Author: DMG

This recent flurry of posts is brought to you by jury duty.

Hunter Sports Shooting Grounds, Inc. v Foley, 2014 NY Slip Op 05952 [2nd Dept. 2014]

The Supreme Court properly denied the Town's motion for summary judgment dismissing so much of the complaint as alleged that the noise ordinance was unlawfully and improperly applied to the plaintiff. In a prior order dated October 6, 2011, the Supreme Court denied that branch of the Town's prior motion which was for summary judgment dismissing so much of the complaint as alleged that the noise ordinance was unlawfully and improperly applied to the plaintiff "without prejudice to timely renewal, upon submission of proper papers." In the prior order, the Supreme Court explained that the Town failed to present evidence in admissible form establishing the level of sound emitted by the plaintiff's operation, as the affidavit of its expert, Eric Zwerling, which was made and notarized in the State of New Jersey, lacked the required certificate of conformity (see CPLR 2309[c]; PRA III, LLC v Gonzalez, 54 AD3d 917, 918), and a report of the Noise Consultancy, LLC, was without probative value because it was unsworn and uncertified (see Duke v Saurelis, 41 AD3d 770, 771). Instead of correcting the defects in its supporting papers and moving to renew its prior motion, the Town made a second motion for summary judgment, and submitted the same documents it had submitted in support of its original motion, without rectifying the defects identified by the Supreme Court. Nor did the Town submit any other evidence establishing the level of sound emitted by the plaintiff's operation. Although the Town's failure to submit the relevant certificate of conformity was not a fatal defect that would warrant the outright denial of its motion for summary judgment, here, the Supreme Court properly afforded the Town an opportunity to correct the defect, and yet the Town failed to do so (cf. Midfirst Bank v Agho, ___ AD3d ___, 2014 NY Slip Op 05778; Rosenblatt v St. George Health and Racquetball Assocs., LLC, 119 AD3d 45). Accordingly, the Supreme Court properly denied the Town's second motion on the ground that it was an improper successive motion for summary judgment (see Tingling v C.I.N.H.R., Inc., ___ AD3d ___, 2014 NY Slip Op 05783).

Yakima Tingling v C.I.N.H.R., Inc., 2014 NY Slip Op 05783 [2nd Dept. 2014]

Cruz v Cablevision Sys. Corp., 2014 NY Slip Op 05943 [2nd Dept. 2014]

There is no evidence in the record of when the order with notice of entry was served and, thus, we reject the plaintiff's contention that the cross appeal should be dismissed as untimely taken (see Zapata v County of Suffolk, 23 AD3d 553, 554).

CPLR 503

Chehab v Roitman, 2014 NY Slip Op 05939 [2nd Dept. 2014]

CPLR 503(a) provides, in relevant part, that "the place of trial shall be in the county in which one of the parties resided when it was commenced." "For venue purposes, a residence is where a party stays for some time with a bona fide intent to retain the place as a residence for some length of time and with some degree of permanency" (Ellis v Wirshba, 18 AD3d 805, 805; see Forbes v Rubinovich, 94 AD3d 809, 810; Furth v ELRAC, Inc., 11 AD3d 509, 510). "Residence means living in a particular place; domicile means living in that locality with intent to make it a fixed and permanent home'" (King v Car Rentals, Inc., 29 AD3d 205, 210, quoting Matter of Newcomb, 192 NY 238, 250). In the context of determining the proper venue of an action, a party can have more than one residence (see King v Car Rentals, Inc., 29 AD3d at 210; see also CPLR [*2]503[a]).

