Court should have accepted the plaintiff’s allegations in the complaint as true.

Posted on November 2, 2023 by Richard Klass

In Garanin v Hiatt, 219 AD3d 958, 959 [2d Dept 2023], the court held that the law firm’s motion to dismiss should have been denied since the court should have accepted the plaintiff’s allegations in the complaint as true. The court held:

In deciding a motion to dismiss pursuant to CPLR 3211(a)(7), the court must “accept the facts as alleged in the complaint as true, accord plaintiff[ ] the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory” (Leon v. Martinez, 84 N.Y.2d 83, 87–88, 614 N.Y.S.2d 972, 638 N.E.2d 511).

Applying these principles here, the Supreme Court should have denied that branch of the defendants’ motion which was pursuant to CPLR 3211(a)(7) to dismiss the cause of action alleging legal malpractice. “While the complaint does not allege an attorney-client relationship between the plaintiff[ ] and the defendants, it sets forth a claim which falls within ‘the narrow exception of fraud, collusion, malicious acts or other special circumstances’ under which a cause of action alleging attorney malpractice may be asserted absent a showing of privity” (Mr. San, LLC v. Zucker & Kwestel, LLP, 112 A.D.3d 796, 796–797, 977 N.Y.S.2d 328, quoting Ginsburg Dev. Cos., LLC v. Carbone, 85 A.D.3d 1110, 1112, 926 N.Y.S.2d 156; see Webster v. Sherman, 165 A.D.3d 738, 740, 85 N.Y.S.3d 457).

The Supreme Court further erred in granting that branch of the defendants’ motion which was pursuant to CPLR 3211(a)(7) to dismiss the cause of action alleging violation of Judiciary Law § 487. As relevant here, Judiciary Law § 487 imposes civil liability on any attorney who “[i]s guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive … any party.” Here, accepting the plaintiff’s allegations as true and giving the plaintiff the benefit of every possible favorable inference, the amended complaint adequately states a cause of action to recover damages for violation of Judiciary Law § 487 (cf. Betz v. Blatt, 160 A.D.3d 696, 699, 74 N.Y.S.3d 75).

Richard A. Klass, Esq.
Your Court Street Lawyer

keywords:
#legalmalpractice #CourtStreetLawyer #collusion #allegations

Richard A. Klass, Esq., maintains a law firm engaged in civil litigation at 16 Court Street, 28th Floor, Brooklyn, New York. He may be reached at (718) COURT●ST or RichKlass@courtstreetlaw.comcreate new email with any questions.

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Catch Me If You Can: The importance of an up-to-date address for Service of Process.

Posted on October 26, 2023 by Richard Klass

computer keyboard and smart phone with text on screen saying "register information"

The defendant corporation was served with the Summons and Complaint through the New York Secretary of State, as reflected in the affidavit of service. As reflected in the certificate of service from the NYS Secretary of State, the defendant was served by certified mail at its designated address for service of process. A letter with copies of the Summons and Complaint was mailed to the defendant’s address. Thereafter, the motion for a default judgment was filed with the court and a copy thereof was served upon the defendant. None of the letters were returned. Based upon the defendant’s default, the court entered the Default Judgment.

Motion to vacate Default Judgment

The defendant corporation brought an Order to Show Cause seeking to vacate its default in answering the Summons and Complaint. The motion, brought pursuant to CPLR 5015(a), claimed that the defendant had both a reasonable excuse for the defendant’s failure in defaulting in answering the action and a meritorious defense. Attached to the motion was the affidavit of the corporation’s principal, who stated his reasons why the defendant did not respond to the action; namely, he claimed that he never received the Summons and Complaint or any of the mailings sent by the attorney’s office. The plaintiff’s attorney retained Richard A. Klass, Esq., Your Court Street Lawyer, to oppose the Order to Show Cause and request that the Default Judgment remain intact and enforceable.

