CPLR § 306-b

306-b and SOL

Fernandez v McCarthy, 2020 NY Slip Op 03079 [1st Dept. 2020]

Under the circumstances, we find that, although plaintiff delayed in seeking an extension of his time to re-serve the complaint, the motion court appropriately exercised its discretion when it extended plaintiff’s time in the interest of justice (CPLR 306-b), as plaintiff established the existence of several relevant factors weighing in favor of an extension (see Leader v Maroney, Ponzini & Spencer, 97 NY2d 95, 104-105 [2001]; Chase Home Fin. LLC v Adago, 171 AD3d 533 [1st Dept 2019]). Plaintiff’s legal malpractice claim, which would otherwise be lost due to the running of the statute of limitations, seems to be potentially meritorious, and defendants have not established that they would suffer substantial prejudice from the extension, where they had actual notice of this action and the allegations against them from early on (see Wimbledon Fin. Master Fund, Ltd. v Laslop, 169 AD3d 550 [1st Dept 2019]; Pennington v Da Nico Rest., 123 AD3d 627 [1st Dept 2014]).

Bold is mine.

306-b

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

Henneberry v Borstein, 2012 NY Slip Op 00235 (1st Dept., 2012)

Plaintiff, proceeding pro se, brought the 2007 Action against defendant attorneys and their firm, asserting claims of legal malpractice and breach of fiduciary duty in their representation of her in an arbitration against a former employer. That arbitration concluded on [*2]December 4, 2004 with a decision adverse to plaintiff. Plaintiff commenced the 2007 Action by filing a summons with notice on November 19, 2007, just under a month before the expiration of the applicable three-year statute of limitations (see CPLR 214[6]).

On March 13, 2008, within 120 days of the filing of the summons with notice, plaintiff arranged for a licensed process server to serve defendants in accordance with CPLR 306-b. She subsequently filed two affidavits of service with the court. On April 1, 2008, 19 days later, defendants submitted a notice of appearance and a demand for a complaint. Plaintiff served a summons and complaint upon defendants on April 28, 2008.

On November 7, 2008, approximately six months later, after having sought and obtained numerous adjournments, defendants moved to dismiss the 2007 Action, on a number of grounds, including lack of personal jurisdiction. Plaintiff, now represented by counsel, cross moved for, inter alia, an extension of time to effect service pursuant to CPLR 306-b.

While the parties' motions were pending, plaintiff filed the 2009 Action, which contained substantially the same substantive claims. She did so to protect her claims in the event that the 2007 Action was terminated on a ground subject to revival under CPLR 205(a). Next, on June 19, 2009, defendants moved to dismiss the 2009 Action, arguing that there was an identical action pending before the court (CPLR 3211[a][4]). On July 23, 2009, the court held a traverse hearing regarding the validity of the March 13, 2008 service.

In the first order appealed from, Justice Tingling dismissed the 2007 Action for lack of personal jurisdiction (based on improper service), without prejudice, and granted plaintiff's cross motion for an extension of time to effect service pursuant to CPLR 306-b, on condition that she purchase a new index number and properly serve a summons and complaint within 30 days after service of the order with notice of entry. In the second order appealed from, issued contemporaneously with the first, Justice Tingling dismissed the 2009 Action based upon the pendency of another identical action (CPLR 3211[a][4]).

Following the court's directive in the first order, on February 11, 2010 plaintiff commenced the 2010 Action. In the third order appealed from, Justice Ramos dismissed that action as untimely. Plaintiff challenges each of these three orders.

The unintended effect of the disposition of the first two orders appealed from was to deprive plaintiff of an opportunity to pursue her timely filed lawsuit, based entirely upon her failure to effectively complete the ministerial act of properly serving defendants within 120 days of the filing of notice. This was error.

CPLR 306-b provides, as relevant:

"Service of the summons and complaint, summons with notice, . . . shall be made within one hundred twenty days after the filing of the summons and complaint, summons with notice, . . . . If service is not made upon a defendant within the time period provided in this section, the court, upon motion, shall dismiss the action without prejudice as to that defendant, or upon good cause shown or in the interest of justice, extend the time for service."

