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COLLEGE AND COVID AND TUITION

Croce v. St. Joseph's Coll. N.Y., Date filed: 2021-10-01, Court: Supreme Court, Suffolk, Judge: Justice Carmen St. George, Case Number: 610886/2020:

"Decision/Order This action arises from the global coronavirus (COVID-19) pandemic of 2020 that caused our way of life to be radically altered. Aside from the terrible toll that the virus has taken on humanity, the virus simultaneously led to the sweeping and sudden closure of businesses and institutions, including higher education institutions such as colleges and universities, and even our courts, in order to stem the tide of person-to-person transmission. Rapid adjustments were made to online platforms so that the business and activities of the world could continue to function to some degree. Generally speaking, colleges and universities ceased providing in-person instruction and advised students to leave campuses in mid-March 2020. The defendant in this action was no exception to that required pivot, in light of the pandemic. Plaintiff commenced this putative class action suit on August 18. 2020.1 The First Amended Complaint (FAC) alleges three causes of action sounding in breach of contract, unjust enrichment, and conversion. At its core, the plaintiff’s first amended complaint seeks to recover compensatory damages, and to disgorge “the ill-gotten gains derived by defendant from its misconduct” allegedly resulting from defendant’s implementation of its online only learning program that started on or about March 11, 2020, which is also the date that the defendant confirmed its first case of COVID-19. There is no dispute that the defendant properly implemented its online learning platform in accord with the Governor’s Executive Order declaring a state of emergency on March 7, 2020, in response to the pandemic.2 The gravamen of plaintiffs complaint is that she seeks a pro rata refund of tuition and certain fees proportionate to the amount of time that the college was closed to in-person learning and transitioned to online learning on or about March 11, 2020, because “defendant failed to provide the in-person and on-campus services that were bargained for, promised and agreed to” (FAC,12).

The spring 2020 semester commenced on or about January 21, 2020 and ended on or around May 5, 2020. Accordingly, the last seven to eight weeks of the semester were conducted online. The Court notes that the plaintiff was a senior in the spring 2020 semester, and that she graduated and was awarded a degree in or about May 2020, having satisfactorily completed her studies at defendant’s institution of higher learning.

Presently, the defendant seeks dismissal of the entire complaint pursuant to CPLR §3211(a)(7). Having been charged with determining this motion, the Court set out to discover whether there is any precedent arising from similar circumstances resulting from the pandemic, and discovered that that there has been no shortage of litigation commenced by college and university students seeking refunds of tuition and fees since the onset of the pandemic that, understandably, led to online learning.

Review of Similarly-Brought Actions Against Colleges and Universities

The opinions reviewed by this Court have been issued by various federal district courts, where it seems that these actions have overwhelmingly been brought.3 The federal district court opinions have generally been issued in connection with motions made pursuant to Federal Rules of Civil Procedure (FRCP) §12 (b)(6), which is the procedural equivalent of CPLR §3211 (a)(7) (DuBois v. Brookdale University Hospital, 6 Misc3d 1023 [A] [Sup Ct Kings County 2004]; see also Hirsch v. Arthur Andersen & Co., 72 F3d 1085, 1092 [2dCir 1995]). Accordingly, this Court is guided by our federal brethren and sistren, who, individually, have painstakingly examined the various complaints filed in the contexts of determining whether the plaintiffs in these many actions have failed to state claims for, inter alia, breach of contract, unjust enrichment, and conversion.

It appears that the outcome as to whether a breach of contract claim as to tuition and/or fees is dismissed is entirely dependent on the specific language used by the various colleges and universities in their catalogs, publications, mission statements, et cetera, as pled in the complaints (see Flatscher v. Manhattan School of Music, 2021 WL 3077500 [SDNY July 20, 2021] [plaintiff adequately pled breach of implied contract claim because defendant's own catalogue stating that tuition provides access to the school's facilities, an entire floor of 24-hour practice rooms, and a state-of-the-art facility where students can record a portfolio, access to which was denied due to the pandemic]: Hewitt v. Pratt Institute, 2021 WL 2779286 [EDNY July 2, 2021] [claim for breach of contract as to tuition dismissed because plaintiffs pointed to promises that are either too general or too caveated to sustain claim; however, plaintiffs sufficiently pled breach of contract claim for fees paid for in-person services such as participation in ceramics, sculpture, and printmaking courses and use of campus facilities, health services and student activities]; Espejo v. Cornell University, 2021 WL 810159 [NDNY March 3, 2021] [students stated claim for breach of contract for tuition refund based on specific language in mission statement reading that "a Cornell education comprises formal and informal learning experiences in the classroom, on campus, and beyond]; In Re Columbia Tuition Refund Action, 2021 WL 790638 [SDNY February 26, 2021] [plaintiffs breach of contract claim concerning instructional format survives because the school's website stated that on-campus courses would be "taught with only traditional in-person, on-campus class meetings" and the same claim as to fees for campus facilities and activities were described by the school as a fee for access to specific locations on campus]; Bergeron v. Rochester Institute of Technology, 2020 WL 7486682 [WDNY December 18, 2020] [contractual promises adequately pled by plaintiffs who identified multitude of promises made by school concerning benefits of in-person, on-campus program, opportunities to work with faculty in their labs, and robust on-campus support, and as to student activity fee that school states supports programs/events that enhance quality of student life and the health fee that covers office visits that students may need]; Ford v. Rensselaer Polytechnic Institute, 507 F Supp 406 [NDNY December 16, 2020] [students sufficiently alleged a specific promise by pointing to declaratory language in college's circular stating "we will" when describing the virtues of an on-campus learning experience, and by pleading statements in the catalog describing a "time-based clustering and residential commons program;" as to activity fees, plaintiffs plausibly stated a claim because school's catalogue stated that the fee included access to a vast array of service, media, recreation, club sports, performing and visual arts and other student organizations but plaintiffs had no access to the facilities, activities and services after date of shutdown]).

As to unjust enrichment claims, these generally have been dismissed, with some exceptions depending on the specific allegations pled in the complaint (see Beck v. Manhattan College, 2021 WL 1840864 [SDNY May 7, 2021] [student plausibly pled unjust enrichment cause of action for tuition refund where student alleged college saved money by closing facilities and received Coronavirus Aid, Relief, and Economic Security Act funding to move to online classes]).

By and large, claims alleging conversion have been dismissed, mostly as duplicative of a breach of contract claim, and or because the claim is not predicated on a specifically identifiable and segregated fund (Fedele v. Marist College, 2021 WL 35404332 [SDNY August 10, 2021]; Flatscher. supra, Hewitt, supra; Beck, supra, Romankow v. New York University, 2021 WL 1565616 [SDNY April 21, 2021]; Espejo. supra; In Re Columbia Tuition Refund Action, supra; Ford, supra).

Standard of Review

When deciding a motion to dismiss pursuant to CPLR §3211(a)(7), the court must afford the complaint a liberal construction, accepting all facts as alleged in the complaint to be true, and according the plaintiffs the benefit of every favorable inference (see Marcantonio v. Picozzi III, 70 AD3d 655 [2d Dept 2010]). The sole criterion on a motion to dismiss is “whether the pleading states a cause of action, and if from its four corners factual allegations are discerned which taken together manifest any cognizable action at law a motion for dismissal will fail” (Guggenheimer v. Ginzburg, 43 NY2d 268, 275 [1977]; see also Miglino v. Bally Total Fitness of Greater New York, Inc., 92 AD3d 148, 159-160], aff’d, 20 NY3d 342 [2013]); Leon v. Martinez, 84 NY2d 83, 87-88, [1994]: Sokol v. Leader, 74 AD3d 1180, 1180-1181 [2d Dept 2010]; Gershon v. Goldberg, 30 AD3d 372, 373 [2d Dept 2006]). “Whether a plaintiff can ultimately establish its allegations is not part of the calculus in determining a motion to dismiss” (EBCI, Inc. v. Goldman, Sachs & Co., 5 NY3d 11, 19 [2005]).

The FAC

The Breach of Contract Claim Concerning Tuition

Here, the FAC alleges that average yearly tuition was “around $14,295.00 for undergraduate students, and mandatory fees for each semester of approximately $305 including a college fee of $125, a parking permit fee of $5.00, a student activities fee of S75, and a technology fee of $100 (‘Mandatory Fees’),” and that the tuition was paid to receive a “first-rate education and on-campus, in-person, educational experiences,” while the mandatory fees were paid for services and facilities that were simply not provided.

Paragraph 73 of the FAC alleges that the plaintiff and class members “entered into binding contracts with Defendant by accepting Defendant’s offer to register for on-campus classes in accordance with the terms of the Catalogs, Defendant’s publications, and Defendant’s usual and customary practice of providing on-campus courses.” Paragraphs 31 and 32 also refer to publications, marketing materials, acceptance letters, registration materials, the course catalog, advertisements “and other documents that in-person educational opportunities, experiences and services were material parts of the educational experience.” Although the plaintiff provides hyperlinks in footnotes, plaintiffs do not quote/cite anything from any of the broad categories of materials recited in the FAC, aside from a few quotes, including from the Mission Statement, that are unavailing in terms of stating a claim for breach of contract.

The footnoting of hyperlinks is especially unhelpful since it apparently invites this Court to search through the entirety of the information appearing through the link and discern what portion thereof plaintiff intends to assert in support of a colorable claim for breach of contract. The Court will not engage in this search expedition on behalf of the plaintiff; it is plaintiff’s responsibility to point to specific statements evidencing a promise supporting a contract, express or implied, to provide in-person instruction. Plaintiff has even footnoted a hyperlink to the entire Student Handbook consisting of seventy-nine (79) pages without a citation to a particular page in the Handbook.

Plaintiff’s inclusion of a portion of the Mission Statement reading that the school “helps students develop as whole persons by providing individual attention, interactive teaching, and opportunities for active participation in academic and extracurricular programs” and “foster[s] an environment of openness to the exploration and understanding of diverse ideas, traditions and cultures” does not serve to state a claim for in-person instruction. Nor do plaintiff’s other quotation of the College’s marketing materials and Handbook stated in paragraphs 45 and 46 of the FAC specifically refer to any promise to provide in-person, or in-classroom experiences in exchange for students’ tuition (cf. Espejo, supra).

Furthermore, plaintiff’s allegation in paragraph 76 of the FAC alleging the existence of a contract based on defendant’s “usual and customary practice of providing on-campus courses” likewise fails to state a claim for breach of contract (Fedele. supra at 5′; In Re Columbia, supra at 4). The inclusion of stock photographs from what may be the College’s website depicting students in classrooms are also unavailing because it is unknown when they were taken, and in any event, they do not constitute a promise since the fact that the College provided in-person instruction before March 2020 “does not imply a contractual entitlement to continued instruction in the same location and manner” (In Re Columbia, supra at 4).