Service of process under Business Corporation Law Section 306

CPLR 311(a)(1) delineates the methods of service of process upon a corporation as follows: “upon any domestic or foreign corporation, to an officer, director, managing or general agent, or cashier or assistant cashier or to any other agent authorized by appointment or by law to receive service. A business corporation may also be served pursuant to section three hundred six or three hundred seven of the business corporation law….”

The plaintiff used the method of service duly authorized by Business Corporation Law Section 306,[1] by having the Summons and Complaint served upon the NYS Secretary of State. The defendant could not challenge that service was made upon the NYS Secretary of State since the plaintiff was entitled to the well-established presumption of due service. See, Deutsche Bank Nat. Tr. Co. v Quinones, 114 AD3d 719, 719 [2d Dept 2014] (“A process server’s affidavit of service constitutes prima facie evidence of proper service (see Emigrant Mtge. Co., Inc. v. Westervelt, 105 A.D.3d 896, 897, 964 N.Y.S.2d 543; Wells Fargo Bank, NA v. Chaplin, 65 A.D.3d 588, 589, 884 N.Y.S.2d 254; Countrywide Home Loans Servicing, LP v. Albert, 78 A.D.3d 983, 984, 912 N.Y.S.2d 96).”)

The Second Department, in Wassertheil v Elburg, LLC, 94 AD3d 753, 753-54 [2d Dept 2012], enunciated the standard required to vacate a default based upon service of process upon the NYS Secretary of State:

To successfully oppose a motion for leave to enter a default judgment based on the failure to appear or timely serve an answer, a defendant must demonstrate a reasonable excuse for its delay and the existence of a potentially meritorious defense (see CPLR 5015[a][1]; Eugene Di Lorenzo, Inc. v. Dutton Lbr. Co., 67 N.Y.2d 138, 141, 501 N.Y.S.2d 8, 492 N.E.2d 116; 2261 Palmer Ave. Corp. v. Malick, 91 A.D.3d 853, 936 N.Y.S.2d 672; Kouzios v. Dery, 57 A.D.3d 949, 871 N.Y.S.2d 303; Baldwin v. Mateogarcia, 57 A.D.3d 594, 869 N.Y.S.2d 217). Here, the mere denial by Encore’s shareholder of service of the summons and the complaint was insufficient to rebut the presumption of proper service on the Secretary of State raised by the affidavit of service (see Business Corporation Law § 306 [b] [1]; Matter of Rockland Bakery, Inc. v. B.M. Baking Co., Inc., 83 A.D.3d 1080, 1081–1082, 923 N.Y.S.2d 572; Thas v. Dayrich Trading, Inc., 78 A.D.3d 1163, 1164, 913 N.Y.S.2d 269; May v. Hartsdale Manor Owners Corp., 73 A.D.3d 713, 900 N.Y.S.2d 359).

Based upon case law, a defendant’s mere denial of receipt of mail is insufficient. In his affidavit, the defendant’s principal surmised that he may not have received any notification from the Secretary of State as a result of the Governor’s Executive Orders concerning the pandemic pausing government services, and there could be a backlog. This was mere conjecture, and it was urged that the ‘pandemic excuse’ should be of no assistance to him. In addition to the failure to rebut the presumption of due service via the Secretary of State, there was no evidence to rebut the presumption of mailing from both the Secretary of State and the attorney’s office. See, Vita v Heller, 97 AD2d 464, 464 [2d Dept 1983] (“Service of papers by mail is deemed complete upon deposit of such papers in the mail and such manner of service creates a presumption of proper mailing to the addressee (CPLR 2103, subd. [b], par. 2; A & B Serv. Sta. v. State of New York, 50 A.D.2d 973, 376 N.Y.S.2d 656, mot. for lv. to app. den. 39 N.Y.2d 709, 386 N.Y.S.2d 1027, 352 N.E.2d 597). The burden then falls upon the addressee to present evidence sufficient to overcome the presumption and establish nonreceipt.”). Further, the denial of receipt of the Summons and Complaint from the Secretary of State was belied by the certificate of service.

