Author: DMG

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This blog is published by and reflects the personal views of the blogger, in his individual capacity. It does not necessarily represent the views of his employer or its clients, and is not sponsored or endorsed by them. The purpose of this blog site is to assist in dissemination of information about relevant and irrelevant law , but no representation is made about the accuracy of the information. The information contained in this blog site is provided only as general information for education purposes, and blog topics may or may not be updated subsequent to their initial posting. By using this blog site you understand that this information is not provided in the course of an attorney-client relationship and is not intended to constitute legal advice. This blog site should not be used as a substitute for competent legal advice from a licensed attorney in your state.  Always make sure that any cases discussed or cited remain good law.  Don’t rely on me. I’m not your friend.  Never will be.  I don’t owe you anything.  

I will not do your research for you. etc. etc. etc

 

What CPLR?

 Lisa Solomon and Marshall R. Isaacs have an interesting post over at the NYSBA's Smallfirmville blog about the variations in how the Courts interpret or ignore the CPLR throughout the counties.  They start with CPLR R. 3216.  Specifically, they talk about what is going on in Brooklyn. There the judges are giving a date by which the NOI must be filed.  Failure to file will result in dismissal. CPLR R. 3216 does not allow the Court to dismiss without certain requirements being met.  And one of those requirements is that the notice be sent by "registered or certified mail." 

The Appellate Division appears to allow this to go on, by finding that a court order directing that a NOI be filed by a certain date, has "the same effect as a 90-day notice pursuant to CPLR 3216."  See, Shcherbina v Queens Nassau Nursing Home, Inc., 2009 NY Slip Op 07615 (App. Div., 2nd, 2009)1.  By giving it the same effect, the Appellate Division appears to take the court's notice outside the specific requirement of CPLR R. 3216.  It's different, but the same.  Compare Shcherbina with Passet v Menorah Nursing Home, Inc., 2009 NY Slip Op 09009 (App. Div., 2nd, 2009) where the Appellate Division told us "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…." Did you notice how Passet said nothing about the manner of notice?  Weird, right?

Check out CPLR § 3215(c), which tells the court that it "shall" dismiss, whether on it's own "initiative or on motion."  Notice the differences in the language of Rule 3216 and Section 3215.  One has a specific notice requirement, the other doesn't.  That should matter.  Moreover, CPLR R. 3216 doesn't allow the courts to mess around the method or timing, like CPLR R. 3212(a) does.  Well, to be clear, CPLR R. 3212(a) doesn't allow for a change in the method; only the timing.

While we are on the subject of paying attention to the language, remember CPLR § 205(a)?  Yeah, that one.  The one that requires courts to make certain findings before dismissing pursuant to CPLR R. 3216.  No one is paying attention to that.

You should check out the rest of the post.  They go on to discuss other issues and what can be done about them.

Wow.  I made a post that barely contained any copy and pasting.  Hooray for me.

——————————————————–

1.  Check out Davis v Cardiovascular Consultants of Long Is., P.C., 2009 NY Slip Op 06501 (App. Div., 2nd, 2009) and my post where I pointed out the whole "registered or certified mail" part.  There have been a lot of decisions like this lately. 

Serve it right (OSC)

CPLR
§ 308 Personal service upon a natural person

CPLR
R. 2103 Service of papers

City of New York v Miller, 2010 NY Slip Op 03059 (App. Div., 2nd, 2010)

The Supreme Court properly denied, without a hearing, the defendants' motion to dismiss the complaint pursuant to CPLR 3211(a)(8) for lack of personal jurisdiction. The affidavits of the process servers constituted prima facie evidence of proper service pursuant to CPLR 308(4) (see Scarano v Scarano, 63 AD3d 716, 716; Mortgage Elec. Registration Sys., Inc. v Schotter, 50 AD3d 983, 983; 425 E. 26th St. Owners Corp. v Beaton, 50 AD3d 845, 846; Simonds v Grobman, 277 AD2d 369, 370). Although a defendant's sworn denial of receipt of service generally rebuts the presumption of proper service established by a process server's affidavit and necessitates an evidentiary hearing, no hearing is required where the defendant fails to swear to specific facts to rebut the statements in the process server's affidavits (see Scarano v Scarano, 63 AD3d at 716; Simonds v Grobman, 277 AD2d at 370). Here, the defendants' bare denial of service was insufficient to rebut the prima facie proof of proper service pursuant to CPLR 308(4) created by the process servers' affidavits and to necessitate a traverse hearing (see Scarano v Scarano, 63 AD3d at 716; Mortgage Elec. Registration Sys., Inc. v Schotter, 50 AD3d at 983; 425 E. 26th St. Owners Corp. v Beaton, 50 AD3d at 846; Simonds v Grobman, 277 AD2d at 370).

