February 2010 – Page 2

CPLR R. 3212 Round Up

I've let these sit for too long. These need to be posted, along with the 3211 cases, so that I can get to some of the more esoteric (probably not the right word) sections and rules. Besides, I finally got a new computer, one that doesn't crash. So I might as well put it to use.

CPLR R. 3212 Motion for summary judgment

CPLR R. 3214 Motions
heard by judge supervising disclosure; stay of disclosure

(b) Stay of disclosure: Service of a notice of motion under rule 3211, 3212, or section 3213 stays disclosure until determination of the motion unless the court orders otherwise. If the motion is based solely on the defense that the summons and complaint, summons with notice, or notice of petition and petition was not properly served, disclosure shall not be stayed unless the court orders otherwise.

Mazzocchi Wrecking Inc. v East 115th St. Realty Corp., 2010 NY Slip Op 01425 (App. Div., 1st, 2010)

Plaintiff's motion, based solely on the claim for breach of contract, was unsupported by an affidavit of a person with personal knowledge. The movant thus failed to meet its prima facie burden of proof, rendering the motion insufficient and lacking in probative value (Stainless, Inc. v Employers Fire Ins. Co., 69 AD2d 27, 31-32 [1979], affd 49 NY2d 924 [1980]).

Gonzalez v Nutech Auto Sales, 2010 NY Slip Op 00469 (App. Div., 2nd, 2010)

Under the circumstances of this case, since the motion was premature as no discovery had yet taken place (see CPLR 3212[f]; Harvey v Nealis, 61 AD3d 935; Valdivia v Consolidated Resistance Co. of Am., Inc., 54 AD3d 753), the Supreme Court erred in determining the motion on the merits.

Sutter v Wakefern Food Corp., 2010 NY Slip Op 00506 (App. Div., 2nd, 2010)

The plaintiff commenced this action against the defendant in 2002. In an amended order dated October 6, 2005, the Supreme Court denied the defendant's motion for summary judgment dismissing the complaint. In an order dated August 18, 2006, the Supreme Court denied the defendant's motion for leave to renew, on both a "procedural and substantive basis." In July 2008 the defendant again moved for summary judgment dismissing the complaint. The plaintiff then separately moved for the admission, pro hac vice, of Florida attorney Antoinette R. Appel to appear on her behalf as co-counsel in this action. The Supreme Court granted the defendant's motion and, in effect, denied the plaintiff's motion as academic.

Generally, successive motions for summary judgment should not be entertained, absent a showing of newly-discovered evidence or other sufficient cause (see Kimber Mfg., Inc. v Hanzus, 56 AD3d 615; Crane v JAB Realty, LLC, 48 AD3d 504; Williams v City of White Plains, 6 AD3d 609; Davidson Metals Corp. v Marlo Dev. Co., 262 AD2d 599). Here, the Supreme Court should not have [*2]entertained the defendant's latest motion for summary judgment dismissing the complaint since the defendant did not submit any newly-discovered evidence, or present other sufficient cause (see Kimber Mfg., Inc. v Hanzus, 56 AD3d 615; Selletti v Liotti, 45 AD3d 669; Williams v City of White Plains, 6 AD3d 609; Davidson Metals Corp. v Marlo Dev. Co., 262 AD2d 599).

Marcantonio v Picozzi, 2010 NY Slip Op 00822 (App. Div., 2nd, 2010)

Accordingly, the Supreme Court properly dismissed the complaint insofar as asserted against Picozzi and the law firm, thus rendering academic that branch of the plaintiffs' cross motion which was to compel those defendants to answer interrogatories. As to the defendants Project Real Estate, Inc., and John McHugh, their response to interrogatories was properly stayed pending determination of their motion for summary judgment (see CPLR 3214[b]).

