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Articles Posted in New York State Court Procedure


Morning Valley View.P.S.R.When someone sues you or your company, you have to pick a lawyer who knows the rules of the game.   The rules are intricate and, even two situations that look similar, are not always governed by the same rules. When even judges can apply the wrong rule,  it is better  to know what should have happened, so you can decide what your options are.  That is what a good attorney does:  she explains what your options are, and  your realistic chances of success with each, so you can best protect your interests.

A recent appellate decision makes this point.  1259 Lincoln Place Corp. v Bank of N.Y., 2018 NY Slip Op 02177, Appellate Division, Second Department, was decided on March 28, 2018.  It really is a fight over a lot of money, disguised as an attempt to quiet title pursuant to RPAPL Art. 15; and the fight ultimately turned on which set of rules should be used to decide the dispute. The trial court selected one, and the Appellate Division determined that another should have been used.

The facts are straightforward:  A bank took a mortgage on a property in Brooklyn.  The mortgage secured a large loan.  The borrower evidently defaulted so the bank attempted to foreclose and filed a notice of pendency against the property.  The problem was, the borrower apparently did not own the property; even worse, the Bank already paid approximately $200,000 in property taxes on it.  The titled owner wanted to keep its property, so it sued the Bank to quiet title; i.e., it asked the court to declare it was the rightful owner of the property and to cancel the notice of pendency. The titled owner made a summary judgement motion, which means it asked the court to declare it the rightful owner of the property without a trial, just based on the motion papers alone.  Faced with losing the case outright, the Bank came up with a backup plan:  It tried to assert a new claim that it should have an equitable lien; i.e., it paid out money to maintain the property (the real estate taxes), which the rightful owner received the benefit of, so it is only fair that the Bank should get the money back.  The problem was that it needed the court’s permission, so it made a cross-motion to assert a counterclaim for an equitable lien to at least recover some of the money it paid.


the-ardennes-1284651-m.jpgIt is not unusual for a Plaintiff to sue more than one defendant. It happens all of the time in New York.

Think of when a homeowner hires a contractor and the contractor damages a neighbor’s property. The neighbor will most often sue both. In New York City it is not uncommon to have a lawsuit that involves two adjacent buildings. The first one is demolished but, because the shoring used to protect the remaining building is inadequate, the land under the second building shifts a little and the second building cracks. The owner of the second building wants to get paid to repair his damaged property. He sues the owner of the first building, the contractors that performed the work, and possibly even his own insurance carrier if he doesn’t like the way the carrier adjusts his first-party property claim.

What happens, though, when the plaintiff settles with only one defendant and goes to trial against the rest? How does a court decide how much the plaintiff can collect from the remaining defendants?

The rules in New York are fairly straightforward. New York General Obligations Law §15-108 permits a plaintiff to settle a claim with a defendant tortfeasor without risking the discharge of other tortfeasors who might be liable for the injury. When one tortfeasor settles with the injured party, the settlement relieves the settling tortfeasor of liability to any other person for contribution. It entitles the non-settling tortfeasor to assert the settlement as a defense to the injured party’s claim and to obtain an appropriate reduction in damages. In order to keep the rule clear, think of the “tortfeasor” as the party who allegedly did something wrong. In our examples it could be the contractor, the homeowner, or the owner of the first building.

New York General Obligations Law §15-108, provides in relevant part:
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cd-box-1428586-m.jpg How to vacate a default judgement in New York is something every potential litigant should know. It is a topic filled with cautionary tales of second chances, heartache and redemption, as we have talked about in the past. It also demonstrates the importance of thinking outside the box when you try to solve an otherwise intractable problem.

Normally, when a Defendant comes to you for help vacating a default, he is in a state of panic; the only question is how much. Bad things can happen if the default stands; a defendant might have to pay a judgement on a claim that it could have been able to defeat on the merits. There are ways to ameliorate the damage; but the best course is to avoid a default if possible.

Sometimes, the best way to fix a problem is to view it with an open mind and approach it without any preconceived notions. Sometimes the best way to change the end result is to go back to the beginning. Vacating a default judgement is no different. Sometimes the best way to vacate a default judgement is to determine when exactly the Defendant’s deadline to answer was, and determine how much he missed it by, if he really missed it at all.

