CPLR R.3211 Roundup with a smattering of CPLR § 308. CPLR § 205(a) too.

These are some of the more interesting CPLR R. 3211 decision's I've found in the past few weeks.  At least two revolve around CPLR § 308 ( Personal service upon a natural person). Another discussed CPLR § 306-b.  One decision discussed the preclusive effect of a CPLR R. 3211(a)(7) dismissal (in that case none), adding that it received the tolling benefit of CPLR § 205(a)

CPLR R. 3211

(a)(1) defense is founded upon documentary evidence

(a)(5) the
cause of action may not be maintained because of arbitration and award,
collateral estoppel, discharge in bankruptcy, infancy or other
disability of the moving party, payment, release, res judicata, statute
of limitations, or statute of frauds

(a)(7)  pleading fails to state a cause of action

Fitzgerald v Federal Signal Corp., 2009 NY Slip Op 05288 (App. Div., 2nd, 2009)

"Upon a motion to dismiss for failure to state a cause of action
under CPLR 3211(a)(7), the court must determine whether from the four
corners of the pleading factual allegations are discerned which taken
together manifest any cause of action cognizable at law'" (Salvatore v Kumar, 45 AD3d 560, 563, quoting Morad v Morad, 27 AD3d 626, 627; see Arnav Indus., Inc. Retirement Trust v Brown, Raysman, Millstein, Felder & Steiner, 96 NY2d 300, 303; Leon v MartÍnez, 84
NY2d 83, 87-88). "In determining such a motion, the court may freely
consider additional facts contained in affidavits submitted by the
plaintiff to remedy any defects in the complaint
" (Sheridan v Carter, 48 AD3d 444, 445; see International Oil Field Supply Servs. Corp. v Fadeyi, 35 AD3d 372, 375).

Viewing the allegations in the complaint as true, and according
the plaintiffs the benefit of every reasonable inference, the Supreme
Court properly determined that the plaintiffs failed to state a cause
of action to recover damages for strict products liability based on
Federal's alleged duty and failure to warn them, as the risk alleged is
"open and obvious" and "readily apparent as a matter of common sense"
(Liriano v Hobart Corp., 92 NY2d 232, 241-242; see Warlikowski v Burger King Corp., 9 AD3d 360, 362; Schiller v National Presto Indus., 225
AD2d 1053, 1054). "There is no duty to warn of an open and obvious
danger of which the product user is actually aware or should be aware
as a result of ordinary observation or as a matter of common sense"
(O'Boy v Motor Coach Indus., Inc., 39 AD3d 512, 514; see Jones v W + M Automation, Inc., 31 AD3d 1099, 1101-1102; Vail v KMart Corp., 25 AD3d 549,

Stubbolo v City of New York, 2009 NY Slip Op 04971 (App. Div., 1st, 2009)

The motion court erred in denying dismissal of plaintiffs' 42 USC §
1983 claim based on the theory of fabrication of evidence prior to the
initiation of the grand jury proceedings and prosecutions against
plaintiff Frank J. Stubbolo under Indictment Nos. 724/02 and 4133/03.
The complaint fails to sufficiently allege such prosecutorial
misconduct and, as a result, the claim is barred by absolute
prosecutorial immunity
(see Buckley v Fitzsimmons, 509 US 259, 269-270 [1993]; Imbler v Pachtman, 424 US 409, 430-31 [1970]; Hill v City of New York, 45 F3d 653, 661 [2d Cir 1995]).

Contrary to plaintiffs' contentions on appeal, the motion court properly dismissed [*2]plaintiffs'
remaining federal and state law claims as time-barred or for failure to
state a cause of action (CPLR 3211[a][1], [7]).

HNH Intl., Ltd. v Pryor Cashman Sherman & Flynn LLP, 2009 NY Slip Op 04964 (App. Div., 1st, 2009)

The court dismissed the legal malpractice complaint, pursuant to
CPLR 3211(a)(1), based on documentary evidence from which it concluded
that the state of the law at the time the advice was given was
unsettled and defendants therefore had not " failed to exercise the
ordinary reasonable skill and knowledge commonly possessed by a member
of the legal profession'" at that time (quoting Darby & Darby v VSI Intl., 95 NY2d 308, 313 [2000]).

