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LAW OFFICE FAILURE EXCUSE FOR FAILING TO APPEAR DEEMED INSUFFICIENT (SECOND DEPT).

The Second Department determined defendant's (Expendables') opposition to a  motion for leave to enter and default judgment, alleging law office failure as the reason for failing to appear, was properly rejected:

In support of the proffered excuse of law office failure, the attorney for Expendables merely submitted an affirmation in which it was alleged that the corporate defendant had been “mistakenly omitted” from the answer served by one of the individual defendants. No factual detail or affidavit of personal knowledge was submitted explaining the drafting of the answer, the manner in which the purported omission occurred, or the failure to discover it until the plaintiffs moved for leave to enter a default judgment. Moreover, the answer served by the individual defendant bore no indicia that it was intended to serve as a joint answer for that defendant and Expendables. Accordingly, the Supreme Court providently exercised its discretion in determining that the conclusory and unsubstantiated assertion of counsel failed to constitute a reasonable excuse for the default of Expendables in answering the complaint, and in granting the plaintiffs' motion for leave to enter a default judgment against that defendant … . Lefcort v Samowitz, 2018 NY Slip Op 06727, Second Dept 10-10-18

CIVIL PROCEDURE (LAW OFFICE FAILURE EXCUSE FOR FAILING TO APPEAR DEEMED INSUFFICIENT (SECOND DEPT))/DEFAULT JUDGMENTS (LAW OFFICE FAILURE EXCUSE FOR FAILING TO APPEAR DEEMED INSUFFICIENT (SECOND DEPT))/ATTORNEYS (LAW OFFICE FAILURE EXCUSE FOR FAILING TO APPEAR DEEMED INSUFFICIENT (SECOND DEPT))/DEFAULT JUDGMENTS (LAW OFFICE FAILURE EXCUSE FOR FAILING TO APPEAR DEEMED INSUFFICIENT (SECOND DEPT))/LAW OFFICE FAILURE (DEFAULT, LAW OFFICE FAILURE EXCUSE FOR FAILING TO APPEAR DEEMED INSUFFICIENT (SECOND DEPT))/DEFAULT JUDGMENTS (LAW OFFICE FAILURE EXCUSE FOR FAILING TO APPEAR DEEMED INSUFFICIENT (SECOND DEPT))

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COMPLAINT STATED CAUSES OF ACTION FOR CONVERSION AND TORTIOUS INTERFERENCE WITH A CONTRACT (SECOND DEPT).

The Second Department, modifying Supreme Court, determined the complaint (supplemented with affidavits) stated causes of action for conversion and tortious interference with contract which should not have been dismissed. Plaintiff, a dog trainer, purchased a dog and allegedly entered a contract with the seller of the dog (America' Best) to train the dog. Plaintiff and defendant were in a relationship at the time they agreed to purchase the dog. The complaint alleged that defendant took possession of the dog:

Two key elements of conversion are the plaintiff's (1) legal ownership or an immediate superior right of possession to a specific identifiable thing, and (2) the defendant's unauthorized dominion over the thing in question or interference with it, to the exclusion of the plaintiff's right… . Here, accepting the facts alleged in the complaint as true, and according the plaintiff the benefit of every possible favorable inference, the complaint sufficiently alleges that the plaintiff is the owner of the dog, that the defendant has unauthorized possession of the dog, and that the defendant has refused to return the dog.

… The elements of tortious interference with a contract are: “(1) the existence of a contract between plaintiff and a third party; (2) defendant's knowledge of the contract; (3) defendant's intentional inducement of the third party to breach or otherwise render performance impossible; and (4) damages to plaintiff” … . The complaint, as supplemented by the plaintiff's affidavits, sufficiently alleges the elements of a cause of action to recover damages for tortious interference with a contract, including that the defendant's intentional interference with the America's Best contract rendered performance impossible … . Nero v Fiore, 2018 NY Slip Op 06755, Second Dept 10-10-18

CONVERSION (COMPLAINT STATED CAUSES OF ACTION FOR CONVERSION AND TORTIOUS INTERFERENCE WITH A CONTRACT (SECOND DEPT))/TORTIOUS INTERFERENCE WITH CONTRACT (COMPLAINT STATED CAUSES OF ACTION FOR CONVERSION AND TORTIOUS INTERFERENCE WITH A CONTRACT (SECOND DEPT))/CIVIL PROCEDURE  (COMPLAINT STATED CAUSES OF ACTION FOR CONVERSION AND TORTIOUS INTERFERENCE WITH A CONTRACT (SECOND DEPT))/CPLR 3211 (COMPLAINT STATED CAUSES OF ACTION FOR CONVERSION AND TORTIOUS INTERFERENCE WITH A CONTRACT (SECOND DEPT))

