[App Div 2d Dept]

CPLR § 7503 Arbs

CPLR § 7503 Application to compel or stay arbitration; stay of action; notice of intention to arbitrate

Shah v Monpat Constr., Inc., 2009 NY Slip Op 06132 (App. Div., 2nd, 2009)

Arbitration is favored in New York State as a means of resolving
disputes, and courts should interfere as little as possible with
agreements to arbitrate (see Matter of Smith Barney Shearson v Sacharow, 91 NY2d 39, 49; Matter of Miller, 40 AD3d 861,
861-862). There is a substantial countervailing consideration as well:
"by agreeing to arbitrate a party waives in large part many of his
normal rights under the procedural and substantive law of the State" (Matter of Marlene Indus. Corp. [Carnac Textiles], 45 NY2d 327, 333 334; see Matter of Miller, 40
AD3d at 862). For that reason, "a party will not be compelled to
arbitrate and, thereby, to surrender the right to resort to the courts,
absent evidence which affirmatively establishes that the parties
expressly agreed to arbitrate their disputes'" (Matter of Waldron [Goddess], 61 NY2d 181, 183, quoting Schubtex, Inc. v Allen Snyder, Inc., 49 NY2d 1, 6; see TNS Holdings v MKI Sec. Corp. 92 NY2d 335, 339; Matter of Miller, 40 AD3d at 862). "The agreement must be clear, explicit and unequivocal" (Matter of Waldron [Goddess], 61 NY2d at 183; see God's Battalion of Prayer Pentecostal Church, Inc. v Miele Assoc., LLP, 6 NY3d 371, 374; Matter of Miller, 40
AD3d at 862). Once the court has determined the threshold issues of the
existence of a valid agreement to arbitrate, that the party seeking
arbitration has complied with the agreement, and that the claim sought
to be arbitrated would [*3]not be time-barred were it asserted in state court (see CPLR 7502[b]; Matter of Smith Barney, Harris Upham & Co. v Luckie, 85 NY2d 192, 201-202), the remaining issues are for the arbitrator.

Here, the written contract was clear, explicit, and unequivocal
and established a valid agreement to arbitrate. The agreement expressly
adopted Document A201-1997 by reference, in effect, listed it as one of
the "Contract Documents" in Article 1, enumerated it as one of the
"Contract Documents" in Article 8, and referred to it by document
number throughout. Consequently, the arbitration provisions included in
Document A201-1997 are part of the written contract (see Matter of Level Export Corp. [Wolz, Aiken & Co.],
305 NY 82, 87). Shah's contention that he never received Document
A201-1997 is unavailing, and his ignorance of its provisions must be
attributed to " negligence or inexcusable trustfulness'" (Matter of Level Export Corp. [Wolz, Aiken & Co.], 305 NY 82, 87, quoting Metzger v Aetna Ins. Co., 227 NY 411, 416]).

The plaintiffs did not contend in the Supreme Court, either in
support of their motion to stay arbitration or in opposition to the
defendants' motion to compel arbitration, that Monpat had not complied
with conditions precedent to arbitration. Consequently, that issue is
not properly before us (see Matter of New York Cent. Mut. Fire Ins. Co. v Daley, 273 AD2d 315; Matter of County of Suffolk v Faculty Assn. of Suffolk County Community Coll., 247
AD2d 472). Indeed, had the issue been raised in the Supreme Court,
Monpat may have been able to present evidence that it had in fact
complied with conditions precedent (see Matter of New York Cent. Mut. Fire Ins. Co. v Daley, 273 AD2d 315; cf. Misicki v Caradonna, 12 NY3d 511; Weiner v MKVII-Westchester, 292 AD2d 597, 598).

In general, where there is a broad arbitration clause, any issue
with respect to changes in the substantive provisions of a contract or
its termination are to be resolved by the arbitrator, unless the
modification or termination relates to the arbitration clause itself (see Matter of Cassone, 63 NY2d 756, 759; Matter of All Metro Health Care Servs. Inc. v Edwards, 57 AD3d 892; Matter of Meetze [La Belle], 295 AD2d 991, 992; Matter of Cantor Fitzgerald, L.P. [Ginsberg],
228 AD2d 591). Here, the plaintiffs' contention that the written
contract was abandoned was not directly related to the arbitration
provisions, so the issue of abandonment should be left for the
arbitrator. The issue of the statute of limitations is so intertwined
with the parties' substantive contentions and the contentions regarding
abandonment that the issue of the statute of limitations should be left
to the arbitrator (see Matter of Corbo v Les Chateau Assoc., 127
AD2d 657, 658). As well, issues regarding proper service of the demand
for arbitration should be determined by the arbitrator (see Matter of Rockland County v Primiano, 51 NY2d 1, 8; Cooper v Bruckner, 21 AD3d 758, 759; J. Castronovo, Inc. v Hillside Dev. Corp., 140 AD2d 585).

Finally, the written contract was between Shah and Monpat, and
there is no clear evidence that the plaintiffs ever agreed to arbitrate
any disputes with Patel and RB. Consequently, the Supreme Court should
not have compelled the plaintiffs to arbitrate their claims against
those defendants (see Estate of Castellone v JP Morgan Chase Bank, N.A., 60 AD3d 621, 623).

The bold is mine.

