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PLAINTIFF BANK DID NOT PROVIDE AN ADEQUATE EXCUSE FOR FAILING TO TAKE A TIMELY DEFAULT JUDGMENT; THE FORECLOSURE ACTION WAS ABANDONED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the foreclosure action should have been dismissed because plaintiff’s excuse for failing to take a timely default judgment was inadequate:

To avoid dismissal of a complaint pursuant to CPLR 3215(c) as abandoned, a plaintiff must demonstrate both that there is a reasonable excuse for the delay and that the action is meritorious … . “Although the determination of what constitutes a reasonable excuse lies within the sound discretion of the Supreme Court, reversal is warranted if that discretion is improvidently exercised” … .

Here, contrary to the Supreme Court’s determination, the excuse for the plaintiff’s failure to take proceedings for the entry of a judgment within one year after the action was released from the foreclosure settlement conference part was not reasonable … . Throughout the course of this litigation, there were unexplained gaps of time where months of inactivity passed. Neither the need to move for the appointment of a successor guardian nor the plaintiff’s change of attorney which change occurred after the statutory one-year period had expired constitutes a reasonable excuse for the plaintiff’s failure to timely prosecute this action … . HSBC Bank USA, N.A. v Whaley, 2021 NY Slip Op 05027, Second Dept 9-22-21

 

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PLAINTIFF ATTORNEY’S QUANTUM MERUIT ACTION FOR ATTORNEY’S FEES SHOULD NOT HAVE BEEN DISMISSED ON THE GROUND THAT IT WAS PRECLUDED BY A WRITTEN CONTRACT (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court determined plaintiff-attorney’s quantum meruit action for legal services should not have been dismissed. The evidence did not demonstrate the existence of a written contract (which would preclude the quantum meruit action):

“In order to succeed on a cause of action to recover in quantum meruit, the plaintiff must prove (1) the performance of services in good faith, (2) the acceptance of the services by the person to whom they were rendered, (3) an expectation of compensation therefor, and (4) the reasonable value of the services” … . Recovery under the theory of quantum meruit is not appropriate where an express contract governs the subject matter involved … .

“[A] written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms” … . “[A]n unsigned contract may be enforceable, provided there is objective evidence establishing that the parties intended to be bound” … . “In determining whether the parties entered into a contractual agreement and what were its terms, it is necessary to look . . . to the objective manifestations of the intent of the parties as gathered by their expressed words and deeds” … . Gould v Decolator, Cohen & DiPrisco, LLP, 2021 NY Slip Op 05026, Second Dept 9-22-21

 

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THE GRANTOR WAS NOT THE SOLE HEIR OF THE TITLE HOLDER; THEREFORE THE DEED PURPORTING TO TRANSFER A 100% INTEREST IN THE PROPERTY WAS VOID AB INITIO (SECOND DEPT).

The Second Department determined a deed was null and void because the grantor was not the sole heir of the title holder:

By a deed dated July 25, 2012, Colie Gallman, Jr., alleged to be the sole heir of Lillian Hudson, purportedly transferred his 100% interest in certain real property owned by Hudson to the defendant. In January 2015, the plaintiff commenced this action against the defendant seeking a judgment declaring that the July 25, 2012 deed is null and void. * * *

A misrepresentation in a deed that the seller of the property is the sole heir of the holder of the title to the property renders the conveyance void ab initio … . Here, the evidence and affidavits submitted by the plaintiff to the Supreme Court during the course of motion practice in this action established that Colie Gallman, Jr., was not the sole heir of Hudson as of the date of the subject deed, and thus, the deed purporting to convey all of the interest in the subject property is void ab initio … . In opposition, the defendant failed to raise a triable issue of fact. 23A Vernon, LLC v Oneal, 2021 NY Slip Op 05017, Second Dept 9-22-21

 

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PROOF OF MAILING OF THE RPAPL 1304 NOTICE TO THE CORRECT ADDRESS WAS NOT INCLUDED IN THE INITIAL MOTION PAPERS AND THEREFORE WAS NOT PART OF PLAINTIFF’S ATTEMPT TO MAKE OUT A PRIMA FACIE CASE; IN ADDTIION, THE PROOF OF MAILING OF THE RPAPL 1304 NOTICE WAS DEFICIENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant failed to demonstrate compliance with the RPAPL 1304 notice requirements in this foreclosure action. The proof of mailing to the correct address was first provided in reply papers for the motion to confirm the referee’s report and was not part of plaintiff’s initial summary judgment motion. And the proof of mailing was not supported by proof of the affiant’s knowledge of the mailing practices and procedures of the party which actually mailed the documents:

Although Cantu [plaintiff’s default servicing officer] stated in his affidavit that the RPAPL 1304 notices were mailed by certified and first-class mail to the defendants at the property, and he attached copies of 90-day notices with corresponding certified and first-class envelopes, Cantu did not attach the 90-day notices and envelopes addressed to the property where the defendants resided or any United States Post Office documentation showing that the purported mailings to the property actually occurred … . To the extent the plaintiff relies on copies of the 90-day notices with corresponding certified and first-class envelopes addressed to the property which were submitted for the first time in its reply papers on its subsequent motion … to confirm the referee’s report, those documents were insufficient to satisfy the plaintiff’s prima facie burden on its initial motion … for summary judgment … . “A party seeking summary judgment should anticipate having to lay bare its proof and should not expect that it will readily be granted a second or third chance” … . Further, while Cantu asserted that he had personal knowledge of the plaintiff’s procedures for creating and maintaining its business records, he did not attest that he was familiar with the mailing practices and procedures of Walz, the third-party entity that he acknowledged sent the notices … . Thus, the plaintiff failed to establish proof of standard office practices and procedures designed to ensure the notices were properly addressed and mailed … . Caliber Home Loans, Inc. v Weinstein, 2021 NY Slip Op 05021, Second Dept 9-22-21

 

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A DEFENDANT IN A FORECLOSURE ACTION WHICH HAS “FAILED TO APPEAR” IS NOT ENTITLED TO NOTICE OF A MOTION TO CONFIRM A REFEREE’S REPORT, NOTWITHSTANDING DICTA IN PRIOR 2ND DEPARTMENT RULINGS; A DETAILED AND COMPREHENSIVE DISCUSSION OF THE NOTICE REQUIREMENTS WHERE A DEFENDANT IN A FORECLOSURE ACTION HAS DEFAULTED (SECOND DEPT).

The Second Department, in a comprehensive discussion of the requirements for seeking a default judgment, including the meaning of “failure to appear,” determined the party which failed to appear in this foreclosure action was not entitled to notice of a motion to confirm a referee’s report. The extensive and detailed explanation of the applicable law was deemed necessary to clear up dicta in Second Department decisions which indicated such notice was required:

CPLR 3215(g)(1) applies “whenever application is made to the court or to the clerk.” By its plain language, it merely requires the plaintiff to provide “notice of the time and place of the application” for a default judgment … , which application must be held in a location authorized by CPLR 3215(e), and supported by, among other things, “proof of . . . the amount due” … . … [T]he purpose of the notice is to provide a defaulted defendant with the “opportunity to challenge the amount of damages sought by the plaintiffs” … . Contrary to [defendant’s] contention, CPLR 3215(g)(1) does not, once triggered, require a plaintiff to provide five days’ notice of every subsequent motion or application in the action … .

The 2017 motion was not an “application” for a default judgment within the meaning of CPLR 3215(b). Rather, the 2017 motion sought confirmation of the referee’s report and entry of a judgment of foreclosure and sale, relief predicated on CPLR 4403 … . Since the 2017 motion was not an “application” within the meaning of CPLR 3215(b), the notice specified in CPLR 3215(g)(1) was inapplicable to the 2017 motion, and notice of that motion was instead governed by the general notice provisions applicable to all motions (see CPLR 2103[e]). As already observed, that section merely requires that notice be served on “every other party who has appeared” … . Since, at the time of the 2017 motion, [defendant’s predecessor] still had not made any appearance in the action, it was not, without more, entitled to notice of that motion … . 21st Mtge. Corp. v Raghu, 2021 NY Slip Op 05016, Second Dept 9-22-21

 

