Month: May 2010

CPLR R. 3212(a) Timing: What happens where the case is stricken from the trial calendar

Rivera v City of New York, 2010 NY Slip Op 03773 (App. Div., 1st, 2010)

Defendant's cross motion for summary judgment, which was made in
response to a motion by plaintiff characterized by the motion court as
one to restore the action to the calendar, should have been denied as
untimely, as defendant failed to show good cause for making the cross
motion more than 120 days after the filing of the note of issue (CPLR
3212[a]; Brill v City of New York, 2 NY3d 648, 652
[2004]). At least where, as here, the 120-day time limit had expired
before the case was struck from the calendar, we reject defendant's
argument that the 120-day limit does not apply to cases that have been
struck from the calendar. We note Brill's express prohibition
against consideration of unexcused, untimely motions no matter how
meritorious or nonprejudicial (id. at 653, especially n 4; see Perini Corp. v City of New York, 16 AD3d 37,
39-40 [2005]).

The bold is mine.

The sad state of CPLR § 2309 and other things.

CPLR § 2309 is a disaster.  The courts are wildly inconsistent in how they treat it.  Some prefer the substance over form approach and others do the opposite.  Not too long ago, the Appellate Term, First Department allowed a party to add a certificate of conformity at the appellate level.  See, Eastern
Star Acupuncture, P.C. v Clarendon Natl. Ins. Co., 2010 NY Slip
Op 50043(U) (App. Term, 1st, 2010).  A few days ago, the Appellate Division, First Department wasn't as understanding. (h/t JT).  In Green v Fairway Operating Corp., 2010 NY Slip Op 03481 (App. Div., 1st, 2010) the defendant's motion for summary judgment was granted on default.  Plaintiff moved to vacate and attached an affidavit from a non-party witness which was sworn in the DR.  The plaintiff's motion was denied and the Appellate Division affirmed.  I think I said this once before, but it remains true, it's an exceptionally silly reason to lose a motion.  JT compares it to russian roulette, which is pretty apt.

The last time I wrote about 2309, I said that it was a dead objection, or something like that.  It appears that, in the first department at least, it is alive and well.  The objection, however, must be made in the papers, otherwise it's waived.  You'll find that most people don't know enough to object.

I'm sure you're thinking, "well, what's the rule in the First Department after Green?"  I have no idea.  I'd be interested to see what the Appellate Term does with Green.  Will it distinguish it or make 2309 a hard rule?

Other issues on my mind:

  • Why is there a split between the Second and First Department as to what is required to show a "reasonable excuse" when attempting to vacate a default?
  • Why do the courts allow a defendant to move to dismiss under CPLR R. 3211(a)(7) when the defendant is not claiming that the plaintiff failed to state a cause of action?  When affidavits and other proofs are attached, the courts change their inquiry from whether plaintiff has stated a cause of action to whether plaintiff has a cause of action (which is different from whether a plaintiff will ultimate be successful with that cause of action).  This, mind you, is different than a court converting it to a motion for summary judgment.  It just doesn't make any damn sense to me.

Late–but not too late–Jury Demand

Rosenbaum v Schlossman, 2010 NY Slip Op 03494 (App. Div., 1st, 2010)

Order, Supreme Court, New York County (Milton A. Tingling, J.),
entered March 30, 2009, which denied defendants' motion to vacate the
note of issue, unanimously affirmed, without costs. Order, same court,
Justice and entry date, which denied defendants' motion to stay a
scheduled nonjury trial of this matter and compel the Clerk to accept a
jury demand, unanimously modified, on the facts, to direct the Clerk to
accept the jury demand nunc pro tunc, and, in view of the interim stay
of trial previously ordered by this Court, the remainder of the appeal
from said order unanimously dismissed as academic, without costs.

Defendants should be permitted to serve and file a late jury
demand given that the lateness, by only five days, was due in part to
the late filing of the note of issue, and also given no intention by
defendants to waive a jury trial, a prompt motion by defendants to be
relieved of their default in timely filing a jury demand, and no
prejudice to plaintiff caused by the late jury demand (see A.S.L.
Enters. v Venus Labs., 264 AD2d 372, 373 [1999]). Defendants' motion
to vacate the note of issue was properly denied where defendants had
received copies of plaintiff's letter to the court requesting the
court's issuance of a written order memorializing a prior oral order
extending the time to file a note of issue, but did not object to the
requested relief or inform [*2]the court,
at that time, of their view that disclosure was incomplete (22 NYCRR
202.21[d]). We have considered and rejected defendants' remaining
contention.

The bold is mine.

Instead of simply writing that the remaining contention is "rejected" wouldn't it be nice if they said what the remaining contention was.

Court of Appeals on the “borrowing statute”–CPLR § 202

 CPLR § 202 Cause of action accruing without the state

Portfolio Recovery Assoc., LLC v King, 2010 NY Slip Op 03470 (Ct. App., 2010)

On April 1, 2005, nearly five years after the assignment and more
than six years after the account was canceled, Portfolio commenced this
action against King, now a resident of New York, asserting causes of
action for breach of contract and account stated. King asserts in his
answer, among other things, that upon application of CPLR 202—this
State's "borrowing statute"—Portfolio's claims are time-barred.
Specifically, King claims that Delaware's three-year statute of
limitations for breach of a credit contract (see 10 Del.C. §
8106) applies and, alternatively, Portfolio's claims are untimely under
this State's six-year breach of contract limitations period (see
CPLR 213[2]).

