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LAW OFFICE FAILURE WAS A REASONABLE EXCUSE FOR FAILING TO ANSWER, DEFENDANT’S MOTION TO EXTEND THE TIME TO APPEAR SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined low office failure was a legitimate excuse for failing to serve an answer. Defendant had made a pre-answer motion to dismiss, thereby demonstrating defendant did not intend to abandon the action:

Defendants satisfied the requirements of CPLR 3012(d), which authorizes an extension of time to appear or plead “upon such terms as may be just and upon a showing of reasonable excuse for delay or default.” Here, the delay in filing an answer was occasioned by law office failure, which can constitute a reasonable excuse … . Defendants’ counsel explained that its failure to file its answer was due to an error in its office’s case management system, which, upon the entry of a pre-answer motion to dismiss, marked the complaint answered. Notably, service of the pre-answer motion to dismiss revealed that defendants did not intend to abandon the action. Plaintiff does not argue that it has been prejudiced as a result of defendants’ three month delay in submitting its answer … , and our determination comports with New York’s strong public policy in favor of litigating matters on the merits … . Hertz Vehicles, LLC v Mollo, 2019 NY Slip Op 03270, First Dept 4-30-19

 

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NEW YORK DID NOT HAVE SUBJECT MATTER JURISDICTION OVER A CUSTODY MATTER BECAUSE THE CHILD HAD NOT LIVED IN NEW YORK FOR SIX MONTHS AT THE TIME THE PROCEEDINGS WERE COMMENCED, NEW JERSEY STILL HAD JURISDICTION AT THAT TIME BECAUSE THE CHILD HAD BEEN REMOVED FROM NEW JERSEY LESS THAN SIX MONTHS BEFORE THE NEW YORK PROCEEDINGS WERE COMMENCED (FOURTH DEPT).

The Fourth Department, in a full-fledged opinion by Justice NeMoyer, reversing Family Court, determined that New York did not have subject matter jurisdiction over a child custody proceeding. At the time the proceeding was brought the child had not lived in New York for six months and New Jersey still had jurisdiction. The Fourth Department went through the history of jurisdictional issues in custody matters and through each of the grounds for jurisdiction codified in the Domestic Relations Law:

Instead of claiming home state jurisdiction under Domestic Relations Law § 76 (1) (a), the mother essentially argues that the court had subject matter jurisdiction over this proceeding under the safety net provision of section 76 (1) (d), which confers jurisdiction to make custody determinations when, insofar as relevant here, “no court of any other state would have jurisdiction under the criteria specified in [section 76 (1)] (a).” …

We reject the mother’s reliance on section 76 (1) (d). Under the special UCCJEA [Uniform Child Custody Jurisdiction and Enforcement Act] definition of “home state” applicable to infants under six months old (Domestic Relations Law § 75-a [7]; NJ Stat Ann § 2A:34-54), New Jersey was the child’s “home state” between the date of his birth (February 18, 2015) and the alleged date of his move to New York (July 15, 2015) … . Because the UCCJEA confers continuing jurisdiction on the state that “was the home state of the child within six months before the commencement of the proceeding” if a parent lives in that state without the child (Domestic Relations Law § 76 [1] [a]; NJ Stat Ann § 2A:34-65 [a] [1]), it follows that New Jersey retained continuing jurisdiction of this matter until January 15, 2016, i.e., six months after the child’s alleged move to New York on July 15, 2015 and one week after the instant proceeding was commenced on January 8, 2016 … . Thus, New York lacked jurisdiction under section 76 (1) (d) because New Jersey could have exercised jurisdiction under the criteria of section 76 (1) (a) on the date of this proceeding’s commencement … . Matter of Nemes v Tutino, 2019 NY Slip Op 03236, Fourth Dept 4-26-19

 

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DESPITE THE PROVISION IN THE SEPARATION AGREEMENT REQUIRING THAT ANY MODIFICATION OF SUPPORT APPLY NEW JERSEY LAW, BECAUSE ALL PARTIES RESIDED IN NEW YORK WHEN THE MODIFICATION APPLICATION WAS MADE, NEW YORK LAW CONTROLS (FOURTH DEPT).