The Supreme Court also properly denied the defendants' motion, inter alia, to vacate a temporary restraining order and preliminary injunction based on lack of proper service of the order to show cause. "The method of service provided for in an order to show cause is jurisdictional in nature and must be strictly complied with" (Matter of El Greco Socy. of Visual Arts, Inc. v Diamantidis, 47 AD3d 929, 929; see Matter of Del Villar v Vekiarelis, 59 AD3d 642, 643; Matter [*2]of Master v Pohanka, 43 AD3d 478, 480, affd 10 NY3d 620; Matter of Hennessey v DiCarlo, 21 AD3d 505, 505). Here, the express terms of the order to show cause required the plaintiffs to serve the order to show cause and other papers on the defendants as well as their attorneys. However, while it is undisputed that attorney Vincent M. Gerardi represented the defendants in a related but separate and independent action, and that the plaintiffs were aware of that action, it is also undisputed that, in the instant action, as of the time the plaintiffs were required to serve the order to show cause, no attorney had appeared on behalf of the defendants (see generally CPLR 320[a], 321[a]). CPLR 2103(c) expressly provides that, if a party has not appeared by an attorney, service shall be upon the party. Thus, notwithstanding the language directing service in the order to show cause, the plaintiffs were not required to serve Gerardi with the order to show cause merely because he represented the defendants in a separate and independent, if not entirely unrelated, action, where neither he nor any other attorney had appeared on behalf of the defendants in this action (see Long v Long, 196 Misc 982, 984).

I'm adding another case (5/31/10) because it doesn't deserve it's own post, but is nonetheless relevant to the blog.

Lobo v Soto, 2010 NY Slip Op 04553 (App. Div., 2nd, 2010)

"The method of service provided for in an order to show cause is
jurisdictional in nature and must be strictly complied with'" (City
of New York v Miller, 72 AD3d 726, *1, quoting Matter of El Greco
Socy. of Visual Arts, Inc. v Diamantidis, 47 AD3d 929, 929; see
Matter of Del Villar v Vekiarelis, 59 AD3d 642, 643; Matter of
Master v Pohanka, 43 AD3d 478, 480, affd 10 NY3d 620; Matter
of Hennessey v DiCarlo, 21 AD3d 505, 505). Here, the Supreme Court
correctly determined that the plaintiffs failed to strictly comply with
the method of service set forth in the order to show cause in connection
with service of the motion on the referee.

3211(a)(8) “no relationship between defendant’s transaction of business and plaintiff’s claims.”

Georgakis v Excel Mar. Carriers Ltd., 2010 NY Slip Op 02982 (App. Div., 1st, 2010)

Even assuming that defendant transacted business in New York, CPLR 302(a)(1) does not authorize the courts to exercise jurisdiction over it, because there is no relationship between defendant's transaction of business and plaintiff's claims against defendant (see Kreutter v McFadden Oil Corp., 71 NY2d 460, 467 [1988]; Holness v Maritime Overseas Corp., 251 AD2d 220, 224 [1998]).

In any event, we find that New York is not a convenient forum for this litigation between a foreign corporation and its former CEO, in which both parties are residents of Greece, which arose from conduct occurring principally in Greece, and in which the bulk of the witnesses and evidence needed by defendant to defend the action are located in Greece (see Gonzalez v Victoria [*2]Lebensversicherung AG, 304 AD2d 427 [2003], lv denied 1 NY3d 506 [2004]; Holness v Maritime Overseas Corp., 251 AD2d 220, 224 [1998]; Blueye Nav. v Den Norske Bank, 239 AD2d 192 [1997]).

The bold is mine.

It’s moot

Matter of Metropolitan Steel Indus., Inc. v Dormitory Auth. State of New York, 2010 NY Slip Op 02984 (App. Div., 1st, 2010)

Subsequent to the order appealed from, the Dormitory Authority awarded the contract to petitioner, which has since completed the work. Any exception to the mootness doctrine requires "(1) a likelihood of repetition, either between the parties or among other members of the public; (2) a phenomenon typically evading review; and (3) a showing of significant or important questions not previously passed on" (Matter of Hearst Corp. v Clyne, 50 NY2d 707, 714-715 [1980]). The Dormitory Authority has satisfied the second requirement, and petitioner does not contest the third. However, neither respondent has presented facts showing a likelihood of repetition.

The bold is mine.

