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 § 203(f)

CPLR § 203(f) Claim in amended pleading

Fisher v Giuca, 2010 NY Slip Op 00218 (App. Div., 2nd, 2010)

Furthermore, the court properly denied the plaintiffs’ application for leave to serve an amended complaint. The allegations in the original complaint did not fairly apprise Cleary of “the occurrences . . . to be proved pursuant to the amended pleading” (CPLR 203[f]). Thus, the new theories in the proposed amended complaint do not relate back to the original complaint, and are time-barred (see Panaccione v Acher, 30 AD3d 989, 990; Hyacinthe v Edwards, 10 AD3d 629, 631).

Supplemental summons not filed–CPLR R. 305(a)–>Dismissed–CPLR R. 3211(a)(2)

CPLR R. 305 Summons; supplemental summons, amendment
(a) Summons; supplemental summons

CPLR R. 3211(a)(2) the court has not jurisdiction of the subject matter of the cause of action

CPLR R. 3211(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

CPLR § 203 Method of computing periods of limitation generally
(c) Claim in complaint where action commenced by filing.
In an action which is commenced by filing, a claim asserted in the
complaint is interposed against the defendant or a co-defendant united
in interest with such defendant when the action is commenced.

Benn v Losquadro Ice Co., Inc., 2009 NY Slip Op 06307 (App. Div., 2nd, 2009)

The plaintiff was injured on June 20, 2003, when she slipped and
fell while working at a restaurant known as Orin's Seafood Hideaway,
located at 1683 Utica Avenue in Brooklyn. She commenced this negligence
action against, among others, the defendant Losquadro Ice Company, Inc.
(hereinafter Losquadro), the owner of the subject premises. Losquadro
commenced a third-party action against the defendant third-party
defendant Foodsaver New York, Inc., a/k/a Orin's Seafood Hideaway
(hereinafter Foodsaver). The plaintiff filed an amended complaint on
April 11, 2006, adding Foodsaver as a defendant in the action. In its
answer to the third-party complaint, Foodsaver disclosed that it had
subleased a portion of the subject premises to the appellant Utica
Restaurant Corp. (hereinafter Utica). On June 9, 2006, Losquadro served
the parties and Utica with an amended third-party complaint, which
joined Utica as a third-party defendant. On September 5, 2006, the
plaintiff filed a second amended complaint which joined Utica as a
direct defendant.

It is the filing of a supplemental summons and complaint which
commences an action against a newly-joined defendant or a third-party
defendant
(see CPLR 305[a]; Perez v Paramount Communications, 92 NY2d 749, 756; Tricoche v Warner Amex Satellite Entertainment Co., 48 [*2]AD3d 671, 673; Matter of Williams v County of Genesee,
306 AD2d 865, 867). It is undisputed that Losquadro's amended
third-party complaint was never filed with the court. Therefore, that
branch of Utica's motion which was pursuant to CPLR 3211(a)(2) to
dismiss the amended third-party complaint insofar as asserted against
it should have been granted.

Contrary to Utica's contention, however, it was not entitled to
dismissal pursuant to CPLR 3211(a)(5) of the plaintiff's second amended
complaint insofar as asserted against it. A claim asserted against a
defendant in an amended filing may relate back to claims previously
asserted against a codefendant for statute of limitations purposes
where the two defendants are "united in interest" (CPLR 203[c]
; see Buran v Coupal, 87 NY2d 173; Brock v Bua,
83 AD2d 61). The deposition testimony of Orin Tucker, the owner of both
Foodsaver and Utica, demonstrated that the relationship between the two
companies was such that Utica could be charged with notice of the
institution of the action under this doctrine and would not be
prejudiced in maintaining its defense on the merits (see Buran v Coupal, 87 NY2d at 178; Brock v Bua, 83 AD2d at 69).