The Fourth Department, reversing (modifying) Family Court, determined that. despite the choice of law provision in the separation agreement, New York law applied to any modification of child support. The family lived in New Jersey when the separation agreement, providing that New Jersey law would control support modification, was executed. But all parties were living in New York when the application for modification was made:

… [W]e conclude that the court had jurisdiction pursuant to the Uniform Interstate Family Support Act ([UIFSA] Family Ct Act art 5-B) to resolve the issues raised in the mother’s petition and objections … . The UIFSA unequivocally provides that where, as here, the parents reside in this state “and the child does not reside in the issuing state, a tribunal of this state has jurisdiction to enforce and to modify the issuing state’s child support order in a proceeding to register that order” … . Furthermore, we agree with the mother that New York law must be applied to determine the father’s child support obligation here inasmuch as the statute further provides that “[a] tribunal of this state exercising jurisdiction under this section shall apply . . . the procedural and substantive law of this state to the proceeding for enforcement or modification” (Family Ct Act § 580-613 [b]). …

Although courts will generally enforce a choice of law clause ” so long as the chosen law bears a reasonable relationship to the parties or the transaction’ ” … , courts will not enforce such clauses where the chosen law violates ” some fundamental principle of justice, some prevalent conception of good morals, some deep-rooted tradition of the common weal’ ” … . It is long settled that New York has a “strong public policy that obligates a parent to support his or her child” . Under New York law, child support obligations are required to be calculated pursuant to the Child Support Standards Act ([CSSA] Family Ct Act § 413), and ” [t]he duty of a parent to support his or her child shall not be eliminated or diminished by the terms of a separation agreement’ ” … . In addition, whereas … Jersey law provides that child support obligations generally end when a child reaches the age of 19 … , in New York, “[a] parent’s duty to support his or her child until the child reaches the age of 21 years is a matter of fundamental public policy” … . Under the circumstances, and given that the parties do not have a valid agreement to opt out of the CSSA (see generally Domestic Relations Law § 240 [1-b] [h]), we conclude that enforcement of the parties’ choice of law provision would violate those strong New York public policies. Matter of Brooks v Brooks, 2019 NY Slip Op 03164, Fourth Dept 4-26-19

 

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MOTION TO AMEND THE COMPLAINTS IN THESE RESIDENTIAL MORTGAGE BACKED SECURITIES ACTIONS SHOULD HAVE BEEN GRANTED, COMPETING INTERPRETATIONS OF A CONTRACT SHOULD NOT BE DETERMINED AT THE MOTION-TO-DISMISS STAGE (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Richter, over a partial dissent, determined plaintiff’s (the Trustee’s) motion to amend its complaints in these residential mortgage backed securities actions should have been granted. The amendment sought to allege defendant breached the underlying contract by failing to notify the trustee of loan breaches. The majority found that the contract provision requiring notice was ambiguous. The dissent argued the contract was not ambiguous and did not require notification:

It is well settled that “[a] request for leave to amend a complaint should be freely given, and denied only if there is prejudice or surprise resulting directly from the delay, or if the proposed amendment is palpably improper or insufficient as a matter of law” … . “A party opposing leave to amend must overcome a heavy presumption of validity in favor of [permitting amendment]” … .

Judged by these standards, the motion court should have granted the Trustee’s motions for leave to file the amended complaints with respect to the express breach of contract claims based on DBSP’s (defendant’s) failure to notify the Trustee of the loan breaches … . It cannot be said, at this early stage of the proceedings, that these claims are “palpably improper or insufficient as a matter of law” … . Nor has DBSP asserted, let alone shown, that it would suffer any prejudice or surprise directly resulting from the delay. * * *

… [B]because the disputed provision is reasonably susceptible to more than one interpretation, “it cannot be construed as a matter of law, and dismissal . . . is not appropriate” … . LDIR, LLC v DB Structured Prods., Inc., 2019 NY Slip Op 03154, First Dept 4-25-19

 

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A PERSON ADJUDICATED A YOUTHFUL OFFENDER CAN REFUSE TO ANSWER QUESTIONS ABOUT THE CHARGES, THE POLICE INVESTIGATION, THE PLEA AND THE ADJUDICATION, BUT CANNOT REFUSE TO ANSWER QUESTIONS ABOUT THE UNDERLYING FACTS (SECOND DEPT).

