Author: DMG

3102 Pre-Action Discovery

CPLR § 3102 Method of obtaining disclosure
(c) Before action commenced

Matter of Champion v Metropolitan Tr. Auth., 2010 NY Slip Op 01585 (App. Div., 1st, 2009)

Order, Supreme Court, Bronx County (Larry S. Schachner, J.), entered April 29, 2009, which granted petitioner's motion for pre-action discovery to the extent of directing that respondents provide certain discovery and inspection of evidence within 30 days of service of a copy of the order, and continuing the stay in the order to show cause prohibiting respondents from altering, changing, repairing, servicing, modifying, moving, selling or in any other way disposing of any vehicle(s) and/or plow(s) utilized by respondents for any snow removal operations on the date of the hit and run motor vehicle accident at or near the subject intersection, unanimously modified, on the law, to strike the direction that respondents produce items 2(d), (e), (f), (g), (h), (j), (k), (m) and (n), limit the production of items 2(b), (c) and (o) to materials concerning the designated area between the hours of 9 a.m. and 11 a.m., and vacate the stay, and otherwise affirmed, without costs.

While petitioner has alleged sufficient facts to support her claim that respondents were negligent in operating the motor vehicle that caused her injury, she has failed to allege any facts supporting her negligent maintenance claim. Petitioner's requests for items 2(d), (e), (f), (g), (h), (j), (k), (m) and (n) serve no purpose other than to determine whether facts exist to support a cause of action related to a defect in the motor vehicle or the attached plow, which is not an appropriate use of CPLR 3102(c) (see Holzman v Manhattan & Bronx Surface Tr. Operating Auth., 271 AD2d 346, 347-348 [2000]). Because petitioner has not offered facts sufficient to support a negligent maintenance claim or any other claim that would require respondents' vehicles and plows to be produced or inspected, the IAS court's stay should be vacated.

Petitioner's requests for items 2(b), (c) and (o) are material and necessary to petitioner's viable negligent operation claim, because they will assist her in identifying prospective defendants, particularly the operator of the motor vehicle, and in framing her complaint (see Christiano v Port Auth. of N.Y. & N.J., 1 AD3d 289, 289 [2003]). However, the order was overly broad with respect to those items, because there was no time limitation (id.). Since [*2]petitioner sought disclosure regarding an accident that allegedly occurred around 10:00 a.m., the order should be modified as indicated above.

The bold is mine.

The Problem with CPLR R. 3211(a)(7)

CPLR R. 3211(a)(7)  pleading fails to state a cause of action

Thomas v Thomas, 2010 NY Slip Op 01586 (App. Div., 1st, 2010)

Because the instant motion is pursuant to CPLR 3211, the complaint "is to be afforded a liberal construction (see, CPLR 3026). We accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal theory." (Leon v Martinez, 84 NY2d 83, 87-88 [1994]). Applying this standard, plaintiffs have stated a cause of action for a constructive trust. As a preliminary matter, it is accepted that a constructive trust over real property can be imposed even where an underlying agreement is not in writing (see Sharp, 40 NY2d at 122). The complaint clearly alleges that Janet Thomas promised to transfer the property back to plaintiffs. It can be inferred that plaintiffs relied on that promise, or they would have not made the transfer. That plaintiffs meant to convey in their complaint that Janet Thomas would be unjustly enriched without judicial intervention can be similarly assumed.

While it is not clearly spelled out in the complaint that plaintiffs and Janet Thomas had a confidential relationship, Janet Thomas's affidavit, submitted in support of her motion, provides sufficient information to draw such an inference. Specifically, the affidavit volunteers the existence of the partner program and the fact that, until shortly before the transaction at issue, the parties were co-venturers in a quasi-banking enterprise, however informal that enterprise may have been. This is sufficient to infer that the parties had fiduciary responsibilities to one another [*3]which elevated the relationship from one of mere acquaintances to a "confidential" one. We disagree with the dissent's position that we may not consider Janet Thomas's affidavit. On a CPLR 3211 motion a plaintiff's affidavit "may be used freely to preserve inartfully pleaded, but potentially meritorious, claims" (Rovello v Orofino Realty Co., Inc., 40 NY2d 633, 635 [1976]). It follows, a fortiori, that admissions in a defendant's affidavit may similarly be used to ascertain whether a plaintiff has a valid cause of action.