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 § 203(d)

CPLR § 203 Method of computing periods of limitation generally

(d) Defense or counterclaim

Carlson v Zimmerman, 2009 NY Slip Op 04849 (App. Div., 2nd, 2009)

The Supreme Court erred, however, in granting that branch of the
plaintiffs' motion which was to dismiss the defendants' counterclaims
as time-barred insofar as the counterclaims pertained to erosion of the
defendants' properties caused by the plaintiffs' activities. Under CPLR
203(d), "claims and defenses that arise out of the same transaction as
a claim asserted in the complaint are not barred by the Statute of
Limitations, even though an independent action by defendant might have
been time-barred at the time the action was commenced" (Bloomfield v Bloomfield, 97
NY2d 188, 193). "The provisions of CPLR 203(d) allow a defendant to
assert an otherwise untimely claim which arose out of the same
transactions alleged in the complaint, but only as a shield for
recoupment purposes, and does not permit the defendant to obtain
affirmative relief"
(DeMille v DeMille, 5 AD3d 428, 429; see Delta Funding Corp. v Murdaugh, 6 AD3d 571, 571-572; Rothschild v Industrial Test Equip. Co., 203
AD2d 271, 272). Here, there is evidence that some of the defendants'
trespassing activities were undertaken in an attempt to correct damage
that the plaintiffs admitted to having caused by excavating too deeply
into their land abutting properties belonging to the defendants, and
failing to leave a sufficient buffer area along the border. It is
undisputed that these activities caused erosion on the affected
properties, allegations concerning which form the basis of portions of
the defendants' counterclaims. Accordingly, the Supreme Court should
have denied that branch of the plaintiffs' motion which was to dismiss
the counterclaims as time-barred to the extent that the damages sought
in the counterclaims are for the erosion caused by the plaintiffs'
excavating activities, and/or to reimburse the defendants' costs in
attempting to correct the resulting damage. These damages should be
applied to offset any damages award in favor of the plaintiffs and
against the defendants (cf. Delta Funding Corp. v Murdaugh, 6 AD3d at 571-572; DeMille v DeMille, 5 AD3d at 429).

The bold is mine.

CPLR § 213; CPLR § 203; Fraud SOL; Ct. App.

CPLR § 213 Actions to be commenced within six years

CPLR § 203 Method of computing periods of limitation generally

Sargiss v Magarelli, 2009 NY Slip Op 04301 (Ct. App. , 2009)

With respect to the timeliness of plaintiff's action, a fraud-based
action must be commenced within six years of the fraud or within two
years from the time the plaintiff discovered the fraud or "could with
reasonable diligence have discovered it" (CPLR 213 [8]; see
CPLR 203 [g]). The inquiry as to whether a plaintiff could, with
reasonable diligence, have discovered the fraud turns on whether the
plaintiff was "possessed of knowledge of facts from which [the fraud]
could be reasonably inferred" (Erbe v Lincoln Rochester Trust Co.,
3 NY2d 321, 326 [1957]). "Generally, knowledge of the fraudulent act is
required and mere suspicion will not constitute a sufficient
substitute" (id.). "Where it does not conclusively appear that a
plaintiff had knowledge of facts from which the fraud could reasonably
be inferred, a complaint [*4]should not be dismissed on motion and the question should be left to the trier of the facts" (Trepuk v Frank, 44 NY2d 723, 725 [1978]; see Erbe,
3 NY2d at 326).
There is no indication that plaintiff had knowledge of
the alleged fraud prior to her daughter's discovery of certain
financial documents in decedent's California home after his death, and
there is no dispute that plaintiff commenced this action within two
years of this discovery. Moreover, on the record before us, it is
unclear how plaintiff could have discovered the alleged fraud earlier
than she did.

The bold is mine.


CPLR § 213(8); CPLR § 203(f)

CPLR § 213 Actions to be commenced within six years

8. an action based upon fraud

CPLR § 203 Method of computing periods of limitation generally

(f) Claim in amended pleading

B.B.C.F.D., S.A. v Bank Julius Baer & Co. Ltd., 2009 NY Slip Op 03622 (App. Div., 1st, 2009)

The facts underlying Ivcher's proposed cross claims have been known
to him since no later than 2004, if not as long ago as late 2001. His
delay until August 2007 in requesting leave to amend his answer is
inexcusable
(see Chichilnisky v The Trustees of Columbia Univ. in City of N.Y., 49 AD3d 388, 389 [2008]; Spence v Bear Stearns & Co., 264 AD2d 601 [1999]).