We conclude, however, that the state of the law was not so
unsettled at the time the advice was given as to bar as a matter of law
plaintiffs' claim that a reasonably skilled attorney would have advised
that the CDs were or might be entitled to common-law copyright
protection and would not have advised that the release of the CDs would
not result in any copyright liability. Although defendant maintains
that it did advise plaintiffs of the possibility of common-law
liability and did not advise plaintiffs that the release of the CDs
would not result in any copyright liability, we must accept the facts
alleged in the complaint as true and accord plaintiffs the benefit of
every possible
favorable inference
(Arnav Indus., Inc. Retirement Trust v Brown, Raysman, Millstein, Felder & [*2]Steiner,
96 NY2d 300, 303 [2001]). The determination whether defendant exercised
the requisite level of skill and care must await expert testimony
(compare Merlin Biomed Asset Mgt., LLC v Wolf Block Schorr & Solis-Cohen LLP, 23 AD3d 243 [2005] [expert testimony required], with Darby & Darby, supra [legal malpractice counterclaim dismissed on summary judgment]).

The statute of limitations was tolled as to defendant because
the attorneys who initially handled the matter continued to represent
plaintiffs in the matter, albeit at different law firms, until 2005
(see Antoniu v Ahearn, 134 AD2d 151 [1987]).

Sullivan v Nimmagadda, 2009 NY Slip Op 05109 (App. Div., 2nd, 2009)

The plaintiff commenced a prior action to recover damages for
wrongful death and conscious pain and suffering allegedly arising from
the medical malpractice of several doctors and a number of medical
facilities. Although the defendant herein was named in the caption of
that prior action, there were no allegations in the complaint of acts
or omissions committed by her. The defendant moved pursuant to CPLR
3211(a)(7) to dismiss the complaint in that prior action insofar as
asserted against her. The Supreme Court granted the motion and this
Court affirmed the dismissal of the prior action
(see Sullivan v St. Francis Hosp.,
45 AD3d 833, 834). The plaintiff commenced this action within six
months of the affirmance of the dismissal of the prior action insofar
as it related to the defendant
(see Lehman Bros. v Hughes, Hubbard & Reed, 92 NY2d 1014, 1017; Andrea v Arnone, Hedin, Casker, Kennedy & Drake, Architects & Landscape Architects, P.C. [Habiterra Assoc.], 5 NY3d 514, 519-520).

Contrary to the defendant's contention and the holding of the
Supreme Court, the plaintiff was entitled to the six-month tolling
provision of CPLR 205(a)
(see Scaffold-Russ Dilworth v Shared Mgt. Group,
289 AD2d 932, 934). "The proviso in CPLR 205(a) that the toll is
inapplicable when the prior action was dismissed on the merits is
essentially a corollary of the principle of res judicata that once a
claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred'"
(Yonkers Contr. Co. v Port Auth. Trans-Hudson Corp., 93 NY2d 375, 380 [emphasis in original], quoting O'Brien v City of Syracuse, 54 NY2d 353, 357). The dismissal of an [*2]action for failure to state a cause of action has limited preclusive effect (see 175 E. 74th Corp. v Hartford Acc. & Indem. Co.,
51 NY2d 585, 590, ftn. 1). That limited preclusive effect is not
relevant to the facts herein, as the dismissal of the prior action
pursuant to CPLR 3211(a)(7) was not on the merits
(see Viafax Corp. v Citicorp Leasing, Inc., 54 AD3d 846, 849-850; Tortura v Sullivan Papain Block McGrath & Cannavo, P.C., 41 AD3d 584, 585; Asgahar v Tringali Realty, Inc.,
18 AD3d 408, 409). Accordingly, the defendant's motion for summary
judgment dismissing the complaint as time-barred should have been

Krisilas v Mount Sinai Hosp., 2009 NY Slip Op 05093 (App. Div., 2nd, 2009)

"Affix and mail" service pursuant to CPLR 308(4) may be used only
where personal service under CPLR 308(1) and (2) cannot be made with
"due diligence" (see Estate of Waterman v Jones, 46 AD3d 63; County of Nassau v Letosky, 34 AD3d 414; Gurevitch v Goodman, 269 AD2d 355). "This Court has repeatedly emphasized that the due diligence requirement of CPLR 308(4) must [*2]be strictly observed, given the reduced likelihood that a summons served pursuant to that section will be received'" (McSorley v Spear, 50 AD3d 652, 653, quoting Gurevitch v Goodman, 269 AD2d 355; see Silber v Stein, 287 AD2d 494; Moran v Harting, 212 AD2d 517).