Moreover, the fact that defendant also offered a full-time online tuition option for less money than a full-time student does not give rise to a promise that plaintiff was contractually entitled to exclusively in-person instruction (In Re Columbia, supra at 4).

In short, plaintiff’s breach of contract claim as to tuition is insufficiently pled because she fails to identify any specific language indicating or even suggesting a promise of in-person instruction. “[A] promise must be written and specific for that promise to be enforced as a term of the implied educational contract between student and university” (Beck, supra at 3). Plaintiff has not adequately alleged a claim for breach of contract as to in-person instruction, and so that claim is dismissed (Hewitt, supra).

The Breach of Contract Claim Concerning Mandatory Fees

In the context of this motion, and at this early stage of the case, plaintiff has adequately set forth a claim with respect to at least some of the fees paid. The Court notes that the defendant acknowledges that it has already reversed the parking fee on plaintiffs account. The student activities referred to in the FAC encompass fees for participation in various organizations, including athletic activities through involvement in sports (intramural and inter-collegiate), cultural life (lectures, theatre productions, dance performances). Greek life, and intramural and recreational activities. It is reasonable to conclude that the sporting activities, Greek life, intramural activities, and cultural activities could not, and did not, take place due to the pandemic since those activities would likely have involved person-to-person contact. Accordingly, as to the S75.00 Student Activity fee, the plaintiff has plausibly stated a claim for breach of contract.

As to the $125 College Fee and the $100 Technology Fee, the FAC makes no factual allegation as to any alleged promise by defendant, how the defendant would apply these fees, or that the defendant breached any promise in connection with these fees, other than to seek reimbursement in whole or in part for them, The defendant offers in support of its motion that the College Fee is applied to maintain student records, which would have had to be accomplished whether or not instruction was delivered in-person or online. The Court further notes that the plaintiff graduated from the defendant College; therefore, the defendant apparently maintained the appropriate records reflecting that plaintiff was entitled to the award of a degree. As to the Technology Fee, there is no allegation in the FAC that the defendant failed to provide technological services or breached some other promise in connection with this specific fee; rather, it appears that the defendant must have provided those technological services since the plaintiff was able to successfully complete her course of study.

The Unjust Enrichment Claim

The FAC alleges that, “[i]n the alternative, Plaintiff brings this claim for unjust enrichment,” summarily averring that the defendant “has been unjustly enriched,” and that defendant’s “acts were unjust for them to keep money for services they did not render.” however, the allegations made in paragraphs 87 through 96 are duplicative of the claims asserted in connection with the breach of contract claim.

“To prevail on a claim for unjust enrichment in New York, a plaintiff must establish 1) that the defendant benefitted; 2) at the plaintiffs expense; and 3) that ‘equity and good conscience’ require restitution” (Kaye v. Grossman, 202 F3d 61 1,616 [2d Cir 2000] quoting Dolmetta v. Uintah Nat’l Corp., 712 F2d 15, 20 [2d Cir 1983]), In the FAC, plaintiff fails to allege any facts showing that “equity and good conscience” require a refund of any of her tuition or of the fees for which she has failed to state a breach of a contractual obligation: the defendant’s actions were not arbitrarily undertaken, but were mandated pursuant to the New York Governor’s Executive Orders; plaintiff continued to attend her classes in an online format, and she was awarded a degree in May, 2020, thereby receiving the benefit of the course credits (cf. Beck, supra). As to the plausibly-stated claim for breach of contract concerning the $75 Student Activity Fee, the unjust enrichment claim cannot lie because it is duplicative of the breach of contract claim (Goldman v. Metropolitan Life Insurance Company, 5 NY3d 561 [2005]). Accordingly, the cause of action for unjust enrichment is dismissed in its entirety.

The Claim for Conversion

The Court notes that the FAC allegations for this claim plead an “express understanding that the Defendant would provide in-person educational experiences, opportunities, and services,” which is the same harm alleged in her breach of contract cause of action, warranting dismissal on this basis. “[A] conversion claim may only succeed if a plaintiff alleges wrongs and damages distinct from those predicated on a breach of contract” (Flatscher, supra at 10). The FAC does not allege any wrongful act that is separately actionable.

Also, plaintiff’s claim for conversion states in conclusory fashion that the defendant has converted plaintiff’s property without just compensation, and that this cause of action is a “separate and distinct harm.” “Money may be the subject of a conversion action only if it is ‘specifically identifiable and segregated’ and there exists ‘an obligation to return or otherwise treat in a particular manner the specific fund in question”‘ (In Re Columbia, supra at 9 quoting Manufacturers Hanover Trust Co. v. Chemical Bank, 160 AD2d 113, 124 [1st Dept 1990]; see also Espejo, supra at 8), Plaintiff makes no allegation whatsoever in this regard, and her argument in opposition merely asserting that, “[p]laintiff has pled each of these elements by alleging that Defendant wrongfully retained and refused to refund her tuition and fees” is nothing more than circular reasoning that is conclusory and unpersuasive.

FAC Request for Class Certification

The Court declines to certify the class naming plaintiff as representative at this juncture, without prejudice to the plaintiff making a separate motion for that relief.

Conclusion

For the foregoing reasons, the defendant’s motion to dismiss is granted in part and denied in part as follows:

the unjust enrichment and conversion claims are dismissed.

plaintiff’s breach of contract claim related to the Student Activity Fee ($75) survives, but not the claims related to the College Fee ($125) or the Technology Fee ($100).

Plaintiff’s breach of contract claim related to tuition is dismissed.

The foregoing constitutes the Decision and Order of this Court.

FINAL DISPOSITION [] NON-FINAL DISPOSITION [X]

Dated: October 1, 2021

Footnotes

1. No class has been certified to date.

2. Later, on March 18, 2020, New York's Governor issued Executive Order 202.6 mandating a statewide shutdown of non-essential businesses beginning on March 22, 2020.

3. A Decision and Order of the Nassau County Supreme Court dated August 10, 2021 (Rademaker, J.) in the action entitled Booth v. Molloy College (Index No. 608750/2020) denied defendant's motion to dismiss the amended complaint because "upon careful review of the papers and exhibits provided be the parties herein, the Court f[ound] that the Amended Complaint raises questions of fact…" The Decision and Order does not discuss any specific statements that may have been made by the College in any of its catalogues, brochures, or other materials."

NEIGHBOR DISPUTES - EASEMENTS BY ADVERSE POSSESSION?

Rogers v. Melchiorre, Date filed: 2021-09-28, Court: Supreme Court, Broome, Judge: Justice Eugene Faughnan, Case Number: EFCA2017002497:

This matter is before the Court to resolve competing summary judgment motions. Defendant, Pietro Melchiorre, originally moved for summary judgment, which was then followed by a motion for summary judgment by Plaintiffs, Kurt Rogers and Gina Rogers. The Court conducted conferences with the parties in an attempt to resolve the matter amicably, and without the need to rule on the motions. Those efforts did not bear fruit, and thus, a decision must be rendered with respect to the two motions.1 

BACKGROUND FACTS

This case arises out of a boundary dispute between owners of two parcels of property. Plaintiffs and Defendant own abutting property on Smith Drive in Endwell, New York. Plaintiffs own property which fronts on Smith Drive, while Defendant’s property is located directly behind Plaintiffs’ property, further from Smith Drive. There are two-family homes on both properties, and Defendant lives on his property, while Plaintiffs rent their property. Defendant purchased his property in approximately 2015-2016. Defendant has submitted a survey showing that he owns a sliver of land approximately 15 feet wide and 140 feet long giving him access to Smith Road from his house. Defendant’s sliver of land is part of an overall area approximately 30 feet by 140 feet to the west of the Plaintiffs’ and Defendant’s properties, upon which there is a paved driveway. The driveway serves three duplexes- Plaintiffs’ and Defendant’s on the east, and another duplex to the western side of the driveway which is owned by a non-party, Earl Clark. Plaintiffs have an express easement in their deed to use the driveway to access a paved parking located in the rear of Plaintiffs’ property, but in front of Defendant’s property.

Defendant had his property surveyed in the summer of 2016 and again in April 2017. Plaintiffs allege that following those surveys, Defendant began to challenge the right of Plaintiffs and their tenants to park on the eastern portion of the driveway. Defendant argues that he owns the 15 feet on the east portion of the right of way, which includes part of the paved driveway and some grass area directly in front of Plaintiff’s building. Clark owns a similar area to the west of the driveway. Essentially, Defendant maintains that the eastern portion of the driveway and the grass next to the driveway belong to him. Plaintiffs claim that they have maintained the driveway and grass area on the eastern side of the right of way since 2005 (since it is directly in front of their building), giving rise to a claim of adverse possession. Since at least 2017, Defendant has not permitted Plaintiffs to utilize the disputed portion of the driveway and the grass area. Moreover, per the complaint, Defendant has verbally abused and/or threatened Plaintiffs’ prospective tenants and lawn maintenance workers, thereby impeding Plaintiffs’ efforts to lease their property.

In 2017, Melchiorre erected a fence along the east side of the right of way, originally leaving a 4 foot opening in the fence, whereby Plaintiffs could access their building. Eventually, however, that opening was also closed off by Defendant, who claims that tenants parking in front of Plaintiffs’ building interferes with Defendant’s use of the driveway.

Plaintiffs’ complaint asserts five causes of action: adverse possession, easement by prescription, easement by estoppel, easement in gross and easement appurtenant. Defendant’s motion seeks summary judgment on the grounds that Defendant is the true owner of the disputed property and that a claim for adverse possession cannot lie when Plaintiff acknowledges that he/she is not the true owner, nor even alleges to be the true owner. Similarly, Defendant claims that Plaintiffs are not entitled to an easement by prescription because they do not claim a right of use other than the express easement provided in their deed, which is limited to ingress and egress-parking is not part of the easement. Additionally, Defendant argues that easement by estoppel does not apply because Defendant did not make any statements that Plaintiffs could use the driveway for anything other than accessing the rear parking lot, and therefore there could be no detrimental reliance.

