CPLR 3215 and 308

First Fed. Sav. & Loan Assn. of Charleston v Tezzi, 2018 NY Slip Op 05826 [2d Dept 2018]

In order to establish entitlement to a default judgment, the plaintiff was required to [*2]submit proof of valid service of process, the facts constituting the causes of action, and the default (see CPLR 3215[f]; Miterko v Peaslee, 80 AD3d 736, 737; Valiotis v Psaroudis, 78 AD3d 683, 683-684). The plaintiff allegedly served process on the defendant pursuant to CPLR 308(4). Once the "affixing and mailing" was accomplished, the plaintiff was required to file proof of service with the clerk of the court within 20 days of either the affixing or mailing, whichever was later (see CPLR 308[4]). Once such timely filing is accomplished, service is deemed completed 10 days thereafter (see id.).

Here, the affidavit of service was not filed within 20 days of either the mailing or affixing; thus, service was never completed (see id.). Since service was never completed, the defendant's time to answer the complaint had not yet started to run and, therefore, she could not be in default (see Pipinias v J. Sackaris & Sons, Inc., 116 AD3d 749, 750; Bank of New York v Schwab, 97 AD2d 450).

However, the "failure to file proof of service is a procedural irregularity, not a jurisdictional defect, that may be cured by motion or sua sponte by the court in its discretion pursuant to CPLR 2004" (Khan v Hernandez, 122 AD3d 802, 803; see Buist v Bromley Co., LLC, 151 AD3d 682, 683; Pipinias v J. Sackaris & Sons, Inc., 116 AD3d at 750). Thus, we agree with the Supreme Court's determination to deem the affidavit of service timely filed, sua sponte, pursuant to CPLR 2004.

In granting this relief, however, the court must do so upon such terms as may be just, and only where a substantial right of a party is not prejudiced (see CPLR 2001; Discover Bank v Eschwege, 71 AD3d 1413, 1414). The court may not make such relief retroactive, to the prejudice of the defendant, by placing the defendant in default as of a date prior to the order (see Khan v Hernandez, 122 AD3d at 803; Discover Bank v Eschwege, 71 AD3d at 1414), "nor may a court give effect to a default judgment that, prior to the curing of the irregularity, was a nullity requiring vacatur" (Discover Bank v Eschwege, 71 AD3d at 1414 [internal quotation marks omitted]; see Bank of New York v Schwab, 97 AD2d 450). Rather, the defendant must be afforded an additional 30 days to appear and answer after service upon her of a copy of the decision and order (see CPLR 320[a]; Buist v Bromley Co., LLC, 151 AD3d at 683; Khan v Hernandez, 122 AD3d at 803; Pipinias v J. Sackaris & Sons, Inc., 116 AD3d at 750; Discover Bank v Eschwege, 71 AD3d at 1414).

Accordingly, the Supreme Court should have vacated the default judgment, and, upon deeming the affidavit of service timely filed, nunc pro tunc, should have extended the time for the defendant to serve and file an answer.

 

bold is mine.

Contempt/Service

Kozel v Kozel, 2018 NY Slip Op 03907 [1st Dept. 2018]

Contrary to the contention of the nonparty witness (Inga), she was properly served via email with plaintiff's order to show cause. While a criminal contempt proceeding requires personal service on the contemnor (see Matter of Grand Jury Subpoena Duces Tecum, 144 AD2d 252, 255-256 [1st Dept 1988]), CPLR 308(5) permits a court to direct another manner of service if the methods set forth in the statute prove impracticable. Here, Inga left the jurisdiction after the same court and Justice found her in contempt, and offers no evidence that she was at either her residence in London or Lithuania. Under these circumstances, the court properly directed that she be served via email (see Alfred E. Mann Living Trust v ETIRC Aviation S.A.R.L., 78 AD3d 137, 141-142 [1st Dept 2010]). Since Inga was properly served with the contempt motion, and had knowledge of the terms of the subject orders of which she was in violation, the court was empowered to find her in contempt without plaintiff commencing a special proceeding (see Citibank v Anthony Lincoln-Mercury, 86 AD2d 828, 829 [1st Dept 1982]).

Kozel v Kozel, 2018 NY Slip Op 03906 [1st Dept. 2018]

Contrary to her contention, she was properly served with plaintiff's order to show cause. The order to show cause directed plaintiff to serve Inga under CPLR 308 and her counsel by overnight mail on or before June 20, 2016. Inga's claim that her counsel was untimely served because he did not receive papers until June 21, 2016 is without merit (see CPLR 2103[b][6] [service is complete upon deposit into the custody of the overnight delivery service]). Likewise, the record supports that Inga was personally served at the New York City apartment she and defendant owned, which constituted her "dwelling place or usual place of abode within the state" for the purposes of CPLR 308 (see Krechmer v Boulakh, 277 AD2d 288, 289 [2d Dept 2000]).

