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.”
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