Month: June 2009

CPLR R. 3212 Timing, Conversion, and Other Things

CPLR R. 3212 Motion for summary judgment
(a) Time; kind of action
(f) Facts unavailable to opposing party

EDP Hosp. Computer Sys., Inc. v Bronx-Lebanon Hosp. Ctr., 2009 NY Slip Op 04372 (App. Div., 2nd, 2009)

Although this was the second time that the defendant moved for
summary judgment, and although there is a "general proscription against
successive summary judgment motions" (Auffermann v Distl, 56 AD3d 502,
502), under the circumstances, the Supreme Court properly addressed the
merits of the defendant's second motion for summary judgment, as the
defendant averred that the motion was supported by newly-discovered
evidence (see Oppenheim v Village of Great Neck Plaza, 46 AD3d 527, 528; Staib v City of New York, 289 AD2d 560, 561).

Nevertheless, the Supreme Court properly denied the defendant's
second motion for summary judgment dismissing the amended complaint, or
in the alternative, to renew its prior motion for summary judgment
dismissing the amended complaint, except the court erred in denying [*2]that
branch of the defendant's second motion which was for summary judgment
dismissing the sixth cause of action. On a prior appeal, upon reviewing
the denial of the defendant's first motion for summary judgment
dismissing the amended complaint, this Court found that, while the
defendant established its prima facie entitlement to summary judgment
by tendering evidence that the alleged oral agreement failed to comply
with the provisions of General Obligations Law § 5-701(a)(1), the
plaintiff submitted "evidence of partial performance in reliance upon,
and unequivocally referable to, the oral agreement," sufficient to
raise a triable issue of fact (EDP Hosp. Computer Sys., Inc. v Bronx-Lebanon Hosp. Ctr., 13 AD3d 476).
Since the defendant's subsequent motion for summary judgment, except as
to the sixth cause of action, was essentially based on the same
arguments and facts it raised on its prior motion, this Court's prior
determination constitutes the law of the case on those issues (see J-Mar Serv. Ctr., Inc. v Mahoney, Connor & Hussey, 45 AD3d 809, 809; Quinn v Hillside Dev. Corp., 21 AD3d 406, 407). The evidence which was obtained after the defendant's first motion for summary judgment (cf. Staib v City of New York, 289
AD2d 560, 561) included new evidence further establishing, prima facie,
the defendant's entitlement to summary judgment dismissing the sixth
cause of action which was for specific performance. In opposition, the
plaintiff failed to raise a triable issue of fact.

Tolpygina v Teper, 2009 NY Slip Op 04413 (App. Div., 2nd, 2009)

The Supreme Court correctly determined that the causes of action
which were the subject of that branch of the appellants' motion which
was to dismiss pursuant to CPLR 3211(a)(5), or, in the [*2]alternative,
for summary judgment, had been the subject of a previous cross motion
for identical relief. While the cross motion was made before issue was
joined (seeCity of Rochester v Chiarella, 65 NY2d 92, 101; Enriquez v Home Lawn Care & Landscaping, Inc., 49 AD3d 496, 497; Coolidge Equities Ltd. v Falls Ct. Props. Co., 45 AD3d 1289), the plaintiff was clearly placed on notice that the cross motion sought relief pursuant to CPLR 3212 (see Mancuso v Rubin,
52 AD3d 580, 582). The affidavit of the defendant Steven Boym in
support of the cross motion clearly referred to the cross motion as one
seeking relief pursuant to CPLR 3212. The plaintiff submitted papers in
opposition to the cross motion. The Supreme Court, in denying the cross
motion, referred to it as a cross motion for summary judgment. Under
these circumstances, the parties deliberately charted a summary
judgment course CPLR 3212[a]; (id.; see Feitner v Town of Smithtown, 23
AD3d 431, 432). As the appellants had previously cross-moved seeking
relief pursuant to CPLR 3212, contrary to their contention, that branch
of their motion which was for summary judgment dismissing the stated
causes of action insofar as asserted against them "violated the general
proscription against successive summary judgment motions absent a
showing of newly discovered evidence or other sufficient cause'" (Lapadula v Sang Shing Kwok, 304 AD2d 798, 798, quoting Marine Midland Bank v Fisher, 85 AD2d 905, 906; see Davidson Metals Corp. v Marlo Dev. Co., 262 AD2d 599). No sufficient showing of newly-discovered evidence or other sufficient cause was made here.