Because I have nothing important to say [now with fixed link at the bottom]

and I don't want to post any more decisions today.  The whole reading every decision and posting the interesting one becomes mind-numbing after a while.  My brain is mush as it is.

Every once in a while I check to see how everyone is getting here.  For the most part, you all get here by searching some section or rule.  Many of you are from big firms (good for you).  Others stumble over here from my no-fault blog (really, you want a double dose of my crap?).  And the rest are my devoted readers.  All five of you.  Almost none of you stay more than a couple of minutes.  Many of you, especially the fancy pants biglaw types1, click out of here just as soon as you get here.  This has nothing to do with anything.  I thought some of you might be interested, and if not, I'm glad I able to take a couple of seconds of your life away.

The New York State Bar Association Committee on Civil Practice Law and Rules, for those don't know, is a fun (yes, fun) resource.  You can find recent changes to the rules and case law developments.  That latter is like this blog, but different.  The meeting minutes makes for a good read too.  I spent an hour or so reading them the other night.  Good times.  If you are a member of the committee, please fix the link for the September 11, 2009 minutes.  The link isn't working.  I'm probably the only one who cares about that, but, hey, at least someone cares.

I'm considering putting up a donations thing.  This way you can give me money.  You will get nothing in return.  I won't promise that I will spend the money on one thing or another.  I'm just as likely to spend it on diapers (not for me) as I am to spend it on booze (for me).  It's really just a fantasy.

For those of you who pay attention to what I'm reading, I'm still reading that Gulag book.  I don't know why it is taking me so long to read, but it's a really good book.  Eye opening.

Finally, we have an honest to god SEARCH button now.  It should be much better than the mini google search I've been using.  It's over on the right somewhere.

ScalianotamusedOne last thing.  Scalia says hi. 

————–

1.  At least one or two of you people must be a partner, so where's my offer for one of those $200,000.00 a year jobs.  I'm better than worthless (click the link, it will all make sense).

“My Boyfriend’s Back” but my notary is gone

Sirico v F.G.G. Prods., Inc., 2010 NY Slip Op 01733 (App. Div., 1st, 2010)

In May 2008, plaintiffs moved for renewal and reargument,[FN3] contending that the allegations in
Gottehrer's affidavit were conclusory and unsupported by any proof, and
noting that defendant had moved for summary judgment before plaintiffs
had the opportunity to conduct discovery. For those reasons, plaintiffs
argued, they believed their factual allegations in the complaint and
bill of particulars should have withstood the motion for summary
dismissal.

In connection with their motion to renew, plaintiffs submitted
"affidavits" witnessed by out-of-state notaries that were questionable
as to proper form. Davidson states that she understood from
representations by FGG's owners, including Gottehrer, that FGG would pay
her the same royalties as the Allbuts for recording as a member of the
Angels. According to Davidson, FGG had made one "negligible" royalty
payment to each of the three women. Davidson adds that she never signed
any agreement when joining the group and never signed any waiver or
release of any of her rights, and claims that FGG used her voice, name
and image to sell records. Davidson denied that the Angels ever refused
to record for FGG.

In a similar affidavit, Sirico states that all three women
believed that as a member of the Angels, Davidson was entitled to FGG's
royalties, and in fact FGG gave each of the women one royalty check. She
denies having breached her contract by refusing to perform for FGG, and
states that she recorded for another label only after the exclusivity
period of the contract had expired.

Defendant opposed plaintiffs' motion and cross-moved for
sanctions, contending that renewal should be denied because plaintiffs'
affidavits did not contain any newly discovered evidence that could not
have been submitted previously. Defendant also claimed that the
affidavits were improper because the out-of-state notaries'
acknowledgments did not state that plaintiffs' statements were sworn to
in their presence.

The court held that the motion for reargument was untimely, and
plaintiffs' affidavits in support of the renewal were deficient because
they were unsworn, but in any event were insufficient to defeat
defendant's prima facie showing. It noted that Davidson did not provide
any details about the terms of her alleged contract with FGG, and held
that plaintiffs had not justified their failure to submit admissible
evidence to oppose the summary judgment motion, concluding that
[*4]

On this record – riddled with procedural mistakes and
deficiencies – there is no reason for the Court to exercise its
discretion and overlook plaintiffs' repeated oversights.