Corporation must update its address with the Department of State

The defendant also stated that he had not lived at the mailing address of 1501 55th Street, Brooklyn NY (one of the mailing addresses designated by the corporation and to which additional mailings were made in this action) since 2008. However, the last two Biennial Statements filed by the corporation for the filing periods for 2009-2011 and 2011-2013 state the “Service of Process Address” at “1501 55th Street, Brooklyn NY 11228.” It was argued that the Court should also note that the 2013 Biennial Statement for the corporation is the LAST one filed with the Secretary of State’s office and its statement status is listed as “Past Due.”

In Cedeno v Wimbledon Bldg. Corp., 207 AD2d 297, 298 [1st Dept 1994], the court rejected the defendant’s claim that he vacated the address for service of process designated eight years earlier, holding:

Service was effected in person at the office of the Secretary of State, and by mail directed to defendant’s designated agent at an office location that counsel says he vacated eight years earlier. Defendant maintains that minimal diligence on plaintiff’s part would have led him to counsel’s correct address. But it is a corporation’s obligation to keep on file with the Secretary of State the current address of an agent to receive service of process (Cristo Bros. v. M. Cristo, Inc., 91 A.D.2d 807, 458 N.Y.S.2d 50), and failure to meet that obligation will not constitute reasonable excuse to vacate a default judgment (Conte Cadillac v. C.A.R.S. Purch. Serv., 126 A.D.2d 621, 622, 511 N.Y.S.2d 58). It is for this reason that service of process on a corporation is deemed complete when the Secretary of State is served, regardless of whether such process ultimately reaches the corporate defendant (Associated Imports v. Leon Amiel Publ., 168 A.D.2d 354, 562 N.Y.S.2d 678, lv. dismissed 77 N.Y.2d 873, 568 N.Y.S.2d 915, 571 N.E.2d 85).

In Crespo v A.D.A. Mgt., 292 AD2d 5, 9-10 [1st Dept 2002], the court held, “The failure of a corporate defendant to receive service of process due to breach of the obligation to keep a current address on file with the Secretary of State (see, Business Corporation Law § 306) does not constitute a reasonable excuse. (Lawrence v. Esplanade Gardens, 213 A.D.2d 216, 623 N.Y.S.2d 586; Cedeno v. Wimbledon Bldg. Corp., supra at 298, 615 N.Y.S.2d 40.)”

No need to address the Defendant’s purported meritorious defense

Regardless of whether the defendant would have had any defense to the action, it was argued that it could not present one now since there was no excuse for its default. In Mellon v Izmirligil, 88 AD3d 930, 931-32 [2d Dept 2011], the court held:

Since the defendant failed to demonstrate a reasonable excuse for his default, it is unnecessary to determine whether he demonstrated the existence of a potentially meritorious defense (see Wells Fargo Bank, N.A. v. Cervini, 84 A.D.3d at 790, 921 N.Y.S.2d 643; HSBC Bank USA, N.A. v. Roldan, 80 A.D.3d 566, 567, 914 N.Y.S.2d 647; Maspeth Fed. Sav. & Loan Assn. v. McGown, 77 A.D.3d at 890; Star Indus., Inc. v. Innovative Beverages, Inc., 55 A.D.3d at 905, 866 N.Y.S.2d 357).

Based upon the arguments put forth in opposition, the court denied the Order to Show Cause and the Default Judgment was upheld.

— Richard A. Klass, Esq.

[1] (b)(1) Service of process on the secretary of state as agent of a domestic or authorized foreign corporation shall be made by personally delivering to and leaving with the secretary of state or a deputy, or with any person authorized by the secretary of state to receive such service, at the office of the department of state in the city of Albany, duplicate copies of such process together with the statutory fee, which fee shall be a taxable disbursement. Service of process on such corporation shall be complete when the secretary of state is so served. The secretary of state shall promptly send one of such copies by certified mail, return receipt requested, to such corporation, at the post office address, on file in the department of state, specified for the purpose. If a domestic or authorized foreign corporation has no such address on file in the department of state, the secretary of state shall so mail such copy, in the case of a domestic corporation, in care of any director named in its certificate of incorporation at the director’s address stated therein or, in the case of an authorized foreign corporation, to such corporation at the address of its office within this state on file in the department.

