FILED: NEW YORK COUNTY CLERK 03/30/ :59 PM INDEX NO /2017 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 03/30/2017

Transcription

1 MOTION FOR DEFAULT JUDGMENT OR FOR SUMMARY JUDGMENT EXHIBIT N

2 NOTE: Bolded decisions are published in the printed official reports. Longo v. Key Appraisals, Inc., 2017 NY Slip Op 50366(U) (N.Y. App. Term 2nd Dept., March 30, 2017) (reversing Civil Court order denying award of attorney s fees for prosecution of proceeding to confirm arbitration award) New York Merchants Protective Co., Inc. v. Apollon Waterproofing & Restoration Corp., 2017 NY Slip Op 50368(U) (N.Y. App. Term 2nd Dept., March 30, 2017) (reversing branch of District Court judgment denying award of attorney s fees for prosecution of proceeding to confirm arbitration award and prior appeal) JSBarkats PLLC v. Response Scientific Inc., 2017 NY Slip Op 65004(U) (N.Y. App. Div., 1st Dept., February 23, 2017) (denying motion to compel appellants to supplement record on appeal or alternatively granting respondent leave to supplement the record) Russell v. Pisana, 2017 NY Slip Op 64105(U) (N.Y. App. Div., 2nd Dept., February 10, 2017) (denying motion for stay of lower court action pending appeal) Matter of La Boom Inc. v. D & W. Cent. Sta. Fire Alarm Co., Inc., 2016 NY Slip Op 32573(U) (N.Y. Sup. Ct., New York Co., December 19, 2016) (granting motion to dismiss proceeding to stay arbitration where the petitioner s claim that the document it signed was not an agreement to arbitrate was refuted by the document itself) A & L Vil. Mkt., Inc. v. 344 Vil., Inc., 140 A.D. 3d 804, 33 N.Y.S. 3d 402, 2016 NY Slip Op (N.Y. App. Div., 2nd Dept., June 8, 2016) (affirming Supreme Court denial of motion to vacate arbitration award where arbitrator failed to disclose but plaintiff discovered after hearing that arbitrator presided over prior arbitration in which defendant was a party and did not object prior to rendering of award) Matter of 44 Lexington Assoc. (Supreme Sec. Sys., Ltd.), 139 A.D. 3d 517, 32 N.Y.S. 3d 100, 2016 NY Slip Op (N.Y. App. Div., 1st Dept., May 17, 2016) (reversing Supreme Court dismissal of petition to stay arbitration on the grounds that hearing was required to determine validity of arbitration agreement claimed to be product of fraud even though parties made valid prior arbitration agreement and petitioner s failure to serve mandatory e-filing notice did not warrant dismissal because papers were served in accordance with terms and conditions of order to show cause) Summit Apparel, Inc. v. Promo Nation, Inc., 50 Misc. 3d 94, 25 N.Y.S. 3d 773, 2015 NY Slip Op (N.Y. App. Term, 2nd Dept., November 30, 2015) (reversing Civil Court denial of motion to dismiss counterclaim and for summary judgment where seller delivered goods to buyer and buyer did not object to the alleged untimeliness of delivery until nearly 3 years later and counterclaimed for $750,000 in lost profit due to the delivery s untimeliness) Slomin s, Inc. v. Mehta, 47 Misc. 3d 148(A), 17 N.Y.S. 3d 385, 2015 NY Slip Op 50767(U) (N.Y. App. Term, 2nd Dept., May 6, 2015) (reversing Civil Court vacatur of default judgment -1-

