[App Div 1st Dept]

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.

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.

Welcome to the CPLR R. 3212 roundup. Like the R. 3211 roundup, some of these decisions are a few months old because I've let them sit. And like the 3211 roundup, this one might be kind of long. Three are about timing, the rest are (f).

Shaibani v Soraya, 2010 NY Slip Op 02771 (App. Div., 2nd, 2010)

CPLR 3212(a) provides that "[a]ny party may move for summary judgment in any action, after issue has been joined." Joinder of issue requires the service of a complaint by the plaintiff and an answer or counterclaim by the defendant (see Chakir v Dime Sav. Bank of N.Y., 234 AD2d 577, 578; Woodworth v Woodworth, 135 AD2d 1143). Here, the plaintiff served the defendant with a summons with notice on or about January 15, 2008. There is no indication in the record that the plaintiff ever served the defendant with a complaint. Instead, the plaintiff moved, and the defendant cross-moved, for summary relief. Under these circumstances, the Supreme Court erred in considering the merits of the motion and cross motion, in effect, for summary judgment, since issue had not yet been joined as required by CPLR 3212 (see CPLR 3212[a]; City of Rochester v Chiarella, 65 NY2d 92, 101; Union Turnpike Assoc., LLC v Getty Realty Corp., 27 AD3d 725, 727).

Hurley v Best Buy Stores, L.P., 2010 NY Slip Op 02424 (App. Div., 1st, 2010)

Defendants failed to demonstrate "good cause" for their belated summary judgment motion (CPLR 3212[a]; Brill v City of New York, 2 NY3d 648, 652 [2004]). The fact that they switched counsel before their prior counsel could take steps for relief from plaintiff's negligence claims does not constitute good cause, since prior counsel should have been aware of various defenses and should have requested such relief in a timely manner in their first summary judgment motion (see Breiding v Giladi, 15 AD3d 435 [2005]; see also Perini Corp. v City of[*2]New York, 16 AD3d 37 [2005]). In light of this decision, we need not consider whether triable issues of fact would have precluded summary relief.

Continue reading “CPLR R. 3212 Roundup”

Pre (CPLR § 5001) and Post (CPLR § 5003) Judgment Interest

CPLR § 5001 Interest to verdict, report or decision

CPLR § 5003 Interest upon judgment

Ficus Invs., Inc. v Private Capital Mgt., LLC, 2010 NY Slip Op 02653 (App. Div., 1st, 2010)

Since the sum was not awarded because of breach of a contract, Donovan is not entitled [*2]to pre-judgment interest pursuant to CPLR 5001. Nor is Donovan entitled to post-judgment interest pursuant to CPLR 5003, since no money judgment was entered against plaintiffs.

The CPLR R. 3211 Roundup: It’s going to be loooong.

Because I can't let all of these decisions keep on piling up, I'm doing a 3211 dump. This will probably be followed by a 300's dump, and maybe a 3212 dump.

There is a lot here, but it's worth skimming. Most of the cases related to improper service or conversion (3211–>3212).

Garner
v China Natural Gas, Inc., 2010 NY Slip Op 02095 (App. Div.,
2nd, 2010)

Although the defendants' motion was
made pursuant to CPLR 3211, the
Supreme Court, in effect, converted that branch of the motion which was
to dismiss the cause of action alleging breach of contract into a motion
for summary judgment pursuant to CPLR 3212. This was error (see
Mihlovan v Grozavu, 72 NY2d 506; Bowes v Healy, 40 AD3d 566).
Thus, this Court will apply to the entire complaint the standards
applicable to a motion to dismiss pursuant to CPLR 3211 (see
Neurological Serv. of Queens, P.C. v Farmingville Family Med. Care, PLLC,
63 AD3d 703, 704).

In assessing a motion to dismiss made
pursuant to CPLR
3211(a)(7), the facts pleaded are presumed to be true and are accorded
every favorable inference (see Riback v Margulis, 43 AD3d
1023).
However, bare legal conclusions, as well as factual claims flatly
contradicted by the record, are not entitled to any such consideration (id.).

He-Duan Zheng v American Friends of the Mar Thoma Syrian Church
of Malabar, Inc., 67 AD3d 639 (App. Div., 2nd, 2009)

The defendant Mar Thoma Church (hereinafter the Church) alleged that
the plaintiff failed to
obtain leave of court prior to serving a supplemental summons and
amended complaint naming it
as a defendant in this action (see CPLR 1003). However, the
failure to obtain prior leave
of court is a waivable defect, and is not fatal in all instances (see
Gross v BFH Co., 151
AD2d 452 [1989]; see also Tarallo v Gottesman, 204 AD2d 303
[1994]; Santopolo v
Turner Constr. Co., 181 AD2d 429 [1992]; cf. Public Adm'r of Kings County v McBride, 15
AD3d 558
[2005]).

