovery in this action (see Glassman v ProHealth Ambulatory Surgery Ctr., Inc., 14 NY3d 898). The defendants contend, however, that contrary to the Supreme Court's interpretation of the Court of Appeals' decision and order, the remittal instructions did not preclude the Supreme Court from entertaining and granting their motion for leave to renew their prior motion for leave to amend their answer to include an affirmative defense based on breach of contract, and a counterclaim based on breach of fiduciary duty, and thereupon awarding them summary judgment dismissing the complaint based on the proposed affirmative defense and on the proposed counterclaim.

"[A] trial court, upon a remand or remittitur, is without power to do anything except to obey the mandate of the higher court, and render judgment in conformity therewith" (United States v Pink, 36 NYS2d 961, 965). "The judgment or order entered by the lower court on a remittitur must conform strictly to the remittitur, and it cannot afterwards be set aside or modified by the lower court" (Matter of Minister, Elders & Deacons of Refm. Protestant Dutch Church of City of N.Y. v Municipal Ct. of City of N.Y., Borough of Manhattan, 185 Misc 1003, 1007, affd 270 App Div 993, affd 296 NY 822).

If the remittitur is erroneous in any respect, or if there is any uncertainty as to the effect of the language employed, the appropriate remedy is an application to amend it (see CPLR 5524; Matter of Minister, Elders & Deacons of Refm. Protestant Dutch Church of City of N.Y. v Municipal Ct. of City of N.Y., Borough of Manhattan, 185 Misc at 1006). Contrary to the defendants' contention, the Supreme Court correctly adhered to the terms of the Court of Appeals' remittitur in this matter (cf. Wiener v Wiener, 10 AD3d 362, 362).

The defendants' remaining contentions are either barred by the law of the case doctrine (see Rubeo v National Grange Mut. Ins. Co., 93 NY2d 750, 754; RPG Consulting, Inc. v Zormati, 82 AD3d 739, 740), since they were previously determined by this Court (see Glassman v ProHealth Ambulatory Surgery Ctr., Inc., 55 AD3d 538, revd on other grounds 14 NY3d 898), or without merit.

 Glassman v ProHealth Ambulatory Surgery Ctr., Inc., 2012 NY Slip Op 04714 (2nd Dept. 2012)

The defendants are not aggrieved by so much of the order appealed from as granted that branch of their motion which was to discharge or cancel an appeal bond filed by them on January 22, 2009 (see CPLR 5511; Mixon v TBV, Inc., 76 AD3d 144). Moreover, the appeal from so much of the order as denied that branch of the defendants' motion which was to discharge or cancel an appeal bond filed by them on May 23, 2007, has been rendered academic, since the initial judgment that the bond was meant to secure has been superseded by an amended judgment entered August 10, 2011. Further, findings of fact and conclusions of law which do not grant or deny relief are not independently appealable (see Matter of Flamenbaum,AD3d, 2012 NY Slip Op 04165, *2 [2d Dept 2012]; Ramirez v City of New York, 90 AD3d 1009, 1009; Verderber v Commander Enters. Centereach, LLC, 85 AD3d 770, 771). Thus, no appeal lies from so much of the order as determined that the plaintiff is entitled to enforce an interlocutory judgment, entered on the consent of the parties, that awarded him an attorney's fee. The mere fact that the order appealed from contains language which the defendants deem adverse to their interests does not render them aggrieved by that order (see Pennsylvania Gen. Ins. Co. v Austin Powder Co., 68 NY2d 465, 472-473; Mixon v TBV, Inc., 76 AD3d at 148-149). In any event, the award of the attorney's fee pursuant to the interlocutory judgment was incorporated into the amended judgment entered August 10, 2011, which we are affirming in a companion appeal (see Glassman v ProHealth Ambulatory Surgery Ctr., Inc.,AD3d [Appellate Division Docket No. 2011-08249, decided herewith]).