3 where defendant made bald assertion of not being served and failed to demonstrate not receiving notice of summons in time to defend action) Schiffer v. Slomin s, Inc., 48 Misc. 3d 15, 11 N.Y.S. 3d 799, 2015 NY Slip Op (N.Y. App. Term, 2nd Dept., March 30, 2015) (modifying District Court denial of motion to compel arbitration and stay action pending arbitration to grant relief requested as against party demonstrated to have agreed to arbitrate where sufficient nexus with interstate commerce established to demonstrate parties arbitration agreement subject to federal law preempting state law invalidating mandatory arbitration provisions in consumer contracts) Intriago v. Slomin s Shield, 47 Misc. 3d 135(A), 9 N.Y.S. 3d 593, 2015 NY Slip Op 50492(U) (N.Y. App. Term, 2nd Dept., March 30, 2015) (reversing District Court order denying motion to compel arbitration and stay action pending arbitration) Slomin s, Inc. v. Serpico, 47 Misc. 3d 134(A), 9 N.Y.S. 3d 595, 2015 NY Slip Op 50478(U), (N.Y. App. Term, 2nd Dept., March 26, 2015) (reversing Civil Court vacatur of default judgment where defendant failed to demonstrate reasonable excuse for default and meritorious defense to action for breach of contract for home alarm system) New York Merchants Protective Co., Inc. v. Korin, 46 Misc. 3d 147(A), 2015 NY Slip Op 50228(U) (N.Y. App. Term, 2nd Dept., February 24, 2015) (reversing Civil Court order vacating default judgment where respondent failed to provide reasonable excuse for default and meritorious defense to proceeding to confirm arbitration award) Mt. Sinai Ageless 360, Inc. v. Roxanne Gail Carfora D.O., P.C., 2015 NY Slip Op 62677(U) (N.Y. App. Term, 2nd Dept., January 15, 2015) (granting motion to stay District Court action pending appeal) New York Merchants Protective Co., Inc. v. Antique Rugs Studio, Inc., 45 Misc. 3d 129(A), 3 N.Y.S. 3d 285, 2014 NY Slip Op 51526(U) (N.Y. App. Term, 2nd Dept., October 23, 2014) (reversing District Court dismissal of petition to confirm arbitration award for lack of personal jurisdiction where petition was served by regular mail in New York Merchants Protective Co., Inc. v. Antique Rugs Studio, Inc., 2014 NY Slip Op 87428(U) (N.Y. App. Term, 2nd Dept., October 23, 2014) (granting motion to reargue appeal, resulting in recall and vacatur of opinion affirming District Court dismissal of petition to confirm New York Merchants Protective Co., Inc. v. Apollon Waterproofing & Restoration Corp., 45 Misc. 3d 129(A), 2014 NY Slip Op 51525(U) (N.Y. App. Term, 2nd Dept., October 23, 2014) (reversing District Court dismissal of petition to confirm arbitration award for lack of personal jurisdiction where petition was served by regular mail in New York Merchants Protective Co., Inc. v. Apollon Waterproofing & Restoration Corp., 2014 NY Slip Op 87427(U) (N.Y. App. Term, 2nd Dept., October 23, 2014) (granting motion to -2-

4 reargue appeal, resulting in recall and vacatur of opinion affirming District Court dismissal of petition to confirm arbitration award for lack of personal jurisdiction where petition was served by regular mail in New York Merchants Protective Co., Inc. v. Oristy Food Ctr., Inc., 45 Misc. 3d 129(A), 2014 NY Slip Op 51524(U) (N.Y. App. Term, 2nd Dept., October 23, 2014) (reversing Civil Court dismissal of petition to confirm arbitration award for lack of personal jurisdiction where petition was served by regular mail in New York Merchants Protective Co., Inc. v. Oristy Food Ctr., Inc., 2014 NY Slip Op 87426(U) (N.Y. App. Term, 2nd Dept., October 23, 2014) (granting motion to reargue appeal, resulting in recall and vacatur of opinion affirming Civil Court dismissal of petition to confirm arbitration award for lack of personal jurisdiction where petition was served by regular mail in accordance with arbitration rules) New York Merchants Protective Co., Inc. v. Ricca, 45 