CPLR § 214-a Relation Back

CPLR § 214-a Action for medical, dental or podiatric malpractice to be commenced within two years and six months; exceptions

Alvarado v Beth Israel Med. Ctr., 2009 NY Slip Op 02550 (App. Div., 2nd, 2009)

In order for a claim asserted against a new defendant to relate back
to the date a claim was asserted against another defendant, the
plaintiff must establish that (1) both claims arose out of the same
conduct, transaction, or occurrence, (2) the new party is united in
interest with the original defendant, and by reason of that
relationship, can be charged with notice of the institution of the
action and will not be prejudiced in maintaining his or her defense on
the merits by virtue of the delayed, and otherwise stale, assertion of
those claims against him or her, and (3) the new party knew or should
have known that, but for a mistake by the plaintiff as to the identity
of the proper parties, the action would have been timely commenced
against him or her as well (see Buran v Coupal, 87 NY2d 173, 178; Schiavone v Victory Mem. Hosp., 292 AD2d 365, 365-366; Austin v Interfaith Med. Ctr., 264
AD2d at 703). The "linchpin" of the relation-back doctrine is whether
the new defendant had notice within the applicable limitations period (see Buran v Coupal, 87 NY2d at 180; Shapiro v Good Samaritan Regional Hosp. Med. Ctr., 42 AD3d 443, 444).

Here, the plaintiffs failed to present evidence sufficient to
satisfy the third prong of the relation-back doctrine test. There is no
evidence in the record that Cohen had notice of the pending action
before being subpoenaed to give a deposition as a nonparty witness,
approximately seven years after he allegedly committed the malpractice (see Buran v Coupal, 87 NY2d at 180; Shapiro v Good Samaritan Regional Hosp. Med. Ctr., 42
AD3d at 444). Cohen could have reasonably concluded that the
plaintiffs' failure to sue him within the applicable limitations period
meant that there they had no intent to sue him, and thus, that the
matter had been laid to rest (see Buran v [*3]Coupal, 87 NY2d at 181; Shapiro v Good Samaritan Regional Hosp. Med. Ctr., 42 AD3d at 444; see also Spaulding v Mount Vernon Hosp., 283 AD2d 634, 634-635).

CPLR § 4213 (b)

CPLR § 4213 Decision of the court

(b) Form of decision

Tulley v Nemet Motor, Inc., 2009 NYSlipOp 50526(U) (App. Term.,1st, 2009)

The trial court failed to comply with the specificity requirements of
CPLR 4213(b) in rendering judgment in plaintiff's favor without setting
forth its rationale or the facts essential to its determination.
Inasmuch as this case hinges in large measure upon issues of
credibility, and since it is unclear whether the trial court applied
the proper statutory burdens of proof (see General Business Law § 198-b); Jandreau v LaVigne, 170 AD2d 861 [1991]), a remand for a new trial is the appropriate remedy (see Weckstein v Breitbart, 111 AD2d 6 [1985]).


Brantley v Municipal Credit Union, 2009 NY Slip Op 02256 (App. Div., 1st, 2009)

Respondent never argued before the motion court that petitioner
lacked standing to assert his own claims; it argued only that he lacked
standing to make claims with regard to certain persons who were not
named parties in this proceeding. Having failed to argue in either an
answer or a pre-answer motion to dismiss that petitioner lacked
standing to assert his own claims, respondent waived that defense (see e.g. Dougherty v City of Rye, 63 NY2d 989, 991-992 [1984]; Security Pac. Natl. Bank v Evans, 31 AD3d 278 [2006], appeal dismissed 8 NY3d 837 [2007]).

Similarly, respondent failed to argue that mandamus did not lie
in this proceeding. As respondent itself contends with respect to some
of petitioner's claims, an argument raised for the first time on appeal
should not be considered.

CPLR R. 3216

CPLR R. 3216 Want of prosecution

McDonald v Montefiore Med. Ctr., 2009 NY Slip Op 02249 (App. Div., 1st, 2009)

Order, Supreme Court, Bronx County (Alison Y. Tuitt, J.), entered
October 26, 2007, which granted defendants' motions to dismiss the
complaint for failure to prosecute, and denied plaintiff's cross motion
to vacate or extend the CPLR 3216 notice served by the court,
unanimously affirmed, without costs.

The subject notice (in which the court crossed out the number
90 and inserted the number 120) was issued after the fifth pre-note of
issue conference and sixth pre-note of issue order pertaining to
disclosure. While plaintiff's attorney offered some compelling personal
reasons for the general pre-notice delay, the only specific excuse he
gave, in an affirmation submitted after the 120-day period had already
run, for not being able to meet the 120-day deadline was his office's
relocation during the 120-day period. Such excuse did not demonstrate
good cause for the requested extension of the already extended notice.
While plaintiff contends that defendants were themselves noncompliant
with the prior disclosure orders, and that such noncompliance was
preventing her from filing a note of issue, she had her remedies during
the lengthy period of general delay (CPLR 3124, 3126), and no basis
exists to disturb the motion court's finding that plaintiff's laxity
and delay were "wanton."

