Join em if ya got em AND when does a day end

Matter of Stephen & Mark 53 Assoc. LLC v New York City Dept. of Envtl. Protection, 2019 NY Slip Op 00072 [1st Dept. 2019]

This Court affirms the dismissal of the proceeding on an alternative basis argued to but not reached by the motion court (see Chanin v Machcinski, 139 AD3d 490 [1st Dept 2016]). Petitioner’s failure to join as a party the condominium board, which installed the backflow prevention device in dispute, constitutes a failure to join a necessary party (see Matter of Ferrando v New York City Bd. of Stds. & Appeals, 12 AD3d 287, 288 [1st Dept 2004]). Since the applicable statutory period has expired and the condominium board can no longer be joined, and proceeding in its absence would potentially be highly prejudicial to it, the proper remedy is dismissal of the proceeding rather than joinder of the condominium board (id.; see also CPLR 1001 and 1003).

The proceeding was also properly dismissed against respondent Department of Health for the independent reason that it did not make any final determination within the meaning of article 78 (see CPLR 7801[1], 7803[3]; Matter of Best Payphones, Inc. v Department of Info. Tech. & Telecom. of City of N.Y., 5 NY3d 30, 34 [2005]).

In view of the foregoing, we need not reach the issue of whether the proceeding was timely commenced because a filing made at midnight should be considered as having been made on the day leading up to the midnight. We note, however, that there is conflicting authority regarding whether a day ends at midnight, begins at midnight, or both ends and begins at midnight, and the parties have not cited to any cases involving the precise situation at issue here.

Stuff I meant to post but didn’t feel like it at the time.


Bonik v Tarrabocchia2010 NY Slip Op 07878 (App. Div., 2nd 2010)

The plaintiff failed to rebut the defendant's sworn statement that he never received a copy of the order entered July 1, 2004, which, inter alia, scheduled a conference for September 29, 2004. The assertion of the plaintiff's attorney that she personally served that order upon the then- pro se defendant was not supported by a proper affidavit of service or other proof of service (see Lambert v Schreiber, 69 AD3d 904). A written statement prepared by the plaintiff's attorney on August 4, 2004, was neither sworn to before a notary public nor subscribed and affirmed to be true under the penalties of perjury and, thus, did not constitute competent evidence of service (see CPLR 2106; Moore v Tappen, 242 AD2d 526). Without notice of the conference, the defendant's "default" was a nullity, as was the remedy imposed by the Supreme Court as a consequence (see CPLR 5015[a][4]; Pelaez v Westchester Med. Ctr., 15 AD3d 375, 376; Tragni v Tragni, 21 AD3d 1084, 1085; cf. Hwang v Tam, 72 AD3d 741, 742). In this situation, vacatur of the default is required as a matter of law and due process, and no showing of a potentially meritorious defense is required (see Pelaez v Westchester Med. Ctr., 15 AD3d at 376; Kumer v Passafiume, 258 AD2d 625, 626). Consequently, the subsequent inquest, the judgment entered March 21, 2006, and the order dated July 16, 2007, were all nullities, and must be vacated. In addition, there was no competent proof that the plaintiff served the defendant with notice of the inquest, a copy of the judgment entered March 22, 2006, with notice of entry, or a copy of the order entered July 20, 2007, with notice of entry.

Rizzo v Kay2010 NY Slip Op 09493 (App. Div., 2nd 2010)

Furthermore, under the circumstances of this case, it was not error for the trial court to allow testimony on the issue of whether the appellant abandoned treatment of the plaintiff before fully completing her dental work, and, in effect, to conform the pleadings to the proof adduced at trial by submitting a claim of abandonment to the jury. "A trial court generally has broad discretion to deem the pleadings amended to conform to the evidence presented at the [trial], even absent a motion by a party, provided [that] there is no significant prejudice or surprise to the party opposing the amendment" (Matter of Allstate Ins. Co. v Joseph, 35 AD3d 730, 731; see CPLR 3025[c]A-1 Check Cashing Serv. v Goodman, 148 AD2d 482). Here, the appellant was not prejudiced or surprised by the admission of evidence on the issue of abandonment and the submission of this issue to the jury, since the issue was explored, and relevant evidence obtained, during discovery (see Alomia v New York City Tr. Auth., 292 AD2d 403, 406; Diaz v New York City Health & Hosps. Corp., 289 AD2d 365, 366).

