You are here: / Civil Procedure
, , , , ,

THE ARBITRATION AWARD IS VALID EVEN IF BASED ON AN ERROR OF LAW OR FACT; THE FAILURE TO PROVIDE A LETTER OF ENGAGEMENT DID NOT PRECLUDE THE ATTORNEY’S ACTION FOR BREACH OF CONTRACT; CPLR 5225 DOES NOT REQUIRE A SPECIAL PROCEEDING TO ENFORCE THE JUDGMENT (FIRST DEPT).

The First Department, reversing Supreme Court, determined (1) the arbitrator’s award was valid even if an error of law or fact was made; (2) the failure to provide a letter of engagement did not preclude the petitioner-attorney’s action for breach of contract; (3) petitioner was not required to commence a special proceeding to enforce the judgment; (4) the motions to enforce the judgement do not violate the Commercial Division rules:

… [E]ven if the arbitrator had made an error of law or fact in concluding that respondents had breached the retainer agreements, this alone would not justify vacating the award … . …

… [T]he court improperly denied the motions [to enforce the judgment] based upon its finding that petitioner had failed to commence a separate special proceeding to enforce the judgment. The language of CPLR 5225 clarifies that the court had jurisdiction to resolve the turnover motion. While CPLR 5225(a) provides that a judgment creditor seeking turnover of money or personal property “in possession or custody” of the judgment debtor does so “[u]pon motion of the judgment creditor,” CPLR 5225(b) provides that a judgment creditor seeking turnover of money or personal property in a third party’s possession or custody does so “[u]pon a special proceeding commenced by the judgment creditor” … Given that petitioner brought the motions against the judgment debtor as opposed to a third party, it was not required to commence a separate proceeding. Matter of Gibson, Dunn & Crutcher LLP v World Class Capital Group, LLC, 2021 NY Slip Op 03252, First Dept 5-20-21

 

, ,

THE JUDGE SHOULD NOT HAVE, SUA SPONTE, DISMISSED THE COMPLAINT BECAUSE PLAINTIFF MISSED A STATUS CONFERENCE; THE SUA SPONTE ORDER IS NOT APPEALABLE; PLAINTIFF CORRECTLY MOVED TO VACATE THE ORDER AND APPEALED THE DENIAL (FIRST DEPT).

The First Department, reversing Supreme Court, determined the judge should not have, sua sponte, dismissed the complaint because plaintiff missed a status conference. The First Department noted that the sua sponte dismissal order was not appealable as of right. Therefore plaintiff correcting moved to vacate the order and then appealed the denial of that order:

Contrary to defendant Hudson’s argument, the status conference order sua sponte dismissing the complaint was not appealable as of right (CPLR 5701[a][2] …). Plaintiff followed proper procedure by “apply[ing] to vacate the order and then appeal[ing] from the denial of that motion so that a suitable record [could] be made and counsel afforded the opportunity to be heard on the issues” … .

The court improvidently exercised its discretion in imposing the extreme penalty of dismissal without giving plaintiff notice that such a sanction might be imminent … . Further, the sanction of dismissal was not warranted, and would not have been warranted even upon a motion on notice, based on plaintiff’s noncompliance with one order … . MJC Elec., Inc v Hudson Meridian Constr. Group, LLC, 2021 NY Slip Op 03258, First Dept 5-20-21

 

, ,

A GENERAL RELEASE AND WAIVER WHICH IS CONTRADICTED BY ACTIONS WHICH POST-DATE THE DOCUMENT CANNOT BE CONSTRUED AS A RELEASE; THE JUDGE DID NOT HAVE THE POWER, SUA SPONTE, PURSUANT TO CPLR 5019, TO VACATE THE COURT’S OWN ORDER (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined (1) actions which post-date a release and waiver which conflict with the terms of the release and waiver indicate the document can not be construed as a release, and (2) the judge did not have the authority, sua sponte, to vacate the court’s own order:

“‘Where a waiver form purports to acknowledge that no further payments are owed, but the parties’ conduct indicates otherwise, the instrument will not be construed as a release'” … . …

The Supreme Court erred in, sua sponte, vacating the December 2016 order. “‘Pursuant to CPLR 5019(a), a trial court has the discretion to correct an order or judgment which contains a mistake, defect, or irregularity not affecting a substantial right of a party, or is inconsistent with the decision upon which it is based. However, a trial court has no revisory or appellate jurisdiction, sua sponte, to vacate its own order or judgment'” … . Additionally, “[p]ursuant to CPLR 5015(a), a court may relieve a party from an order or judgment, but only ‘on motion of [an] interested person’ and ‘with such notice as the court may direct” … .

