Category: Appellate Division

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.

Appellate Procedure: I don’t know why, but I kind of like this decision

CPLR § 5701 Appeals to appellate division from supreme and county courts
(a) Appeals as of right
(2) from an order not specified in subdivision (b), where the motion it decided was made upon notice…

Reyes v Sequeira, 2009 NY Slip Op 05986 (App. Div., 1st, 2009)

Supreme Court requested appraisals for both parcels from Skyline Appraisals Inc. and [*3]East
Coast Appraisals, and the appraisals were performed. While neither
party objected to the appraisals performed by Skyline, defendant sent a
letter to Supreme Court objecting to the appraisal performed by East
Coast. Defendant was concerned that the East Coast appraisal was
inaccurate and greatly undervalued the parcels. Defendant requested a
conference between the parties and the court to "resolve" issues
relating to the East Coast appraisal; no motion was made by either
party for any relief.

…

Without the prompting of a motion, Supreme Court determined the value of the parcels.

…

The court did not discuss the terms of the stipulation of settlement
that required the court to determine the value of the properties by
averaging two appraisals, and did not explain how its decision
to average the three appraisals was consonant with the terms of
stipulation of settlement. Nor did the court explain why it believed
that one of the valuation methods was to discard the lowest and highest
appraisals, a method that would entail no averaging. This appeal by
defendant ensued.

Prior to oral argument on this appeal, defendant moved to vacate the
stipulations of settlement — both defendant and the court that heard
and decided that motion treated the court's August 7, 2007
on-the-record statements as a stipulation; plaintiff, however, asserts
that the court gave directives to which the parties did not stipulate.
After oral argument of the appeal, Supreme Court granted the motion to
vacate. The court concluded that no binding stipulations existed, and
stated that the parties were free to conduct disclosure and file a note
of issue when the matter was ready for trial. Thus, although the order
appears not to have expressly vacated the order on appeal determining
the value of the properties, it implicitly does so (see generally Banker v Banker, 56 AD3d 1105, 1107 [2008]; Savino v "ABC Corp.," 44 AD3d 1026, 1027 [2007]; Matter of Jefferson County Dept. of Social Servs. v Mark L.O., 12 AD3d 1037, 1037-1038 [2004], lv denied
4 NY3d 794 [2005]). Moreover, of course, the order on appeal depends
entirely on the existence and validity of the stipulations.

Regardless of whether Supreme Court correctly vacated the stipulations that are the [*5]subject
of this appeal, the stipulations have been vacated and this appeal is
moot because the rights of the parties cannot be affected by a
determination of this appeal (Matter of Hearst Corp. v Clyne, 50 NY2d 707, 714 [1980]; see Matter of Feustel v Rosenblum,
6 NY3d 885 [2006] ["Appeal taken as of right from the Appellate
Division judgment . . . and motion for leave to appeal from said
judgment . . . dismissed as moot upon the ground that the judgment of
the Appellate Division has been vacated by a subsequent order of that
Court"]; Matter of Rodriguez v Johnson, 45 AD3d 279 [2007], lv denied 10 NY3d 705 [2008] ["Petitioner's appeal is moot because Supreme Court vacated the judgment on appeal"]; Fidata Trust Co. Mass. v Leahy Bus. Archives, 187 AD2d 270, 271 [1992] ["The order on appeal was subsequently vacated and thus rendered moot"]; see also Perez v Morse Diesel Intl., 10 AD3d 497
[2004]; Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book
7B, CPLR C5517:1, at 208 [1995] ["If the disposition of [a] motion [to
reargue, renew or vacate an order] does substantially affect the
original order . . . it may have some impact on the appeal. If it
alters the order in such a way as to remove the grievance that accounts
for the appeal, it should abate the appeal"]). Because the appeal has
been rendered moot we cannot and do not pass on the issues presented (see Hearst Corp.,
50 NY2d at 713-714 ["It is a fundamental principle of our jurisprudence
that the power of a court to declare the law only arises out of, and is
limited to, determining the rights of persons which are actually
controverted in a particular case pending before the tribunal. This
principle, which forbids courts to pass on academic,
hypothetical, moot, or otherwise abstract questions, is founded
both in constitutional separation-of-powers doctrine, and in
methodological strictures which inhere in the decisional process of a
common-law judiciary"]).