In this case, the Church failed to raise its defense of improper
joinder in a timely, pre-answer
motion to dismiss the complaint, and also failed to assert such defense
in its answer.
Accordingly, it waived the defense (see CPLR 3211 [a] [8]; [e]).
The defense that the
Church did raise, that the court lacked jurisdiction over it, "by reason
of the manner in which the
summons was served," implicates the distinct personal jurisdictional
defense of improper service
of process, and was insufficiently specific to place the plaintiff on
notice that the Church was
complaining of improper joinder (see McDaniel v Clarkstown Cent.
Dist. No. 1, 83
AD2d 624, 625 [1981]).

In any event, the Church waived its improper joinder defense by
its conduct in [*2]attending and
participating in a preliminary conference setting forth
a schedule for discovery, and in waiting until after the applicable
statute of limitations had
expired prior to making its motion to dismiss (see Tarallo v
Gottesman, 204 AD2d 303
[1994]; Santopolo v Turner Constr. Co., 181 AD2d 429 [1992]; Gross
v BFH Co.,
151 AD2d 452 [1989]). Moreover, the Church cannot claim surprise or
prejudice due to the
plaintiff's delay in seeking leave to add it as a defendant in light of
the statements made by its
Treasurer to the investigators for its insurance carrier indicating that
the Church was aware of the
subject accident on the very day that it occurred.

Pistolese v William Floyd Union Free Dist., 69 AD3d 825 (App. Div., 2nd, 2010)

In late June 2008, on the last day of the school year, the infant
plaintiff allegedly was
assaulted by other youths, as he walked home from school with friends
rather than ride a school
bus. The incident allegedly occurred along Montauk Highway, some 30
minutes after the infant
plaintiff left the school grounds. Although this was a pre-answer
motion, under the facts of this
case, the Supreme Court should have treated it as one for summary
judgment pursuant to CPLR
3211 (c) since the defendant not only requested such treatment, but both
the defendant and the
plaintiffs deliberately charted a summary judgment course (see
Mihlovan v Grozavu, 72
NY2d 506, 508 [1988]; see generally
McNamee Constr. Corp. v City of New Rochelle, 29 AD3d 544, 545
[2006]).

While schools are under a duty to adequately supervise the
students in their charge, they are
not insurers of the safety of their students (see Vernali v Harrison Cent. School Dist., 51
AD3d 782, 783
[2008]; Maldonado v Tuckahoe Union
Free School Dist., 30 AD3d 567, 568 [2006]; Chalen v Glen Cove School Dist., 29 AD3d 508,
509 [2006]). "[A]
school's duty is coextensive with, and concomitant with, its physical
custody and control over a
child" (Stagg v City of New York,
39 AD3d 533, 534 [2007]) and its "custodial duty ceases once the
student has passed out of
its orbit of authority and the parent is perfectly free to reassume
control over the child's
protection" (Vernali v Harrison Cent. School Dist., 51 AD3d at
783; see Pratt v
Robinson, 39 NY2d 554, 560 [1976]).
[*2]

Here, the incident occurred at a
time when the injured
plaintiff was no longer in the defendant's custody or under its control
and was, thus, outside of
the orbit of its authority. Accordingly, the defendant demonstrated its
prima facie entitlement to
judgment as a matter of law (see
Fotiadis v City of New York, 49 AD3d 499 [2008]; Stagg v City of New York, 39 AD3d 533, 534
[2007]; Morning v Riverhead Cent. School
Dist., 27 AD3d 435, 436 [2006]; Ramo v Serrano, 301 AD2d
640, 641 [2003]).

In opposition, the plaintiffs failed to raise a triable issue of
fact. They also failed to articulate
any nonspeculative basis to believe that discovery might yield evidence
warranting a different
result (see Stagg v City of New York, 39 AD3d at 534).

