CPLR § 321(c); CPLR § 5601(a); Court of Appeals

I've noticed that the less I post here, the more I screw myself.  This place is the only way I have to keep track of cases, and, while I keep on reading them, I'm not posting too often.  So when I spot an issue and need a case, I have to go searching through the SlipOps, which is a huge pain in the ass.

So, for my own sake, I will probably be posting more often.

For now, here are two cases from the Court of Appeals.

CPLR § 321 Attorneys
(c) Death, removal or disability of attorney

Moray v Koven & Krause, 2010 NY Slip Op 07573 (Ct. App. 2010)

This lawsuit was automatically stayed by operation of CPLR 321 (c) on January 24, 2008, the date when plaintiff's attorney was suspended from the practice of law. Defendant never acted to lift the stay by serving a notice upon plaintiff to appoint new counsel within 30 days. Thus, Supreme Court's order dismissing the action must be vacated (see e.g. Galletta v Siu-Mei Yip, 271 AD2d 486, 486 [2d Dept 2000] ["Since the judgment entered upon the defendants' default in appearing at trial was obtained without the plaintiff's compliance with CPLR 321 (c), it must be vacated"];McGregor v McGregor, 212 AD2d 955, 956 [3d Dept 1995] ["The record reveals no compliance with the leave or notice requirements of CPLR 321 (c). The appropriate remedy for a violation of CPLR 321 (c) is vacatur of the judgment"]).

Defendant resists this outcome on two grounds. First, he points out that CPLR 321 (c) permits further proceedings "by leave of court." Defendant contends that Supreme Court exercised this "express statutory authority to hear and grant defendant's motion to dismiss after [Goodman] was suspended from the practice of law." The drafter's notes on CPLR 321 (c), however, state that the words "without leave of the court" were "designed to allow the court to vary the [30-day] rule in cases where the stay of proceedings would produce undue hardship to the opposing party, as where the time to take an appeal or other action would run or where a provisional remedy is sought and speed is essential" (Fourth Preliminary Report, Advisory Committee on Practice and Procedure [1960 NY Legis Doc No. 20, at 191]). No remotely comparable situation existed at the time Supreme Court dismissed this action. Moreover, Supreme Court did not mention CPLR 321 (c), much less articulate a basis for exercising its discretion to relax the 30-day notice requirement.

Second, defendant argues that plaintiff is foreclosed from bringing up CPLR 321 (c) for the first time on appeal, as the Appellate Division concluded. While we do not as a general rule resolve cases on grounds not raised in the trial court, the context here is unusual. We are dealing with a statute intended to protect litigants faced with the unexpected loss of legal representation. And there is no indication in this record that plaintiff sought to raise CPLR 321 (c) only after having conducted his lawsuit pro se for some period of time after his attorney became disabled (cf. Telmark, Inc. v Mills, 199 AD2d 579, 580-581 [3d Dept 1993]). As a general rule, unrepresented litigants should not be penalized for failing to alert a trial court to the existence of an automatic stay created for the very purpose of safeguarding them against adverse consequences while they are unrepresented. And as the Practice Commentaries point out, all it takes to end the automatic stay is service of a 30-day notice on the affected party.

CPLR § 5601(a)

Cadichon v Facelle, 2010 NY Slip Op 07577 (Ct. App. 2010)

The motion, insofar as it seeks leave to appeal from that portion of the Appellate [*2]Division order that affirmed the August 26, 2008 Supreme Court order, treated as a motion for reconsideration of so much of this Court's July 1, 2010 order as dismissed plaintiffs' appeal as of right from that portion of the Appellate Division order, should be granted, and, upon reconsideration, jurisdiction of so much of the appeal should be retained. The motion, insofar as it seeks leave to appeal from the above-recited part of the Appellate Division order should be dismissed as unnecessary. The motion, insofar as it seeks leave to appeal from the remainder of the Appellate Division order should be dismissed upon the ground that it does not finally determine the action within the meaning of the Constitution. The motion, insofar as it seeks leave to appeal from the amended judgment of Supreme Court pursuant to CPLR 5602(a)(1)(ii), should be dismissed upon the ground that the portion of the Appellate Division order that affirmed the August 26, 2008 Supreme Court order is a final appealable paper from which an appeal was properly taken (see CPLR 5611). The appeal from the amended judgment should be dismissed without costs, by the Court, on its own motion, upon the ground that the portion of the Appellate Division order that affirmed the August 26, 2008 Supreme Court order is a final appealable paper from which an appeal was properly taken (see CPLR 5611).