Joint Trial/Consolidation 602

CPLR § 602 Consolidation
(a) Generally
(b) Cases pending in different courts

Alizio v Feldman, 2012 NY Slip Op 05378 (2nd Dept. 2012)

Where, as here, common questions of law or fact exist, a motion pursuant to CPLR 602(a) for a joint trial should be granted absent a showing of prejudice to a substantial right of the party opposing the motion (id. at 1088; see Mas-Edwards v Ultimate Servs., Inc., 45 AD3d 540, 540; Perini Corp. v WDF, Inc., 33 AD3d 605, 606). Here, the defendants failed to show prejudice to a substantial right if this action is joined with others for trial (see Moor v Moor, 39 AD3d 507, 507-508). Moreover, mere delay is not a sufficient basis to justify the denial of a joint trial (see Perini Corp. v WDF, Inc., 33 AD3d at 606; Alsol Enters., Ltd. v Premier Lincoln-Mercury, Inc., 11 AD3d 494, 496).

Accordingly, the Supreme Court should have granted the plaintiffs' motion to join this action for trial with the action entitled Alizio v Perpignano, pending in the Supreme Court, Nassau County, and several related actions previously joined for trial.

Matter of Matter of Rostkowski v Baginski, 2012 NY Slip Op 05177 (2nd Dept. 2012)

The petitioner's contention that the Family Court acted improperly by consolidating his petition with a petition in a related case is without merit. Although it is true that a court may not order consolidation sua sponte (see CPLR 602[a]; AIU Ins. Co. v ELRAC, Inc., 269 AD2d 412; Matter of Amy M., 234 AD2d 854, 855), here, there was no consolidation. The individual petitions were left intact. They were merely brought together to be heard on the same day. The captions of the individual petitions remained the same, and different determinations were rendered in separate orders.

Hae Sheng Wang v Pao-Mei Wang, 2012 NY Slip Op 05141 (2nd Dept. 2012)

The plaintiffs' cause of action alleging breach of contract involves issues of law and fact in common with those in the holdover proceeding pending in the Civil Court, and most of the parties are the same. "Where common questions of law or fact exist, a motion to consolidate [pursuant to CPLR 602(b)] should be granted absent a showing of prejudice to a substantial right by the party opposing the motion" (Kally v Mount Sinai Hosp., 44 AD3d 1010, 1010). The defendant did not make a showing that removal and consolidation would prejudice a substantial right. Therefore, those branches of the plaintiffs' motion which were to stay the holdover proceeding, to remove it to the Supreme Court, Queens County, and to consolidate it with this action should have been granted (see CPLR 602[b]; Kally v Mount Sinai Hosp., 44 AD3d at 1010-1011).

The case also has a discussion about res judicata.

 

Personal Jurisdiction. Forum Non Con. Venue. Forum Selection.

CPLR R. 3211(a)(7)  pleading fails to state a cause of action

CPLR § 6301 Grounds for preliminary injunction and temporary restraining order

CPLR R. 327 Inconvenient forum

CPLR § 510 Grounds for change of place of trial

CPLR R. 511 Change of place of trial

Cantalupo Constr. Corp. v 2319 Richmond Terrace Corp., 2012 NY Slip Op 04310 (2nd Dept. 2012)

Given the circumstances of this case, and in the interests of justice and judicial economy, the Supreme Court should have granted that branch of the plaintiff's motion which was to remove the summary nonpayment proceeding pending in Civil Court, Richmond County, to the Supreme Court, Richmond County, and to consolidate that proceeding with the instant action for specific performance of an alleged agreement to purchase the subject property (see Richmond Amboy Realty, LLC v 3881 Richmond Ave. Realty, Inc., 72 AD3d 783; Kally v Mount Sinai Hosp., 44 AD3d 1010, 1010-1011; Morrell & Co. Wine Emporium v Richalan Realty Corp., 93 AD2d 736, 737).

Gliklad v Cherney, 2012 NY Slip Op 05333 (1st Dept. 2012)

The IAS court erred in granting plaintiff's motion to strike defendant's affirmative defense of lack of personal jurisdiction. Contrary to plaintiff's contention, defendant did not waive this defense by moving for summary judgment dismissing the complaint on the merits, given that defendant had previously raised the jurisdictional defense. Competello v Giorando (51 NY2d 904 [1980]) is distinguishable, as the defendant in that case failed to raise the defense of lack of personal jurisdiction in a motion pursuant to CPLR 3211(a)(7).

Defendant failed to meet his burden of establishing that New York is an inconvenient forum for this action (see Islamic Republic of Iran v Pahlavi, 62 NY2d 474, 478-479 [1984], cert denied 469 US 1108 [1985]). Further, the subject promissory note contained a clause selecting New York as the forum, barring defendant's forum non conveniens motion (see Sebastian Holdings, Inc. v Deutsche Bank AG., 78 AD3d 446, 447 [2010]).