The statute requires that a defendant challenging service move to dismiss on that ground (Daniels v King Chicken & Stuff, Inc., 35 AD3d 345 [2006]). In deciding such a motion, the express language of CPLR 306-b gives the court two options: dismiss the action without prejudice; or extend the time for service in the existing action. Here, defendants made their motions after the statute of limitations had expired. In these circumstances, the court's options were limited to [*3]either dismissing the action outright, or extending the time for plaintiff to properly effect service.

The first order appealed from dismissed the action, without prejudice to the filing of a new action, and granted plaintiff's cross motion for an extension of time to effect service. This directive was internally inconsistent, and it led plaintiff to file the 2010 action, later dismissed as untimely (Matter of Rodamis v Cretan's Assn Omonoia, 22 AD3d 859, 860 [2005] [court cannot grant CPLR 306-b extension where action has been dismissed and statute of limitations has expired]; see Sottile v Islandia Home for Adults, 278 AD2d 482, 484 [2000]). The court should have limited its ruling in the first order on appeal to granting plaintiff's cross motion for an extension of time to effect service pursuant to CPLR 306-b (see Lippett v Education Alliance, 14 AD3d 430, 431 [2005]).

CPLR 306-b authorizes an extension of time for service in two discrete situations: "upon good cause shown" or "in the interest of justice" (Leader v Maroney, Ponzini & Spencer, 97 NY2d 95, 104-106 [2001]). The Court of Appeals has confirmed that the "good cause" and "interest of justice" prongs of the section constitute separate grounds for extensions, to be defined by separate criteria (id. at 104). The Court stated,

"Our analysis is buttressed by an examination of the legislative history behind the amendment [to CPLR 306-b]. The New York State Bar Associations Commercial and Federal Litigation Section Committee on Civil Practice Law and Rules characterized the interest of justice standard as more flexible' than the good cause standard, specifically noting that [s]ince the term "good cause" does not include conduct usually characterized as "law office failure," proposed CPLR 306-b provides for an additional and broader standard, i.e., the "interest of justice," to accommodate late service that might be due to mistake, confusion or oversight, so long as there is no prejudice to the defendant'".

(id. at 104-105 [emphasis added]). A "good cause" extension requires a showing of reasonable diligence in attempting to effect service upon a defendant. At least one Appellate Division decision has suggested that good cause is likely to be found where "the plaintiff's failure to timely serve process is a result of circumstances beyond [its] control" (Bumpus v New York City Tr. Auth., 66 AD3d 26, 32 [2009] [noting difficulties of service with person in military or difficulties with service abroad through Hague Convention]).

Even if this case does not qualify for an extension under the "good cause" exception (see Mead v Singleman, 24 AD3d 1142, 1144 [2005]), we find that it qualifies under the "interest of justice" category. Under this prong of CPLR 306-b, the Court of Appeals has instructed that a court "may consider [plaintiff's] diligence, or lack thereof, along with any other relevant factor . . ., including expiration of the Statute of Limitations, the meritorious nature of the cause of action, the length of delay in service, the promptness of a plaintiff's request for the extension of time, and prejudice to defendant" (Leader, 97 NY2d at 105-106).

Here, plaintiff's attempted March 2008 service, although ultimately deemed defective, was a diligent attempt by a pro se plaintiff to hire a process server to serve defendants at their law firm, within 120 days of the timely filing of a summons with notice. By the time the court ruled on the motions in the 2007 Action, the statute of limitations had expired, precluding the filing of a new action. In addition, defendants were aware of the 2007 Action and appeared to demand a complaint as early as April 2008 – they were not prejudiced by the service errors and were afforded full participation in discovery (see Spath v Zack, 36 AD3d 410, 413 [2007]). Finally, construing the pleading in the light most favorable to plaintiff, as is required on consideration of [*4]a CPLR 3211 motion to dismiss, we find that it asserts actions and omissions by defendants that support viable claims for recovery (see Leder v Spiegel, 31 AD3d 266 [2006], affd 9 NY3d 836 [2007], cert denied 552 US 1257 [2008]).