***

ROMÁN, J. (dissenting)

Since I believe that the majority misconstrues well settled law, applicable to motions to dismiss pursuant to CPLR § 3211(a)(7), I dissent.

***

When deciding a motion to dismiss a complaint, pursuant to CPLR 3211(a)(7), all [*4]allegations in the complaint are deemed to be true (Sokoloff v Harriman Estates Dev. Corp., 96 NY2d 409, 414 [2001]; Cron v Hargro Fabrics, 91 NY2d 362, 366 [1998]). All reasonable inferences which can be drawn from the complaint and the allegations therein stated shall be resolved in favor of the plaintiff (id.). In opposition to such a motion, a plaintiff may submit affidavits to remedy defects in the complaint (CPLR 3211[c]; Cron v Hargro Fabrics, 91 NY2d at 366; Leon v Martinez, 84 NY2d 83, 87-88 [1994]; Amaro v Gani Realty Corp., 60 AD3d 491, 492 [2009]). If an affidavit is submitted for that purpose, it should be given its most favorable intendment (Cron v Hargro Fabrics, 91 NY2d at 366).

***

While a plaintiff can cure pleading defects by submitting an affidavit, it does not follow that any such defects in a plaintiff's pleadings can be cured by a defendant's submissions, affidavit or otherwise. Here the majority finds that the existence of a confidential relationship by virtue of an affidavit submitted by Janet Thomas in support of her motion to dismiss the complaint. While the majority's position finds some support in Rovello v Orofino Realty Co., 40 NY2d 633 [1976], where the court held that affidavits can be used to correct pleading defects in a complaint, without ever stating whose affidavits could be so considered, in Leon and then again in Cron, the Court of Appeals, while citing Rovello, nevertheless implicitly narrowed the holding in Rovello, stating that "[i]n opposition to such a motion [one pursuant to CPLR 3211], a plaintiff may submit affidavits to remedy defects in the complaint' and preserve inartfully pleaded but potentially meritorious claims'" (Cron v Hargro Fabrics, 91 NY2d at 366, citing Rovello v Orofino Realty Co., Inc., 40 NY2d at 635-636 [emphasis added]). Thus, it is only a plaintiff's affidavit which can be used to remedy a defect in the complaint (id.; see Leon v Martinez, 84 NY2d at 88; Amaro v Gani Realty Corp., 60 AD3d at 492; see also Fitzgerald v Federal Signal Corp., 63 AD3d 994, 995 [2009]).

The bold is mine.  (a)(7), like (a)(1), and like 5015, is constantly construed differently.  Someone needs to clear this mess up.

Error to replace a juror where no “evinced bias” is shown: CPLR § 4106

CPLR § 4106 Alternate jurors

Troutman v 957 Nassau Rd., LLC, 2010 NY Slip Op 00836 (App. Div., 2nd, 2010)

After the close of the plaintiffs' case, a juror informed the trial court that she knew one of the witnesses who was going to testify for the defense. The juror explained that she lived in the same neighborhood as the witness, and graduated from high school with her. The juror also indicated that the extent of their relationship was that they would occasionally see each other on the street, say hello, and ask each other how they were doing. The juror then indicated, in response to the court's questioning, that she would "treat" the witness "the same as all other witnesses," and that "nobody . . . started [the] case with an advantage." The court then voiced its "opinion" that the juror was "okay," "seemed like she could be fair," and should "stay."

However, defense counsel then made an application, which the plaintiffs' attorney opposed, for the juror to be replaced with an alternate juror. At that point, the trial court, upon observing that the "trial" was already a "lengthy" one, decided that "the safest course of action" would be to replace the juror with an alternate juror. The court explained that "a lot of times," jurors like the juror in question, who [*2]"know someone" and "say they think they will be okay," end up "hav[ing] a problem when they are making a decision." Hence, the court granted defense counsel's application. However, the court erred in doing so.