Misc. 3d 129(A), 2014 NY Slip Op 51523(U) (N.Y. App. Term, 2nd Dept., October 23, 2014) (reversing District Court dismissal of petition to confirm arbitration award for lack of personal jurisdiction where petition was served by regular mail in New York Merchants Protective Co., Inc. v. Ricca, 2014 NY Slip Op 87425(U) (N.Y. App. Term, 2nd Dept., October 23, 2014) (granting motion to reargue appeal, resulting in recall and vacatur of opinion affirming District Court dismissal of petition to confirm arbitration award for lack of personal jurisdiction where petition was served by regular mail in accordance with arbitration rules) New York Merchants Protective Co., Inc. v. Rockaway Bagels, Inc., 45 Misc. 3d 128(A), 2014 NY Slip Op 51522(U) (N.Y. App. Term, 2nd Dept., October 23, 2014) (reversing Civil Court dismissal of petition to confirm arbitration award for lack of personal jurisdiction where petition was served by regular mail in New York Merchants Protective Co., Inc. v. Rockaway Bagels, Inc., 2014 NY Slip Op 87424(U) (N.Y. App. Term, 2nd Dept., October 23, 2014) (granting motion to reargue appeal, resulting in recall and vacatur of opinion affirming Civil Court dismissal of petition to confirm arbitration award for lack of personal jurisdiction where petition was served by regular mail in accordance with arbitration rules) Slomin s, Inc. v. Christiani, 43 Misc. 3d 132(A), 988 N.Y.S. 2d 525, 2014 NY Slip Op 50621(U) (N.Y. App. Term, 2nd Dept., March 31, 2014) (reversing Civil Court order vacating judgment and remitting motion to Civil Court judge who decided original motion for summary judgment) Slomin s, Inc. v. Mehta, 2014 NY Slip Op 65891(U) (N.Y. App. Term, 2nd Dept., February 25, 2014) (granting motion to stay Civil Court action pending appeal and enlarge time to perfect appeal) -3-

5 Matter of New York Merchants Protective Co., Inc. v. Mima s Kitchen, Inc., 114 A.D. 3d 796, 979 N.Y.S. 2d 847, 2014 NY Slip Op 1008 (N.Y. App. Div., 2nd Dept., February 13, 2014) (reversing Appellate Term opinion affirming Civil Court dismissal of petition to confirm arbitration award for lack of personal jurisdiction where petition was served by regular mail in Slomin s, Inc. v. Serpico, 2014 NY Slip Op 63647(U) (N.Y. App. Term, 2nd Dept., February 3, 2014) (granting motion for further enlargement of time to perfect appeal) Andrews Intl., Inc. v. Interstate Materials Corp., 2013 NY Slip Op 33049(U) (N.Y. Sup. Ct., New York Co., November 13, 2013) (granting plaintiff summary judgment on all claims for security guard services rendered and account stated) Slomin s, Inc. v. Serpico, 2013 NY Slip Op 91814(U) (N.Y. App. Term, 2nd Dept., November 7, 2013) (granting motion for further enlargement of time to perfect appeal) Slomin s, Inc. v. Serpico, 2013 NY Slip Op 81417(U) (N.Y. App. Term, 2nd Dept., July 31, 2013) (granting motion to stay Civil Court action pending appeal and enlarge time to perfect appeal) Matter of New York Merchants Protective Co., Inc. v. Mima s Kitchen, Inc., 2012 NY Slip Op 78393(U) (N.Y. App. Div., 2nd Dept., July 11, 2012) (granting motion to Appellate Division for leave to appeal to Appellate Division from opinion affirming Civil Court dismissal of petition to confirm arbitration award for lack of personal jurisdiction where petition was served by regular mail in Matter of New York Merchants Protective Co., Inc. v. RW Adart Poly LLC, 108 A.D.3d 554, 968 N.Y.S.2d 552, 2013 NY Slip Op 5081 (N.Y. App. Div., 2nd Dept., July 3, 2013) (modifying