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CPLR R. 3216 Must Contain Certain Language & CC Order Can Have the Same Effect as a 90-day Notice

CPLR R. 3216 Want of prosecution

Itskov v Menorah Home & Hosp. for the Aged & Infirm, 2009 NY Slip Op 08999 (App. Div., 1st, 2009)

Here, the defendant's notice dated November 5, 2007, demanding that the plaintiffs serve and file a note of issue cannot be deemed a notice pursuant to CPLR 3216 because it failed to notify the plaintiffs that they were "to resume prosecution of the action and to serve and file a note of issue within ninety days after receipt of such demand" (CPLR 3216[b][3] [emphasis added]; cf. Johnson v Minskoff & Sons, 287 AD2d 233, 238). Since no proper notice was received by the plaintiffs prior to the defendant's motion, the Supreme Court was not authorized to dismiss the complaint pursuant to CPLR 3216 (see Rose v Aziz, 60 AD3d at 926; Harrison v Good Samaritan Hosp. Med. Ctr., 43 AD3d at 997; Schuering v Stella, 243 AD2d at 624).

Passet v Menorah Nursing Home, Inc., 2009 NY Slip Op 09009 (App. Div., 2nd, 2009)

CPLR 3216 permits a court to dismiss an action for want of prosecution only after the court or the defendant has served the plaintiff with a written notice demanding that the plaintiff resume prosecution of the action and serve and file a note of issue within 90 days after receipt of the demand, and also stating that the failure to comply with the demand will serve as the basis for a motion to dismiss the action (see Rose v Aziz, 60 AD3d 925, 926). Since CPLR 3216 is a legislative creation and not part of a court's inherent power (see Cohn v Borchard Affiliations, 25 NY2d 237, 248), the failure to serve a written notice that conforms to the provisions of CPLR 3216 is the failure of a condition precedent to dismissal of the action (see Airmont Homes v Town of Ramapo, 69 NY2d 901, 902; Rose v Aziz, 60 AD3d at 926; Harrison v Good Samaritan Hosp. Med. Ctr., 43 AD3d 996, 997; Schuering v Stella, 243 AD2d 623, 624).

Here, the defendants' notice demanding that the plaintiff serve and file a note of issue cannot be deemed a notice pursuant to CPLR 3216 because it failed to notify the plaintiff that she was "to resume prosecution of the action and to serve and file a note of issue within ninety days after receipt of such demand" (CPLR 3216[b][3] [emphasis added]; cf. Johnson v Minskoff & Sons, 287 AD2d 233, 238). Since no proper notice was received by the plaintiff prior to the defendants' motion, the Supreme Court was not authorized to dismiss the complaint pursuant to CPLR 3216 (see Rose v Aziz, 60 AD3d at 926; Harrison v Good Samaritan Hosp. Med. Ctr., 43 AD3d at 997; Schuering v Stella, 243 AD2d at 624).

Shcherbina v Queens Nassau Nursing Home, Inc., 2009 NY Slip Op 07615 (App. Div., 2nd, 2009)

In a compliance conference order dated April 1, 2003, the Supreme Court directed the plaintiff to file a note of issue on or before July 1, 2003, and warned that the action would be dismissed if the plaintiff failed to comply. Counsel for the plaintiff signed the order. This order had the same effect as a 90-day notice pursuant to CPLR 3216 (see Felix v County of Nassau, 52 AD3d 653, 653; Anjum v Karagoz, 48 AD3d 605, 605; Hoffman v Kessler, 28 AD3d 718). The plaintiff failed to comply with this order either by filing a timely note of issue or by moving to extend the period for doing so, and the action was properly dismissed pursuant to CPLR 3216 (see Felix v County of Nassau, 52 AD3d 653, 653-654; Anjum v Karagoz, 48 AD3d 605, 605). Since the plaintiff waited three years to move to vacate the dismissal of the action, the motion was untimely and should have been denied (see Vinikour v Jamaica Hosp., 2 AD3d 518, 519).

The bold is mine.

Compare the last two decisions with A.M. Med., P.C. v State Farm Mut. Ins. Co., 2008 NY Slip Op 28487 (App. Term, 2nd, 2008)

Wow, I just realized that these are all nursing home cases. Weird.