Standing; CPLR R. 3211

CPLR R. 3211 Motion to dismiss

RLI Ins. Co. v Steely, 2009 NY Slip Op 06130 (App. Div., 2nd, 2009)

The defendant William Steely sought insurance coverage for a boating
accident pursuant to, inter alia, a homeowner's policy issued to him by
the defendant New York Central Mutual Fire Insurance Company
(hereinafter NY Mutual), and an umbrella policy issued to him by the
plaintiff, RLI Insurance Company. NY Mutual allegedly denied coverage
on the ground that, inasmuch as Steely owned the boat on the date of
the accident, there was no coverage because of a specific exclusion
under its policy. The plaintiff commenced this action for a judgment
declaring, inter alia, that NY Mutual was obligated to provide coverage
to Steely because he did not, in fact, [*2]own
the boat on the date of the accident, and that any such coverage
provided by the plaintiff's policy was excess to any coverage provided
by NY Mutual's policy.

NY Mutual moved, inter alia, pursuant to CPLR 3211 to dismiss
the complaint for lack of standing insofar as asserted against it. NY
Mutual argued, among other things, that the plaintiff lacked standing
to challenge its disclaimer of coverage to its insured. The Supreme
Court, inter alia, granted that branch of NY Mutual's motion which was
to dismiss the complaint insofar as asserted against it. We reverse the
order insofar as appealed from.

We find that the plaintiff has standing to challenge NY
Mutual's disclaimer of coverage to its insured. "A plaintiff need not
be privy to an insurance contract to commence a declaratory judgment
action to determine the rights and obligations of the respective
parties, so long as the plaintiff stands to benefit from the policy" (Mortillaro v Public Serv. Mut. Ins. Co., 285 AD2d 586, 587). Here, the plaintiff clearly stands to benefit from NY Mutual's policy.

The bold is mine.

Reasonbable Excuse and (Potentially?) Meritorious Defense: CPLR R. 5015

CPLR R. 5015 Relief from judgment or order

Kramer v Oil Servs., Inc., 2009 NY Slip Op 06121 (App. Div., 2nd, 2009)

A defendant seeking to vacate its default in appearing or answering the
complaint must provide a reasonable excuse for the default and
demonstrate the existence of a meritorious defense to the action (see CPLR 5015[a][1]; Lemberger v Congregation Yetev Lev D'Satmar, Inc., 33 AD3d 671, 672; Krieger v Cohan, 18 AD3d 823; Kaplinsky v Mazor,
307 AD2d 916). The only excuse proffered by the appellant for the
default in serving a timely answer was the more than one-year delay
caused by its insurance carrier in providing a defense which, under the
circumstances, was insufficient (see Toland v Young, 60 AD3d 754; Martinez v D'Alessandro Custom Bldrs. & Demolition, Inc., 52 AD3d 786; Canty v Gregory, 37 AD3d 508; Lemberger v Congregation Yetev Lev D'Satmar, Inc., 33 AD3d at 672; Krieger v Cohan, 18 AD3d 823; Hegarty v Ballee, 18 AD3d [*2]706). Accordingly, the Supreme Court providently exercised its discretion in denying the appellant's motion.

Recently I received a comment questioning why some decision require defendant to show a "potentially" meritorious defense and others require them to show meritorious defense. I suggested that "potentially meritorious" might be a middle ground between an "interests of justice" vacatur and and a normal meritorious defense vacatur. I know, that sentence is anything but clear. But I think you get the idea.

So, yeah, I'm still looking into it. I meant to do it over the weekend, but life got in the way. And I'm lazy. Eventually I will get to it, I swear.

The bold is mine.

Conclusory Expert Affidavit Just Won’t Do it

CPLR R. 3212 Motion for summary judgment

Ghany v Hossain, 2009 NY Slip Op 06116 (App. Div., 2nd, 2009)

On a motion for summary judgment, the movant must make a prima facie showing of entitlement to judgment as a matter of law (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851; Zuckerman v City of New York,
49 NY2d 557). Here, the defendants satisfied their burden and, in
opposition, the plaintiff failed to raise a triable issue of fact (see Grob v Kings Realty Assoc., 4 AD3d 394,
395). In opposition to the motion, the plaintiff submitted, inter alia,
the affidavit of an expert witness, who opined, in pertinent part, that
the condition of the subject stairs and the upper portion of the
handrail were substantial factors in causing the decedent's injuries.
Even if the stairway and handrail were defective, as the expert opined,
the Supreme Court properly determined that his conclusion linking the
alleged defects to the decedent's fall was purely speculative (see Grob v Kings Realty Assoc., 4 AD3d at 395). Accordingly, the Supreme Court properly awarded the [*2]defendants summary judgment dismissing the complaint.

Ismail v Tejeda, 2009 NY Slip Op 06118 (App. Div., 2nd, 2009).

The defendants did not meet their prima facie burden of establishing
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, 352; Gaddy v Eyler,
79 NY2d 955). The plaintiff clearly alleged in his bill of particulars
that he had sustained, inter alia, a medically-determined injury or
impairment of a nonpermanent nature which prevented him from performing
substantially all of the material acts constituting his usual and
customary activities for not less than 90 days during the 180 days
immediately following the accident. However, the affirmed report of the
defendants' examining physician did not specifically relate any of his
findings to the 90/180 day category of serious injury for the relevant
time period following the accident, and the defendants did not submit
any other evidence to refute the plaintiff's claim (see Neuburger v [*2]Sidoruk, 60 AD3d 650; Miller v Bah, 58 AD3d 815; Scinto v Hoyte, 57 AD3d 646).
Since the defendants failed to meet their prima facie burden with
respect to the 90/180 day category of a serious injury, it is
unnecessary to examine the sufficiency of the plaintiff's opposition
papers in this regard (see Neuburger v Sidoruk, 60 AD3d at 652; Miller v Bah, 58 AD3d at 816; Scinto v Hoyte, 57 AD3d at 647).

