Default judgment is denied.

The trial court properly denied plaintiff's motion for a default judgment. Defendants were technically in default when they failed to timely answer or move to dismiss after they filed their notice of appearance. However, as the trial court noted in the order on appeal, in an earlier hearing on the motion, the court had sua sponte allowed plaintiff to file a late proof of service. At the same time, the court granted defendants a 30-day extension to respond to the complaint, as of the date of the hearing. As the case docket makes clear, defendants responded to the complaint within that period. In addition, New York has a strong policy in favor of litigating matters on the merits.

MLS Real Estate Consultants, Inc. v. Eisenberg, NY Slip Op 04224 (1st Dep't June 30, 2022)

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Appellate practice.

The Appellate Division has no jurisdiction to entertain defendant's arguments in support of reversing the part of the order that denied his cross motion for consolidation, because his notice of appeal limited the appeal to the specific part of the order that granted plaintiff's summary judgment motion, pursuant to CPLR 5515[1].

Vandergrand Props. Co., L.P. v. Warnock, NY Slip Op 04229 (1st Dep't June 30, 2022)

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CPLR 3211(7)(a).

Upon a motion to dismiss for failure to state a claim, the court may reach the merits of a properly pleaded cause of action for a declaratory judgment where no questions of fact are presented by the controversy. In that case, the motion to dismiss should be treated as one seeking a declaration in the defendant's favor and decided accordingly.

50 Clarkson Partners, LLC v Old Republic Natl. Tit. Ins. Co. NY Slip Op 04144 (2d Dep't June 29, 2022)

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Appellate practice.

There is no appeal as of right from a sua sponte order. The proper course is to move the motion court to vacate the order or to seek leave to appeal from the Appellate Division. Here, in light of counsel's repeated failure to properly prosecute this action, which would largely benefit his law firm, the Appellate Division declines to deem the notice of appeal a motion for leave to appeal in the interest of justice.

Beltran v. Commercial Bldg. Maintenance Corp., NY Slip Op 04115 (1st Dep't June 28, 2022)

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CPLR 3012(d).

A defaulting defendant who moves to compel the plaintiff to accept late service of an answer must provide a reasonable excuse for the default and demonstrate a potentially meritorious defense to the action. Whether a proffered excuse is reasonable is a sui generis determination to be made by the court based on all relevant factors, including the extent of the delay, whether there has been prejudice to the opposing party, whether there has been willfulness, and the strong public policy in favor of resolving cases on the merits. While the court has the discretion to accept law office failure as a reasonable excuse, pursuant to CPLR 2005, a conclusory, undetailed, and unsubstantiated claim of law office failure is not a reasonable excuse.

Dawkins v. Isole, NY Slip Op 04006 (2d Dep't June 22, 2022)

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Collateral estoppel.

The doctrine is properly invoked to strike the answer of a defendant that appeared in the prior action or proceeding and that has, by deliberate action, refused to defend or litigate the charge or allegation that is the subject of the preclusion request. Here, the decision in the prior action established the defendant's failure to comply with four court orders requiring it to appear for deposition and its president's wilful refusal to comply with the court's mandates. Therefore, the defendant had a full and fair opportunity to litigate the underlying merits but affirmatively chose not to. 

Perez v. 76th & Broadway Owner, LLC, NY Slip Op 04108 (1st Dep't June 23, 2022)

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CPLR 317.

A defendant who has been served with a summons other than by personal delivery may be allowed to defend the action within one year after he has knowledge of entry of a judgment against him. He must demonstrate that he did not personally receive notice of the summons in time to defend and that he has a potentially meritorious defense.

Beltran v. New York City Hous. Auth., NY Slip Op 04003 (2d Dep't June 22, 2022)

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CPLR 2005.

Plaintiffs show both a reasonable excuse for their default and a meritorious cause of action, and so their motion to vacate dismissal and restore the action to the trial calendar is granted. Law office failure is a reasonable excuse for the default, since plaintiffs' counsel was unaware that procedures for conducting compliance conferences had changed during the COVID-19 pandemic and, as a result, inadvertently failed to submit stipulations before a scheduled conference. Plaintiffs demonstrated a meritorious cause of action by submitting the complaint, a bill of particulars, and the injured plaintiff's deposition testimony. In addition, defendants were not prejudiced by plaintiffs' failure to appear, and did not oppose the motion to vacate.

Willner v. S Norsel Realties LLC, NY Slip Op 04111 (1st Dep't June 23, 2022)

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A coop's claim for a board member's breach of fiduciary duty.

Where the relief sought is primarily monetary, the statutory limitations period is three years. The measure of damages is the amount of loss sustained, including lost opportunities for profit on the properties by reason of the faithless fiduciary's conduct.

67-69 St. Nicholas Ave. Hous. Dev. Fund Corp. v. Green, NY Slip Op 04087 (1st Dep't June 23, 2022)

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CPLR 5015[a].

A party seeking to vacate an order entered on its default in answering or appearing must show both a reasonable excuse for the default and the existence of a potentially meritorious defense. Exactly what constitutes a reasonable excuse lies within the sound discretion of the motion court. However, a general excuse that the default was caused by delays occasioned by the defendant's insurance carrier is insufficient. Here, defendant provided only conclusory and unsubstantiated assertions that its insurance carrier had been notified of this action and would be hiring counsel on its behalf. Since defendant failed to demonstrate a reasonable excuse for its default, it is unnecessary to consider whether it demonstrated the existence of a potentially meritorious defense.

Ahmed v. Essex Terrace, Inc., NY Slip Op 03998 (2d Dep't June 22, 2022)

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CPLR 3025 (b).

Generally, an application for leave to amend a pleading is governed by a permissive standard:  in the absence of prejudice or surprise resulting directly from the delay in seeking leave, leave is to be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit. Here, the Appellate Division had dismissed the second amended complaint because of a pleading deficiency that plaintiffs lacked standing and capacity to sue, which is not a dismissal on the merits. The proposed third amended complaint purportedly cured the defect, but there there was no complaint to amend. The Appellate Division's dismissal deprived the trial court of discretion to grant leave to amend the second amended complaint. The Appellate Division's dismissal order directed that judgement be entered by the Supreme Court Clerk, and that was not done. However, that failure is of no consequence, as the entry of a subsequent judgment is merely a ministerial act. The dismissal order was binding on the parties until vacated or set aside on further appeal. Plaintiff did not appeal, and so its only remedy was to commence a new action, which it failed to do.

Favourite Ltd. v. Cico, NY Slip Op 03987 (1st Dep't June 21, 2022)

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