The CPLR R. 3211 Roundup: It’s going to be loooong.

Because I can't let all of these decisions keep on piling up, I'm doing a 3211 dump.  This will probably be followed by a 300's dump, and maybe a 3212 dump.

There is a lot here, but it's worth skimming.  Most of the cases related to improper service or conversion (3211–>3212).

Garner
v China Natural Gas, Inc.
,
2010 NY Slip Op 02095 (App. Div.,
2nd, 2010)

Although the defendants' motion was
made pursuant to CPLR 3211, the
Supreme Court, in effect, converted that branch of the motion which was
to dismiss the cause of action alleging breach of contract into a motion
for summary judgment pursuant to CPLR 3212. This was error
(see
Mihlovan v Grozavu
, 72 NY2d 506; Bowes v Healy, 40 AD3d 566).
Thus, this Court will apply to the entire complaint the standards
applicable to a motion to dismiss pursuant to CPLR 3211
(see
Neurological Serv. of Queens, P.C. v Farmingville Family Med. Care, PLLC
,
63 AD3d 703, 704).

In assessing a motion to dismiss made
pursuant to CPLR
3211(a)(7), the facts pleaded are presumed to be true and are accorded
every favorable inference
(see Riback v Margulis, 43 AD3d
1023).
However, bare legal conclusions, as well as factual claims flatly
contradicted by the record, are not entitled to any such consideration (id.).

He-Duan Zheng v American Friends of the Mar Thoma Syrian Church
of Malabar, Inc.
,
67 AD3d 639 (App. Div., 2nd, 2009)

The defendant Mar Thoma Church (hereinafter the Church) alleged that
the plaintiff failed to
obtain leave of court prior to serving a supplemental summons and
amended complaint naming it
as a defendant in this action (see CPLR 1003). However, the
failure to obtain prior leave
of court is a waivable defect, and is not fatal in all instances
(see
Gross v BFH Co.,
151
AD2d 452 [1989]; see also Tarallo v Gottesman, 204 AD2d 303
[1994]; Santopolo v
Turner Constr. Co.,
181 AD2d 429 [1992]; cf. Public Adm'r of Kings County v McBride, 15
AD3d 558

[2005]).

In this case, the Church failed to raise its defense of improper
joinder in a timely, pre-answer
motion to dismiss the complaint, and also failed to assert such defense
in its answer.
Accordingly, it waived the defense (see CPLR 3211 [a] [8]; [e]).

The defense that the
Church did raise, that the court lacked jurisdiction over it, "by reason
of the manner in which the
summons was served," implicates the distinct personal jurisdictional
defense of improper service
of process, and was insufficiently specific to place the plaintiff on
notice that the Church was
complaining of improper joinder
(see McDaniel v Clarkstown Cent.
Dist. No. 1,
83
AD2d 624, 625 [1981]).

In any event, the Church waived its improper joinder defense by
its conduct in [*2]attending and
participating in a preliminary conference setting forth
a schedule for discovery, and in waiting until after the applicable
statute of limitations had
expired prior to making its motion to dismiss
(see Tarallo v
Gottesman,
204 AD2d 303
[1994]; Santopolo v Turner Constr. Co., 181 AD2d 429 [1992]; Gross
v BFH Co.,
151 AD2d 452 [1989]). Moreover, the Church cannot claim surprise or
prejudice due to the
plaintiff's delay in seeking leave to add it as a defendant in light of
the statements made by its
Treasurer to the investigators for its insurance carrier indicating that
the Church was aware of the
subject accident on the very day that it occurred.

Pistolese v William Floyd Union Free Dist., 69 AD3d 825 (App. Div., 2nd, 2010)

In late June 2008, on the last day of the school year, the infant
plaintiff allegedly was
assaulted by other youths, as he walked home from school with friends
rather than ride a school
bus. The incident allegedly occurred along Montauk Highway, some 30
minutes after the infant
plaintiff left the school grounds. Although this was a pre-answer
motion, under the facts of this
case, the Supreme Court should have treated it as one for summary
judgment pursuant to CPLR
3211 (c) since the defendant not only requested such treatment, but both
the defendant and the
plaintiffs deliberately charted a summary judgment course
(see
Mihlovan v Grozavu
, 72
NY2d 506, 508 [1988]; see generally
McNamee Constr. Corp. v City of New Rochelle
, 29 AD3d 544
, 545
[2006]).