Far too often, counsel and judges alike ignore this important concept: An expert's affidavit (or affirmation), even if unrebutted, if conclusory or insufficient, will not carry the party offering the affidavit.

The bold is mine.

Republication Reaches New Audience, SOL Begins to Run from Republication

I don't know why I do the weird capitalization thing in my post titles. Eventually I'll stop or find some other, just as stupid, format for them.

CPLR R. 3211(a)(5) Motion to dismiss for SOL (or other things, but SOL in this case)

CPLR §
215 Actions to be commenced within one year: against sheriff, coroner
or constable; for escape of prisoner; for assault, battery, false
imprisonment, malicious prosecution, libel or slander; for violation of
right of privacy; for penalty given to informer; on arbitration award

Ross v Kohl's Dept. Stores, Inc., 2009 NY Slip Op 06131 (App. Div., 2nd, 2009)

The appeal from the intermediate order must be dismissed because the
right of direct appeal therefrom terminated with the entry of final
judgment in the action (see Matter of Aho, 39 NY2d 241, 248).
The issues raised on the appeal from the order are brought up for
review and have been considered on the appeal from the judgment (see CPLR 5501[a][1]).

The Supreme Court erred in granting the defendant's motion to dismiss the complaint [*2]pursuant
to CPLR 3211(a)(5) and CPLR 215(3) on the ground that the statute of
limitations had expired. The alleged libelous statement was published
by the defendant in 2000 when it forwarded a report regarding the
plaintiff to USIS, a reporting agency that provides background
information to employers, thereby communicating the information to a
third party (see Gregoire v Putnam's Sons, 298 NY 119). The
report generated by USIS in 2006 and provided to the plaintiff's
employer was a republication, as it was a separate and distinct
publication from the original that was intended to, and actually did,
reach a new audience (see Rinaldi v Viking Penguin, 52 NY2d 422,
433-435). Accordingly, the alleged libelous material was republished
and the statute of limitations began to run anew from the time of the
republication. This action was timely commenced within one year from
the republication and, therefore, the motion should have been denied.

The bold is mine.

Post-NOT Discovery; 22 NYCRR 202.21

22 NYCRR 202.21 Note of issue and certificate of readiness

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

CPLR R. 5515 Taking an appeal; notice of appeal

1. An
appeal shall be taken by serving on the adverse party a notice of
appeal and filing it in the office where the judgment or order of the
court of original instance is entered except that where an order
granting permission to appeal is made, the appeal is taken when such
order is entered. A notice shall designate the party taking the appeal,
the judgment or order or specific part of the judgment or order
appealed from and the court to which the appeal is taken.

Racine v Grant, 2009 NY Slip Op 06127 (App. Div., 2nd, 2009)

The Supreme Court improvidently exercised its discretion in granting
the defendants' cross motion pursuant to CPLR 3216 to dismiss the
complaint to the extent of directing the plaintiff to comply with a
demand for discovery which was annexed to the cross motion papers, as
the demand was made more than one year after a note of issue had been
filed in the action. The defendants failed to make the requisite
showing that "unusual or unanticipated circumstances" had arisen after
the filing of the note of issue (22 NYCRR 202.21[d], [e]; see Silverberg v Guzman, 61 AD3d 955; Utica Mut. Ins. Co. v P.M.A. Corp., 34 AD3d 793, 794; Audiovox Corp. v Benyamini, 265 AD2d 135, 138; Marks v Morrison, 275 AD2d 1027), to justify the demanded disclosure at this late stage of the action.

The plaintiff's argument that the Supreme Court should have
granted his motion to strike the defendants' answer is not properly
before us, as the plaintiff's notice of appeal limited the scope of the
appeal to that part of the Supreme Court's order which determined the
defendants' cross [*2]motion (see CPLR 5515[1]; Marciano v Ran Oil Co., E., LLC, 63 AD3d 1118).

The bold is mine.

CPLR R. 3025(b)

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

Sanatass v Town of N. Hempstead, 2009 NY Slip Op 05955 (App. Div., 2nd, 2009)

The Supreme Court properly determined that the defendant Town of
North Hempstead failed to establish its prima facie entitlement to
judgment as a matter of law on the issue of whether it received prior
written notice of the alleged defect (see Bonilla v Incorporated Vil. of Hempstead, 49 AD3d 788, 789; Kramer v Town of Hempstead, 284
AD2d 503, 504). Accordingly, the Supreme Court properly denied the
Town's motion for summary judgment dismissing the complaint and all
cross claims insofar as asserted against it.