Moreover, allowing the proposed amendment, which concerns events
that took place no later than 1999, would significantly alter the
status of this litigation by adding multiple new cross claims and a new
cross-claim plaintiff, effectively resurrecting two cases that, after
many years of litigation, are close to being resolved. In any event,
the new cross claims are untimely (see CPLR 213[8]), and the
"relation back" provision of CPLR 203(f) does not apply because "the
original pleading does not give notice of the transactions,
occurrences, or series of transactions or occurrences, to be proved
pursuant to the amended pleading."

The bold is mine.

CPLR § 203(c); CPLR R. 305(a)

CPLR § 203 Method of computing periods of limitation generally

CPLR R. 305 Summons; supplemental summons, amendment

(c) Amendment

Issing v Madison Sq. Garden Ctr., Inc., 2009 NY Slip Op 03599 (App. Div., 1st, 2009)

Plaintiff slipped and fell in Madison Square Garden while attending a
basketball game and filed a complaint naming MSG Center that was served
it on the Secretary of State pursuant to Business Corporation Law §
306. It appears that MSG Center, which once owned and managed the arena
where plaintiff fell, is a foreign corporation that has not been
authorized to do business in New York State since 1998, and that no
attempt to serve MSG LP, which has owned and managed the arena since
1998, was made until after the three-year statute of limitations had
run. Plaintiffs, therefore, rely on the relation-back doctrine (CPLR
203[c])
to argue that the timely service made on MSG Center should be
deemed to have been service on MSG LP. Such argument fails because MSG
Center was not served pursuant to Business Corporation Law § 307, which
sets forth procedures for serving an unauthorized foreign corporation
that are jurisdictional and require "strict compliance"
(Flick v Stewart-Warner Corp.,
76 NY2d 50, 57 [1990]). Since plaintiffs argue that, for statute of
limitations purposes, the service made on MSG Center amounted to
service on MSG LP, MSG LP can assert defenses that could have been
raised by MSG Center had it appeared in the action, and since MSG
Center was not properly served pursuant to section 307, timely service
cannot be deemed to have been made on MSG LP. In any event, the
relation-back doctrine would not avail plaintiff even if MSG Center had
been properly served where it does not appear that MSG Center and MSG
LP are "united in interest"
(see generally Buran v Coupal, 87 NY2d 173, 177-178 [1995]), i.e., that they "necessarily have the same defenses to the plaintiff[s'] claim" (Lord Day & Lord, Barrett, Smith v Broadwell Mgt. Corp., 301 AD2d 362, 363 [2003] [internal quotation marks omitted]) — MSG Center's defense [*2]is
lack of jurisdiction and MSG LP's defense is the statute of
limitations. Moreover, even if MSG Center were properly served,
plaintiffs do not show that MSG Center and MSG LP are the same entity
such as might permit correction of a misnomer pursuant to CPLR 305(c)
(see Achtziger v Fuji Copian Corp., 299 AD2d 946, 947 [2002], lv dismissed in part and denied in part 100 NY2d 548 [2003]).

The bold is mine.

CPLR DECISIONS (I’ll be splitting these up into their own posts in a bit)

CPLR R. 5015 Relief from judgment or order

Toland v Young, 2009 NY Slip Op 01793 (App. Div., 2nd, 2009)

A defendant seeking to vacate its default in appearing or answering the
complaint must demonstrate a reasonable excuse for the default and a
meritorious defense to the action (see CPLR 5015[a][1]; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141; Canty v Gregory, 37 AD3d 508; Mjahdi v Maguire, 21 AD3d 1067).
The defendants' excuse that their insurance carrier failed to provide a
defense was insufficient to excuse their default in serving a timely
answer (see Lemberger v Congregation Yetev Lev D'Satmar, Inc., 33 AD3d 671, 672; Krieger v Cohan, 18 [*2]AD3d 823, 824; Juseinoski v Board of Educ. of City of N.Y., 15 AD3d 353,
356). In view of the lack of a reasonable excuse, it is unnecessary to
consider whether the defendants sufficiently demonstrated the existence
of a meritorious defense (see Levi v Levi, 46 AD3d 519, 520; Segovia v Delcon Constr. Corp., 43 AD3d 1143, 1144; Mjahdi v Maguire, 21 AD2d at 1068). Accordingly, the defendants' motion to vacate their default was properly denied.

