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WHERE AN ACTION HAS BEEN MARKED OFF AS “INACTIVE,” THERE IS NO NOTE OF ISSUE, THERE HAS BEEN NO 90-DAY DEMAND AND THERE IS NO ORDER DISMISSING THE COMPLAINT, RESTORATION TO THE CALENDAR AT ANY TIME IS AUTOMATIC (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion to retore the action to the calendar after it was marked off because plaintiff failed to appear should have been granted. A note of issue had not been filed, there had been no 90-day notice pursuant to CPLR 3216, and there was no order directing dismissal of the complaint. Therefore restoration to the calendar at any time is automatic:

Where, as here, the case was marked “inactive” before a note of issue had been filed, there was no 90-day notice pursuant to CPLR 3216, and there was no order directing dismissal of the complaint pursuant to 22 NYCRR 202.27 for failure to appear at a compliance conference, “‘restoring a case marked “inactive” is automatic'” … . Under these circumstances, a motion to restore the action to the calendar should be granted “‘without considering whether the plaintiff had a reasonable excuse for the delay or whether [it] engaged in dilatory conduct'” … . Moreover, since this action was pre-note of issue and could not properly be marked off the calendar pursuant to CPLR 3404, the plaintiff was not required to move to restore the action to the calendar within any specified time frame … . Thus, contrary to the Supreme Court’s determination, the plaintiff’s motion was not untimely. Fifth Third Mtge. Co. v Schiro, 2022 NY Slip Op 06689. Second Dept 11-23-22

Practice Point: Where a case has been marked off as “inactive,” there is no note of issue, there has been no 90-day demand and there is not order dismissing the complaint, restoration to the calendar at any time is automatic.

 

IF THE EVIDENCE PRESENTED IN A MOTION TO RENEW WAS AVAILABLE AT THE TIME OF THE ORIGINAL MOTION, THE FAILURE TO INCLUDE IT MUST BE EXPLAINED; HERE THE FAILURE WAS NOT EXPLAINED AND THE MOTION SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the evidence presented in plaintiff’s motion to renew was available at the time of the initial motion. Therefore plaintiff’s failure to explain the failure to include it required denial of the renewal motion:

Plaintiff moved under CPLR 2221(e) for leave to renew defendants’ motion to vacate the default and compel arbitration. In support of its motion, plaintiff submitted public court filings showing that the prior attorney was not incapacitated as he claimed between September 18 … and December 31 … and that the prior attorney had appeared in at least one hearing during that time. Plaintiff argued that the prior attorney’s explanation for his failure to appear on behalf of defendants, on which Supreme Court relied upon to vacate the default, contained material misrepresentations and that these new facts were sufficient to warrant renewal. In opposition, defendants submitted an affirmation from the prior attorney essentially reasserting the circumstances of his default. Supreme Court granted renewal, vacated the prior order, and reinstated the default judgment.

The record demonstrates that the court filings plaintiff relies on, which are matters of public record, existed at the time it submitted opposition to defendants’ vacatur motion. Plaintiff, however, did not provide in the renewal motion a “reasonable justification for the failure to present such facts on the prior motion” (CPLR 2221[e][3]…). Chris Grant Brohawk Films v Digital Seven LLC, 2022 NY Slip Op 06635, First Dept 11-22-22

Practice Point: If a motion to renew is based upon evidence which was available at the time of the original motion, the failure must be explained. Here the absence of any explanation required denial of the motion to renew.

 

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PLAINTIFF BICYCLIST ALLEGED HE STRUCK A FALLEN SIGNPOST WHICH WAS OBSTRUCTING THE SIDEWALK; THE TOWN DID NOT DEMONSTRATE IT DID NOT HAVE NOTICE OF THE CONDITION; PLAINTIFF DEMONSTRATED HE WAS ENTITLED TO DISCOVERY OF TOWN DOCUMENTS RELATED TO THE REPAIR OF TOWN SIGNS (FOURTH DEPT). ​

The Fourth Department, reversing (modifying) Supreme Court, determined (1) the town did not demonstrate it did not have written notice of the fallen signpost on the sidewalk (which plaintiff bicyclist allegedly struck), and (2) plaintiff demonstrated the town should comply with discovery demands for documents relating to the existence and repair of signs by the town:

The Town had the initial burden on the motion of establishing that no prior written notice of the alleged condition was given to either the Town Clerk or the Town Superintendent of Highways … . In support of its motion, the Town submitted, inter alia, the deposition testimony of an administrative aide in the Town Highway Department and the Town’s sign shop fabricator, each of whom testified that he did not learn of the fallen sign until he received the police report for the incident. However, neither employee testified that he searched the Highway Department’s or the Town Clerk’s records. Thus, the Town failed to establish as a matter of law that neither the Town Clerk nor the Town Superintendent of Highways received prior written notice of the alleged condition … . * * *