The Supreme Court also correctly denied that branch of the
appellants' motion which was to dismiss the stated causes of action
pursuant to CPLR 3211(a)(7) (see Nonnon v City of New York, 9 NY3d 825; Leon v Martinez, 84 NY2d 83; Enriquez v Home Lawn Care & Landscaping, Inc., 49 AD3d at 497; cf. Mancuso v Rubin, 52 AD3d at 583).

Huerta v Longo, 2009 NY Slip Op 04384 (App. Div., 2nd, 2009)

The defendants demonstrated good cause for their delay in making a
motion for summary judgment, and the Supreme Court providently
exercised its discretion in entertaining the [*2]late motion (see CPLR 3212[a]; Miceli v State Farm Mut. Auto. Ins. Co., 3 NY3d 725, 726-727; Brill v City of New York, 2 NY3d 648, 562; Kunz v Gleeson, 9 AD3d 480,
481). On the merits, the defendants met their prima facie burden of
showing that the plaintiff Jose O. Huerta did not sustain a serious
injury within the meaning of Insurance Law § 5102(d) as a result of the
subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79
NY2d 955, 956-957). Huerta's opposition, consisting solely of an
affirmation of his attorney, was insufficient to raise a triable issue
of fact (see Jefferson v Village of Ossining, 18 AD3d 502, 503).

Coello v Christakos, 2009 NY Slip Op 51033(U) (App. Div., 2nd, 2009)

Upon the record presented, we find that defendants established the
requisite "good cause" for their delay in making their motion (see CPLR 3212 [a]; Ramos v Triboro Coach Corp., 31 AD3d 625 [2006]; Andaloro v Hidden Ponds Dev. Corp., 273 AD2d 185 [2000]; Aurora v Ford [*2]Motor Credit Corp.,
266 AD2d 418 [1999]). We also note that plaintiff failed to demonstrate
any prejudice arising from the delay. Consequently, it was an
improvident exercise of discretion for the Civil Court to deny
defendant's motion as untimely. Accordingly, the Civil Court's order is
reversed and the matter is remitted to the Civil Court for a
determination de novo of defendants' motion for summary judgment.

Note that this case went from the Civil Court to the Appellate Division.  It was 325(d)'d from Supreme.

Coldwell Banker Real Estate Servs., Inc. v 529 Atl., LLC, 2009 NY Slip Op 04019 (App. Div., 2nd, 2009)

The plaintiffs established their prima facie entitlement to summary judgment (see Alvarez v Prospect Hosp., 68 NY2d 320, 324; Zuckerman v City of New York,
49 NY2d 557, 562), and the defendant failed to raise a triable issue of
fact. Further, the defendant failed to make an evidentiary showing that
further discovery might provide information that was material and
relevant in opposition to the motion for summary judgment (see LKE Family Ltd. Partnership v Gillen Living Trust, 59 AD3d 602; Board of Mgrs. of Park Regent Condominium v Park Regent Unit Owners Assoc., 58 AD3d 589; Phelan v Huntington Tri-Vil. Little League, Inc., 57 AD3d 503,
505). The Supreme Court therefore properly granted the plaintiff's
motion for summary judgment on the complaint insofar as asserted
against the defendant.

Perfito v Einhorn, 2009 NY Slip Op 04038 (App. Div., 2nd, 2009)

Although the defendants' cross motion for summary judgment was not
timely since it was filed almost two months after the deadline that the
Supreme Court set in its trial readiness order, "an untimely motion or
cross motion for summary judgment may be considered by the court where,
as here, a timely motion for summary judgment was made on nearly
identical grounds" (Grande v Peteroy, 39 AD3d 590,
591-592). "Notably, the court, in the course of deciding the timely
motion, is, in any event, empowered to search the record and award
summary judgment to a nonmoving party" (id. at 592).

Premier Real Estate Co., LLC v Sherwood, 2009 NY Slip Op 04041 (App. Div., 2nd, 2009)

The Supreme Court did not err in denying the plaintiff's cross motion
for summary judgment without prejudice to renewal after the completion
of discovery. While it is not disputed that the plaintiff made out a
prima facie case, it is also clear that there was no reasonable
opportunity for discovery in this action, since this motion was made
almost immediately after joinder of issue and the defendant raised
issues warranting further discovery (see Aurora Loan Serv., LLC v LaMattina & Assoc. Inc., 59 AD3d 578; Gera v All Pro Athletics, Inc., 57 AD3d 726; cf. Trombetta v Cathone, 59 AD3d 526).