Williams v D & J School Bus, Inc., 2010 NY Slip Op 00141 (App. Div., 2nd, 2010)

In opposition, the City defendants failed to raise a triable issue of fact as to whether the third-party defendants had any involvement in this matter, merely arguing that their motion was premature, and that a deposition of Scialpi was necessary. While determination of a summary judgment motion may be delayed to allow for further discovery where evidence necessary to oppose the motion is unavailable to the opponent (see CPLR 3212[f]), "[a] determination of summary judgment cannot be avoided by a claimed need for discovery unless some evidentiary basis is offered to suggest that discovery may lead to relevant evidence" (Ruttura & Sons Constr. Co. v Petrocelli Constr., 257 AD2d 614, 615; see Wyllie v District Attorney of County of Kings, 2 AD3d 714, 717). A party's mere hope that further discovery will reveal the existence of a triable issue of fact is insufficient to delay determination of the motion (see Wyllie v District Attorney of County of Kings, 2 AD3d at 717; Weltmann v RWP Group, 232 AD2d 550). Here, as the Supreme Court correctly held, the City defendants failed to provide an evidentiary basis for their assertion that further discovery would lead to additional relevant evidence (see Lambert v Bracco, 18 AD3d 619, 620).

CPLR § 3130

CPLR § 3130 Use of interrogatories

1. Except as otherwise provided herein, after commencement of an action, any party may serve upon any other party written interrogatories. Except in a matrimonial action, a party may not serve written interrogatories on another party and also demand a bill of particulars of the same party pursuant to section 3041. In the case of an action to recover damages for personal injury, injury to property or wrongful death predicated solely on a cause or causes of action for negligence, a party shall not be permitted to serve interrogatories on and conduct a deposition of the same party pursuant to rule 3107 without leave of court.

Nasca v D.M.R. Indus., Inc., 2010 NY Slip Op 01462 (App. Div., 2nd, 2010)

The Supreme Court properly denied that branch of the plaintiff's motion which was to compel the defendant to comply with his demand for disclosure of its tax returns for the year 2000. The plaintiff failed to show that the information contained in the defendant's tax returns was indispensable to his claim and could not be obtained from other sources (see Pugliese v Mondello, 57 AD3d 637, 639-640; Benfeld v Fleming Props., LLC, 44 AD3d 599, 600).

Since the plaintiff had already served the defendant with a demand for a bill of particulars, CPLR 3130(1) precluded the plaintiff from serving the defendant with a set of interrogatories (see Hyman & Gilbert v Greenstein, 138 AD2d 678, 681). Accordingly, the Supreme Court properly denied that branch of the plaintiff's motion which was to compel the defendant to respond to those interrogatories, and properly granted that branch of the defendant's cross motion which was for a protective order with regard to those interrogatories.

Failure to Restore ≠ Failure to Prosecute (it’s a little more complicated) CPLR 3216

Capitol Fire Sprinkler Co., Inc. v Capitale Rest., 2010 NY Slip Op 50222(U) (App. Term, 2nd, 2010)

In July 2003, plaintiff commenced this action in the Supreme Court to recover the principal sum of $50,000 for services rendered to defendant. Issue was joined, and, in November 2004, the case was transferred to the Civil Court pursuant to CPLR 325 (d). A notice of trial was filed, but the case was subsequently marked off the Civil Court calendar in 2005. In February 2008, plaintiff moved to restore the case to the trial calendar, and defendant cross-moved for dismissal of the complaint. By order entered July 10, 2008, the Civil Court stated that the "parties are directed to complete all outstanding discovery within 90 days . . . In all other respects, the motion and cross motion are denied." The instant appeal by defendant ensued.

Inasmuch as more than two years had passed before plaintiff moved to restore the case to the trial calendar, plaintiff was required to demonstrate, inter alia, a reasonable excuse for the delay and the merits of the case (see Sawak v Brown, 20 Misc 3d 136[A], 2008 NY Slip Op 51536[U] [App Term, 2d & 11th Jud Dists 2008]; Portoreal v Fields, 20 Misc 3d 139[A], 2008 NY Slip Op 51574[U] [App Term, 2d & 11th Jud Dists 2008]; LoFredo v CMC Occupational Health Servs., 189 Misc 2d 781 [App Term, 2d & 11th Jud Dists 2001]). Plaintiff argues that it demonstrated a reasonable excuse for the delay since, during the relevant time period, it was attempting to arrange depositions, as evidenced by letters and phone calls. However, the papers plaintiff submitted in support of its motion provided no information as to what specific actions it took between December 2006, when it sent its final letter to defendant's attorney requesting deposition availability dates, and February 2008, when it made the instant motion. Consequently, plaintiff failed to demonstrate a reasonable excuse for the delay, and, thus, its motion should have been denied in its entirety (Sawak v Brown, 20 Misc 3d 136[A], 2008 NY Slip Op 51536[U]).