Portfolio obtained summary judgment on its complaint. Supreme
Court directed that judgment be entered in Portfolio's favor and the
Appellate Division affirmed (55 AD3d 1074). We now reverse.

The Appellate Division properly concluded that the Delaware choice of
law clause did not require the application of the Delaware three-year
statute of limitations to bar Portfolio's claims. Choice of law
provisions typically apply to only substantive issues (see Tanges v
Heidelberg N. Am., 93 NY2d 48, 53 [1999]), and statutes of
limitations are considered "procedural" because they are deemed "'as
pertaining to the remedy rather than the right'" (id. at 54-55
quoting Martin v Dierck Equip. Co., 43 NY2d 583, 588 [1978]).
There being no express intention in the agreement that Delaware's
statute of limitations was to apply to this dispute, the choice of law
provision cannot be read to encompass that limitations period. We
conclude, however, that the Appellate Division should have applied CPLR
202 to Portfolio's claims to determine whether they were timely brought (see
e.g. Global Fin. Corp. v Triarc Corp., 93 NY2d 525, 528 [1999]
["there is a significant difference between a choice-of-law question,
which is a matter of common law, and (a) Statute of Limitations issue,
which is governed by the particular terms of the CPLR"]).

CPLR 202 provides, in relevant part, that "[a]n action based upon
a cause of action accruing without the state cannot be commenced after
the expiration of the time limited by the laws of either the state or
the place without the state where the cause of action accrued."
Therefore, "[w]hen a nonresident sues on a cause of action accruing
outside New York, CPLR 202 requires the cause of action to be timely
under the limitation periods of both New York and [*3]the
jurisdiction where the cause of action accrued" (Triarc, 93 NY2d
at 528). If the claimed injury is an economic one, the cause of action
typically accrues "where the plaintiff resides and sustains the economic
impact of the loss" (id. at 529).

Portfolio, as the assignee of Discover, is not entitled to stand
in a better position than that of its assignor. We must therefore first
ascertain where the cause of action accrued in favor of Discover. Here,
it is evident that the contract causes of action accrued in Delaware,
the place where Discover sustained the economic injury in 1999 when King
allegedly breached the contract. Discover is incorporated in Delaware
and is not a New York resident. Therefore, the borrowing statute applies
and the Delaware three-year statute of limitations governs.

That does not end the inquiry, however, because in determining
whether Portfolio's action would be barred in Delaware, this Court must
"borrow" Delaware's tolling statute to determine whether under Delaware
law Portfolio would have had the benefit of additional time to bring the
action (see GML, Inc. v Cinque & Cinque, P.C., 9 NY3d
949, 951 [2007]). Delaware's tolling statute—Delaware Code §
8117—provides that:

"If at the time when a cause of action accrues against
any person, such person is out of the State, the action may be
commenced, within the time limited therefor in this chapter, after such
person comes into the State in such manner that by reasonable diligence,
such person may be served with process. If, after a cause of action
shall have accrued against any person, such person departs from and
resides or remains out of the State, the time of such person's absence
until such person shall have returned into the State in the manner
provided in this section, shall not be taken as any part of the time
limited for the commencement of the action."

Section 8117
was meant to apply only in a circumstance where the defendant had a
prior connection to Delaware, meaning that the tolling provision
envisioned that there would be some point where the defendant would
return to the state or where the plaintiff could effect service on the
defendant to obtain jurisdiction (see Williams v Congregation Yetev
Lev, 2004 WL 2924490 *7 [SDNY 2004]). Indeed, Delaware's highest
court has held that the literal application of its tolling provision
"would result in the abolition of the defense of statutes of limitation
in actions involving non-residents" (Hurwich v Adams, 155 A2d
591, 593-594 [Del. 1959]).

There is no indication that King ever resided in Delaware, nor is
there any indication from the case law that Delaware intended for its
tolling provision to apply to a nonresident like King. Therefore, we
conclude that Delaware's tolling provision does not extend [*4]the three-year statute of limitations.
Moreover, contrary to Portfolio's contention, it is of no moment that
Portfolio was unable to obtain personal jurisdiction over King in
Delaware; this Court has held that it is not inconsistent to apply CPLR
202 in such a situation (see Insurance Co. of N. Am. v ABB Power
Generation, 91 NY2d 180, 187-188 [1997]).

Applying Delaware's three-year statute of limitation, the instant
action should have been commenced not later than 2002. Because the
contract claims were not brought until 2005, they are time-barred in
Delaware, where the causes of action accrued, and therefore they are
likewise time-barred in New York upon application of the borrowing
statute. This holding is consistent with one of the key policies
underlying CPLR 202, namely, to prevent forum shopping by nonresidents
attempting to take advantage of a more favorable statute of limitations
in this State (see Antone v General Motors Corp., 64 NY2d 20,
27-28 [1984]).

As a final matter, we note that only Portfolio sought summary
judgment below. Absent a cross motion for summary judgment by King, we
are not empowered to now grant that relief (see Stern v Bluestone, 12 NY3d 873, 876
[2009]; Falk v Chittenden, 11 NY3d 73, 78-79 [2008]; Merritt
Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106, 110-111
[1984]).

The bold is mine.