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The Requirements of Certificates of Conformity and Authenticity (Re: the Admissibility of Out-of-State Affidavits) Explained

The Second Department, in a full-fledged opinion by Justice Dillon, reversed Supreme Court finding that an out-of-state affidavit re: the assignment of a note and mortgage was in admissible form and could therefore be considered in support of plaintiff’s summary judgment motion.  The court explained that, because the document was notarized, no “certificate of authentication” was needed, and the “certificate of conformity” which was provided was adequate under New York law:

Here, the affidavit of Josh Mills was necessary for the plaintiff to establish the assignment to it of the subject mortgage and note and the defendants’ default in payment. The primary issue on this appeal is whether Mills’s out-of-state affidavit was sworn to and conformed in a manner rendering it admissible in this state under CPLR 2309(c). * * *

The “certificate” required by CPLR 2309(c), commonly referred to in case law as a “certificate of conformity,” must contain language attesting that the oath administered in the foreign state was taken in accordance with the laws of that jurisdiction or the law of New York (see Real Property Law § 299-a[1]). A “certificate of conformity” is separate and distinct from a “certificate of authentication,” which attests to the oathgiver’s authority under the foreign jurisdiction to administer oaths … .  * * *

A combined reading of CPLR 2309(c) and Real Property Law §§ 299 and 311(5) leads to the inescapable conclusion that where, as here, a document is acknowledged by a foreign state notary, a separate “certificate of authentication” is not required to attest to the notary’s authority to administer oaths … .  * * *

Nevertheless, CPLR 2309(c) requires that even when a notary is the foreign acknowledging officer, there must still be a “certificate of conformity” to assure that the oath was administered in a manner consistent with either the laws of New York or of the foreign state. In other words, a certificate of conformity is required whenever an oath is acknowledged in writing outside of New York by a non-New York notary, and the document is proffered for use in New York litigation. * * *

Here, the Supreme Court erred in concluding that the Mills affidavit was not accompanied by a certificate of conformity, as the “Uniform, All Purpose Certificate of Acknowledgment,” appended to the Mills affidavit, substantially conformed with the template requirement of Real Property Law § 309-b and constituted a certificate of conformity. * * * Midfirst Bank v Agho, 2014 NY Slip OP 05778, 2nd Dept 8-13-14

 

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Distinction Between New York College Funds, Which Are Protected Against Creditors, and College Funds Established in Other States, Which Are Not Protected, Does Not Violate the Equal Protection Clause

The Second Department determined that a college fund established under the laws of New Hampshire, unlike a college fund established under the laws of New York, was not entitled to the protection from creditors afforded by CPLR 5205.  The distinction between New York funds and funds established in other states was deemed to be constitutional:

The parties do not dispute that the protection from creditors afforded by CPLR 5205(j)(2) to college tuition savings program accounts defined in 26 USC § 529 (hereinafter 529 savings plans) does not apply where, as here, the accounts are not qualified college savings program accounts established pursuant to the New York State College Choice Tuition Saving Program, as set forth in Education Law article 14-A. The Supreme Court correctly concluded that the distinction made in CPLR 5205(j) between 529 savings plans established under the laws of New York, and those established in other states, or under the laws of other states, does not violate the equal protection clause of the United States Constitution. Since the classification “is not based on an inherently suspect characteristic and does not impermissibly interfere with the exercise of a fundamental right, it need only rationally further a legitimate state interest to be upheld as constitutional” … . Applying this standard of rational basis review, the court properly determined that CPLR 5205(j) was not unconstitutional, as the disparate treatment is not ” so unrelated to the achievement of any combination of legitimate purposes'” as to be irrational … . County Bank v Broderick, 2014 NY Slip Op 05621, 2nd Dept 8-6-14

 

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Plaintiff Should Have Been Allowed to Add Doctor to Medical Malpractice Action After the Statute of Limitations Had Run—All the Relation-Back Criteria Were Met

The Second Department, reversing Supreme Court, found that the relation-back doctrine allowed the addition of a doctor (Persky) to a malpractice action after the statute of limitations had run.  Several notes in decedent’s medical records were signed by the doctor and the decedent died soon after she was discharged from the hospital, which plaintiff alleged was premature.  The court explained the relevant law:

“The relation-back doctrine, which is codified in CPLR 203(b), allows a claim asserted against a defendant in an amended complaint to relate back to claims previously asserted against a codefendant for statute of limitations purposes where the two defendants are united in interest'” … . In order for a claim asserted against a new defendant to relate back to the date the claim was filed against another defendant, the plaintiff must establish that (1) both claims arose out of the same conduct, transaction, or occurrence; (2) the new defendant is united in interest with the original defendant, and by reason of that relationship can be charged with notice of the institution of the action such that he or she will not be prejudiced in maintaining a defense on the merits; and (3) the new defendant knew or should have know that, but for a mistake by the plaintiff as to the identity of the proper parties, the action would have been brought against him or her as well … . “The linchpin’ of the relation-back doctrine is whether the new defendant had notice within the applicable limitations period” … .