LEGAL DISCUSSION AND ANALYSIS

Plaintiffs claim a right to the disputed property through adverse possession. The acquisition of title by adverse possession is not favored under the law. See, Ray v. Beacon Hudson Mtn. Corp., 88 NY2d 154,159 (1996). However, it “is a necessary means of clearing disputed titles and the courts adopt it and enforce it, because, when adverse possession is carefully and fully proven, it is a means of settling disputed titles and this is desirable.” Walling v. Przybylo, 7 NY3d 228, 233 (2006) quoting Belotti v. Bickhardt, 228 NY 296, 308 (1920). To sustain a claim of ownership based on adverse possession, a plaintiff is required to show, by clear and convincing evidence, that its possession of the disputed property was “(1) hostile and under claim of right; (2) actual; (3) open and notorious; (4) exclusive; and (5) continuous for the required period.” Walling v. Przybylo, 7 NY3d at 232 (citations omitted); see also, Estate of Becker v. Murtagh, 19 NY3d 75 (2012); LS Mar., LLC v. Acme of Saranac, LLC, 174 AD3d 1104 (3rd Dept. 2019); 2 N. St. Corp. v. Getty Saugerties Corp., 68 AD3d 1392 (3rd Dept. 2009).

The element of hostility is “satisfied where an individual asserts a right to the property that is ‘adverse to the title owner and also in opposition to the rights of the true owner.’” Estate of Becker v. Murtagh, 19 NY3d at 81, quoting Walling v. Przybylo, 7 NY3d at 232-233. The proponent of the adverse possession must “come forward with affirmative facts to establish that the use was under a claim of right and adverse to the interests of [defendant]” Albright v. Beesimer, 288 AD2d 577, 578 (3rd Dept. 2001), quoting McNeill v. Shutts, 258 AD2d 695, 696 (3rd Dept. 1999) (other citations omitted).

Here, Plaintiffs acknowledge that they are not the rightful owners of the property. Their complaint states at

19 “the Defendant is the true owner of the property in dispute.” Just as importantly, Plaintiffs’ use of the driveway is by virtue of an express easement, which permits Plaintiffs “the use of the driveway for ingress and egress to the rear of the premises…No portion of the easement herein granted shall be blocked at any time, including by vehicular parking.” Thus, as Plaintiffs acknowledge they are not the true owners, and their use of the driveway is by the rights afforded them under the deed and easement, their use cannot be viewed as under a claim of right, or adverse to the Defendant. See e.g. Albright v. Beesimer, 288 AD2d 577 (3rd Dept. 2001). Accordingly, the adverse possession claim cannot be maintained.

With respect to prescriptive easement, “a plaintiff must show that the use of the servient property was open, notorious, continuous and hostile for the prescriptive period.” Barra v. Norfolk S. Ry. Co., 75 AD3d 821 (3rd Dept. 2010); Sardino v. Scholet Family Trust, 192 AD3d 1433 (3rd Dept. 2021). The elements for adverse possession and easement by prescription “depend on the same elements; adverse, open and notorious, continued and uninterrupted use of property for 10 years.” Pickett v. Whipple, 216 AD2d 833, 833-834 (3rd Dept. 1995) (citations omitted). For the same reasons that the adverse possession claim fails (Plaintiffs acknowledge they are not the true owners and their usage is based on their right to use the driveway per the easement granted in their deed), the claim for prescriptive easement likewise cannot be sustained. In addition, Plaintiffs point out that they had a good rapport with Defendant’s predecessor in title, and that there was never a dispute as to parking cars on the driveway. That would suggest a neighborly cooperation and accommodation that would negate hostility. See, Barra v. Norfolk S. Ry. Co., 75 AD3d 821.

Plaintiffs next claim is for easement by estoppel, which “may arise when, among other things, a party reasonably relies upon a servient landowner’s representation that an easement exists.” MJK Bldg. Corp. v. Fayland Realty, Inc., 181 Ad3d 860, 862 (2nd Dept. 2020). In the present case, Defendant has submitted evidence as to the applicable deeds, showing that there is an actual easement, permitting Plaintiffs to use the driveway. That easement also expressly provides that Plaintiffs cannot use it for parking. Plaintiffs fail to allege that Defendants made any representations expanding on the rights specifically noted in the easement. In fact, Plaintiffs’ allegations show that Defendant adamantly protested the parking of cars in the driveway. Plaintiffs have not submitted any evidence that would suggest they detrimentally relied on anything Defendant said or did. Therefore, summary judgment to Defendant on the claim for easement by estoppel is also appropriate.

Plaintiffs’ fourth and fifth causes of action for easement in gross and easement appurtenant are not recognized causes of action. Rather, they describe particular easements. “[A]n easement in gross is a ‘mere personal, nonassignable, noninheritable privilege or license’” Niceforo v. Haeussler, 276 AD2d 949, 950 (3rd Dept. 2000), quoting Henry v. Malen, 263 AD2d 698, 702, n 3. (3rd Dept. 1999). “It is a well-established principle of law that an easement in gross will not be presumed where it can fairly be construed to be appurtenant to land.” Wilson v. Ford, 209 NY186 (1913). “[A]n easement appurtenant provides for a transferrable interest in land […]. Specifically, an easement appurtenant is created when such easement is ‘(1) conveyed in writing, (2) subscribed by the person creating the easement and (3) burdens the servient estate for the benefit of the dominant estate’” Niceforo v. Haeussler, 276 AD2d at 950 (internal citation omitted), quoting Strnad v. Brudnicki, 200 AD2d 735, 736 [2nd Dept. 1994]). Whether the easement in this case is characterized as an easement in gross or easement appurtenant makes no difference. Plaintiffs’ easement rights are not in dispute, and regardless of the category of easement, the Plaintiffs do not state any cause of action under these theories. As such, Defendant is entitled to summary judgment on those causes of action as well.

Lastly, the facts establish that the fence put up by the Defendant may actually be within the 15 foot wide easement area, and may technically deprive Plaintiffs (or the landowner to the west of the driveway), the full width of the easement area. However, as it does not interfere with Plaintiffs ability to utilize the driveway to access the back parking lot, the Defendant may install a fence. As noted by the Third Department, “a landowner burdened by an express easement of ingress and egress may narrow it, cover it over, gate it or fence it off, so long as the easement holder’s right of passage is not impaired.” Sambrook v. Sierocki, 53 AD3d 817, 818 (3rd Dept. 2008), quoting Lewis v. Young, 92 NY2d 443,449 (1998). In the instant case, Plaintiffs do not allege that the fence prevents them from using the driveway to access their rear parking lot, and the express terms of the deed and right of way show that the easement is for ingress and egress, not parking. Plaintiffs are not deprived of their ability to utilize the driveway for ingress and egress.

Plaintiffs have also filed a cross motion for summary judgment. However, as noted above, all the claims asserted by Plaintiffs are being resolved by summary judgment to Defendant. Therefore, Plaintiffs’ motion for summary judgment must be denied

LITIGATING ANONYMOUSLY?

In this recent case, plaintiff alleged a hostile work environment under the New York State and City Human Rights Laws and sought to proceed anonymously.

John Doe v. The City of New York et al, 511209/2020, 2021 N.Y. Slip Op. 50916(U), 2021 WL 4468869 (Sup Ct, Sept. 29, 2021):

"Lastly, the determination of whether to allow a plaintiff to proceed under a pseudonym, requires the court to "use its discretion in balancing plaintiff's privacy interest against the presumption in favor of open trials and against any potential prejudice to defendant." Anonymous v. Lerner, 124 A.D.3d 487; 998 N.Y.S.2d 619 (1st Dept. 2015). Claims of public humiliation and embarrassment are not sufficient grounds for allowing a plaintiff to proceed anonymously. Id. Although plaintiff wishes to proceed anonymously, he has not made any assertions that he feared embarrassment, economic harm from the public disclosure of his identity, social stigmatization, professional repercussions or social isolation from his peers and colleagues. Doe v. Yeshiva Univ., 195 A.D.3d 565; 146 N.Y.S.3d 482 (1st Dept. 2021). Plaintiff only states that the alleged touching of his leg is sensitive and sexual in nature, and warrants proceeding anonymously."

CHILD CUSTODY IN DIVORCE - RIGHT TO COUNSEL

Brandel v Brandel, 2021 NY Slip Op 05116, Decided on September 29, 2021, Appellate Division, Second Department:

"The parties were married in 2008 and have one child together, born in 2012. The plaintiff commenced the instant divorce action in the Supreme Court in April 2015, seeking, inter alia, sole custody of the child. During a Family Court proceeding in May 2015, the parties agreed to a resolution in open court. In an order of custody and parental access dated July 13, 2015, issued on consent, the Family Court, among other things, awarded the defendant primary physical custody of the child. During the divorce trial, the defendant's attorney was permitted to withdraw, and the defendant proceeded pro se. At the conclusion of the trial, the Supreme Court issued a judgment of divorce, inter alia, awarding the plaintiff primary physical custody of the child, with certain parental access to the defendant. The defendant appeals.

A divorce litigant has a statutory right to counsel for the custody portion of the litigation (see Family Ct Act § 262[a][iii], [v]; Judiciary Law § 35[8]). Here, the defendant's [*2]attorney was permitted to withdraw during the trial, and the defendant proceeded pro se. However, the Supreme Court did not determine whether the defendant was unequivocally, voluntarily, and intelligently waiving his right to counsel (see Matter of Tarnai v Buchbinder, 132 AD3d 884, 886; Matter of Nixon v Christian, 130 AD3d 831, 832) and failed to inquire whether the defendant understood the risks and disadvantages of appearing pro se. Accordingly, we modify the judgment of divorce by deleting the provision thereof awarding the plaintiff primary physical custody of the child, without regard to the merits of the defendant's position, and remit the matter to the Supreme Court, Orange County, for a new trial on the issue of modification of custody (see Charbonneau v Charbonneau, 151 AD3d 1060, 1061; Matter of Pugh v Pugh, 125 AD3d 663, 664). At that time, the court should conduct a more detailed inquiry to determine whether the defendant is eligible for assigned counsel. Pending the new trial and determination, the provisions of the judgment of divorce regarding custody and parental access shall remain in effect."