"Leave to amend pleadings should be freely given provided that
the amendment is not palpably insufficient, does not prejudice or
surprise the opposing party, and is not patently devoid of merit" (Gitlin v Chirinkin, 60 AD3d 901, 902; see Sheila Props., Inc. v A Real Good Plumber, Inc., 59 AD3d 424, 426; Boakye-Yiadom v Roosevelt Union Free School Dist., 57 AD3d 929,
931). "A determination whether to grant such leave is within the
Supreme Court's broad discretion, and the exercise of that discretion
will not be lightly disturbed" (Gitlin v Chirinkin, 60 AD3d at 902; see Ingrami v Rovner, 45 AD3d 806,
808). Under the circumstances presented here, the Supreme Court
providently exercised its discretion in granting the plaintiff's cross
motion for leave to amend her pleadings pursuant to CPLR 3025(b).

Trans-World Trading, Ltd. v North Shore Univ. Hosp. at Plainview, 2009 NY Slip Op 05958 (App. Div., 2nd, 2009)

The plaintiff commenced this action seeking, inter alia, damages for
conversion against the Hospital. The cause of action to recover damages
for conversion alleged that the goods allegedly converted were housed
in the coffee shop. In May 2007 the plaintiff moved for leave to amend
the complaint to add a cause of action against the Hospital alleging
tortious interference with the plaintiff's contractual relations with
the coffee shop. It also sought leave to amend the cause of action to
recover damages for conversion against the Hospital to include, in
addition to the goods housed in the coffee shop, goods that were
purportedly stored in the Hospital basement.

A motion for leave to amend a complaint should be freely
granted "unless the proposed amendment is palpably insufficient or
patently devoid of merit, or where the delay in seeking the amendment
would cause prejudice or surprise'" (Commissioners of State Ins. Fund v Service Unlimited, USA, Inc., 50 AD3d 1085, 1085, quoting Lucido v Mancuso, 49 AD3d 220, 222; see G.K. Alan Assoc. Inc. v Lazzari, 44 AD3d 95, 99, affd 10 NY3d 941). The Supreme Court [*2]providently
exercised its discretion in denying that branch of the plaintiff's
motion which was for leave to amend the cause of action to recover
damages for conversion to include goods that were purportedly stored in
the Hospital's basement. Although exposure to additional liability
alone does not, in and of itself, amount to prejudice (see Loomis v Civetta Corinno Constr. Corp., 54 NY2d 18, 23; Commissioners of State Ins. Fund v Service Unlimited, USA, Inc.,
50 AD3d at 1085), in this case, the five-year delay in seeking the
amendment based upon facts that the plaintiff had known since the
inception of this action caused the Hospital surprise and prejudice.
The plaintiff's claim that the Hospital converted a few hundred boxes
of goods stored in its basement was not discernible from the complaint.
Thus, for more than five years, the Hospital proceeded on the premise
that the merchandise underlying the conversion claim was housed inside
the coffee shop (see Morris v Queens Long Is. Med. Group, P.C., 49 AD3d 827; cf. Schutz v Finkelstein Bruckman Wohl Most & Rothman,
247 AD2d 460, 461). Moreover, the plaintiff failed to present a
reasonable excuse for the delay. In light of the prejudice, it is not
necessary to address whether the proposed amendment was palpably
insufficient or patently devoid of merit (see Morris v Queens Long Is. Med. Group, P.C., 49 AD3d at 829; G.K. Alan Assoc., Inc. v Lazzari, 44 AD3d at 99; Lucido v Mancuso, 49 AD3d at 222).

Under the circumstances of this case, the Supreme Court also
providently exercised its discretion in denying that branch of the
plaintiff's motion which was for leave to amend the complaint to add a
cause of action against the Hospital alleging tortious interference
with contract (see Scofield v DeGroodt, 54 AD3d 1017, 1018; Benyo v Sikorjak, 50 AD3d 1074, 1076; Lucido v Mancuso, 49 AD3d at 222; Beja v Meadowbrook Ford, 48 AD3d 495).

The bold is mine.

CPLR § 503(a); CPLR § 510; CPLR R. 511(d)

CPLR § 510 Grounds for change of place of trial

The court, upon motion, may change the place of trial of an action where:

1. the county designated for that purpose is not a proper county; or

2. there is reason to believe that an impartial trial cannot be had in the proper county; or 3. the convenience of material witnesses and the ends of justice will be promoted by the change.

CPLR R. 511 Change of place of trial

CPLR § 503 Venue based on residence

Morreale v 105 Page Homeowners Assn., Inc., 2009 NY Slip Op 05952 (App. Div., 2nd, 2009)

Upon renewal, the appellants submitted excerpts of the
plaintiff's deposition testimony, which was taken after the Supreme
Court's original order dated January 8, 2007, denying their motion
pursuant to CPLR 510(1) and 511 to change the venue of the action from
Kings County to Richmond County. The relevant testimony revealed that
on or about December 31, 2005, which was just over one year after the
subject accident, the plaintiff moved to her son's apartment in
Brooklyn from her house in Staten Island after a "diabetic episode,"
that in March or April 2006, she entered into a contract to purchase a
house in New Jersey, that on August 8, 2006, three days after
commencing this action, she "took over" her new house in New Jersey,
and moved into it in November 2006.
[*2]

A residence for venue purposes
is a place where one stays for some time with "the bona fide intent to
retain the place as a residence for some length of time and with some
degree of permanency" (Katz v Siroty, 62 AD2d 1011, 1012; see Jones-Ledbetter v Biltmore Auto Sales, 229 AD2d 518, 519; Mandelbaum v Mandelbaum, 151 AD2d 727, 728).