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THE LABOR-LAW CONSTRUCTION-ACCIDENT ACTION WAS PRECLUDED BY THE RESULT OF THE PRIOR WORKERS’ COMPENSATION HEARING UNDER THE DOCTRINE OF COLLATERAL ESTOPPEL; THE MOTION TO AMEND THE ANSWER TO ADD THE COLLATERAL ESTOPPEL DEFENSE WAS PROPERLY GRANTED, EVEN THOUGH THE MOTION WAS MADE AFTER THE NOTE OF ISSUE WAS FILED (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Dillon, determined the Labor Law 240(1), 241(6) and 200 action was precluded by the doctrine of collateral estoppel based upon the result of a Workers’ Compensation hearing. Plaintiff alleged a hoist at a construction site malfunctioned causing knee injuries. Plaintiff was represented by an attorney at the Workers’ Compensation hearing and witnesses were cross-examined. The Administrative Law Judge (ALJ) concluded that the incident (hoist malfunction) never occurred. In addition, the Second Department held that the motion to amend the answer to add the collateral estoppel defense, made after the note of issue was filed, was properly granted. Plaintiff could not have been surprised by the defense and suffered no prejudice from the late amendment:

Determinations rendered by quasi-judicial administrative agencies may qualify for collateral estoppel effect  so long as the requirements of the doctrine [identity of issues and a full and fair opportunity to contest the controlling decision] are satisfied. Determinations of the Workers’ Compensation Board are potentially within the scope of the doctrine … . * * *

… [T]he defendants met their burden of establishing, prima facie, their entitlement to judgment as a matter of law on the ground that the plaintiff’s action was barred by the doctrine of collateral estoppel. The ALJ’s findings, as affirmed by the Workers’ Compensation Board, established as a matter of fact that the accident claimed by the plaintiff did not occur, or did not occur in the described manner as would cause injury. That finding is material and, in fact, pivotal, to the core viability of any personal injury action that the plaintiff could pursue in a court at law regarding the same incident … . Lennon v 56th & Park(NY) Owner, LLC, 2021 NY Slip Op 04972, Second Dept 9-15-21

 

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GENERALLY, TO VACATE A JUDGMENT BY CONFESSION, A PLENARY ACTION, NOT A MOTION TO VACATE, MUST BE BROUGHT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that, in order to vacate a judgment by confession, a plenary action must be commenced. Here the motion to vacate was not the proper vehicle:

“Generally, a person seeking to vacate a judgment entered upon the filing of an affidavit of confession of judgment must commence a separate plenary action for that relief” … . Here, the grounds for vacatur relied upon by the defendant do not fall within an exception to that general rule … . Accordingly, the Supreme Court should have denied the defendant’s motion without prejudice to his right to commence a plenary action to vacate the judgment by confession. Funding Metrics, LLC v D & V Hospitality, Inc., 2021 NY Slip Op 04964, Second Dept 9-15-21

 

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THE AFFIDAVITS SUBMITTED TO DEMONSTRATE THE FAIR MARKET VALUE OF THE FORECLOSED PROPERTY IN THIS ACTION SEEKING A DEFICIENCY JUDGMENT PURSUANT TO RPAPL 1371 (2) WERE DEFECIENT; SUPREME COURT PROPERLY ORDERED A HEARING TO ESTABLISH THE FAIR MARKET VALUE (SECOND DEPT).

The Second Department in this foreclosure proceeding seeking a deficiency judgment determined Supreme Court properly ordered a hearing to establish the fair market value of the property. The submitted affidavits were not sufficient:

“RPAPL 1371(2) permits the mortgagee in a mortgage foreclosure action to recover a deficiency judgment for the difference between the amount of indebtedness on the mortgage and either the auction price at the foreclosure sale or the fair market value of the property, whichever is higher” …  When a lender moves to secure a deficiency judgment against a borrower, “the court . . . shall determine, upon affidavit or otherwise as it shall direct, the fair and reasonable market value of the mortgaged premises as of the date such premises were bid in at auction or such nearest earlier date as there shall have been any market value thereof” … . “It is the lender who bears the initial burden of demonstrating, prima facie, the property’s fair market value as of the date of the auction sale”… . “RPAPL 1371 does not require the court to hold an evidentiary hearing; however, where ‘a triable issue as to the reasonable market value is presented, that issue should not be decided upon affidavits, but by the court or a referee, so that the witnesses may be subject to observation and cross-examination'” … . …