CPLR 308

CPLR 3080

Deutsche Bank Natl. Trust Co. v Quinones, 2014 NY Slip Op 00959 [2nd Dept. 2014]

Here, the affidavit of service indicating that the respondent was served pursuant to CPLR 308(2) by delivery of the papers to a person of suitable age and discretion was insufficient on its face to establish, prima facie, that the respondent was validly served pursuant to that section. However, a second affidavit of service constituted prima facie evidence of proper service of the summons and complaint pursuant to CPLR 308(1) (see Reich v Redley, 96 AD3d 1038), and of proper service of the notice required by Real Property Actions and Proceedings Law § 1303 (see US Bank N.A. v Tate, 102 AD3d 859). The respondent's bare and unsubstantiated denial of service lacked the factual specificity and detail required to rebut the prima facie proof of proper service set forth in that affidavit of service (see ACT Props., LLC v Garcia, 102 AD3d 712, 713; Scarano v Scarano, 63 AD3d 716, 716-717).

Empahsis mine.

Tricked into coming to NY for service?

CPLR § 308 Personal service upon a natural person

(1) by delivering the summons within the state to the person to be served

Dantin v Masi, 2012 NY Slip Op 03399 (2nd Dept., 2012)

Contrary to the defendant's contention, the Supreme Court properly denied, without a hearing, his motion to dismiss the complaint for lack of personal jurisdiction. The plaintiff demonstrated that jurisdiction was acquired over the defendant by personal delivery of a copy of the summons and complaint to him while he was physically present in New York (see CPLR 308[1]). Moreover, accepting as true the defendant's factual allegations regarding the circumstances under which he was served with process, we conclude that he failed to raise any issue regarding whether he was lured, enticed, or induced into entering New York by fraudulent or deceptive conduct on the part of the plaintiff for the purpose of effecting service. Therefore, a hearing on the validity of the service is unwarranted (see Matter of Hammett v Hammett, 74 AD2d 540; United Indus. Corp. v Shreiber, 51 AD2d 688, cert denied 429 US 1023; Gumperz v Hofmann, 245 App Div 622, affd 271 NY 544; cf. DeMartino v Rivera, 148 AD2d 568; Terlizzi v Brodie, 38 AD2d 762).

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”

Serve it right (OSC)

CPLR
§ 308 Personal service upon a natural person

CPLR
R. 2103 Service of papers

City of New York v Miller, 2010 NY Slip Op 03059 (App. Div., 2nd, 2010)

The Supreme Court properly denied, without a hearing, the defendants' motion to dismiss the complaint pursuant to CPLR 3211(a)(8) for lack of personal jurisdiction. The affidavits of the process servers constituted prima facie evidence of proper service pursuant to CPLR 308(4) (see Scarano v Scarano, 63 AD3d 716, 716; Mortgage Elec. Registration Sys., Inc. v Schotter, 50 AD3d 983, 983; 425 E. 26th St. Owners Corp. v Beaton, 50 AD3d 845, 846; Simonds v Grobman, 277 AD2d 369, 370). Although a defendant's sworn denial of receipt of service generally rebuts the presumption of proper service established by a process server's affidavit and necessitates an evidentiary hearing, no hearing is required where the defendant fails to swear to specific facts to rebut the statements in the process server's affidavits (see Scarano v Scarano, 63 AD3d at 716; Simonds v Grobman, 277 AD2d at 370). Here, the defendants' bare denial of service was insufficient to rebut the prima facie proof of proper service pursuant to CPLR 308(4) created by the process servers' affidavits and to necessitate a traverse hearing (see Scarano v Scarano, 63 AD3d at 716; Mortgage Elec. Registration Sys., Inc. v Schotter, 50 AD3d at 983; 425 E. 26th St. Owners Corp. v Beaton, 50 AD3d at 846; Simonds v Grobman, 277 AD2d at 370).