PROVING FRAUD FOR AN ANNULMENT

Travis A. v. Vilma B., Date filed: 2021-09-16, Court: Appellate Division, Third Department, Case Number: 531115:

"MEMORANDUM AND ORDER Appeal from a judgment of the Supreme Court (Campbell, J.), entered January 31, 2020 in Cortland County, granting plaintiff an annulment of the parties’ marriage, upon a decision of the court CHRISTINE CLARK, JUSTICE PRESIDING

Plaintiff (hereinafter the husband), a United States citizen, and defendant (hereinafter the wife), a citizen of the Philippines, met online in February 2018 and got engaged in June 2018, during the first of the husband’s two trips to the Philippines. In April 2019, the wife entered the United States on a K-1 (fiancée) visa and moved in with the husband. Several weeks later, on June 8, 2019, the parties were married. However, the marriage rapidly deteriorated, with the wife moving out of the marital home less than two weeks after the wedding. In July 2019, the husband commenced this action seeking an annulment based upon the wife’s alleged fraud in the inducement. Specifically, the husband alleged that the wife married him “with the sole purpose of becoming a U.S. [c]itizen.” The wife joined issue, denying the husband’s allegation of fraud in the inducement and asserting that the husband had perpetrated acts of domestic violence against her and that she “removed herself from the marital premises for her own safety.” Following a nonjury trial, Supreme Court issued a decision finding that the wife had fraudulently induced the husband to marry her to obtain citizenship and that the husband was therefore entitled to an annulment. By judgment of annulment entered in January 2020, which incorporated Supreme Court’s decision, the parties’ marriage was annulled. The wife appeals.1

Where the consent of either spouse to a marriage was obtained by fraud, the marriage is voidable by way of an annulment action (see Domestic Relations Law §§7 [4]; 140 [e]; Kober v. Kober, 16 NY2d 191, 196 [1965]). To obtain an annulment, the plaintiff spouse must prove that the defendant spouse knowingly made a material false representation to the plaintiff spouse with the intent of inducing the plaintiff spouse’s consent to marriage, that the misrepresentation was of such a nature as to deceive an ordinarily prudent person, that the plaintiff spouse justifiably relied on the misrepresentation in consenting to marriage and that, once aware of the false representation, cohabitation ceased (see Domestic Relations Law §140 [e]; Shonfeld v. Shonfeld, 260 NY 477, 479-480 [1933]; Brazil v. Brazil, 235 AD2d 611, 613 [1997]; Avnery v. Avnery, 50 AD2d 806, 806 [1975], appeal dismissed 38 NY2d 997 [1976]). Generally, “[p]remarital falsehoods as to love and affection are not enough” to warrant an annulment based upon fraud (WoronzoffDaschkoff v. Woronzoff-Daschkoff, 303 NY 506, 512 [1952]; accord Avnery v. Avnery, 50 AD2d at 807). However, proof that a defendant spouse induced the plaintiff spouse to marry with the sole objective of obtaining an immigration or citizenship benefit may, in certain cases, constitute grounds for an annulment (see Brillis v. Brillis, 4 NY2d 125, 127 [1958]; Avnery v. Avnery, 50 AD2d at 808; Miodownik v. Miodownik, 259 App Div 851, 851 [1940]; Bracksmayer v. Bracksmayer, 22 NYS2d 110, 111 [Sup Ct, NY County 1940]; compare Novick v. Novick, 17 Misc 2d 350, 351 [Sup Ct, NY County 1959]). An annulment may not be granted solely upon “the declaration or confession of either party”; rather, the plaintiff spouse must produce “satisfactory evidence of the facts” (Domestic Relations Law §144 [2]), that is, evidence consisting of “other material from other sources, substantial and reliable enough to satisfy the conscience of the trier of the facts” (de Baillet-Latour v. de Baillet-Latour, 301 NY 428, 431 [1950]; accord Fishman v. Fishman, 48 AD2d 876, 877 [1975]). Where the plaintiff spouse seeks an annulment based upon fraud in the inducement, such fraud must be proven by clear and convincing evidence (see Vanderhorst v. Vanderhorst, 282 App Div 312, 314 [1953]; Peterson v. Peterson, 255 App Div 537, 538 [1938]; see also Shonfeld v. Shonfeld, 260 NY at 489 [Crane, J., dissenting]).

The husband’s case of fraud in the inducement was premised upon his claim that the wife induced him to marry through false representations of love and affection for the sole purpose of obtaining an immigration benefit. The husband, however, failed to prove that claim at trial, as his proof fell far short of demonstrating a fraudulent premarital intent on the part of the wife. The husband’s proof primarily consisted of testimony establishing premarital and marital discord between the parties. Although the husband sought to attribute that discord to a fraudulent premarital intent, he ultimately failed to demonstrate “that the marital break was due to any cause other than the general discontent and incompatibility of the parties” (Schacht v. Schacht, 24 AD2d 614, 614 [1965]). Indeed, the husband’s own proof demonstrated that, during their marital spats, the wife indicated her desire to leave the marriage and return to her family and friends in the Philippines. The fact that she remained in the United States after the parties ceased cohabitating is insufficient to demonstrate that, prior to the marriage, the wife had the intent to induce the husband to marry with the sole objective of obtaining an immigration benefit. In determining otherwise, Supreme Court erred by not holding the husband to his burden of proof, relying too heavily upon the wife’s belated filing of a family offense petition in another county and taking a negative inference against the wife for purportedly exploring relief under the Violence Against Women Act. Accordingly, Supreme Court erred2 in granting the husband an annulment based upon fraud in the inducement (see Schacht v. Schacht, 24 AD2d at 614; compare Brillis v. Brillis, 4 NY2d at 127).

Footnotes

1. Although the notice of appeal states that the appeal is being taken from Supreme Court's decision, a nonappealable paper, we exercise our discretion and deem the appeal as having been taken from the judgment of annulment (see CPLR 5512 [a]; Orser v. Wholesale Fuel Distribs. CT, LLC, 173 AD3d 1519, 1520 n 2 [2019], lv denied 34 NY3d 909 [2020]). We take judicial notice of the judgment of annulment, which was omitted from the record on appeal, but provided to this Court during the course of the parties' appellate motion practice (see Matter of Doreen J., 193 AD3d 1250, 1251 n 1 [2021]).

2. Although not germane to our final analysis, the wife correctly asserts that Supreme Court improperly excluded certain photographs from evidence. Contrary to Supreme Court's assertions, the wife laid a proper foundation for admission of the photographs and, thus, they should have been admitted (see People v. Price, 29 NY3d 472, 477 [2017]; People v. Byrnes, 33 NY2d 343, 347 [1974]). Once admitted, Supreme Court could determine what weight, if any, to give the photographs (see Matter of Colby II. [Sheba II.], 145 AD3d 1271, 1273 [2016]; People v. Agudelo, 96 AD3d 611, 611 [2012], lv denied 20 NY3d 1095 [2013])."

COVID TREATMENTS AND THE COURT

Cammarano v. Staten Island University Hosp., Date filed: 2021-09-20, Court: Supreme Court, Richmond, Judge: Justice Ralph Porzio, Case Number: 85169/2021:

"HISTORY

This action was brought by Donald James Cammarano, (hereinafter “Plaintiff/advocate”) as the son and advocate for Donald Anthony Cammarano (hereinafter “Patient”) on September 7, 2021, seeking a medical declaratory judgment and emergency order compelling Staten Island University Hospital- Northwell Health (hereinafter “SIUH/Northwell”) to comply with a prescription for Ivermectin to treat the patient’s COVID-19. According to Plaintiff/advocate, his father, the patient, tested positive for COVID-19 on or about July 23, 2021 and was admitted to SIUH/Northwell on July 28, 2021. While in the ICU, the patient received the hospital’s COVID-19 treatment protocol of Remdesivir, antibiotics, and steroids. Plaintiff/advocate stated in his affidavit that on August 11, 2021 the patient, his father, stated that he wanted to be prescribed Ivermectin. The following day, August 12, 2021, Plaintiff/advocate stated that Dr. Michael Chalhoub, the Chief of the ICU at Staten Island University Hospital, agreed to prescribe Ivermectin for the patient. Despite this, the Plaintiff/advocate was subsequently informed that the hospital refused to prescribe and administer the prescription. Instead, Dr. Michael Turner, MD, a doctor from Washington State and not associated with Northwell Health, prescribed Ivermectin for the patient. However, SIUH/Northwell refuses to administer the prescription as they claim Ivermectin is not the appropriate course of treatment for the patient.

SPECIAL PROCEEDING

The Plaintiffs brought this Special Proceeding and Order to Show Cause for a medical declaratory judgment and emergency preliminary injunction on September 7, 2021 asking this Court to compel SIUH/Northwell to administer Ivermectin to the patient. This Court initially denied the interim relief which sought SIUH/Northwell to administer Ivermectin as “ordered by his treating physicians” based upon the failure to timely file an affirmation pursuant to 22 NYCRR 202.7. The Court heard the matter on September 9, 2021, and again did not order SIUH/Northwell to administer Ivermectin. The matter was adjourned for full briefing and oral arguments of the Order to Show Cause on September 14, 2021.

Though the Court is sympathetic to the Plaintiffs, there has been no admissible evidence submitted that Ivermectin is an effective or an approved treatment for COVID-19. The Plaintiffs failed to present any affidavits from Dr. Michael Turner, the prescribing physician, or any other expert, recommending Ivermectin to the patient or attesting to Ivermectin as an effective treatment for COVID-19. Plaintiffs, in support of the application, submitted inadmissible news articles and orders from similar cases, without any statutory or case law authority. This decision will address the preliminary injunction, the fundamental right to medication, the right to try and the compassionate use of medication.

The Preliminary Injunction

In order for the Court to grant a preliminary injunction, the Plaintiff must show (1) a likelihood of success on the merits; (2) irreparable harm in the absence of the preliminary injunction; and (3) the balance of the equities in favor of the Plaintiff. See W. T. Grant Co. v. Srogi, 52 NY2d 496, 517 (1981). “A mandatory injunction, which is used to compel the performance of an act, is an extraordinary and drastic remedy which is rarely granted and then only for unusual circumstances where such relief is essential to maintain the status quo pending trial of the action. Matos v. City of New York, 21 A.D.3d 936, 937 [2d Dept. 2005].

It is the Plaintiffs’ burden to show a likelihood of success on the merits of the case and it must be clear from undisputed facts. See McLaughlin, Piven, Vogel, Inc. v. W.J. Nolan & Co., 114 AD2d 165, 173 [2d Dept. 1986]; Family Affair Haircutters, Inc. v. Detling, 110 AD2d 745, 747 [2d Dept. 1985]. The Plaintiffs have failed to show a likelihood of success on the merits, as they have not shown that Ivermectin would be effective in treating the patient, nor have they shown that the Court has any legal authority to order their requested relief.

Further, Plaintiffs have failed to show that they would suffer irreparable harm in the absence of the preliminary injunction. The alleged harm must be shown by the Plaintiff to be “imminent, not remote or speculative.” See Golden v. Steam Heat, 216 AD2d 440, 442 [2d Dept. 1995]. In this case, Plaintiffs have only speculated that the Ivermectin treatment would be effective for the patient. The Court, on speculation alone, cannot find that the patient would suffer irreparable harm in the absence of the preliminary injunction.