CPLR R 305 Summons; supplemental summons, amendment
(c) Amendment

CPLR R 3025 Amended and supplemental pleadings
(c) Amendment to conform to the evidence.

Smith v Garo Enters., Inc., 2009 NY Slip Op 01790 (App. Div., 2nd, 2009)

"Under CPLR 305(c), an amendment to correct a misnomer will be
permitted if the court has acquired jurisdiction over the intended but
misnamed defendant . . . provided that . . . the intended but misnamed
defendant was fairly apprised that [he] was the party the action was
intended to affect . . . [and] would not be prejudiced' by allowing the
amendment" (Holster v Ross, 45 AD3d 640, 642, quoting Simpson v Kenston Warehousing Corp., 154
AD2d 526, 527). "Such amendments are permitted where the correct party
defendant has been served with process, but under a misnomer, and where
the misnomer could not possibly have misled the defendant concerning
who it was that [*2]the plaintiff was in fact seeking to sue" (Creative Cabinet Corp. of Am. v Future Visions Computer Store, 140 AD2d 483, 484-485; see Ober v Rye Town Hilton, 159 AD2d 16, 20). However, "while CPLR 305(c) may be utilized to correct the name of an existing defendant (see Benware v Schoenborn, 198 AD2d 710, 711-712), it cannot be used by a party as a device to add or substitute a party defendant (see Security Mut. Ins. Co. v Black & Decker Corp., 255 AD2d 771, 773)" (Hart v Marriott Intl., 304
AD2d 1057, 1059). A plaintiff may not invoke CPLR 305(c) to proceed
against an entirely new defendant, who was not served, after the
expiration of the statute of limitations (see Security Mut. Ins. Co. v Black & Decker Corp., 255 AD2d 771, 773).

Contrary to the plaintiff's contentions, " [t]his is not a case
where a party is misnamed . . .; rather it is a case where the
plaintiff seeks to add or substitute a party defendant'" (Achtziger v Fuji Copian Corp., 299 AD2d 946, 947, quoting Jordan v Lehigh Constr. Group, 259
AD2d 962, 962). The plaintiff failed to establish that he properly
served Carol Radin, Alvin Radin, and Radin Enterprises, LLC, the
proposed additional defendants (see Gennosa v Twinco Servs., 267 AD2d 200, 201; Feszczyszyn v General Motors Corp., 248 AD2d 939, 940; Vandermallie v Liebeck, 225
AD2d 1069, 1069). Having failed to establish that the proposed
additional defendants were properly served, the plaintiff was not
entitled to the relief he sought pursuant to CPLR 305(c) or CPLR 3025 (see Achtziger v Fuji Copian Corp., 299 AD2d at 947; Gennosa v Twinco Servs., 267 AD2d at 201; Jordan v Lehigh Constr. Group, 259 AD2d at 962; Security Mut. Ins. Co. v Black & Decker Corp., 255 AD2d at 773; Feszczyszyn v General Motors Corp., 248 AD2d at 940; Vandermallie v Liebeck, 225 AD2d at 1069).

CPLR R. 2221 Motion affecting prior order
(e) A motion for leave to renew:

2.
shall be based upon new facts not offered on the prior motion that
would change the prior determination or shall demonstrate that there
has been a change in the law that would change the prior determination;
and

3. shall contain reasonable justification for the failure to present such facts on the prior motion.