The court properly granted plaintiff's motion for a preliminary injunction barring defendant from prosecuting the action he had commenced in Israel over the same promissory note at issue in the instant action. A party moving for a preliminary injunction must establish a likelihood of success on the merits, irreparable harm if the injunction were not granted, and a balance of the equities in the movant's favor (see W.T. Grant Co. v Srogi, 52 NY2d 496, 517 [1981]; Casita, L.P. v MapleWood Equity Partners [Offshore] Ltd., 43 AD3d 260 [2007]). Here, even if defendant may have a meritorious defense, plaintiff made a prima facie showing that his claim under the promissory note has merit (see Matter of Witham v Finance Invs., Inc., 52 AD3d 403 [2008]; Bingham v Struve, 184 AD2d 85 [1992]). Plaintiff also established a risk that he would suffer irreparable harm if he were to travel to Israel to litigate the other action, since this act might jeopardize his Canadian asylum status. In addition, the balance of the equities favors plaintiff, since the expenditures of time and resources by the parties and the court would be potentially wasted if the Israeli action, which defendant commenced one-and-a-half years after the commencement of the instant action, were to result in a decision precluding any decision the court might have reached in this case (see Jay Franco & Sons Inc. v G Studios, LLC, 34 AD3d 297 [2006]).

Further, defendant appeared to be forum shopping by attempting to obtain a favorable decision from the Israeli court, which would interfere with the New York court's ability to resolve the issues before it (see IRB-Brasil Resseguros S.A. v Portobello Intl. Ltd., 59 AD3d 366 [2009]).

Finally, the court did not err in denying defendant's motion to renew. Contrary to defendant's contention that the court should have ordered plaintiff to post an undertaking to cover defendant's damages in the event the injunction were found to have been erroneously issued, the injunction would actually save both parties time and money by relieving them from the burden of litigating a second action (see Ithilien Realty Corp. v 180 Ludlow Dev. LLC, 80 AD3d 455 [2011]; Visual Equities Inc. v Sotheby's, Inc., 199 AD2d 59 [1993]).

Pratik Apparels, Ltd. v Shintex Apparel Group, Inc., 2012 NY Slip Op 04985 (2nd Dept. 2012)

"A contractual forum selection clause is prima facie valid and enforceable unless it is shown by the challenging party to be unreasonable, unjust, in contravention of public policy, invalid due to fraud or overreaching, or it is shown that a trial in the selected forum would be so gravely difficult that the challenging party would, for all practical purposes, be deprived of its day in court. Absent a strong showing that it should be set aside, a forum selection agreement will control" (Hluch v Ski Windham Operating Corp., 85 AD3d 861, 862 [internal quotation marks and citations omitted]; see Bernstein v Wysoki, 77 AD3d 241, 248-249; Stravalle v Land Cargo, Inc., 39 AD3d 735, 736). "Forum selection clauses are enforced because they provide certainty and predictability in the resolution of disputes, particularly those involving international business agreements" (Brooke Group v JCH Syndicate 488, 87 NY2d 530, 534). Here, the forum selection clause contained in the subject bill of lading submitted by the defendant Classic Logistics, Inc. (hereinafter Classic), conclusively established that the plaintiff's action against Classic must be brought in federal court (see CPLR 3211[a][1]; W.J. Deutsch & Sons, Ltd. v Charbaut Am., Inc., 57 AD3d 529, 530). The plaintiff failed to show that enforcement of the forum selection clause would be unreasonable, unjust, or would contravene public policy, or that the clause is invalid because of fraud or overreaching (see Bernstein v Wysoki, 77 AD3d at 249-250; Best Cheese Corp. v All-Ways Forwarding Int'l. Inc., 24 AD3d 580, 581; Koko Contr. v Continental Envtl. Asbestos Removal Corp., 272 AD2d 585, 586).