Khedouri v Equinox (73 AD3d 532 [2010]) and Shelkowitz v Rainess (57 AD3d 337 [2008]), cited by the defense in support of dismissing the action, are both distinguishable on their facts. In Khedouri, the court found that dismissal was warranted because plaintiff made no attempt to serve the defendant, a fitness corporation, within 120 days of filing the summons and complaint. In addition, this Court found no merit to the plaintiff's underlying claims, given the voluntary assumption of risks inherent in fitness training (73 AD3d at 532-533). Similarly, dismissal was granted in Shelkowitz, a personal injury action involving the accumulation of snow and ice at the defendant's building, where plaintiff made no attempt to serve the defendant within 120 days of the filing of the action, and the extension request was made 20 months after filing the complaint (57 AD2d at 337). Here, unlike both Khedouri and Shelkowitz, plaintiff attempted service within the 120-day period, defendants were aware of the action soon after the filing of the complaint, and, viewing the amended pleading in the light most favorable to plaintiff, we find it sets forth actionable claims (Spath v Zack, 36 AD3d 410 [2007], supra; Mead v Singleman, 24 AD3d 1142 [2005], supra; Lippett v Education Alliance, 14 AD3d 430 [2005], supra).

Granting plaintiff the opportunity to pursue this action is not only consistent with the "interest of justice" exception set forth in CPLR 306-b, but also with our strong interest in deciding cases on the merits where possible (see e.g. L-3 Communications Corp. v SafeNet, Inc., 45 AD3d 1 [2007]). Accordingly, given our conclusion that the 2007 Action qualified for an extension of time to effect service pursuant to CPLR 306-b, we reverse the third order appealed from and deem the complaint in the 2010 Action to be an amended complaint in the 2007 Action.

Service round-up

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 § 312-a Personal service by mail
(a) Service
(b) Completion of service and time to answer

CPLR § 301 Jurisdiction over persons, property, or status

CPLR § 302 Personal Jurisdiction by acts of non-domiciliaries

CPLR
§ 308 Personal service upon a natural person
(4) Nail and Mail

CPLR R. 305 Summons; supplemental summons, amendment

I had less of these laying around than I thought.

JPMorgan Chase Bank, N.A. v Szajna, 2010 NY Slip Op 03286 (App. Div., 2nd, 2010)

The process server retained by the plaintiff made three attempts to
serve the defendant at his dwelling. Contrary to the defendant’s
contention, the three attempts to serve him at his dwelling at different
times and on different days, including an attempt on an early weekday
morning and an attempt during midday Saturday, were sufficient to
constitute “due diligence” within the meaning of CPLR 308(4) (see County of Nassau v Gallagher, 43 AD3d 972,
973-974; Johnson v Waters, 291 AD2d 481; Matos v Knibbs, 186
AD2d 725; Mitchell v Mendez, 107 AD2d 737, 738). Since there was
no indication that the defendant worked Saturdays or that his workplace
was readily ascertainable, the plaintiff was not required to attempt to
serve the defendant at his workplace (see Johnson v Waters, 291
AD2d 481; Matos v Knibbs, 186 AD2d 725; Mitchell v Mendez, 107
AD2d at 738; cf. Pizzolo v Monaco, 186 AD2d 727). Accordingly,
the process server properly resorted to service of process pursuant to
CPLR 308(4), and the defendant’s motion to vacate the default judgment
for lack of jurisdiction was properly denied.

Klein v Educational Loan Servicing, LLC, 2010 NY Slip Op 02519 (App. Div., 2nd, 2010)

Here, the defendants did not seek dismissal of the complaint insofar
as asserted against the corporate defendants on the ground of lack of
jurisdiction under either CPLR 301 or 302. Rather, the defendants
contended that the complaint should be dismissed insofar as asserted
against the corporate defendants based on improper service of process.
By failing to contend that there was no jurisdiction under either CPLR
301 or 302 over the corporate defendants in their cross motion, the
defendants waived their challenge to whether the corporate defendants
were subject to personal jurisdiction (see Weisener v Avis
Rent-A-Car, 182 AD2d 372, 373; Hatch v Tu Thi Tran, 170 AD2d
649, 650; Boswell v Jiminy Peak, 94 AD2d 782, 783).