The dissent asserts that "by ruling that the intervening order
implicitly' vacates the order on appeal, [we] thereby pass[] on a
substantive issue" and "render[] an advisory opinion construing both
the status of the order appealed from and [the] effect of an order not
even before us." As is obvious from our decision, we pass on no
substantive issues relating to the rights of the parties. Equally as
obvious, we are not "rendering an advisory opinion construing both the
status of the order appealed from and [the] effect of an order not even
before us." Rather, we simply conclude that the order on appeal is moot
(and, as discussed below, nonappealable) and therefore the appeal must
be dismissed. Of course, we first conclude that the order vacating the
stipulations implicitly vacates the order on appeal. But that
conclusion merely reflects the exercise of our jurisdiction to
determine our jurisdiction (see United States v Mine Workers, 330 US 258, 291 [1947]).

The dissent states that by moving to vacate the stipulations, defendants "unilaterally prevent[ed] this Court
from deciding whether the motion court erred in vacating what
appears to be a valid agreement between the parties." In the first
place, however, defendants took no "unilateral" action. Defendants made
a motion on notice to vacate the stipulations, a motion Supreme Court
granted. Second, this Court is not precluded from determining whether
the stipulations are valid. To the contrary, we may determine that
precise issue should plaintiff perfect his appeal from the order
vacating the stipulations.

…

The appeal should be dismissed for another reason — it is from a sua sponte order from which no appeal lies (see Sholes v Meagher, 100 NY2d 333 [2003]; Person v Einhorn, 44 AD3d 363 [2007]; Unanue v Rennert, 39 AD3d 289 [2007]; Diaz v New York Mercantile Exch., 1 AD3d 242 [2003]). In Sholes
the Court of Appeals addressed the issue of the appealability of sua
sponte orders. There, an attorney was sanctioned by Supreme Court for
engaging in frivolous conduct in the course of a personal injury case.
From the bench the trial court gave the parties a briefing schedule,
requiring the attorney to submit an affidavit explaining why she should
not be sanctioned for her conduct and directing her adversary to submit
an affidavit detailing his costs and expenditures at trial. After both
sides submitted papers, the trial court ordered the attorney to pay her
adversary approximately $14,000. The attorney appealed to the Second
Department, which dismissed the appeal because the order imposing
sanctions did not decide a motion made on notice (295 AD2d 593 [2002]).

The Court of Appeals granted leave and concluded that the
Second Department had correctly dismissed the appeal. The Court of
Appeals stated that, "[w]ith limited exceptions, an appeal may be taken
to the Appellate Division as of right from an order deciding a motion
made upon notice when — among other possibilities — the order affects a
substantial right. There is, however, no right of appeal from an ex
parte order, including an order entered sua sponte" (100 NY2d at 335
[internal citations omitted]). The Court also stated "[t]hat an order
made sua sponte is not an order deciding a motion on notice is apparent
from various CPLR provisions, including the definition of motion (see
CPLR 2211) and the provision for dismissal for failure to prosecute,
which distinguishes between a court initiative' and a party's motion' (see CPLR 3216)" (id.
at 335 n 2). While the trial court had created a procedure to ensure
that the parties had an opportunity to be heard before the court acted,
the Court stressed that
"the submissions ordered sua sponte by the trial court were not
made pursuant to a motion on notice as contemplated by CPLR 5701(a)(2).
While the procedure in this particular case may well have produced a
record sufficient for appellate review, there is no guarantee that the
same would be true in the next case. Moreover, the amount of notice
will vary from case to case, and its sufficiency may often be open to
debate. Adherence to the procedure specified by CPLR 5701(a) uniformly
provides for certainty, while at the same time affording the parties a
right of [*7]review by the Appellate Division. We are therefore unwilling to overwrite that statute" (id. at 336).

As is evident from the briefs, the record and the attorneys'
statements at oral argument, the order determining the value of the
parcels was not the product of a motion made on notice. Rather, that
order was issued sua sponte and therefore is not appealable as of right
(id.; Person, supra; Unanue, supra; Diaz, supra).

The bold is mine.

Maybe it's the dissent.  Maybe it's the procedural wonk in me.  Maybe I'm just weird.  But I like this decision.