It was also proper for the trial court to dismiss the appellant's cross claim against the defendant Joseph Maniscalco. The plaintiff failed to present any expert evidence that Dr. Maniscalco departed from good and accepted standards of dental practice, and therefore agreed to withdraw her dental malpractice claim against Dr. Maniscalco at the close of her case. While the appellant opposed Dr. Maniscalco's motion to dismiss the cross claim against him upon the ground that there was a factual dispute as to whether Dr. Maniscalco was an independent contractor who could be held liable for his own acts of malpractice, the appellant's expert witness disclosure statement failed to identify any departures from good and accepted standards of dental practice which Dr. Maniscalco may have committed. Under these circumstances, the trial court providently exercised its discretion in ruling that the appellant would be precluded from offering expert testimony as to whether Dr. Maniscalco committed any acts of dental malpractice (see CPLR 3101[d][1][i]; Lucian v Schwartz, 55 AD3d 687, 688; Parlante v Cavallero, 73 AD3d 1001Schwartzberg v Kingsbridge Hgts. Care Ctr., Inc., 28 AD3d 463, 464), and in concluding that absent such expert testimony, the appellant could not establish a prima facie case of dental malpractice against Dr. Maniscalco, and therefore could not prevail upon his cross claim (see Perricone-Bernovich v Gentle Dental, 60 AD3d 744, 745; Sohn v Sand, 180 AD2d 789, 790.

Comice v Justin's Rest., 2010 NY Slip Op 07884 (App. Div., 2nd 2010)

The Supreme Court properly denied that branch of the plaintiff's motion which was pursuant to CPLR 1003 for leave to amend the summons and complaint to add Andre Suite as a defendant. The statute of limitations expired and the plaintiff failed to demonstrate that the relation-back doctrine was applicable (see CPLR 203[f]Buran v Coupal, 87 NY2d 173). In order for claims asserted against a new defendant to relate back to the date the claims were filed against an original defendant, the plaintiff must establish, inter alia, that the new 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 that party as well (see Buran v Coupal, 87 NY2d at 178; Arsell v Mass One LLC, 73 AD3d 668, 669; Boodoo v Albee Dental Care, 67 AD3d 717, 718). Here, the plaintiff failed to establish that Suite knew or should have known that, but for a mistake as to the identity of the proper parties, this action would have been brought against him as well (see Boodoo v Albee Dental Care, 67 AD3d at 718; Marino v Westchester Med. Group, P.C., 50 AD3d 861; Yovane v White Plains Hosp. Ctr., 228 AD2d 436, 437; see also Bumpus v New York City Tr. Auth., 66 AD3d 26, 34-35).

Furthermore, the Supreme Court properly denied that branch of the plaintiff's motion which was, in effect, pursuant to CPLR 1024 to name Andre Suite as a defendant in lieu of "John Doe." In order to employ the procedural mechanism made available by CPLR 1024, a plaintiff must show that he or she made timely efforts to identify the correct party before the statute of limitations expired (see Bumpus v New York City Tr. Auth., 66 AD3d at 29-30; Harris v North Shore Univ. Hosp. at Syosset, 16 AD3d 549, 550; Justin v Orshan, 14 AD3d 492, 492-493; Scoma v Doe, 2 AD3d 432, 433; Porter v Kingsbrook OB/GYN Assoc., 209 AD2d 497). Here, the plaintiff failed to make such a showing. 

Sanchez v Avuben Realty LLC2010 NY Slip Op 08780 (App. Div., 1st 2010)

An application brought pursuant to CPLR 5015 to be relieved from a judgment or order entered on default requires a showing of a reasonable excuse and legal merit to the defense asserted (see Crespo v A.D.A. Mgt., 292 AD2d 5, 9 [2002]). While the failure to keep a current address with the Secretary of State is generally not a reasonable excuse for default under CPLR 5015(a)(1) (id. at 9-10), where a court finds that a defendant failed to "personally receive notice of the summons in time to defend and has a meritorious defense," relief from a default may be permitted (CPLR 317; see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 142 [1986]).

Here, notwithstanding the Secretary of State's maintenance of the wrong corporate address, the evidence of record demonstrates that defendant did receive notice of the summons in time to interpose a defense, and inexplicably failed to do so. It is undisputed that six months after the complaint's filing, counsel for defendant's insurer contacted plaintiff's counsel to discuss settlement, at which time he was informed of the then-pending motion for default judgment. The very fact that settlement options were discussed at this time evidences that defendant was aware of plaintiff's action. Moreover, vacatur of a default judgment is not warranted merely because the default was occasioned by lapses on the part of an insurance carrier (see Klein v Actors & Directors Lab, 95 AD2d 757 [1983], lv dismissed 60 NY2d 559 [1983];Lemberger v Congregation Yetev Lev D'Satmar, Inc., 33 AD3d 671, 672 [2006]). The evidence of record also indicates that five months after filing of the summons and complaint, copies thereof were delivered to an undisputably valid address for defendant, as was notice of entry of the Supreme Court's March 26, 2007 order granting plaintiff's motion for default judgment and [*2]noticing an inquest as to damages. Still defendant took no action until approximately two-and-a-half years after the complaint's filing, when plaintiff attempted to collect on the Supreme Court's judgment.