Frydman v Fidelity Natl. Tit. Ins. Co., 68 AD3d 622 (App. Div., 1st, 2009)

We have
considered plaintiffs' argument that the court improperly converted a
breach of contract action
into a declaratory judgment action and, without CPLR 3211 (c) notice,
converted a motion by
[*2]defendant to dismiss the complaint into
a motion for
summary judgment, and find it to be unavailing (see CPLR 2002;
Shah v Shah,
215 AD2d 287, 289 [1995]). This case contains no factual disputes, and
by submitting before the
Supreme Court every relevant piece of documentary evidence, along with
affidavits of
representatives of both parties discussing the application of such
evidence, the parties have
charted a course for summary judgment. Accordingly, the court properly
entered a declaratory
judgment in favor of defendants.

Continue reading “The CPLR R. 3211 Roundup: It’s going to be loooong.”

CPLR § 202 “Borrowing statute”

CPLR § 202 Cause of action accruing without the state

An action based upon a cause of action accruing without the state cannot be commenced after the expiration of the time limited by the laws of either the state or the place without the state where the cause of action accrued, except that where the cause of action accrued in favor of a resident of the state the time limited by the laws of the state shall apply.

Kat House Prods., LLC v Paul, Hastings, Janofsky & Walker, LLP, 2010 NY Slip Op 02489 (App. Div., 1st, 2010)

When a nonresident sues in New York's courts on a cause of action accruing outside the state, our "borrowing statute" (CPLR 202) requires that the cause of action be timely under the limitation periods of both New York and the jurisdiction where the claim arose (see Global Fin. Corp. v Triarc Corp., 93 NY2d 525, 528 [1999]). Generally, a tort action accrues "at the time and in the place of the injury," and "[w]hen an alleged injury is purely economic, the place of injury usually is where the plaintiff resides and sustains the economic impact of the loss" (id. at 529).

Applying these principles, it is clear that plaintiffs' legal malpractice claim accrued in California, where their residences and principal place of business were located and the alleged economic injury was sustained, at the latest, in March 2006. Under that state's applicable one-year statute of limitations (Cal Civ Proc Code § 340.6), this action, commenced in November 2007, was time-barred.

Note the difference in 202 where the plaintiff is a resident of New York.

Jurors: CPLR § 4106 (Alternates) and and CPLR § 4113 (Disagreements)

CPLR § 4106 Alternate jurors
CPLR § 4113 Disagreement by jury
(a) Unanimous verdict not required. A verdict may be rendered by not less than five-sixths of the jurors constituting a jury.

(b) Procedure where jurors disagree. Where five-sixths of the jurors constituting a jury cannot agree after being kept together for as long as is deemed reasonable by the court, the court shall discharge the jury and direct a new trial before another jury.

This is the first time 4113 appears on this blog. We are going to throw a party. Huzzah.

Cornell Univ. v Gordon, 2010 NY Slip Op 02072 (App. Div., 1st, 2010)

Plaintiffs, who are defendant's landlord, originally sought attorneys' fees pursuant to a stipulation of settlement that provided for such fees in the event of defendant's noncompliance with the stipulation, and were awarded a money judgment. Inasmuch as $31,434.43 of the judgment on appeal was awarded to compensate plaintiffs for their attorneys' fees incurred in enforcing the money judgment, as opposed to enforcing the stipulation underlying the money judgment, that portion of the jury award amounted to a "fee on a fee" not expressly authorized by the stipulation or by statute, and is therefore not recoverable (see David Z. Inc. v Timur on Fifth Ave., 7 AD3d 257, 258 [2004]; Getty Petroleum Corp. v G.M. Triple S. Corp., 187 AD2d 483, 484 [1992]).

The fee award of $15,000, compensating plaintiffs' attorneys for their efforts to compel defendant's compliance with the term of the stipulation that required defendant, at her sole cost and expense, to remove the final remaining Department of Buildings violation issued against the building because of her unauthorized apartment renovation, was not excessive under the circumstances.

Inasmuch as defendant fully consented to -— indeed even proposed -— having the two alternate jurors deliberate and render a verdict with the regular jurors, she has failed to preserve her argument that the court committed reversible error in submitting the case to a jury of eight persons rather than six (see Fader v Planned Parenthood of N.Y. City, 278 AD2d 41 [2000]; see also Sharrow v Dick Corp., 86 NY2d 54, 59-60 [1995]; Waldman v Cohen, 125 AD2d 116, 118-124 [1987]). Also unpreserved, for failure to timely object, is defendant's argument that the 6 to 2 jury votes in favor of plaintiffs were contrary to the requirement of CPLR 4113(a) that a verdict must be rendered by not less than five-sixths of the jurors constituting a jury (see Harvey v B & H Rests., Inc., 40 AD3d 241, 241 [2007]). We note, however, with respect to the merits, that while [*2]CPLR 4106 requires that alternate jurors be discharged after the final submission of the case, there was no substitution here of the two alternates for regular jurors after deliberations had begun, the circumstance that invalidated the jury deliberations in Gallegos v Elite Model Mgt. Corp. (28 AD3d 50, 54-55 [2005]), and that all eight jurors deliberated as a group from start to finish and reached a verdict together.