In considering the finality limitation on its jurisdiction, this Court has consistently treated the automatic dismissal of an action pursuant to CPLR 3404, or pursuant to other statutes or court rules, as a final determination and it has treated any subsequent order denying a motion to vacate the dismissal as a nonfinal determination (seee.g.Paglia v Agrawallv dismissed 69 NY2d 946 [1987]). Accordingly, reading Supreme Court's order pursuant to CPLR 3216 in this case as providing that the complaint would be dismissed automatically upon plaintiffs' failure to file a note of issue by the date specified in the order, the Court dismissed for nonfinality the part of the appeal taken from the order affirming the denial of the motion to vacate (15 NY3d 767). Upon reconsideration, it is recognized that Supreme Court's order is ambiguous as to whether it mandated a dismissal without further court order. Where, as here, it is not clear that the action was automatically dismissed by operation of statute, rule or court order, the order denying the motion to vacate shall be deemed the final appealable paper for purposes of this Court's jurisdiction. As the Appellate Division order denying the motion to vacate had a two-justice dissent on a question of law, an appeal as of right pursuant to CPLR 5601(a) properly lie



CPLR § 5601 Appeal as of right to the Court of Appeals and Submission of orders

CPLR § 5601 Appeals to the court of appeals as of right

CPLR § 5601(a).  Dissent

22 NYCRR 202.48 Submission of orders, judgments and decrees for signature

The short version:
1. If there are two dissents at the Appellate Division you can appeal as of right; and
Rule 202.48's 60-day requirement does not apply to the "entry [of judgment] process."

Farkas v Farkas, 2008 NY Slip Op 07988 (Court of Appeals)

The wife appealed the Appellate Division's May 2007 order to us as of right, based on the dual dissent (see
CPLR 5601[a])
1. The husband sought leave to appeal from the same order,
which we granted. His appeal brings up for review the Appellate
Division's June 1998 order affirming the 1996 judgment (see CPLR 5501[a][1]). We now reverse the Appellate Division's May 2007 order, and uphold its June 1998 order.

The 1996 judgment and the 1999 amended judgment unquestionably
were not subject to Rule 202.48's 60-day requirement
. These judgments
carried out the 1996 decision, which directed the parties to "[s]ettle
judgment." Moreover, the decretal paragraph specifically addressing the
Chemical Bank monies provided that the wife was "entitled to enter a money judgment against [the husband] for the total amount due and owing to Chemical Bank without further order"
([emphasis added]). That is, this paragraph set out a "simple judgment
for a sum of money which speaks for itself," and therefore falls
outside the ambit of Rule 202.48 (Funk v Barry, 89 NY2d 364, 367 [1996]). As we emphasized in Funk,
the "settle" or "submit" trigger for the 60-day limitation of Rule
202.48(a) "does not purport to govern the flow of the entry process,
which is a ministerial recording function that is separate and distinct
from the procedure of obtaining the court's signature on a proposed
(89 NY2d at 368 [citations omitted]). And to further drive
home the point that no further court action was, in fact, contemplated
or [*7]required with respect to the
monies owed Chemical Bank, Supreme Court added the phrase "without
further order" to the typewritten text of the proposed counter-judgment
submitted in 1996.

1. CPLR § 5601(a) reads:

An appeal may be taken to the court of appeals as of right in an action
originating in the supreme court, a county court, a surrogate's court,
the family court, the court of claims or an administrative agency, from
an order of the appellate division which finally determines the action,
where there is a dissent by at least two justices on a question of law
in favor of the party taking such appeal.

The bold and the footnote are mine.

A curious decision.