Category: CPLR R. 3211

CPLR R. 3211(e) Number, time and waiver of objections; motion to plead over

Peterson v JJ Real Estate, Inc., 2011 NY Slip Op 01819 (App. Div. 2nd 2011)

In effect, the plaintiffs merely substituted the Estate as a party defendant in place of the decedent. The failure of the decedent's guardian to raise the affirmative defense of lack of personal jurisdiction in the three answers served prior to the service of the plaintiffs' second amended complaint or to move on that ground within 60 days of serving those answers, waived the defense of lack of personal jurisdiction (see CPLR 3211[e]; Federici v Metropolis Night Club, Inc., 48 AD3d 741, 742; cf. Mendrzycki v Cricchio, 58 AD3d 171). "[T]he substitution of a party because of death does not extend or renew the time to take any procedural step that has expired" (Federici v Metropolis Night Club, Inc., 48 AD3d at 742). Accordingly, the Supreme Court correctly denied the Estate's motion to dismiss the second amended complaint insofar as asserted against it.

CPLR R. 3211(a)(5)

Glassberg v Lee, 2011 NY Slip Op 01800 (App. Div., 2nd 2011)

On February 13, 2008, the plaintiff allegedly was injured when her vehicle was struck by the defendant's vehicle on Route 52 in Fishkill. Thereafter, the plaintiff rented a car while her vehicle was being repaired. Approximately two months after the accident, the defendant's insurer sent two checks to the plaintiff, each in the sum of $400. As is relevant here, the second check (hereinafter the subject check) contained a notation on its face that it was in payment of: "Bodily Injury Coverage Full and Final Settlement Of All Claims Arising From MVA Of 2/13/2008." On or about April 30, 2008, the plaintiff endorsed the back of the subject check and cashed it. In August 2009 the plaintiff commenced this personal injury action. The defendant moved, in effect, pursuant to CPLR 3211(a)(5), to dismiss the complaint on the ground that the subject check constituted a valid release barring the action. The Supreme Court granted the motion. We reverse.

A release is a contract, and its construction is governed by contract law (see Mangini v McClurg, 24 NY2d 556, 562). While the meaning and scope of a release are determined within the context of the controversy being settled (see Matter of Brown, 65 AD3d 1140), a release cannot be read to cover matters which the parties did not intend to dispose of (see Meyer v Fanelli, 266 AD2d 361, 361-362), and unless it is shown that a specified matter was in dispute at the time a purported release was given, it cannot be held to bar the releasor's rights as to that matter (see Cahill v Regan, 5 NY2d 292, 299-300; see generally Mangini v McClurg, 24 NY2d at 562).

Notwithstanding the notation on the subject check, the record reveals that there was no bodily injury dispute in existence at the time the defendant's insurer tendered the subject check to the plaintiff. Thus, the Supreme Court erred in concluding that the subject check constituted a valid release barring the plaintiff's personal injury action. Moreover, the defendant presented no evidence that it had informed the plaintiff that her acceptance of the check would constitute a full and final release of any and all personal injury claims (see Brink v Killeen, 48 AD2d 823, 823-824; cf. McIntosh v Continental Trailways, 43 AD2d 411). Similarly, the plaintiff's acceptance of the subject check did not constitute an accord and satisfaction since no disputed claim as to bodily injury existed at the time the check was tendered to the plaintiff (see Gersh v Johansen, 76 AD2d 916; Rose Inn of Ithaca, Inc. v Great Am. Ins. Co., 75 AD3d 737, 739; Rosenthal & Rosenthal v Paston & Sons Agency, 210 AD2d 55, 56), and the plaintiff was not clearly informed that acceptance of the amount would settle or discharge the purported bodily injury claim (see Narenda v Thieriot, 41 AD3d 442, 443).

The defendant's remaining contentions either are without merit, are improperly raised for the first time on appeal, or have been rendered academic by our determination.

The decision will surely be of use to some no-fault types.  For a case with a more intricate discussion of what documentary evidence is and is not, read Fontanetta.

CPLR R. 3211(a)(1)

Hernandez v Chefs Diet Delivery, LLC, 2011 NY Slip Op 00647 (App. Div., 2nd 2011)