Finally, the Plaintiffs have failed to show a balance of the equities in their favor, as they must show that the irreparable harm will outweigh the harm to the defendants. See McLaughlin, Piven, Vogel, Inc. v. W.J. Nolan & Co., 114 AD2d 165, 174 [2d Dept. 1986]. This Court agrees that “public policy should not and does not support allowing a physician to try any type of treatment on human beings. Rather, public policy supports the safe and effective development of medications and medical practices.” See Smith v. W. Chester Hosp. LLC, 2021 Ohio Misc. LEXIS 103 [Ohio Court of Common Pleas Gen. Div. Butler Cty. September 6, 2021]. The goal of providing assistance to patients during the COVID-19 pandemic should not “overcome thoughtful, evidence-based judgment…” American Medical Association, Prescribing Medications Responsibly in a Pandemic, Code of Medical Ethics Opinion 1.2.11 (August 21, 2021), available at www.ama-assn.org/delivering-care/ethics/prescribing-medications-responsibly-pandemic [last accessed Sept. 20, 2021]. This Court will not overrule the clinical judgment of the patient’s physicians, as doing so may cause severe harm to those physicians, SIUH and Northwell Health.

Fundamental Right to Medication

The news surrounding the use of Ivermectin to treat COVID-19, without any data or peer-reviewed proof, reminds this court of the use of Laetrile, a drug that gained popularity, but was not federally approved for the treatment of cancer. Laetrile, also known as amygdalin, is made from the pits of fruits and is found naturally in plants. The drug was ultimately banned by the United States Food and Drug Administration (hereinafter “FDA”) as it showed no anticancer activity, and the side effects mirror the symptoms of cyanide poisoning. (“Laetrile/Amygdalin (PDQ®)-Health Professional Version,” National Institute of Health, National Cancer Institute, www.cancer.gov/about-cancer/treatment/cam/hp/laetrile-pdq, [last accessed Sept. 20, 2021]). The use of the unapproved drug Laetrile for terminally ill patients was addressed by the United States Supreme Court in United States v. Rutherford.

In 1975, terminally ill cancer patients brought an action to “enjoin the Government from interfering with the interstate shipment and sale of Laetrile, a drug not approved for distribution under the act.” United States v. Rutherford, 442 US 544, 556 [1979]. The question addressed in the Rutherford case was “whether the Federal Food, Drug and Cosmetic Act precludes terminally ill cancer patients from obtaining Laetrile, a drug not recognized as ‘safe and effective’…” Id. at 546. The Court stated, “for the terminally ill, as for anyone else, a drug is unsafe if its potential for inflicting death or physical injury is not offset by the possibility of therapeutic benefit…” Id. at 556. The Supreme Court in Rutherford ultimately held that there was no explicit exception for terminally ill patients to use a drug that was not approved as safe or effective. Id.

The Supreme Court, in analyzing a drug’s effectiveness under the Federal Food, Drug and Cosmetic Act, noted:

“Moreover, there is a special sense in which the relationship between drug effectiveness and safety has meaning in the context of incurable illnesses. An otherwise harmless drug can be dangerous to any patient if it does not produce its purported therapeutic effect. See 107 Cong. Rec. 5640 (1961) (comments of Sen. Kefauver). But if an individual suffering from a potentially fatal disease rejects conventional therapy in favor of a drug with no demonstrable curative properties, the consequences can be irreversible. See, e. g., 42 Fed. Reg. 39768, 39787 (1977) (statement of Dr. Carl Leventhal, Deputy Director of the Bureau of Drugs, FDA, and Assistant Professor of Neurology and Pathology at Georgetown University).” United States v. Rutherford, 442 US 544, 556 [1979].

The United States Court of Appeals for the District of Columbia Circuit addressed drug regulation and the use of unapproved drugs for the terminally ill in its decision in Abigail Alliance for Better Access to Dev. Drugs v. Von Eschenbach, 378 US App DC 33, 495 F3d 695, 702 [2007]. In Abigail the Court noted that the FDA and Congress had programs available for terminally ill patients, to “provide early access to promising experimental drugs when warranted.” The use of investigational drugs by patients not participating in clinical trials may be approved for the treatment of “serious or immediately life-threatening diseases if there exists no comparable or satisfactory alternative drug or other therapy.” The Court analyzed the FDA’s procedure for access to experimental drugs, but in citing Rutherford, stated that someone in desperate need of curative treatments can have their death “hastened by the use of a potentially toxic drug with no proven therapeutic benefit.” Abigail at 713. The FDA’s policy of limiting access is rationally related to a legitimate state interest in protecting patients from “potentially unsafe drugs with unknown therapeutic effects.” Abigail at 713. In Abigail, the Court ultimately held that terminally ill patients had no fundamental due process right to access experimental drugs.

Ivermectin and Off-Label Use

Upon the Court’s research, the FDA has only approved Ivermectin to treat people with intestinal strongyloidiasis and onchocerciasis, conditions that are caused by parasitic worms. (Why You Should Not Use Ivermectin to Treat or Prevent COVID-19, U.S. Food & Drug Administration,_www.fda.gov/consumers/consumer-updates/why-you-should-not-use-ivermectin-treat-or-prevent-covid-19 [last accessed Sept. 17, 2021]). In the instant matter, Ivermectin is being prescribed to treat the patient’s COVID-19 as an off-label use. Unapproved use of an FDA approved drug is often called “off-label” use, meaning that the drug is being used for a disease or condition that it is not approved to treat. (“Understanding Unapproved Use of Approved Drugs Off Label,” U.S. Food & Drug Administration, www.fda.gov/patients/learn-about-expanded-access-and-other-treatment-options/understanding-unapproved-use-approved-drugs-label [last accessed Sept. 20, 2021]). Doctors often have the ability to prescribe drugs to their patients for “off-label use” if they feel that it may benefit a patient. (“What to Know About Off-Label Drug Use,” Medical News Today, www.medicalnewstoday.com/articles/off-label-drug-use#reasons-for-use, [last accessed Sept. 20, 2021]).

Off-label prescriptions are an “integral part of contemporary medicine,” however, these prescriptions can harm patients when “an off-label use lacks a solid evidentiary basis.” (“Off-Label Prescribing: A Call for Heightened Professional and Government Oversight,” J Law Med Ethics, www.ncbi.nlm.nih.gov/pmc/articles/PMC2836889/ [last accessed Sept. 20, 2021]). Responsible off-label prescribing requires physicians to “(1) evaluate whether there is sufficient evidence to justify an off-label use; (2) press for additional information and research when adequate evidence is lacking; and (3) inform patients about the uncertainties and potential costs associated with off-label prescribing.” Id. When uncertainty exists about the benefits of off-label applications, “patients are at risk of receiving harmful or ineffective treatments.” Id. The FDA has not “authorized or approved Ivermectin for use in preventing or treating COVID-19.” (Why You Should Not Use Ivermectin to Treat or Prevent COVID-19, U.S. Food & Drug Administration,_www.fda.gov/consumers/consumer-updates/why-you-should-not-use-ivermectin-treat-or-prevent-covid-19 [last accessed Sept. 17, 2021]). The alleged successes of Ivermectin are merely anecdotal at this time, however, the FDA confirms that “currently available data do not show Ivermectin is effective…” Id.

The Court finds the affidavits submitted on behalf of SIUH/Northwell by its employees, Dr. Neville Mobarakai and Dr. Dany Elsayegh, to be persuasive and notes that the patient is not suffering from an active COVID-19 infection, but rather complications from COVID-19, specifically bacterial pneumonia. Per these doctors, bacterial pneumonia is not treated by Ivermectin. In fact, both doctors claim that since Ivermectin is not clinically warranted for the patient’s current condition, “it would be unethical to provide such treatment to Donald Anthony Cammarano.” See Defendants’ Exhibits A and B. Further, this Court understands that deviation from accepted medical practices is an essential element of medical malpractice and per the FDA, there is no current evidence to justify off-label use of Ivermectin at this time. See Poter v. Adams, 104 AD3d 925, 926, 961 NYS2d 556, 558 [2d Dept. 2013] and (Why You Should Not Use Ivermectin to Treat or Prevent COVID-19, U.S. Food & Drug Administration,_www.fda.gov/consumers/consumer-updates/why-you-should-not-use-ivermectin-treat-or-prevent-covid-19 [last accessed Sept. 17, 2021]). As such, this Court will not require any doctor to be placed in a potentially unethical position wherein they could be committing medical malpractice by administering a medication for an unapproved, alleged off-label purpose.

Right to Try and Expanded Access

Though not expressly argued by the parties in this matter, the Court has considered options available to the patient through the Right to Try Act and the FDA’s expanded use program. The “Right to Try Act” was signed into law on May 30, 2018. The law permits patients who have been diagnosed with life-threatening diseases or conditions who have tried approved treatment options and are not able to participate in a clinical trial to access unapproved medical treatments. The FDA allows patients to have access to “eligible investigational drugs” if they meet certain criteria, such as, being diagnosed with a life-threatening disease, they’ve exhausted approved treatment options, and they provide written informed consent. (“Right to Try,” US. Food and Drug Administration, www.fda.gov/patients/learn-about-expanded-access-and-other-treatment-options/right-try [last accessed Sept. 20, 2021]).

In addition to “Right to Try,” patients may have access to expanded use, also known as compassionate use, of experimental or unapproved medical products outside of clinical trials. This is available when there is “no comparable or satisfactory therapy options” available. Expanded use may be available to a patient when a patient has a serious, life threatening disease or condition; there is no comparable drug or therapy; a clinical trial is not possible; the benefit justifies the potential risks of treatment; and providing the product will not interfere with investigational trials. (“Expanded Access,” US. Food and Drug Administration, www.fda.gov/news-events/public-health-focus/expanded-access [last accessed Sept. 20, 2021]).

After careful consideration, this Court finds that these programs to try medications are not applicable in this case. Per the affidavits provided by SIUH/Northwell, the patient is currently diagnosed with bacterial pneumonia and does not have an active COVID-19 infection. There was no evidence submitted that the patient attempted to obtain drugs undergoing clinical trials, pursuant to the Right to Try Act or under the FDA’s expanded use program. In any event, as the Courts have previously found that there is not a fundamental right for a patient to use new or experimental drugs, this Court will not interfere with the regulations of the FDA and order the administration of Ivermectin to the patient over the objection of the Defendants.

CONCLUSION

This Court is not commenting on whether Ivermectin will ever be an effective or approved treatment for COVID-19, nor will it medicate from the bench. This Court will not order a hospital to provide a patient with an unproven, unapproved treatment that could potentially have detrimental effects on him due to his fragile health. The Plaintiffs have failed to present expert support for the off-label use of Ivermectin to treat the patient’s current condition. Based upon the foregoing, the Plaintiffs’ request for a declaratory judgment and order to compel Staten Island University Hospital- Northwell Health administer Ivermectin is denied."