Supreme Court judgment to confirm arbitration award in entirety where award had been vacated in part deducting attorney s fees awarded by arbitrator for arbitration proceeding even though arbitration rules permitted award of attorney s fees) Schiffer v. Slomin s, Inc., 40 Misc. 3d 884, 970 N.Y.S. 2d 856, 2013 NY Slip Op (N.Y. Dist. Ct., Nassau Co., June 26, 2013) (subsequently modified to grant relief requested as against party demonstrated to have agreed to arbitrate, granting motion to reargue motion to compel arbitration and stay pending arbitration and adhering to prior order denying motion finding insufficient nexus with interstate commerce to demonstrate parties arbitration agreement subject to federal law preempting state law invalidating mandatory arbitration provisions in consumer contracts) Slomin s, Inc. v. Christiani, 2013 NY Slip Op 74874(U) (N.Y. App. Term, 2nd Dept., May 13, 2013) (granting motion to stay Civil Court action pending appeal) Nu-Life Restorations of Long Island, Inc. v. Greenpoint Dental Plaza, P.C., 39 Misc. 3d 133(A), 971 N.Y.S. 2d 73, 2013 NY Slip Op 50488(U) (N.Y. App. Term, 2nd Dept., March 29, 2013) (reversing Civil Court vacatur of default judgment where defendant failed to set forth reasonable -4-

6 excuse for default and meritorious defense to action to collect balance due for dental products prepared by dental lab for dental office) Supreme Sec. Sys., Ltd v. Atlas Switch Co., Inc., 39 Misc. 3d 130(A), 969 N.Y.S. 2d 806, 2013 NY Slip Op 50463(U) (N.Y. App. Term, 2nd Dept., March 21, 2013) (modifying District Court judgment dismissing all claims to grant new trial on claims for breach of contract and attorney s fees) Schiffer v. Slomin s, Inc., 39 Misc. 3d 414, 959 N.Y.S. 2d 422, 2013 NY Slip Op (N.Y. Dist. Ct., Nassau Co., February 13, 2013) (subsequently overruled, denying motion to compel arbitration and stay pending arbitration pursuant to state law invalidating mandatory arbitration provisions in consumer contracts where consumer contract contained mandatory arbitration provision) New York Merchants Protective Co., Inc. v. Mima s Kitchen, Inc., 2012 NY Slip Op 74218(U) (N.Y. App. Term, 2nd Dept., May 15, 2012) (denying motion to Appellate Term for leave to appeal to Appellate Division from opinion affirming Civil Court dismissal of petition to confirm New York Merchants Protective Co., Inc. v. Northern Autogroup, LLC, 35 Misc. 3d 1, 941 N.Y.S. 2d 829, 2012 NY Slip Op (N.Y. App. Term, 2nd Dept., January 24, 2012) (reversing Civil Court judgment confirming arbitration award in part disallowing conditional award made by arbitrator) D&W Cent. Sta. Fire Alarm Co., Inc. v. United Props. Corp., 34 Misc. 3d 85, 940 N.Y.S. 2d 779, 2012 NY Slip Op (N.Y. App. Term, 2nd Dept., January 13, 2012) (reversing Civil Court order denying motion to restore petition to confirm arbitration award and grant relief requested therein where original petition was filed within applicable statute of limitations) Slomin s, Inc. v. Niranjan, 34 Misc. 3d 140(A), 943 N.Y.S. 2d 794, 2012 NY Slip Op 50055(U), (N.Y. App. Term, 2nd Dept., January 13, 2012) (modifying Civil Court denial of motion to dismiss counterclaim and for summary judgment to grant dismissal of counterclaim) New York Merchants Protective Co., Inc. v. Backyard Party Tent Rental Inc., 34 Misc. 3d 55, 939 N.Y.S. 2d 220, 2011 NY Slip Op (N.Y. App. Term, 2nd Dept., December 16, 2011) (reversing District Court order denying petition to confirm arbitration award for improper