Kassotis v Kassotis, 2012 NY Slip Op 05148 (2nd Dept. 2012)

Under the circumstances of this case, the Supreme Court providently exercised its discretion in granting the plaintiff's cross motion to the extent it did, and in denying the defendant's motion without prejudice to renewal in the Family Court, Westchester County (see CPLR 510[3]; McCarthy v McCarthy, 49 AD3d 696, 697). The parties have litigated issues relating to child support in the Family Court, Westchester County, since 2006. The so-ordered stipulation, which the defendant seeks to modify, was entered in the Family Court, Westchester County. Further, the petitions filed by the defendant in the Family Court, Westchester County, are apparently still pending, as the defendant filed objections to the Support Magistrate's order denying the petitions. The Family Court, Westchester County, is familiar with the issues in the matter, while the Supreme Court, Queens County, has not been involved with the parties since the judgment of divorce was entered in February 1999. In addition, the defendant and the parties' children reside in Westchester County, and it appears that most of the material witnesses are in Westchester County (see CPLR 510[3]; McCarthy v McCarthy, 49 AD3d at 697).

Pruitt v Patsalos, 2012 NY Slip Op 04986 (2nd Dept. 2012)

ORDERED that the order is reversed, on the facts and in the exercise of discretion, with costs, the plaintiffs' motion pursuant to CPLR 510(2) to change the venue of the action from Orange County to Dutchess County is granted, and the Clerk of the Supreme Court, Orange County, is directed to deliver to the Clerk of the Supreme Court, Dutchess County, all papers filed in the action and certified copies of all minutes and entries (see CPLR 511[d]).

To obtain a change of venue pursuant to CPLR 510(2), a movant is required to produce admissible factual evidence demonstrating a strong possibility that an impartial trial cannot be obtained in the county where venue was properly placed (see Matter of Michiel, 48 AD3d 687; Jablonski v Trost, 245 AD2d 338, 339; Albanese v West Nassau Mental Health Ctr., 208 AD2d 665, 666). Under the circumstances of this case, including the evidence demonstrating that the defendant is a retired Orange County Supreme Court Justice, who presided in that court for more than two decades, that his relative is a retired Orange County Court Judge, and that the defendant's daughter is a Support Magistrate in the Orange County Family Court, the protection of the court from even a possible appearance of impropriety requires a change of the venue of the action from Orange County to Dutchess County (see Saxe v OB/GYN Assoc., 86 NY2d 820, 822; Kavelman v Taylor, 245 AD2d 9; Milazzo v Long Is. Light. Co., 106 AD2d 495).

 

Account Stated

Citibank (South Dakota), N.A. v Brown-Serulovic, 2012 NY Slip Op 05381 (2nd Dept. 2012)

Here, the plaintiff failed to make a prima facie showing of its entitlement to judgment as a matter of law on the cause of action to recover on an account stated. The plaintiff did not submit sufficient evidence to establish that the defendant retained the account statements without objecting to them within a reasonable period of time. While an employee who reviewed the plaintiff's records stated by affidavit that the credit card statements were mailed to the defendant on a monthly basis, she failed to aver that the defendant retained these statements for a reasonable period of time without objecting to them (see American Express Centurion Bank v Cutler, 81 AD3d at 762). The plaintiff also submitted three checks as evidence of partial payments on the account statements. Two of these checks, however, were for payment of the full amount owed on the account at the time and predated the disputed charges. The third check, in the sum of $300, only reflected a small proportion of the debt owed at the time, approximately $19,000, and by itself, did not create an inference of assent (see [*2]Landau v Weissman, 78 AD3d at 662; Construction & Mar. Equip. Co. v Crimmins Constr. Co., 195 AD2d 535). Accordingly, the plaintiff failed to establish its entitlement to judgment as a matter of law on its cause of action to recover on an account stated (see Raytone Plumbing Specialities, Inc. v Sano Constr. Corp., 92 AD3d 855, 856; American Express Centurion Bank v Cutler, 81 AD3d at 762; Citibank [SD] N.A. v Goldberg, 24 Misc 3d 143[A], 2009 NY Slip Op 51735[U] [2009]).

The plaintiff made a prima facie showing of entitlement to judgment as matter of law on its cause of action to recover damages for breach of contract (see Citibank [S.D.] N.A. v Sablic, 55 AD3d 651, 652). The plaintiff tendered sufficient evidence that there was an agreement, which the defendant accepted by her use of the credit card and payments made thereon, and which was breached by the defendant when she failed to make required payments (id.; see Feder v Fortunoff, Inc., 114 AD2d 399; FIA Card Servs., N.A. v DiLorenzo, 22 Misc 3d 1127[A], 2009 NY Slip Op 50305[U] [2009]). However, the defendant, in opposition, tendered evidence that she objected to charges with the plaintiff, inaccuracies allegedly resulted from the defendant being mistaken for a similarly named individual, and that the defendant raised the alleged inaccuracies with the credit reporting agencies. Therefore, the defendant raised a triable issue of fact on the cause of action to recover damages for breach of contract (see Zuckerman v City of New York, 49 NY2d 557, 562).