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PETITIONER MUST EXHAUST ITS ADMINISTRATIVE REMEDIES BY APPEALING THE DENIAL OF A BUILDING PERMIT BY THE TOWN BUILDING DEPARTMENT TO THE ZONING BOARD OF APPEALS BEFORE BRINGING A COURT ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined petitioner was required to exhaust its administrative remedies by appealing the town building department's ruling to the zoning board of appeals before bringing a court action. Petitioner's request for a permit to put in a convenience store in a rural use district had been denied by the building department:

… [T]he petitioner was required to exhaust its administrative remedies before commencing the instant proceeding/action. The petitioner's constitutional challenges to the Building Department's determination did not excuse the petitioner's failure to exhaust its administrative remedies through an appeal to the Zoning Board of Appeals… . Furthermore, the petitioner did not establish that the Building Department's determination was “wholly beyond its grant of power” or that the pursuit of administrative remedies would cause the petitioner irreparable injury … . Matter of Vineland Commons, LLC v Building Dept. of Town of Riverhead, 2018 NY Slip Op 06748, Second Dept 10-10-18

ZONING (PETITIONER MUST EXHAUST ITS ADMINISTRATIVE REMEDIES BY APPEALING THE DENIAL OF A BUILDING PERMIT BY THE TOWN BUILDING DEPARTMENT TO THE ZONING BOARD OF APPEALS BEFORE BRINGING A COURT ACTION (SECOND DEPT))/CIVIL PROCEDURE (ZONING, PETITIONER MUST EXHAUST ITS ADMINISTRATIVE REMEDIES BY APPEALING THE DENIAL OF A BUILDING PERMIT BY THE TOWN BUILDING DEPARTMENT TO THE ZONING BOARD OF APPEALS BEFORE BRINGING A COURT ACTION (SECOND DEPT))/ADMINISTRATIVE LAW (ZONING, CIVIL PROCEDURE (ZONING, PETITIONER MUST EXHAUST ITS ADMINISTRATIVE REMEDIES BY APPEALING THE DENIAL OF A BUILDING PERMIT BY THE TOWN BUILDING DEPARTMENT TO THE ZONING BOARD OF APPEALS BEFORE BRINGING A COURT ACTION (SECOND DEPT))

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DEFENDANTS’ EVIDENCE DESIGNED TO RAISE A FEIGNED QUESTION OF FACT, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN LIEU OF A COMPLAINT SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined plaintiff's motion for summary judgment in lieu of complaint pursuant to CPLR 3213 should have been granted. Plaintiff met her burden by submitting the notes and guarantees and an affidavit of nonpayment. The evidence submitted by the defendants was deemed conclusory and designed to create a feigned question of fact:

Plaintiff met her initial burden of establishing entitlement to judgment as a matter of law “by submitting the notes and guarantees, together with an affidavit of nonpayment” … . In opposition, defendants failed ” to establish, by admissible evidence, the existence of a triable issue [of fact] with respect to a bona fide defense' ” … . Defendants contend that they are entitled to an offset because plaintiff allegedly breached a related stock purchase agreement and, following the execution of the stock purchase agreement, coerced them into paying additional funds to which plaintiff was not entitled through economic duress. The evidence submitted by defendants in support of those contentions, however, is conclusory, unsubstantiated, and internally inconsistent in a manner that appears “designed to raise feigned factual issues in an effort to avoid the consequences” of plaintiff's otherwise valid motion for summary judgment on her claim to recover on the promissory notes and guarantees … . Among other things, the affidavit of defendants' expert public accountant is “speculative and conclusory inasmuch as the expert failed to submit the data upon which he based his opinions. The affidavit thus lacks an adequate factual foundation and is of no probative value” . Finally, in addition to failing to raise a triable issue of fact with respect to economic duress, defendants waived any such claim “in light of the inordinate length of time which passed between the alleged duress and the assertion of the claim” … . Birjukow v Niagara Coating Servs., Inc., 2018 NY Slip Op 06637, Fourth Dept 10-5-18