While schools are under a duty to adequately supervise the
students in their charge, they are
not insurers of the safety of their students (see Vernali v Harrison Cent. School Dist., 51
AD3d 782
, 783
[2008]; Maldonado v Tuckahoe Union
Free School Dist
., 30 AD3d 567
, 568 [2006]; Chalen v Glen Cove School Dist., 29 AD3d 508,
509 [2006]). "[A]
school's duty is coextensive with, and concomitant with, its physical
custody and control over a
child" (Stagg v City of New York,
39 AD3d 533
, 534 [2007]) and its "custodial duty ceases once the
student has passed out of
its orbit of authority and the parent is perfectly free to reassume
control over the child's
protection" (Vernali v Harrison Cent. School Dist., 51 AD3d at
783; see Pratt v
Robinson
, 39 NY2d 554, 560 [1976]).
[*2]

Here, the incident occurred at a
time when the injured
plaintiff was no longer in the defendant's custody or under its control
and was, thus, outside of
the orbit of its authority. Accordingly, the defendant demonstrated its
prima facie entitlement to
judgment as a matter of law (see
Fotiadis v City of New York
, 49 AD3d 499
[2008]; Stagg v City of New York, 39 AD3d 533, 534
[2007]; Morning v Riverhead Cent. School
Dist.
, 27 AD3d 435
, 436 [2006]; Ramo v Serrano, 301 AD2d
640, 641 [2003]).

In opposition, the plaintiffs failed to raise a triable issue of
fact. They also failed to articulate
any nonspeculative basis to believe that discovery might yield evidence
warranting a different
result
(see Stagg v City of New York, 39 AD3d at 534).

Frydman v Fidelity Natl. Tit. Ins. Co., 68 AD3d 622 (App. Div., 1st, 2009)

We have
considered plaintiffs' argument that the court improperly converted a
breach of contract action
into a declaratory judgment action and, without CPLR 3211 (c) notice,
converted a motion by
[*2]defendant to dismiss the complaint into
a motion for
summary judgment, and find it to be unavailing
(see CPLR 2002;
Shah v Shah
,
215 AD2d 287, 289 [1995]). This case contains no factual disputes, and
by submitting before the
Supreme Court every relevant piece of documentary evidence, along with
affidavits of
representatives of both parties discussing the application of such
evidence, the parties have
charted a course for summary judgment.
Accordingly, the court properly
entered a declaratory
judgment in favor of defendants.

Deutsche Bank Natl. Trust Co. v Jackson, 68 AD3d 805 (App. Div., 2nd, 2009)

Having failed to interpose an answer which asserted the defense of lack
of standing or to file
a timely pre-answer motion raising that defense, the defendant St. Clair
Jackson waived such
defense pursuant to CPLR 3211 (e) (see
HSBC Bank, USA v Dammond
, 59 AD3d 679
[2009]; Wells Fargo Bank Minn., N.A. v
Mastropaolo
, 42 AD3d 239
[2007]). Moreover, contrary to
Jackson's contention, under
the circumstances of this case, there was no need to conduct a hearing
prior to the issuance of the
referee's report (see LBV Props. v Greenport Dev. Co., 188 AD2d
588 [1992]).

Castillo v Star Leasing Co., 69 AD3d 551 (App. Div., 2nd, 2010)

Ordered that the order is reversed insofar as appealed from, on the
law, with costs, that
branch of the motion of the defendant Star Leasing Company which was
pursuant to CPLR 3211
(a) (8) to dismiss the complaint insofar as asserted against it for lack
of personal jurisdiction is
denied, without prejudice to renewal upon the completion of discovery on
the issue of whether
personal jurisdiction may be established over that defendant
, so much of
the order as, in effect,
denied, as academic, that branch of the motion of the defendant Star
Leasing Company which
was to dismiss the complaint insofar as asserted against it on the
ground of improper service of
process, is vacated, and the matter is remitted to the Supreme Court,
Queens County, for a
determination on the merits of that branch of the motion.

As the party seeking to assert personal jurisdiction, the
plaintiff bears the burden of proof on
this issue
(see Shore Pharm. Providers,
Inc. v Oakwood Care Ctr., Inc.
, 65 AD3d 623
, 624 [2009]; Brinkmann v Adrian Carriers, Inc., 29
AD3d 615
, 616 [2006]; Ying Jun
Chen v Lei Shi
, 19 AD3d 407
[2005]). However, "in opposing a
motion to dismiss
pursuant to CPLR 3211 (a) (8) on the ground that discovery on the issue
of personal jurisdiction
is necessary, plaintiffs need not make a prima facie showing of
jurisdiction, but instead must
only set forth 'a sufficient start, and show[ ] their position not to be
frivolous' "
(Shore Pharm.
Providers, Inc. v Oakwood Care Ctr., Inc.
, 65 AD3d at 624, quoting Peterson
v Spartan
Indus.
, 33 NY2d 463, 467 [1974]). "[T]he plaintiffs need only
demonstrate that facts 'may
exist' to exercise personal jurisdiction over the defendant"
(Ying
Jun Chen v Lei Shi
, 19
AD3d at 408, quoting Peterson v Spartan Indus., 33 NY2d at 467; see
Brinkmann v
Adrian Carriers
, 29 AD3d at 616).