Ramirez v Khan, 2009 NY Slip Op 01788 (App. Div., 2nd, 2009)

The Supreme Court providently exercised its discretion in denying that
branch of the plaintiff's motion which was for leave to renew his
opposition to the defendant's motion for summary judgment (see Renna v Gullo, 19 AD3d 472).
A motion for leave to renew "shall be based upon new facts not offered
on the prior motion that would change the prior determination" (CPLR
2221[e][2]) and "shall contain reasonable justification for the failure
to present such facts on the prior motion" (CPLR 2221[e][3]; see Dinten-Quiros v Brown, 49 AD3d 588; Madison v Tahir, 45 AD3d 744).
While it may be within the court's discretion to grant leave to renew
upon facts known to the moving party at the time of the original motion
(see J.D. Structures v Waldbaum, 282 AD2d 434; Cronwall Equities v International Links Dev. Corp.,
255 AD2d 354), a motion for leave to renew " is not a second chance
freely given to parties who have not exercised due diligence in [*2]making their first factual presentation'" (Renna v Gullo, 19 AD3d at 472, quoting Rubinstein v Goldman, 225 AD2d 328, 329; see also O'Dell v Caswell, 12 AD3d 492; Hart v City of New York, 5 AD3d 438; Carota v Wu,
284 AD2d 614). In this case, the plaintiff failed to provide reasonable
justification for the failure to include the affirmation of Dr. Robert
Scott Schepp on the prior motion (see Renna v Gullo, 19 AD3d at
472). In any event, that affirmation would not have changed the prior
determination awarding summary judgment to the defendant (id.).

CPLR R. 2104 Stipulations

Lim v Choices, Inc., 2009 NY Slip Op 01783 (App. Div., 2nd, 2009)

In support of that branch of its motion which was pursuant to CPLR
3211(a)(5) to dismiss the complaint, the defendant established that the
parties entered into a stipulation of settlement through the submission
of an affidavit of its president, an agreement memorializing the
parties' agreement to settle and discontinue the instant action signed
by both parties, and a copy of the bank check referenced in the
agreement representing full settlement and satisfaction of all claims
asserted in the action (see CPLR 2104). In opposition, the
plaintiff submitted an affidavit in which he did not deny either
signing the agreement or accepting and cashing the bank check. Thus,
there was no dispute that the parties entered into a valid
"out-of-court settlement [that was] adequately described in a signed
writing" (Bonette v Long Is. College Hosp., 3 NY3d 281, 286).
Moreover, contrary to the plaintiff's contention, notwithstanding the
absence of the filing of a voluntary discontinuance under CPLR 3217,
the documentary evidence proffered in support of the motion clearly
evidenced the plaintiff's intent to release the defendant from the
action (see Gale v Citicorp, 278 AD2d 197; see also Spence v Jones, 51 AD3d 771, 772; Hanna v Ford Motor Co., 252 AD2d 478).

CPLR R. 4404 Post-trial motion for judgment and new trial

Jean-Louis v City of New York, 2009 NY Slip Op 01780 (App. Div., 2nd, 2009)

At trial, the plaintiff testified that she slipped on a piece of
metal covered with snow and ice. However, she could not identify the
piece of metal shown in a photograph of the accident site that had been
taken at some point after the accident. At the end of the plaintiff's
testimony, before [*2]two of her
witnesses had the opportunity to testify, the defendant New York
Transit Authority (hereinafter the defendant) moved pursuant to CPLR
4401(a) for judgment as a matter of law on the ground that the
plaintiff could not identify the cause of her fall. The court granted
the defendant's motion and dismissed the complaint insofar as asserted
against it.
The court erred in dismissing the complaint insofar as asserted
against the defendant before the plaintiff had completed her proof (see Greenbaum v Hershman, 31 AD3d 607; Balogh v H.R.B. Caterers, 88
AD2d 136, 141). The plaintiff should have been afforded the opportunity
to call her niece, who allegedly witnessed the accident, and her
expert, to testify (see Greenbaum v Hershman, 31 AD3d 607).


CPLR R. 3211 Motion to dismiss
(a)(3)
the party asserting the cause of action has not legal capacity to sue

J. Sackaris & Sons, Inc. v Onekey, LLC, 2009 NY Slip Op 01777 (App. Div., 2nd, 2009)

Contrary to the defendant's contention, the Supreme Court did not err
in denying that branch of its motion which was pursuant to CPLR
3211(a)(3) to dismiss the complaint on the ground that the plaintiff,
as a dissolved corporation, lacks the legal capacity to sue. Since the
claim underlying this suit is an alleged breach of contract which
occurred in 1998, prior to the plaintiff's dissolution, [*2]it was properly permitted to pursue that claim in the course of winding up its affairs (see Business Corporation Law § 1006[b]; Tedesco v A.P. Green Indus., Inc., 8 NY3d 243).