CIVIL PROCEDURE (DEFENDANTS' EVIDENCE DESIGNED TO RAISE A FEIGNED QUESTION OF FACT, PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT IN LIEU OF A COMPLAINT SHOULD HAVE BEEN GRANTED (FOURTH DEPT))/DEBTOR-CREDITOR (DEFENDANTS' EVIDENCE DESIGNED TO RAISE A FEIGNED QUESTION OF FACT, PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT IN LIEU OF A COMPLAINT SHOULD HAVE BEEN GRANTED (FOURTH DEPT)).CPLR 3213  (DEFENDANTS' EVIDENCE DESIGNED TO RAISE A FEIGNED QUESTION OF FACT, PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT IN LIEU OF A COMPLAINT SHOULD HAVE BEEN GRANTED (FOURTH DEPT))/EVIDENCE (SUMMARY JUDGMENT, DEFENDANTS' EVIDENCE DESIGNED TO RAISE A FEIGNED QUESTION OF FACT, PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT IN LIEU OF A COMPLAINT SHOULD HAVE BEEN GRANTED (FOURTH DEPT))/SUMMARY JUDGMENT (EVIDENCE, DEFENDANTS' EVIDENCE DESIGNED TO RAISE A FEIGNED QUESTION OF FACT, PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT IN LIEU OF A COMPLAINT SHOULD HAVE BEEN GRANTED (FOURTH DEPT))

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THERE IS NO MECHANISM IN THE CRIMINAL PROCEDURE LAW FOR A REPORTER’S MOTION TO INTERVENE IN A CRIMINAL PROCEEDING, THE REQUIREMENTS FOR A CPLR MOTION TO INTERVENE WERE NOT MET (FOURTH DEPT).

The Fourth Department determined there is no mechanism in the Criminal Procedure Law for a nonparty to intervene in a criminal case. Here a reporter sought information about the jurors who were deliberating a murder case. The court further found that the requirements for a CPLR 1013, 1014 motion to intervene were not met here:

… [I]t is well established that “[t]he Criminal Procedure Law provides no mechanism for a nonparty to intervene or be joined in a criminal case” … . Moreover, even assuming, arguendo, that the mechanism for intervening in an action set forth in the Civil Practice Law and Rules authorizes such an intervention in a criminal case (see CPLR 1013), we note that there is a statutory requirement that “[a] motion to intervene shall be accompanied by a proposed pleading setting forth the claim or defense for which intervention is sought” (CPLR 1014), and thus the court here would have “had no power to grant . . . leave to intervene” without a proposed pleading from the intervenors … . Consequently, in each appeal we must vacate the order [which denied the motion to intervene on other grounds] and dismiss the appeal. People v Conley, 2018 NY Slip Op 06647, Fourth Dept 10-5-18

CRIMINAL LAW (MOTION TO INTERVENE, THERE IS NO MECHANISM IN THE CRIMINAL PROCEDURE LAW FOR A REPORTER'S MOTION TO INTERVENE IN A CRIMINAL PROCEEDING, THE REQUIREMENTS FOR A CPLR MOTION TO INTERVENE WERE NOT MET (FOURTH DEPT))/CIVIL PROCEDURE (MOTION TO INTEREVENE, THERE IS NO MECHANISM IN THE CRIMINAL PROCEDURE LAW FOR A REPORTER'S MOTION TO INTERVENE IN A CRIMINAL PROCEEDING, THE REQUIREMENTS FOR A CPLR MOTION TO INTERVENE WERE NOT MET (FOURTH DEPT))/CPLR 1013, 1014  (MOTION TO INTERVENE, THERE IS NO MECHANISM IN THE CRIMINAL PROCEDURE LAW FOR A REPORTER'S MOTION TO INTERVENE IN A CRIMINAL PROCEEDING, THE REQUIREMENTS FOR A CPLR MOTION TO INTERVENE WERE NOT MET (FOURTH DEPT))/INTERVENE, MOTION TO (THERE IS NO MECHANISM IN THE CRIMINAL PROCEDURE LAW FOR A REPORTER'S MOTION TO INTERVENE IN A CRIMINAL PROCEEDING, THE REQUIREMENTS FOR A CPLR MOTION TO INTERVENE WERE NOT MET (FOURTH DEPT))/REPORTERS (CRIMINAL LAW, MOTION TO INTERVENE, THERE IS NO MECHANISM IN THE CRIMINAL PROCEDURE LAW FOR A REPORTER'S MOTION TO INTERVENE IN A CRIMINAL PROCEEDING, THE REQUIREMENTS FOR A CPLR MOTION TO INTERVENE WERE NOT MET (FOURTH DEPT))NEWSPAPERS (CRIMINAL LAW, MOTION TO INTERVENE, THERE IS NO MECHANISM IN THE CRIMINAL PROCEDURE LAW FOR A REPORTER'S MOTION TO INTERVENE IN A CRIMINAL PROCEEDING, THE REQUIREMENTS FOR A CPLR MOTION TO INTERVENE WERE NOT MET (FOURTH DEPT))/PRESS (CRIMINAL LAW, MOTION TO INTERVENE, THERE IS NO MECHANISM IN THE CRIMINAL PROCEDURE LAW FOR A REPORTER'S MOTION TO INTERVENE IN A CRIMINAL PROCEEDING, THE REQUIREMENTS FOR A CPLR MOTION TO INTERVENE WERE NOT MET (FOURTH DEPT))/MEDIA (CRIMINAL LAW, MOTION TO INTERVENE, THERE IS NO MECHANISM IN THE CRIMINAL PROCEDURE LAW FOR A REPORTER'S MOTION TO INTERVENE IN A CRIMINAL PROCEEDING, THE REQUIREMENTS FOR A CPLR MOTION TO INTERVENE WERE NOT MET (FOURTH DEPT))