The Supreme Court also properly denied the defendants' motion, inter alia, to vacate a temporary restraining order and preliminary injunction based on lack of proper service of the order to show cause. "The method of service provided for in an order to show cause is jurisdictional in nature and must be strictly complied with" (Matter of El Greco Socy. of Visual Arts, Inc. v Diamantidis, 47 AD3d 929, 929; see Matter of Del Villar v Vekiarelis, 59 AD3d 642, 643; Matter [*2]of Master v Pohanka, 43 AD3d 478, 480, affd 10 NY3d 620; Matter of Hennessey v DiCarlo, 21 AD3d 505, 505). Here, the express terms of the order to show cause required the plaintiffs to serve the order to show cause and other papers on the defendants as well as their attorneys. However, while it is undisputed that attorney Vincent M. Gerardi represented the defendants in a related but separate and independent action, and that the plaintiffs were aware of that action, it is also undisputed that, in the instant action, as of the time the plaintiffs were required to serve the order to show cause, no attorney had appeared on behalf of the defendants (see generally CPLR 320[a], 321[a]). CPLR 2103(c) expressly provides that, if a party has not appeared by an attorney, service shall be upon the party. Thus, notwithstanding the language directing service in the order to show cause, the plaintiffs were not required to serve Gerardi with the order to show cause merely because he represented the defendants in a separate and independent, if not entirely unrelated, action, where neither he nor any other attorney had appeared on behalf of the defendants in this action (see Long v Long, 196 Misc 982, 984).

I'm adding another case (5/31/10) because it doesn't deserve it's own post, but is nonetheless relevant to the blog.

Lobo v Soto, 2010 NY Slip Op 04553 (App. Div., 2nd, 2010)

"The method of service provided for in an order to show cause is
jurisdictional in nature and must be strictly complied with'" (City
of New York v Miller,
72 AD3d 726, *1, quoting Matter of El Greco
Socy. of Visual Arts, Inc. v Diamantidis,
47 AD3d 929, 929; see
Matter of Del Villar v Vekiarelis,
59 AD3d 642, 643; Matter of
Master v Pohanka,
43 AD3d 478, 480, affd 10 NY3d 620; Matter
of Hennessey v DiCarlo,
21 AD3d 505, 505). Here, the Supreme Court
correctly determined that the plaintiffs failed to strictly comply with
the method of service set forth in the order to show cause in connection
with service of the motion on the referee.

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.”

CPLR R. 5015 motion treated as motion pursuant to CPLR R. 317

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

CPLR § 308 Personal service upon a natural person

CPLR R. 5015 Relief from judgment or order

CPLR § 317 Defense by person to whom summons not personally delivered

Gonzalez v City of New York, 2009 NY Slip Op 06163 (App. Div., 2nd, 2009)

The defendants proffered a reasonable justification for the failure
to present the affidavit of the defendant Miguel Carvajal in opposition
to the plaintiff's prior motion for leave to enter a default judgment
against Carvajal and in support of their prior cross motion, inter
alia, to vacate Carvajal's default in appearing in the action or
answering the complaint based on the Corporation Counsel's delay in
obtaining an affidavit from Carvajal
(see CPLR 2221[e][2], [3]; Simpson v Tommy Hilfiger U.S.A., Inc., 48 AD3d 389, 392; Miller v Duffy, 162 AD2d 438, 439-440; Matter of Mangialino v White Haven Mem. Park, 132 AD2d 970, 971).

Service upon Carvajal was made, inter alia, by delivery of the
summons and complaint to a coworker at Carvajal's actual place of
business and by mailing the summons to him at his actual place of
business pursuant to CPLR 308(2)
(see Anderson v GHI Auto Serv., Inc., 45 AD3d 512,
513). Although the defendants' cross motion was made pursuant to CPLR
5015(a)(1), under the circumstances of this case, it may also be
treated as a motion made pursuant to CPLR 317
(see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 142-143; Hospital for Joint Diseases v Lincoln Gen. Ins. Co., 55 AD3d 543, 544; Mann-Tell Realty Corp. v Cappadora Realty Corp., 184 AD2d 497, 498). Upon renewal, the defendants established that Carvajal did not receive [*2]actual
notice of the summons in time to defend, he did not deliberately
attempt to avoid service, and he has a meritorious defense to the
action (see CPLR 317; Taieb v Hilton Hotels Corp., 60 NY2d 725, 727; Franklin v 172 Aububon Corp., 32 AD3d 454; Brockington v Brookfield Dev. Corp., 308 AD2d 498; Samet v Bedford Flushing Holding Corp.,
299 AD2d 404, 405). Accordingly, upon renewal, the plaintiff's prior
motion for leave to enter a default judgment against Carvajal was
properly denied and the defendants' prior cross motion to vacate
Carvajal's default and to compel the plaintiff to accept the amended
answer was properly granted.