CPLR 4106 provides that, in a civil case, if, before the final submission of the case to the jury, a seated juror "dies, or becomes ill, or for any other reason is unable to perform his [or her] duty," the trial court may remove the juror and replace the juror with an alternate juror. This Court, in interpreting the phrase "or for any other reason is unable to perform his [or her] duty" (CPLR 4106), has determined that a seated juror in a civil case may be removed from the jury if he or she "has evinced a certain bias or prejudice against one of the parties" (Mark v Colgate Univ., 53 AD2d 884, 886; see Narvaez v Piccone, 16 AD3d 641, 642; French v Schiavo, 300 AD2d 119, 119-120). Here, however, there was no indication that the juror in question evinced any bias or prejudice against one of the parties. Furthermore, the trial court's concern that such a bias or prejudice might eventually surface was speculative. Under these circumstances, the court should have denied defense counsel's application, and should not have replaced the juror with an alternate juror (cf. Wisholek v Douglas, 280 AD2d 220, 224, revd on other grounds 97 NY2d 740). Therefore, the judgment must be reversed, the complaint reinstated, and the matter remitted for a new trial on the issue of liability.

The bold is mine.

Equitable Estoppel and SOL

Some good old procedural fun here.

CPLR § 5701 Appeals to appellate division from supreme and county courts
(a) Appeals as of right

Evan S. v Joseph R., 2010 NY Slip Op 00831 (App. Div., 2nd, 2010)

The June 24, 2008, order appealed from did not decide the defendant's motion to dismiss, but, instead, held it in abeyance. Accordingly, that order is not appealable as of right (see CPLR 5701[a][2]; Acunto v Stewart Ave. Gardens, LLC, 26 AD3d 305; Housberg v Curtin, 209 AD2d 670, 671; Matter of Fritsch v Westchester County Dept. of Transp., 170 AD2d 602), and we decline to grant leave to appeal, as that order was superseded by the order dated September 10, 2008.

Upon reargument and renewal, the Supreme Court should have granted the defendant's motion pursuant to CPLR 3211(a)(5) to dismiss the complaint as time-barred. The plaintiff sought to recover damages for injuries arising from alleged sexual assaults which purportedly occurred in 1995 when he was 10 years old. Pursuant to the toll for infancy (see CPLR 208), the applicable one-year statute of limitations (see CPLR 215[3]; Krioutchkova v Gaad Realty Corp., 28 AD3d 427, 428; Tserotas v [*2]Greek Orthodox Archdiocese of N. and S. Am., 251 AD2d 323, 324) began to run in 2003, after the plaintiff turned 18. Accordingly, the statute of limitations expired in 2004, and the plaintiff's commencement of this action in 2008 was untimely (see McDonald v McDonald, 193 AD2d 590, 591; Pittelli v Schulman, 128 AD2d 600, 602). Further, the alleged threats made by the defendant at the time of the incidents, and on a subsequent occasion while the parties were in high school, did not rise to the requisite level necessary to equitably estop the defendant from asserting the statute of limitations as a defense to this action brought by the plaintiff approximately five years after he reached the age of majoritysee generally Zumpano v Quinn, 6 NY3d 666, 674-675; Santo B. v Roman Catholic Archdiocese of N.Y., 51 AD3d 956, 957-958; Doe v Holy See [State of Vatican City], 17 AD3d 793, 796; Zoe G. v Frederick F.G., 208 AD2d 675, 675-676; Doe v Roe, 5 Misc 3d 1032A).  (

The bold is mine.  I put the link in for Zumpano.  I'm assuming at least on of you will be curious enough to check it out.  You're on your own for the rest.

CPLR R. 3212 Round Up

I've let these sit for too long.  These need to be posted, along with the 3211 cases, so that I can get to some of the more esoteric (probably not the right word) sections and rules.  Besides, I finally got a new computer, one that doesn't crash.  So I might as well put it to use.

CPLR R. 3212 Motion for summary judgment

CPLR R. 3214 Motions
heard by judge supervising disclosure; stay of disclosure

(b) Stay of disclosure: Service of a notice of motion under rule 3211, 3212, or section 3213 stays disclosure until determination of the motion unless the court orders otherwise. If the motion is based solely on the defense that the summons and complaint, summons with notice, or notice of petition and petition was not properly served, disclosure shall not be stayed unless the court orders otherwise.

Mazzocchi Wrecking Inc. v East 115th St. Realty Corp., 2010 NY Slip Op 01425 (App. Div., 1st, 2010)

Plaintiff's motion, based solely on the claim for breach of contract, was unsupported by an affidavit of a person with personal knowledge. The movant thus failed to meet its prima facie burden of proof, rendering the motion insufficient and lacking in probative value (Stainless, Inc. v Employers Fire Ins. Co., 69 AD2d 27, 31-32 [1979], affd 49 NY2d 924 [1980]).