WHEN SANCTIONS ARE IMPOSED IN DISCOVERY

According to Merriam-Webster: Definition of contumacious: stubbornly disobedient : REBELLIOUS

Ambroise v Palmana Realty Corp., 2021 NY Slip Op 05018, Decided on September 22, 2021. Appellate Division, Second Department:

"Pursuant to CPLR 3126, a court may impose discovery sanctions, including the striking of a pleading, where a party "refuses to obey an order for disclosure or willfully fails to disclose information which the court finds ought to have been disclosed" (CPLR 3126[3]). "The nature and degree of a penalty to be imposed under CPLR 3126 for discovery violations is addressed to the court's discretion" (Crupi v Rashid, 157 AD3d 858, 859). "Although public policy strongly favors that actions be resolved on the merits when possible, a court may resort to the drastic remedies of striking a pleading or precluding evidence upon a clear showing that a party's failure to comply with a disclosure order was the result of willful and contumacious conduct" (Nationstar Mtge., LLC v Jackson, 192 AD3d 813, 815). "A court can infer that a party is acting willfully and contumaciously through the party's repeated failure to adequately respond to discovery demands or to comply with discovery orders" (Cobo v Pennwalt Corp. Stokes Div., 185 AD3d 650, 652).

Here, the Supreme Court improvidently exercised its discretion in, sua sponte, directing dismissal of the complaint pursuant to CPLR 3126, since there was no showing that the plaintiff willfully and contumaciously failed to adequately respond to discovery demands or to comply with court orders for disclosure (see Ramirez v Reyes, 171 AD3d 1114, 1115-1116). On July 3, 2019, less than a month after the defendant moved, inter alia, to compel responses to certain discovery demands, the court directed the defendant to settle an order, among other things, striking the complaint. However, no prior order had been issued directing the plaintiff to comply with discovery demands. Moreover, shortly after the court directed the defendant to settle the order, the plaintiff produced documents on July 19, 2019, as requested, with regard to his financial ability to close, including "all the responsive documents in [the plaintiff's] custody and control" which he could locate. Under these circumstances, the record is insufficient to establish that the plaintiff engaged in willful and contumacious conduct warranting the drastic remedy of dismissal of the complaint.

In light of our determination, we need not reach the plaintiff's remaining contentions.

Accordingly, the Supreme Court erred by, sua sponte, directing dismissal of the complaint pursuant to CPLR 3126, and we remit the matter to the Supreme Court, Kings County, to set an appropriate schedule for the completion of discovery."

NEW RULES COMING ON ERAP TO ASSIST LANDLORDS

As noted on Office of Temporary and Disability Assistance website: "Recent legislation created another new program to provide rental assistance for landlords whose tenants have left their rental property or who are unwilling to apply for ERAP. Additional details regarding this program, including an opening date and documentation requirements, will be posted on the OTDA website as they become available."

See https://otda.ny.gov/programs/emergency-rental-assistance/

MORTGAGE FORECLOSURE AND CPLR 3215(g)(1)

 

CPLR 3215(g)(1) provides: "Except as otherwise provided with respect to specific actions, whenever application is made to the court or to the clerk, any defendant who has appeared is entitled to at least five days' notice of the time and place of the application, and if more than one year has elapsed since the default any defendant who has not appeared is entitled to the same notice unless the court orders otherwise.  The court may dispense with the requirement of notice when a defendant who has appeared has failed to proceed to trial of an action reached and called for trial."

21st Mtge. Corp. v Raghu, 2021 NY Slip Op 05016, Decided on September 22, 2021, Appellate Division, Second Department:

"This action to foreclose a mortgage was commenced in 2007 against, among others, Anil Raghu (hereinafter the borrower) and Mortgage Electronic Registration Systems, Inc., as nominee for Fremont Investment and Loan (hereinafter Fremont). The amended complaint alleged that in 2006, the borrower had executed a note in the amount of $580,000, which was secured by a mortgage on real property located in Queens. The amended complaint further alleged that the borrower defaulted under the terms of the note and mortgage, and asserted a cause of action to foreclose the mortgage. The amended complaint alleged that Fremont had, or claimed to have, an interest in the subject property, or a lien upon it.

As relevant here, Fremont failed to interpose an answer or otherwise appear in the action. An order was entered on July 11, 2007, inter alia, appointing a referee to compute the amount due to the plaintiff. Sometime in 2016, after adding additional defendants to the action, and serving a supplemental summons and amended complaint, the plaintiff moved, among other things, for leave to enter a default judgment and for an order of reference. The plaintiff's motion was granted in an order entered July 19, 2016. In an order entered April 27, 2017, the Supreme Court, inter alia, appointed a referee to ascertain and compute the amount due to the plaintiff.

The referee issued a report dated June 6, 2017. By notice of motion dated June 14, 2017, the plaintiff moved to confirm the referee's report and for a judgment of foreclosure and sale. The Supreme Court granted the plaintiff's motion, and an order and judgment of foreclosure and sale was entered on May 22, 2018. Based upon, among other things, the referee's report, the court determined that the sum of $1,191,777.18 was due as of June 1, 2017, and directed the sale of the subject property.

By order to show cause signed on September 28, 2018, Courchevel 1850, LLC (hereinafter Courchevel), as successor in interest to Fremont, moved pursuant to CPLR 5015 to vacate the order and judgment of foreclosure and sale, and for other relief. As relevant here, Courchevel asserted that the plaintiff failed to comply with the notice requirements of CPLR 3215(g)(1) when it moved to confirm the referee's report and for a judgment of foreclosure and sale, and that this failure deprived the Supreme Court of jurisdiction to enter the order and judgment of foreclosure and sale.

The plaintiff opposed Courchevel's motion. The plaintiff argued that Courchevel's predecessor in interest (Fremont) had been served with the order entered April 27, 2017, granting the plaintiff leave to enter the default judgment against Fremont. The plaintiff asserted that Fremont had also been served with the notice of sale regarding the auction sale of the property, which was scheduled after the order and judgment of foreclosure and sale had been entered.

In an order entered May 23, 2019, the Supreme Court denied Courchevel's motion, among other things, to vacate the order and judgment of foreclosure and sale. As relevant here, the court concluded that the notice required by CPLR 3215(g)(1) was not applicable to the plaintiff's motion to confirm the referee's report and for a judgment of foreclosure and sale. The court determined that, under the statute, Fremont was only entitled to receive notice of the plaintiff's application for leave to enter a default judgment and for the appointment of a referee, and that Fremont was not entitled to notice of the later application to, inter alia, confirm the referee's report. The court concluded that Courchevel had not demonstrated sufficient grounds to warrant vacatur of the order and judgment of foreclosure and sale pursuant to CPLR 5015. Accordingly, the court denied Courchevel's motion, among other things, to vacate the order and judgment of foreclosure and sale.

Courchevel appeals from the order entered May 23, 2019. On appeal, Courchevel contends, inter alia, that the Supreme Court should have granted that branch of its motion which was to vacate the order and judgment of foreclosure and sale. Courchevel asserts that pursuant to CPLR 3215(g)(1), Fremont was entitled to notice of the plaintiff's motion to confirm the referee's report and for a judgment of foreclosure and sale, and that the court's determination to the contrary was error as a matter of law.

The plaintiff contends that the Supreme Court's determination was correct, and that "[o]nce [Fremont] was properly served with a motion for default in accordance with the requirements of CPLR 3215(g)(1), there was no necessity to serve Courchevel's predecessor with any further motions or pleadings." The plaintiff argues that CPLR 3215(g)(1) "only applies to notice regarding a defendant's [initial] default."

For the reasons that follow, we affirm the order entered May 23, 2019. CPLR 3215(g)(1) did not require the plaintiff to give Fremont notice of its motion to confirm the referee's report and for a judgment of foreclosure and sale. Since Courchevel failed to demonstrate sufficient grounds for vacating the order and judgment of foreclosure and sale, the Supreme Court properly denied its motion, inter alia, pursuant to CPLR 5015(a) to vacate the order and judgment of foreclosure and sale.

"After having been served with process, the defendant who wants to avoid a default must respond in a proper and timely manner" (Deutsche Bank Natl. Trust Co. v Hall, 185 AD3d 1006, 1008 [internal quotation marks omitted]; see generally Vincent C. Alexander, Practice Commentaries, McKinney's Cons Laws of NY, CPLR C320:1). A defendant must appear within 20 days of service of a summons, or within 30 days of service where service was made by delivering the summons "to an official of the state authorized to receive service in his [or her] behalf" (CPLR 320[a]; see Duncan v Emerald Expositions, LLC, 186 AD3d 1321, 1323).

The CPLR sets forth three ways that a defendant may appear in the action: "[t]he defendant appears [1] by serving an answer or [2] [by serving] a notice of appearance, or [3] by making a motion which has the effect of extending the time to answer" (CPLR 320[a]; see U.S. Bank [*2]N.A. v Gilchrist, 172 AD3d 1425, 1426). "A defendant's failure to respond to a summons and complaint [in one of the three ways specified in CPLR 320(a)] 'amounts to what CPLR 3215 . . . calls a failure to appear'" (Deutsche Bank Natl. Trust Co. v Hall, 185 AD3d at 1008, quoting Siegel & Connors, NY Prac § 293 [6th ed]; see U.S. Bank N.A. v Gilchrist, 172 AD3d at 1427).

The first way for a defendant to appear within the meaning of the statute is by serving an answer (see CPLR 320[a]). An answer "is [the] defendant's pleading in response to a complaint" (Deutsche Bank Natl. Trust Co. v Hall, 185 AD3d at 1008 [internal quotation marks omitted]; see CPLR 3011; 3018). The failure to interpose a timely answer constitutes a default in pleading, an independent default basis that is analytically "distinct from a failure to appear" (Siegel & Connors, NY Prac § 293 [6th ed]). "A defendant who has defaulted in answering admits all traversable allegations in the complaint, including the basic allegation of liability" (Glenwood Mason Supply Co., Inc. v Frantellizzi, 138 AD3d 925, 926; see Rokina Opt. Co. v Camera King, 63 NY2d 728, 730; Cole-Hatchard v Eggers, 132 AD3d 718, 720).

A notice of motion pursuant to CPLR 3211(a) is the second way that a defendant may appear in the action (see CPLR 320[a]). Service of a notice of motion to dismiss a complaint pursuant to CPLR 3211(a) extends a defendant's time to answer the complaint (see id. § 3211[f]). Such a motion must be made "before service of the responsive pleading is required" (id. § 3211[e]), or it is untimely (see Bennett v Hucke, 64 AD3d 529, 530).