Slemish Corp., S.A. v Morgenthau, 2009 NY Slip Op 04285 (App. Div., 1st, 2009)

In any event, at this pre-discovery juncture in a case where plaintiffs appear to have exclusive
possession of many of the relevant facts, summary judgment is not appropriate (see CPLR 3212[f])

The bold is mine.

CPLR § 213; CPLR § 203; Fraud SOL; Ct. App.

CPLR § 213 Actions to be commenced within six years

CPLR § 203 Method of computing periods of limitation generally

Sargiss v Magarelli, 2009 NY Slip Op 04301 (Ct. App. , 2009)

With respect to the timeliness of plaintiff's action, a fraud-based
action must be commenced within six years of the fraud or within two
years from the time the plaintiff discovered the fraud or "could with
reasonable diligence have discovered it" (CPLR 213 [8]; see
CPLR 203 [g]). The inquiry as to whether a plaintiff could, with
reasonable diligence, have discovered the fraud turns on whether the
plaintiff was "possessed of knowledge of facts from which [the fraud]
could be reasonably inferred" (Erbe v Lincoln Rochester Trust Co.,
3 NY2d 321, 326 [1957]). "Generally, knowledge of the fraudulent act is
required and mere suspicion will not constitute a sufficient
substitute" (id.). "Where it does not conclusively appear that a
plaintiff had knowledge of facts from which the fraud could reasonably
be inferred, a complaint [*4]should not be dismissed on motion and the question should be left to the trier of the facts" (Trepuk v Frank, 44 NY2d 723, 725 [1978]; see Erbe,
3 NY2d at 326). There is no indication that plaintiff had knowledge of
the alleged fraud prior to her daughter's discovery of certain
financial documents in decedent's California home after his death, and
there is no dispute that plaintiff commenced this action within two
years of this discovery. Moreover, on the record before us, it is
unclear how plaintiff could have discovered the alleged fraud earlier
than she did.

The bold is mine.


CPLR R. 3016 Pleading Requirements; Ct. App.

CPLR R. 3016 Particularity in specific actions

Eurycleia Partners, LP v Seward & Kissel, LLP, 2009 NY Slip Op 04299 (Ct. App., 2009)

The elements of a cause of action for fraud require a material
misrepresentation of a fact, knowledge of its falsity, an intent to
induce reliance, justifiable reliance by the plaintiff and damages (see Ross v Louise Wise Servs., Inc., 8 NY3d 478, 488 [2007]; Lama Holding Co. v Smith Barney, 88 NY2d 413, 421 [1996]). A claim rooted in fraud must be pleaded with the requisite particularity under CPLR 3016 (b).

We recently explored the pleading requirements of CPLR 3016 (b) in Pludeman v Northern Leasing Sys., Inc. (10 NY3d 486
[2008]). In that case, we noted that the purpose underlying the statute
is to inform a defendant of the complained-of incidents. We cautioned
that the statute "should not be so strictly interpreted as to prevent
an otherwise valid cause of action in situations where it may be
impossible to state in detail the circumstances constituting a fraud" (id.
at 491 [internal quotation marks and citations omitted]). Although
there is certainly no requirement of "unassailable proof" at the
pleading stage, the complaint must "allege the basic facts to establish
the elements of the cause of action" (id. at 492). We therefore
held that CPLR 3016 (b) is satisfied when the facts suffice to permit a
"reasonable inference" of the alleged misconduct. And, "in certain
cases, less than plainly observable facts may be supplemented by the
circumstances surrounding the alleged fraud" (id. at 493).

Here, whether the claim is labeled fraud or aiding and abetting
fraud, we conclude that neither the allegations in the complaint nor
the surrounding circumstances give rise to a reasonable inference that
S & K participated in a scheme to defraud or knew about the falsity
of the two contested statements in the offering memoranda. The amended
complaint conclusorily alleges that at some unspecified point in 2005 S
& K became aware that more than 10% of Wood River's holdings were
invested with Endwave but, nonetheless, S & K continued to issue
offering memoranda falsely representing that Wood River would not
invest more than 10% of its assets in any given security [FN7].
In support of this allegation, plaintiffs assert that S & K was
informed in January 2005 that Wood River had purchased 10% of Endwave's
stock. But the fact that S & K may have been aware that Wood River
owned 10% of Endwave's stock is not material to whether Wood River
invested more than 10% of its total assets in Endwave, particularly
where there is no [*5]indication that S
& K was ever informed of Wood River's overall asset levels or the
cost basis of the Endwave shares. Plaintiffs' reliance on a 2002 letter
— predating the existence of Wood River by nearly a year — from a S
& K attorney to Whittier discussing the performance of a separate
fund is similarly unavailing.