Gonzalez v Nutech Auto Sales, 2010 NY Slip Op 00469 (App. Div., 2nd, 2010)

Under the circumstances of this case, since the motion was premature as no discovery had yet taken place (see CPLR 3212[f]; Harvey v Nealis, 61 AD3d 935; Valdivia v Consolidated Resistance Co. of Am., Inc., 54 AD3d 753), the Supreme Court erred in determining the motion on the merits.

Sutter v Wakefern Food Corp., 2010 NY Slip Op 00506 (App. Div., 2nd, 2010)

The plaintiff commenced this action against the defendant in 2002. In an amended order dated October 6, 2005, the Supreme Court denied the defendant's motion for summary judgment dismissing the complaint. In an order dated August 18, 2006, the Supreme Court denied the defendant's motion for leave to renew, on both a "procedural and substantive basis." In July 2008 the defendant again moved for summary judgment dismissing the complaint. The plaintiff then separately moved for the admission, pro hac vice, of Florida attorney Antoinette R. Appel to appear on her behalf as co-counsel in this action. The Supreme Court granted the defendant's motion and, in effect, denied the plaintiff's motion as academic.

Generally, successive motions for summary judgment should not be entertained, absent a showing of newly-discovered evidence or other sufficient cause (see Kimber Mfg., Inc. v Hanzus, 56 AD3d 615; Crane v JAB Realty, LLC, 48 AD3d 504; Williams v City of White Plains, 6 AD3d 609; Davidson Metals Corp. v Marlo Dev. Co., 262 AD2d 599). Here, the Supreme Court should not have [*2]entertained the defendant's latest motion for summary judgment dismissing the complaint since the defendant did not submit any newly-discovered evidence, or present other sufficient cause (see Kimber Mfg., Inc. v Hanzus, 56 AD3d 615; Selletti v Liotti, 45 AD3d 669; Williams v City of White Plains, 6 AD3d 609; Davidson Metals Corp. v Marlo Dev. Co., 262 AD2d 599).

Marcantonio v Picozzi, 2010 NY Slip Op 00822 (App. Div., 2nd, 2010)

Accordingly, the Supreme Court properly dismissed the complaint insofar as asserted against Picozzi and the law firm, thus rendering academic that branch of the plaintiffs' cross motion which was to compel those defendants to answer interrogatories. As to the defendants Project Real Estate, Inc., and John McHugh, their response to interrogatories was properly stayed pending determination of their motion for summary judgment (see CPLR 3214[b]).


Williams v D & J School Bus, Inc., 2010 NY Slip Op 00141 (App. Div., 2nd, 2010)

In opposition, the City defendants failed to raise a triable issue of fact as to whether the third-party defendants had any involvement in this matter, merely arguing that their motion was premature, and that a deposition of Scialpi was necessary. While determination of a summary judgment motion may be delayed to allow for further discovery where evidence necessary to oppose the motion is unavailable to the opponent (see CPLR 3212[f]), "[a] determination of summary judgment cannot be avoided by a claimed need for discovery unless some evidentiary basis is offered to suggest that discovery may lead to relevant evidence" (Ruttura & Sons Constr. Co. v Petrocelli Constr., 257 AD2d 614, 615; see Wyllie v District Attorney of County of Kings, 2 AD3d 714, 717). A party's mere hope that further discovery will reveal the existence of a triable issue of fact is insufficient to delay determination of the motion (see Wyllie v District Attorney of County of Kings, 2 AD3d at 717; Weltmann v RWP Group, 232 AD2d 550). Here, as the Supreme Court correctly held, the City defendants failed to provide an evidentiary basis for their assertion that further discovery would lead to additional relevant evidence (see Lambert v Bracco, 18 AD3d 619, 620).

CPLR § 3130

CPLR § 3130 Use of interrogatories

1. Except as otherwise provided herein, after commencement of an action, any party may serve upon any other party written interrogatories. Except in a matrimonial action, a party may not serve written interrogatories on another party and also demand a bill of particulars of the same party pursuant to section 3041. In the case of an action to recover damages for personal injury, injury to property or wrongful death predicated solely on a cause or causes of action for negligence, a party shall not be permitted to serve interrogatories on and conduct a deposition of the same party pursuant to rule 3107 without leave of court.

