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Law Office Failure Can Be a Valid Excuse Re: Vacating a Default Judgment

In reversing Supreme Court’s denial of a motion to vacate a default judgment, the Fourth Department explained that law office failure can be excused:

The court erred in rejecting that excuse on the ground that “law office failure is not an excuse that is accepted by the Court of Appeals.”    It is well established that law office failure may be excused, in the court’s discretion, when deciding a motion to vacate a default order (see CPLR 2005;…). With respect to other relevant factors, we note that defendants had contested plaintiff’s claims in federal court for more than a year before this action was recommenced in Supreme Court, and their attorneys had filed timely notices of appearances in Supreme Court and had been communicating with plaintiff’s attorney before the answer was due. We further note that plaintiff was not prejudiced by defendants’ inadvertent default, and that the extent of the delay was minimal. Calaci v Allied Interstate, Inc…, 750, 4th Dept 7-5-13

 

Motion to Amend Answer Should Have Been Allowed—Prejudice in this Context Explained

In reversing Supreme Court in a case concerning whether an assault was covered under an insurance policy, the Fourth Department determined the defendant insurance company’s motion for leave to amend its answer should have been granted and plaintiffs’ motion for summary judgment should have been denied.  After finding that the amendment was meritorious, the Fourth Department explained how to analyze whether an amendment would “prejudice” the defendant:

“ ‘Prejudice may be found where a party has incurred some change in position or hindrance in the preparation of its case which could have been avoided had the original pleading contained the proposed amendment’ ”… . Here, the alleged prejudice would not have been avoided had the original answer contained the proposed amendment.    “[T]he fact that an amended pleading may defeat a party’s cause of action is not a sufficient basis for denying [a] motion to amend”….  Williams… v New York Central Fire Insurance Company, 705, 4th Dept 7-5-13

 

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Attorney’s Illness Was Adequate Excuse—Vacation of Preclusion Order Allowed

The Fourth Department affirmed Supreme Court’s allowing plaintiff in a medical malpractice action to respond to discovery demands, after the court had precluded plaintiff for not responding.  Plaintiff’s attorney’s illness provided a reasonable excuse, and the expert’s affirmation (later converted to an affidavit as directed by the court) demonstrated a meritorious action:

“It is well established that the illness of an attorney may constitute a reasonable excuse for a default… . In support of the motion, plaintiff’s counsel averred that, from early 2010 until shortly before his motion to vacate the default order, he was suffering from recurring health issues stemming from two heart attacks, a serious infection requiring hospitalization, and uncontrolled Type II diabetes. According to counsel, those medical issues “affected [his] health in an ongoing manner and prevented [him] from diligently and timely responding to [defendants’] demands in this case.” There is no evidence that counsel’s neglect in this case was “willful, contumacious or manifested bad faith” … . Particularly in light of New York’s “strong public policy . . . [in favor of] disposing of cases on their merits”…, we conclude that “[w]here, as here, there is no evidence of willfulness, deliberate default, or prejudice to the defendants, the interest of justice is best served by permitting the case to be decided on its merits” ….  Loucks v Klimek, 477, 4th Dept 7-5-13

 

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Judge’s Mistrial Order Precluded Retrial—Double Jeopardy

In precluding a retrial on double jeopardy grounds after the trial judge ordered a mistrial over defendant’s objection (granting the Article 78 prohibition petition), the Second Department explained the relevant criteria:

In a jury trial, once the jury is empaneled and sworn, jeopardy attaches (see CPL 40.30[1][b];..), and the defendant has a “valued right to have his [or her] trial completed by a particular tribunal” ….  ” [W]hen a mistrial is granted over the defendant’s objection or without the defendant’s consent, double jeopardy will, as a general rule, bar retrial'”…. “However, the right to have one’s case decided by the first empaneled jury is not absolute, and a mistrial granted as the product of manifest necessity will not bar a retrial”… .”Manifest necessity” means “a high degree of necessity”; “the reasons underlying the grant of a mistrial must be necessitous, actual and substantial” …. ” Even if the reasons for granting a mistrial are deemed actual and substantial, the court must explore all appropriate alternatives prior to granting a mistrial'”…. Mistrials premised on the prejudicial effect of improper evidence or argument are entitled to “great deference” …, since “the Trial Judge, better than any other, . . . can detect the ambience of partiality”…. Nonetheless, the trial judge must “temper the decision whether or not to abort the trial by considering the importance to the defendant of being able, once and for all, to conclude his [or her] confrontation with society through the verdict of a tribunal he [or she] might believe to be favorably disposed to his [or her] fate” … . Matter of Taylor v Dowling, 2013 NY Slip Op 05089, 2nd Dept 7-3-13

 

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Factual Question About Whether Family Court Had Jurisdiction Over Visitation Modification Where Supreme Court Originally Ordered Visitation

In remitting the matter to Family Court, the Second Department determined Family Court should have examined the evidence to determine whether it had jurisdiction over a petition to modify visitation where the initial visitation determination was part of a divorce action in Supreme Court:

The Family Court erred in declining to sign the order to show cause accompanying the father’s petition to modify visitation …. Since the initial visitation determination in this matter was made as part of a stipulation of settlement entered into during the parties’ divorce proceedings before the Supreme Court, it was error for the Family Court to summarily decline to sign the order to show cause on jurisdictional grounds. Instead, the Family Court should have signed the order to show cause and then directed the parties to submit evidence on the issue of whether the Family Court retained exclusive, continuing jurisdiction over the visitation issues…. Matter of Ramirez v Gunder, 2013 NY Slip Op 05086, 2nd Dept 7-3-13

 

Summary Judgment Premature—Disclosure Necessary

In finding Supreme Court should have treated defendant’s motion, which was made after issue was joined, as a motion for summary judgment (not a motion to dismiss), the Second Department determined the motion should not have been granted because facts essential to oppose the motion may exist but could not yet be stated:

An award of summary judgment would be premature at this stage of the case. CPLR 3212(f) permits a court to deny a motion for summary judgment where it appears that the facts essential to oppose the motion “exist but cannot then be stated” (CPLR 3212[f];…). ” This is especially so where the opposing party has not had a reasonable opportunity for disclosure prior to the making of the motion'”…. Here, the defendant’s motion to dismiss the complaint was made prior to the parties conducting depositions. Since the plaintiffs had no personal knowledge of the relevant facts, they should be afforded the opportunity to conduct discovery, including depositions of the defendant’s employees and other witnesses that were present during the incident complained of….  Wesolowski v St Francis Hosp, 2013 NY Slip Op 05061, 2nd Dept 7-3-13

 

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Only Attorney Can Represent Voluntary Association—Appeals Dismissed

In dismissing the appeals, the First Department held that only an attorney can represent a voluntary association

Petitioner is a voluntary association comprised of rent-regulated tenants in the subject building. Patricia Pillette is a member of the association and appears pro se purportedly on behalf of the association. However, Pillette is not an attorney, and a voluntary association may only be represented by an attorney and not by one of its members who is not an attorney admitted to practice in the state of New York (see CPLR 321[a]). Accordingly, petitioner’s failure to appear by attorney requires dismissal of the appeals… .  Matter of Tenants Comm of 36 Gramercy Park v NYS Div of Hous & Community Renewal, 2013 NY Slip Op 04984, 1st Dept 7-2-13

 

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Breach of Fiduciary Duty Allegations Not Specific Enough

The First Department determined plaintiff’s allegations in support of a breach of fiduciary duty cause of action were not specific enough to survive a motion to dismiss:

Because the underlying allegations of wrongdoing were inadequately pleaded, the fiduciary breach and injunction causes of action were not sustainable. Although plaintiff alleges, among other things, that defendant tried to prevent her from having any meaningful participation in the companies’ operation, her allegations are vague and conclusory, made without any specific instances of the alleged misconduct…. The lack of particularity with respect to plaintiff’s allegations of breach of fiduciary duty (CPLR 3016[b]) is not excused by the individual defendant’s alleged refusal to provide information or by the lack of discovery, as information regarding the alleged denial of participation in corporate management was not solely in the individual defendant’s possession…. Moreover, plaintiff failed to assert specific dates that she had requested information, or to specify the information she had requested….  Berardi v Beradi, 2013 NY Slip Op 04976, 1st Dept 7-2-13

 

Statute of Limitations for Article 78 “Mandamus to Compel;” Doctrine of Laches Applied

The Fourth Department affirmed the dismissal (as untimely) of an Article 78 proceeding against the City of Buffalo and others which sought to compel the city to investigate two fires pursuant to General Municipal Law section 204-d.  The Fourth Department explained when the four-month statute of limitations in this “mandamus to compel” action was triggered and applied the doctrine of laches:

…[T]the petition is in the nature of mandamus to compel inasmuch as petitioner seeks to “compel the performance of a ministerial act [imposed] by law”… . In such a proceeding, the four-month statute of limitations begins to run when a respondent refuses a petitioner’s demand that it “perform its duty” (CPLR 217 [1];…). The petitioner’s “demand must be made within a reasonable time after the right to make the demand occurs”…. Here, petitioner made a February 8, 2010 written demand to the Erie County District Attorney’s Office to conduct a further investigation. The Erie County District Attorney’s Office, however, is not a named respondent, and we conclude that petitioner “unreasonably delayed” in failing to make the demand to respondents on February 8, 2010 and that “this proceeding is barred by laches” ….  Matter of Van Tol v City of Buffalo…, 582, 4th Dept 6-28-13

 

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Chronic Nonpayment Not Subject to 15-Day Cure Period; Chronic Nonpayment is Treated Differently from Occasional Nonpayment

The First Department explained the legal principles which apply to chronic nonpayment of rent as follows:

…[P]laintiff chronically failed to pay its rent, having forced defendant to bring 10 nonpayment proceedings over the last seven years. This is a breach of a substantial obligation under the lease…, and is a type of default that plaintiff cannot cure within the 15-day cure period provided for in the lease …. Accordingly, plaintiff was properly denied a Yellowstone injunction, since that relief requires a showing that plaintiff is able to cure….  Defendant was not limited to a nonpayment proceeding under the term of the lease that provided for such proceedings for nonpayment. Chronic nonpayment is a violation of a different type than occasional nonpayment. Nor can plaintiff rely on any defect of the notice of default, since no such notice is even necessary for an action based on chronic nonpayment….  Definitions Personal Fitness Inc v 133 E 58th St LLC, 2013 NY Slip Op 04892, 1st Dept 6-27-13

 

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