Nor do the surrounding circumstances breathe life into
plaintiffs' fraud claim premised on the 10% cap representation. Unlike
the individual corporate officer defendants in Pludeman, each
of whom managed a company implicated in a nationwide fraudulent scheme
covering a span of years, S & K was outside counsel to Wood River,
whose manager — Whittier — was convicted of securities fraud. Notably,
plaintiffs do not dispute S & K's assertion that they secured
Whittier's assistance in drafting the amended complaint. The absence of
any firm factual pleadings relevant to S & K's knowledge that Wood
River breached the 10% restriction or any fraudulent scheme between
Whittier and S & K is even more conspicuous in light of Whittier's
cooperation with plaintiffs.

We likewise find the amended complaint's alternative allegation
of fraud or aiding and abetting fraud — that S & K knew TBS was not
Wood River's auditor yet continued to list TBS in the offering
memoranda — to be similarly conclusory. As the Appellate Division
recognized, the complaint elsewhere alleges that in the summer of 2005
TBS falsely represented that it was the fund's auditor and would
conduct an audit. In short, although we are mindful that a plaintiff
need not produce absolute proof of fraud and that there may be cases in
which particular facts are within a defendant's possession, it is also
true that the strength of the requisite inference of fraud will vary
based on the facts and context of each case. Under the facts of this
case, we believe that the allegations in the complaint, coupled with
the surrounding circumstances, do not give rise to a reasonable
inference that S & K committed fraud or aided and abetted Wood
River's or Whittier's fraudulent activities.

The bold is mine.

(Art. 52)CPLR 5225/(Art. 62)CPLR 6201; Jurisdiction Ct. App.

CPLR § 5225 Payment or delivery of property of judgment debtor

CPLR § 6201 Grounds for attachment

Koehler v Bank of Bermuda Ltd., 2009 NY Slip Op 04297 (Ct. App., 2009)

The United States Court of Appeals for the Second Circuit, by
certified question, asks us to decide whether a court sitting in New
York may order a bank over which it has personal jurisdiction to
deliver stock certificates owned by a judgment debtor (or cash equal to
their value) to a judgment creditor, pursuant to CPLR article 52, when
those stock certificates are located outside New York. We answer the
certified question in the affirmative.
[*2]

I.

Sixteen
years ago, on June 4, 1993, the United States District Court for the
District of Maryland awarded Lee N. Koehler, a citizen of Pennsylvania,
a default judgment in the sum of $2,096,343 against his former business
partner, A. David Dodwell. Koehler duly registered the Maryland
judgment in the United States District Court for the Southern District
of New York. At that time, Dodwell, a resident of Bermuda, owned stock
in a Bermuda corporation, of which he and Koehler had been
shareholders, and certificates representing Dodwell's shares were in
the possession of the Bank of Bermuda Limited ("BBL"), and located in
that country. Dodwell had pledged the shares to BBL as collateral for a
loan.

On October 27, 1993, Koehler filed a petition against BBL in
the United States District Court for the Southern District of New York,
seeking "payment or delivery of property of judgment debtor," and
citing CPLR article 52. Koehler served the petition upon an officer of
the Bank of Bermuda (New York) Ltd., which it claimed to be a New York
subsidiary and agent of BBL. On October 29, 1993, the District Court
ordered BBL to deliver the stock certificates, or monies sufficient to
pay the judgment, to Koehler. It is this turnover order that is the
subject of the certified question before us.

BBL argued before the District Court that service upon the New
York bank did not subject BBL to the personal jurisdiction of the
court. Although this jurisdictional issue was the subject of litigation
in federal court for some ten years, BBL eventually consented, by
letter dated October 9, 2003, to the personal jurisdiction of the court
as of the time that Koehler had commenced the proceeding.