Nasca v D.M.R. Indus., Inc., 2010 NY Slip Op 01462 (App. Div., 2nd, 2010)

The Supreme Court properly denied that branch of the plaintiff's motion which was to compel the defendant to comply with his demand for disclosure of its tax returns for the year 2000. The plaintiff failed to show that the information contained in the defendant's tax returns was indispensable to his claim and could not be obtained from other sources (see Pugliese v Mondello, 57 AD3d 637, 639-640; Benfeld v Fleming Props., LLC, 44 AD3d 599, 600).

Since the plaintiff had already served the defendant with a demand for a bill of particulars, CPLR 3130(1) precluded the plaintiff from serving the defendant with a set of interrogatories (see Hyman & Gilbert v Greenstein, 138 AD2d 678, 681). Accordingly, the Supreme Court properly denied that branch of the plaintiff's motion which was to compel the defendant to respond to those interrogatories, and properly granted that branch of the defendant's cross motion which was for a protective order with regard to those interrogatories.

Failure to Restore ≠ Failure to Prosecute (it’s a little more complicated) CPLR 3216

Capitol Fire Sprinkler Co., Inc. v Capitale Rest., 2010 NY Slip Op 50222(U) (App. Term, 2nd, 2010)

In July 2003, plaintiff commenced this action in the Supreme Court to recover the principal sum of $50,000 for services rendered to defendant. Issue was joined, and, in November 2004, the case was transferred to the Civil Court pursuant to CPLR 325 (d). A notice of trial was filed, but the case was subsequently marked off the Civil Court calendar in 2005. In February 2008, plaintiff moved to restore the case to the trial calendar, and defendant cross-moved for dismissal of the complaint. By order entered July 10, 2008, the Civil Court stated that the "parties are directed to complete all outstanding discovery within 90 days . . . In all other respects, the motion and cross motion are denied." The instant appeal by defendant ensued.

Inasmuch as more than two years had passed before plaintiff moved to restore the case to the trial calendar, plaintiff was required to demonstrate, inter alia, a reasonable excuse for the delay and the merits of the case (see Sawak v Brown, 20 Misc 3d 136[A], 2008 NY Slip Op 51536[U] [App Term, 2d & 11th Jud Dists 2008]; Portoreal v Fields, 20 Misc 3d 139[A], 2008 NY Slip Op 51574[U] [App Term, 2d & 11th Jud Dists 2008]; LoFredo v CMC Occupational Health Servs., 189 Misc 2d 781 [App Term, 2d & 11th Jud Dists 2001]). Plaintiff argues that it demonstrated a reasonable excuse for the delay since, during the relevant time period, it was attempting to arrange depositions, as evidenced by letters and phone calls. However, the papers plaintiff submitted in support of its motion provided no information as to what specific actions it took between December 2006, when it sent its final letter to defendant's attorney requesting deposition availability dates, and February 2008, when it made the instant motion. Consequently, plaintiff failed to demonstrate a reasonable excuse for the delay, and, thus, its motion should have been denied in its entirety (Sawak v Brown, 20 Misc 3d 136[A], 2008 NY Slip Op 51536[U]).

Defendant cross-moved "for an order dismissing this action with prejudice." Since the [*2]case had been marked off the calendar and was in pre-notice-of-trial status, defendant could only have moved for dismissal, for want of prosecution, pursuant to CPLR 3216 (see e.g. Express Shipping, Ltd. v Gold, 63 AD3d 669, 670 [2009]). A delay in prosecuting an action, however, is not a ground for dismissal of the complaint when the plaintiff has not been served with a 90-day demand to serve and file a notice of trial (see Chase v Scavuzzo, 87 NY2d 228 [1995]; Rosenberg v Rae, 36 AD2d 835 [1971]; see also Bar-El v Key Food Stores Co., Inc., 11 AD3d 420 [2004]). Since defendant did not provide plaintiff with the requisite demand, its cross motion was properly denied (see Rosenberg, 36 AD2d at 835; see also Bar-El, 11 AD3d at 420).