Defendant cross-moved "for an order dismissing this action with prejudice." Since the [*2]case had been marked off the calendar and was in pre-notice-of-trial status, defendant could only have moved for dismissal, for want of prosecution, pursuant to CPLR 3216 (see e.g. Express Shipping, Ltd. v Gold, 63 AD3d 669, 670 [2009]). A delay in prosecuting an action, however, is not a ground for dismissal of the complaint when the plaintiff has not been served with a 90-day demand to serve and file a notice of trial (see Chase v Scavuzzo, 87 NY2d 228 [1995]; Rosenberg v Rae, 36 AD2d 835 [1971]; see also Bar-El v Key Food Stores Co., Inc., 11 AD3d 420 [2004]). Since defendant did not provide plaintiff with the requisite demand, its cross motion was properly denied (see Rosenberg, 36 AD2d at 835; see also Bar-El, 11 AD3d at 420).

CPLR 3404 is out because it doesn't apply in Civil Court. That leaves 22 NYCRR § 208.14(c). But just because it can't be restored doesn't mean that it can be dismissed with prejudice. At least not under 3216. CPLR 3216, as opposed to 3215, has a notice requirement. Before anything can be dismissed under 3216, its protocols must be satisfied. And even if it was dismissed under 3216, it probably wouldn't be dismissed with prejudice. Going one step further, there would probably be a toll of the SOL, unless the judge made certain findings as required by CPLR 205(a).

Weird. I know.

Intangible Personal Property can be Subject to Attachment under CPLR 6201

Hotel 71 Mezz Lender LLC v Falor, 2010 NY Slip Op 01348 (Ct. App., 2010)

The primary issue before the Court is whether the intangible personal property plaintiff sought to attach, i.e., defendants’ ownership/membership interests in various out-of-state business entities, was subject to attachment under CPLR article 62. We conclude that the issuance of an order of attachment in New York on defendant Guy T. Mitchell, the nondomiciliary garnishee of defendants’ intangible personal property, who voluntarily submitted to personal jurisdiction in New York, was appropriate.

We further hold that Supreme Court did not abuse its discretion in appointing a receiver pursuant to CPLR 5228.

It’s a long decision. I’ll add more later. The bold is mine.

Snow Days and SOL

I received a comment from the no-fault blog from Turkewitz asking whether there was an provision in the CPLR that extends the SOL by a day if today is the last day to file. Almost all of the NYC courts are closed today on account of the snow.

The CPLR does not (See CPLR § 201) have a provision that extends; however, Judiciary Law § 282 does. I found one decision on point: Martin v. J.C. Penney Co., Inc., 275 A.D.2d 910 (App. Div., 4th, 2000). My search was more haphazard than thorough, so feel free to keep on searching. I found it funny that I couldn’t find the decision on the New York Official Reports site, but I found it after a two second search on Google Scholar.

Plaintiffs commenced this negligence action to recover damages for personal injuries sustained by plaintiff Yvonne H. Martin on January 4, 1996 when she allegedly slipped on water in defendant’s store. On January 4, 1999, the date on which the Statute of Limitations for plaintiffs’ action expired, a snowstorm in the City of Buffalo resulted in a travel ban and the closing of the Erie County Clerk’s Office. Plaintiffs did not file their summons and complaint until January 5, 1999. In denying defendant’s motion to dismiss the action as time-barred, Supreme Court determined that the Statute of Limitations was extended by the travel ban and closing of the County Clerk’s office on the last day of the limitations’ period. Defendant contends that the court had no authority to extend the Statute of Limitations. We disagree.