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LAW OFFICE FAILURE ALLEGATIONS INSUFFICIENT TO WARRANT VACATING A DEFAULT JUDGMENT (SECOND DEPT).

The Second Department determined the law-office-failure allegations were insufficient to warrant vacating a default judgment:

While the court has the discretion to accept law office failure as a reasonable excuse (see CPLR 2005…), “[a] party attributing his or her default to a former attorney must provide a detailed and credible explanation of the default. Conclusory and unsubstantiated allegations of law office failure are not sufficient” … . “[M]ere neglect is not a reasonable excuse” … .

Contrary to [defendant's] contention, it failed to provide a detailed and credible explanation of the default, and no other evidence was submitted to corroborate the allegation of law office failure … . Accordingly, [defendant's] “bare allegations of incompetence on the part of prior counsel” … were insufficient to establish an excusable default under CPLR 5015(a)(1) … . Torres v Rely On Us, Inc., 2018 NY Slip Op 06587, Second Dept 10-3-18

CIVIL PROCEDURE (LAW OFFICE FAILURE ALLEGATIONS INSUFFICIENT TO WARRANT VACATING A DEFAULT JUDGMENT (SECOND DEPT))/CPLR 2005 (LAW OFFICE FAILURE ALLEGATIONS INSUFFICIENT TO WARRANT VACATING A DEFAULT JUDGMENT (SECOND DEPT))/CPLR 5015 (LAW OFFICE FAILURE ALLEGATIONS INSUFFICIENT TO WARRANT VACATING A DEFAULT JUDGMENT (SECOND DEPT))/ATTORNEYS (LAW OFFICE FAILURE ALLEGATIONS INSUFFICIENT TO WARRANT VACATING A DEFAULT JUDGMENT (SECOND DEPT))/LAW OFFICE FAILURE (LAW OFFICE FAILURE ALLEGATIONS INSUFFICIENT TO WARRANT VACATING A DEFAULT JUDGMENT (SECOND DEPT))

BECAUSE DEFENDANT WAS GIVEN EXTRA TIME TO COMPLETE DISCOVERY, THE TIME TO FILE A MOTION FOR SUMMARY JUDGMENT WAS EXTENDED AS WELL (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant (Macchia) should have been given an extension of the period to file a summary judgment motion based upon the referee's grant of extra time to complete discovery:

Upon the filing of a note of issue, there are two separate and distinct methods to obtain further disclosure. The first method, pursuant to Uniform Rules for Trial Courts (22 NYCRR) § 202.21(e), provides, in pertinent part, that: “Within 20 days after service of a note of issue and certificate of readiness, any party to the action or special proceeding may move to vacate the note of issue, upon affidavit showing in what respects the case is not ready for trial, and the court may vacate the note of issue if it appears that a material fact in the certificate of readiness is incorrect, or that the certificate of readiness fails to comply with the requirements of this section in some material respect.”