CPLR R. 5015 Don’t Try This at Home

CPLR R. 5015 Relief from judgment or order
(a) On motion
(1) excusable default…
(2) newly-discovered evidence…
(3) fraud, misrepresentation, or other misconduct of an adverse party
(4) lack of jurisdiction to render the judgment or order
(5) reversal, modification or vacatur of a prior judgment or order upon which it is based

Campbell-Jarvis v Alves, 2009 NY Slip Op 08986 (App. Div., 2nd, 2009)

In order to vacate her default in opposing the defendant's prior motion to dismiss, the plaintiff was required to demonstrate both a reasonable excuse for her default and a meritorious opposition to the motion (see Simpson v Tommy Hilfiger U.S.A., Inc., 48 AD3d 389, 392; Hospital for Joint Diseases v Dollar Rent A Car, 25 AD3d 534; Fekete v Camp Skwere, 16 AD3d 544, 545; Amato v Fast Repair, Inc., 15 AD3d 429, 430; Costanza v Gold, 12 AD3d 551, 552). Although the determination of what constitutes a reasonable excuse lies within the trial court's discretion (see Santiago v New York City Health & Hosps. Corp., 10 AD3d 393, 394; Roussodimou v Zafiriadis, 238 AD2d 568, 569; Grutman v Southgate At Bar Harbor Home Owners' Assn., 207 AD2d 526, 527), and the court has the discretion to accept law office failure as a reasonable excuse (see CPLR 2005), "a pattern of willful default and neglect" should not be excused (Roussodimou v Zafiriadis, 238 AD2d at 569 [internal quotation marks omitted]; see Santiago v New York City Health & Hosps. Corp., 10 AD3d 393; Kolajo v City of New York, 248 AD2d 512; Vierya v Briggs & Stratton Corp., 166 AD2d 645, 645-646; Chery v Anthony, 156 AD2d 414, 417), and the claim of law office failure should be supported by a "detailed and credible" explanation of the default or defaults at issue (Henry v Kuveke, 9 AD3d 476, 479; see Gironda v Katzen, 19 AD3d 644, 645). In this case, the plaintiff's attorney's conclusory, undetailed, and uncorroborated claim of law office failure did not amount to a reasonable excuse (see Forward Door of N.Y., Inc. v Forlader, 41 AD3d 535; Piton v Cribb, 38 AD3d 741; Matter of ELRAC, Inc. v Holder, 31 AD3d 636). In addition, the plaintiff failed to submit an affidavit of merit. Accordingly, the Supreme Court abused its discretion in granting the plaintiff's motion to vacate an order which granted the defendant's motion to dismiss the action upon her default in opposing the motion.

Now, compare that with

Lamar v City of New York, 2009 NY Slip Op 08974 (App. Div., 1st, 2009)

While the City's generalized assertion of law office failure as the excuse for its delay is not particularly compelling, it constitutes "good cause" for the delay (see Spira v New York City Tr. Auth., 49 AD3d 478 [2008]). No prejudice to plaintiff has been shown (see Cirillo v Macy's, Inc., 61 AD3d 538, 540 [2009]), and New York's public policy strongly favors litigating matters on the merits (see Silverio v City of New York, 266 AD2d 129 [1999]). An affidavit of merit is not required where no default order or judgment has been entered (see Cirillo, supra).

Performance Constr. Corp. v Huntington Bldg., LLC, 2009 NY Slip Op 09012 (App. Div., 2nd, 2009).

The Supreme Court providently exercised its discretion in denying that branch of the plaintiff's motion which was for leave to enter a default judgment against the defendant Corcoran Marble & Monument Co., Inc. (hereinafter Corcoran), and in granting Corcoran's cross motion for leave to serve a late answer (see CPLR 3012[d], 5015[a][1]). Considering the lack of any prejudice to the plaintiff as a result of the relatively short 11-day delay in Corcoran's service of an answer, the existence of a potentially meritorious defense, and the public policy favoring the resolution of cases on the merits, the Supreme Court providently excused Corcoran's de minimis delay in answering the complaint (see Klughaupt v Hi-Tower Contrs., Inc., 64 AD3d 545, 546; Schonfeld v Blue & White Food Prods. Corp., 29 AD3d 673, 674; Yonkers Rib House, Inc. v 1789 Cent. Park Corp., 19 AD3d 687, 688). Furthermore, the record reveals that Corcoran was actively engaged in settlement negotiations with the plaintiff's attorney, and that the plaintiff's attorney never mentioned that he would be moving for leave to enter a default judgment (see Armstrong Trading, Ltd. v MBM Enters., 29 AD3d 835, 836; Scarlett v McCarthy, 2 AD3d 623; Lehrman v Lake Katonah Club, 295 AD2d 322). [*2]

Moreover, the Supreme Court properly denied that branch of the plaintiff's motion which was for leave to enter a default judgment against the defendant Tritec Building Co. (hereinafter Tritec). The record reveals that Tritec and the plaintiff entered into a stipulation extending Tritec's time to answer "to and until March 3, 2008." Accordingly, Tritec's service of an answer was timely since the answer was served on March 3, 2008 (see CPLR 320[a]).