Richard A. Klass, Esq.
Your Court Street Lawyer

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#litigation #service #process #affidavit #default #CourtStreetLawyer

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Dude, Where’s My Lawyer?: attorney illness

Posted on September 2, 2020 by Richard Klass

She obtained a money judgment against a property owner for personal injuries she sustained. To collect the judgment, the injured plaintiff’s counsel retained Richard A. Klass, Your Court Street Lawyer as special collection counsel.

Proceeding to declare there’s no homestead exemption:

Once a judgment has been entered, there are various enforcement measures available to the creditor to collect the money due on the judgment from the debtor. One of the most effective means of enforcing a Judgment is through a Sheriff’s auction sale of a debtor’s real property.

Prior to the Sheriff conducting an auction sale of real estate, there is a requirement under CPLR 5206 that the judgment creditor file a proceeding to determine whether there is sufficient equity in the real property over and above both the liens and mortgages on the property and, if applicable, the debtor’s “homestead exemption” from which the judgment may be satisfied. The homestead exemption represents a certain monetary amount of equity in a debtor’s principal residence protected from creditors.¹ If the court determines that there is sufficient net equity, then an order may be entered authorizing the Sheriff to levy on the real property and conduct the auction sale.

Discovery on the issue of the homestead exemption:

In the proceeding to determine that the debtor’s house could be sold at Sheriff’s auction, the debtor claimed that the subject house was his principal residence. In response, the creditor was granted leave of court to conduct discovery proceedings on the issue of the debtor’s homestead exemption claim. Discovery demands, including interrogatories and document demands, were served upon the debtor’s attorney.

Despite having been served with the discovery demands, the debtor failed to respond to them. The debtor’s failure to respond to the interrogatories and produce documents continued even after the direction of the court in the preliminary conference order and a subsequent order. The creditor filed a motion to strike the debtor’s answer and preclude him from asserting the homestead exemption claim. Once again, the debtor failed to respond or comply. The court gave the debtor one last chance to respond. Needless to say, the debtor did not respond despite all of the chances afforded to him, and the court struck his answer and his defenses, including the claimed homestead exemption.

Debtor claims default was due to his attorney’s illnesses:

The debtor’s new attorney filed a motion with the court requesting that the order striking his answer be vacated because his prior attorney was suffering from physical and mental illnesses. The prior attorney submitted an affirmation stating that he was diagnosed with idiopathic pulmonary fibrosis and was also suffering from mental illness, and that he has had to withdraw his representation in other cases.

In opposing the request to vacate the debtor’s default, the creditor argued (a) that the prior attorney failed to provide proof of mental illness; (b) from reviewing court calendars, there was no proof that the prior attorney withdrew from other cases; (c) the debtor failed to respond to discovery demands long before the default; and (d) the debtor still failed to sustain his burden of proving his claimed homestead exemption.

An attorney’s illness must be corroborated by medical documentation:

The judge laid out the criteria necessary to determine the debtor’s motion to vacate his default based upon the claim of his attorney’s illness, stating as follows:

“The illness of a party’s attorney, when corroborated by medical documentation, including the affirmation of a physician, suffices as a reasonable excuse for vacatur of a default. (Pierot v. Leonard, 154 AD3d 791 [2d Dept. 2017]; Weitzenberg v. Nassau County Dept. of Recreation & Parks, 29 AD3d 683 [2d Dept. 2006]; Norowitz v. Ponconco, Inc., 96 AD2d 581 [2d Dept. 1983]. [The attorney’s] alleged physical and mental health issues are not established by a doctor’s affirmation and therefore do not serve as a reasonable excuse to vacate the default. Nonetheless, [the attorney’s] initial default occurred prior to the alleged June 20^th date of diagnosis, and [the attorney] fails to submit detailed submissions explaining the respondent’s delays in responding to the petitioner’s discovery demands, in complying with the court’s February 27^th order mandating discovery, as well as his failure to oppose the petitioner’s April 16^th motion to strike (compare with Hageman v. Home Depot U.S.A., Inc., 25 AD3d 760 [2d Dept. 2006].