Upon renewal, the appellants made a prima facie showing that the
plaintiff was temporarily staying at the Brooklyn apartment at the time
she commenced this action without "the bona fide intent to retain the
place as a residence for some length of time and with some degree of
permanency" (Katz v Siroty, 62 AD2d at 1012; see Neu v St. John's Episcopal Hosp., 27 AD3d 538; Jones-Ledbetter v Biltmore Auto Sales, 229 AD2d at 519; Sibrizzi v Mount Tom Day School, 155 AD2d 337). The plaintiff failed to rebut that showing (see Samuel v Green,
276 AD2d 687). Accordingly, upon renewal, the appellants' motion to
change venue from Kings County to Richmond County, the county where the
defendants resided, should have been granted (see CPLR 503[a]; Maggio v Wal-Mart Stores, 275 AD2d 350, 351).

The bold is mine.

Bumpus (IMPORTANT): CPLR § 1024; § 306-b; § 3102; R. 3025; § 602; § 203

CPLR § 1024 Unknown parties

CPLR
§ 306-b. Service of the summons and complaint, summons with notice,
third-party summons and complaint, or petition with a notice of
petition or order to show cause

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

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

CPLR § 602 Consolidation
(a) Generally

CPLR § 203 Method of computing periods of limitation generally
(f) Claim in amended pleading

I'm only posting the analysis on this one. For the facts in their entirety, read the decision. For a brief intro to the decision, click here.

Bumpus v New York City Tr. Auth., 2009 NY Slip Op 05737 (App. Div., 2nd, 2009)

II. The Interplay of CPLR 1024 and 306-b

The
New York State Legislature has recognized that there are circumstances
where a party is ignorant, in whole or in part, of the identity of a
person who should be made a party to an action. CPLR 1024 allows for
the commencement of an action against an unknown party "by designating
so much of his name and identity as is known" (see generally Orchard Park Cent. School Dist. v Orchard Park Teachers Assn., 50
AD2d 462, 467). To be effective, a summons and complaint must describe
the unknown party in such a manner that the "Jane Doe" would understand
that she is the intended defendant by a reading of the papers (see Olmsted v Pizza Hut of Am., Inc., 28 AD3d 855, 856; Justin v Orshan, 14 AD3d 492; Lebowitz v Fieldston Travel Bur., 181 AD2d 481, 482).

The use of CPLR 1024 presents many pitfalls. One pitfall is that
parties are not to resort to the "Jane Doe" procedure unless they
exercise due diligence, prior to the running of the statute of
limitations, to identify the defendant by name and, despite such
efforts, are unable to do so (see Hall v Rao, 26 AD3d 694, 695; Justin v Orshan, 14 AD3d 492, 492-493; Opiela v May Indus. Corp., 10 AD3d 340, 341; Tucker v Lorieo, 291 AD2d 261; Porter v Kingsbrook OB/GYN Assoc., 209
AD2d 497). Any failure to exercise due diligence to ascertain the "Jane
Doe's" name subjects the complaint to dismissal as to that party (see Hall v Rao, 26 AD3d at 695; Justin v Orshan, 14 AD3d at 492-493; Opiela v May Indus. Corp., 10
AD3d at 341). A second requirement unique to CPLR 1024 is that the
"Jane Doe" party be described in such form as will fairly apprise the
party that she is the intended defendant (see City of Mount Vernon v Best Dev. Co., 268 NY 327, 331; Olmsted v Pizza Hut of Am., Inc., 28 AD3d at 856; Justin v Orshan, 14
AD3d at 492-493). An insufficient description subjects the "Jane Doe"
complaint to dismissal for being jurisdictionally defective (see Lebowitz v Fieldston Travel Bur., 181 AD2d 481, 482-483; Reid v Niagra Mach. & Tool Co., 170 AD2d 662). A third pitfall unique to CPLR 1024 is its interplay with CPLR 306-b.

Prior to 1992, when actions in the Supreme and County Courts
were commenced by the service of process rather than by filing, a party
suing a "Jane Doe" defendant was under no particular time deadline for
ascertaining the unknown party's identity, other than commencing an
action against all defendants prior to the expiration of the relevant
statute of limitations (see Luckern [*3]v Lyondale Energy Ltd. Partnership, 229 AD2d 249, 255)^[FN1].
However, the enactment of CPLR 306-a in 1992 required that actions in
Supreme and County Courts be commenced by filing rather than by service
(L 1992, ch 216, § 6; see generally Matter of Fry v Village of Tarrytown, 89
NY2d 714, 718-720) and upon filing, CPLR 306-b, which was enacted at
the same time as 306-a (L 1992, ch 216, § 7), superimposed the
requirement that service of process be effected within 120 days (see CPLR 306-b; see generally Leader v Maroney, Ponzini & Spencer, 97
NY2d 95, 100-101). The filing of the summons with notice or summons and
complaint fixed the point at which an action was commenced for statute
of limitations purpose (see Leader v Maroney, Ponzini & Spencer, 97 NY2d at 100; Matter of Gershel v Porr, 89 NY2d 327, 330).