service of demand for arbitration where demand was served by regular mail in accordance with arbitration rules and arbitrator deemed service proper) D&W Cent. Sta. Fire Alarm Co., Inc. v. Culture Club of NYC, LLC, 31 Misc. 3d 134(A), 927 N.Y.S. 2d 815, 2011 NY Slip Op 50628(U), (N.Y. App. Term, 2nd Dept., April 11, 2011) (subsequently overruled, affirming Civil Court dismissal of petition to confirm arbitration award for lack of personal jurisdiction where petition was served by regular mail in accordance with arbitration rules) -5-

7 New York Merchants Protective Co., Inc. v Old Northern Restaurant Inc., 31 Misc. 3d 135(A), 927 N.Y.S. 2d 817, 2011 NY Slip Op 50632(U) (N.Y. App. Term, 2nd Dept., April 11, 2011) (subsequently overruled, affirming District Court dismissal of petition to confirm New York Merchants Protective Co., Inc. v. Antique Rugs Studio, Inc., 131 Misc. 3d 135(A), 927 N.Y.S. 2d 817, 2011 NY Slip Op 50642(U) (N.Y. App. Term, 2nd Dept., April 11, 2011) (subsequently recalled and vacated, affirming District Court dismissal of petition to confirm New York Merchants Protective Co., Inc. v. Apollon Waterproofing & Restoration Corp., 31 Misc. 3d 135(A), 927 N.Y.S. 2d 817, 2011 NY Slip Op 50638(U) (N.Y. App. Term, 2nd Dept., April 11, 2011) (subsequently recalled and vacated, affirming District Court dismissal of petition to confirm arbitration award where petition was served by regular mail in accordance with arbitration rules) New York Merchants Protective Co., Inc. v. Mima s Kitchen, Inc., 31 Misc. 3d 79, 924 N.Y.S. 2d 728, 2011 NY Slip Op (N.Y. App. Term, 2nd Dept., April 11, 2011) (subsequently reversed, affirming Civil Court dismissal of petition to confirm arbitration award for lack of personal jurisdiction where petition was served by regular mail in New York Merchants Protective Co., Inc. v. Oristy Food Center, Inc., 31 Misc. 3d 135(A), 927 N.Y.S. 2d 817, 2011 NY Slip Op 50637(U) (N.Y. App. Term, 2nd Dept., April 11, 2011) (subsequently recalled and vacated, affirming Civil Court dismissal of petition to confirm New York Merchants Protective Co., Inc. v. Ricca, 31 Misc. 3d 134(A), 927 N.Y.S. 2d 817, 2011 NY Slip Op 50631(U) (N.Y. App. Term, 2nd Dept., April 11, 2011) (subsequently recalled and vacated, affirming District Court dismissal of petition to confirm arbitration award for lack of personal jurisdiction where petition was served by regular mail in accordance with arbitration rules) New York Merchants Protective Co., Inc. v. Rockaway Bagels, Inc., 31 Misc. 3d 134(A), 927 N.Y.S. 2d 817, 2011 NY Slip Op 50629(U) (N.Y. App. Term, 2nd Dept., April 11, 2011) (subsequently recalled and vacated, affirming Civil Court dismissal of petition to confirm New York Merchants Protective Co., Inc. v. Rojas, 31 Misc. 3d 134(A), 927 N.Y.S. 2d 817, 2011 NY Slip Op 50630(U) (N.Y. App. Term, 2nd Dept., April 11, 2011) (subsequently overruled, affirming District Court dismissal of petition to confirm arbitration award for lack of -6-