Judiciary Law § 282-a provides that, “[w]henever the last day on which any paper is required to be filed with a clerk of a court * * * expires on a Saturday, Sunday, a public holiday or a day when the office of such clerk is closed for the transaction of business, the time therefor is hereby extended to and including the next business day such office is open for the transaction of business.” Pursuant to County Law § 525(1), the County Clerk is the Clerk of the Supreme Court and County Court within his or her county. In Erie County, the Clerk of the Supreme Court is therefore the Erie County Clerk for the purpose of “filing, recording and depositing of * * * papers in actions” (County Law § 525[2] ). Here, there is no dispute that the Erie County Clerk’s office was closed for business on January 4, 1999 due to a snow emergency. Such emergency closing extended the filing of plaintiffs’ summons and complaint to the next day when the Clerk was open for the transaction of business ( see, Judiciary Law § 282-a; see also, County Law § 206-a [2] ). Plaintiffs filed their summons and complaint the following day, and thus their filing was timely.

There you have it. The bold is mine.

“Website confers personal jurisdiction”

CPLR § 302 Personal jurisdiction by acts of non-domiciliaries
(a) Acts which are the basis of jurisdiction
(1) transacts any business within the state or contracts anywhere to supply goods or services in the state

CPLR R. 3211(a)(8)the court has not jurisdiction of the person of the defendant

The decision is pretty long and I don’t have time to get into the fact, but I think it’s worthwhile to post so you at least know that the decision exists. It’s a good read. I’ll add specifics later.

Grimaldi v Guinn, 2010 NY Slip Op 00926 (App. Div., 2nd, 2010)

Residence of Foreign Corporation: CPLR § 503

CPLR § 503 Venue based on residence

DeMichael v Jaeger, 2010 NY Slip Op 00918 (App. Div., 2nd, 2010)

For venue purposes, the sole residence of a foreign corporation is the county in which its principal office is located, as designated in its application for authority to conduct business filed with the State of New York, or an amendment thereof (see CPLR 503[c]; Business Corporation Law § 102[a][10]; Ashjian v Orion Power Holdings, Inc., 9 AD3d 440; Bailon v Avis Rent A Car, 270 AD2d 439; Collins v Trigen Energy Corp., 210 AD2d 283). Thus, the plaintiff properly placed venue of this action in Nassau County, as that was the county designated by the defendant American Teleradiology Nighthawks, P.C., in its application for authority. The defendant Kingston Hospital failed to sustain its burden of demonstrating that the convenience of nonparty witnesses would be [*2]served by changing venue from Nassau County to Ulster County (see Walsh v Mystic Tank Lines Corp., 51 AD3d 908; Markowitz v Makura, Inc., 29 AD3d 650; Mei Ying Wu v Waldbaum, Inc., 284 AD2d 434; McAdoo v Levinson, 143 AD2d 819).

The bold is mine.

Directed Verdict

Brownrigg v New York City Hous. Auth., 2010 NY Slip Op 00795 (App. Div., 2nd, 2009)

Prior to directing a verdict in favor of one party to an action, a court must determine “whether there [is] any rational basis on which a jury could [find] for [the opposing party], the [opposing party] being entitled to every favorable inference which could reasonably be drawn from the evidence submitted by [it]” (Rhabb v New York City Hous. Auth., 41 NY2d 200, 202; see Pollack v Klein, 39 AD3d 730, 730). In making this determination, a court must not “engage in a weighing of the evidence,” nor may it direct a verdict where “the facts are in dispute, or where different inferences may be drawn or the credibility of witnesses is in question” (Dolitsky v Bay Isle Oil Co., 111 AD2d 366, 366).