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 and it:
(v)
affects a substantial right

(a)(2)(v)

Iodice v City of White Plains, 2009 NY Slip Op 01775 (App. Div., 2nd, 2009)

An order directing a judicial hearing on a motion to adjudicate a party
in contempt does not decide the motion, nor does it affect a
substantial right (see CPLR 5701[a][2][v]) and is, therefore, not appealable as a matter of right (see Sloboda v Sloboda, 24 AD3d 533, 534; Liebling v Yankwitt, 109 AD2d 780). Moreover, we decline to grant leave to appeal from the order. Accordingly, the instant appeal must be dismissed (see Kornblum v Kornblum, 34 AD3d 749, 751; Palma v Palma, 101 AD2d 812).

CPLR R. 2106 Affirmation of truth of statement by attorney, physician, osteopath or dentist

Pascucci v Wilke, 2009 NY Slip Op 01846 (App. Div., 1st, 2009)

Plaintiff's failure to submit the clinical psychologist's opinion in
admissible form left him with no admissible medical opinion evidence to
rebut defendant's prima facie showing that she did not commit
malpractice in treating the decedent (see CPLR 2106; Sanchez v Romano, 292 AD2d 202, 203 [2002]).

CPLR § 2201 Stay

American Intl. Group, Inc. v Greenberg, 2009 NY Slip Op 01840 (App. Div., 1st, 2009)

The motion court properly declined to grant a stay of proceedings pending resolution of a related action in federal
court (see CPLR 2201; 952 Assoc., LLC v Palmer, 52 AD3d 236, 236-237 [2008]; Mt. McKinley Ins. Co. v Corning Inc., 33 AD3d 51,
58-59 [2006]). Defendants are former executives and/or directors of
plaintiff American International Group, Inc. (AIG), the defendant in
the federal action; they are current and/or former directors and/or
voting shareholders of the plaintiff in the federal action, Starr
International Co., Inc. (SICO). In the federal action, AIG asserted [*2]counterclaims
against SICO arising out of SICO's alleged obligations to AIG in
connection with certain stock. AIG's allegations herein arise out of
defendants' alleged independent fiduciary duties to AIG by virtue of
their express pledges to preserve the value of said stock. A finding as
to SICO's duty to AIG would not affect defendants' potential liability
as independent fiduciaries of AIG and would not dispose of or
significantly limit the issues involved in this action or pose a risk
of inconsistent rulings (see Belopolsky v Renew Data Corp., 41 AD3d 322 [2007]); Asher v Abbott Labs., 307 AD2d 211 [2003]).

CPLR § 5701 Appeals to appellate division from supreme and county courts

Matter of Ronald Anthony G. v Ronald G., 2009 NY Slip Op 01839 (App. Div., 1st, 2009)

Appeal from order, Family Court, New York County (Susan K. Knipps,
J.), entered on or about April 23, 2008, which, in a child neglect
proceeding, upon respondent-appellant parent's failure to submit papers
in opposition to petitioner ACS's motion pursuant to Family Court Act §
1039-b(b)(6) for a finding that reasonable efforts to return the child
to his home are not required, reserved decision on the motion in order
to afford appellant an opportunity to submit evidence in support of his
position that a hearing on reasonable efforts is required, unanimously
dismissed, without costs.