Here, to the extent that the Supreme Court was acting pursuant to CPLR 5019(a), the court erred, since that statute cannot be used by courts to vacate prior orders or judgments or “reconsider[ ] the merits of summary judgment” … . United Airconditioning Corp. v Axis Piping, Inc.2021 NY Slip Op 03210, Second Dept 5-19-21

 

, ,

MANDAMUS PETITION TO COMPEL JUDGES TO ISSUE A WRITTEN ORDER DECIDING PETITIONER’S MOTION TO REARGUE HIS MOTION TO VACATE HIS CONVICTION GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, granted the petition to compel judges to issue a written order denying petitioner’s motion to reargue a motion to vacate his conviction:

Under the circumstances of this case, the petitioner demonstrated a clear legal right to a written order determining his motion for leave to reargue his prior motion pursuant to CPL 440.10, in the action entitled People v Cruz … and mandamus properly lies to compel the respondents to issue that written order, as well as an order determining the petitioner’s motion to reargue the “bench decision” … . Matter of Cruz v D’Emic, 2021 NY Slip Op 03175, Second Dept 5-19-21

 

, ,

APPELLANT PURCHASED THE PROPERTY WHILE THE FORECLOSURE ACTION WAS PENDING; APPELLANT’S MOTION TO INTERVENE SHOULD HAVE BEEN GRANTED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined appellant’s motion to intervene in this foreclosure action should have been granted:

The plaintiff commenced this action to foreclose a mortgage given by the defendant Kathleen O. Nocella. Nocella defaulted in appearing in the action. During the pendency of the action, nonparty Henry Irving, LLC (hereinafter the appellant), acquired title to the subject property. In September 2017, the plaintiff moved, inter alia, for leave to enter a default judgment and for an order of reference. The appellant cross-moved, inter alia, for leave to intervene in the action. …

The appellant was entitled to intervene as of right pursuant to CPLR 1012(a) since it established that the representation of its interest by the parties would be inadequate, that the action involved the disposition of title to real property, and that it would be bound and adversely affected by a judgment of foreclosure and sale (see CPLR 1012[a][2], [3]; 6501 …). Contrary to the court’s determination, neither the fact that the appellant obtained its interest in the subject property after this action was commenced and the notice of pendency was filed, nor the fact that the defendants defaulted in answering or appearing, definitively bars intervention … . Moreover, since the appellant’s cross motion, inter alia, for leave to intervene was made before an order of reference or judgment of foreclosure and sale was issued, the plaintiff was not prejudiced by the timing of the cross motion … . Bank of Am., NA v Nocella, 2021 NY Slip Op 03159, Second Dept 5-19-21

 

,

THE PEOPLE FAILED TO TIMELY REDUCE THE BOND OBLIGATION TO A JUDGMENT, THEREFORE THE SURETY’S MOTION TO VACATE THE JUDGMENT FORFEITING THE $100,000 BAIL SHOULD HAVE BEEN GRANTED (FIRST DEPT). ​

The First Department, in a full-fledged opinion by Justice Renwick, determined the surety’s motion to vacate a judgment forfeiting $100,000 bail should have been granted. Although the surety’s (Empire’s) motion was untimely, the People had failed to timely reduce the bond obligation to a judgment. The opinion is too detailed to fairly summarize here:

In this special proceeding brought pursuant to CPLR 5015 by a surety of a defendant in a criminal case, the dispositive question is whether a surety is procedurally precluded from moving to vacate a judgment of bail forfeiture as untimely made. The People argue that the application is precluded because the surety did not move within the one-year time limit applicable to a motion for remission of the forfeiture, which, as set forth in CPL 540.30(2), “must be made within one year after the forfeiture of bail is declared.” We answer the question in the negative because the People must first comply with the statutory mandate of CPL 540.10(2) before they can raise the one-year statute of limitations of CPL 540.30(2). The People did not comply with CPLR 540.10(2), which requires the People to reduce a bond obligation to a judgment within 120 days after the forfeiture is declared by the court. People v Empire Bonding & Ins. Co., 2021 NY Slip Op 03120, First Dept 5-13-21

 

,

THE USUAL STRICT CRITERIA FOR VACATING A DEFAULT ORDER ARE RELAXED IN CHILD CUSTODY PROCEEDINGS; MOTHER’S MOTION TO VACATE THE DEFAULT ORDER AWARDING CUSTODY TO FATHER SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Family Court, determined mother’s motion to vacate the default order granting custody to father should have been granted. The usual strict criteria for a default order are relaxed in child custody matters:

The determination of whether to relieve a party of an order entered upon his or her default is a matter left to the sound discretion of the Family Court … . “A party seeking to vacate an order entered upon his or her default is required to demonstrate a reasonable excuse for the default and the existence of a potentially meritorious cause of action or defense” … . However, “the law favors resolution on the merits in child custody proceedings,” and thus the “general rule with respect to opening defaults in civil actions is not to be rigorously applied to cases involving child custody” … . Matter of Williams v Worthington, 2021 NY Slip Op 03040, Second Dept 5-12-21

 

,

NEW YORK DID NOT HAVE JURISDICTION OVER THE FLORIDA CHILD SUPPORT ORDER, EVEN THOUGH FATHER’S CHILD SUPPORT OBLIGATION HAD TERMINATED BY THE TERMS OF THE ORDER (SECOND DEPT).