Nevertheless, the plaintiff’s motion for leave to enter a default
judgment should have been denied and the complaint dismissed as against
all defendants since the plaintiff failed to present proof of valid
service of the summons and complaint as required by CPLR 312-a(a) and
(b). The plaintiff submitted evidence that he served the defendants by
certified mail, return receipt requested. However, he presented no
evidence that copies of the summons and complaint were sent to the
defendants, by first-class mail, together with, inter alia, two copies
of a statement of service by mail and acknowledgment of receipt, and
that the signed acknowledgment of receipts were mailed or delivered to
the plaintiff (see CPLR 312-a[a], [b]). In the absence of proper
service, no personal jurisdiction was acquired over the defendants (see
Bennett v Acosta, 68 AD3d 910; Horseman Antiques, Inc. v Huch, 50
AD3d 963, 964; Dominguez v Stimpson Mfg. Corp., 207 AD2d 375,
375).

Continue reading “Service round-up”

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Today in the First Department (22 NYCRR 202.2, CPLR R. 3211, CPLR R. 3212, CPLR § 306-b, CPLR § 3121, SOL)

Several decisions popped out of the Appellate Division, First Department, today. In a break from my normal posting style, where I try to split posts between sections and rules, I'm going to post the few decisions that I found interesting.

Ocasio-Gary v Lawrence Hosp., 2010 NY Slip Op 00003 (App. Div., 1st, 2009)

Even had St. Barnabas met its initial burden, plaintiff's expert's submission raises triable issues of fact regarding the hospital's negligence (see DaRonco v White Plains Hosp. Ctr., 215 AD2d 339 [1995]). The trial court should not have rejected the expert's opinion on the ground that the expert failed to expressly state that he or she possessed the requisite background and knowledge in emergency medicine to render an opinion. The expert, who is board certified in internal medicine, is qualified to render an opinion as to diagnosis and treatment with respect to the symptoms presented by the decedent. In contrast, the expert's affirmation in Browder v New York City Health & Hosps. Corp. (37 AD3d 375 [2007]), cited by the trial court, failed to indicate either the expert's specialty or that he or she possessed the requisite knowledge to furnish a reliable opinion. Venue should be retained in Bronx County. The only ground for the motion to change venue was the dismissal of the complaint against St. Barnabas, and the complaint has been reinstated.

The motion to vacate plaintiff's note of issue, served more than 20 days after service of that note, was properly denied as untimely (see 22 NYCRR 202.21[e]), "no showing of special circumstances or adequate reason for the delay having been offered" (Arnold v New York City Hous. Auth., 282 AD2d 378 [2001]). Nor did the court err in finding that defendant Orin failed to demonstrate good cause for an extension of time in which to file his motion for summary judgment (CPLR 3212[a]; Brill v City of New York, 2 NY3d 648, 652 [2004]).

Johnson v Concourse Vil., Inc., 2010 NY Slip Op 00010 (App. Div., 1st, 2009)

Although plaintiff's counsel served her pleadings just one day after the applicable 120-day service period expired (see CPLR 306-b), and counsel offered proof that he attempted to arrange for service with eight days remaining out of the 120-day period, he nonetheless failed to show diligence in his efforts to effect service, particularly as the three-year statute of limitations (CPLR 214[5]) had already expired, and he did not follow up with the process server regarding completion of service until after the 120-day service period had expired. There was no evidence to indicate that the corporate defendants could not be located, or that they could not be readily served through the Secretary of State. Furthermore, counsel waited until after defendants moved to dismiss before he cross-moved for an extension of the time to serve some several months later. Such evidence of lack of diligence undermines plaintiff's "good cause" argument in support of her extension request (see generally Leader v Maroney, Ponzini & Spencer, 97 NY2d 95 [2001]).

Nor is a grant of an extension to serve the pleadings warranted in the interest of justice. The circumstances presented, including that the statute of limitations expired, plaintiff's lack of diligence in prosecuting this action, the lack of probative evidence offered as to the claim's merit, the vague allegations of injury, the lack of notice given of the claim for more than three years and three months, the prejudice to defendants and the several month delay in moving for an extension of the time to serve, demonstrate that the dismissal of this action was appropriate (see Slate v Schiavone Constr. Co., 4 NY3d 816 [2005]; Posada v Pelaez, 37 AD3d 168 [2007]; compare de Vries v Metropolitan Tr. Auth., 11 AD3d 312 [2004]).

One day late.