The second method, pursuant to Uniform Rules for Trial Courts (22 NYCRR) § 202.21(d), provides, in pertinent part, that: “Where unusual or unanticipated circumstances develop subsequent to the filing of a note of issue and certificate of readiness which require additional pretrial proceedings to prevent substantial prejudice, the court, upon motion supported by affidavit, may grant permission to conduct such necessary proceedings.”

Here, it appears that Macchia did not comply with either method, but, because depositions of the parties had not yet been conducted, the Court Attorney Referee so-ordered a stipulation which directed that further discovery take place beyond the date that summary judgment motions were to be filed. Given the Court Attorney Referee's implicit consent to the basis for the extension of the time to move for summary judgment, Macchia reasonably believed that the deadline for summary judgment motions would likewise be extended. Thus, under these particular facts and circumstances, we find that Macchia demonstrated good cause for allowing an extension of time to move for summary judgment … . Khan v Macchia, 2018 NY Slip Op 06519, Second Dept 10-3-18

CIVIL PROCEDURE (BECAUSE DEFENDANT WAS GIVEN EXTRA TIME TO COMPLETE DISCOVERY, THE TIME TO FILE A MOTION FOR SUMMARY JUDGMENT WAS EXTENDED AS WELL (SECOND DEPT))/SUMMARY JUDGMENT (CIVIL PROCEDURE, (BECAUSE DEFENDANT WAS GIVEN EXTRA TIME TO COMPLETE DISCOVERY, THE TIME TO FILE A MOTION FOR SUMMARY JUDGMENT WAS EXTENDED AS WELL (SECOND DEPT))/DISCOVERY (CIVIL PROCEDURE, BECAUSE DEFENDANT WAS GIVEN EXTRA TIME TO COMPLETE DISCOVERY, THE TIME TO FILE A MOTION FOR SUMMARY JUDGMENT WAS EXTENDED AS WELL (SECOND DEPT))

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LAW OFFICE FAILURE ALLEGATIONS WERE INSUFFICIENT TO SUPPORT VACATION OF A DEFAULT JUDGMENT (SECOND DEPT).

The Second Department determined the motion to vacate a default judgment was properly denied because the law-office-failure excuse was insufficient:

” A party seeking to vacate a default in appearing or answering pursuant to CPLR 5015(a)(1), and thereupon to serve a late answer, must demonstrate a reasonable excuse for the default and a potentially meritorious defense to the action'” … . “Where a delay or default results from law office failure, a court may exercise its discretion to excuse that delay or default” (…see CPLR 2005). A claim of law office failure should be supported by a “detailed and credible” explanation of the default … . “[M]ere neglect” …  or “[b]are allegations of incompetence on the part of prior counsel”…  are insufficient to establish a reasonable excuse … .

Here, in support of their motion, the corporate defendants submitted an affidavit … , which alleged, without supporting evidence, that prior retained counsel had not informed him of the need to answer the complaint. Such a bare allegation is insufficient to establish a reasonable excuse for the corporate defendants' default … . Ferraro Foods, Inc. v Guyon, Inc., 2018 NY Slip Op 06515, Second Dept 10-3-18

CIVIL PROCEDURE (LAW OFFICE FAILURE ALLEGATIONS WERE INSUFFICIENT TO SUPPORT VACATION OF A DEFAULT JUDGMENT (SECOND DEPT))/CPLR 5015 (LAW OFFICE FAILURE ALLEGATIONS WERE INSUFFICIENT TO SUPPORT VACATION OF A DEFAULT JUDGMENT (SECOND DEPT))/CPLR 2005 (LAW OFFICE FAILURE ALLEGATIONS WERE INSUFFICIENT TO SUPPORT VACATION OF A DEFAULT JUDGMENT (SECOND DEPT))/CPLR 5015 (LAW OFFICE FAILURE ALLEGATIONS WERE INSUFFICIENT TO SUPPORT VACATION OF A DEFAULT JUDGMENT (SECOND DEPT))/DEFAULT JUDGMENT  (LAW OFFICE FAILURE ALLEGATIONS WERE INSUFFICIENT TO SUPPORT VACATION OF A DEFAULT JUDGMENT (SECOND DEPT))/CPLR 5015 (LAW OFFICE FAILURE ALLEGATIONS WERE INSUFFICIENT TO SUPPORT VACATION OF A DEFAULT JUDGMENT (SECOND DEPT))/ATTORNEYS (LAW OFFICE FAILURE ALLEGATIONS WERE INSUFFICIENT TO SUPPORT VACATION OF A DEFAULT JUDGMENT (SECOND DEPT))/CPLR 5015 (LAW OFFICE FAILURE ALLEGATIONS WERE INSUFFICIENT TO SUPPORT VACATION OF A DEFAULT JUDGMENT (SECOND DEPT))/LAW OFFICE FAILURE  (LAW OFFICE FAILURE ALLEGATIONS WERE INSUFFICIENT TO SUPPORT VACATION OF A DEFAULT JUDGMENT (SECOND DEPT))/CPLR 5015 (LAW OFFICE FAILURE ALLEGATIONS WERE INSUFFICIENT TO SUPPORT VACATION OF A DEFAULT JUDGMENT (SECOND DEPT))