CPLR § 901: App. Div. can make de novo review of class certification decision

CPLR § 901 Prerequisites to a class action

Yeger v E*Trade Sec. LLC, 2009 NY Slip Op 06077 (App. Div., 1st, 2009)

In April 2008, Justice Cahn granted class certification and found the Yegers to be proper class representatives.
Noting that the "minuscule" nature of the damages sought did not
bar the claim, the court found the requisite class action element of
commonality based on the allegations that "the same practices were
done" to all members of the class. Aware that plaintiffs had accepted a
refund, the court stated there were "other deductions from the account
for [m]aintenance [f]ees which plaintiffs contend were deducted early
and which were not returned or accepted." After motion practice about
the proper term of the class period, the parties eventually stipulated,
without prejudice to this appeal, to a class period "commencing with
the third quarter of 2003 and ending with the fourth quarter of 2003"
as to all customers charged an AMF "in violation of their customer
agreement."

The Appellate Division may exercise de novo review of a class
certification decision, "even when there has been no abuse of
discretion as a matter of law by the nisi prius court" (Small v Lorillard Tobacco Co., 94 NY2d 43, 53 [1999]). To determine whether a lawsuit [*3]qualifies
as a class action, a court applies the five criteria of CPLR 901(a)
(numerosity, commonality, typicality, adequacy of representation and
superiority) to the
facts (see Hazelhurst v Brita Prods Co., 295 AD2d 240, 242 [2002])[FN1].
"[T]hat wrongs were committed pursuant to a common plan or pattern does
not permit invocation of the class action mechanism where the wrongs
done were individual in nature or subject to individual defenses" (Mitchell v Barrios-Paoli, 253 AD2d 281, 291 [1999]).

Whether E*Trade's conduct in assessing AMFs a day early caused
an individual class member to suffer actual damages depends upon facts
so individualized that it is impossible to prove them on a class-wide
basis. The motion court concluded that class certification was
appropriate because there was a common question as to whether E*Trade
collected the AMF too early, ie, before the date permitted in E*Trade's
contracts. However, this is only half the question. A breach of
contract claim only exists if E*Trade's common conduct actually damaged
a customer. Therefore, to recover, each class member would have to show
that he or she would have avoided the fee had E*Trade collected it at
the proper time. There were several actions that customers could have
taken to avoid the assessment (such as depositing additional funds or
executing additional securities trades), as well as other conditions
not under their control that could have prevented it, such as when
E*Trade, as a courtesy, refunded those customers who paid the AMF. It
is this aspect of proof that would be subject to a host of factors
peculiar to the individual. This aspect of proof is critical. To allow
the Yegers, or any class member, to recover the fee merely because
E*Trade collected it early—without proof that each member of the class
would have taken steps to avoid the fee had collection occurred at its
proper time—would result in a windfall to those plaintiffs who would
not have taken corrective action. In certain cases, it could also
result in writing the AMF out of the agreement entirely, a fee the
parties had agreed to freely. Accordingly, individualized issues,
rather than common ones, predominate (CPLR 901[a][2]).

In addition, plaintiffs are not proper class representatives
because their rejection of E*Trade's offer to refund the fee renders
their claim atypical (CPLR 901[a][3]). We have considered the
plaintiffs' remaining contentions and find them unavailing.

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; or3. 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. 5015(a)(4) Bad Faith Removal Doesn’t Divest NY Court of Jurisdiction

CPLR R. 5015 Relief from judgment or order
(a) On motion
(4) lack of jurisdiction to render the judgment or order

Astoria Fed. Sav. & Loan Association/Fidelity N.Y. FSB v Lane, 2009 NY Slip Op 05685 (App. Div., 1st, 2009)

Now, more than 10 years after the properties were sold and without
giving any excuse for her extraordinary delay, Lane seeks to undo the
foreclosures, oust the current owners from their homes, and vacate the
judgments. Lane's motions, presumably brought pursuant to CPLR
5015(a)(4), allege that Supreme Court lacked jurisdiction during the
limited time period in 1997 between the filing of the removal petition
and the federal court remand. Notably, Lane does not claim, nor could
she, that Supreme Court did not have jurisdiction over the matter at
any other time during the long history of this case. Lane offers no
reason why her removal attempt was proper, nor does she present any
viable defense on the merits of the foreclosure actions. And it is
undisputed that at the time the properties were sold, the federal court
had already remanded the matter to state court.