CPLR 3404 is out because it doesn't apply in Civil Court.  That leaves 22 NYCRR § 208.14(c).  But just because it can't be restored doesn't mean that it can be dismissed with prejudice.  At least not under 3216.  CPLR 3216, as opposed to 3215, has a notice requirement.  Before anything can be dismissed under 3216, its protocols must be satisfied.  And even if it was dismissed under 3216, it probably wouldn't be dismissed with prejudice.  Going one step further, there would probably be a toll of the SOL, unless the judge made certain findings as required by CPLR 205(a).

Weird.  I know.

Intangible Personal Property can be Subject to Attachment under CPLR 6201

Hotel 71 Mezz Lender LLC v Falor, 2010 NY Slip Op 01348 (Ct. App., 2010)

The primary issue before the Court is whether the intangible personal property plaintiff sought to attach, i.e., defendants’ ownership/membership interests in various out-of-state business entities, was subject to attachment under CPLR article 62. We conclude that the issuance of an order of attachment in New York on defendant Guy T. Mitchell, the nondomiciliary garnishee of defendants’ intangible personal property, who voluntarily submitted to personal jurisdiction in New York, was appropriate.

We further hold that Supreme Court did not abuse its discretion in appointing a receiver pursuant to CPLR 5228. 

It’s a long decision.  I’ll add more later.  The bold is mine.

Snow Days and SOL

I received a comment from the no-fault blog from Turkewitz asking whether there was an provision in the CPLR that extends the SOL by a day if today is the last day to file.  Almost all of the NYC courts are closed today on account of the snow.

The CPLR does not (See CPLR § 201) have a provision that extends; however, Judiciary Law § 282 does.  I found one decision on point: Martin v. J.C. Penney Co., Inc., 275 A.D.2d 910 (App. Div., 4th, 2000). My search was more haphazard than thorough, so feel free to keep on searching.  I found it funny that I couldn’t find the decision on the New York Official Reports site, but I found it after a two second search on Google Scholar.

Plaintiffs commenced this negligence action to recover damages for personal injuries sustained by plaintiff Yvonne H. Martin on January 4, 1996 when she allegedly slipped on water in defendant’s store. On January 4, 1999, the date on which the Statute of Limitations for plaintiffs’ action expired, a snowstorm in the City of Buffalo resulted in a travel ban and the closing of the Erie County Clerk’s Office. Plaintiffs did not file their summons and complaint until January 5, 1999. In denying defendant’s motion to dismiss the action as time-barred, Supreme Court determined that the Statute of Limitations was extended by the travel ban and closing of the County Clerk’s office on the last day of the limitations’ period. Defendant contends that the court had no authority to extend the Statute of Limitations. We disagree.

Judiciary Law § 282-a provides that, “[w]henever the last day on which any paper is required to be filed with a clerk of a court * * * expires on a Saturday, Sunday, a public holiday or a day when the office of such clerk is closed for the transaction of business, the time therefor is hereby extended to and including the next business day such office is open for the transaction of business.” Pursuant to County Law § 525(1), the County Clerk is the Clerk of the Supreme Court and County Court within his or her county. In Erie County, the Clerk of the Supreme Court is therefore the Erie County Clerk for the purpose of “filing, recording and depositing of * * * papers in actions” (County Law § 525[2] ). Here, there is no dispute that the Erie County Clerk’s office was closed for business on January 4, 1999 due to a snow emergency. Such emergency closing extended the filing of plaintiffs’ summons and complaint to the next day when the Clerk was open for the transaction of business ( see, Judiciary Law § 282-a; see also, County Law § 206-a [2] ). Plaintiffs filed their summons and complaint the following day, and thus their filing was timely.

There you have it.  The bold is mine.

“Website confers personal jurisdiction”

CPLR § 302 Personal jurisdiction by acts of non-domiciliaries
(a) Acts which are the basis of jurisdiction
(1) transacts any business within the state or contracts anywhere to supply goods or services in the state

CPLR R. 3211(a)(8)the court has not jurisdiction of the person of the defendant

The decision is pretty long and I don’t have time to get into the fact, but I think it’s worthwhile to post so you at least know that the decision exists. It’s a good read.  I’ll add specifics later.

Grimaldi v Guinn, 2010 NY Slip Op 00926 (App. Div., 2nd, 2010)