The bold is mine.

CPLR R. 2221(e) Motion to Renew

CPLR R. 2221
(e) Motion for Leave to Renew

Abayev v Zia, 2009 NY Slip Op 08565 (App. Div., 2nd, 2009)

A motion for leave to renew "shall be based upon new facts not offered on the prior motion that would change the prior determination" (CPLR 2221[e][2]) and "shall contain reasonable justification for the failure to present such facts on the prior motion" (CPLR 2221[e][3]; see Ramirez v Khan, 60 AD3d 748; Dinten-Quiros v Brown, 49 AD3d 588; Madison v Tahir, 45 AD3d 744). "Although a motion for leave to renew generally must be based on newly-discovered facts, this requirement is a flexible one, and a court has the discretion to grant renewal upon facts known to the movant at the time of the original motion, provided that the movant offers a reasonable justification for the failure to submit the additional facts on the original motion" (Matter of Allstate Ins. Co. v. Liberty Mut. Ins., 58 AD3d 727, 728).

Here, the Supreme Court providently exercised its discretion in granting the plaintiff leave to renew his opposition to the motion of the defendant Karen Mazuer for summary judgment dismissing the complaint insofar as asserted against her. The plaintiff submitted additional evidence and offered a reasonable justification for his failure to submit that additional evidence at the time of his opposition to the motion for summary judgment (see CPLR 2221[e]). However, upon renewal, the Supreme Court properly adhered to its original determination granting the motion for summary judgment.

Sajid v Glenwood Holding, LLC, 2009 NY Slip Op 09016 (App. Div., 2nd, 2009)

We affirm the denial of renewal on the ground that the defendants failed to offer a reasonable justification for failing to present the affidavit of the corporate defendants' principal in their opposition to the plaintiffs' original motion (see CPLR 2221[e]; Barnett v Smith, 64 AD3d 669, 670; Reshevsky v United Water N.Y., Inc., 46 AD3d 532, 533; St. Claire v Gaskin, 295 AD2d at 337).

The bold is mine.

What’s New In 3212? It’s (f)

Sometimes in order to oppose a motion for summary judgment, you need information. You need discovery.That's where CPLR R. 3212(f) comes in. It allows you to oppose the motion, by arguing that you cannot oppose without more information and, you can only get that information from the other party. The absence of discovery will not always be sufficient. There are many cases where the non-moving party needs no additional information to oppose the motion. "But we're entitled to discovery," or similar arguments, will not suffice, absent a articulable need. And be wary of invoking (f) where you, the non-moving party, filed a note of issue. CPLR R. 3211 has a similar provision.

On its face, this is simple stuff. But as usual, the devil is in the details. In the past few months I've seen a bunch of these decisions. I might not have noticed it before. It may just be the cool thing to do–in vogue at the moment.

CPLR R. 3212 Motion for summary judgment
(f) Facts unavailable to opposing party

Long Is. Power Auth. v Anderson, 2009 NY Slip Op 07989 (App. Div., 2nd, 2009)

Under the circumstances of this case, however, which include the total absence of any pretrial discovery, the plaintiff's motion for summary judgment was premature (see Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 506; Hall Enters., Inc. v Liberty Mgt. & Constr., Ltd., 37 AD3d 658; see also Matter of Niagara Mohawk Power Corp. v Town of Watertown, 6 NY3d 744).

McCoy v Zaman, 2009 NY Slip Op 07990 (App. Div., 2nd, 2009)

A rear-end collision with a stopped or stopping vehicle creates a prima facie case of negligence with respect to the operator of the moving vehicle and imposes a duty on the operator of the moving vehicle to rebut the inference of negligence by providing a non-negligent explanation for the collision (see Nieves v JHH Transp., LLC, 40 AD3d 1060; Velazquez v Denton Limo, Inc., 7 AD3d 787, 788; Barberena v Budd Enters., 299 AD2d 305, 306).