Suss v New York Media, Inc., 2010 NY Slip Op 00011 (App. Div., 1st, 2009)

We reject plaintiff's argument that such evidence fails to show, prima facie, that the issue first was published on April 29. The affidavits submitted by defendants were made with personal knowledge of the issue's distribution date; the distributor's affidavit was the proper vehicle for the submission of photographs taken by him and his staff (see H.P.S. Capitol v Mobil Oil Corp., 186 AD2d 98, 98 [1992]); and the photographs, as enhanced and highlighted in defendants' reply, clearly depict what they are claimed to depict. In opposition, plaintiff failed to submit any evidence of a later publication.

We also reject plaintiff's argument that unless the court gives CPLR 3211(c) notice of its intention to do so, it may not consider nondocumentary evidentiary materials for fact-finding purposes on a motion to dismiss pursuant to CPLR 3211(a)(5) (see Alverio v New York Eye & [*2]Ear Infirmary, 123 AD2d 568 [1986]; Lim v Choices, Inc., 60 AD3d 739 [2009]).

Welter v Feigenbaum, 2010 NY Slip Op 00012 (App. Div., 1st, 2009)

A plaintiff, in an action for negligent transmittal of genital herpes simplex II, may demand that the defendant submit to a blood test to determine if the latter indeed has the virus (see CPLR 3121). Since the test was ordered in conjunction with the litigation, it is not subject to the physician-patient privilege (see Connors, McKinney's CPLR Practice Commentary C3121:2). Even were the privilege to apply, defendant waived it by asserting the affirmative defense that he was asymptomatic (see e.g. Dillenbeck v Hess, 73 NY2d 278, 287-288 [1989]). Defendant's effort to limit the scope of discovery has simply focused the issue on whether or not he has the virus. This issue is relevant to — and potentially dispositive of — the action. If the test is negative, the case will be subject to dismissal. If, on the other hand, it is positive, defendant will have an opportunity to prove his affirmative defenses that he did not have the virus in 2002, or was unaware that he had it or was asymptomatic at the time of alleged transmittal to plaintiff.

All concur except Andrias and McGuire, JJ., who concur in a separate memorandum by McGuire, J. as follows:

McGUIRE, J. (concurring)

We write separately to emphasize that we express no view on the issue of whether, if the test is positive, it is adm
issible at trial (see People v Scarola, 71 NY2d 769, 777 [1988] ["(e)ven where technically relevant evidence is admissible, it may still be excluded by the trial court in the [*2]exercise of its discretion if its probative value is substantially outweighed by the danger that it will unfairly prejudice the other side or mislead the jury"]).

The herpes case.

CPLR R. 2221(e) “Retention of New Expert not Legitimate Basis for Renewal”

CPLR R. 2221(e) Motion for Leave to Renew

Burgos v Rateb, 2009 NY Slip Op 05738 (App. Div., 2nd, 2009)

The Supreme Court properly
denied that branch of the plaintiff's motion which was for leave to
renew, as the plaintiff failed to offer a reasonable justification for
her failure to present the evidence offered in support of renewal in
her opposition to that branch of Shahin's original motion which was for
summary judgment dismissing the complaint insofar as asserted against
him (see CPLR 2221[e]; Orlando v City of New York, 21 AD3d 357).
The retention of a new expert is not a legitimate basis for renewal;
renewal "is not a second chance freely given to parties who have not
exercised due diligence in making their first factual presentation" (Welch Foods v Wilson, 247 AD2d 830, 831; see Reshevsky v United Water N.Y., Inc., 46 AD3d 532; Mundo v SMS Hasenclever Maschinenfabrik, 224 AD2d 343, 344).

The bold is mine.

CPLR R.3211 Roundup with a smattering of CPLR § 308. CPLR § 205(a) too.

These are some of the more interesting CPLR R. 3211 decision's I've found in the past few weeks. At least two revolve around CPLR § 308 ( Personal service upon a natural person). Another discussed CPLR § 306-b. One decision discussed the preclusive effect of a CPLR R. 3211(a)(7) dismissal (in that case none), adding that it received the tolling benefit of CPLR § 205(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

Fitzgerald v Federal Signal Corp., 2009 NY Slip Op 05288 (App. Div., 2nd, 2009)

"Upon a motion to dismiss for failure to state a cause of action
under CPLR 3211(a)(7), the court must determine whether from the four
corners of the pleading factual allegations are discerned which taken
together manifest any cause of action cognizable at law'" (Salvatore v Kumar, 45 AD3d 560, 563, quoting Morad v Morad, 27 AD3d 626, 627; see Arnav Indus., Inc. Retirement Trust v Brown, Raysman, Millstein, Felder & Steiner, 96 NY2d 300, 303; Leon v MartÍnez, 84
NY2d 83, 87-88). "In determining such a motion, the court may freely
consider additional facts contained in affidavits submitted by the
plaintiff to remedy any defects in the complaint" (Sheridan v Carter, 48 AD3d 444, 445; see International Oil Field Supply Servs. Corp. v Fadeyi, 35 AD3d 372, 375).