The enactment of CPLR 306-b placed plaintiffs wishing to
commence actions against "Jane Doe" defendants in an unenviable
position that did not previously exist. By virtue of CPLR 306-b,
plaintiffs were required to ascertain the identity of unknown "Jane
Doe" parties, and to serve process upon them, within 120 days from
filing. As a practical matter, it is not always easy or even possible
for plaintiffs naming "Jane Doe" defendants to meet the service
expectations of CPLR 306-b. In any given case involving two or more
defendants including an unknown party, a plaintiff may serve process
upon the known defendants early in the 120-day service period, and then
wait 20 or 30 days for appearances and answers (see CPLR 320[a]), absent consent extensions or pre-answer motions to dismiss the complaint (see CPLR
3211). Upon the joinder of issue, the plaintiff may then serve
discovery demands upon the known parties or upon non-parties for
information that may identify the unknown party, and wait for responses
which may or may not be fruitful, complied with, or timely. The
mechanics of serving process upon known parties, joining issue,
demanding discovery, and receiving meaningful responses will, as a
practical matter, exhaust, in many cases, all or most of the 120-day
period of CPLR 306-b for effecting service upon the newly-identified
party. If a "Jane Doe" is the only named defendant in an action, the
timely identification of the party's true identity for service of
process is even more challenging.

The harshness of CPLR 306-b under these circumstances is
ameliorated, in appropriate instances, by the "good cause" and
"interest of justice" exceptions to CPLR 306-b. These exceptions have
particular utility in actions where, as here, a plaintiff is delayed in
effecting service of process by virtue of not knowing the identity of a
target defendant.

The 120-day service provision of CPLR 306-b can be extended by
a court, upon motion, "upon good cause shown or in the interest of
justice" (CPLR 306-b). "Good cause" and "interest of justice" are two
separate and independent statutory standards (see Leader v Maroney, Ponzini & Spencer, 97 NY2d at 104). To establish good cause, a plaintiff must demonstrate reasonable diligence in attempting service (see Leader v Maroney, Ponzini & Spencer, 97 NY2d at 105-06). Good cause will not exist where a plaintiff fails to make any effort at service (see Valentin v Zaltsman, 39 AD3d 852; Lipschitz v McCann, 13 AD3d 417), or fails to make at least a reasonably diligent effort at service (see e.g. Kazimierski v New York Univ., 18 AD3d 820; Baione v Central Suffolk Hosp., 14 AD3d 635, 636-637; Busler v Corbett, 259
AD2d 13, 15). By contrast, good cause may be found to exist where the
plaintiff's failure to timely serve process is a result of
circumstances beyond the plaintiff's control (see U.S. 1 Brookville Real Estate Corp. v Spallone, 13 Misc 3d 1236[A], quoting Eastern Refractories Co., Inc. v Forty-Eight Insulations, Inc., 187 FRD 503, 505; see also Greco v Renegades, Inc., 307 AD2d 711, 712 [difficulties of service associated with locating defendant enlisted in military]; Kulpa v Jackson, 3 Misc 3d 227, 235 [difficulties associated with service abroad through the Hague Convention]).

If good cause for an extension is not established, courts must consider the "interest of justice" standard of CPLR 306-b (see e.g. Busler v Corbett, 259
AD2d at 17). The interest of justice standard does not require
reasonably diligent efforts at service, but courts, in making their [*4]determinations, may consider the presence or absence of diligence, along with other factors (see Leader v Maroney, Ponzini & Spencer, 97 NY2d at 105). The interest of justice standard is broader than the good cause standard (see Mead v Singleman, 24 AD3d 1142,
1144), as its factors also include the expiration of the statute of
limitations, the meritorious nature of the action, the length of delay
in service, the promptness of a request by the plaintiff for an
extension, and prejudice to the defendant (see Leader v Maroney, Ponzini & Spencer, 97 NY2d at 105-106; Matter of Jordan v City of New York, 38 AD3d 336, 339; Estey-Dorsa v Chavez, 27 AD3d 277; Mead v Singleman, 24 AD3d at 1144; de Vries v Metropolitan Tr. Auth., 11 AD3d 312, 313; Hafkin v North Shore Univ. Hosp., 279 AD2d 86, 90-91, affd 97 NY2d 95; see also Slate v Schiavone Const. Co., 4 NY3d 816).

The practicing bar need not rely exclusively on the ameliorative
provisions of CPLR 306-b for coping with the difficulties posed by
pursuing actions against unknown parties. There are, in fact, at least
four procedural mechanisms that may be utilized which, if applicable
and successful, would render unnecessary a party's reliance upon "good
cause" or the "interest of justice" for additional time to serve
process upon "Jane Doe" defendants who cannot be readily identified.