"To effect a change of venue pursuant to CPLR 510(1), a defendant must show that the plaintiff's choice of venue is improper and that [his or her] choice of venue is proper" (Gonzalez v Sun Moon Enters. Corp., 53 AD3d 526, 526; see CPLR 511[b]; see also Lopez v K. Angle K Inc., 24 AD3d 422, 423). To succeed on his motion here, the defendant was obligated to demonstrate that, on the date that this action was commenced, neither of the parties resided in the county that was designated by the plaintiff (see Ramos v Cooper Tire & Rubber Co., 62 AD3d 773; Baez v Marcus, 58 AD3d 585, 586; Corea v Browne, 45 AD3d 623, 624; see also Fiallos v New York Univ. Hosp., 85 AD3d 678, 678; Clarke v Ahern Prod. Servs., 181 AD2d 514, 515; Bradley v Plaisted, 277 App Div 620, 621). Only if the defendant made such a showing was the plaintiff required to establish, in opposition, via documentary evidence, that the venue he selected was proper (see Buziashvili v Ryan, 264 AD2d 797).

Here, the sole piece of evidence that the defendant submitted with respect to the issue of the plaintiff's residence was the police accident report referable to the subject accident. This evidence merely showed that, at the time the accident occurred, the plaintiff had a residence in Texas. This evidence did not demonstrate that the plaintiff did not maintain a residence in Kings County at the time when the action was commenced, two months after the accident (see Ramos v Cooper Tire & Rubber Co., 62 AD3d at 773; Baez v Marcus, 58 AD3d at 586; Corea v Browne, 45 AD3d at 624; see also Fiallos v New York Univ. Hosp., 85 AD3d at 678; Clarke v Ahern Prod. Servs., 181 AD2d at 515; Bradley v Plaisted, 277 App Div at 621). Consequently, the defendant failed to meet his initial burden.

Although a plaintiff may choose venue based solely on a defendant's address, as set forth in a police accident report (see Gonzalez v Weiss, 38 AD3d 492, 493; Furth v ELRAC, Inc., 11 AD3d at 510), a police accident report, standing alone, is not sufficient evidence to demonstrate that, on the date that an action is commenced, a plaintiff does not reside in the county where he or she elects to place the venue of trial. To the extent that this Court's decisions in Samuel v Green (276 AD2d 687) and Senzon v Uveges (265 AD2d 476) may be read to indicate to the contrary, they should not be followed.

Deas v Ahmed, 2014 NY Slip Op 05945 [2nd Dept. 2014]

Cusimano v Schnurr, 2014 NY Slip Op 05702 [1st Dept. 2014]

In September 2012, instead of filing an amended complaint, the Cusimanos filed a demand for arbitration and statement of claim with the American Arbitration Association (AAA). In the arbitration, which was brought against both the accountants and the Strianeses, the Cusimanos asserted claims similar to those raised in the complaint in the court action. Plaintiffs then moved pursuant to CPLR 7503(a) to stay the action pending the arbitration. The accountants cross-moved pursuant to CPLR 7503(b) to permanently stay the arbitration on the grounds that the arbitration claims are time-barred. By separate motions, the Strianeses each moved to intervene in the court action and to permanently stay the arbitration based on the statute of limitations. The Cusimanos opposed a stay of arbitration and argued that, because the agreements were subject to the FAA, the issue of the statute of limitations was for the arbitrator, not the court, to decide.

In a decision and order entered July 16, 2013, the motion court found that the FAA does not apply to the agreements at issue because they do not involve interstate commerce. Thus, the motion court concluded that the question of whether the claims are barred by the statute of limitations was for it to decide. The motion court then found that many of the Cusimanos' claims were barred by the statute of limitations, and granted the accountants' and the Strianeses' [*4]motions to the extent of permanently staying arbitration of the time-barred claims ^[FN4]. The motion court also concluded that any right Rita may have had to arbitrate was waived by her resort to, and participation in, the litigation of this action. Finally, the court granted plaintiffs' motion to the extent of directing the parties to proceed to arbitration on the non-time-barred claims. A judgment was entered on September 11, 2013, and plaintiffs now appeal from both the order and judgment.^[FN5]

We first determine whether the court properly considered the statute of limitations issue or whether it should have been left for the arbitrator. Essential to this question is the determination of whether the FAA applies to the agreements of the three family entities. It is well-settled, and the parties do not dispute, that if the agreements are governed by the FAA, then the timeliness issue is for the arbitrator, not the court (see Matter of Diamond Waterproofing Sys., Inc. v 55 Liberty Owners Corp., 4 NY3d 247, 252 [2005])^[FN6]. The FAA governs agreements which "evidenc[e] a transaction involving commerce" (9 USC § 2). In determining if the FAA applies to a contract, the central question is whether the "agreement is a contract evidencing a transaction involving commerce within the meaning of the [FAA]" (Citizens Bank v Alafabco, Inc., 539 US 52, 53 [2003] [internal quotation marks omitted]).