There
is, of course, no appeal from denial of reargument. However, the denial
of renewal is reversed. "Although renewal motions generally should be
based on newly discovered facts that could not be offered on the prior
motion (see CPLR 2221[e]), courts have discretion to relax this
requirement and to grant such a motion in the interest of justice" (Mejia
v Nanni, 307 AD2d 870, 871 [2003]). While plaintiffs should have
submitted admissible evidence to oppose the summary judgment motion,
their failure is excusable. Defendant moved for summary judgment before
plaintiffs had the opportunity to conduct discovery, and plaintiffs'
counsel reasonably believed that defendant had failed to make a prima
facie showing of entitlement to judgment. 

***

Contrary to the renewal court's ruling, plaintiffs' affidavits are
admissible. Each contains the affiant's statement that she was duly
sworn and believes the affidavit's contents to be true and correct, and
the notary's statement that the affiant personally appeared, proved her
identity, and "did further acknowledge that she executed the foregoing
for the purposes therein contained" (see Feldman v Feldman, 280
AD2d 276, 277 [2001]; Collins v AA Truck Renting Corp., 209 AD2d
363 [1994] [notary "is presumed to have acted within his or her
jurisdiction and carried out his or her duties as required by law"]).

The bold is mine.

On consolidation: CPLR § 602

CPLR § 602 Consolidation
(a)
Generally

Whiteman v Parsons Transp. Group of N.Y., Inc., 2010 NY Slip Op 02944 (App. Div., 2nd, 2010)

Where common questions of law or fact exist, a motion pursuant to
CPLR 602(a) to consolidate or for a joint trial should be granted absent
a showing of prejudice to a substantial right of the party opposing the
motion (see Mas-Edwards v Ultimate Servs., Inc., 45 AD3d 540; Perini
Corp. v WDF, Inc., 33 AD3d 605, 606; Nationwide Assoc. v Targee
St. Internal Med. Group, P.C. Profit Sharing Trust, 286 AD2d 717).
Here, the action commenced in the Supreme Court, Kings County, shares
defendants and questions of law and fact in common with two related
actions pending in the Supreme Court, New York County (see Nigro v
Pickett, 39 AD3d 720, 722; Spector v Zuckermann, 287 AD2d
704). Furthermore, the plaintiff failed to show prejudice to a
substantial right if this action is transferred to New York County, and
mere delay of the trial is not a sufficient basis upon which to deny a
motion for consolidation or a joint trial (see Alsol Enters., Ltd. v
Premier Lincoln-Mercury, Inc., 11 AD3d 494; Zupich v Flushing
Hosp. & Med. Ctr., 156 AD2d 677). Moreover, in the absence of
special circumstances, where the actions have been commenced in
different counties, the place of trial should be in the county where
venue of the first-commenced action currently lies (see Almoghazy v
Gonzalez, 233 AD2d 349, 350; Levertov v Congregation Yetev Lev [*2]D'Satmar, 129 AD2d 680; T T Enters. v
Gralnick, 127 AD2d 651, 652). Since venue properly lies in New York
County with respect to the first of the three subject actions to be
commenced, venue of the action commenced in the Supreme Court, Kings
County, was properly transferred to New York County.

However, the respondent's motion to consolidate the three actions
should have been granted only to the extent of directing a joint trial,
particularly since the actions involve different plaintiffs (see
Perini Corp. v WDF, Inc., 33 AD3d at 606-607; Cola-Rugg Enters., v
Consolidated Edison Co. of N.Y., 109 AD2d 726; Mascioni v
Consolidated R.R. Corp., 94 AD2d 738).

The bold is mine.

Some good old fashioned SOL or Use it or lose it

CPLR R. 3211(e)

Horst v Brown, 2010 NY Slip Op 02836 (App. Div., 1st, 2010)

CPLR 3211(e) explicitly provides that an objection or defense based
on the statute of limitations is waived unless raised in a responsive
pleading or in a pre-answer motion to dismiss. Defendant failed to do
either, and thus waived this defense (see Buckeye Retirement Co., L.L.C., Ltd. v Lee,
41 AD3d 183 [2007] [statute of limitations defense waived unless
raised by aggrieved party]).

As defendant waived the affirmative defense of statute of
limitations, Supreme Court erred in its sua sponte consideration of that
defense (see Paladino v Time Warner Cable of N.Y. City, 16
AD3d 646 [2005] ["court may not take judicial notice, sua sponte,
of the applicability of a statute of limitations if that defense has not
been raised"]).

While "courts generally allow pro se litigants some leeway on the
presentation of their case" (Stoves & Stones v Rubens, 237
AD2d 280, 280 [1997]), in this particular case it was error to treat
defendant's opposition to plaintiff's motion for summary judgment on
damages as either a motion to amend defendant's answer, or a cross
motion for summary judgment based on the statute of limitations. "A
motion for summary judgment on one claim or defense does not provide a
basis for searching the record and granting summary judgment on an
unrelated claim or defense'" (Baseball Off. of Commr. v Marsh &
McLennan, 295 AD2d 73, 82 [2002], quoting Sadkin v Raskin &
Rappoport, 271 AD2d 272, 273 [2000]). 