 

Order of reference: CPLR R 4311

CPLR R. 4311

Matter of Gale v Gale, 87 AD3d 1011 (2nd Dept. 2012)

A referee derives authority from an order of reference by the court (see CPLR 4311), which can be made only upon the consent of the parties, except in limited circumstances not applicable here (see CPLR 4317; Matter of Stewart v Mosley, 85 AD3d 931 [2011]; Allison v Allison, 28 AD3d 406, 406 [2006], cert denied 549 US 1307 [2007]; Fernald v Vinci, 302 AD2d 354, 355 [2003]; McCormack v McCormack, 174 AD2d 612 [1991]). Upon review of the record, we find that the parties did not stipulate to a reference in the manner prescribed by CPLR 2104. In any event, there is no indication that there was an order of reference designating the referee who heard and determined the petitions at issue here (see McCormack v McCormack, 174 AD2d 612 [1991]; cf. Allison v Allison, 28 AD3d at 406-407).

Contrary to the mother's contention, the father did not implicitly consent to the reference merely by participating in the proceeding without expressing his desire to have the matter tried before a judge (see McCormack v McCormack, 174 AD2d at 613). To the extent that certain dicta in Chalu v Tov-Le Realty Corp. (220 AD2d 552, 553 [1995]) may suggest a different conclusion, it is not to be followed. [*2]

Furthermore, a stipulation consenting to a reference to a specified referee, executed by the parties in connection with the father's previous petition to modify the visitation schedule, expired upon completion of that matter and did not remain in effect for this matter.

Accordingly, the referee had no jurisdiction to consider the father's petitions related to custody and visitation and the mother's petition to modify custody, and the referee's order determining those petitions must be reversed (see Matter of Stewart v Mosley, 85 AD3d 931 [2011]; Fernald v Vinci, 302 AD2d at 355; McCormack v McCormack, 174 AD2d 612 [1991]).

Edwards v Wells, 2012 NY Slip Op 05387 (2nd Dept. 2012)

"An order of reference shall direct the referee to determine the entire action or specific issues, to report issues, to perform particular acts, or to receive and report evidence only. It may specify or limit the powers of the referee and the time for the filing of his report and may fix a time and place for the hearing" (CPLR 4311). "[A] Referee's authority is derived from the order of reference and a Judicial Hearing Officer who attempts to determine matters not referred to him [or her] by the order of reference acts beyond and in excess of his [or her] jurisdiction" (McCormack v McCormack, 174 AD2d 612, 613, citing CPLR 4311; see Carrero v Dime Contrs., 29 AD3d 506, 507; Matter of Eagle Ins. Co. v Suleymanova, 289 AD2d 404, 404). Here, the order of reference expressly limited the issue referred to a court attorney referee (hereinafter the referee) to a "Traverse Hearing on [the] issue of personal service." The referee found that the defendant was properly served with process. However, she then, in effect, recommended that the Supreme Court grant the defendant's motion to vacate his default in appearing or answering on grounds unrelated to service. Thus, the referee exceeded her authority by determining matters not referred to her (see CPLR 4311; Carrero v Dime Contrs., 29 AD3d at 507; Rihal v Kirchhoff, 274 AD2d 567, 567; see also Matter of Eagle Ins. Co. v Suleymanova, 289 AD2d at 404; McCormack v McCormack, 174 AD2d at 613). Accordingly, the Supreme Court erred in, sua sponte, confirming the referee's report, and, thereupon, inter alia, vacating the defendant's default, directing the defendant to serve and file his answer within 30 days from the date of the order, and setting the matter down for a preliminary conference. Since [*2]the defendant's motion to vacate his default in appearing or answering is still pending, we remit the matter to the Supreme Court, Kings County, for a determination of that motion on the merits.