As a general rule, removal of an action divests the state court of its
jurisdiction over the dispute while the removal petition is pending in
federal court (Matter of Artists' Representatives Assn. [Haley],
26 AD2d 918 [1966]). While no New York case has addressed the specific
issue presented here, a number of other courts have carved out
exceptions to the general rule focusing on situations where removal
petitions were frivolous, duplicative or abusive. For example, in Motton v Lockheed Martin Corp.
(692 So 2d 6 [La App 1997]), after the defendant filed an improper
removal petition but before the federal court remanded, the plaintiff
filed a notice of appeal. The court denied the defendant's motion to
dismiss the appeal, finding that the defendant's removal attempt was
made to delay the plaintiff's right to move forward in the case.

…

We find that under the unique circumstances of this case, where the
federal court found the removal petition to be frivolous on its face
and where it was made in bad faith at the eleventh hour, following an
unsuccessful appeal, the motion court was not required, more than a
decade later, to vacate the judgments based on a claimed lack of
jurisdiction. There is no question that Lane's removal petition was
frivolous. In the order summarily remanding the matter to state court,
the federal court concluded that the petition showed "no non-frivolous
basis for jurisdiction" and that "it clearly appears on the face of the
papers submitted that removal should not be permitted."
[*3]

Moreover, Lane's removal
petition was undeniably untimely. A notice of removal of a civil action
must be filed within 30 days after receipt of a copy of the initial
pleading (28 USC
§ 1446[b]). Here, the foreclosure actions were commenced in
December 1994 and Lane's answers were struck in February 1996, yet the
removal petition was not filed until May 1997. Therefore, in addition
to asserting frivolous grounds for removal, the petition was
time-barred and could not have caused the state court to lose
jurisdiction (see Booth v Stenshoel, 96 Wash App 1019, 1999 WL
438888 [state court had jurisdiction to enter judgment after removal
petition was filed on the day of trial and 16 months after the action
was commenced]; Miller Block Co. v United States Natl. Bank, 389 Pa Super 461, 567 A2d 695 [1989], lv denied
525 Pa 658, 582 A2d 324 91990] [state court not divested of
jurisdiction upon filing of the removal petition where petition was
undisputedly untimely]; Ramsey v A.I.U. Ins. Co., 1985 Ohio App
LEXIS 8157, 1985 WL 10329 [an untimely removal petition is a nullity
and does not divest the state of jurisdiction]).

Lane's bad faith in filing her removal petition is apparent.
After an unsuccessful appeal and the lifting of an appellate stay, Lane
filed for bankruptcy and, as a result, obtained yet another stay of the
foreclosure action, which already had been pending for several years.
After the bankruptcy stay was lifted, plaintiff submitted proposed
judgments of foreclosure. A week later, instead of taking any action in
state court, Lane filed her frivolous removal petition. The only fair
reading of the record is that Lane's actions in attempting removal were
made in bad faith for the purpose of delaying the imminent
foreclosures. Lane's bad faith litigation conduct persists to this day,
as evidenced by her inexcusable delay in waiting more than 10 years to
challenge the judgments despite being aware of their existence within
weeks of their entry.

We recognize that some courts have concluded no exceptions
should be created to the general rule and thus have invalidated state
court action taken after removal but before remand (see e.g. South Carolina v Moore, 447 F2d 1067 [4th Cir 1971]; State ex rel. Morrison v Price, 285 Kan 389, 172 P3d 561 [2007]; People v Martin-Trigona,
28 Ill App 3d 605, 328 NE2d 362 [1975]). These cases are not binding on
us, and in any event, we decline to follow them under the egregious
circumstances presented here. With no good reason, Lane waited over a
decade before deciding to come back to court to challenge the
foreclosures. Her abuse of the legal process, both in filing a bad
faith petition and in failing to move to vacate the judgments she
unquestionably knew about, cannot be countenanced, particularly in
light of the harm that could befall the innocent purchasers of the
properties. To hold otherwise would reward Lane for her inexcusable
delaying tactics and would be entirely "inconsistent with any notion of
fairness and justice" (Farm Credit Bank of St. Paul v Rub, supra, 481 NW2d at 457).

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).

Continue reading “CPLR R. 3211 ROUNDUP: CPLR R. 3211(a)(1)(7)(8); CPLR R. 3016(a)”