Finally, the Court notes that respondent’s Answer was stricken and judgment entered after a history of noncompliance with orders to produce discovery essential to this litigation. . . . The Court finds that given the history of this litigation, the explanation proferred by respondent and his former counsel is vague, unsubstantiated and incredible, and does not constitute a reasonable excuse for respondent’s default (see Herrera v. MTA Bus Co., 100 AD3d 962 [2d Dept. 2012]); Wells Fargo Bank, NA v. Cervini, 84 AD3d 789 [2d Dept. 2011]. Given the Court of Appeals’ guidance in Gibbs v. St. Barnabas Hospital, 16 NY3d 74 [2010], as well as Second Department case law cited above, the Court finds it would be an improvident use of its discretion to vacate the default judgment in light of respondent’s history of default and noncompliance. Further, prior counsel’s alleged illness, which constituted the excuse for the default, only accounted for a small period of time in which respondent was to have provided discovery.”

The judge found that the petition was entitled to judgment as a matter of law and granted the petition directing the sale of the debtor’s 100% interest in the real property.

Footnotes:
1 Currently, a judgment debtor’s “homestead exemption” amount depends on which county the property is located, which is as follows:

$170,825 if the property is in the counties of Kings, Queens, New York, Bronx, Richmond, Nassau, Suffolk, Rockland, Westchester, or Putnam.
$142,350 if the property is in the counties of Dutchess, Albany, Columbia, Orange, Saratoga or Ulster.
$85,400 if the property is in any other county.

R. A. Klass
Your Court Street Lawyer

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Richard A. Klass Selected for the Fifth Time for the New York Metro Super Lawyers List

Posted on October 31, 2019 by Richard Klass

We are pleased to announce that Richard Klass, has been selected to the 2019 New York Metro Super Lawyers list. This is an exclusive list, recognizing no more than five percent of attorneys in the New York Metro area.

Super Lawyers, part of Thomson Reuters, is a research-driven, peer influenced rating service of outstanding lawyers who have attained a high degree of peer recognition and professional achievement. Attorneys are selected from more than 70 practice areas and all firm sizes, assuring a credible and relevant annual list.

The annual selections are made using a patented multiphase process that includes:

Peer nominations

Independent research by Super Lawyers

Evaluations from a highly credentialed panel of attorneys

The objective of the Super Lawyers lists is to create a credible, comprehensive and diverse listing of outstanding attorneys to be used as a resource for both referring attorneys and consumers seeking legal counsel.

For more information about Super Lawyers, go to SuperLawyers.com. Super Lawyers is a registered trademark of Thomson Reuters.

R. A. Klass
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Entry of judgment: You Snooze, You Lose!

Posted on October 24, 2019 by Richard Klass

Young adult man looking at his smart phone with a shocked, surprised but slightly comical expression. The photo illustrates an article by Richard Klass about default judgment.

The subcontractors brought an action against the general contractor and its principal alleging breach of an oral contract made in January 2007 for failing to pay for construction services rendered on a building located in Flushing. The action was dismissed as to the individual and the subcontractors’ request for a default judgment against the general contractor was denied. The subcontractor then brought an action against the contractor who hired them alleging breach of the oral contract; however,they were unable to collect on the judgment because the corporation was out of business.

Queens County action

The subcontractors then brought an action in the Supreme Court, Queens County only against the property owner, alleging unjust enrichment for the contracting services rendered by them. Despite service of the Summons and Complaint in 2011, the plaintiffs did not seek the entry of a default within one year thereafter.