The appraisal … was not certified, nor was it accompanied by an affidavit of the appraiser. Moreover, the appraisal stated that the value indicated by the income approach was in the amount of $450,000, while the value indicated by the sales comparison approach was in the amount of $480,000. There was no explanation as to why the Supreme Court should accept the value based on the income approach as opposed to the sales comparison approach. U.S. Bank, N.A. v 199-02 Linden Blvd. Realty, LLC, 2021 NY Slip Op 04991, Second Dept 8-15-21

 

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QUESTIONS OF FACT PRECLUDED SUMMARY JUDGMENT IN THIS ACTION AGAINST THE TOWN; TOWN POLICE HAD CONFISCATED PLAINTIFF’S DECEDENT’S HUSBAND’S GUN AFTER SHE TOLD THE POLICE HE HAD ASSAULTED HER; THE TOWN SUBSEQUENTLY RETURNED THE GUN TO HER HUSBAND AFTER LEARNING HE WAS A RETIRED POLICE OFFICER; HER HUSBAND THEN SHOT AND KILLED PLAINTIFF’S DECEDENT AND TOOK HIS OWN LIFE (SECOND DEPT).

The Second Department determined the town’s motion for summary judgment was properly denied. Plaintiff’s decedent had called the town police and told them her husband had assaulted her and that she feared for her life. The town police confiscated her husband’s gun. The town returned the gun upon learning the husband was a retired police officer, even though he was not licensed to possess a gun in New York. He shot and killed plaintiff’s decedent and then took his own life:

Government action, if discretionary, may not be a basis for liability, while ministerial actions may be, but only if they violate a special duty owed to the plaintiff, apart from any duty to the public in general … . Here … the return of the firearm … was not a discretionary function. [Decedent’s husband] did not, … produce a license to possess the gun in the State of New York, and did not produce the proper identification under the Law Enforcement Officers Safety Act … . * * *

… [T]he evidence demonstrated the existence of triable issues of fact as to whether the Town, through its police officers, voluntarily assumed a duty on behalf of the decedent when they confiscated [the] gun in response to the decedent’s alleged report that [her husband] had physically assaulted her.

… The Town was not entitled to summary judgment … on the ground that [decedent”s husband’s] shooting of the decedent was an intervening act that severed the causal connection between the Town’s alleged negligence … and the injuries and death to the decedent … . An intervening act may not serve as a superseding cause, and relieve an actor of responsibility, where the risk of the intervening act occurring is the very same risk which renders the actor negligent … . Santaiti v Town of Ramapo, 2021 NY Slip Op 04986, Second Dept 9-15-21

 

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PLAINTIFF FIREFIGHTER ALLEGED DEBRIS ON STAIRS IN DEFENDANT’S HOME CAUSED HIM TO FALL WHILE FIGHTING A FIRE; THE DEBRIS DID NOT VIOLATE THE NYC ADMINISTRATIVE CODE SO THE GENERAL MUNICIPAL LAW 205-A CAUSE OF ACTION WAS PROPERLY DISMISSED; HOWEVER THE COMMON LAW NEGLIGENCE CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, modifying Supreme Court, determined the plaintiff firefighter’s General Municipal Law 205-a action was properly dismissed, but the common law negligence action against the owner of the home where plaintiff fell while fighting a fire should not have been dismissed. Plaintiff alleged debris on a stairway caused the fall. The General Municipal Law 205-a cause of action was dismissed because the debris was not a structural defect and did not therefore violate the NYC Administrative Code:

… Supreme Court properly granted that branch of the defendant’s motion which was for summary judgment dismissing so much of the cause of action pursuant to General Municipal Law § 205-a as was predicated on violations of Administrative Code of the City of New York §§ 28-301.1 and 29-107.5 i… . The defendant demonstrated, prima facie, that the dangerous condition which allegedly caused the plaintiff’s injuries “did not constitute a specific structural or design defect giving rise to liability under the Administrative Code” … . …

… Supreme Court should not have granted that branch of the defendant’s motion which was for summary judgment dismissing the cause of action alleging common-law negligence insofar as asserted against him. Contrary to the defendant’s contention, the firefighter’s rule does not bar this cause of action under the circumstances of this case … . The defendant failed to establish that he lacked constructive notice of the debris on the stairway, including a box, which allegedly caused the plaintiff to fall … . Pomilla v Bangiyev, 2021 NY Slip Op 04984, Second Dept 9-15-21

 

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