We reject defendant's contention that the court erred in giving a missing witness charge due to her failure to testify. While much of the trial indeed focused on the amount of attorneys' fees that would constitute a reasonable award, an issue about which defendant would not likely have had anything meaningful to contribute, the issue of whether attorneys' fees were properly awardable at all was also submitted for the jury's consideration, an issue that turned, at least in part, on the actions that defendant took to have the remaining plumbing violation removed. As plaintiffs' lay witness testified that defendant was not cooperative in producing the documents necessary to certify removal of the plumbing violation, defendant could be expected to dispute those facts or to explain why she cannot (see Crowder v Wells & Wells Equip., Inc., 11 AD3d 360, 361 [2004]).

The bold is mine.

Pleading Defamation and Fraud. CPLR R. 3016(a)(b)

Moreira-Brown v City of New York, 2010 NY Slip Op 02063 (App. Div., 1st, 2010)

In this action for defamation and emotional distress, the verified complaint alleges that on or about September 12, 1998, defendant Police Detective Raymond Rivera, acting as agent for his codefendants, made written and verbal defamatory statements that plaintiff "had committed rape and sexual assault and was being sought by the police for arrest and prosecution [for] rape and sexual assault." These words were not demarcated as a quotation in the complaint. Dismissing the complaint, the motion court held that plaintiff had not complied with CPLR 3016(a) because the complaint "does not set forth the particular words alleged to be defamatory."

While a complaint alleging defamation must allege the particular spoken or published words on which the claim is based, the words need not be set in quotation marks (see John Langenbacher Co. v Tolksdorf, 199 AD2d 64 [1993]). When construed in the light most favorable to plaintiff, the complaint alleges that Detective Rivera specifically stated that plaintiff "had committed rape and sexual assault," and "was being sought by the police for arrest and [*2]prosecution" for those crimes. This allegation is sufficient to meet the requirements of CPLR 3016(a).

Colasacco v Robert E. Lawrence Real Estate, 68 AD3d 706 (App. Div., 2nd, 2009)

CPLR 3016 (b) provides, in relevant part, that "[w]here a cause of action or defense is based upon misrepresentation, fraud, mistake . . . the circumstances constituting the wrong shall be stated in detail." The specificity requirements are relaxed where it is alleged that the particular circumstances of the alleged fraud are peculiarly within the defendants' knowledge (see Pludeman v Northern Leasing Sys., Inc., 10 NY3d 486, 491-492 [2008]; Pericon v Ruck, 56 AD3d 635, 636 [2008]).

"The essential elements of a cause of action sounding in fraud are a misrepresentation or a material omission of fact which was false and known to be false by defendant, made for the purpose of inducing the other party to rely upon it, justifiable reliance of the other party on the misrepresentation or material omission, and injury" (Orlando v Kukielka, 40 AD3d 829, 831 [2007]; see Ross v DeLorenzo, 28 AD3d 631, 636 [2006]). Here, the complaint fails to allege the elements of fraud with sufficient specificity. In particular, the complaint fails to allege that DiCorato's alleged misrepresentations to the plaintiffs were known by the defendants to be false. Furthermore, it is clear from the face of the complaint that the plaintiffs' supposed reliance upon DiCorato's alleged misrepresentations concerning the location of the property's boundary lines was unreasonable as a matter of law (see Orlando v Kukielka, 40 AD3d at 831). There was no allegation in the complaint that the dimensions and boundary lines of the subject property were within the exclusive knowledge of the defendants. Indeed, the plaintiffs could easily have ascertained these facts through the use of ordinary means (see Esposito v Saxon Home Realty, 254 AD2d 451 [1998]; Bennett v Citicorp Mtge., Inc., 8 AD3d 1050 [2004]; Mosca v Kiner, 277 AD2d 937, 938 [2000]). Accordingly, the Supreme Court should have dismissed the fraud cause of action pursuant to CPLR 3211 (a) (7).