Motion to strike. Motion to quash

22 NYCRR 202.21 Note of issue and certificate of readiness

CPLR § 3101 Scope of disclosure

Jacobs v Johnston, 2012 NY Slip Op 05390 (2nd Dept. 2012)

Since the defendant moved to vacate the note of issue within the time prescribed for doing so pursuant to 22 NYCRR 202.21(e), and clearly demonstrated that the case was not ready for trial, that branch of the defendant's motion which was to vacate the note of issue and, in effect, to compel the deposition of a nonparty witness should have been granted (see CPLR 2103[b][2]; Gallo v SCG Select Carrier Group, L.P., 91 AD3d 714; Tirado v Miller, 75 AD3d 153, 157). Furthermore, since the defendant timely moved to vacate the note of issue, he was required only to demonstrate why the case was not ready for trial, and was not required to establish that additional discovery was necessary because unusual or unanticipated circumstances had developed subsequent to the filing of the note of issue (see 22 NYCRR 202.21[d], [e]; Mosley v Flavius, 13 AD3d 346; Rizzo v DeSimone, 287 AD2d 609, 610; Perla v Wilson, 287 AD2d 606; Audiovox Corp. v Benyamini, 265 AD2d 135, 139).

In opposition to the plaintiff's cross motion to quash the subpoena served by the defendant upon the nonparty witness, the defendant demonstrated, inter alia, that the disclosure sought was relevant, material, and necessary to the defense of the action (see CPLR 3101[a][4]; Kondratick v Orthodox Church in Am., 73 AD3d 708, 709; Tenore v Tenore, 45 AD3d 571, 571-572; [*2]Thorson v New York City Tr. Auth., 305 AD2d 666; Maxwell v Snapper, Inc., 249 AD2d 374). Contrary to the plaintiff's contention, the defendant did not waive his right to seek discovery from the nonparty witness by failing to raise an objection with respect thereto at the certification conference. Since the identity of the nonparty witness was not made known to the defendant until after the date of the certification conference, and the defendant timely moved to vacate the note of issue, the defendant could not be deemed to have waived his right to compel the nonparty witness to comply with the subpoena and to appear for a deposition (cf. Jones v Grand Opal Constr. Corp., 64 AD3d 543, 544; James v New York City Tr. Auth., 294 AD2d 471, 472). Accordingly, the plaintiff's cross motion to quash the subpoena should have been denied.

 

Stipulations

CPLR R. 2104 Stipulations

Florimon v Xianglin Xu, 2012 NY Slip Op 05388 (2nd Dept. 2012)

On November 27, 2007, the day of trial, the attorneys for both parties drafted a stipulation of settlement. The stipulation changed certain portions of the contract of sale, including increasing the purchase price from $380,000 to $403,500, and provided that the closing was to take place within 45 days from the signing of the agreement. The stipulation provided that it was not binding until it was executed by one of the defendants.

On December 3, 2007, the defendants returned the signed stipulation of settlement to the plaintiff with two handwritten modifications. Upon receipt of the stipulation, the plaintiff informed the defendants that he did not consent to the modifications and requested that the defendants "forward an original signed stipulation . . . at [their] earliest convenience." The plaintiff contended that the defendants never returned to him the original stipulation without the modifications. The defendants dispute this contention.

Thereafter, the defendants sought to enforce the unmodified stipulation drafted by the parties' attorneys on November 27, 2007, and the plaintiff opposed the motion. In the order appealed from, the Supreme Court denied the defendants' motion, inter alia, to enforce the unmodified stipulation on the ground that it was not binding, and granted the plaintiff's cross motion pursuant to CPLR 3025 for leave to amend the complaint to add a cause of action for the return of a down payment. Upon the order, and after a nonjury trial, judgment was entered in favor of the plaintiff and against the defendants. The defendants appeal and we reverse the judgment.

The record demonstrates that an unmodified version of the stipulation of settlement was executed by one of the defendants. Contrary to the plaintiff's argument, whether the unmodified stipulation was delivered to the plaintiff was irrelevant, as there was no requirement obligating the defendants to physically deliver the stipulation to the plaintiff in order to enforce it (see Morgan Servs., Inc. v Abrams, 21 AD3d 1284, 1285; Bohlen Indus. of N. Am. v Flint Oil & Gas, 106 AD2d 909, 910; Birch v McNall, 19 AD2d 850, 850; cf. Brois v DeLuca, 154 AD2d 417). Thus, the unmodified stipulation was binding, and that branch of the defendants' motion which was to enforce the unmodified stipulation should have been granted.