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DEFENDANT’S MOTION TO CANCEL AND DISCHARGE THE MORTGAGE BASED ON THE EXPIRATION OF THE STATUTE OF LIMITATIONS SHOULD HAVE BEEN GRANTED, NO GROUNDS FOR IMPOSING AN EQUITABLE MORTGAGE IN FAVOR OF PLAINTIFF (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant's motion to cancel and discharge the mortgage based upon the expiration of the statute of limitations should have been granted. The court noted that Supreme Court's imposition of an equitable mortgage was improper under the facts:

RPAPL 1501(4) provides that “[w]here the period allowed by the applicable statute of limitation for the commencement of an action to foreclose a mortgage . . . has expired,” any person with an estate or interest in the property may maintain an action “to secure the cancellation and discharge of record of such encumbrance, and to adjudge the estate or interest of the plaintiff in such real property to be free therefrom”… .

Here, the defendant established her prima facie entitlement to judgment as a matter of law on her counterclaim pursuant to RPAPL 1501(4) to cancel and discharge the mortgage by demonstrating that more than six years had passed since the mortgage was accelerated and therefore this foreclosure action was time-barred … . The plaintiff did not raise a triable issue of fact in opposition … . Thus, the Supreme Court should have granted that branch of the defendant's cross motion which was for summary judgment on her counterclaim pursuant to RPAPL 1501(4) to cancel and discharge the mortgage (see CPLR 213[4]; RPAPL 1501[4]…).

We disagree with the Supreme Court's determination to impose an equitable mortgage in favor of the plaintiff. The plaintiff never requested this relief, and the defendant was not afforded any notice nor an opportunity to be heard on this issue which amounted to a denial of the defendant's due process rights … . In any event, the doctrine of equitable mortgage is inapplicable to the circumstances of this case, where a legal written mortgage existed … . 21st Mtge. Corp. v Nweke, 2018 NY Slip Op 06509, Second Dept 10-3-18

FORECLOSURE (DEFENDANT'S MOTION TO CANCEL AND DISCHARGE THE MORTGAGE BASED ON THE EXPIRATION OF THE STATUTE OF LIMITATIONS SHOULD HAVE BEEN GRANTED, NO GROUNDS FOR IMPOSING AN EQUITABLE MORTGAGE IN FAVOR OF PLAINTIFF (SECOND DEPT))/REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (FORECLOSURE, DEFENDANT'S MOTION TO CANCEL AND DISCHARGE THE MORTGAGE BASED ON THE EXPIRATION OF THE STATUTE OF LIMITATIONS SHOULD HAVE BEEN GRANTED, NO GROUNDS FOR IMPOSING AN EQUITABLE MORTGAGE IN FAVOR OF PLAINTIFF (SECOND DEPT))/CIVIL PROCEDURE (FORECLOSURE, DEFENDANT'S MOTION TO CANCEL AND DISCHARGE THE MORTGAGE BASED ON THE EXPIRATION OF THE STATUTE OF LIMITATIONS SHOULD HAVE BEEN GRANTED, NO GROUNDS FOR IMPOSING AN EQUITABLE MORTGAGE IN FAVOR OF PLAINTIFF (SECOND DEPT))/EQUITABLE MORTGAGE  (DEFENDANT'S MOTION TO CANCEL AND DISCHARGE THE MORTGAGE BASED ON THE EXPIRATION OF THE STATUTE OF LIMITATIONS SHOULD HAVE BEEN GRANTED, NO GROUNDS FOR IMPOSING AN EQUITABLE MORTGAGE IN FAVOR OF PLAINTIFF (SECOND DEPT))