In opposition to the prima facie demonstration by the plaintiff of his entitlement to judgment as a matter of law, the defendant failed to proffer sufficient evidence to raise a triable issue of fact (see Nieves v JHH Transp., LLC, 40 AD3d at 1060; Rainford v Sung S. Han, 18 AD3d 638, 639). The defendant's affidavit submitted in opposition to the motion raised only feigned issues of fact intended solely to avoid the consequences of his prior admission (see Nieves v JHH Transp., LLC, 40 AD3d at 1060).

Contrary to the defendant's contention, summary judgment was not premature due to the alleged incompleteness of discovery (see Rivas v 525 Bldg Co., 293 AD2d 733, 735). There was no indication that any outstanding discovery might reveal information exclusively within the plaintiff's knowledge upon which his motion could successfully be opposed (see Household Bank [SB] N.A. v Mitchell, 12 AD3d 568, 568-569; Rivas v 525 Bldg Co., 293 AD2d at 735).

Doe v City of New York, 2009 NY Slip Op 08580 (App. Div., 2nd, 2009)

Furthermore, the Supreme Court properly rejected the plaintiff's contention that facts essential to justify opposition to that branch of the MTA/LIRR's motion may exist upon further discovery (see CPLR 3212 [f]). Accordingly, the Supreme Court properly denied the plaintiff's cross motion to compel discovery. The plaintiff failed to offer an evidentiary basis to suggest that discovery may lead to relevant evidence (see Panasuk v Viola Park Realty, LLC, 41 AD3d 804, 805; Ruttura & Sons Constr. Co. v Petrocelli Constr., 257 AD2d 614, 615). Moreover, the plaintiff filed a note of issue, failed to demand additional discovery within 20 days of the depositions as provided in the parties' discovery stipulation, and did not make any application to compel discovery until she cross-moved in opposition to the MTA/LIRR's motion. In such an instance, a claim of incomplete [*3]discovery will not defeat a prima facie showing of entitlement to summary judgment (see Guarino v Mohawk Containers Co., 59 NY2d 753; Matuszak v B.R.K. Brands, Inc., 23 AD3d 628).

Menezes v Khan, 2009 NY Slip Op 07991 (App. Div., 2nd, 2009)

The defendants failed to meet their prima facie burden of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957). The defendants did not address the plaintiff's claim, clearly set forth in his bill of particulars, that he sustained a medically-determined injury or impairment of a nonpermanent nature which prevented him from performing substantially all of the material acts which constituted his usual and customary daily activities for not less than 90 days during the 180 days immediately following the subject accident (see Negassi v Royle, 65 AD3d 1311; Alvarez v Dematas, 65 AD3d 598; Rahman v Sarpaz, 62 AD3d 979, 980; Smith v Quicci, 62 AD3d 858, 859). The plaintiff alleged in his bill of particulars that he missed three months of work as a result of the accident, and the defendants' neurologist and orthopedist were both advised of this allegation. However, neither of these experts, who did not examine the plaintiff until more than three years after the accident, related his findings to the 90/180 day category of serious injury. The affirmed medical reports of the defendants' radiologist also failed to establish that the plaintiff did not sustain a serious injury as a result of the accident. Although the radiologist opined that the plaintiff had not suffered any traumatic injury to his cervical and lumbar spines, her reports did not address any of the other injuries alleged in the plaintiff's bill of particulars, including bilateral shoulder and knee injuries (see Takaroff v A.M. USA, Inc., 63 AD3d 1142, 1143; Rahman v Sarpaz, 62 AD3d at 980; Delayhaye v Caledonia Limo & Car Serv., Inc., 61 AD3d 814, 815; Carr v KMO Transp., Inc., 58 AD3d 783, 784-785; Jensen v Nicmanda Trucking, Inc., 47 AD3d 769, 770). [*2]

Since the defendants did not sustain their prima facie burden, it is unnecessary to determine whether the papers submitted by the plaintiff in opposition were sufficient to raise a triable issue of fact (see Takaroff v A.M. USA, Inc., 63 AD3d at 1144; Rahman v Sarpaz, 62 AD3d at 980).

And, make sure to attach all the pleadings..

Fishkin v Feinstein, 2009 NY Slip Op 08782 (App. Div., 2nd, 2009)

The Supreme Court properly denied Feinstein's motion for summary judgment. As an initial matter, the plaintiff correctly contends that Feinstein was not entitled to summary judgment since the papers she submitted in support of her motion failed to include copies of all of the pleadings filed in the action, as required by CPLR 3212(b) (see Wider v Heller, 24 AD3d 433; Sted Tenants Owners Corp. v Chumpitaz, 5 AD3d 663; Deer Park Assoc. v Robbins Store, 243 AD2d 443; Lawlor v County of Nassau,166 AD2d 692).