The Second Department determined defendant’s youthful offender adjudication allows defendant to refuse to answer questions about the charges, the police investigation, whether she pled guilty and whether a youthful offender adjudication was made, but defendant cannot refuse to answer questions about the facts underlying the adjudication. Here plaintiff sued defendant for personal injuries stemming from a fight with defendant, which was the basis for the youthful offender adjudication:

“[A] person adjudicated a youthful offender may refuse to answer questions regarding the charges and police investigation, whether he or she pleaded guilty, and whether a youthful offender adjudication was made” … . However, “not all of the information contained within the protected records is necessarily privileged” … . The statutory grant of confidentiality afforded to official records and the information contained therein does not extend to the facts underlying the incident which gave rise to the youthful offender adjudication (see CPL 720.35[2]). Thus, an eligible youth may not refuse, on grounds of confidentiality, to answer questions about the facts underlying the subject incident, even though those facts also form the basis of his or her youthful offender adjudication … . Arma v East Islip Union Free Sch. Dist., 2019 NY Slip Op 03019, Second Dept 4-24-19

 

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COMPLAINT STATED A CAUSE OF ACTION FOR CONSTRUCTIVE FRAUD BUT THE HEIGHTENED PLEADING REQUIREMENTS FOR ACTUAL FRAUD WERE NOT MET (FIRST DEPT).

The First Department, in an action alleging members of defendant liability company fraudulently transferred funds from the LLC to the defendant members to render the LLC insolvent. The First Department determined the constructive fraud cause of action was sufficiently pled but  the allegations did not support an actual fraud cause of action:

… [T]he complaint implicitly alleges that a necessary element of fair consideration, i.e., good faith, was lacking when the transfers were made. …

However, the complaint fails to state a cause of action for actual fraud under Debtor and Creditor Law §§ 276 and 276-a. … [U]nlike the allegations supporting the constructive fraud claim, the allegations supporting the actual fraud claim are subject to the heightened pleading standard of CPLR 3016(b), and the allegations about fair consideration do not meet that standard, because they were made upon information and belief, and the source of the information was not disclosed … .

Nor does the complaint allege any other badges of fraud. Brennan v 3250 Rawlins Ave. Partners, LLC, 2019 NY Slip Op 03002, First Dept 4-23-19

 

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JUDGE SHOULD NOT HAVE, SUA SPONTE, VACATED A DEFAULT JUDGMENT IN THE ABSENCE OF A MOTION OR REQUEST, NO APPEAL AS OF RIGHT FROM A SUA SPONTE ORDER (FIRST DEPT).

The First Department, reversing Supreme Court, determined that the judge did not have the authority to vacate a default judgment in absence of a request for that relief. The First Department treated the notice of appeal as a motion for leave to appeal, noting that a sua sponte order is not appealable as of right:

While an order entered sua sponte is not appealable as of right … , given the lack of evidence of the timeliness of the service of the answer and given the motion court’s failure to identify a legal basis for vacating the prior order, we deem the notice of appeal a motion for leave to appeal, and grant leave … .

The court exceeded its authority in sua sponte vacating the prior order granting plaintiff’s motion for a default judgment … . In the absence of a motion or other request for relief from the order, the court’s discretion to correct the order was limited to curing any mistake, defect or irregularity “not affecting a substantial right of a party” (CPLR 5019[a]). Betts v Tsitiridis, 2019 NY Slip Op 02970, First Dept 4-22-19

 

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PLAINTIFF IN THIS FORECLOSURE ACTION DID NOT DEMONSTRATE COMPLIANCE WITH THE NOTICE REQUIREMENTS OF RPAPL 1304; EVIDENCE OFFERED FOR THE FIRST TIME IN REPLY CAN BE CONSIDERED IF THE OPPOSING PARTY HAS THE OPPORTUNITY TO RESPOND (SECOND DEPT).