One such method is pre-action disclosure as permitted by CPLR
3102(c). The statute permits a prospective plaintiff to seek, by court
order, disclosure that will aid in bringing the action (see CPLR
3102[c]). It has been recommended that a request for pre-action
disclosure be sought by means of a special proceeding pursuant to CPLR
article 4 (see Connors, Practice Commentary, McKinney's Cons Laws of NY, CPLR C3102:4, quoting Robinson v Government of Malaysia, 174 Misc 2d 560). While pre-action disclosure is often thought of as a device to enable the plaintiff to frame a complaint (see generally Matter of Wien & Malkin v Wichman, 255 AD2d 244; Matter of Perez v New York City Health and Hosps. Corp., 84 AD2d 789; Matter of Rosenberg v Brooklyn Union Gas Co., 80 AD2d 834; Matter of Urban v Hooker Chems. & Plastics Corp., 75 AD2d 720; Matter of Roland, 10 AD2d 263, 265) or to preserve evidence for a forthcoming lawsuit (see generally Matter of Thomas v New York City Tr. Police Dept., 91 AD2d 898; Gearing v Kelly, 15 AD2d 477; Matter of O'Grady v City of New York, 164 Misc 2d 171, 173; Matter of Spraggins v Current Cab Corp., 127
Misc 2d 774, 775), it has also been recognized as an appropriate device
for ascertaining the identities of prospective defendants (see Matter of Alexander v Spanierman Gallery, LLC, 33 AD3d 411; Matter of Toal v Staten Is. Univ. Hosp., 300 AD2d 592; Matter of Stewart v New York City Tr. Auth., 112 AD2d 939, 940; Perez v New York City Health and Hosps. Corp., 84 AD2d at 789; Matter of Bergan v Sullivan Bros. Wood Prods. of Keeseville, 77 AD2d 723; Matter of Roland, 10
AD2d at 265). Plaintiffs' attorneys who are retained sufficiently in
advance of the expiration of the statute of limitations may avoid the
problem of identifying a "Jane Doe" defendant for service within the
time limits of CPLR 306-b, where successful pre-action disclosure
results in the identification of the unknown defendant prior to the
filing of a summons and complaint.

A second mechanism, available when a governmental entity may
know the identify of the unknown party, is the Freedom of Information
Law (Public Officers Law art 8, hereinafter FOIL). In a case such as
this involving a public employee, Public Officers Law § 89 would
require the disclosure of the employee's name (see Matter of Faulkner v Del Giacco, 139
Misc 2d 790, 794 [disclosure of names of prison guards accused of
inappropriate behavior]), but exempt from disclosure the employee's
home address (see Public Officers Law §§ 87[2][b]; 89[2][b]; 89[7]; Matter of Pasik v State Bd. of Law Examiners, 114 Misc 2d 397, 407-408, mod 102
AD2d 395). Nothing in the Public Officers Law appears to prohibit the
disclosure of records identifying an employee's work location and
schedule, which was the information that the NYCTA ultimately agreed to
provide to the plaintiff's counsel in this instance to enable service
of process upon Smith. FOIL requests are designed to be acted upon by
public agencies expeditiously, typically within five business days from
receipt of a written request for non-exempt records (see Public
Officers Law § 95[1][a]). The speed of the statute can prove useful to
practitioners who, facing an approaching statute of limitations, seek
to identify the "Jane Doe" party prior to the commencement of the
action.

Third, if pre-action discovery or FOIL requests are not viable
options, plaintiffs intending to pursue a "Jane Doe" defendant may
commence their actions against any known co-defendants, who may possess
information identifying the unknown party, well in advance of the
statute of limitations (accord Misa v Hossain, 42 AD3d at 486).
Doing so affords two distinct procedural options. If the discovery
process would not lead to an identification of the unknown target in
sufficient time for service of process upon that party under the
limited 120-day deadline of CPLR 306-b, the subsequent disclosure of
identifying information will still permit, within the wider statute of
limitations, either an amended complaint by stipulation or by leave of
court naming the [*5]additional party (see CPLR
3025[b]), or alternatively, the commencement of a timely separate
action against the additional party with a view to its later
consolidation with the original action (see CPLR 602[a]; cf. Matter of Vogel, 19 Misc 3d 853,
859). Commencing the initial action well before the expiration of the
statute of limitations makes service upon the newly-identified party
possible. The same result does not inure to practitioners who wait
until the limitations period is close to expiring before commencing
their actions against known parties.

Fourth, when an originally-named defendant and an unknown "Jane
Doe" party are united in interest, i.e. employer and employee, the
later-identified party may, in some instances, be added to the suit
after the statute of limitations has expired pursuant to the
"relation-back" doctrine of CPLR 203(f), based upon post-limitations
disclosure of the unknown party's identity (see Reznick v MTA/Long Is. Bus, 7 AD3d 773, 774; Gottlieb v County of Nassau, 92
AD2d 858). The relation-back doctrine allows a party to be added to an
action after the expiration of the statute of limitations, and the
claim is deemed timely interposed, if (1) the claim arises out of the
same conduct, transaction, or occurrence, (2) the additional party is
united in interest with the original party, and (3) the additional
party knew or should have known that but for a mistake by the plaintiff
as to the identity of the proper parties, the action would have been
brought against the additional party as well (see Buran v Coupal, 87
NY2d 173, 178). The moving party seeking to apply the relation-back
doctrine to a later-identified "Jane Doe" defendant has the added
burden of establishing that diligent efforts were made to ascertain the
unknown party's identity prior to the expiration of the statute of
limitations (see Hall v Rao, 26 AD3d at 695; Scoma v Doe, 2 AD3d at 433; Tucker v Lorieo, 291 AD2d at 262).