According to the affidavit of service and the amended affidavit
of service, the process server attempted to personally deliver the
summons and complaint to the defendant Damien Kim at his actual place
of business on February 20, 2007, at 10:15 A.M. and February 21, 2007
at 6:07 P.M. The process server testified, at a hearing to determine
the propriety of service of process, that after returning to Kim's
office for a third time, and finding no one present, he allegedly
effectuated service pursuant to CPLR 308(4).

Kim provided an affidavit in support of his motion, inter alia,
to dismiss the complaint insofar as asserted against him and testified
at the hearing that he did not maintain office hours during the days
and times that the plaintiff's process server attempted to serve
process. The process server testified that he did not attempt to
contact Kim to ascertain his office hours when he would reasonably be
expected to be there, question the plaintiff about her knowledge
concerning Kim's office hours, or attempt to locate Kim's home address
(see Estate of Waterman v Jones, 46
AD3d at 66). As such, the Supreme Court properly concluded after the
hearing that the plaintiff failed to establish that due diligence was
exercised in trying to effectuate service pursuant to CPLR 308(1) or
(2) before "affix and mail" service was utilized
(see Gureje v Richardson, 59 AD3d 494; Crystal v Lisnow, 56 AD3d 713; Commissioners of State Ins. Fund v Khondoker, 55 AD3d 525; County of Nassau v Barrios, 46 AD3d 606, 607; County of Nassau v Long, 35 AD3d 787; County of Nassau v Letosky, 34
AD3d 414). Accordingly, the Supreme Court properly granted that branch
of Kim's motion, pursuant to CPLR 3211(a)(8), which was to dismiss the
complaint insofar as asserted against him.

"It is axiomatic that the failure to serve process in an action
leaves the court without personal jurisdiction over the defendant, and
all subsequent proceedings are thereby rendered null and void"
(McMullen v Arnone, 79 AD2d 496, 499; see Khanal v Sheldon, 55
AD3d 684). Such a defect is not cured by the defendant's subsequent
receipt of actual notice of the action, "since notice received by means
other than those authorized by statute cannot serve to bring a
defendant within the jurisdiction of the court" (Feinstein v Bergner, 48 NY2d 234, 241; see McMullen v Arnone, 79
AD2d at 499). Thus, there is no merit to the plaintiff's contention
that service of process was proper because Kim received actual notice
of the action with an opportunity to defend himself (see Raschel v Rish, 69 NY2d 694, 697; Merchants Ins. Group v Coutrier, 59 AD3d 602; County of Nassau v Letosky, 34 AD3d 414).

Kinder v Braunius, 2009 NY Slip Op 05092 (App. Div., 2nd, 2009)

On April 4, 2004, the plaintiff allegedly sustained personal
injuries when she fell through the floor of a barn owned by the
defendant Jeff Braunius (hereinafter Jeff). In February 2007, the
plaintiff commenced this action, naming Brian Braunius (hereinafter
Brian), a nonexistent person, as the sole defendant. In mid-April 2007,
after the statute of limitations had expired (see CPLR 214[5]),
the plaintiff filed what was denominated a supplemental summons and
amended verified complaint naming Jeff as a defendant. On July 16,
2007, the defendants allegedly were served with both sets of pleadings
by delivery to a person of suitable age and discretion pursuant to CPLR
308(2). In August 2007, Jeff interposed a verified answer to the
purported amended complaint where, inter alia, he asserted the
affirmative defenses of lack of personal jurisdiction and that the
action was time-barred. In April 2008 Jeff moved pursuant to CPLR 306-b
to dismiss the complaint, and, inter alia, pursuant to CPLR 3211(a)(5)
to dismiss the purported amended complaint. The plaintiff cross-moved,
inter alia, for an extension of time to serve the summons and complaint
and for leave to amend the summons and complaint nunc pro tunc to
substitute Jeff as the defendant instead of Brian. The Supreme Court
granted those branches of Jeff's motion which were pursuant to CPLR
306-b to dismiss the complaint and pursuant to CPLR 3211(a)(5) to
dismiss the purported amended complaint as time-barred, and denied the
plaintiff's cross motion. We affirm

It is undisputed that the plaintiff incorrectly named Brian, a
nonexistent person, as the defendant in the original summons and
complaint, and that she failed to serve Jeff within the applicable
three-year statute of limitations. Under such circumstances, the naming
of a nonexistent person was, in fact, [*2]no naming at all (see Maldonado v Maryland Rail Commuter Serv. Admin., 91 NY2d 467, 472; Ross v Lan Chile Airlines, 14 AD3d 602, 603). The issue here was not improper service, but no service
(see Zaleski v Mlynarkiewiez,
255 AD2d 379, 380). Thus, the Supreme Court lacked personal
jurisdiction over Jeff and lacked the authority to grant leave to amend
the summons and complaint or to extend the plaintiff's time to serve
pursuant to CPLR 306-b
(see Ross v Lan Chile Airlines, 14 AD3d
at 604). For the same reason, the Supreme Court was without authority
to amend the complaint to correct a misnomer pursuant to CPLR 305(c)
(see Smith v Garo Enters., Inc., 60 AD3d 751; Holster v Ross, 45 AD3d 640, 642).