The bold is mine.

CPLR § 5225(a)(b)

CPLR § 5225 Payment or delivery of property of judgment debtor
(a) Property in the possession of judgment debtor
(b) Property not in the possession of judgment debtor

Buckeye Retirement Co., LLC, Ltd. v Quattrocchi, 2009 NY Slip Op 08576 (App. Div., 2nd, 2009)

CPLR 5225(a) requires that notice of a motion to compel the turn over of personal property "shall be served on the judgment debtor in the same manner as a summons or by registered or certified mail, return receipt requested" (CPLR 5225[a]). The plaintiff's affidavit of service revealed that the judgment debtor was served by regular mail, rather than by a method set forth in CPLR 5225(a). The failure to properly serve notice upon the defendant of the plaintiff's motion pursuant to CPLR 5225(a) to compel the defendant to turn over to the Sheriff certain personal property in his possession deprived the court of jurisdiction to entertain the motion (see Zaidi v New York Bldg. Contrs., Ltd., 61 AD3d 747, 748; Daulat v Helms Bros., Inc., 32 AD3d 410, 411; Golden v Golden, 128 AD2d 672, 673; see also Banco Popular N. Am. v Philian Designs LLC, 48 AD3d 368, 369; Oil City Petroleum Co. v Fabac Realty Corp., 70 AD2d 859, affd on other grounds 50 NY2d 853). Accordingly, the Supreme Court properly denied the plaintiff's motion pursuant to CPLR 5225(a).

Matter of Signature Bank v HSBC Bank USA, N.A., 2009 NY Slip Op 08626 (App. Div., 2nd, 2009)

Faced with the judgment debtor's continuous default in making payments to satisfy the money judgment, the petitioner commenced the instant proceeding pursuant to CPLR 5225(b) against the judgment debtor, her bank, HSBC Bank USA, N.A. (hereinafter HSBC), and the judgment debtor's daughters, who were named on the subject joint bank accounts, inter alia, to direct HSBC to turn over the funds of the joint bank accounts to the petitioner. Both of the judgment debtor's daughters defaulted in answering the petition. The Supreme Court granted that branch of the petition which was to direct HSBC to turn over the funds of those bank accounts to the petitioner. We affirm.

CPLR 5225(b) provides for an expedited special proceeding by a judgment creditor to recover "money or other personal property" belonging to a judgment debtor "against a person in possession or custody of money or other personal property in which the judgment debtor has an interest" in order to satisfy a judgment (Starbare II Partners v Sloan, 216 AD2d 238, 239). The judgment creditor is required to serve the petition upon the judgment debtor in the same manner as a summons in an action or [*2]by registered or certified mail, return receipt requested (see CPLR 5225[b]). Once a court has personal jurisdiction over the judgment debtor and bank, it can order the turn over of "money or other personal property," even property located out of the state (see Gryphon Dom. VI, LLC v APP Intl. Fin. Co. B.V., 41 AD3d 25, 31; Miller v Doniger, 28 AD3d 405; Starbare II Partners v Sloan, 216 AD2d at 239).

Even jointly owned assets are vulnerable to levy by a judgment creditor pursuant to CPLR 5225. "Generally, the deposit of funds into a joint account constitutes prima facie evidence of an intent to create a joint tenancy" (Matter of Richichi, 38 AD3d 558, 559; see Banking Law § 675[b]; Matter of Dubin, 54 AD3d 947, 949). However, at the same time, "the opening of a joint bank account creates a rebuttable presumption that each named tenant is possessed of the whole of the account so as to make the account vulnerable to levy of a money judgment by the judgment creditor of one of the joint tenants" (Tayar v Tayar, 208 AD2d 609, 610; see Viggiano v Viggiano, 136 AD2d 630, 631; Denton v Grumbach, 2 AD2d 420, 422; Banking Law § 675[b]).