Here, the plaintiff established that facts "may exist" to
exercise personal jurisdiction [*2]over the
defendant Star Leasing Company (hereinafter Star
Leasing), and made a "sufficient start" to warrant further disclosure on
the issue of whether
personal jurisdiction may be established over Star Leasing (Peterson v
Spartan Indus.
, 33
NY2d at 467). Indeed, the subject lease shows that it was entered into
between Star Leasing and
a customer listed as having a New York address. Accordingly, the Supreme
Court should have
denied that branch of Star Leasing's motion which was pursuant to CPLR
3211 (a) (8) to dismiss
the complaint insofar as asserted against it for lack of personal
jurisdiction, without prejudice to
renewal upon the completion of discovery on the issue of whether
personal jurisdiction may be
established over Star Leasing.

Henriquez v Inserra Supermarkets, Inc., 68 AD3d 927 (App. Div., 2nd, 2009)

On December 7, 2004 the plaintiff Minerva Henriquez allegedly was
injured when she
slipped and fell in the parking lot of a shopping center located in West
Haverstraw. The
shopping center was managed by an entity known as Paragon Management
Group, LLC
(hereinafter the appellant). On December 6, 2007, one day before the
expiration of the applicable
statute of limitations (see CPLR 214 [5]), the plaintiffs filed a
summons and complaint in
the Rockland County Clerk's office naming Paragon Management Group,
Inc., as a defendant.
The plaintiffs attempted to serve the appellant by delivering the
summons and complaint, which
misstated the name of the appellant, to the Secretary of State (see Business
Corporation
Law § 306 [b]).

In support of its motion pursuant to CPLR 3211 (a) (8) to dismiss
the complaint insofar as
asserted against it for lack of personal jurisdiction, the appellant's
principal averred that the
appellant had not received a copy of the summons and complaint, and its
attorney argued that the
defendant Paragon Management Group, Inc., a domestic corporation
designating the Secretary of
[*2]State as its agent for service of
process, had presumably
received the summons and complaint. Thereafter, the plaintiffs
cross-moved, pursuant to CPLR
306-b, for leave to extend their time to serve a summons and complaint
upon the appellant,
conceding that the wrong corporate entity had been served.
Since this
action was not timely
commenced against the appellant, the Supreme Court lacked the authority
to extend the
plaintiffs' time to serve the appellant pursuant to CPLR 306-b
(see
Maldonado v Maryland
Rail Commuter Serv. Admin.,
91 NY2d 467, 470, 472 [1998]; Kinder v
Braunius,
63 AD3d 885, 887 [2009]; Ross v Lan Chile Airlines, 14 AD3d
602, 603 [2005]).
Furthermore, because the appellant was never served with process, the
Supreme Court lacked
personal jurisdiction over it
(see Kinder v Braunius, 63 AD3d at
886; Ross v Lan
Chile Airlines,
14 AD3d at 603-604; Pereira v Oliver's Rest., 260
AD2d 358, 359
[1999]). Accordingly, the appellant's motion to dismiss the complaint
insofar as asserted against
it for lack of personal jurisdiction should have been granted, the
plaintiffs' cross motion for leave
to extend the time to serve a summons and complaint upon the appellant
should have been
denied, and the caption should not have been deemed amended.

Lombay v Padilla, 2010 NY Slip Op 01623 (App. Div., 2nd, 2010)

Upon excusing the defendants' default and vacating the
judgment entered thereon, the Supreme Court found that the service upon
both Padilla and the corporation was improper, and granted that branch
of the defendants' cross motion which was, in effect, to dismiss the
complaint. We affirm.

With respect to the attempted service upon Padilla, the
plaintiff failed to establish that Franco exercised "due diligence" in
trying to effectuate service pursuant to CPLR 308(1) or (2) before
service by the "affix and mail" method was employed (see CPLR
308[4]
; Krisilas v Mount Sinai Hosp., 63 AD3d 887,
888; County of Nassau v Long, 35 AD3d 787,
787-788; County of Nassau v Letosky, 34 AD3d 414, 415;
O'Connell v Post, 27 AD3d 630, 630-631).
Service was also improper upon Padilla for the additional reason that
the summons and complaint were not affixed to a door that led to
Padilla's apartment
(see Ariowitsch v Johnson, 114 AD2d 184,
185-186; Evans v Sedgwick, 66 AD2d 700; cf. Marrero v Wolffe, 60
AD2d 596).