In 2004, BBL revealed that the stock certificates were no
longer in its possession. The obligations for which BBL had held the
certificates as collateral had been satisfied and BBL — despite the
District Court's turnover order — had transferred the stock to a
Bermudan company existing for Dodwell's benefit in July 1994. On March
9, 2005, the District Court dismissed Koehler's petition, on several
grounds, including that the federal court had no in rem
jurisdiction over Dodwell's shares. In doing so, the District Court
relied on the principle that a New York court cannot attach property
that is not within the state.

BBL appealed to the Second Circuit, which observed that New
York law does not make clear whether a court sitting in New York has
the authority under CPLR 5225 (b) to order a defendant, other than the
judgment debtor himself, to deliver assets into New York, when the
court has personal jurisdiction over the defendant but the assets are
not located in New York. The Second Circuit, finding no controlling
precedent from our Court, certified this dispositive jurisdictional
question to us.

II.

CPLR article 52 governs the enforcement of money judgments and
orders directing the payment of money. By contrast, pre-judgment
attachment is governed by article 62. [*3]Enforcement
proceedings and attachment proceedings, while similar in many ways,
differ fundamentally in respect to a court's jurisdiction. While
pre-judgment attachment is typically based on jurisdiction over
property, post-judgment enforcement requires only jurisdiction over
persons.

Article 52 authorizes a judgment creditor to file a motion
against a judgment debtor to compel turnover of assets or, when the
property sought is not in the possession of the judgment debtor
himself, to commence a special proceeding against a garnishee who holds
the assets. CPLR 5225, the provision applicable here, supplies judgment
creditors with a device known as a "delivery order" or "turnover
order." With respect to garnishees, 5225 (b) allows a New York court to
issue a judgment ordering a party to deliver the property in which the
judgment debtor has an interest, or to convert it to money for payment
of the debt. "[W]here it is shown that the judgment debtor is entitled
to the possession of such property . . ., the court shall require such
person to pay the money, or so much of it as is sufficient to satisfy
the judgment, to the judgment creditor" (CPLR 5225 [b]). Disobedience
of a turnover order is contempt of court and punishable as such.

The requirement that the judgment creditor proceed against the
garnishee, rather than by a device operating on the property alone,
recognizes the possibility that the garnishee, or a fourth party, may
assert its own interests in the property. "If there are any other
claimants to the property or money involved, they can be allowed to
intervene, if, indeed the judgment creditor has not already joined them
in the first place, or the garnishee interpleaded them. . . . The
special proceeding, in short, can be converted into a full-fledged test
of precisely whom the disputed property or debt belongs to . . ."
(Siegel, NY Prac § 510, at 868 [4th ed].)

By contrast, an article 62 attachment proceeding operates only against property,
not any person. By means of attachment, a creditor effects the
pre-judgment seizure of a debtor's property, to be held by the sheriff,
so as to apply the property to the creditor's judgment if the creditor
should prevail in court. Attachment simply keeps the debtor away from
his property or, at least, the free use thereof; it does not transfer
the property to the creditor. It is frequently used when the creditor
suspects that the debtor is secreting property or removing it from New
York and/or when the creditor is unable to serve the debtor, despite
diligent efforts, even though the debtor would be within the personal
jurisdiction of a New York court (see CPLR 6201). Attachment has also been used to confer
jurisdiction. When a debtor is neither a domiciliary nor a resident of
New York — so that the creditor cannot obtain personal jurisdiction of
the debtor — but owns assets in New York, courts have exercised
jurisdiction over the debtor. This quasi in rem jurisdiction is subject to the due process restrictions outlined by the United States Supreme Court in Shaffer v Heitner (433 US 186 [1977]). (See generally Siegel, NY Prac §§ 104, 313, 314 [4th ed].)

In short, article 52 post-judgment enforcement involves a proceeding against a [*4]person
— its purpose is to demand that a person convert property to money for
payment to a creditor — whereas article 62 attachment operates solely
on property, keeping it out of a debtor's hands for a time. We approach
the certified question with these differences in mind.

III.

It is well established that, where
personal jurisdiction is lacking, a New York court cannot attach
property not within its jurisdiction. "[I]t is a fundamental rule that
in attachment proceedings the res must be within the jurisdiction of the court issuing the process, in order to confer jurisdiction" (National Broadway Bank v Sampson, 179 NY 213, 223 [1904], quoting Douglass v Phenix Ins. Co., 138 NY 209, 219 [1893]; accord Hotel 71 Mezz Lender LLC v Falor, 58 AD3d 270, 273 [1st Dept 2008]; National Union Fire Ins. Co. v Advanced Employment Concepts, Inc. (269 AD2d 101 [1st Dept 2000]). Significantly, "attachment suits partake of the nature of suits in rem,
and are distinctly such when they proceed without jurisdiction having
been acquired of the person of the debtor in the attachment" (Douglass,
138 NY at 218). But it is equally well established that "[h]aving
acquired jurisdiction of the person, the courts can compel observance
of its decrees by proceedings in personam against the owner within the jurisdiction" (id. at 219). The certified question concerns the latter process.