In opposition to the motion, which was based on the existence
of judgments involuntarily terminating respondents' parental rights to
other of their children, appellant submitted no evidence but simply
argued that due process necessarily required a hearing. The order on
appeal, however, makes no ruling one way or the other as to whether
there will be a hearing. While the order does determine that the
judgments terminating parental rights satisfied petitioner's initial
burden on the motion, and that the burden was thereby placed on
respondents to come forward with evidence raising issues of fact
bearing on the other inquires to be made on a section 1039-b(b)(6)
motion — whether providing reasonable efforts would be in the child's
best interests, not contrary to the child's health and safety, and
likely to result in reunification of parent and child in the
foreseeable future — the order makes no findings of fact. Instead, it
affords appellant and his co-respondent an additional opportunity to
submit evidence pertinent to these other inquiries, and sets a briefing
schedule and a new return date. To the extent the order reserves
decision on the [*2]motion, it is not appealable as of right (CPLR 5701[a][2]; see Granato v Granato, 51 AD3d 589,
590 [2008]); to the extent the order imposes a burden on appellant to
come forward with evidence, at this juncture, absent a finding
dispensing with reasonable efforts, appellant is not aggrieved thereby
(CPLR 5511).

CPLR § 105 Definitions

(u) Verified pleading. A “verified pleading” may be utilized as an affidavit whenever the latter is required.

Estate of James Brown v Pullman Group, 2009 NY Slip Op 01838 (App. Div., 1st, 2009)

Denial of renewal was proper because this evidence was available at the
time of the initial motion, and the failure to submit it was
unexplained (see Matter of Beiny, 132 AD2d 190, 210 [1987], lv dismissed 71 NY2d 994 [1988]). In any event, the purportedly new evidence would not have altered the initial determination (see NYCTL 1999-1 Trust v 114 Tenth Ave. Assoc., Inc., 44 AD3d 576 [2007], appeal dismissed 10 NY3d 757 [2008], cert denied __ US __, 129 S Ct 458 [2008]). Leave to amend was properly denied since the counterclaims had already been [*2]dismissed. We further note that the proposed amendment was unsupported by an affidavit of merit (see Schulte Roth & Zabel, LLP v Kassover, 28 AD3d 404 [2006]) or a verified pleading (CPLR 105[u]).

CPLR § 203 Method of computing periods of limitation generally

17 E. 96th Owners Corp. v Madison 96th Assoc., LLC, 2009 NY Slip Op 01837 (App. Div., 1st, 2009)

Although the first amended complaint did not expressly refer to the
underground foundation wall, it did not limit defendant's purported
encroachment to the installation of underpinning but included "other
encroaching subsurface structures." Thus, the language in the first
amended complaint, which envisioned the possibility of other subsurface
structures, was sufficiently broad to encompass the encroachment
subsequently discovered through the land survey. The proposed new
pleading does not, therefore, assert a new and distinct claim but,
instead, is based upon the same conduct, transaction or occurrence as
that asserted in the first amended complaint (see CPLR 203[f]).

Furthermore, since the proposed new defendant, Condominium,
which now owns the building, is the successor-in-interest to the
sponsor, Madison 96th Associates, LLC, and not merely an unrelated
party with no notice of the subject litigation, plaintiff should also
have been permitted to add Condominium as a defendant.

CPLR 3216 Want of prosecution

Smith v Montefiore Med. Ctr., 2009 NY Slip Op 01835 (App. Div., 1st, 2009)

This action for wrongful death, medical malpractice and medical
negligence was commenced in 2000. In October 2004, defendants served a
90-day notice (CPLR 3216[b][3]) demanding that plaintiff resume
prosecution, complete discovery and file a note of issue. Plaintiff
acknowledges "technically" having failed to respond to this notice and
instead serving discovery demands upon defendants in July 2005,
thereafter attempting to commence settlement negotiations. Defendants
served their motion to dismiss in August 2007.

CPLR 3216(e) permits a court to dismiss an action for want of
prosecution after the defendants have served the plaintiff with an
unheeded 90-day notice, absent a showing of justifiable excuse for the
delay and a good and meritorious cause of action. Since the notice was
properly served and plaintiff never explained her delay or demonstrated
merit in the form of a detailed affidavit from a medical expert, the
court's refusal to dismiss was an improvident exercise of discretion (see Mosberg v Elahi, 80 NY2d 941 [1992]; Ramos v Lapommeray, 135 AD2d 439 [1987]). The certificate of merit filed by plaintiff's counsel in October 2000 was not a [*2]valid substitute for a medical expert's affidavit (see Jackson v Bronx County Lebanon Hosp. Ctr., 7 AD3d 356 [2004]).