… [W]e conclude that plaintiff met his burden of establishing that the discovery documents were material and necessary to the prosecution of the action (see generally CPLR 3101 [a]). In opposing the motion, the Town failed to establish that the discovery requests were unduly burdensome … . Garcia v Town of Tonawanda, 2022 NY Slip Op 06584, Fourth Dept 11-18-22

Practice Point: Because the town did not demonstrate that it searched the highway department and town clerk’s records it did not demonstrate it had not received notice of the fallen signpost plaintiff bicyclist allegedly struck. Plaintiff was entitled to discovery of town documents relating to the repair of signs.

 

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THE JUDGE SHOULD NOT HAVE LOOKED BEYOND THE PLEADINGS IN CONSIDERING THE MOTION TO AMEND THE COMPLAINT; THE MOTION SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the court abused its discretion by denying the motion to amend the complaint:

“Leave to amend a pleading should be freely granted in the absence of prejudice to the nonmoving party where the amendment is not patently lacking in merit” ( … see CPLR 3025 [b]). “A court should not examine the merits or legal sufficiency of the proposed amendment unless the proposed pleading is clearly and patently insufficient on its face” … . Here, we conclude that the court erred in denying the motion inasmuch as there was no showing of prejudice arising from the proposed amendments … and the proposed amended complaint adequately asserts causes of action for slander of title … and removal of a cloud on title by reformation or cancellation of a deed … . In making its determination that the proposed causes of action were palpably insufficient, the court improperly looked beyond the face of the proposed pleading to the documents establishing the chain of title to plaintiffs’ properties and a 2011 deed from the Trustees of Grenell Island Chapel to defendant. DiGiacco v Grenell Is. Chapel, 2022 NY Slip Op 06576, Fourth Dept 11-18-22

Practice Point: Here Supreme Court abused its discretion in denying the motion to amend the complaint. The judge should not have looked beyond the pleading in deciding the motion to amend.

 

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IT IS ONLY PURSUANT TO EXECUTIVE LAW 63(3) THAT THE ATTORNEY GENERAL (AS OPPOSED TO A COUNTY PROSECUTOR) IS EMPOWERED BRING A CRIMINAL PROSECUTION; THE EXECUTIVE LAW ALLOWS REQUESTS FOR AN AG PROSECUTION ONLY FROM THE EXECUTIVE BRANCH, NOT THE JUDICIAL BRANCH; HERE THE CHIEF JUDGE REQUESTED THE PROSECUTION; A WRIT OF PROHIBITION ENJOINING THE PROSECUTION WAS GRANTED (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Higgitt, determined the petitioner’s request for a writ of prohibition to enjoin the attorney general (AG) from prosecuting him for alleged criminal offenses should be granted. The request for the prosecution came from a judge. Executive Law 63(3) does not authorize a request for prosecution from the judicial, as opposed to the executive, branch:

This CPLR article 78 proceeding seeking a writ of prohibition raises an issue of apparent first impression: whether the Attorney General may criminally prosecute an individual based on an Executive Law § 63(3) referral from the Chief Administrative Judge of the Unified Court System. Executive Law § 63(3) authorizes the Attorney General of the State of New York, “[u]pon request of the governor, comptroller, secretary of state, commissioner of transportation, superintendent of financial services, commissioner of taxation and finance, commissioner of motor vehicles, or the state inspector general, or the head of any other department, authority, division or agency of the state,” to investigate and prosecute criminality relating to any matter connected with the referring entity. Petitioner, the subject of the criminal prosecution initiated and maintained by the AG based on the purported Executive Law § 63(3) referral by an officer within the Unified Court System, commenced this special proceeding for a writ of prohibition challenging the validity of the referral and the legality of the AG’s authority to prosecute him. We hold that an Executive Law § 63(3) referral can come only from an agency within the executive branch. Therefore, a referral from an officer within the Unified Court System — that is, the judicial branch of government — is not permitted by the statute, and, for the reasons discussed below, we grant prohibition relief to petitioner. Matter of Makhani v Kiesel, 2022 NY Slip Op 06556, First Dept 11-17-22

Practice Point: The attorney general can bring a criminal prosecution only upon request from an executive agency listed in Executive Law 63(3). Here the chief judge made the request. A writ of prohibition enjoining the prosecution was granted.