CPLR article 52 contains no express territorial limitation
barring the entry of a turnover order that requires a garnishee to
transfer money or property into New York from another state or country.
It would have been an easy matter for the Legislature to have added
such a restriction to the reach of article 52 and there is no basis for
us to infer it from the broad language presently in the statute.
Moreover, we note that the Legislature has recently amended CPLR 5224
so as to facilitate disclosure of materials that would assist judgment
creditors in collecting judgments, when those materials are located
outside New York. The 2006 amendment adds a subdivision that expressly
allows the securing of out-of-state materials by in-state service of a
subpoena on the party in control of the materials [FN1]. Recent legislation thus supports our conclusion that the Legislature intended CPLR article 52 to have extraterritorial reach.

The bold is mine.

Make sure to read Pigott's long dissent.

CPLR § 510; CPLR R. 511

CPLR § 510 Grounds for change of place of trial

CPLR R. 511 Change of place of trial

Funny that 510 is section and 511 is a rule.

Krochta v On Time Delivery Serv., Inc., 2009 NY Slip Op 04098 (App. Div., 1st, 2009)

Plaintiff, a Pennsylvania resident, was injured on premises owned
and operated by AMC in Nassau County when he tripped and fell over
packaging material used to wrap merchandise being delivered by
defendant On Time Delivery Service, Inc. Plaintiff commenced this
action in Supreme Court, Bronx County, basing venue on the residence of
defendant AMC, as reflected in its certificate of incorporation filed
January 22, 1970. Prior to answering, AMC served a demand to change
venue to Nassau County on the ground that the county designated by
plaintiff was improper (CPLR 503[a]). AMC then moved to change venue
(CPLR 510[1]; 511), submitting documentation from the Department of
State indicating that the corporation did not reside in Bronx County at
the time plaintiff commenced the action. In reply to plaintiff's
opposing argument that venue was proper based on the certificate of
incorporation, AMC submitted the affidavit of its vice president
attesting that the corporation had been operating out of Nassau County
for nearly 30 years. AMC's reply papers further contended that the
convenience of material witnesses and the interest of justice also
warranted the venue change.

Supreme Court properly denied the motion for change of venue as
of right as untimely, having been interposed more than 15 days after
service of AMC's antecedent demand (CPLR 511[b]). The court also
correctly rejected AMC's application for a discretionary change of
venue as having been improperly advanced for the first time in reply (Ritt v Lenox Hill Hosp.,
182 AD2d 560, 562 [1992]), noting that, in any event, AMC had failed to
demonstrate how the convenience of witnesses or the interest of justice
would be served. The court nevertheless exercised its discretion to
grant the change of venue "for reasons not enumerated by statute or in
the interest of justice as enumerated by statute." The court concluded
that the case has only a [*2]tenuous
connection to Bronx County and, "all things being equal, a transitory
action should be venued in the county of occurrence." This was error.

As this Court stated in Velasquez v Delaware Riv. Val. Lease Corp. (18 AD3d 359, 360 [2005]):

"We have long held that The designation of a county as
the location of a corporation's principal office in a certificate of
incorporation is controlling in determining corporate residence for the
purposes of venue' (Conway v Gateway Assoc., 166 AD2d 388, 389
[1990]). Since the certificate of incorporation here was never formally
amended to change the principal place of business, the original
designation governs" (citing Nadle v L.O. Realty Corp., 286 AD2d 130, 132 [2001]).

While the situs of plaintiff's injury provides a basis to change venue to Nassau County (see e.g. Young Hee Kim v Flushing Hosp. & Med. Ctr.,
138 AD2d 252 [1988]), a discretionary change of venue (CPLR 510[3])
still must be supported by a statement detailing the identity and
availability of proposed witnesses, the nature and materiality of their
anticipated testimony, and the manner in which they would be
inconvenienced by the designated venue (see Leopold v Goldstein, 283 AD2d 319 [2001]), requirements the court had correctly found to be unsatisfied.