8 personal jurisdiction where petition was served by regular mail in accordance with arbitration rules) Davis Alarms, Inc. v. Chazanoff, 30 Misc. 3d 142(A), 924 N.Y.S. 2d 308, 2011 NY Slip Op 50318(U) (N.Y. App. Term, 2nd Dept., January 28, 2011) (reversing Civil Court judgment modifying arbitration award to deduct attorney s fees awarded by arbitrator) Internet Sec. Sys., Inc. v. Hauer, 30 Misc. 3d 142(A), 924 N.Y.S. 2d 309, 2011 NY Slip Op 50317(U) (N.Y. App. Term, 2nd Dept., January 28, 2011) (reversing Civil Court judgment modifying arbitration award to deduct attorney s fees awarded by arbitrator) Nat. Safeway Alert Sys., Inc. v. Pelham 7-11, LLC, 30 Misc. 3d 142(A), 924 N.Y.S. 2d 310, 2011 NY Slip Op 50319(U) (N.Y. App. Term, 2nd Dept., January 28, 2011) (reversing Civil Court judgment modifying arbitration award to deduct attorney s fees awarded by arbitrator) United Burglar Alarm, Inc. v. Teodorovich, 30 Misc. 3d 142(A), 924 N.Y.S. 2d 312, 2011 NY Slip Op 50316(U) (N.Y. App. Term, 2nd Dept., January 28, 2011) (reversing Civil Court judgment modifying arbitration award to deduct attorney s fees awarded by arbitrator) New York Merchants Protective Co., Inc. v. Green Forest Mkt., Inc., 31 Misc. 3d 27, 920 N.Y.S. 2d 568, 2010 NY Slip Op (N.Y. App. Term, 2nd Dept., December 8, 2010) (reversing Civil Court judgment modifying arbitration award to deduct attorney s fees awarded by arbitrator) New York Merchants Protective Co., Inc. v. RW Adart Poly, LLC, 2010 NY Slip Op 32880(U) (N.Y. Sup. Ct., Nassau Co., October 13, 2010) (subsequently modified to confirm arbitration award in its entirety, confirming award in part and vacating in part deducting attorney s fees awarded by arbitrator for arbitration proceeding) Davis Alarms, Inc. v. Landezabad, 28 Misc. 3d 135(A), 958 N.Y.S. 2d 60, 2010 NY Slip Op 51358(U) (N.Y. App. Term, 2nd Dept., July 29, 2010) (reversing Civil Court order vacating default judgment and remitting motion to Civil Court judge who decided original motion to vacate) New York Merchants Protective Co., Inc. v. Costanza, 28 Misc. 3d 130(A), 911 N.Y.S. 2d 694, 2010 NY Slip Op 51253(U) (N.Y. App. Term, 2nd Dept., July 16, 2010) (affirming Civil Court order denying motion to restore case dismissed with prejudice where plaintiff was not ready for trial after trial adjourned multiple times when plaintiff was ready) D&W Cent. Sta. Fire Alarm Co., Inc. v. Ziari, 28 Misc. 3d 128(A), 957 N.Y.S. 2d 635, 2010 NY Slip Op 51194(U) (N.Y. App. Term, 2nd Dept., July 7, 2010) (reversing Civil Court order vacating arbitration award where arbitrator certified that copy of award was duly served on parties in accordance with terms of arbitration agreement) New York Merchants Protective Co., Inc. v. Mima s Kitchen, Inc., 2010 NY Slip Op 62569(U) (N.Y. App. Term, 2nd Dept., January 29, 2010) (granting motion to vacate dismissal of appeal -7-

9 for failure to prosecute where appellant s counsel could not perfect the appeal because appellate court did not provide timely notification of docket information and deadline to perfect) Seretis v. D&W Cent. Sta. Alarm Co., 2010 NY Slip Op 60375(U) (N.Y. App. Term, 1st Dept., January 8, 2010) (granting motion to dismiss appeal where appellant failed to perfect appeal within time permitted) Davis Alarms, Inc. v. Diamond Cutters, Inc., 25 Misc. 3d 130(A), 901 N.Y.S. 2d 905, 2009 NY Slip Op 52120(U) (N.Y. App. Term, 2nd Dept., October 13, 2009) (reversing Civil Court judgment modifying arbitration award to deduct attorney s fees awarded by arbitrator) Discover Bank v. Geselowitz, 2009 NY Slip Op 31250(U) (N.Y. Sup. Ct., Nassau Co., June 1, 2009) (granting motion to vacate default judgment and dismissing case for lack of personal jurisdiction) New York Merchants Protective Co., Inc. v. Salloom Import & Export Corp., 18 Misc. 3d 129(A), 856 N.Y.S. 2d 25, 2007 NY Slip Op 52458(U) (N.Y. App. Term, 2nd Dept., December 27, 2007) (reversing Civil Court judgment modifying arbitration award to deduct attorney s fees awarded by arbitrator) -8-