Courts have interpreted the term "involving commerce" broadly (see id. at 56; Allied-Bruce Terminix Companies, Inc. v Dobson, 513 US 265, 270 [1995]). In Allied-Bruce, the United States Supreme Court concluded that the purpose of the FAA — to reduce the amount of litigation through the enforcement of arbitration agreements — supports a broad interpretation of the term "involving commerce" (513 US at 275). The Court declined to restrict transactions involving commerce only to those "activities within the flow of commerce" (id. at 273 [internal quotation marks and emphasis omitted]). Rather, it found the phrase "involving commerce" to be the equivalent of "affecting commerce," a term associated with the broad application of Congress's power under the Commerce Clause (id. at 273-274; see Citizens Bank, 539 US at 56).

The Supreme Court reaffirmed this interpretation of "involving commerce" in Citizens Bank, stating that "it is perfectly clear that the FAA encompasses a wider range of transactions than those actually in commerce, that is, within the flow of interstate commerce" (539 US at 56 [internal quotation marks omitted]). Further, the Court held that individual transactions do not need to have a substantial effect on interstate commerce in order for the FAA to apply (id.). Rather, as long as there is economic activity that constitutes a general practice "bear[ing] on interstate commerce in a substantial way," the FAA is applicable (id. at 57; see also Wien & Malkin LLP v Helmsley-Spear, Inc., 6 NY3d 471, 478 [2006], cert dismissed 548 US 940 [2006]; ImClone Sys. Inc. v Waksal, 22 AD3d 387, 387 [1st Dept 2005]).

Based on a broad application of the term "involving commerce," we find that the FAA applies to the agreements at issue. Each of the agreements concerns transactions that affect commerce, and all of the entities are involved in the rental of commercial property. FLIP's rental property, which is located in Florida, is leased by a CVS drug store; Berita owns an interest in an entity that in turn owns a Marriott Hotel; and Seaview owns two commercial buildings. Because commercial real estate can affect interstate commerce, the ownership of and investment in the commercial buildings here, one of which is occupied by an international chain hotel and another which houses a national chain drug store located out-of-state, renders the FAA applicable to these agreements (see Frumkin v P & S Constr., N.Y., Inc., 116 AD3d 602, 603 [1st Dept 2014]).

We reject respondents' claims that the FAA is inapplicable because, in their view, this is a dispute about the mismanagement of the family entities in New York State. The proper inquiry is whether the economic activity in question represents a general practice that bears on interstate commerce in a substantial way (see Citizens Bank, 539 US at 56-57; Diamond Waterproofing, 4 NY3d at 250 [FAA was applicable "as the contract had an effect on interstate commerce"] [emphasis added]). This dispute not only involves substantial commercial transactions covering real properties, some of which are not in this state, but as plaintiffs note, the properties are part of national hotel and drug store chains.

Respondents contend that the FAA does not apply because the agreements themselves do not expressly contemplate transactions involving interstate commerce. This argument seeks to narrow the applicability of the FAA in a manner that the courts have declined to adopt. In Allied-Bruce, the Supreme Court faced the question of whether, at the time of agreement, the parties must have contemplated that the contract would evidence a transaction involving substantial interstate commerce or if it was enough that a transaction involving commerce had occurred in fact (513 US at 277-279). The Court found that requiring parties to include a specific reference to interstate commerce in their agreements would undermine the purpose of the FAA by encouraging further litigation as parties contested whether interstate commerce was contemplated at the time the agreement was executed (id. at 278-279). The fact that the agreements here did not expressly contemplate the ownership of commercial real estate that would affect interstate commerce does not, under Allied-Bruce, preclude this Court from finding that the FAA applies.^[FN7]