The bold is mine.

22 NYCRR 202.48; Order never settled on decision is abandoned and without effect AND a case where it didn’t apply

22 NYCRR 202.48 Submission of orders, judgments and decrees for signature

Redeemed Christian Church of God Tabernacle of Restoration v Green, 2009 NY Slip Op 04125 (App. Div., 1st, 2009)

Appeal from order, Supreme Court, New York County (Norma Ruiz, J.),
entered February 5, 2008, which, to the extent appealed from, in this
action for specific performance of a contract for the sale of real
property, denied plaintiff's motion pursuant to CPLR 3211(a)(4) to
dismiss a related holdover proceeding in Civil Court or, in the
alternative, to stay the holdover proceeding or to consolidate it with
this action, and awarded defendants, sua sponte, use and occupancy,
unanimously dismissed, without costs, as academic.

It is undisputed that on February 28, 2008, the Civil Court
entered a default judgment against plaintiff in the related holdover
proceeding. As such, that proceeding has concluded, thereby rendering
moot the portion of this appeal addressing it. The appeal is also moot
to the extent it addresses the motion court's sua sponte grant of use
and occupancy to defendants. Since defendants never settled an order on
that decision, as directed by the motion court, it was abandoned and
never took effect (see Uniform Rules for Trial Cts [22 NYCRR] § 202.48(b)]).

Capogrosso v Reade Broadways Assoc., 2009 NY Slip Op 04280 (App. Div., 1st, 2009)

There is no merit to plaintiff's argument that because defendant did
not settle an order within 60 days of the trial court's decision,
defendant's claims underlying the award of damages in the judgment
should be deemed abandoned pursuant to 22 NYCRR 202.48. The directive
in the decision to "[s]ettle order on notice" pertained only to so much
of the decision as determined that defendant was entitled to reasonable
attorneys' fees and referred defendant's claim therefor to a Special
Referee for a report or, upon the parties' stipulation, a
determination. The settle order directive could not have had any
pertinence to so much of the decision as awarded defendant a sum
certain, " which speaks for itself'" (Farkas v Farkas, 11 NY3d 300, 309 [2008], quoting Funk v Barry,
89 NY2d 364, 367 [1996]). Indeed, the decision was fairly explicit in
"permit[ting]" defendant to enter a money judgment for that sum certain
without further court involvement.

The bold is mine.

CPLR R. 3217 Late discontinuance to avoid decision on pending motion

CPLR R. 3217 Voluntary discontinuance

(a) Without an order

McMahan v McMahan, 2009 NY Slip Op 04165 (App. Div., 1st, 2009)

As against appellant, the action should not have been discontinued
without prejudice where plaintiff's notice of discontinuance was
untimely under CPLR 3217(a) (see Citidress II Corp. v Hinshaw & Culbertson LLP, 59 AD3d 210,
211 [2009]), and was apparently served in order to avoid an adverse
decision on a pending motion to dismiss the complaint with prejudice
and to enable plaintiff to raise the claims she makes herein in another
pending action (see NBN Broadcasting v Sheridan Broadcasting Networks,
240 AD2d 319 [1997]). The foregoing renders academic appellant's claim
that the motion court should have granted its motion to dismiss the
complaint on default (see 176-60 Union Turnpike v Howard Beach Fitness Ctr., 271 AD2d 327, 328 [2000]).

The bold is mine.

CPLR 3404 and a Civil Court Distinction [22 NYCRR § 208.14 (b)]

CPLR R. 3404. Dismissal of abandoned cases

Casavecchia v Mizrahi, 2009 NY Slip Op 03858 (App. Div., 2nd, 2009)

The Supreme Court properly granted the plaintiff's motion to "restore"
this action to the active calendar after it had been marked "disposed,"
given that CPLR 3404 does not apply to this pre-note of issue action (see Lopez v Imperial Delivery Serv., 282
AD2d 190), there was no 90-day notice pursuant to CPLR 3216, and there
was no order dismissing the complaint pursuant to 22 NYCRR 202.27 (see Burdick v Marcus, 17 AD3d 388; 123X Corp. v McKenzie, 7 AD3d 769; Golan v Long Is. Jewish Med. Ctr., 7 AD3d 489, 490; Lucious v Rutland Nursing Home of Kingsbrook Jewish Med. Ctr., 2 AD3d 412).