Viewing the allegations in the complaint as true, and according
the plaintiffs the benefit of every reasonable inference, the Supreme
Court properly determined that the plaintiffs failed to state a cause
of action to recover damages for strict products liability based on
Federal's alleged duty and failure to warn them, as the risk alleged is
"open and obvious" and "readily apparent as a matter of common sense" (Liriano v Hobart Corp., 92 NY2d 232, 241-242; see Warlikowski v Burger King Corp., 9 AD3d 360, 362; Schiller v National Presto Indus., 225
AD2d 1053, 1054). "There is no duty to warn of an open and obvious
danger of which the product user is actually aware or should be aware
as a result of ordinary observation or as a matter of common sense" (O'Boy v Motor Coach Indus., Inc., 39 AD3d 512, 514; see Jones v W + M Automation, Inc., 31 AD3d 1099, 1101-1102; Vail v KMart Corp., 25 AD3d 549,
551).

Stubbolo v City of New York, 2009 NY Slip Op 04971 (App. Div., 1st, 2009)

The motion court erred in denying dismissal of plaintiffs' 42 USC §
1983 claim based on the theory of fabrication of evidence prior to the
initiation of the grand jury proceedings and prosecutions against
plaintiff Frank J. Stubbolo under Indictment Nos. 724/02 and 4133/03.
The complaint fails to sufficiently allege such prosecutorial
misconduct and, as a result, the claim is barred by absolute
prosecutorial immunity (see Buckley v Fitzsimmons, 509 US 259, 269-270 [1993]; Imbler v Pachtman, 424 US 409, 430-31 [1970]; Hill v City of New York, 45 F3d 653, 661 [2d Cir 1995]).

Contrary to plaintiffs' contentions on appeal, the motion court properly dismissed [*2]plaintiffs'
remaining federal and state law claims as time-barred or for failure to
state a cause of action (CPLR 3211[a][1], [7]).

HNH Intl., Ltd. v Pryor Cashman Sherman & Flynn LLP, 2009 NY Slip Op 04964 (App. Div., 1st, 2009)

The court dismissed the legal malpractice complaint, pursuant to
CPLR 3211(a)(1), based on documentary evidence from which it concluded
that the state of the law at the time the advice was given was
unsettled and defendants therefore had not " failed to exercise the
ordinary reasonable skill and knowledge commonly possessed by a member
of the legal profession'" at that time (quoting Darby & Darby v VSI Intl., 95 NY2d 308, 313 [2000]).

We conclude, however, that the state of the law was not so
unsettled at the time the advice was given as to bar as a matter of law
plaintiffs' claim that a reasonably skilled attorney would have advised
that the CDs were or might be entitled to common-law copyright
protection and would not have advised that the release of the CDs would
not result in any copyright liability. Although defendant maintains
that it did advise plaintiffs of the possibility of common-law
liability and did not advise plaintiffs that the release of the CDs
would not result in any copyright liability, we must accept the facts
alleged in the complaint as true and accord plaintiffs the benefit of
every possible
favorable inference (Arnav Indus., Inc. Retirement Trust v Brown, Raysman, Millstein, Felder & [*2]Steiner,
96 NY2d 300, 303 [2001]). The determination whether defendant exercised
the requisite level of skill and care must await expert testimony (compare Merlin Biomed Asset Mgt., LLC v Wolf Block Schorr & Solis-Cohen LLP, 23 AD3d 243 [2005] [expert testimony required], with Darby & Darby, supra [legal malpractice counterclaim dismissed on summary judgment]).

Continue reading “CPLR R.3211 Roundup with a smattering of CPLR § 308. CPLR § 205(a) too.”