Similarly, the cause of action sounding, in effect, in negligent misrepresentation also fails to meet the specificity requirements of CPLR 3016 (b). Furthermore, in order to prevail on such a cause of action, a plaintiff must establish that the defendant had a duty to use reasonable care to impart correct information due to a special relationship between the parties, that the information was incorrect or false, and that the plaintiff reasonably relied upon the information (see Grammer v Turits, 271 AD2d 644, 645 [2000]). The complaint fails to allege that the defendants had a duty to the plaintiffs to impart correct information arising out of a special relationship between them. Moreover, as with the fraud cause of action, the complaint fails to allege circumstances under which the plaintiffs' reliance upon DiCorato's alleged misrepresentations could be considered reasonable or justifiable. Thus, the Supreme Court should also have dismissed the second cause of action pursuant to CPLR 3211 (a) (7).

The bold is mine.

A tricky case (CPLR R. 3216)

CPLR R. 3216
Want of prosecution

Cadichon v Facelle, 2010 NY Slip Op 02058 (App. Div., 1st, 2010)

It is well settled that to vacate the dismissal of an action dismissed pursuant to CPLR 3216, a plaintiff must demonstrate both a reasonable excuse for the failure to comply with the 90-day demand to serve and file a note of issue and a meritorious cause of action (Walker v City of New York, 46 AD3d 278 [2007]). Plaintiffs failed to offer a reasonable excuse for their failure to file the note of issue. Indeed, while plaintiffs contended that defendants' noncompliance with their discovery obligations was to blame, and that such noncompliance was preventing them from filing a note of issue, "[they] had [their] remedies during the lengthy period of general delay (CPLR 3124, 3126)" (McDonald v Montefiore Med. Ctr., 60 AD3d 547, 547 [2009]).

While we do not disagree with the dissent's conclusion that some of the delay was occasioned by defendant, our decision rests on the record and controlling law which required plaintiffs to take action. Once served with a 90-day demand, plaintiffs were required to either seek an extension to comply with the 90-day notice, move to vacate the same (Brady v Benenson Capital Co., 2 AD3d 382, 382 [2003], lv denied 2 NY3d 702 [2004]) or file a note of issue [*2](CPLR 3216[b][3]). Plaintiffs did none of these things and their case was thus properly dismissed. Subsequent to dismissal, vacatur required a quantum of proof which plaintiffs utterly failed to satisfy with their first motion, and which they were unable to cure with the their second motion.

Plaintiffs also impermissibly addressed the merits of their action for the first time on reply (Migdol v City of New York, 291 AD2d 201, 201 [2002]; Lumbermens Mut. Cas. Co. v Morse Shoe Company, 218 AD2d 624, 625-626 [1995]; Ritt v Lenox Hill Hosp., 182 AD2d 560, 562 [1992].

The excuse of law office failure offered on the motion to reargue and renew did not constitute a reasonable excuse (Walker, 46 AD3d at 280-281). Further, plaintiffs failed to explain why they failed to present the excuse of law office failure on the original motion.

Remember the recent amendment to CPLR 205. Why doesn't it apply here? The dissent explains.

On the motion to renew, counsel explained that the conference resulting in the May 3, 2007 so-ordered stipulation was handled by an "of counsel" attorney, and thus, the December 27, 2007 deadline set by the court for the filing of the note of issue was not entered into the firm's calendar system as would ordinarily be done. Counsel further stated that had he known about the deadline, he would have moved for an extension of time to file the note of issue and/or to strike defendants' answers based on defendants' failure to comply with discovery. I would hold that this failure to calendar the date was, under the circumstances, excusable law office failure (see Kaufman v Bauer, 36 AD3d 481 [2007] [deadline missed due to personnel change at law firm]; Werner v Tiffany & Co., 291 AD2d 305 [2002] [counsel misplaced calendar and in reconstructing commitments forgot deadline]), particularly given defendants' delays and plaintiffs' inability, as a direct result thereof, to certify that discovery was complete. While this case was decided before the effective date of the amendment to CPLR 205, which provides that an action may not be dismissed under CPLR 3216 unless the judge sets forth "on the record the specific conduct constituting the neglect, which conduct shall demonstrate a general pattern of delay in proceeding with the litigation," it is not without significance that plaintiffs did not engage in a pattern of neglect.

While I agree with the motion court that the better practice would have
been for plaintiffs to have made a motion to compel discovery or for an
extension of time to file the note of issue, the failure to take these
steps should not result in dismissal of a meritorious cause of action.
It is [*4]the long established public
policy of this State to decide cases on their merits (see Kaufman v
Bauer, 36 AD3d at 483).

The bold is mine.