Moreover, the Supreme Court properly determined that the action
purportedly commenced by the supplemental summons and amended verified
complaint was time-barred (see CPLR 214[5]) and that the relation-back doctrine did not apply (see CPLR 203[b]; Hirsh v Perlmutter, 53 AD3d 597, 599).

Ideal Steel Supply Corp. v Anza, 2009 NY Slip Op 05090 (App. Div., 2nd, 2009)

The Supreme Court properly granted those branches of the defendants'
separate motions which were to dismiss the fourth cause of action of
the amended complaint alleging fraud. The plaintiff failed to
adequately allege justifiable reliance and damages resulting therefrom (see Ozelkan v Tyree Bros. Envtl. Servs., Inc., 29 AD3d 877; Giurdanella v Giurdanella, 226
AD2d 342). To plead reliance, the plaintiff was required to allege that
it was induced to act or refrain from acting to its detriment by virtue
of the false representation (see Shea v Hambros PLC, 244 AD2d
39, 46). While the plaintiff asserts that it was only required to
retain an expert to analyze certain financial documents provided by the
defendants because those documents contained false representations, the
plaintiff retained its expert to analyze those documents prior to their
receipt. Accordingly, the plaintiff failed to allege that its expert
expenditure resulted from the false representation and would not
otherwise have been incurred
(see Clearview Concrete Prods. Corp. v Gherardi, Inc., 88 AD2d 461, 468; cf. 164 Mulberry St. Corp. v Columbia Univ., 4 AD3d 49).

The Supreme Court properly
granted those branches of the defendants' separate motions which were
to dismiss the fifth cause of action of the amended complaint alleging
negligent misrepresentation. The plaintiff failed to allege reasonable
reliance and the existence of privity or a relationship approaching
privity between it and either of the defendants (see J.A.O. Acquisition Corp. v Stavitsky, 8 NY3d 144, 148; Parrott v Coopers & Lybrand, 95
NY2d 479, 484). There are no allegations of any conduct by the
defendants linking them to the plaintiff and evincing their
understanding of any reliance on the part of the plaintiff (see Credit Alliance Corp. v Arthur Andersen & Co., 65 NY2d 536, 551; Securities Inv. Protection Corp. v BDO Seidman, 95 NY2d 702, 711; cf. Kimmell v Schaefer, 89 NY2d 257, 261).

Reznikov v Walowitz, 2009 NY Slip Op 05529 (App. Div., 2nd, 2009)

The defendants moved to dismiss the complaint based on documentary
evidence and submitted a "Termination/Cancellation of Easement"
The agreement terminated the easement, and was acknowledged
and signed by the plaintiffs and the defendants.

"A motion to dismiss a complaint pursuant to CPLR 3211(a)(1)
may be appropriately granted where documentary evidence utterly refutes
the plaintiff's factual allegations, thereby conclusively establishing
a defense as a matter of law" (Newcomb v Sims, _______ AD3d
_______, 2009 NY Slip Op 5305 [2d Dept 2009]). Here, the documentary
evidence submitted by the defendants consisted of the agreement
terminating the easement, which was signed by the plaintiffs. Although
the plaintiffs claim that they were misled by the defendants to sign a
document "which turned out to be of an entirely different nature and
character from what they thought they were signing," they were under an
obligation to read the document prior to signing it and "a party cannot
avoid the effect of a [document] on the ground that he or she did not
read it or know its contents"
(Cash v Titan Fin. Servs., Inc., 58
AD3d 785,788). Accordingly, the documentary evidence submitted by the
defendants conclusively established a defense as a matter of law, and
the Supreme Court properly granted the defendants' motion pursuant to
CPLR 3211(a)(1) to dismiss the complaint
(see Newcomb v Sims, _______ AD3d _______, 2009 NY Slip Op 5305 [2d Dept 2009]; Zeld Assoc., Inc. v Marcario, 57 AD3d 660).

All the bold is mine.

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