 

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BOTH PARTIES MOVED TO EXTEND THE DEADLINE FOR FILING A NOTE OF ISSUE BECAUSE DISCOVERY WAS NOT COMPLETE; DENYING THE MOTION MADE IT IMPOSSIBLE FOR THE CASE TO PROGRESS; SUPREME COURT REVERSED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the motion to extend the deadline for filing the note of issue should not have been denied because discovery was incomplete:

The motion court improvidently denied the motions of both parties to extend the deadline to file the note of issue and to complete discovery since discovery was not complete. Under the circumstances, the court’s denial of plaintiff’s motion left the parties in limbo where they could neither move forward to trial nor complete the discovery necessary to move forward to trial, thereby frustrating the strong public policy favoring open disclosure to allow the parties to adequately prepare (CPLR 3101[a] …). Additionally, as defendant demonstrated a need for additional discovery and to depose plaintiff’s expert, who was hired to calculate damages in this commercial case, its motion should have been granted (see 22 NYCRR 202.70, Rule 13[c] …). 361 Broadway Assoc. Holdings, LLC v Foundations Group I, Inc., 2022 NY Slip Op 06571, First Dept 11-17-22

Practice Point: if the judge makes it impossible for the case to progress, here by denying both parties’ motions to extend the deadline for filing the note of issue to complete discovery, the appellate court will reverse.

 

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IN THIS FORECLOSURE ACTION DEFENDANT DEBTOR ENTERED A MORTGAGE MODIFICATION AGREEMENT WHICH CALLED FOR THREE PAYMENTS; DEFENDANT DEBTOR MADE FOUR ADDITIONAL PAYMENTS IN AMOUNTS HIGHER THAN CALLED FOR IN THE MORTGAGE; THE PAYMENTS AMOUNTED TO AN ACKNOWLEDGMENT OF THE MORTGAGE DEBT WHICH STARTED THE STATUTE OF LIMITATIONS FOR FORECLOSURE ON THE DATE OF THE LAST PAYMENT (CT APP). ​

The Court of Appeals, reversing the appellate division, determined the defendant debtor acknowledged the mortgage debt by paying more than was required by the Home Affordable Modification Trial Payment Plan. Therefore the statute of limitations for foreclosure started running when defendant debtor made the last payment:

In this mortgage foreclosure action, plaintiff contends that Supreme Court erred in concluding that the complaint was timely inasmuch as Maxi Jeanty (debtor) made four payments between August 2009 and March 2010 on account of the mortgage debt which were effective pursuant to General Obligations Law § 17-107 (1) to make the statute of limitations begin running anew on the date of the last such payment. We agree. Plaintiff met its prima facie burden on its motion … by submitting evidence that, after entering a Home Affordable Modification Trial Payment Plan (the Plan), the debtor made a total of seven payments from April 2009 through March 2010, each in an amount exceeding that of the regular installment payments required under the loan documents prior to the acceleration of the debt in August 2008. The first three payments were required pursuant to the Plan, but the remaining four were not. Those four payments established circumstances amounting to ‘an absolute and unqualified acknowledgment by the debtor of more being due, from which a promise may be inferred to pay the remainder’ (… see General Obligations Law § 17-107 [1]). Federal Natl. Mtge. Assn. v Jeanty, 2022 NY Slip Op 06539, CtApp 11-17-22

Practice Point: In this foreclosure action, payments by the debtor which exceeded what was called for in the modification payment plan amounted to an acknowledgment of the mortgage debt. Therefore the statute of limitations on foreclosure began to run on the date of the last of those payments.

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THE BIG APPLE MAP RAISED A QUESTION OF FACT ABOUT WHETHER THE CITY HAD WRITTEN NOTICE OF THE SIDEWALK DEFECT WHICH ALLEGEDLY CAUSED PLAINTIFF’S SLIP AND FALL; PLAINTIFF’S COMPLAINT WAS AMENDED TO FIX A DEFICIENCY IN PLEADING THAT THE CITY HAD WRITTEN NOTICE OF THE DEFECT (FIRST DEPT).

​The First Department, reversing Supreme Court, determined: (1) there was a question of fact whether the Big Apple map provided the city with written notice of the sidewalk defect alleged to have caused plaintiff’s slip and fall; (2) the city’s evidence to the contrary was improperly first submitted in reply; (3) the plaintiff was entitled to amend the complaint to correct the deficiency in pleading the city had written notice of the sidewalk defect:

In support of its summary judgment motion, the City submitted evidence, including the most recent Big Apple Map received by the City prior to plaintiff’s accident, and argued that the Map did not depict the type of sidewalk defect that plaintiff testified caused her accident.