ALTHOUGH DEFENDANTS, RESIDENTS OF ISRAEL, HAD TIMELY NOTICE OF A NEW YORK LAWSUIT, THE PROCESS SERVER’S AFFIDAVIT INDICATES DUE DILIGENCE IN A FAILED ATTEMPT TO SERVE DEFENDANTS AT A NEW YORK ADDRESS, BECAUSE DEFENDANTS WERE NEVER SERVED, THE DEFAULT JUDGMENT IS A NULLITY (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined that, although defendants received timely notice of a lawsuit, they were never served with the summons and complaint. The affidavit of the process server demonstrated due diligence in a failure to serve defendants, residents of Israel, at a New York address. The default judgment, therefore, was a nullity:

CPLR 317 applies where a defendant was served by means other than personal delivery, did not receive notice of the action, and has a potentially meritorious defense… . Here, the defendants claimed they were never served. Therefore, they sought to vacate the default judgment against them pursuant to CPLR 5015(a)(4) for lack of personal jurisdiction. On this point, the affidavit of service of a process server generally constitutes prima facie evidence of proper service… . In this case, however, the process server submitted affidavits of exercising due diligence to attempt service, not affidavits of service.

If service is not made, the default judgment is a nullity … . If a defendant is not served, “notice received by means other than those authorized by statute cannot serve to bring a defendant within the jurisdiction of the court”… .

Since the defendants were not served, the defendants' motion to vacate so much of the judgment entered December 19, 2013, as was in favor of the plaintiff and against them in the principal sum of $676,928.23, and to dismiss the complaint insofar as asserted against them should have been granted. 2004 McDonald Ave. Corp. v KGYM Holdings Group, Inc., 2018 NY Slip Op 06508, Second Dept 10-3-18

CIVIL PROCEDURE (ALTHOUGH DEFENDANTS, RESIDENTS OF ISRAEL, HAD TIMELY NOTICE OF A NEW YORK LAWSUIT, THE PROCESS SERVER'S AFFIDAVIT INDICATES DUE DILIGENCE IN A FAILED ATTEMPT TO SERVE DEFENDANTS AT A NEW YORK ADDRESS, BECAUSE DEFENDANTS WERE NEVER SERVED, THE DEFAULT JUDGMENT IS A NULLITY (SECOND DEPT))/CPLR 317 (ALTHOUGH DEFENDANTS, RESIDENTS OF ISRAEL, HAD TIMELY NOTICE OF A NEW YORK LAWSUIT, THE PROCESS SERVER'S AFFIDAVIT INDICATES DUE DILIGENCE IN A FAILED ATTEMPT TO SERVE DEFENDANTS AT A NEW YORK ADDRESS, BECAUSE DEFENDANTS WERE NEVER SERVED, THE DEFAULT JUDGMENT IS A NULLITY (SECOND DEPT))/CPLR 5015  (ALTHOUGH DEFENDANTS, RESIDENTS OF ISRAEL, HAD TIMELY NOTICE OF A NEW YORK LAWSUIT, THE PROCESS SERVER'S AFFIDAVIT INDICATES DUE DILIGENCE IN A FAILED ATTEMPT TO SERVE DEFENDANTS AT A NEW YORK ADDRESS, BECAUSE DEFENDANTS WERE NEVER SERVED, THE DEFAULT JUDGMENT IS A NULLITY (SECOND DEPT))/DEFAULT JUDGMENT (CIVIL PROCEDURE, ALTHOUGH DEFENDANTS, RESIDENTS OF ISRAEL, HAD TIMELY NOTICE OF A NEW YORK LAWSUIT, THE PROCESS SERVER'S AFFIDAVIT INDICATES DUE DILIGENCE IN A FAILED ATTEMPT TO SERVE DEFENDANTS AT A NEW YORK ADDRESS, BECAUSE DEFENDANTS WERE NEVER SERVED, THE DEFAULT JUDGMENT IS A NULLITY (SECOND DEPT))/SERVICE OF PROCESS  (ALTHOUGH DEFENDANTS, RESIDENTS OF ISRAEL, HAD TIMELY NOTICE OF A NEW YORK LAWSUIT, THE PROCESS SERVER'S AFFIDAVIT INDICATES DUE DILIGENCE IN A FAILED ATTEMPT TO SERVE DEFENDANTS AT A NEW YORK ADDRESS, BECAUSE DEFENDANTS WERE NEVER SERVED, THE DEFAULT JUDGMENT IS A NULLITY (SECOND DEPT))

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