Furthermore, if the plaintiff is truly at the mercy of a service
extension under CPLR 306-b, which is discretionary on the part of the
court (compare Crystal v Lisnow, 56 AD3d 713, 714 with Cooper v New York City Bd. of Educ., 55 AD3d 526),
any "Jane Doe" service problem should be proactively addressed by the
filing of a motion for a CPLR 306-b extension. Indeed, the promptness
of a request for an extension of time to serve a "Jane Doe" defendant
is a specific factor that is to be considered by courts in determining
"interest of justice" extensions (see Leader v Maroney, Ponzini & Spencer, 97 NY2d at 105-106; Matter of Anonymous v New York State Off. of Children & Family Servs., 53 AD3d 810, 810-811; Rosenzweig v 60 N. St. LLC, 35 AD3d 705; Scarabaggio v Olympia & York Estates Co., 278 AD2d 476, affd
97 NY2d 95). While CPLR 306-b is not construed to require that a motion
for a service extension be filed before the expiration of the 120-day
statutory period (see Leader v Maroney, Ponzini & Spencer, 97 NY2d at 106-07), prompt motions are more likely to be successful (id.; Scarabaggio v Olympia & York Estates Co., 278 AD2d at 476), as they are a sign of diligence, whereas dilatory motions are less so (see Matter of Anonymous v New York State Off. of Children & Family Services, 53 AD3d at 810-811).

The bold is mine.

CPLR R. 3211 ROUNDUP: CPLR R. 3211(a)(1)(7)(8); CPLR R. 3016(a)

CPLR R. 3211

(a)(1) defense is founded upon documentary evidence

(a)(5) the
cause of action may not be maintained because of arbitration and award,
collateral estoppel, discharge in bankruptcy, infancy or other
disability of the moving party, payment, release, res judicata, statute
of limitations, or statute of frauds

(a)(7) pleading fails to state a cause of action

(8) the court has not jurisdiction of the person of the defendant

CPLR R. 3016 Particularity in specific actions

Freud v St. Agnes Cathedral School, 2009 NY Slip Op 05943 (App. Div., 2nd, 2009)

It is undisputed that, on August 27, 2007, the plaintiff's process
server visited the defendant's school and delivered the summons and
complaint in this action to Patricia Wren, who was employed by the
defendant. The defendant moved to dismiss the complaint on the ground
that service of process was invalid since Wren was only a secretary and
not authorized to receive service of process on behalf of the
defendant. At the hearing to determine the validity of service of
process upon the defendant, the process server testified that she
approached Wren, whom she believed to be a secretary, identified the
summons and complaint, and asked Wren if she was authorized to accept
service of the papers. According to the process server, Wren replied
that she was so authorized. Wren testified at the hearing that she was
employed by the defendant as a clerk, but denied that she ever told the
process server that she was authorized to accept service of process on
behalf of the defendant. After the hearing, the court denied the motion
to dismiss.

Ordinarily, the hearing court's assessment of a witness's credibility is entitled to substantial deference (see Ortiz v Jamwant, 305 AD2d 477; McGuirk v Mugs Pub, 250 AD2d 824, 825; Carlin v Crum & Forster Ins. Co., 170 AD2d 251). Under these circumstances, we perceive no reason to disturb its determination on appeal (see Fashion Page v Zurich Ins. Co., 50 NY2d 265).

Horbul v Mercury Ins. Group, 2009 NY Slip Op 05947 (App. Div., 2nd, 2009)

The plaintiff alleged in the complaint that the defendants committed
slander per se when they reported to the police that the plaintiff had
filed a fraudulent claim with them for no-fault medical benefits for
his son. However, the complaint failed to comply with CPLR 3016(a),
which requires that a complaint sounding in defamation "set forth the
particular words complained of'" (Simpson v Cook Pony Farm Real Estate, Inc., 12 AD3d 496, 497, quoting CPLR 3016[a]; see Fusco v Fusco, 36 AD3d 589). Compliance with CPLR 3016(a) is strictly enforced (see Abe's Rooms, Inc. v Space Hunters, Inc., 38 AD3d 690).
Accordingly, that branch of the defendants' motion which was pursuant
to CPLR 3211(a)(7) to dismiss the complaint for failure to state a
cause of action should have been granted.

Pinkava v Yurkiw, 2009 NY Slip Op 05953 (App. Div., 2nd, 2009)

The Supreme Court denied the defendants' motion, in effect, to
dismiss the first cause of action pursuant to CPLR 3211(a)(7), for
summary judgment dismissing the second through twelfth causes of action
on the ground that they were barred by the statute of frauds, and for
summary judgment on the counterclaims. We affirm.

The statue of frauds prohibits the conveyance of real property without a written contract (see
General Obligations Law § 5-703[1]). While the statute of frauds
empowers courts of equity to compel specific performance of agreements
in cases of part performance (see General Obligations Law § 5-703[4]), the claimed partial performance "must be unequivocally referable to the agreement" (Messner Vetere Berger McNamee Schmetterer Euro RSCG v Aegis Group, 93 NY2d 229, 235; Luft v Luft, 52 AD3d 479,
481). It is not sufficient that the oral agreement gives significance
to the plaintiff's actions. Rather, the actions alone must be "
unintelligible or at least extraordinary,' [and] explainable only with
reference to the oral agreement" (Anostario v Vicinanzo, 59 NY2d 662, 664, quoting Burns v McCormick, 233 NY 230, 232; see Adelman v Rackis,
212 AD2d 559, 561). Significantly, the doctrine of part performance "is
based on principles of equity, in particular, recognition of the fact
that the purpose of the Statute of Frauds is to prevent frauds, not to
enable a party to perpetrate a fraud by using the statute as a sword
rather than a shield" (Nicolaides v Nicolaides, 173 AD2d 448, 449-450, see Scutti Enters. v Wackerman Guchone Custom Bldrs., 153 AD2d 83, 87).

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