Based on all the evidence submitted, including the Big Apple Map and photographs of the sidewalk defect, plaintiff raised a triable issue of fact as to whether the City had prior written notice of the alleged dangerous condition … . The City’s contention that the Big Apple Map had been rendered inapplicable by subsequent sidewalk repairs is unavailing. Aside from the fact that this argument was improperly raised for the first time on reply, the City’s submissions indicated that the defect remained unchanged. Further, the issue of whether the Big Apple Map was sufficiently close in time to provide prior written notice, and whether the area had remained unchanged, was a question for the jury … . Bchakjan v City of New York, 2022 NY Slip Op 06543, First Dept 11-17-22

Practice Point: In NYC, a Big Apple map may provide the city with written notice of a sidewalk defect.

 

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NEW YORK DOES NOT HAVE GENERAL OR LONG-ARM JURISDICTION OVER A UK CORPORATION WHICH ALLEGEDLY MANUFACTURED A DEFECTIVE PART OF AN EXCAVATOR (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined the Miller defendants, a UK corporation, were not amenable to general or long-arm jurisdiction in New York. Plaintiff alleged a part (a coupler) made by Miller failed causing an excavator bucket to detach and fall:

General jurisdiction exists over a corporate entity only in the state(s) in which it is incorporated and has its principal place of business … . * * *

Defendants have also failed to establish specific jurisdiction over the Miller parties pursuant to CPLR 302(a)(1), CPLR 302 (a)(3)(i) or CPLR 302 (a)(3)(ii). Although the Miller parties might have placed the coupler involved in plaintiff’s accident into the stream of commerce, and while they tout having a global customer base and business model, the Supreme Court of the United States has made clear that “the ‘fortuitous circumstance’ that a product sold in another state later makes its way into the forum jurisdiction through no marketing or other effort of [the] defendant,” or “‘the mere likelihood that a product will find its way into the forum[,]’ cannot establish the requisite connection between [the] defendant and the forum” to support an exercise of specific personal jurisdiction … . Cruz v City of New York, 2022 NY Slip Op 06546, First Dept 11-17-22

Practice Point: The ‘fortuitous circumstance’ that a product sold in another state later makes its way into the forum jurisdiction through no marketing or other effort of [the] defendant,” or “‘the mere likelihood that a product will find its way into the forum[,]’ cannot establish the requisite connection between [the] defendant and the forum” to support an exercise of specific personal jurisdiction. Here New York did not have general or long-arm jurisdiction over a UK corporation which manufactured a part on an excavator which allegedly failed causing the excavator bucket to detach.

 

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HERE THE FAILURE TO OPPOSE THE MOTION FOR SUMMARY JUDGMENT WAS DUE TO NEGLECT WHICH DOES NOT WARRANT VACATUR; THE MOTION TO VACATE THE ORDER ENTERED ON PLAINTIFF’S DEFAULT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined plaintiff’s motion to vacate the order entered upon plaintiff’s default should not have been granted:

Pursuant to CPLR 5015(a)(1), “[t]he court which rendered a judgment or order may relieve a party from it upon such terms as may be just, on motion of any interested person . . . upon the ground of . . . excusable default.” “A party seeking to vacate an order entered upon his or her default in opposing a motion must demonstrate both a reasonable excuse for the default and a potentially meritorious opposition to the motion” . “Law office failure may qualify as a reasonable excuse for a party’s default if the claim of such failure is supported by a credible” and detailed explanation of the default … . The determination as to what constitutes a reasonable excuse is a matter of the court’s discretion, but mere neglect will not suffice … .

… [A] managing attorney at the law firm representing the plaintiff was notified of the February 28, 2018 adjourned deadline to submit opposition papers to the defendants’ motion, and a member of the firm entered a “follow up docket date” for February 7, 2018, “to ensure that the opposition was being handled” … . However, instead of “follow[ing] up with the managing attorney to make sure the opposition was assigned,” the member of the law firm returned the file to the file room. As the member of the law firm affirmed, “[i]t simply was not addressed properly.” … [T]he plaintiff did not move to vacate the order dated August 29, 2018, for approximately eight months, or 253 days, after being served with the order and notice of entry … .

… [T]he plaintiff’s failure to oppose the defendants’ motion was the equivalent of mere neglect and was therefore insufficient to warrant vacatur … . Sauteanu v BJ’s Wholesale Club, Inc., 2022 NY Slip Op 06509, Second Dept 11-16-22

Practice Point: A motion to vacate an order entered upon a party’s default may be granted on law-office-failure grounds but not if the matter was simply neglected. Here the plaintiff did not move to vacate the order for 253 days after service of the order and notice of entry. The court found the plaintiff’s failure to oppose the summary judgment was due to neglect and the motion to vacate the order should not have been granted.

 

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