"The presumption created by Banking Law § 675 can be rebutted by providing direct proof that no joint tenancy was intended or substantial circumstantial proof that the joint account had been opened for convenience only'" (Fragetti v Fragetti, 262 AD2d 527, 527, quoting Wacikowski v Wacikowski, 93 AD2d 885, 885; see Matter of Friedman, 104 AD2d 366, 367, affd 64 NY2d 743; Storozynski v Storozynski, 60 AD3d 754). If the presumption is rebutted, the judgment creditor's levy on the jointly owned bank account is effective only up to the actual interest of the judgment debtor in the account (see Viggiano v Viggiano, 136 AD2d at 631).

The Supreme Court properly directed HSBC to turn over the entirety of the subject joint bank accounts to the petitioner (see LR Credit 10, LLC v Welsh, 17 Misc 3d 1129[A]; Rappaport, Steele & Co., P.C. v JPMorgan Chase Bank, N.A., 13 Misc 3d 1203[A]; Velocity Invs., LLC/Citibank v Astoria Fed. Sav. & Loan, 12 Misc 3d 1184[A]; Ford Motor Credit Co. v Astoria Fed., 189 Misc 2d 475, 477). It is undisputed that neither of the judgment debtor's daughters appeared or answered the proceedings, or in any manner challenged the petition's allegations to claim any portion of the joint bank accounts (see Rokina Opt. Co. v Camera King, 63 NY2d 728, 730; McClelland v Climax Hosiery Mills, 252 NY 347, 351; Otto v Otto, 150 AD2d 57, 65; Ford Motor Credit Co. v Astoria Fed., 189 Misc 2d at 476). The judgment debtor's mere conclusory assertions are patently insufficient to rebut her ownership of the funds in the bank accounts for purposes of the turnover proceedings (see Tayar v Tayar, 208 AD2d at 610). Under these circumstances, the Supreme Court properly determined that the petitioner was entitled to the turnover of the funds contained in the two joint bank accounts.

To the extent the judgment debtor raises an issue concerning that branch of the petition which was to direct HSBC to turn over the contents of a safe deposit box in the name of the judgment debtor, that issue remains pending and undecided, and, therefore, is not properly before this Court (see Katz v Katz, 68 AD2d 536, 542-543).

The bold is mine.

§ 205(a) From Up On High

CPLR § 205 Termination of action
(a) New action by plaintiff

Recently the New York Court of Appeals and 2nd Circuit Court of Appeals had occasion to discuss the recently amended CPLR § 205(a). First, the New York Court of Appeals. Underlying this decision is the Atlantic Yards fight that has been going on for some time. For more on the substance of the case, and its potential impact, head over to The Legal Satyricon and Popehat.

Matter of Goldstein v New York State Urban Dev. Corp., 2009 NY Slip Op 08677 (Ct. App., 2009)

Petitioners’ initial challenge to ESDC’s determination authorizing condemnation of their properties was made in a timely federal court action. The gist of that action was that the disputed condemnation was not supported by a public use and thus violated the Fifth Amendment of the Federal Constitution…In its answer, respondent, while defending the challenged determination on the merits, sought the petition’s dismissal on the ground that it had not been timely brought.

***

While the concurrence protests that failure to bar this proceeding because it was not commenced within 30 days of subject condemnation determination will impair the Legislature’s comprehensive plan for prompt adjudication of such determinations, this overlooks that it is not in the main the availability of CPLR 205 (a) that has delayed this condemnation, but the availability of a federal forum. Petitioners had every right to litigate their federal claims in federal court and to include in their federal action a supplemental state law cause of action (28 USC § 1367 [a]; City of Chicago v International Coll. of Surgeons, 522 US 156, 169, 171 [1997]). And, even without a state tolling provision, petitioners would have had the right under federal law to recommence their unadjudicated pendant state law claim in state court at the federal action’s conclusion (28 USC § 1367 [d]). However much they may have wished to streamline the process, it was not within the power of state legislators to deprive condemnees of access to federal court to litigate federal constitutional public use issues or to limit the federal courts’ jurisdiction to adjudicate supplemental state law claims (see TBK Partners v Western Union Corp., 675 F2d 456, 460 n 3 [2d Cir 1982], citing Railway Co. v Whitton’s Administrator, 80 US [13 Wall] 270, 286 [1872]; see also Marshall v Marshall, 547 US 293, 298-299, 313 [2006]). This being the case, it is practically beside the point to cavil about the frustration of the state legislative design.

The decision from the Second Circuit discusses the old 205(a), and ultimately dismisses the lawsuit as untimely. You can find the decision over at Full Court Pass, where I found it. I have a comment there. With the recent amendment to § 205, and few decisions discussing the statute, these two cases provide some valuable insight. Neither case discusses what will happen when a case is dismissed for failure to prosecute, where the court made none of the required findings.