it was not reasonable for Persky to conclude that the plaintiff intended to proceed only against the defendants named in the original summons and complaint, especially since the decedent died soon after she was discharged from the hospital, and the complaint asserted specific allegations of negligence relating to the decedent’s premature hospital discharge … . In addition, contrary to the conclusion of the Supreme Court, the plaintiff demonstrated that the failure to originally name Persky as a defendant was the result of a mistake, and there was no need to show that such mistake was excusable … . Roseman v Baranowski, 2014 NY Slip Op 05635, 2nd Dept 8-6-14

 

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“Sua Sponte” Dismissal of Complaint Based on Lack of Standing Reversed

The Second Department, in a foreclosure action, determined Supreme Court abused its discretion in dismissing, sua sponte, the complaint on the ground the plaintiff lacked standing.  The court explained that sua sponte dismissal is warranted only in extraordinary circumstances, the defendants had not raised the “lack of standing” defense, and lack of standing is not a jurisdictional defect:

A court’s power to dismiss a complaint, sua sponte, is to be used sparingly and only when extraordinary circumstances exist to warrant dismissal … . Here, the Supreme Court was not presented with extraordinary circumstances warranting sua sponte dismissal of the complaint and cancellation of the notice of pendency. Since the defendants did not answer the complaint and did not make pre-answer motions to dismiss the complaint, they waived the defense of lack of standing … . Furthermore, a party’s lack of standing does not constitute a jurisdictional defect and does not warrant a sua sponte dismissal of the complaint by the court … . Bank of NY v Cepeda, 2014 NY Slip Op 05614, 2nd Dept 8-6-14

 

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Advertising in New York and an Interactive Website Not Enough to Exercise Long-Arm Jurisdiction

The Second Department determined Supreme Court properly dismissed an action against a Vermont ski business (Killington) because plaintiffs failed demonstrate a basis for New York’s long-arm jurisdiction. The court noted that advertising in New York and the existence of an interactive website through which out-of-state residents make reservations for participation in the defendant’s ski camp was not sufficient to bring the defendant within the jurisdiction of New York courts:

Even assuming that Killington engaged in substantial advertising in New York, as the plaintiffs claim, the plaintiffs have not demonstrated that Killington also engaged in substantial activity within this State sufficient to satisfy the solicitation-plus standard. Contrary to the plaintiffs’ contention, this Court’s decision in Grimaldi v Guinn (72 AD3d 37, 49-50) does not stand for the principle that a business’s interactive website, accessible in New York, subjects it to suit in this State for all purposes. Instead, the Grimaldi decision stands only for the more limited principle that a website may support specific jurisdiction in New York where the claim asserted has some relationship to the business transacted via the website … . Here, even Killington’s alleged substantial solicitation in New York constitutes no more than solicitation … .

CPLR 302(a)(1), the section of New York’s long-arm statute at issue in this case, grants New York courts jurisdiction over nondomiciliaries when the action arises out of the nondomiciliaries’ “transact[ion of] any business within the state or contract [] . . . to supply goods or services in the state” (CPLR 302[a][1]). Pursuant to CPLR 302(a)(1), jurisdiction is proper “even though the defendant never enters New York, so long as the defendant’s activities here were purposeful and there is a substantial relationship between the transaction and the claim asserted” … . “Purposeful activities are those with which a defendant, through volitional acts, avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws'” … . Mejia-Haffner v Killington, Ltd, 2014 NY Slip OP 05522, 2nd Dept 7-30-14

 

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Bank Did Not Negotiate a Mortgage Modification in Good Faith as Required by CPLR 3408—Applicable “Good Faith” Standard Determined and Explained

The Second Department, in a full-fledged opinion by Justice Leventhal, determined that Supreme Court had properly found that plaintiff bank did not negotiate in good faith a mortgage modification pursuant to the Home Affordable Mortgage Program (HAMP) (CPLR 3408).  In the course of the opinion, the court described the applicable “good faith” standard:

…[W]e hold that the issue of whether a party failed to negotiate in “good faith” within the meaning of CPLR 3408(f) should be determined by considering whether the totality of the circumstances demonstrates that the party’s conduct did not constitute a meaningful effort at reaching a resolution. We reject the plaintiff’s contention that, in order to establish a party’s lack of good faith pursuant to CPLR 3408(f), there must be a showing of gross disregard of, or conscious or knowing indifference to, another’s rights. Such a determination would permit a party to obfuscate, delay, and prevent CPLR 3408 settlement negotiations by acting negligently, but just short of deliberately, e.g., by carelessly providing misinformation and contradictory responses to inquiries, and by losing documentation. Our determination is consistent with the purpose of the statute, which provides that parties must negotiate in “good faith” in an effort to resolve the action, and that such resolution could include, “if possible,” a loan modification (CPLR 3408[f]…).