Interesting Collateral Estoppel Decision

Sepulveda v Dayal, 2010 NY Slip Op 00782 (App. Div., 1st, 2010)

The record shows that prior to obtaining the medical records indicating which physicians had reviewed the sonograms taken during the pregnancy of plaintiff mother, plaintiffs commenced an action naming Montefiore Medical Center and the 43 radiologists employed at the time of the alleged malpractice. After ascertaining the identity of the four physicians who had interpreted the sonograms, none of whom had been named in the first action, plaintiffs commenced a second action against those four physicians and Montefiore. The defendants in the first action subsequently moved for summary judgment and with plaintiffs failing to oppose, the motion was granted on default and judgment was entered in favor of those defendants. After the defendants moved to dismiss the second action, which was resolved by a stipulation discontinuing it “without prejudice to bringing a new action on behalf of the infant plaintiff,” plaintiffs commenced this action naming the same four physicians, but not Montefiore.

Although leave to amend pleadings should be freely granted in the absence of prejudice or surprise (see generally Fahey v County of Ontario, 44 NY2d 934 [1978]), as the motion court found, the proposed amendment is lacking in merit (see Board of Mgrs. of Gramercy Park Habitat Condominium v Zucker, 190 AD2d 636 [1993]). To determine whether collateral estoppel applies, a two-part test must be satisfied. “First, the identical issue necessarily must have been decided in the prior action and be decisive of the present action, and second, the party to be precluded from relitigating the issue must have had a full and fair opportunity to contest the prior determination” (Kaufman v Eli Lilly & Co., 65 NY2d 449, 455 [1985]).

Defendants have failed to satisfy either prong, since the court in the first action did not decide the ultimate issue of whether the instant defendants were negligent. Furthermore, plaintiffs did not have a full and fair opportunity to litigate their claims. By the time the [*2]defendants in the first action moved for summary judgment, plaintiffs were aware that those defendants had not been involved in their medical treatment and there was no reason to raise the merits of their claims (see e.g. Baxter v Fulton Ice & Cube Co., 106 AD2d 82, 85-86 [1985]; compare Kret v Brookdale Hosp. Med. Ctr., 61 NY2d 861 [1984], affg 93 AD2d 449 [1983]).

Found another.

99 Cents Concepts, Inc. v Queens Broadway, LLC, 2010 NY Slip Op 00824 (App. Div., 2nd, 2010)

Under the doctrine of res judicata, a valid final judgment bars future actions between the same parties on the same cause of action (see Parker v Blauvelt Volunteer Fire Co., 93 NY2d 343, 347; Matter of Reilly v Reid, 45 NY2d 24, 27). As a general rule, “once a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if based upon different theories or seeking a different remedy” (O’Brien v City of Syracuse, 54 NY2d 353, 357; see Parker v Blauvelt Volunteer Fire Co., 93 NY2d at 347). Although the first through sixth causes of action asserted by the plaintiff in this action arise out of the same transaction as its counterclaim in the Civil Court proceeding, the so-ordered stipulation settling the Civil Court proceeding expressly recited that it was without prejudice to the Supreme Court action, and did not dismiss the plaintiff’s counterclaim. Under these circumstances, the so-ordered stipulation was not a final judgment on the merits of the plaintiff’s counterclaim which would be entitled to res judicata effect in this action (see Parker v Blauvelt Volunteer Fire Co., 93 NY2d at 349; City of New York v Caristo Constr. Corp., 62 NY2d 819, 821; Miller Mfg. Co. v Zeiler, 45 NY2d 956, 958; Matter of Coleman v Coleman, 1 AD3d 833, 834; Brandenberg v Primus Assoc., 304 AD2d 694, 695; 1829 Caton Realty v Caton BMT Assoc., 225 AD2d 599; A. Colish, Inc. v Abramson, 178 AD2d 252). Furthermore, the doctrine of collateral estoppel is not applicable here because the issue of whether the plaintiff was entitled to, and deprived of, full possession of the basement of the premises never was actually litigated and decided in the Civil Court proceeding, which was settled without prejudice to this action (see Kaufman v Eli Lilly & Co., 65 NY2d 449, 456-457; Brandenberg v Primus Assoc., 304 AD2d at 695; Singleton Mgt. v Compere, 243 AD2d 213, 217; 1829 Caton Realty v Caton BMT Assoc., 225 AD2d at 599). Accordingly, the Supreme Court should not have granted those branches of the defendant’s motion which were to dismiss the first through sixth causes of action.