These Are Not The Droids You’re Looking For (Discovery: CPLR § 3126)

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

Emmitt v City of New York, 2009 NY Slip Op 07331 (App. Div., 1st, 2009)

A party that disobeys court-ordered disclosure is subject to preclusion of relevant portions of its evidence (CPLR 3126). The nature of the sanction lies generally within the broad discretion of the court, and should not be disturbed absent an improvident exercise thereof (Gross v Edmer Sanitary Supply Co., 201 AD2d 390 [1994]). In its answer, defendant raised as an affirmative defense that any and all hazards, defects and dangers were of such an open, obvious and apparent nature that they were or should have been known to plaintiff, thus rendering her injuries attributable to her own culpable conduct. There is no reason to bar defendant from pursuing that defense. However, it was not an improvident exercise of discretion to preclude defendant from offering evidence as to the Con Edison permits. We modify only to clarify that it will be conclusively presumed at trial that defendant created or had notice of the trench involved in the accident. This relief will ameliorate the prejudice plaintiff has suffered as a result of defendant’s failure to timely disclose the Con Ed permits. Defendant’s ability to [*2]defend the suit by attributing the accident to plaintiff’s own lack of due care is not impaired.

Minaya v Duane Reade Intl., Inc., 2009 NY Slip Op 06767 (App. Div., 1st, 2009)

In sanctioning defendant for failing to preserve critical evidence, the motion court appropriately exercised its “broad discretion to provide . . . relief to the party deprived of the lost evidence” (Ortega v City of New York, 9 NY3d 69, 76 [2007]). Defendant failed to preserve a video recording that may have shown the stairway before and during plaintiff’s accident. The unavailability to plaintiff of the video recording may have impaired his ability to establish that defendant possessed the requisite notice of a defective condition on the stairs. Under these circumstances, however, the extreme sanction of preclusion is not warranted “to restore balance to the matter” (Baldwin v Gerard Ave., LLC, 58 AD3d 484 [2009]). Rather, an adverse inference is sufficient to prevent defendant from using the absence of the videotape to its own advantage (Tomasello v 64 Franklin, Inc., 45 AD3d 1287 [2007]).

Panagiotou v Samaritan Vil., Inc., 2009 NY Slip Op 07811 (App. Div., 2nd, 2009)

The plaintiffs failed to serve a responsive bill of particulars within the 30-day time limit set in the conditional order of preclusion entered February 25, 2008. The order, therefore, became absolute (see Gilmore v Garvey, 31 AD3d 381; Echevarria v Pathmark Stores, Inc., 7 AD3d 750, 751). To avoid the adverse impact of the conditional order of preclusion, the plaintiffs were required to demonstrate a reasonable excuse for their failure to comply and a meritorious cause of action (see State Farm Mut. Auto Ins. Co. v Hertz Corp., 43 AD3d 907, 908; Echevarria v Pathmark Stores, Inc., 7 AD3d at 751). The plaintiffs failed to make such a showing. Since the order of preclusion prevents the plaintiffs from establishing a prima facie case, the Supreme Court properly granted the defendants’ separate motions for summary judgment dismissing the complaint (see Calder v Cofta, 49 AD3d 484; State Farm Mut. Auto Ins. Co. v Hertz Corp., 43 AD3d at 908).

Bender, Jenson & Silverstein, LLP v Walter, 2009 NY Slip Op 08572 (App. Div., 2nd, 2009)

Since the defendant failed to establish that she made any effort to comply with the plaintiff’s repeated discovery requests, the Supreme Court properly considered her lack of cooperation to be willful and contumacious, and properly conditionally granted the plaintiff’s motion to preclude her from introducing the requested documents in evidence (see Kihl v Pfeffer, 94 NY2d 118; D’Aloisi v City of New York, 7 AD3d 750; Brooks v City of New York, 6 AD3d 565; Donovan v City of New York, 239 AD2d 461; cf. Scardino v Town of Babylon, 248 AD2d 371).

In light of the defendant’s noncompliance with discovery, the Supreme Court properly denied her motion to quash certain subpoenas which had been served on nonparty witnesses, on the basis that the information sought was otherwise unobtainable (see Hamilton v Touseull, 48 AD3d 520; Matter of Validation Review Assoc. [Berkuny Schimel], 237 AD2d 614; cf. People v Marin, 86 AD2d 40).