When someone, whether a business or a person, is sued, when does it have to answer the complaint or take some other sort of action to make sure it can defend itself, in court, on the merits? In New York, the answer is, as most answers seem to be, dependent on the circumstances: the method of service or how the Defendant receives the summons and complaint; the court in which it is sued; where the Defendant is when it receives the service of process; and how many copies of the summons and complaint it ultimately receives. Maybe the most surprising of all is that in New York, a Defendant’s deadline to answer can depend upon what the Plaintiff does after it serves the summons and complaint on the Defendant.
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IMG_20140309_191535 - Copy.jpgSometimes you learn something new from unexpected places. Sometimes you have to challenge your assumptions if you want to have any hope of solving an otherwise intractable problem. Sometimes, just because common knowledge is widely accepted, does not mean that it should be. A recent appeal I was working on made this clear.

Every New York attorney knows the test for defeating a motion for summary judgement: a party must offer evidence in admissible form sufficient to create a genuine issue of material fact that requires a trial. Most probably know the citation for the rule by heart. Zuckerman v. City of New York, 49 N.Y.2d 557, 404 N.E.2d 718 (1980), is one of the most frequently cited cases in New York. It is common practice, based on that rule, to disregard inadmissible evidence and, most often, to not even offer it in opposition to a summary judgement motion. After all, why should you offer evidence that will not be considered? There is really only one problem with this idea: it is wrong.

The actual quote from Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 404 N.E.2d 718, 720 (1980) is:

We have repeatedly held that one opposing a motion for summary judgment must produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact on which he rests his claim or must demonstrate acceptable excuse for his failure to meet the requirement of tender in admissible form; mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient (Alvord and Swift v. Stewart M. Muller Constr. Co., 46 N.Y.2d 276, 281-282, 413 N.Y.S.2d 309, 385 N.E.2d 1238; Fried v. Bower & Gardner, 46 N.Y.2d 765, 767, 413 N.Y.S.2d 650, 386 N.E.2d 258; Platzman v. American Totalisator Co., 45 N.Y.2d 910, 912, 411 N.Y.S.2d 230, 383 N.E.2d 876; Mallad Constr. Corp. v. County Fed. Sav. & Loan Ass’n, 32 N.Y.2d 285, 290, 344 N.Y.S.2d 925, 298 N.E.2d 96).

The rule does not mean that a party should self-edit itself from submitting inadmissible evidence in opposition to a motion for summary judgement. Whereas inadmissible evidence is insufficient on its own, it can help turn mere expressions of hope into genuine issues of fact that require a trial.

The case that made this clear is Gier v. CGF Health Sys., Inc., 307 A.D.2d 729, 762 N.Y.S.2d 472 (4th Dept. 2003). It is a medical malpractice/wrongful death action in which the decedent was admitted to the hospital with a diagnosis of a recurrent abdominal hernia and died four hours later of a ruptured abdominal aortic aneurysm. The central issue was whether the Defendant, who was the on-call attending physician at the time the decedent was admitted to the hospital, was notified of her admission before his shift ended. If he was notified then there was the requisite physician-patient relationship; otherwise, there was not. The Defendant testified at his deposition that he had not been notified and he submitted his deposition testimony in support of his motion for summary judgement to dismiss the complaint against him.

In opposition, Plaintiff submitted affidavits of two doctors, Cheng and Bruce. Neither remembered the specific circumstances of decedent’s admission. Instead, they each testified to habit evidence: that it was normal practice and procedure for the attending physician, whoever, that might be, to be notified when a patient is admitted to the hospital. Those two affidavits were insufficient, according to the lower court, to raise a genuine issue of material, triable fact.

Plaintiff also submitted the decedent’s hospital chart, which contained numerous references to the Defendant as the decedent’s attending physician and, more importantly, the last major piece of evidence: an unsworn memorandum of a Dr. Cudmore, which stated that the chief surgical resident told Dr. Cudmore that the Defendant had been notified of the decedent’s admission while he was still on duty. The lower court did not even consider it, because it clearly was inadmissible. It was an unsworn document that relayed two unsworn, hearsay, statements; it was double hearsay, at least.
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notepad-1066735-m.jpgVacating a default judgement in New York, as we have previously discussed, is not always easy. Often it is up to the discretion of the trial court. There are certain times, however, when the defaulting party may not need a reasonable excuse for failing to appear, as long as it does not wait too long to ask the court to excuse the default. This can include parties, such as corporate defendants, who have failed to receive a summons and complaint at least partially through their own fault.