Service of "a notice of appearance" is the third way in which a defendant may appear in an action pursuant to CPLR 320(a). The recursive nature of the terminology used in CPLR 320(a) provides an obvious opportunity for confusion. However, in this context, a notice of appearance is "a simple document that notifies the plaintiff that defendant is appearing in the action" (Deutsche Bank Natl. Trust Co. v Hall, 185 AD3d at 1008 [internal quotation marks omitted]; see Vincent C. Alexander, Practice Commentaries, McKinney's Cons Laws of NY, CPLR C320:1).

A notice of appearance "is the response generally reserved for the situation in which the plaintiff's process consisted of a summons with notice as authorized by CPLR 305(b)" (Deutsche Bank Natl. Trust Co. v Hall, 185 AD3d at 1008 [internal quotation marks omitted]; see Vincent C. Alexander, Practice Commentaries, McKinney's Cons Laws of NY, CPLR C320:1). Although a defendant "appears" within the meaning of CPLR 320(a) by merely serving a notice of appearance, service of a notice of appearance does not "absolve a defendant from complying with the time restrictions imposed by CPLR 320(a) which govern the service of an answer or the making of a motion pursuant to CPLR 3211" (Deutsche Bank Natl. Trust Co. v Hall, 185 AD3d at 1009-1010).

Accordingly, a defendant who serves a timely notice of appearance may nevertheless default in answering (see Deutsche Bank Natl. Trust Co. v Hall, 185 AD3d at 1009). More generally, "[a] defendant who has duly appeared can be guilty of a default at [any] later stage of the action, such as by failing to show up at the trial at the scheduled time" (Siegel & Connors, NY Prac § 293 [6th ed]; see CPLR 3215[a]; see also Kraus Bros. v Hoffman & Co., 99 AD2d 401, 402; see generally 7 Weinstein-Korn-Miller, NY Civ Prac: CPLR ¶ 3215.00).

Again, a defendant's failure to respond to a summons and complaint in one of the three ways enumerated in CPLR 320(a) "'amounts to what CPLR 3215 . . . calls a failure to appear'" (Deutsche Bank Natl. Trust Co. v Hall, 185 AD3d at 1008, quoting Siegel & Connors, NY Prac § 293 [6th ed]; see U.S. Bank N.A. v Gilchrist, 172 AD3d at 1427). The consequences of a total failure to appear in an action are more significant than the consequences that stem from other species of default.

For example, with limited exception, CPLR 2103(e) requires that "[e]ach paper served on any party shall be served on every other party who has appeared" (emphasis added). Accordingly, that subdivision "requires service on a party who has appeared in the action whether or not [that party] has subsequently defaulted" (Kraus Bros. v Hoffman & Co., 99 AD2d at 402; see CPLR 2103[e]; Carr & Hobson [Ltd.] v Sterling, 114 NY 558, 563).

As relevant here, in the context of an action to foreclose a mortgage, a defendant that appears in the action is "entitled to service of all papers in the action, including the report of the Referee, the judgment of foreclosure and sale and the notice of sale" (Pol-Tek Indus. v Panzarella, 227 AD2d 992, 992; see Deutsche Bank Natl. Trust Co. v Khan, 189 AD3d 1538, 1539; Wells Fargo Bank, N.A. v Ramphal, 172 AD3d 1280, 1281; see also Martine v Lowenstein, 68 NY 456, 458).

By contrast, a defendant that fails to appear in the action within the meaning of CPLR 320(a), without more, is "not entitled to service of additional papers in the action" (NYCTL-1 Trust v Liberty Bay Realty Corp., 21 AD3d 1013, 1014; see CPLR 2103[e]), including, as relevant here, "notice of any subsequent judgment or sale" (Nationstar Mtge., LLC v Azcona, 186 AD3d 614, 616; see Alaska Seaboard Partners Ltd. Partnership v Grant, 20 AD3d 436, 437; Olympia Mtge. Corp. v Ramirez, 9 AD3d 401, 401; Bank of N.Y. v Agenor, 305 AD2d 438, 438; Colombi v RWL Constr. Corp., 278 AD2d 191, 191; Polish Natl. Alliance of Brooklyn v White Eagle Hall Co., 98 AD2d 400, 403).

CPLR 3215(a) authorizes a party to make an application for a default judgment "[w]hen a defendant has failed to appear, plead or proceed to trial of an action reached and called for trial, or when the court orders a dismissal for any other neglect to proceed" (see Duncan v Emerald Expositions, LLC, 186 AD3d at 1323; see generally Siegel & Connors, NY Prac § 293 [6th ed]; 7 Weinstein-Korn-Miller, NY Civ Prac: CPLR ¶ 3215.02).

CPLR 3215(a) sets forth two separate procedures for securing a default judgment: (1) entry by the clerk, and (2) entry by a judge (see generally Siegel & Connors, NY Prac § 293 [6th ed]; 7 Weinstein-Korn-Miller, NY Civ Prac: CPLR ¶ 3215.00). "If the plaintiff's claim is for a sum certain or for a sum which can by computation be made certain, application may be made to the clerk within one year after the default" (CPLR 3215[a]). "The term 'sum certain' in this context contemplates a situation in which, once liability has been established, there can be no dispute as to the amount due, as in actions on money judgments and negotiable instruments" (Reynolds Sec. v Underwriters Bank & Trust Co., 44 NY2d 568, 572). "Obviously, the clerk then functions in a purely ministerial capacity" (id. at 572).

"Where the case is not one in which the clerk can enter judgment, the plaintiff shall apply to the court for judgment" (CPLR 3215[a]). With limited exceptions, "[o]n any [such] application for judgment by default, the applicant shall file proof of service of the summons and the complaint . . . and proof of the facts constituting the claim, the default and the amount due by affidavit made by the party" (id. § 3215[f]; see L & Z Masonry Corp. v Mose, 167 AD3d 728, 729; Liberty County Mut. v Avenue I Med., P.C., 129 AD3d 783, 784-785; see also CPLR 3101[a][1] [defining the term "party" to include any "member, agent, or employee of a party"]).

Upon such an application, "[t]he court, with or without a jury, may make an assessment or take an account or proof, or may direct a reference" (CPLR 3215[b]). Accordingly, the statute grants the court some measure of discretion, permitting a court to conduct its inquiry into the damages claimed by the plaintiff in an application for a default judgment with an assessment (popularly called an "inquest"), with or without a jury, or with the appointment of a referee (see generally Siegel & Connors, NY Prac § 293 [6th ed]; cf. CPLR 4212).

The nature of the proceedings selected by the court may turn on whether the defaulted defendant participates in the determination of damages (see generally 7 Weinstein-Korn-Miller, NY Civ Prac: CPLR ¶ 3215.26). For "an allegation of damage is not a traversable allegation and, therefore, a defaulting defendant does not admit the plaintiff's conclusion of damages but may, at an inquest, offer proof in mitigation of damages if it involves 'circumstances intrinsic to the transactions at issue' in the plaintiff's complaint" (Amusement Bus. Underwriters v American Intl. Group, 66 NY2d 878, 880, quoting Rokina Opt. Co. v Camera King, 63 NY2d at 731; see McClelland v Climax Hosiery Mills, 252 NY 347, 351; see generally 7 Weinstein-Korn-Miller, NY Civ Prac: CPLR ¶¶ 3215.00, 3215.26).

CPLR 3215 requires a party making an application to the court for a default judgment [*3]to provide notice of the application to any defendant that has appeared in the action: "whenever application is made to the court or to the clerk, any defendant who has appeared is entitled to at least five days' notice of the time and place of the application" (CPLR 3215[g][1]). The statute goes on to state that "if more than one year has elapsed since the default any defendant who has not appeared is entitled to the same notice unless the court orders otherwise" (id.; see 7 Weinstein-Korn-Miller, NY Civ Prac: CPLR ¶ 3215.32).

Regardless of whether a defaulting defendant is entitled to the notice specified in CPLR 3215(g)(1), CPLR 3215(g)(2) provides a defendant who has failed to appear in an action with an independent basis to participate in any reference or assessment ordered on the application for the default judgment (see generally 7 Weinstein-Korn-Miller, NY Civ Prac: CPLR ¶ 3215.38). That subdivision states that "[w]here an application for judgment must be made to the court, the defendant who has failed to appear may serve on the plaintiff at any time before the motion for judgment is heard a written demand for notice of any reference or assessment by a jury which may be granted on the motion" (CPLR 3215[g][2]). "Such a demand does not constitute an appearance in the action" (id.). "Thereupon at least five days' notice of the time and place of the reference or assessment by a jury shall be given to the defendant by service on the person whose name is subscribed to the demand, in the manner prescribed for service of papers generally" (id.).

Finally, CPLR 3215(g)(3) sets forth circumstances under which "additional notice" is required, and CPLR 3215(g)(4) sets forth circumstances when "additional service" is required. By the plain language of the statute, however, the additional requirements prescribed in subdivisions (3) and (4) of CPLR 3215(g) are not applicable to this action to foreclose a mortgage (see id. § 3215[g][3][iii]; [4][iii]; NYCTL-1 Trust v Liberty Bay Realty Corp., 21 AD3d at 1014; Alaska Seaboard Partners Ltd. Partnership v Grant, 20 AD3d at 437 [applying CPLR 3215(g)(3)(iii)]; FGB Realty Advisors v Norm-Rick Realty Corp., 227 AD2d 439, 440; see also Nationstar Mtge., LLC v Azcona, 186 AD3d at 616 [applying Alaska Seaboard Partners Ltd. Partnership v Grant, 20 AD3d 436]).

In addition to the notice required to be given in connection with an application for a default judgment, CPLR 3215 also sets forth the procedure to be followed by a court in reviewing the issue of damages on such an application (see id. § 3215[b]; see also 22 NYCRR 202.46). As relevant here, "[w]hen a reference is directed, the court may direct that the report be returned to it for further action or, except where otherwise prescribed by law, that judgment be entered by the clerk in accordance with the report without any further application" (CPLR 3215[b]; see generally 22 NYCRR 202.43[c]).

These provisions of CPLR 3215 fit within the general provisions in the CPLR which distinguish an order of reference directing a referee to "hear and determine" (Seabring, LLC v Elegance Rest. Furniture Corp., 188 AD3d 744, 746; see generally Mark C. Dillon, 2019 Supp Practice Commentaries, McKinney's Cons Laws of NY, CPLR 4301), from an order of reference directing a referee to "hear and report" (Pulver v Pulver, ___ AD3d ___, ___, 2021 NY Slip Op 04727, *1 [2d Dept]; see generally Mark C. Dillon, 2019 Supp Practice Commentaries, McKinney's Cons Laws of NY, CPLR 4201). As relevant here, the CPLR provides that "[u]pon the motion of any party or on [its] own initiative, the [court] required to decide the issue may confirm or reject, in whole or in part . . . the report of a referee to report" (CPLR 4403; see 22 NYCRR 202.44[a], [b]).