Wells Fargo Bank, NA v Chaplin, 2009 NY Slip Op 06179 (App. Div., 2nd, 2009)

The burden of proving that personal jurisdiction has been acquired over a defendant in an action rests with the plaintiff (see Bankers Trust Co. of Cal. v Tsoukas, 303 AD2d 343; Bank of Am. Nat. Trust & Sav. Assn. v Herrick, 233 AD2d 351; Frankel v Schilling,
149 AD2d 657, 659). Ordinarily, a process server's affidavit of service
establishes a prima facie case as to the method of service and,
therefore, gives rise to a presumption of proper service
(see Household Fin. Realty Corp. of N.Y. v Brown, 13 AD3d 340; Bankers Trust Co. of Cal. v Tsoukas, 303 AD2d at 344; Frankel v Schilling, 149 AD2d 657, 659; see also New Is. Invs. v Wynne,
251 AD2d 560). However, where there is a sworn denial that a defendant
was served with process, the affidavit of service is rebutted, and the
plaintiff must establish jurisdiction at a hearing by a preponderance
of the evidence
(see Mortgage Access Corp. v Webb, 11 AD3d 592, 593; Bankers Trust Co. of Cal. v Tsoukas, 303 AD2d at 344; Kingsland Group v Pose, 296 AD2d 440; Balancio v Santorelli, 267 AD2d 189; New Is. Invs. v Wynne, 251 AD2d 560; Bank of Am. Nat. Trust & Sav. Assn. v Herrick, 233 AD2d at 352).
[*2]

Here, the plaintiff allegedly
effected service upon the appellant pursuant to CPLR 308(2) on April
23, 2007, by delivering the summons and complaint to a person of
suitable age and discretion, who was identified as Marilyn Matheson, at
the appellant's residence in Queens. In support of her motion, in
effect, to vacate her default in appearing or answering the complaint,
the appellant submitted an affidavit from Matheson averring that the
summons and complaint had never been delivered to her, and that she was
in Pawling, New York, in April 2007.
Although Matheson's affidavit did
not specify that she was in Pawling on April 23, 2007, when process
allegedly was delivered to her in Queens, the appellant submitted
additional evidence to substantiate her claim that Matheson was in
Pawling that day, including a letter from a physician who treated
Matheson for flu symptoms. The appellant's submissions also indicated
that Matheson's physical appearance varied significantly from the
description set forth in the affidavit of service. Under these
circumstances, the appellant is entitled to a hearing on the issue of
whether service was properly effected pursuant to CPLR 308(2) (see Zion v Peters, 50 AD3d 894; Mortgage Access Corp. v Webb, 11 AD3d at 593; Bankers Trust Co. of Cal. v Tsoukas,
303 AD2d at 344). Thus, we remit the matter to the Supreme Court,
Queens County, for a hearing to determine whether the appellant was
properly served and thereafter for a new determination of the motion to
vacate.

The appeal from so much of the order dated June 5, 2008, as
denied that branch of the appellant's motion which was for leave to
reargue must be dismissed, since no appeal lies from an order denying
reargument
. The appeal from so much of the order dated June 5, 2008, as
denied that branch of the appellant's motion which was for leave to
renew must be dismissed as academic in light of our determination on
the appeal from the order dated December 4, 2007.

The bold is mine.

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

CPLR § 1024 Unknown parties

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

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

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

CPLR § 602 Consolidation
(a) Generally

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

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

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

II. The Interplay of CPLR 1024 and 306-b

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

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

Prior to 1992, when actions in the Supreme and County Courts
were commenced by the service of process rather than by filing, a party
suing a "Jane Doe" defendant was under no particular time deadline for
ascertaining the unknown party's identity, other than commencing an
action against all defendants prior to the expiration of the relevant
statute of limitations
(see Luckern [*3]v Lyondale Energy Ltd. Partnership, 229 AD2d 249, 255)[FN1].
However, the enactment of CPLR 306-a in 1992 required that actions in
Supreme and County Courts be commenced by filing rather than by service

(L 1992, ch 216, § 6; see generally Matter of Fry v Village of Tarrytown, 89
NY2d 714, 718-720) and upon filing, CPLR 306-b, which was enacted at
the same time as 306-a (L 1992, ch 216, § 7), superimposed the
requirement that service of process be effected within 120 days (see CPLR 306-b; see generally Leader v Maroney, Ponzini & Spencer, 97
NY2d 95, 100-101). The filing of the summons with notice or summons and
complaint fixed the point at which an action was commenced for statute
of limitations purpose
(see Leader v Maroney, Ponzini & Spencer, 97 NY2d at 100; Matter of Gershel v Porr, 89 NY2d 327, 330).

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

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

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

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

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

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

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

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

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

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

The bold is mine.

CPLR R.3211 Roundup 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.”