Xu v. Van Zwienen

• Docket Number: 2019–13297,Index No. 3233/18
• Decision Date: 25 January 2023
• Citation: 212 A.D.3d 872,183 N.Y.S.3d 475
• Parties: Yan Ping XU, appellant, v. Raymond E. VAN ZWIENEN, et al., respondents.
• Court: New York Supreme Court — Appellate Division

212 A.D.3d 872

183 N.Y.S.3d 475

Yan Ping XU, appellant,

v.Raymond E. VAN ZWIENEN, et al., respondents.

2019–13297

Index No. 3233/18

Supreme Court, Appellate Division, Second Department, New York.

Argued—November 4, 2022

January 25, 2023

Yan Ping Xu, Bay Shore, NY, appellant pro se.

Craco & Ellsworth, LLP, Huntington, NY (Andrew C. Ellsworth of counsel), for respondents.

BETSY BARROS, J.P., REINALDO E. RIVERA, LARA J. GENOVESI, JANICE A. TAYLOR, JJ.

DECISION & ORDER

In an action to recover damages for trespass, the plaintiff appeals from an order of the Supreme Court, Suffolk County (David T. Reilly, J.), dated September 19, 2019. The order, insofar as appealed from, denied the plaintiff's motion for summary judgment on the issue of liability against the defendant Raymond E. Van Zwienen, and for leave to enter a default judgment against the defendant Denise Berger, and granted those branches of the defendants’ separate cross-motions which were pursuant to CPLR 3211(a)(1) and (7) to dismiss the complaint insofar as asserted against each of them.

ORDERED that the order is modified, on the law, by deleting the provisions thereof granting those branches of the defendants’ separate cross-motions which were pursuant to CPLR 3211(a)(1) and (7) to dismiss the complaint insofar as asserted against each of them, and substituting therefor provisions denying those branches of those cross-motions; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

The plaintiff commenced this action against the defendants, Raymond E. Van Zwienen and Denise Berger, to recover damages for trespass. The plaintiff contends that she is the owner of certain documents that were removed from her home without her permission.

Van Zwienen answered the complaint and asserted, inter alia, the affirmative defenses of a defense founded on documentary evidence and failure to state a cause of action. Berger failed to appear or answer the complaint. The plaintiff moved for summary judgment on the issue of liability against Van Zwienen and for leave to enter a default judgment against Berger. In support of her motion, the plaintiff submitted only her own conclusory affidavit, in which she averred, among other things, that Van Zwienen had received a letter from his father, the plaintiff's now-deceased husband (hereinafter the decedent), informing Van Zwienen of the precise location of the missing documents; that Van Zwienen had provided the plaintiff with these documents in the course of discovery during the probate of the decedent's will in Surrogate's Court; and that Van Zwienen's counsel had posed a question to the plaintiff that implied that Van Zwienen had directed Berger to remove the subject documents from the plaintiff's home. Van Zwienen and Berger separately cross-moved, inter alia, pursuant to CPLR 3211(a)(1) and (7) to dismiss the complaint insofar as asserted against each of them. In an order dated September 19, 2019, the Supreme Court denied the plaintiff's motion in its entirety and granted those branches of the defendants’ separate cross-motions. The plaintiff appeals.

"On a motion for leave to enter a default judgment, an applicant must submit proof of service of the summons and complaint or summons and notice, proof of the facts constituting the cause of action, and proof of the defaulting defendant's failure to answer or appear" ( Banks v. 110–18 198th St. Corp., 205 A.D.3d 869, 869, 166 N.Y.S.3d 559 ; see CPLR 3215[f] ). "To demonstrate the facts constituting the cause of action, the plaintiff need only submit sufficient proof to enable a court to determine if the cause of action is viable, since defaulters are deemed to have admitted all factual allegations contained in the complaint and all reasonable inferences that flow from them" ( Banks v. 110–18 198th St. Corp., 205 A.D.3d at 869–870, 166 N.Y.S.3d 559 [internal quotation marks omitted]). Here, although Berger defaulted in the action, the plaintiff failed to submit sufficient evidence of the facts constituting trespass. Accordingly, the Supreme Court properly denied that branch of the plaintiff's motion which was for leave to enter a default judgment against Berger.

The Supreme Court also properly denied that branch of the plaintiff's motion which was for summary judgment on the issue of liability against Van Zwienen. " ‘A conclusory affidavit or an affidavit by an individual without personal knowledge of the facts does not establish the proponent's prima facie burden’ on a motion for summary judgment" ( Beauvoir v. Samuel, 204 A.D.3d 741, 742, 164 N.Y.S.3d 462, quoting JMD Holding Corp. v. Congress Fin. Corp., 4 N.Y.3d 373, 384–385, 795 N.Y.S.2d 502, 828 N.E.2d 604 ). The plaintiff's conclusory affidavit submitted in support of her motion was insufficient to establish, prima facie, that Van Zwienen trespassed on the subject premises.

However, the Supreme Court should have also denied the defendants’ respective cross-motions to dismiss the complaint insofar as asserted against each of them. Under CPLR 3211(a)(1), a dismissal is warranted only if "the documentary evidence utterly refutes plaintiff's factual allegations, conclusively establishing a defense as a matter of law" ( Goshen v. Mutual Life Ins. Co. of N.Y., 98 N.Y.2d 314, 326, 746 N.Y.S.2d 858, 774 N.E.2d 1190 ; see Leon v. Martinez, 84 N.Y.2d 83, 88, 614 N.Y.S.2d 972, 638 N.E.2d 511 ). "To constitute documentary evidence, the evidence must be ‘unambiguous, authentic, and undeniable’ " ( Phillips v. Taco Bell Corp., 152 A.D.3d 806, 807, 60 N.Y.S.3d 67, quoting Granada Condominium III Assn. v. Palomino, 78 A.D.3d 996, 997, 913 N.Y.S.2d 668 ), "such as judicial records and documents reflecting out-of-court transactions such as mortgages, deeds, contracts, and any other papers, the contents of which are essentially undeniable" ( Phillips v. Taco Bell Corp., 152 A.D.3d at 807, 60 N.Y.S.3d 67 ). "Conversely, letters, emails, and ... affidavits, do not meet the requirements for documentary evidence" ( id. ). "An affidavit is not documentary evidence...