The Second Department, reversing Family Court, determined Florida, which issued the child support order and where father resides, continued to have jurisdiction over the child support order, even though the child support obligation had terminated. Therefore the New York child support order was not a “de novo” order. Rather, it was a modification of the Florida order over which New York did not have jurisdiction:

After relocating to New York, the daughter applied for and began receiving public assistance in Nassau County. In July 2019, the Nassau County Department of Social Services (hereinafter DSS) filed the instant petition for support on behalf of the daughter. At a hearing on the petition before a support magistrate, the father moved to dismiss the petition for lack of subject matter jurisdiction pursuant to the Uniform Interstate Family Support Act (hereinafter UIFSA), arguing that Florida retained exclusive jurisdiction over his child support obligation to the daughter, and that under Florida law, his obligation to support the daughter ceased when she turned 18. The Support Magistrate denied the motion, finding that the subject application was not seeking to modify the father’s existing child support obligation in Florida, but, instead, was a de novo application for support. …

“Under the [Full Faith and Credit for Child Support Orders Act] and UIFSA, the state issuing a child support order retains continuing, exclusive jurisdiction over its child support orders so long as an individual contestant continues to reside in the issuing state” ( … cf. Family Ct Act § 580-205). “Accordingly, a state may modify the issuing state’s order of child support only when the issuing state has lost continuing, exclusive jurisdiction” … . …

Since the father still resides in Florida, that state has continuing, exclusive jurisdiction of the child support order, despite the termination of his obligations under that order, and New York does not have subject matter jurisdiction to modify that order … . Matter of Nassau County Dept. of Social Servs. v Ablog, 2021 NY Slip Op 03035, Second Dept 5-12-21

 

,

FATHER’S MOTION TO VACATE THE DEFAULT ORDER TERMINATING HIS PARENTAL RIGHTS SHOULD HAVE BEEN GRANTED; FATHER ATTEMPTED TO ATTEND THE HEARING, BUT WAS LATE; FATHER WAS ENTITLED TO COUNSEL BUT NONE HAD BEEN ASSIGNED; AND THERE WAS EVIDENCE HE DID NOT ABANDON THE CHILD (SECOND DEPT).

The Second Department, reversing Family Court, determined father’s motion to vacate the default order terminating his parental rights should have been granted. Father had appeared on the day of the hearing but it had concluded. In addition father was entitled to counsel and there was evidence father had not abandoned the child:

A parent seeking to vacate an order entered upon their default in a termination of parental rights proceeding must establish a reasonable excuse for the default and a potentially meritorious defense to the relief sought in the petition (see CPLR 5015[a][1] …).

Here, the father presented a reasonable excuse for his failure to timely appear at the May 28, 2019 fact-finding hearing. The father did in fact appear in court on the hearing date, but the proceedings had already concluded. This was the father’s first appearance in the proceeding, and there is no indication that the father was notified by the Family Court or counsel of the hearing … . Indeed, the father was unrepresented by counsel at that time, and claims that he was not offered assigned counsel on May 28, 2019. The father had a right to the assistance of counsel in this proceeding, in which he faced a potential termination of his parental rights … . Parental rights may not be curtailed without a meaningful opportunity to be heard, which includes the assistance of counsel … .

… Social Services Law § 384-b(5)(a) provides that “a child is ‘abandoned’ by his parent if such parent evinces an intent to forego his or her parental rights and obligations as manifested by his or her failure to visit the child and communicate with the child or agency, although able to do so and not prevented or discouraged from doing so by the agency.” Abandonment must be proven by clear and convincing evidence … . Termination of parental rights is authorized by Social Services Law § 384-b(4)(b) when the parent abandoned the child for a period of six months immediately prior to the date of the filing of the petition. Here, the father’s allegations regarding his attempts to contact the agency and visit with the child potentially extend into the relevant six-month period prior to the October 2018 petition. Matter of Jonathan N., Jr. (Jonathan N., Sr.), 2021 NY Slip Op 03034, Second Dept 5-12-21

 

, ,

PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN THIS REAR-END COLLISION CASE SHOULD HAVE BEEN GRANTED; THE ISSUE OF PLAINTIFF’S COMPARATIVE NEGLIGENCE CAN BE ADDRESSED AT THE SUMMARY JUDGMENT STAGE IF RAISED AS AN AFFIRMATIVE DEFENSE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment in this rear-end collision case should have been granted. The court noted that the issue of plaintiff’s comparative negligence can be considered at the summary judgment stage if raised as an affirmative defense:

A rear-end collision with a stopped or stopping vehicle establishes a prima facie case of negligence on the part of the operator of the rear vehicle, thereby requiring that operator to rebut the inference of negligence by providing a nonnegligent explanation for the collision … . To be entitled to summary judgment on the issue of a defendant’s liability, a plaintiff does not bear the burden of establishing the absence of his or her own comparative negligence … . Although a plaintiff is not required to establish his or her freedom from comparative negligence to be entitled to summary judgment on the issue of liability, the issue of a plaintiff’s comparative negligence may be decided in the context of a summary judgment motion where, as here, the plaintiff seeks summary judgment dismissing an affirmative defense alleging comparative negligence … . Diamond v Comins, 2021 NY Slip Op 03019, Second Dept 5-12-21

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy