CPLR R. 3212(a). 120 day rule – the Court of Appeals chimes in

CPLR R. 3212 Motion for summary judgment.
(a) Time; kind of action.

Crawford v Liz Claiborne, Inc.
2008 NY Slip Op 07989 (Court of Appeals)

Not too long ago I referred to Matt Lerner's post regarding a case set to be argued before the Court of Appeals where the issue involved CPLR R. 3212(a), otherwise known as the 120 day rule.  Here, I'll refresh your recollection (I know, I know):

In Crawford, the
parties entered into a scheduling order in New York County.  The
outside deadline to file summary judgment motions was pursuant to the
local rules.  The local rules provide that movants have an outside
deadline of 60 days after the filing of the note of issue, rather than
the 120-day deadline.

The defendant unfortunately
overlooked the local rules and, upon realizing the oversight, served
and filed its summary judgment motion a few days after the 60-day
deadline.  The trial court considered the motion, even though the
motion was beyond the 60-day deadline, and dismissed the complaint.
The Appellate Division, First Department reversed the Decision and Order, holding that an oversight regarding the court rules did not constitute "good cause" under Brill and CPLR 3212.  Justice Tom and Williams dissented.

Today, with Crawford v Liz Claiborne, Inc.
2008 NY Slip Op 07989, we finally have the Court of Appeals decision.  It's kind of a letdown though.  I had it built up in my head as something amazing.  Instead, it wound of being something interesting.  Here it is, in relevant part.

On September 24, 2004, plaintiff Craig Crawford brought a Human
Rights Law action in Supreme Court, New York County, against his
employer, Liz Claiborne, Inc., and other [*2]parties
alleging discrimination based on sexual orientation. On April 11, 2005,
the IAS Judge issued a preliminary conference order ("PCO") directing
that dispositive motions be made "per local rule."

At the time of the issuance of the PCO, Rule 17 of the Rules of
the Justices of the Supreme Court, Civil Branch, New York County
("Local Rules") provided that
"[u]nless specified otherwise in a particular case, pursuant to
CPLR 3212(a) all motions for summary judgment must be made no later
than 60 days after the filing of the note of issue."
The IAS Judge had individual part rules in addition to the Local
Rules, but at the time the PCO was issued had no individual part rule
regarding summary judgment motions.

On April 17, 2006, before the note of issue was filed, the Local Rules were amended, including an amended Rule 17 providing that
"[u]nless otherwise provided in a particular case in the
preliminary conference order or other directive of the Justice
assigned, a motion for summary judgment shall be made no later than 120
days after the filing of the note of issue, except with leave of court
for good cause shown."
Around the same time, the IAS Judge modified her individual part
rules adding the language "[a]bsent court order, post note of issue
dispositive motions shall be made within 60 days thereof." Thus, when
the instant note of issue was filed on May 15, 2006, the Local Rules
differed from the IAS Judge's individual part rules regarding the
deadline for filing a summary judgment motion. Under the IAS Judge's
individual part rules, a motion for summary judgment would be due on
July 17, 2006, whereas the parties would have 60 additional days under
the amended Local Rules.

Defendants' motion for summary judgment was made on July 19,
2006. On July 20, 2006, plaintiff moved by order to show cause to
strike defendants' motion as untimely. The IAS Judge denied the
application and instructed plaintiff to raise the issue of timeliness
in his response to the summary judgment motion. Thereafter, plaintiff
opposed the motion solely on the ground of untimeliness without
addressing the merits. At oral argument on September 18, 2006, the IAS
Judge determined that the motion was untimely but found that defendants
showed "good cause" for the delay in filing the motion
. In that the
motion was otherwise unopposed on the merits, the IAS Judge granted
summary judgment for defendants.

Relying on Brill v City of New York (2 NY3d 648
[2004]), the Appellate Division, in a 3-2 decision, reversed,
reinstated the complaint, and remanded the case to the Supreme Court
(45 AD3d 284, 287 [1st Dept 2007]). Defendants appeal to this Court by
leave of the Appellate Division on a certified question
.

We hold that defendants' motion for summary judgment, made 62 days after the [*3]filing of the note of issue, was timely and that Brill
is inapplicable to this case
. At the time the PCO was entered, the IAS
Judge had no individual part rule; thus, "per local rule" could only
have referred to the Local Rules of Supreme Court, New York County. In
that the 120-day amended Local Rule was in effect at the time the note
of issue was filed, defendants' motion was actually timely
.

Along with Crawford, another Court of Appeals decision that mentioned Brill came out today: Farkas v Farkas, 2008 NY Slip Op 07988.

CPLR R. 3211(a)(1), CPLR R. 3211(a)(2), CPLR R. 327, and a forum selection clause

CPLR R. 3211 Motion to dismiss

CPLR R. 3211(a)(1) a defense is founded upon documentary evidence
CPLR R. 3211(a)(2) the court has not jurisdiction of the subject matter of the cause of action
CPLR R. 327 Inconvenient forum

Lischinskaya v Carnival Corp., 2008 NY Slip Op 07875 (App. Div., 2d)

While we thus find that the forum selection clause upon which
Carnival relies does not contravene federal law, we nevertheless
conclude that the Supreme Court was incorrect in holding that
enforcement of that clause deprived it of subject matter jurisdiction
.
"A court lacks subject matter jurisdiction when it lacks the competence
to adjudicate a particular kind of controversy in the first place" (Wells Fargo Bank Minn., N.A. v Mastropaolo, 42 AD3d 239, 243). The competence of the Supreme Court to adjudicate maritime tort cases has not been questioned (see e.g. Mulhern v Manhasset Bay Yacht Club, 43 AD3d 425; Ayala v S.S. Fortaleza, 40 AD3d 440; Hayes v City of New York, 34 AD3d 208; Smith v Lone Star Indus., 1 AD3d 860).
Rather, the defendant's argument here is that the jurisdiction of the
court has been divested by a term of the contract between the parties.
That argument has been rejected, for good reason, as "hardly more than
a vestigial legal fiction" (M/S Bremen v Zapata Off-Shore Co., 407 US at 12).

"Subject matter jurisdiction . . . is not dependent upon the
state of facts which may appear in a particular case, arising, or which
is claimed to have arisen, under that general question" (Thrasher v United States Liab. Ins. Co., 19 NY2d 159, 166, quoting Hunt v Hunt, 72 NY 217, 229). As "a court of original, unlimited and unqualified jurisdiction" (Matter of Fry v Village of Tarrytown, 89 NY2d 714, 718, quoting Kagen v Kagen, 21 NY2d 532, 537; see Lacks v Lacks, 41 NY2d 71, 75), the Supreme Court of the State of New York cannot be divested of its jurisdiction even by the Legislature (see Pollicina v Misericordia Hosp. Med. Ctr., 82 NY2d 332, 339). It is axiomatic that a court cannot be divested of its subject matter jurisdiction by a contract (see Wm. H. Muller & Co. v Swedish American Line Ltd., 224 F2d 806, 808, cert denied 350 US 903; Sliosberg v New York Life Ins. Co., 217
App Div 685, 688-689). Thus, while the forum selection clause at issue
here may be enforceable as a term of the contract between the parties,
it does not affect the jurisdiction of the Supreme Court (see LFC Lessors, Inc. v Pacific Sewer Maintenance Corp., 739 F2d 4, 6-7; Central Contracting Co. v Maryland Cas. Co., 367 F2d 341, 345).

We recognize that there is an ongoing debate in the federal
courts as to the nature of a dismissal pursuant to a contractual forum
selection clause
(see Asoma Corp. v SK Shipping Co., Ltd., 467 F3d 817, 822; New Moon Shipping Co., Ltd. v MAN B & W Diesel AG, 121 F3d 24, 28; Licensed Practical Nurses, Technicians and Health Care Workers of New York, Inc. v Ulysses Cruises, Inc., 131
F Supp 2d 393, 402-409) and that we have, in the past, affirmed such
dismissals for lack of subject matter jurisdiction, pursuant to CPLR
3211(a)(2)
(see LSPA Enter., Inc. v Jani-King of N.Y., Inc., 31 AD3d 394; Fleet Capital Leasing/Global Vendor Fin. v Angiuli Motors, Inc., 15 AD3d 535).
These two cases should no longer be followed in that regard. As a term
of the contract between the parties, however, a contractual forum
selection clause is documentary evidence
(see Trataros Constr., Inc. v New York City Hous. Auth., 34 AD3d 451, 452; Holiday Mgt. Assoc. v New York Inst. of Tech., 149 AD2d 462, 465; Siegel, NY Prac § 259 [4th ed]; see also 150 Broadway N.Y. Assoc., L.P. v Bodner, 14 AD3d 1) that may provide a proper basis for dismissal pursuant to CPLR 3211(a)(1) (see Boss v American Express Fin. Advisors, Inc., 6 NY3d 242).

Since the Supreme Court was not without subject matter
jurisdiction of the action by virtue of the enforcement of the
contractual forum selection clause, it was not foreclosed from
considering the availability, upon dismissing the complaint, of
granting relief to the plaintiff pursuant to CPLR 327. Nevertheless, we
affirm the Supreme Court's denial of the plaintiff's request for such
relief, on a different ground
.

CPLR 327 articulates the common-law doctrine of forum non conveniens (see Islamic [*5]Republic of Iran v Pahlavi, 62 NY2d 474, 478, cert denied 469
US 1108; Alexander, Practice Commentaries, McKinneys Cons Laws of NY,
Book 7B, C327:1 [2001 ed]). It permits a court, in its discretion, to
impose "any conditions that may be just" when dismissing an action on
the ground that "in the interest of substantial justice the action
should be heard in another forum" (CPLR 327; see Demenus v Sylvester, 146 AD2d 668).

Here, however, the dismissal is not discretionary, but is the
necessary consequence of enforcing the contract between the parties. As
a result, considerations such as the impact of the dismissal on the
plaintiff and whether fatality to the plaintiff's claims can be
avoided, which are legitimate in applying CPLR 327
(see Singh v Zuidema, 221 AD2d 1020; Crown Cork & Seal Co. v Rheem Mfg. Co., 64 AD2d 545), where the court is balancing interests (see Islamic Republic of Iran v Pahlavi, 62 NY2d 474; Chawafaty v Chase Manhattan Bank, N.A., 288
AD2d 58), are irrelevant. Rather, in this regard, the dismissal is
analogous to a dismissal based upon lack of personal jurisdiction,
where those considerations play no role
(see Ehrlich-Bober & Co. v University of Houston, 49 NY2d 574, 579; Sanchez v Major, 289 AD2d 320, 321; Sarfaty v Rainbow Helicopters, Inc., 221 AD2d 618, 619; Foley v Roche, 68 AD2d 558, 565).

Thus, contrary to the plaintiff's argument, even though the
Supreme Court had jurisdiction of the matter despite the forum
selection clause, it had no authority to grant discretionary relief to
the plaintiff pursuant to CPLR 327 once it determined that the contract
required that the complaint be dismissed
. We therefore affirm the order
of the Supreme Court.

SANTUCCI, ANGIOLILLO and CARNI, JJ., concur.

CPLR § 308(5) Impracticable

CPLR § 308 Personal service upon a natural person

CPLR § 308(5) in
such manner as the court, upon motion without notice, directs, if
service is impracticable under paragraphs one, two and four of this
section.

Alvarez v Klein, 2008 NY Slip Op 07845 (App. Div., 2d)

In an action, inter alia, for the appointment of a receiver, the
defendants Baruch Mappa and Martin Rosenberg appeal, as limited by
their brief, from so much of an order of the Supreme Court, Kings
County (Harkavy, J.), dated May 4, 2007, as, upon granting the
application of the defendant Antonia C. Novello, as Commissioner of the
New York State Department of Health, in effect, to join this action for
trial with a related action entitled State of New York v Baruch Mappa and Martin Rosenberg,
pending in the same court under Index No. 10658/07, permitted the State
of New York, as the plaintiff in the related action, to serve the
summons and complaint in the related action upon their attorney
pursuant to
CPLR 308(5).

ORDERED that on the Court's own motion, the notice of appeal
from the order is treated as an application for leave to appeal, and
leave to appeal is granted (see CPLR 5701[c]); and it is further,

ORDERED that the order is reversed insofar as appealed from, on the facts and in the exercise of discretion, with costs.

The respondents failed to establish that service on the appellants pursuant to CPLR 308(1), (2), [*2]and (4) was "impracticable" so as to permit service under CPLR 308(5) (see Staton v Omwukeme, 277 AD2d 443; Smith v Waters, 232 AD2d 545; Coffey v Russo, 231 AD2d 546; Porter v Porter, 227 AD2d 538; Markoff v South Nassau Community Hosp., 91 AD2d 1064, affd
61 NY2d 283). Accordingly, the Supreme Court improvidently exercised
its discretion in permitting service of the summons and complaint in a
related action upon the appellants' attorney pursuant to CPLR 308(5).

The respondents' remaining contention that the appellants
waived their objection to service pursuant to CPLR 308(5), is not
properly before this Court and, in any event, is without merit.

There you have it.  Impracticability is the key.

All the bold is mine.

CPLR § 231(1) “within six years of what?”

CPLR § 231 Actions
to be commenced within six years: where not otherwise provided for; on
contract; on sealed instrument; on bond or note, and mortgage upon real
property; by state based on misappropriation of public property; based
on mistake; by corporation against director, officer or stockholder;
based on fraud

CPLR § 231(1) an action for which no limitation is specifically prescribed by law

Tydings v Greenfield, Stein & Senior, LLP,
2008 NY Slip Op 07763 (Court of Appeals)

We hold that collateral estoppel does not prevent relitigation of a
ruling that was an alternative basis for a trial-level decision, where
an appellate court affirmed the decision without addressing that
ruling.
We also hold that, when a trustee resigns, the statute of
limitations governing an action to compel her to account runs from the
date the trusteeship is [*5]turned over to a successor trustee.

The parties agree that an accounting proceeding against a former
trustee is governed by CPLR 213 (1), which lists "an action for which
no limitation is specifically prescribed by law" among actions that
"must be commenced within six years." The disputed question here is:
within six years of what? We answered this question nearly a century
ago, when we said, speaking through Judge Cardozo:

"While an express trust subsists and has not been
openly renounced, the Statute of Limitations does not run in favor of
the trustee. But after the trust relation is at an end, and the trustee has yielded the estate to a successor, the rule is different. The running of the statute then begins, and only actual or intentional fraud will be effective to suspend it"

(Spallholz v Sheldon, 216 NY 205, 209 [1915] [citations omitted] [emphasis added]).

We see no reason to depart from the rule of Spallholz. It is easy to understand and easy to apply, and gives the successor trustee and the beneficiaries six full years to bring an [*14]accounting
proceeding after the former trustee's role has come to an end. In this
case, Tydings turned over the trusteeship to a successor on January 1,
1997, and the accounting proceeding was brought more than six years
later, on August 20, 2003. It was brought too late.

GSS argues for a different rule, contending that the statute
does not start to run until the former trustee is asked to give an
accounting and refuses to do so. That rule is an impractical one; its
effect would be that the statute would not start to run for years,
perhaps decades, if the former trustee was never asked for an
accounting and had no occasion to say that she would not give one. GSS
claims, however, that its rule is supported by Matter of Barabash (31 NY2d 76 [1972]). We disagree.

Barabash is a different kind of case. The fiduciary there
was the administrator of a decedent's estate, and was also the
decedent's nephew. The administrator had distributed the entire estate
to himself, ignoring the rights of the decedent's children. The
children sued for an accounting some 17 years later. It was not
suggested in Barabash that the administrator had resigned, or
turned over his office to a successor. We held that, on those facts,
the statute did not begin to run until the administrator openly
repudiated his obligation to account. Until that repudiation occurred,
the beneficiaries of the estate were entitled to assume that the
administrator would perform his trust responsibilities. But here,
Singer knew on January 1, 1997 that her brother had replaced Tydings as
trustee. Knowing that Tydings was no longer her fiduciary, she was not
justified in waiting indefinitely to demand an accounting.
[*15][*16][*17]

The Surrogate in the Singer
accounting proceeding did not adopt GSS's present theory, but held that
the "statute of limitations can begin to run on the beneficiary's right
to an accounting only where the former fiduciary has failed to have
accounted after a reasonable time to do so has passed" (12 Misc 3d at
625). The Surrogate's theory, as we understand it, is that the
beneficiaries or the successor trustee cannot or should not bring
action to compel an accounting until a reasonable time after the
resignation, and that the statute should not start running before suit
can be brought.

The Surrogate's theory would leave the courts with the problem
of deciding what a reasonable time is. In this case, for example, the
accounting proceeding was brought six years, seven months and nineteen
days after Tydings turned the trusteeship over to her successor — so
that, on the Surrogate's reasoning, it would be necessary to decide
whether seven months and nineteen days was more or less than a
reasonable time to account. We prefer the clearer and simpler rule that
the time starts running when a successor trustee is put in place. This
rule does not give Singer less than six years to sue, for she could
have sought to compel an accounting the day after Tydings's resignation
if she had wanted to. Under Surrogate's Court Procedure Act § 2205 (1),
"the court may at any time, upon it appearing that it is for
the best interests of the estate, make an order . . . requiring a
fiduciary to file an intermediate or final account . . ." (SCPA § 2205
[1] [a] [emphasis added]).
[*18]

For all these reasons, we reaffirm the rule of Spallholz:
running of the statute of limitations on a proceeding to compel an
accounting begins when "the trust relation is at an end, and the
trustee has yielded the estate to a successor" (216 NY at 208).

For a the rest of the discussion as to the collateral estoppel issue, click on the link above and you'll get the full decision.

CPLR § 7507, Time to vacate or modify an arbitration award

CPLR § 7507.  Award; form; time; delivery1

Matter of Lowe (Erie Ins. Co.), 2008 NY Slip Op 07735 (App. Div., 4th Dept.)

The straightforward but apparent issue of first impression in an
appellate court in New York is whether the 90-day statute of
limitations set forth in CPLR 7511 (a) begins to run on the date on
which the arbitrator's decision was mailed to petitioner or the date on
which it was received by petitioner or his or her agent. We conclude
that the operative measuring date is the date on which the decision was
received
by the petitioner or his or her agent, and we therefore
conclude that this proceeding was timely commenced.

Article 75 of the CPLR governs review of arbitration proceedings and
provides that an application to vacate or modify an arbitration award
"may be made by a party within ninety days after its delivery to him
[or her]" (CPLR 7511 [a]). The statute does not define "delivery," but
CPLR 7507 provides that the arbitrator "shall deliver a copy of the
award to each party in the manner provided in the agreement, or, if no
provision is so made, personally or by registered or certified mail,
return receipt requested."
An Insurance Department Regulation
concerning master arbitration procedures provides that "[t]he parties
shall accept as delivery of the award the placing of the award or a
true copy thereof in the mail, addressed to the parties or their
designated representatives at their last known addresses, or by any
other form of service permitted by law" (11 NYCRR 65-4.10 [e] [3]).


Although, as noted, this appears to be an issue of first impression, we
conclude that case law supports the interpretation that delivery must
be construed as the date on which the award was received. For example,
in Matter of Case v Monroe Community Coll. (89 NY2d 438, 439-440, rearg denied
89 NY2d 1087), the issue before the Court of Appeals was whether
service of an arbitration award upon the petitioner's union
representative constituted service upon the petitioner for purposes of
measuring the timeliness of an appeal from the award. In determining
that the petitioner was indeed in effect thereby served, the Court
explained that " once counsel has appeared in a matter a Statute of
Limitations or time requirement cannot begin to run unless that counsel
is served with the determination or the order or judgment sought to be
reviewed' " (id. at 441, quoting Matter of Bianca v Frank, 43 NY2d 168, 173).

In further support of our decision, we note that several cases have
explicitly used the terms "receipt" and "received" in discussing the
90-day period set forth in CPLR 7511 (a)2

Less recent cases have used language that essentially is analogous to the terms "receipt" or "received" (Lopez v Coughlin,
220 AD2d 349, 350 ["Petitioner's application challenging the
arbitration award was properly dismissed for failure to bring it within
90 days after service of the award on petitioner's attorneys"]; Matter of Malatestinic v Board of Educ. of City of N.Y.,
132 AD2d 661, 662 ["(The) statute began to run on . . . the date upon
which the petitioner was originally notified of the denial of her
request"]; Matter of Levy [Allstate Ins. Co.], 63 AD2d 982, 983
["(The operative date was date on which the arbitration) award . . .
was transmitted to the parties"]). We acknowledge that, in Robinson v City of New York (237 AD2d 127, 128, lv denied
90 NY2d 801), the First Department held that the "[p]etitioner was
properly deemed served with the arbitration award upon its mailing to
the attorney who represented her at the arbitration hearing." The issue
in that case, however, was whether the attorney's delay in forwarding
the award to the petitioner served to extend the petitioner's 90 days
under CPLR 7511 (a) to move to vacate the award, not whether delivery
of the award was the date on which it was mailed to the attorney.

In attempting to distinguish the cases that use the word
"received," respondent contends that those cases involved labor
arbitration awards rather than no-fault master arbitration awards and
thus are not governed by Insurance Department Regulation (11 NYCRR) §
65-4.10. We reject that contention, for two reasons. First, 11 NYCRR
65-4.10 (e) (3) simply sets forth the method of the delivery of the
award to the parties. It does not define "delivery" as it is used in
CPLR 7511 (a). Second, we agree with petitioner that, once a party
commences a proceeding pursuant to CPLR article 75, the procedures set
forth in that article control over those set forth in the Insurance
Department Regulations. Thus, even if 11 NYCRR 65-4.10 (e) (3)
constitutes an attempt to define "delivery" under CPLR 7511 (a), such
an attempt would be improper. Were we to accept respondent's
contention, the 90-day statute of limitations under CPLR 7511 (a) would
have different measuring dates, depending on what type of arbitration
was sought to be reviewed, and that would be an untenable distinction.

1.  CPLR § 7507 reads as follows:

Except as provided in section 7508,
the award shall be in writing, signed and affirmed by the arbitrator
making it within the time fixed by the agreement, or, if the time is
not fixed, within such time as the court orders. The parties may in
writing extend the time either before or after its expiration. A party
waives the objection that an award was not made within the time
required unless he notifies the arbitrator in writing of his objection
prior to the delivery of the award to him. The arbitrator shall deliver
a copy of the award to each party in the manner provided in the
agreement, or, if no provision is so made, personally or by registered
or certified mail, return receipt requested.

2.  I took the cites out to save space.  You can find them by clicking the hyperlinked case.
———————————
All the bold is mine.  The footnotes are mine as well.

Have a look at this post over at New York Legal Update, where Thomas Swartz parses the legal mumbo jumbo and makes the import of the decision clear.

CPLR § 3126, SPOILATION OF EVIDENCE

CPLR § 3126.  Penalties for refusal to comply with order to disclose

Koehler v Midtown Athletic Club, LLP, 2008 NY Slip Op 07734 (App. Div., 4th Dept)

Plaintiff commenced this action seeking damages for injuries he
allegedly sustained when his foot became entangled in a net while
playing tennis at a facility owned and operated by defendants.
Plaintiff's attorney notified defendants that the net was important to
the litigation and requested that it be preserved, and plaintiff, as
well as defendants' insurer, photographed the net. Nevertheless,
defendants failed to preserve the net, and plaintiff moved to strike
defendants' answer and for partial summary judgment on liability in
favor of plaintiff as sanctions for spoliation of evidence. On the
record before us, we conclude that plaintiff established that
spoliation had occurred and thus that some sanction was warranted, but
we agree with defendants that Supreme Court abused its discretion in
granting plaintiff the relief sought (see Tomasello v 64 Franklin, Inc., 45 AD3d 1287, 1288; Enstrom v Garden Place Hotel, 27 AD3d 1084, 1085). We therefore modify the order accordingly.

"A party seeking a sanction pursuant to CPLR 3126 such as preclusion or
dismissal is required to demonstrate that a litigant, intentionally or
negligently, dispose[d] of crucial items of evidence . . . before the
adversary ha[d] an opportunity to inspect them' . .
. , thus depriving the party seeking a sanction of the means of
proving his claim or defense. The gravamen of this burden is a showing
of prejudice"
(Kirschen v Marino, 16 AD3d 555,
555-556). Here, plaintiff is able to testify at trial that he fell when
his foot became entangled in the net and, indeed, he testified at his
deposition with respect to the cause of the accident. Furthermore, both
plaintiff and defendants photographed the holes in the net in question,
and those photographs are available to plaintiff to support his
contention that defendants had constructive notice of the [*2]alleged dangerous condition, i.e., holes in the net in which a person playing tennis could become entangled (see generally Morgan v State of New York,
90 NY2d 471, 488). Thus, we conclude that, "[u]nder all the relevant
circumstances, neither striking the answer nor precluding defendant[s]
from offering evidence at trial is warranted"
(Quinn v City Univ. of N.Y., 43 AD3d 679,
680). Rather, we conclude that an adverse inference charge against
defendants is a more appropriate sanction. We therefore further modify
the order accordingly.

All the bold is mine.

Article 78, CPLR § 7801(1)

Article 78: PROCEEDING AGAINST BODY OR OFFICER

CPLR § 7801(1) Nature of Proceeding

Dreyer v City of Saratoga Springs, 2006 NY Slip Op 52618(U) (Sup Ct, Saratoga County) — I have no idea why a 2006 case made it to the New York Official Reports today.  What's more strange is that the case that affirmed it is a 2007 Slip Op (Matter of Dreyer v City of Saratoga Springs, 2007 NY Slip Op 06386, 43 A.D.3d 586, 840 N.Y.S.2d 680 [App. Div., 3rd])

CPLR 7801 (1) precludes judicial review of determinations which are
"not final". The rationale is that a court ought not issue advisory
opinions.
New York Public Interest Research Group, Inc. v Carey,
42 NY2d 527, 529 (1977). Judicial review is permitted only when there
exists an actual controversy, a genuine legal dispute, not contingent
upon events which may or may not occur.
see Matter of New York State Inspection, Sec. & Law Enforcement Employees v Cuomo, 64 NY2d 233, 240 (1984); Matter of Rubin v New York State Educ. Dept.,
210 AD2d 550 (3rd Dept 1994). An action taken by a municipality is not
ripe for judicial review until such action inflicts an actual, concrete
injury to the party which challenges that action.
Church of St. [*4]Paul & St. Andrew v Barwick, 67 NY2d 510, 519 (1986); Matter of Town of Coeymans v City of Albany, 237 AD2d 856 (3rd Dept 1997), lv denied
90 NY2d 803 (1997). Stated another way, a challenged determination is
final and binding when it " has its impact' upon the petitioner who is
thereby aggrieved".
Matter of Edmead v McGuire, 67 NY2d 714, 716 (1986); Matter of Maurer v State Emergency Management Office, 13 AD3d 751, 753 (3rd Dept 2004).

Dreyer, of course, was impacted and thus aggrieved when the City
Attorney notified her attorney that no defense would be provided her in
the Cornick litigation.
To avoid a default judgment, she had to interpose at her personal expense a legal defense in the Cornick
action. City Code § 9-1, the predicate for Dreyer's demand for a
defense, sets forth no standardized procedure for addressing an
employee's request for a legal defense. Section 9-1 does not require
that the City Council adopt a formal resolution one way or the other.
That a resolution was adopted in regard to Dreyer's earlier, identical
request in the Moore case does not mean that City Attorney's
letter, which conveyed unequivocally the message that the City would
not provide a defense to her in Cornick , was not a final
determination. To accept the City's argument would impermissibly permit
the City to place Dreyer's request for a defense in a legal limbo
simply by not acting by formal resolution. The City Attorney's letter
constitutes municipal action which impacted and aggrieved Dreyer. Thus,
Dreyer's second claim for defense presents a controversy just as
justiciable as her first, and both are ripe for determination. The
City's objection in point of law lacks merit and is dismissed, without
costs.

All the bold is mine.

CPLR § 213(2) Statute of Limitations and Anticipatory Breach of Contract

CPLR § 213 Actions to be commenced within six years

(2) an action upon a contractual obligation or liability.

Chester Med. Diagnostic, P.C. v Kemper Cas. Ins. Co., 2008 NY Slip Op 52009(U) (Civ Ct City NY, Kings County)

The fact that the defendant may have repudiated the contract on
November 29, 2000 when it issued a denial of the claim and mailed a
copy of the denial to the defendant does alter this result. Under the
doctrine of anticipatory breach, where one party clearly and
unequivocally repudiates his contractual obligations under a contract
prior to the time performance is required, the non-repudiating party
may deem the contract breached and immediately sue for damages
(see American List Corp. v. U.S. News & World Report, 75 NY2d 38, 550 NYS2d 590, 549 NE2d 1161 [1989]; De Lorenzo v. Bac Agency Inc., 256 AD2d 906, 908, 681 NYS2d 846, 848 [3rd Dep't 1998]; Long Is. R.R. Co. v. Northville Indus. Corp., 41 NY2d 455, 463, 393 NYS2d 925, 362 NE2d 558 [1977]).

While the plaintiff may have been entitled to bring the action
under the doctrine of anticipatory breach when the defendant denied the
claim, even though the 30 day period in which defendant had to pay the
claim had yet to expire, plaintiff was well within its rights to elect
to keep the contract in force and await the designated time for
performance before bringing suit
(Ga Nun v. Palmer, 202 NY 483, 493, 96 N.E. 99 [1911]; see also, Rachmani Corp. v. 9 East 96th Street Apartment Corp., 211 AD2d 262, 266, 629 NYS2d 382, 384 [1st Dep't 1995] ). As the Court of Appeals wrote in Ga Nun:
"The man who wrongfully renounces a contract into which he has
deliberately entered cannot justly complain if he is immediately sued
for a compensation in damages by the man whom he has injured; and it
seems reasonable to allow an option to the injured party, either to sue
immediately, or to wait until the time when the act was to be done,
still holding it as prospectively binding for the exercise of this
option, which may be advantageous to the innocent party, and cannot be
prejudicial to the wrongdoer
" (Ga Nun, 202 [*3]NY at 490-491, 96 N.E. at 101 – 102, citing Hochster v. De la Tour, 2 Ellis & Blackburn, 678). For the above reasons, defendant's motion for summary judgment is DENIED.

All the bold is mine, except for the word "DENIED".

In any motion for summary judgment based upon the SOL expiring on a breach of contract action, the inquiry as to when the SOL began to run starts at the breach–the date of the breach must be shown before any calculation can be made.  Here, defendant tried to argue that the breach occurred when it denied the claim and that the SOL accrued from that at.  The Court disagreed.

I'm all but certain that this will wind up being appealed (It isn't my case, in case you're curious).  Look for an Appellate Term decision on this in the near future.

CPLR R. 3212(f)

CPLR R. 3212 Motion for summary judgment

CPLR R. 3212(f) Facts unavailable to opposing party

Barrios v Boston Props. LLC, 2008 NY Slip Op 07579 (App. Div., 1st)

That part of the motion that sought dismissal of the Labor Law § 200
claim was premature, since, as a result of the failure of all
defendants to engage in discovery
, the identity of the defendant that
supervised and controlled the freight elevator into which plaintiff was
loading door bucks was within defendants' exclusive knowledge (see CPLR 3212[f]).1

———————————–
1.  CPLR 3212(f):

Facts unavailable to opposing party.

Should it appear from affidavits submitted in opposition to the motion
that facts essential to justify opposition may exist but cannot then be
stated, the court may deny the motion or may order a continuance to
permit affidavits to be obtained or disclosure to be had and may make
such other order as may be just.

The footnote and the bold are mine.  Sometimes having the section in front of you can make a decision easier to understand or make the section's application clear.