Where a plaintiff fails to expeditiously review submitted financial information, sends inconsistent and contradictory communications, and denies requests for a loan modification without adequate grounds, or, conversely, where a defendant fails to provide requested financial information or provides incomplete or misleading financial information, such conduct could constitute the failure to negotiate in good faith to reach a mutually agreeable resolution.

In this case, the totality of the circumstances supports the Supreme Court’s determination that the plaintiff failed to act in good faith, as the plaintiff thwarted any reasonable opportunities to settle the action, thus contravening the purpose and intent of CPLR 3408. US Bank NA v Sarmiento, 2014 NY Slip Op 05533, 2nd Dept 7-30-14

 

Defendant’s Failure to Comply with Discovery Orders Warranted Striking the Answer

The Second Department determined defendant’s answer was properly struck due to defendant’s failure to comply with the court’s orders concerning discovery:

“[A] trial court is given broad discretion to oversee the discovery process” … . When a party fails to comply with a court order and frustrates the disclosure scheme set forth in the CPLR, it is within the court’s discretion to strike the “pleadings or parts thereof” (CPLR 3126[3]) as a sanction against such party … . However, public policy favors the resolution of cases on the merits … . Accordingly, “the drastic remedy’ of striking a pleading pursuant to CPLR 3126 should not be imposed unless the failure to comply with discovery demands or orders is clearly willful and contumacious” … . “Willful and contumacious conduct may be inferred from a party’s repeated failure to comply with court-ordered discovery, coupled with inadequate explanations for the failures to comply or a failure to comply . . . with court-ordered discovery over an extended period of time” … .

Here, the plaintiff moved to strike the answer insofar as asserted by the defendant Roger Powell (hereinafter the defendant) almost three years after commencing this action. At that time, the defendant still had not appeared for a deposition, despite numerous “so-ordered” extensions entered into between counsel for the parties, and in violation of a court order directing him to appear for such deposition. In opposition to the motion, defense counsel’s investigator stated that he had been unable to locate the defendant. Under these circumstances, the Supreme Court providently exercised its discretion in granting that branch of the plaintiff’s motion which was to strike the answer insofar as asserted by the defendant and to direct an inquest against him … . Stone v Zinoukhova, 2014 NY Slip Op 05532, 2nd Dept 7-30-14

 

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Successive Summary Judgment Motions OK Based On Evidence Learned in Discovery

The Third Department noted that successive summary judgment motions are allowed where discovery turns up new evidence.  In this case summary judgment was granted to the defendants who were struck by plaintiff’s decedent’s vehicle which had crossed over into on-coming traffic:

Although successive summary judgment motions are generally discouraged absent “‘a showing of newly discovered evidence or other sufficient cause'” …, where, as here, evidence produced from additional discovery places the motion court “in a far better position to determine” a legally dispositive issue, the court should not be precluded from exercising its discretion to consider the merits of a subsequent motion … . Foster v Kelly, 2014 NY Slip Op 05472, 3rd Dept 7-24-14

 

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Criteria for Determining a Motion to Amend the Pleadings Explained

In reversing Supreme Court’s denial of a motion for leave to serve a second amended complaint, the Second Department explained the criteria for determining the motion:

“Applications for leave to amend pleadings under CPLR 3025(b) should be freely granted unless the proposed amendment (1) would unfairly prejudice or surprise the opposing party, or (2) is palpably insufficient or patently devoid of merit” … .

“No evidentiary showing of merit is required under CPLR 3025(b)” … . “The court need only determine whether the proposed amendment is palpably insufficient’ to state a cause of action or defense, or is patently devoid of merit” (id.). “[A] court shall not examine the legal sufficiency or merits of a pleading unless such insufficiency or lack of merit is clear and free from doubt” … . Favia v Harley-Davidson Motor Co Inc, 2014 NY Slip Op 05408, 2nd Dept 7=23=14

 

Extremely Forgiving Nature of CPLR 3216 (Dismissal for Neglect to Prosecute) Explained

The Second Department noted the “extremely forgiving” nature of CPLR 3216 in affirming Supreme Court’s denial of a motion to dismiss for neglect to prosecute:

CPLR 3216 is “extremely forgiving” … in that it “never requires, but merely authorizes, the Supreme Court to dismiss a plaintiff’s action based on the plaintiff’s unreasonable neglect to proceed” … . While the statute prohibits the Supreme Court from dismissing an action based on neglect to proceed whenever the plaintiff has shown a justifiable excuse for the delay in the prosecution of the action and a meritorious cause of action (see CPLR 3216[e]…), such a dual showing is not strictly necessary to avoid dismissal of the action … . Altman v Donnenfeld, 2014 NY Slip Op 05402, 2nd Dept 7-23-14

 

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