CPLR §317 provides in relevant part:

A person served with a summons other than by personal delivery to him or to his agent for service designated under rule 318, within or without the state, who does not appear may be allowed to defend the action within one year after he obtains knowledge of entry of the judgment, but in no event more than five years after such entry, upon a finding of the court that he did not personally receive notice of the summons in time to defend and has a meritorious defense. If the defense is successful, the court may direct and enforce restitution in the same manner and subject to the same conditions as where a judgment is reversed or modified on appeal. This section does not apply to an action for divorce, annulment or partition.

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harvested-corn-field-1404711-m.jpgSummary judgement motions in New York are strange things. When used in the right way they can bring long, arduous litigation to an end merely by submitting papers to the court, without the need to call messy witnesses, susceptible to skillful cross-examination, to trial to be judged by a jury. They can be a lawyer’s best friend, or worst enemy. A lot depends upon the approach a lawyer takes towards them. They can take the place of a trial but how you approach them should be much like a trial. The actual motion depends upon the facts and circumstances of the particular case. There is an acronym that sums it up, one I often say to myself: KISS (as in: keep it simple, stupid). There’s also an apt idiom: break it down. Like a trial, it’s important to stay focused and to keep the decision makers focused on what you believe is important; because you have to give them a reason to rule in your client’s favor.

The legal standard in New York for succeeding on, and for defeating, a motion for summary judgement, is pretty clear. To win a motion for summary judgement, a party has to show that it is entitled to judgement as a matter of law. That sounds right, even if it is kind of a definition without a meaning. What it really means is that there cannot be any material issue of triable fact. That sounds a little more definite; after all, there are more complex, legalistic terms in that definition than in the first. But is it really clear? This is the first place to break it down: it means that there cannot be any real reason to go to trial. If there is something important for the jury to decide, something important enough that the way the jury decides it will go a long way towards determining whether one party or the other will win or lose the case, then that is where you are going: to trial. See Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 404 N.E.2d 718, 720 (1980).
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hourglass-7-708473-m.jpgIt is not always easy to obtain a default judgement in New York. It is harder, still, to vacate one, especially when the defaulting party has a history of missing deadlines or otherwise not doing what the court wants. A recent case from the Third Department, Wood v. Tuttle, 106 A.D.3d 1393, 968 N.Y.S.2d 613 (3rd Dept. May 30, 2013), shows just how tough it is. The case has everything you could want in a good story: a bouncer, a bar, and a brawl. Evidently everyone showed up for a good fight, just some forgot to fight it out in court, at least until it was too late. No one knows who was right and who was wrong, at least not from the decision; but somebody won and somebody lost, and therein lies the lesson.

Courts, as we previously mentioned, don’t like to be ignored; they want their orders, and rules, to be followed. Though they often will give a party the benefit of the doubt, and a second, or even a third, chance, that does not always happen. It is far better to establish a track record of complying with the rules, because then when you do make a mistake it often will be forgiven. It’s worse to be known for violating them, because sooner or later the court will penalize you, harshly. It’s important to stay in the trial court’s good graces. Whether to impose or vacate a default is within its sound discretion, and its decision is difficult to overturn on appeal. See Woodson v. Mendon Leasing Corp., 100 N.Y.2d 62, 68, 790 N.E.2d 1156, 1160 (2003).

It’s really not that hard for a party to default in New York. A court can dismiss a case if the plaintiff fails to appear for a court conference or calendar call. If a defendant fails to appear, it can order an inquest to determine damages or grant the plaintiff a default judgement for everything it asks for in the complaint. See 22 NYCRR 202.27. Perhaps the harshest example is when a defendant is served with a summons and complaint and has only 20 or 30 days to answer or otherwise appear. If he misses the deadline, the plaintiff is well on his way to obtaining a default judgement against him. A court also can grant a motion on default, though it often will closely examine even an unopposed motion before deciding it.

New York courts generally prefer to decide cases on the merits. That, however, does not immunize a party against a history of ignoring rules and foregoing second chances. As the Third Department’s decision in Wood v. Tuttle, supra, points out, if you ask a court to bend over backwards one too many times, it will make sure that you lose because you violated the rules, without even considering whether you might win on the merits.

In Wood v. Tuttle, supra, the plaintiff alleged that he had been seriously injured in a bar fight. He sued the bar’s bouncer and its owner to recover his damages, reportedly because both took part. Neither, however, seemed all that interested in the court case. The defendants answered the complaint, but apparently did not do much of anything else, at least until it was too late. Due to their decided lack of participation, plaintiff obtained a judgement against them, which was based not on the merits of the case, but on their repeated procedural violations:
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