Finally, CPLR 3215 specifies that "[e]xcept in a matrimonial action, no finding of fact in writing shall be necessary to the entry of a judgment on default" (see id. § 3215[b]). However, "[t]he judgment shall not exceed in amount or differ in type from that demanded in the complaint or stated in the notice served pursuant to [CPLR 305(b)]" (id. § 3215[b]).

In this case, Courchevel moved, inter alia, pursuant to CPLR 5015(a) to vacate the order and judgment of foreclosure and sale. Courchevel contended, among other things, that the plaintiff failed to comply with notice requirements of CPLR 3215(g)(1) when it moved to confirm the referee's report and for a judgment of foreclosure and sale. On appeal, Courchevel contends, inter alia, that the Supreme Court erred when it concluded that Fremont was only entitled to receive [*4]notice of the plaintiff's application for leave to enter a default judgment and for the appointment of a referee, and that Fremont was not entitled to notice of the plaintiff's subsequent application to confirm the referee's report and for a judgment of foreclosure and sale. Courchevel contends that the failure to comply with the notice provisions of CPLR 3215(g)(1) deprived the court of jurisdiction to enter the order and judgment of foreclosure and sale, and warrant vacatur pursuant to CPLR 5015(a).

CPLR 5015(a) authorizes a court to relieve a party from an order or judgment, on motion, based on the existence of specified grounds including, among other things, excusable default (see id. § 5015[a][1]); newly discovered evidence (see id. § 5015[a][2]); fraud, misrepresentation, or other misconduct of an adverse party (see id. § 5015[a][3]); lack of jurisdiction (see id. § 5015[a][4]); or reversal, modification, or vacatur of a prior judgment or order upon which it is based (see id. § 5015[a][5]; see U.S. Bank N.A. v Mitchell, 191 AD3d 731).

"When a defendant seeking to vacate a default judgment raises a jurisdictional objection pursuant to CPLR 5015(a)(4) and also seeks a discretionary vacatur pursuant to CPLR 5015(a)(1), a court is required to resolve the jurisdictional question before determining whether it is appropriate to grant a discretionary vacatur of the default under CPLR 5015(a)(1)" (Wells Fargo Bank, NA v Besemer, 131 AD3d 1047, 1047; see Deutsche Bank Natl. Trust Co. v Hossain, 187 AD3d 986, 987; Ross v Sunrise Home Improvement, 186 AD3d 633, 633).

As a general matter, "improper service of a motion provides a complete excuse for default on [that] motion" (Paulus v Christopher Vacirca, Inc., 128 AD3d 116, 124-125 [Opinion by Cohen, J.]; see Golden v Romanowski, 128 AD3d 1009, 1010; Crown Waterproofing, Inc. v Tadco Constr. Corp., 99 AD3d 964, 965; Zaidi v New York Bldg. Contrs., Ltd., 61 AD3d 747, 748). Accordingly, the failure to serve a party who has appeared in the action with notice of a motion requires vacatur of any subsequent order that grants any of the relief that was sought in that un-noticed motion (see CPLR 5015[a][1]; Wells Fargo Bank, N.A. v Whitelock, 154 AD3d 906, 907; Crown Waterproofing, Inc. v Tadco Constr. Corp., 99 AD3d at 964-965; Zaidi v New York Bldg. Contrs., Ltd., 61 AD3d at 748).

"This Court has also held that the failure to provide a defendant with proper notice of a motion renders the resulting order and judgment entered upon that order nullities, warranting vacatur pursuant to CPLR 5015(a)(4)" (Paulus v Christopher Vacirca, Inc., 128 AD3d at 125). This Court explained that "[t]he failure to provide proper notice of a motion can readily be viewed as a fundamental [jurisdictional] defect because it deprives the opposing party of a fair opportunity to oppose the motion" (id.; cf. Manhattan Telecom. Corp. v H & A Locksmith, Inc., 21 NY3d 200, 203-204; Lacks v Lacks, 41 NY2d 71, 75).

As previously observed, CPLR 3215(g)(1) requires a party making a default application to give notice to certain defaulted defendants. Pursuant to that subdivision, "where [a] defendant appears but fails to answer timely, [that defendant] is entitled to five days' notice of the default application" (Kraus Bros. v Hoffman & Co., 99 AD2d at 402; see CPLR 3215[g][1]). Furthermore, where "more than one year elapsed since the defendant's default" (Wilmington Sav. Fund Socy., FSB v Hakam, 170 AD3d 924, 925), the defendant is "entitled to notice of the motion for an order of reference under CPLR 3215(g)(1)" (id. at 925; see CPLR 3215[g][1]; Citimortgage, Inc. v Reese, 162 AD3d 847, 848; Astron Steel Fabrications v Kent Restoration, 283 AD2d 381, 381-382).

This Court has stated that "[t]he plaintiff's failure to give the defendant notice of [a] motion as required under CPLR 3215(g)(1) deprive[s] the Supreme Court of jurisdiction to entertain the motion, and renders [any] order of reference and the ensuing judgment of foreclosure and sale void" (Wilmington Sav. Fund Socy., FSB v Hakam, 170 AD3d at 925; see Amaral v Smithtown News, Inc., 172 AD3d 1287, 1289; Citimortgage, Inc. v Reese, 162 AD3d at 848; Deutsche Bank Natl. Trust Co. v Gavrielova, 130 AD3d 674, 675-676; Paulus v Christopher Vacirca, Inc., 128 AD3d at 126 [Opinion by Cohen, J.]). This Court has explained that the failure to provide notice of a motion for leave to enter a default judgment as required by CPLR 3215(g)(1) deprives a defaulted defendant [*5]of the "opportunity to challenge the amount of damages sought by the plaintiffs" (Paulus v Christopher Vacirca, Inc., 128 AD3d at 126; cf. Thrasher v United States Liab. Ins. Co., 19 NY2d 159, 166; Kraus Bros. v Hoffman & Co., 99 AD2d at 402).

In this case, it is undisputed that Fremont failed to appear in the action (see CPLR 320[a]), which was commenced against it in 2007. In 2016, the plaintiff made a motion, among other relief, for leave to enter a default judgment and for an order of reference (hereinafter the 2016 motion). The 2016 motion constituted an "appl[ication] to the court for judgment" within the meaning of the statute (id. § 3215[a]), and it is undisputed that the application was made "more than one year . . . since [Fremont's] default" in failing to appear in the action (id. § 3215[g][1]). Accordingly, without more, the plaintiff was required to provide Fremont with notice "of the time and place of the application" for a default judgment and for an order of reference (id. § 3215[g][1]; see Amaral v Smithtown News, Inc., 172 AD3d at 1289; Wilmington Sav. Fund Socy., FSB v Hakam, 170 AD3d at 925; Citimortgage, Inc. v Reese, 162 AD3d at 848; cf. Kraus Bros. v Hoffman & Co., 99 AD2d at 402).

However, as the Supreme Court correctly observed, Courchevel does not contend that the plaintiff failed to provide Fremont with notice of the 2016 motion (accord Amaral v Smithtown News, Inc., 172 AD3d at 1289). As such, it cannot be said that Courchevel was "deprived . . . [of] an opportunity to challenge the amount of damages sought by the plaintiff[ ]" (Paulus v Christopher Vacirca, Inc., 128 AD3d at 125; see Amaral v Smithtown News, Inc., 172 AD3d at 1289; cf. Wilmington Sav. Fund Socy., FSB v Hakam, 170 AD3d at 925; Citimortgage, Inc. v Reese, 162 AD3d at 848; Astron Steel Fabrications v Kent Restoration, 283 AD2d at 382).

The plaintiff's 2016 motion was granted, unopposed, in an order entered July 19, 2016. In an order entered April 27, 2017, the Supreme Court, inter alia, appointed a referee to ascertain and compute the amount due to the plaintiff. The referee issued a report dated June 6, 2017. By notice of motion dated June 14, 2017, the plaintiff moved to confirm the referee's report and for a judgment of foreclosure and sale (hereinafter the 2017 motion).

Although Courchevel's underlying motion papers and appellate brief both include typographical errors and otherwise lack clarity (e.g. incorrectly referring to a "2018" motion but citing the 2017 notice of motion), Courchevel appears to contend that the plaintiff's failure to provide Fremont with notice of the 2017 motion deprived the Supreme Court of jurisdiction to enter the order and judgment of foreclosure and sale. This contention is without merit.

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 (id.), which application must be held in a location authorized by CPLR 3215(e), and supported by, among other things, "proof of . . . the amount due" (id. § 3215[f]). As already indicated, the purpose of the notice is to provide a defaulted defendant with the "opportunity to challenge the amount of damages sought by the plaintiffs" (Paulus v Christopher Vacirca, Inc., 128 AD3d at 125). Contrary to Courchevel'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 (see Q.P.I. Rests. v Slevin, 93 AD2d 767, 768).

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 (see 22 NYCRR 202.44). 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" (id. [emphasis added]). Since, at the time of the 2017 motion, Fremont still had not made any appearance in the action, it was not, without more, entitled to notice of that motion (see id.; Nationstar Mtge., LLC v Azcona, 186 AD3d at 616; NYCTL-1 Trust v Liberty Bay Realty Corp., 21 AD3d at 1014; Alaska Seaboard Partners Ltd. Partnership v Grant, 20 AD3d at 437; Olympia Mtge. [*6]Corp. v Ramirez, 9 AD3d at 401; Bank of N.Y. v Agenor, 305 AD2d at 438; Colombi v RWL Constr. Corp., 278 AD2d at 191; Polish Natl. Alliance of Brooklyn v White Eagle Hall Co., 98 AD2d at 403; see generally Martine v Lowenstein, 68 NY 456, 458).

We recognize that dicta from this Court may be read to indicate that CPLR 3215(g)(1) notice is applicable to a motion to confirm a referee's report and for a judgment of foreclosure and sale (see Citimortgage, Inc. v Reese, 162 AD3d at 847-848). We now clarify that CPLR 3215(g)(1) merely applies to an application for a default judgment which must be made to determine the amount of damages due pursuant to CPLR 3215(a) or (b). Once notice of such an application is provided, CPLR 3215(g)(1) is satisfied, and, without more, the general notice provisions of CPLR 2103(e) revert back into operation to govern any future requests for relief.

In sum, Courchevel failed to demonstrate that it was entitled to notice of the plaintiff's 2017 motion. Since Courchevel failed to establish sufficient grounds for vacating the order and judgment of foreclosure and sale, the Supreme Court properly denied its motion, inter alia, pursuant to CPLR 5015(a) to vacate the order and judgment of foreclosure and sale."