CPLR § 504(c) & R. 511(b)

CPLR § 504 Actions against counties, cities, towns, villages, school districts and district corporations

CPLR R. 511 Change of place of trial

Smith v City of New York, 2009 NY Slip Op 02238 (App. Div., 1st, 2009)

The action was properly transferred to Queens County, where
plaintiff was arrested, initially incarcerated and prosecuted. CPLR
504(3), which provides that the place of trial in an action against the
City shall be in the county within the City where the cause of action
arose, "implements the public policy of giving all due consideration to
the convenience of public officials, and should be complied with absent
compelling countervailing circumstances" (Rose v Grow-Perini,
271 AD2d 210 [2000]). That defendants made their motion to change venue
approximately two months after serving their demand for a change of
venue with their answer, in noncompliance with the statutory 15-day
time limit in CPLR 511(b), is not so compelling a circumstance as to
override CPLR 504(3). We also reject plaintiff's argument that Bronx
County is a proper venue by reason of his detention for slightly more
than a day at Rikers Island, in the Bronx, after his arrest and

CPLR R. 5015(a)

CPLR R. 5015 Relief from judgment or order

Sabre, Inc. v Paras Exims, 2009 NY Slip Op 02299 (App. Div., 1st, 2009)

A court is expressly authorized to vacate judgment "upon such terms as
may be just" (CPLR 5015[a]), possessing "an inherent power, not limited
by statute, to relieve the party from a judgment or order entered on
default" (Town of Greenburgh v Schroer, 55 AD2d 602 [1976]). Such terms may include conditioning that a bond be posted in the amount of all or part of the judgment (see Rawson v Austin,
49 AD2d 803 [1975]). The court did not improvidently exercise its
discretion in ordering that the money in defendant's bank account,
which had been levied upon and held in escrow by plaintiff's attorney,
be posted as security pending trial on the merits.

CPLR R. 3016

CPLR R. 3016 Particularity in specific actions

Coast Equities, LLC v JCC Ventures, Inc., 2009 NY Slip Op 02288 (App. Div., 1st, 2009)

Nor does it avail defendants to argue that the lease was induced by
fraud, assuming that any fraud by plaintiff's predecessor can be
imputed to plaintiff, where there is no evidence of the circumstances
surrounding the fraud (CPLR 3016[b]) — there is only an
attorneys' affirmation, a verified answer conclusorily alleging fraud,
and the August 2005 DOB notice (see Zuckerman v City of [*2]New York, 49 NY2d 557, 562-563 [1980]).

CPLR § 3017

CPLR § 3017. Demand for relief

Schwartz v Miltz, 2009 NY Slip Op 02348 (App. Div., 2nd, 2009)

Following a nonjury trial, the Supreme Court erred in determining that
it could not consider whether an award of equitable relief to the
plaintiff was appropriate (see CPLR 3017). Accordingly, the
matter must be remitted to the Supreme Court, Nassau County, to
consider the issue of equitable relief.

CPLR R. 3216

CPLR R. 3216 Want of prosecution

Rose v Aziz, 2009 NY Slip Op 02346 (App. Div., 2nd, 2009)

It is well settled that CPLR 3216 permits a court to dismiss an
action for want of prosecution only after the court or the defendant
has served the plaintiff with a written notice demanding that the
plaintiff resume prosecution of the action and serve and file a note of
issue within 90 days after receipt of the demand, and also stating that
the failure to comply with the demand will serve as the basis for a
motion to dismiss the action. Since CPLR 3216 is a legislative creation
and not part of a court's inherent power (see Airmont Homes v Town of Ramapo, 69 NY2d 901, 902; Cohn v Borchard Affiliations,
25 NY2d 237, 248), the failure to serve a written notice that conforms
to the provisions of CPLR 3216 is the failure of a condition precedent
to dismissal of the action (see Airmont Homes v Town of Ramapo, 69 NY2d at 902; Harrison v Good Samaritan Hosp. Med. Ctr., 43 AD3d 996; Schuering v Stella, 243 AD2d 623; Ameropan Realty Corp. v Rangeley Lakes Corp., 222 AD2d 631, 632).

The appellant's notice, dated
July 31, 2007, demanding that the plaintiffs serve and file a note of
issue cannot be deemed a notice pursuant to CPLR 3216 because it failed
to notify the plaintiffs that they were "to resume prosecution of the
action and to serve and file a note of issue within ninety days after
receipt of such demand" (CPLR 3216[b][3]). Since a proper notice was
not received by the plaintiffs prior to the appellant's motion, the
Supreme Court was not authorized to dismiss the complaint insofar as
asserted against the appellant pursuant to CPLR 3216 (see Harrison v Good Samaritan Hosp. Med. Ctr., 43 AD3d 996; Schuering v Stella, 243 AD2d 623; Ameropan Realty Corp. v Rangeley Lakes Corp., 222 AD2d at 632).

CPLR § 3101(d)

CPLR § 3101 Scope of disclosure

(d) Trial preparation

Howard v Kennedy, 2009 NY Slip Op 02326 (App. Div., 2nd, 2009)

"Summary judgment may not be awarded in a medical malpractice action
where the parties adduce conflicting opinions of medical experts" (Shields v Baktidy, 11
AD3d at 672). Accordingly, the Supreme Court correctly denied the
appellants' motions for summary judgment dismissing the complaint
insofar as asserted against them.

Contrary to the appellants'
contention, the Supreme Court did not err in considering the affidavit
of the plaintiffs' expert, despite the plaintiffs' alleged failure to
comply with CPLR 3101(d)(1). The Supreme Court noted that there was a
"factual dispute" as to whether the plaintiffs had in fact complied,
and its decision to consider the affidavit solely for purposes of
summary judgment was a provident exercise of discretion (see Simpson v Tenore & Guglielmo, 287 AD2d 613, 613; cf. Construction by Singletree, Inc. v Lowe, 55 AD3d 861).