CPLR § 306-b

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

Ambrosio v Simonovsky, 2009 NY Slip Op 03679 (App. Div., 2nd, 2009)

In opposition to the defendant's motion to dismiss the complaint
pursuant to CPLR 306-b and in support of the plaintiff's cross motion
to extend his time to serve the summons and complaint pursuant to that
statute, the plaintiff was required to show either good cause for his
failure to serve the defendant with the summons and complaint within
120 days after their filing or that an extension of time to effect
service should be granted in the interest of justice (see Leader v Maroney, Ponzini & Spencer, 97 NY2d 95, 104-107; Riccio v Ghulam, 29 AD3d 558,
560). The plaintiff failed to show good cause for his failure since he
admittedly made no attempt to serve the defendant within 120 days after
the filing of the summons and complaint (see Leader v Maroney, Ponzini & Spencer, 97 NY2d at 105; Valentin v Zaltsman, 39 AD3d 852; Riccio v Ghulam, 29 AD3d at 560).

Furthermore, the plaintiff failed to show that an extension of
time to serve the defendant was warranted in the interest of justice in
view of the lack of diligence shown by the plaintiff, including the
one-year delay between the time the summons and complaint were filed
and the time the cross motion to extend his time to serve the summons
and complaint was made, the 9½- month delay [*2]between
the expiration of the statute of limitations and the defendant's
receipt of notice of the action, the failure to make any showing of
merit, and the lack of an excuse for the failure to effect timely
service (see Slate v Schiavone Constr. Co., 4 NY3d 816, 817; American Tel. & Tel. Co. v Schnabel Found. Co., 38 AD3d 580; Ortiz v Malik, 35 AD3d 560, 560-561; Meusa v BMW Fin. Servs., 32 AD3d 830, 831).

Garcia v Simonovsky, 2009 NY Slip Op 03691 (App. Div., 2nd, 2009)

In opposition to the respondent's motion to dismiss the complaint
pursuant to CPLR 306-b and in support of the plaintiff's cross motion
to extend her time to serve the summons and complaint pursuant to that
statute, the plaintiff was required to show either good cause for her
failure to serve the respondent with the summons and complaint within
120 days after their filing or that an extension of time to effect
service should be granted in the interest of justice (see Leader v Maroney, Ponzini & Spencer, 97 NY2d 95, 104-107; Riccio v Ghulam, 29 AD3d 558,
560). The plaintiff failed to show good cause for her failure since she
admittedly made no attempt to serve the respondent within 120 days
after the filing of the summons and complaint (see Leader v Maroney, Ponzini & Spencer, 97 NY2d at 105; Valentin v Zaltsman, 39 AD3d 852; Riccio v Ghulam, 29 AD3d at 560).

Furthermore, the plaintiff failed to show that an extension of
time to serve the defendant was warranted in the interest of justice in
view of the lack of diligence shown by the plaintiff, including [*2]the
one-year delay between the time the summons and complaint were filed
and the time the cross motion to extend her time to serve the summons
and complaint was made, the 9½- month delay between the expiration of
the statute of limitations and the respondent's receipt of notice of
the action, the failure to make any showing of merit, and the lack of
an excuse for the failure to effect timely service (see Slate v Schiavone Constr. Co., 4 NY3d 816, 817; American Tel. & Tel. Co. v Schnabel Found. Co., 38 AD3d 580; Ortiz v Malik, 35 AD3d 560, 560-561; Meusa v BMW Fin. Servs., 32 AD3d 830, 831).

The bold is mine.

CPLR § 306-b; § 207

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 § 207. Defendant's absence from state or residence under false name

Shelkowitz v Rainess, 2008 NY Slip Op 09906 (App. Div., 1st)

Dismissal of the complaint was proper where plaintiff did not effect
service of the summons and complaint upon defendant within 120 days
after the filing of the action (CPLR 306-b). Nor is an extension of
time for service warranted in the "interest of justice" (id.).
The request for an extension of time was not made until opposition to
defendant's cross motion to dismiss, which was approximately 20 months
after the filing of the action (see Slate v Schiavone Constr. Co., 4 NY3d 816 [2005]; Pecker Iron Works, Inc. v Namasco Corp., 37 AD3d 367
[2007]). Furthermore, contrary to plaintiff's contention, CPLR 207 is
not applicable as there is no evidence that defendant was either absent
from the state within the meaning of the statute, or that he was listed
under a false name.