The bold is mine.

CPLR R. 3025 Amend and Conform–Not Too Difficult

CPLR R. 3025 Amended and supplemental pleadings
(b) Amendments and supplemental pleadings by leave

Schuyler v Perry, 2009 NY Slip Op 06825 (App. Div., 2nd, 2009)

The Supreme Court improvidently exercised its discretion in granting Perry’s motion for leave to serve an amended answer, as the first proposed amended answer was palpably insufficient and patently devoid of merit, insofar as the counterclaim contained therein was based on allegations of the plaintiff’s active or primary negligence or the plaintiff’s vicarious liability for DiMicco’s conduct, and the second proposed amended answer was palpably insufficient and patently devoid of merit, insofar as the counterclaim contained therein was based on allegations of the plaintiff’s vicarious liability for DiMicco’s conduct.

Moyse v Wagner, 2009 NY Slip Op 07808 (App. Div., 2nd, 2009)

Leave to amend a pleading “shall be freely given upon such terms as may be just” (CPLR 3025[b]; see Edenwald Contr. Co. v City of New York, 60 NY2d 957, 959) as long as the proposed amendment is not palpably insufficient or devoid of merit (see Bolanowski v Trustees of Columbia Univ. In City of N.Y., 21 AD3d 340, 341; Glaser v County of Orange, 20 AD3d 506; Ortega v Bisogno & Meyerson, 2 AD3d 607, 609). Accordingly, in considering a motion for leave to amend, it is incumbent upon the court to examine the sufficiency and merits of the proposed amendment (see Hill v 2016 Realty Assoc., 42 AD3d 432, 433; see e.g. Abrahamian v Tak Chan, 33 AD3d 947, 949; Fisher v Braun, 227 AD2d 586, 587).

Matter of Simonds v Kirkland, 2009 NY Slip Op 08662 (App. Div., 4th, 2009)

The mother also will not be heard to contend that the court erred in permitting the amendment of the pleadings to conform to the evidence presented at the hearing on the petition, inasmuch as the record establishes that the mother’s attorney consented to that amendment (see McLaughlin v City of New York, 294 AD2d 136; see also Atweh v Hashem, 284 AD2d 216, 217). In any event, “[t]he court has discretion to permit an amendment to conform the pleadings to the proof . . . [and i]t is an abuse of discretion to [withhold such permission] unless the opposing party can allege demonstrable and real surprise or prejudice” (General Elec. Co. v A. C. Towne Corp., 144 AD2d 1003, 1004, lv dismissed 73 NY2d 994; see CPLR 3025 [c]). Even assuming, arguendo, that the mother was in fact “an opposing party,” we conclude that she failed to demonstrate that she sustained any “real surprise or prejudice” arising from the amendment (General Elec. Co., 144 AD2d at 1004).

The bold is mine.

And back to posting

I had to take some time off from posting here because my apartment didn’t have the internets. It wasn’t my fault. Not completely. After it happened, I proportioned the blame. 75% my wife’s fault, 20% mine, and 5% for the 10-month-old. She’s only a baby, but she needs to take some responsibility for knocking the water bottle onto the modem.

That said, I’m back. Look for posts over the long weekend.

CPLR R. 3211(a)(1) Affidavits Don’t Count

CPLR R. 3211 is a curious rule. I wrote three paragraphs, but after I read them, I realized that I was only complicating things. Besides being a quirky rule, it is an extremely complicated rule.

Now consider Herrnsdorf v Bernard Janowitz Constr. Corp., 2009 NY Slip Op 07984 (App. Div., 2nd, 2009).

The Supreme Court properly denied that branch of Utica First’s motion which was pursuant to CPLR 3211(a)(1) to dismiss the third-party complaint. “[I]n order for a complaint to be dismissed pursuant to CPLR 3211(a)(1), the evidence submitted must resolve [ ] all factual issues as a matter of law, and conclusively dispose of the plaintiff’s claim'” (Del Pozo v Impressive Homes, Inc., 29 AD3d 621, 622, quoting Berger v Temple Beth-El of Great Neck, 303 AD2d 346, 347). Utica First failed to conclusively demonstrate that Janowitz was not an additional insured to the [*3]insurance policy. Additionally, Utica First could not rely on affidavits in support of its motion to dismiss pursuant to CPLR 3211(a)(1) because they do not constitute documentary evidence (see Berger v Temple Beth-El of Great Neck, 303 AD2d at 347).