Kings County action

The subcontractors then brought yet another action in the Supreme Court, Kings County against the general contractor, contractor and property owner, alleging both breach of contract and unjust enrichment. A default judgment was granted in their favor against all of the defendants except for the property owner. The property owner moved for dismissal of the action, which was granted.

Back to Queens

In 2017, the subcontractors moved for a default judgment against the property owner in the 2011 action.

In response to the motion, the property owner retained Richard A. Klass, Your Court Street Lawyer. The property owner cross-moved, pursuant to CPLR 3215(c), for dismissal of the action based upon the failure to take proceedings for entry of judgment within one year after the default. By Order dated April 6, 2018, the Supreme Court denied the motion for a default judgment and granted the cross-motion for dismissal of the action. The Court held that “plaintiff’s counsel fails to proffer a reasonable excuse for its delay in timely making the instant application. After reviewing the extensive procedural history of the case and companion cases, it remains unclear why plaintiffs waited almost two years after [the court] dismissed their identical claim in Kings County to seek a default judgment against the defendant in this action.”

The Court further rejected the claim made in opposition to the cross-motion that the matter should not be deemed abandoned. Specifically, the court held, “While plaintiffs may contend they were in settlement negotiations and other litigation activity with the defendant, those activities ceased in May of 2015 when the matter was dismissed. In addition, plaintiffs fail to explain why it commenced a second action including the defendant in Kings County after it had already commenced the instant action or why they then let the instant matter linger over five and half years.”

Failure to take proceedings within one year after default

The subcontractors appealed the Supreme Court Order to the Appellate Division, Second Department. In affirming the Order and dismissing the appeal, the appellate court held, in Karamuco v Gavriel Plaza, Inc., 172 AD3d 832, 833 [2d Dept 2019]:

“CPLR 3215(c) provides that ‘[i]f the plaintiff fails to take proceedings for the entry of judgment within one year after the default, the court shall not enter judgment but shall dismiss the complaint as abandoned . . . unless sufficient cause is shown why the complaint should not be dismissed”’ (Myoung Ja Kim v Wilson, 150 AD3d 1019, 1020, quoting CPLR 3215[c]). This statute is strictly construed, as “[t]he language of CPLR 3215(c) is not, in the first instance, discretionary, but mandatory, inasmuch as courts ‘shall’ dismiss claims (CPLR 3215[c]) for which default judgments are not sought within the requisite one-year period, as those claims are then deemed abandoned” (Giglio v NTIMP, Inc., 86 AD3d 301, 307-308; see Ibrahim v Nablus Sweets Corp., 161 AD3d 961, 963; HSBC Bank USA, N.A. v Grella, 145 AD3d 669, 671).

The statute further provides, however, that the failure to timely seek a default may be excused if “‘sufficient cause is shown why the complaint should not be dismissed’” (HSBC Bank USA, N.A. v Grella, 145 AD3d at 671, quoting CPLR 3215[c]; see Ibrahim v Nablus Sweets Corp., 161 AD3d 961, 963). To establish the sufficient cause required by CPLR 3215(c), “the party opposing dismissal must demonstrate that it had a reasonable excuse for the delay in taking proceedings for entry of a default judgment and that it has a potentially meritorious action” (Aurora Loan Servs., LLC v Hiyo, 130 AD3d 763, 764; see Ibrahim v Nablus Sweets Corp., 161 AD3d at 963; Wells Fargo Bank, N.A. v Bonanno, 146 AD3d 844, 845-846). The determination of whether an excuse is reasonable is committed to the sound discretion of the motion court (see Bank of N.Y. Mellon v Izmirligil, 144 AD3d 1067, 1069; Baruch v Nassau County, 134 AD3d 658, 659).”

Here, the plaintiffs took no proceedings for the entry of a default judgment within one year following the defendant’s default, and they failed to establish a reasonable excuse for their delay in moving for leave to enter a default judgment. Accordingly, the lawsuit was dismissed.

R. A. Klass
Your Court Street Lawyer

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