The Second Department, reversing Supreme Court in this foreclosure action, determined plaintiff did not demonstrate it had complied with the notice requirements of RPAPL 1304. The court noted that evidence submitted in reply was properly considered because the opposing party had an opportunity to respond:

… [T]he plaintiff failed to establish, prima facie, that it strictly complied with RPAPL 1304. RPAPL 1304(1) provides that at least 90 days before a lender, an assignee, or a mortgage loan servicer commences an action to foreclose the mortgage on a home loan as defined in RPAPL 1304, such lender, assignee, or mortgage loan servicer must give notice to the borrower. RPAPL 1304(1) sets forth the requirements for the content of such notice and RPAPL 1304(2) further provides that such notice must be sent “by registered or certified mail and also by first-class mail” to the last known address of the borrower. “[P]roper service of RPAPL 1304 notice on the borrower or borrowers is a condition precedent to the commencement of a foreclosure action, and the plaintiff has the burden of establishing satisfaction of this condition” … .

Here, even considering the affidavit of Victoria Bressner submitted by the plaintiff for the first time in opposition to the defendant’s cross motion, the plaintiff failed to establish strict compliance with RPAPL 1304. Bressner did not have personal knowledge of the purported mailing and did not make the requisite showing that she was familiar with the plaintiff’s mailing practices and procedures to establish “proof of a standard office practice and procedure designed to ensure that items are properly addressed and mailed” … . Moreover, the record indicates that the notices were not mailed by the plaintiff. LNV Corp. v Sofer, 2019 NY Slip Op 02860, Second Dept 4-17-19

 

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SUPREME COURT SHOULD NOT HAVE DISMISSED THE FORECLOSURE COMPLAINT IN THE ABSENCE OF THE PRECONDITIONS REQUIRED BY CPLR 3216 (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the court was without power to dismiss for neglect to prosecute because the preconditions in CPLR 3216 were not met. Supreme Court dismissed the complaint in this foreclosure action, finding that plaintiff bank had not complied with an oral directive issued at a status conference:

Following settlement conferences held pursuant to CPLR 3408, the action was released from the foreclosure settlement conference part without any resolution. In an order … (hereinafter the dismissal order), the Supreme Court directed dismissal of the action on the ground that the plaintiff failed to comply with an oral directive issued at a status conference … , to resume prosecution of the action. …[T]he plaintiff moved to vacate the dismissal order and to restore the action to the calendar. [T]he Supreme Court … denied the plaintiff’s motion. …

“A court may not dismiss an action based on neglect to prosecute unless the statutory preconditions to dismissal, as articulated in CPLR 3216, are met” … . Specifically, issue must have been joined, at least one year must have elapsed since joinder of issue, the defendant or the court must have served on the plaintiff a written demand to serve and file a note of issue within 90 days, and the plaintiff must have failed to serve and file a note of issue within the 90-day period (see CPLR 3216[b] …). Here, the Supreme Court was without power to direct dismissal of the action on the ground of failure to prosecute because the plaintiff was not served with a written demand to serve and file a note of issue within 90 days … . Citimortgage, Inc. v Ferrari, 2019 NY Slip Op 02847, Second Dept 4-17-19

 

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UNSIGNED DEPOSITIONS WERE ADMISSIBLE AND EVIDENCE SUBMITTED IN REPLY SHOULD HAVE BEEN CONSIDERED (SECOND DEPT).

The Second Department, although affirming the denial of defendants’ motion for summary judgment in this slip and fall case on other grounds, noted that the depositions were admissible and evidence submitted in reply should have been considered:

Although the plaintiff’s deposition transcript, which the defendants submitted in support of their motion, was unsigned, it was nonetheless admissible as the plaintiff raised no objection to its submission or accuracy and, in fact, requested that the Supreme Court “incorporate” his transcript into his opposition … . Regarding the deposition transcript of the decedent’s niece, which the defendants also submitted in support of their motion, the defendants demonstrated that they had submitted the unsigned transcript to the decedent’s niece for review, but that she failed to sign and return it within 60 days. Thus, the niece’s deposition transcript could have been used by the defendants as fully as though signed (see CPLR 3116[a] …). Furthermore, even though the evidence demonstrating the defendants’ compliance with CPLR 3116(a) was submitted by the defendants in reply, the court should have considered it, because it was in direct response to allegations raised for the first time in the plaintiff’s opposition papers … . The unsigned deposition transcript of the defendants’ property manager was admissible under CPLR 3116(a) since it was submitted by the defendants themselves and thus adopted as accurate … . Baptiste v Ditmas Park, LLC, 2019 NY Slip Op 02844, Second Dept 4-17-19

 

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