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Relief Granted By Court Went Too Far Beyond Relief Requested

In a partition action, the First Department determined Supreme Court ordered relief which went too far beyond the relief requested in the motion papers and explained the relevant principles:

Pursuant 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” (CPLR 5015[a] [emphasis added]…). ” 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'” … . Likewise, while a court “may grant relief, pursuant to a general prayer contained in the notice of motion or order to show cause, other than that specifically asked for, to such extent as is warranted by the facts plainly appearing [in] the papers on both sides,” it may do so only “if the relief granted is not too dramatically unlike the relief sought, and if the proof offered supports it and the court is satisfied that no one has been prejudiced by the formal omission to demand it specifically” … .  Carter v Johnson, 2013 NY Slip Op 06333, 2nd Dept 10-2-13

 

 

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Writ of Prohibition Barring Retrial Granted—Mistrial Granted Without Consent of Defendant Was Not Justified

The First Department granted a writ of prohibition barring a retrial of the defendant because the judge ordered a mistrial without the consent of the defendant based upon a comment made by defense counsel in summation. The First Department determined the comment was not sufficiently prejudicial to justify the mistrial:

Jeopardy attaches once a jury has been selected and sworn … . When a mistrial is declared without the consent or over the objection of a criminal defendant, the prohibition against double jeopardy contained in the Fifth Amendment of the United States Constitution and in section 6 of article I of the New York State Constitution bars retrial for the same offense or offenses unless there is a manifest necessity for the mistrial or the ends of public justice would otherwise be defeated … . Here, as the People concede, counsel’s summation comment was not overly prejudicial and provided no basis for a mistrial on “manifest necessity” or “ends of public justice” grounds. Matter of Smith v Williams, 2013 NY Slip Op 06329, 1st Dept 10-1-13

 

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Failure to Serve Claim by Certified Mail Deprived Court of Claims of Subject Matter Jurisdiction

The Fourth Department affirmed the Court of Claims’ dismissal of an action for failure to comply with the statutory service-of-claim-by-certified-mail requirement.  The court noted that the court never gained subject matter jurisdiction and, therefore, the CPLR 3211 (e) waiver provision, which addressed personal, not subject matter, jurisdiction, did not apply:

…[C]laimants served their claim on the Attorney General by regular mail instead of by certified mail, return receipt requested, as required by Court of Claims Act § 11. Defendant’s answer raised the defense that the court lacked, inter alia, subject matter jurisdiction based on claimants’ improper service, and defendant later moved to dismiss the claim on that ground.  Claimants opposed the motion and cross-moved for an order deeming the service corrected or disregarded pursuant to CPLR 2001. The court granted defendant’s motion and denied claimants’ cross motion, and we now affirm.

Court of Claims Act § 11 (a) (i) provides that a party seeking to file a claim against the State of New York must serve a copy of the claim upon the Attorney General by certified mail, return receipt requested.  It is well settled that “nothing less than strict compliance with the jurisdictional requirements of the Court of Claims Act is necessary” … .  Inasmuch as the claim herein was served by regular mail, the court was deprived of subject matter jurisdiction and thus properly dismissed the claim … . Contrary to claimants’ contention, defendant’s motion to dismiss on the ground of improper service, made approximately 20 months after service of its answer, was not precluded by the 60-day waiver provision of CPLR 3211 (e).  The failure to comply with the service requirements in the Court of Claims Act “result[s] not in a failure of personal jurisdiction, . . . but in a failure of subject matter jurisdiction[,] which may not be waived”… . Zoeckler…, v State of New York, 883, 4th Dept 9-27-13

 

Failure to Serve Complaint Upon Demand Required Dismissal of the Action

The Fourth Department determined defendant’s motion to dismiss the action based upon plaintiff’s failure to serve a complaint after a demand should have been granted:

“To avoid dismissal for failure to timely serve a complaint after a demand for the complaint has been made pursuant to CPLR 3012 (b), a plaintiff must demonstrate both a reasonable excuse for the delay in serving the complaint and a meritorious cause of action” … . Here, plaintiff failed to meet her burden with respect to either prong of that test.  Concerning the first part of the test, plaintiff asserted that she delayed in filing the complaint because she did not receive defendant’s demand for the complaint.  In our view, that excuse is not reasonable… .  Service of the demand for the complaint was complete upon – mailing (see CPLR 2103 [b] [2]), and defendant’s submission in support of its motion of a proper affidavit of service of the demand entitled it to the presumption that a proper mailing occurred … .  We agree with defendant that plaintiff’s mere denial of receipt of the demand was insufficient to rebut that presumption … .  Even assuming, arguendo, that nonreceipt of the demand was a reasonable excuse, we conclude that plaintiff failed to establish a meritorious cause of action with a verified complaint or an affidavit of merit, and thus dismissal of the action is required… . Dunlop v Saint Leo the Great, RC Church, 865, 4th Dept 9-27-13

 

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No Appeal Lies from an Order Entered Upon a Default

The Fourth Department noted that no appeal lies from an order entered upon a default. The only remedy is a motion to vacate the default order:

Plaintiff appeals from an order granting the respective motion and cross motions of defendants seeking summary judgment dismissing the second amended complaint against them.  It is undisputed that plaintiff failed to oppose the motion and cross motions or to appear on the return date thereof, and thus we deem the order to be entered upon plaintiff’s default… . We therefore dismiss the appeal from the order inasmuch as no appeal lies from an order entered on default … .  The fact that Supreme Court, upon plaintiff’s default, granted the motion and cross motions on the merits … is of no moment inasmuch as no appeal lies from an order entered on default.  “[I]t is not inconsistent to determine both that plaintiff[ is] in default and that defendants are entitled to summary judgment on the merits.  Plaintiff[’s] remedy is to move to vacate the default [order]”… .  Britt…v Buffalo Municipal Housing Authority…, 977, 4th Dept 9-27-13

 

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Four-Year Rent-Overcharge Statute of Limitations Does Not Apply Where There Is Fraud

The First Department noted that the four-year statute of limitations for rent-overcharge actions does not apply where fraud in involved, because the fraud renders the underlying lease void:

We are not persuaded that plaintiffs’ overcharge claim is barred by the four-year statute of limitations. As we noted in Matter of Grimm v State of N.Y. Div. of Hous. & Community Renewal Off. of Rent Admin. (68 AD3d 29, 32, affd 15 NY3d 358, 366 [2010] [citations ommitted]), “while the applicable four-year statute of limitations reflects a legislative policy to alleviate the burden on honest landlords to retain rent records indefinitely,’ and thus precludes us from using any rental history prior to the base date, where there is fraud . . . the lease is rendered void[,]” and the legal rent is to be determined by the default formula … . We went on to note that “[s]anctioning the owner’s behavior on a statute of limitations ground can result in a future tenant having to pay more than the legal stabilized rent for a unit, a prospect which militates in favor of voiding agreements such as this in order to prevent abuse and promote enforcement of lawful regulated rents'” … . We thus hold that the four year statute of limitations is not a bar in a rent overcharge claim where there is significant evidence of fraud on the record… . Conason v Megan Holding LLC, 2013 NY Slip Op 05956, 1st Dept 9-24-13

 

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Petition Seeking Revocation of Building Permit Should Have Named the Director Who Had the Power to Revoke It

In affirming the grant of a building permit by the village board of appeals (BOA), the Second Department noted that only Director of Building, Code Enforcement and Land Use Administration had the power to revoke a building permit and therefore the Director should have been named in the Article 78 proceeding seeking revocation: …[I]n a proceeding pursuant to CPLR article 78 which seeks to compel a body or officer to perform a duty imposed by law, the proceeding must be commenced against the body or officer whose performance is sought (see CPLR 7803). The petitioners sought to compel the BOA to revoke the building permit and any subsequently issued certificate of occupancy. However, only the Director is empowered to do so (see Village Code §§ 126-7, 126-12, 126-15). Thus, the petitioners should have named and joined the Director as a party to this proceeding … .  Matter of Lucas v Board of Appeals of Vil of Mamaroneck, 2013 NY Slip Op 05908, 2nd Dept 9-18-13