With respect to the corporation, it is undisputed that this
defendant was misnamed on the summons and complaint (see Guarino v
West-Put Contr. Co.,
289 AD2d 290). Moreover, service was not made
upon an "officer, director, managing or general agent, or cashier or
assistant cashier or to any other agent authorized by appointment or by
law to receive service" (CPLR 311[a][1]). Contrary to the plaintiff's
contention, the corporation did nothing to cloak "Joe Castro" with
apparent authority to accept service on its behalf
(see Global Connect Strategic Voice of Broadcasting,
Corp. v Oxford Collection Agency, Inc.,
50 AD3d 737
, 737-738; Martinez
v Church of St. Gregory,
261 AD2d 179, 180; Ainbinder v R.C.R.
Contr.,
204 AD2d 582, 583).

Pearson v 1296 Pac. St. Assoc., Inc., 67 AD3d 659 (App. Div., 2nd, 2009)

Contrary to the plaintiff's contention, the Supreme Court properly
granted those branches of
the motion of the defendant 1296 Pacific, LLC (hereinafter 1296
Pacific), which were pursuant
to CPLR 5015 (a) (4) to vacate the judgment entered upon that
defendant's default in answering
the complaint and, inter alia, pursuant to CPLR 3211 (a) (8) to dismiss
the complaint insofar as
asserted against it for lack of personal jurisdiction. "The plaintiff
bears the ultimate burden of
proving by a preponderance of the evidence that jurisdiction over the
defendant was obtained by
proper service of process"
(Bankers Trust Co. of Cal. v Tsoukas,
303 AD2d 343, 343
[2003]; see Anderson v GHI Auto
Serv., Inc.
, 45 AD3d 512
, 513 [2007]). Here, there is no
affidavit of service or other
proof in the record on appeal to establish that the plaintiff effected
proper service of process
upon 1296 Pacific
(see Munoz v
Reyes
, 40 AD3d 1059
[2007]). In the absence of proper service of
process, the resulting
default judgment entered against 1296 Pacific was a nullity (see Ruffin v Lion Corp., 63 AD3d 814, 816
[2009]; Steele v
Hempstead Pub Taxi
, 305 AD2d 401, 402 [2003]), and the complaint was
properly
dismissed insofar as asserted against that defendant (see CPLR
3211 [a] [8]).

Mercado v City of New York, 68 AD3d 730 (App. Div., 2nd, 2009)

The plaintiff commenced three separate actions against, among others,
the appellant
, under
identical complaints, to recover damages for personal injuries resulting
from a slip and fall
accident on the sidewalk abutting the appellant's premises. The second
action was later
discontinued. The defendant Alex Pierre moved, inter alia, to dismiss
the complaint in the instant
action, which was the third action, insofar as asserted against him
pursuant to CPLR 3211 (a) (4)
based on the pendency of the first action, and separately moved to
dismiss that complaint insofar
as asserted against him pursuant to CPLR 3211 (a) (4) based on the
pendency of the second
action at the time the third action was commenced. The Supreme Court
denied that branch of the
appellant's motion, and the appellant's separate motion, and dismissed
the first action. We affirm.

CPLR 3211 (a) (4) permits the dismissal of a cause of action
where "there is another action
pending between the same parties for the same cause of action in a court
of any state or the
United States; the court need not dismiss upon this ground but may make
such order as justice
requires" (see Moreo v Regan, 140 AD2d 313, 314 [1988]). "[W]hen
two actions for the
same relief are pending, it is within the court's discretion to dismiss a
prior pending action
instead of dismissing the later action pursuant to CPLR 3211 (a) (4)" (Great
W. Bank v
Terio,
200 AD2d 608, 609 [1994], citing Dunn v Dunn, 86 AD2d
772 [1982];
see Siegel, Supplementary Practice Commentaries, McKinney's Cons
Law of NY, Book
7B, CPLR C3211:18). Here, the Supreme Court providently exercised its
discretion in denying
that branch [*2]of the appellant's motion
which was to dismiss
the complaint insofar as asserted against him pursuant to CPLR 3211 (a)
(4), and the appellant's
separate motion for the same relief (see Moreo v Regan, 140 AD2d
at 314; Dashew v
Cantor,
85 AD2d 619 [1981]; Ferrandino v Cartelli, 12 AD2d
604 [1960]; Siegel,
Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR
C3211:16;
Weinstein-Korn-Miller, NY Civ Prac ¶ 3211.20).

The bold is mine.

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