Defendant failed to establish entitlement to vacatur of the default judgment under CPLR 5015(a)(3) due to an alleged fraud perpetrated by plaintiff in support of his complaint, as the affidavit it submitted in support of this claim was both conclusory and recounted hearsay.

Gibbs v St. Barnabas Hosp.2010 NY Slip Op 09198 (Ct. App. 2010)

Under CPLR 3042 (d), a court may invoke the relief set forth in CPLR 3126 when a "party served with a demand for a bill of particulars willfully fails to provide particulars which the court finds ought to have been provided pursuant to this rule." CPLR 3126, in turn, governs discovery penalties and applies where a party "refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed." The statute contains a list of nonexclusive sanctions and further permits courts to fashion orders "as are just." CPLR 3126 therefore broadly empowers a trial court to craft a conditional order — an order "that grants the motion and imposes the sanction 'unless' within a specified time the resisting party submits to the disclosure" (Connors, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3126:10 ["The conditional order is in fact the most popular disposition under CPLR 3126"]; see also CPLR 3042 [d]).

The situation that developed in this case is, unfortunately, a scenario that we have seen before. In Fiore v Galang (64 NY2d 999 [1985], affg 105 AD2d 970 [3d Dept 1984]), a medical malpractice action, the trial court granted a 30-day conditional order of preclusion directing plaintiffs to serve a bill of particulars on the defendant hospital. Following plaintiffs' lack of compliance with the order, the hospital moved for summary judgment dismissing the complaint. The trial court denied the motion on the condition that plaintiffs serve a bill of particulars and pay $415 to the hospital's attorneys [FN3]. On appeal, the Appellate Division reversed and dismissed the complaint, concluding that the trial court erred in excusing the default without requiring plaintiff to offer both a reasonable excuse and an affidavit of merit. We affirmed, explaining that "absent an affidavit of merits it was error, as a matter of law, not to grant defendant Hospital's motion for summary judgment" (id. at 1000 [emphasis added]).


In reaching this conclusion, we reiterate that "[l]itigation cannot be conducted efficiently if deadlines are not taken seriously, and we make clear again, as we have several times before, that disregard of deadlines should not and will not be tolerated" (Andrea v Arnone, Hedin, Casker, Kennedy & Drake, Architects & Landscape Architects, P.C. [Habiterra Assoc.], 5 NY3d 514, 521 [2005]; see also Wilson v Galicia Contr. & Restoration Corp., 10 NY3d 827, 830 [2008]; Miceli v State Farm Mut. Auto. Ins. Co., 3 NY3d 725, 726-727 [2004]; Brill, 2 NY3d at 652-653; Kihl, 94 NY2d at 123).




CPLR § 1003

CPLR § 1003 Nonjoinder and misjoinder of parties

Madison Physical Therapy, P.C. v 3311 Shore Parkway Realty Corp., 2010 NY Slip Op 09478 (App. Div., 2nd 2010)

The Supreme Court properly determined that since the record was devoid of evidence as to when Landmark's answer was served, it could not conclude that the amended complaint was filed untimely (see CPLR 1003).

In addition, the Supreme Court providently exercised its discretion in granting the plaintiff's cross motion for leave to amend the caption, in effect, to correct a misnomer in all papers filed in this action to properly name Shore Parkway as 3311 Shore Parkway Realty Corp. nunc pro tunc (see Aurora Loan Servs., LLC, v Thomas, 70 AD3d 986, 987).


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

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

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

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

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

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

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

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


In this case, the Church failed to raise its defense of improper
joinder in a timely, pre-answer
motion to dismiss the complaint, and also failed to assert such defense
in its answer.
Accordingly, it waived the defense (see CPLR 3211 [a] [8]; [e]).

The defense that the
Church did raise, that the court lacked jurisdiction over it, "by reason
of the manner in which the
summons was served," implicates the distinct personal jurisdictional
defense of improper service
of process, and was insufficiently specific to place the plaintiff on
notice that the Church was
complaining of improper joinder
(see McDaniel v Clarkstown Cent.
Dist. No. 1,
AD2d 624, 625 [1981]).

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

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

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

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

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

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

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

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

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