 

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New Affidavits Properly Allowed in Foreclosure Proceedings; Accuracy of the Execution or Notarizations of the Original Affidavits Could Not Be Confirmed

In affirming Supreme Court’s granting of plaintiff’s motion to substitute new affidavits of merit in a foreclosure proceeding because the accuracy of the execution and/or notarizations of the original affidavits could not be confirmed, the Second Department explained:

CPLR 2001 permits a court, at any stage of an action, to disregard a party’s mistake, omission, defect, or irregularity if a substantial right of a party is not prejudiced … . ” 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'” … . The provisions in CPLR 2001 and 5019(a) may only be employed to correct errors where the corrections do not affect a substantial right of the parties … .

Under the facts of this case, the Supreme Court providently exercised its discretion in granting the plaintiff’s motion. No substantial right of Eaddy [the defendant] will be affected by the court’s substitution of the new affidavits of merit and of the amount due … . The new proposed affidavits of merit and of the amount due list the same amounts due and owing as those stated in the original affidavits submitted with the application for the order of reference and the application for the judgment of foreclosure and sale. Further, Eaddy has remained in possession of the subject property throughout the pendency of the instant action. US Bank NA v Eaddy, 2013 NY Slip Op 05896, 2nd Dept 9-18-13

 

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Criteria for Seizure of Equipment Explained

In reversing Supreme Court, the Second Department determined the plaintiff, in a replevin action, was not required to demonstrate irreparable harm in an action for seizure pursuant to CPLR 7102.  The defendant had defaulted on an equipment lease.  The court wrote:

Pursuant to CPLR 7102(c) and (d), on a motion for an order of seizure, a plaintiff must demonstrate a likelihood of success on its cause of action for replevin and the absence of a valid defense to its claim … . Here, the plaintiff made such a showing … . Contrary to the court’s determination, the plaintiff was not required to demonstrate that it would suffer irreparable injury in order to obtain an order of seizure pursuant to CPLR 7102.  TCF Equip Fin Inc v Interdimensional Interiors, Inc, 2013 NY Slip 05893, 2nd Dept 9-18-13

 

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Opening Statement Provided Grounds for Dismissal of False Arrest/Malicious Prosecution Action

The Second Department affirmed Supreme Court’s grant of a judgment as a matter of law to the defendant in a false arrest/malicious prosecution case based upon plaintiff’s counsel’s opening statement. In the opening, counsel stated the defendant had been arrested after the eyewitness victim made an in-person identification of the plaintiff to a police officer.  Because the eyewitness identification provided probable cause for the arrest, the false arrest and malicious prosecution causes of action were not viable:

An application for judgment as a matter of law may be made at the close of an opposing party’s case, or at any time on the basis of admissions (see CPLR 4401). The grant of such an application prior to the close of the opposing party’s case is generally disfavored … . However, judgment as a matter of law may be warranted prior to the presentation of any evidence if the plaintiff has, “by some admission or statement of fact, so completely compromised his or her case that the court was justified in awarding judgment as a matter of law to one or more defendants”… . * * *

Here, the plaintiff, through his counsel, admitted that the eyewitness victim of the alleged crimes made an in-person identification of the plaintiff to a police officer, which led to his immediate arrest by that officer. This admission by the plaintiff, through his counsel, “so completely compromised” his position that the police lacked probable cause to arrest him, that the Supreme Court was justified in awarding judgment as a matter of law to the City…. Okunubi v City of New York, 2013 NY Slip Op 05886, 2nd Dept 9-18-13

 

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