3211(e): Standing waived, and other 3211 shenanigans

CPLR R. 3211(e) Number, time and waiver of objections; motion to plead over

1007

1008

JP Morgan Chase Bank, N.A. v Strands Hair Studio, LLC, 2011 NY Slip Op 04424 (App. DIv., 2nd 2011)

Contrary to the third-party defendant's contention, the Supreme Court properly denied that branch of her motion which was for summary judgment dismissing the main complaint on the ground that the plaintiff lacked standing. Although a third-party defendant has the right to assert against the plaintiff "any defenses which the third-party plaintiff has to the plaintiff's claim" (CPLR 1008), here, the third-party defendant failed to raise the issue of the plaintiff's standing in a pre-answer motion to dismiss or as an affirmative defense in her answer. Thus, she waived her right to raise the argument at all subsequent phases of the litigation pursuant to CPLR 3211(e) (see Wells Fargo Bank Minn., N.A. v Perez, 70 AD3d 817, 817-818, cert deniedUS, 131 S Ct 648; Countrywide Home Loans, Inc. v Delphonse, 64 AD3d 624, 625; HSBC Bank, USA v Dammond, 59 AD3d 679, 680; Wells Fargo Bank Minn., N.A. v Mastropaolo, 42 AD3d 239, 241-243; Gilman v Abagnale, 235 AD2d 989, 990).

The Supreme Court also properly denied that branch of the third-party defendant's motion which was for summary judgment dismissing the main complaint on the ground that the plaintiff's service upon the defendant Strands Hair Studio, LLC (hereinafter the LLC) did not comport with Business Corporation Law § 306 (b)(1). Even assuming that the third-party defendant did not waive this objection by failing to raise it in her answer or in a pre-answer motion to dismiss (see CPLR 3211[e]), the court's personal jurisdiction over the LLC is not a "defense[] which the third-party plaintiff has to the plaintiff's claim," and, accordingly, it is not a defense the third-party defendant is entitled to raise here pursuant to CPLR 1008.

The Supreme Court also properly denied that branch of the third-party defendant's motion which was for summary judgment dismissing the third-party complaint. Contrary to the third-party defendant's contention, the third-party plaintiff's claims against her may be asserted pursuant to CPLR 1007. CPLR 1007 "should not be read as allowing recovery solely for claims sounding in strict indemnity" (George Cohen Agency v Donald S. Perlman Agency, 51 NY2d 358, 365). The statute "places no limit . . . upon the legal theories which may be asserted as a basis for the claim" (id. at 365), and "[t]he third-party complaint may be based on a theory of liability different from and independent of the cause of action pleaded against the primary defendant" (Zurich Ins. Co. v White, 129 AD2d 388, 390, citing Garrett v Holiday Inns, 58 NY2d 253, 262-263]).

Shaw v Club Mgrs. Assn. of Am., Inc., 2011 NY Slip Op 04034 (App. Div., 2nd 2011)

However, the Supreme Court erred in dismissing the fifth cause of action alleging defamation. The Supreme Court correctly determined that the alleged statements tend to injure the plaintiffs in their trade, business, or profession (see Wasserman v Haller, 216 AD2d 289, 289-290). Thus, the statements are slander per se and damages are presumed (see Liberman v Gelstein, 80 NY2d 429, 435). The Supreme Court then held that the alleged statements were protected by a qualified privilege. However, the shield provided by a qualified privilege may be dissolved if a plaintiff can demonstrate that a defendant spoke with spite or ill will (common-law malice) or with a high degree of awareness of the statements' probable falsity (constitutional malice) (see Liberman v Gelstein, 80 NY2d at 437-438; Kotowski v Hadley, 38 AD3d 499, 500). Here, the complaint alleged, inter alia, that certain of the individual defendants spoke with knowledge that such statements were false or spoke with reckless disregard for the statements' truth or falsity. "Since . . . the burden does not shift to the nonmoving party on a motion made pursuant to CPLR 3211(a)(7), a plaintiff has no obligation to show evidentiary facts to support [his or her] allegations of malice on a motion to dismiss pursuant to CPLR 3211(a)(7)'" (Sokol v Leader, 74 AD3d 1180, 1182, quoting Kotowski v Hadley, 38 AD3d at 500-501; see Arts4All, Ltd. v Hancock, 5 AD3d 106, 109). Thus, dismissal of the fifth cause of action alleging defamation pursuant to CPLR 3211(a)(7) was not warranted.

Correa v Orient-Express Hotels, Inc., 2011 NY Slip Op 04375 (App. Div., 1st 2011)

Neither the affidavit nor the deposition testimony defendant offered constitutes the type of documentary evidence that may be considered on a motion pursuant to CPLR 3211(a)(1) (see Weil, Gotshal & Manges, LLP v Fashion Boutique of Short Hills, Inc., 10 AD3d 267, 271 [2004]; Berger v Temple Beth-El of Great Neck, 303 AD2d 346, 347 [2003]). The remainder of the evidence does not "conclusively establish[] a defense to the asserted claims as a matter of law" because it does not irrefutably establish that defendant neither owned nor controlled the premises (Leon v Martinez, 84 NY2d 83, 88 [1994]; see Wright v C.H. Martin of White Plains Rd., Inc., 23 AD3d 295, 296 [2005]).

O'Callaghan v Brunelle, 2011 NY Slip Op 04095 (App. Div., 1st 2011)

The documentary evidence in support of the motion, including decisions from the NYSE and SEC, refuted plaintiff's allegations that defendants' failure to call the witness, who consented to the NYSE's Hearing Panel's finding that he engaged in conduct constituting improper trading arrangements and violated various rules, constituted legal malpractice and established a defense as a matter of law warranting dismissal of the complaint (see Minkow v Sanders, __ AD3d __ , 2011 NY Slip Op 02120 [2011]; see also CPLR 3211[a][1]). Contrary to plaintiff's contention, it is apparent from the motion court's decision that it properly treated the instant motion as one to dismiss and not one for summary judgment (compare Sokol v Leader, 74 AD3d 1180 [2010]).

 

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