Christiano v Solovieff Realty Co., L.L.C., 2009 NY Slip Op 03942 (App. Div., 1st, 2009)

Plaintiffs failed to meet the criteria for vacating an automatic dismissal pursuant to CPLR 3404 (see Aguilar v Djonvic,
282 AD2d 366 [2001]). Their affidavit of merit was conclusory, they
offered no reasonable explanation for their failure to proceed with
discovery for nearly two years, they failed even to address the issue
of prejudice to defendants, and their lack of activity [*2]between
the time the case was struck from the calendar and their court-ordered
motion to restore fails to rebut the presumption of abandonment.

22 NYCRR § 208.14 Calendar default; restoration; dismissal

b) At
any scheduled call of a calendar or at a pretrial conference, if all
parties do not appear and proceed or announce their readiness to
proceed immediately or subject to the engagement of counsel, the judge
presiding may note the default on the record and enter an order as
follows:

(1) If the plaintiff appears but the defendant does not, the judge may grant judgment by default or order an inquest.

(2)
If the defendant appears but the plaintiff does not, the judge may
dismiss the action and may order a severance of counterclaims or
cross-claims.

(3) If no party appears, the judge may strike the action from the calendar or make such other order as appears just.

(c) Actions stricken from the calendar may be
restored to the calendar only upon stipulation of all parties so
ordered by the court or by motion on notice to all other parties, made
within one year after the action is stricken. A motion must be
supported by affidavit by a person having firsthand knowledge,
satisfactorily explaining the reasons for the action having been
stricken and showing that it is presently ready for trial.

V.S. Med. Servs., P.C. v Travelers Ins. Co., 2009 NY Slip Op 29226 (App. Term, 2nd)

On November 6, 2007, plaintiff moved to vacate the order of
dismissal and restore the matter to the trial calendar. Plaintiff's
counsel submitted an affidavit from counsel's employee, Polina
Shvartsberg, who stated that she is responsible for calendaring
counsel's trial dates and that she failed to do so in this matter.
Consequently, plaintiff's counsel was unprepared for trial.

…

The Civil Court denied plaintiff's motion, concluding that
plaintiff "has failed to show a reasonable excuse for its delay, as
well as a meritorious cause of action, lack of prejudice to the
defendant and a lack of intent to abandon this action." The court added
that plaintiff's motion was untimely, as the matter had been marked off
the calendar for more than a year.

Plaintiff now appeals, claiming that the Civil Court should
have granted its motion to vacate the default pursuant to CPLR 2005 and
CPLR 5015. We affirm.

Although both defendant and the Civil Court appear to rely on
Uniform Rules for the New York City Civil Court (22 NYCRR) § 208.14 (c)
to support the denial of plaintiff's motion, we conclude that this
provision is inapplicable under the circumstances of this case. Section
208.14 (c) governs restoration of cases within one year after the
action has been stricken from the calendar. Here, since the
case was never stricken from the trial calendar, but rather was
dismissed, section 208.14 (c) is inapplicable.

Although the Civil Court, in dismissing the case, did not
specifically note a default, it is clear from the record that the case
was dismissed on default. Uniform Rules for the New York City Civil
Court (22 NYCRR) § 208.14 (b) provides, in relevant part, that

"[a]t any scheduled call of a calendar . . . if all parties do not
appear and proceed or announce their readiness to proceed immediately .
. . the judge presiding may note the default on the record and enter an
order as follows:

* * *

(2) If the defendant appears but the plaintiff does not, the judge may dismiss the action . . . ."

In this case, a card attached to the notice of trial clearly states
that the case was dismissed because plaintiff was not ready to proceed.
Indeed, plaintiff — both in the Civil Court and on appeal — refers to
the dismissal as being entered on default and maintains that its motion
to vacate the default should have been granted pursuant to CPLR 5015.
In these circumstances, it was incumbent upon plaintiff to demonstrate
a reasonable excuse for the default and a meritorious cause of action (see CPLR 5015 [a]; Eugene Di Lorenzo, Inc. v Dutton Lbr. Co., 67 NY2d 138, 141 [1986]). Plaintiff failed to sustain this burden.

The sole explanation offered by plaintiff for its default is
that plaintiff's counsel's office failed to calendar the trial date.
Such conclusory and factually devoid allegations are insufficient to
constitute a reasonable excuse (see Juarbe v City of New York, 303 AD2d 462 [2003]). On this basis alone, plaintiff's motion was properly denied.

The bold is mine.