All concur except Gonzalez, P.J. and RomÁn, J. who dissent in part in a
memorandum by RomÁn, J. as follows:

***

Generally, when a defendant fails to plead the statute of limitations as
a defense in his or her answer or fails to move for dismissal on that
ground, via a pre-answer motion, the defense is ordinarily waived (see
Dougherty v City of Rye, 63 NY2d 989, 991-992 [1984]; Fade v
Pugliani, 8 AD3d 612, 614 [2004]). However, when a defendant fails
to plead an affirmative defense, as required by CPLR 3211(e) and
3018(b), but nevertheless asserts that defense in connection with a
motion for summary judgment, the waiver is said to be retracted and the
court can grant, when the defendant is the movant, or deny, when the
defendant is the opponent, summary judgment based upon the unpleaded
affirmative defense (see Lerwick v Kelsey, 24 AD3d 918, 919-920
[2005]; Allen v Matthews, 266 AD2d 782, 784 [1999]; Adsit v
Quantum Chem. Corp., 199 AD2d 899 [1993]). The threshold inquiry is
whether in considering the unpleaded defense, the opponent of the
defense is prejudiced thereby (see BMX Wordlwide v Coppola N.Y.C.,
287 AD2d 383 [2001]; Allen v Matthews, 266 AD2d 782, 784 [1999];
Seaboard Sur. Co. v Nigro, Bros. 222 AD2d 574 [1995]; Rogoff v
San Juan Racing Assn. Inc., 77 AD2d 831 [1980], affd 54 NY2d
883 [1981]). Such prejudice, however, is ameliorated when the defense
was previously raised on a prior motion or during discovery (id.),
or when the opponent of the motion, where defendant seeks summary
judgment based upon said defense, is given an opportunity to fully
respond to the motion for summary judgment (Sheils v County of Fulton, 14 AD3d 919
[2005], lv denied 4 NY3d 711 [2005]; Kirilescu v American Home
Prods. Corp., 278 AD2d 457 [2000], lv denied 96 NY2d 933
[2001]; McSorley v Philip Morris, Inc., 170 AD2d 440 [1991], appeal
dismissed 77 NY2d 990 [1991]; International Fid. Ins. Co. v Robb,
159 AD2d 687 [1990]).

***

Cadlerock, L.L.C. v Renner, 2010 NY Slip Op 02849 (App. Div., 1st, 2010)

Defendant sufficiently pleaded his statute of limitations affirmative
defense (see Immediate v St. John's Queens Hosp., 48 NY2d 671,
673 [1979]). Contrary to plaintiff's contention, the promissory note,
which required defendant to pay principal and interest payments monthly
for 20 years, after which the loan would have self-liquidated, was an
installment contract (see Phoenix Acquisition Corp. v Campcore, Inc.,
81 NY2d 138, 141-142 [1993]), and, since the debt was not accelerated
while defendant was making the monthly payments, the applicable six-year
statute of limitations (CPLR 213[2]) began to run on the date on which
each installment became due and payable (see Phoenix Acquisition
Corp. at 141). Thus, the statute of limitations bars plaintiff from
seeking to recover the amount of the installment payments, including any
interest, that defendant defaulted on before April 18, 2002, when this
action was commenced (see id.; Sce v Ach, 56 AD3d 457, 458-459 [2008]).

The defense of laches is unavailable in this action at law
commenced within the period of limitations (see Matter of American Druggists' Ins. Co., 15
AD3d 268 [2005], lv dismissed 5 NY3d 746 [2005]; Kahn v
New York Times Co., 122 AD2d 655, 663 [1986]). However, we conclude
that a triable issue of fact exists whether plaintiff's claims are
barred by the doctrine of equitable estoppel, i.e., whether defendant
justifiably relied on the nine years of inaction by plaintiff and its
predecessors-in-interest to reasonably conclude that his monthly
payments were sufficient to satisfy his payment obligations under the
note, and therefore was misled into paying a reduced amount for years
without realizing that interest was accruing at the 14% interest rate [*2](see Fundamental Portfolio Advisors, Inc. v
Tocqueville Asset Mgt., L.P., 7 NY3d 96, 106—107 [2006]; Triple
Cities Constr. Co. v Maryland Cas. Co., 4 NY2d 443, 448 [1958]).

The bold is mine.