Contrary to the determination of the Supreme Court, the defendants failed to submit documentary evidence conclusively establishing that the plaintiffs were independent contractors and not employees (see generally Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326; Leon v Martinez, 84 NY2d 83, 87-88; Paramount Transp. Sys., Inc. v Lasertone Corp., 76 AD3d 519, 520). Initially, the federal income tax documents submitted by the defendants which identified some of the plaintiffs as independent contractors were insufficient to conclusively establish that the plaintiffs and the other drivers in the putative class were independent contractors. "While the manner in which the relationship is treated for income tax purposes is certainly a significant consideration, it is generally not singularly dispositive" (Gagen v Kipany Prods., Ltd., 27 AD3d 1042, 1043; see Matter of Stuckelman [Blodnick, Gordon, Fletcher & Sibell, P.C.-Commissioner of Labor], 16 AD3d 882). Furthermore, the various internal documents and the noncompete and confidentiality agreement signed by one of the plaintiffs were similarly insufficient to conclusively establish that the plaintiffs and the other putative class members were independent contractors. "The fact that a contract exists designating a person as an independent contractor is to be considered, but is not dispositive" (Araneo v Town Bd. for Town of Clarkstown, 55 AD3d 516, 518; see Gfeller v Russo, 45 AD3d 1301; Shah v Lokhandwala, 265 AD2d 396; Matter of Wilde [Enesco Imports Corp.—Sweeney], 236 AD2d 722, [*3]723; Carrion v Orbit Messenger, 192 AD2d 366; Matter of Pepsi Cola Buffalo Bottling Corp. [Hartnett], 144 AD2d 220, 222). In fact, to the extent that the noncompete provision of the agreement prohibited any of the drivers from engaging in other businesses that deliver food products on a regularly scheduled basis, the agreement itself weighed in favor of a finding that the drivers were not independent contractors (see Bynog v Cipriani Group, 1 NY3d at 198; cf. Rokicki v 24 Hour Courier Serv., 294 AD2d 555; Matter of Seaver [Glens Falls Newspapers-Hartnett], 162 AD2d 841). To the extent that the Supreme Court relied on the affidavits of several of the defendants, the Supreme Court erred as those affidavits were not documentary evidence (see Suchmacher v Manana Grocery, 73 AD3d 1017; Fontanetta v John Doe 1, 73 AD3d 78, 85; Berger v Temple Beth-El of Great Neck, 303 AD2d 346).

The bold is mine. 

CPLR R. 3211(a)(8)

Williams v DRBX Holdings, LLC, 2011 NY Slip Op 00423 (App. Div., 1st 2011)

In attempting to serve process on defendant, a foreign limited liability company authorized to do business in New York, plaintiff served defendant's attorneys instead of serving the Secretary of State, as required by Limited Liability Company Law § 303. Despite being twice alerted to the error by defense counsel, plaintiff never served the Secretary of State. "Notice received by means other than those authorized by statute does not bring a defendant within the jurisdiction of the court" (Macchia v Russo, 67 NY2d 592, 595 [1986]). The fact that defendant's attorneys would have received a copy of process from the Secretary of State does not avail plaintiff (see Fwu Chyuang Chow v Kenteh Enters. Corp., 169 AD2d 572 [1991]).

The bold is mine.

CPLR 3211(a)(8)

Tikvah Enters., LLC v Neuman, 2011 NY Slip Op 00502 (App. Div., 2nd 2011)

Moreover, the Supreme Court properly denied, without a hearing, the defendant's motion pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against him for lack of personal jurisdiction. A process server's affidavit of service constitutes prima facie evidence of proper service (see Associates First Capital Corp. v Wiggins, 75 AD3d 614; Scarano v Scarano, 63 AD3d 716). "Although a defendant's sworn denial of receipt of service generally rebuts the presumption of proper service established by the 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'" (Scarano v Scarano, 63 AD3d at 716, quoting Simonds v Grobman, 277 AD2d 369, 370; see Associates First Capital Corp. v Wiggins, 75 AD3d at 614-615; City of New York v Miller, 72 AD3d 726, 727). Here, the defendant never denied the specific facts contained in the process server's affidavits. Accordingly, no hearing was required (see Scarano v Scarano, 63 AD3d at 716-717; Roberts v Anka, 45 AD3d 752, 754).

Keep this in mind when opposing motions to vacate.

The bold is mine.

You can never have enough of these decisions handy.

CPLR R. 5015

CPLR R. 3215

Maida v Lessing's Rest. Servs., Inc., 2011 NY Slip Op 00490 (App. Div., 2nd 2011)

To vacate the order entered upon its default in opposing the motion for leave to enter a default judgment, the defendant Lessing's Restaurant Services, Inc. (hereinafter the appellant), was required to demonstrate, inter alia, a reasonable excuse for its default in appearing or answering the complaint and a potentially meritorious defense to the action (see CPLR 5015[a][1]; Abdul v Hirschfield, 71 AD3d 707; Bekker v Fleischman, 35 AD3d 334; Epps v LaSalle Bus, 271 AD2d 400). In support of its motion, which was not made until nine months after the order granting the plaintiff's motion for leave to enter a default judgment, the appellant did not offer a reasonable excuse for its failure to appear or answer the complaint (see Gartner v Unified Windows, Doors & Siding, Inc., 71 AD3d 631, 632; Kramer v Oil Servs., Inc., 65 AD3d 523, 524; Leifer v Pilgreen Corp., 62 AD3d 759, 760; Martinez v D'Alessandro Custom Bldrs. & Demolition, Inc., 52 AD3d 786, 787; Segovia v Delcon Constr. Corp., 43 AD3d 1143, 1144). Accordingly, it is unnecessary to consider whether the appellant sufficiently demonstrated the existence of a potentially meritorious defense to the action (see Abdul v Hirschfield, 71 AD3d at 709; Segovia v Delcon Constr. Corp., 43 AD3d at 1144; American Shoring, Inc. v D.C.A. Constr., Ltd., 15 AD3d 431). In addition, contrary to the appellant's contention, the plaintiff's submissions in support of her motion for leave to enter a default judgment were sufficient. The verified complaint and the plaintiff's affidavit set forth sufficient facts to enable the Supreme Court to determine that the plaintiff alleged a viable cause of action (see Woodson v Mendon Leasing Corp., 100 NY2d 62, 71; Neuman v Zurich N. Am., 36 AD3d 601, 602). Accordingly, the Supreme Court providently exercised its discretion in denying the appellant's motion to vacate the order dated November 24, 2008.

CPLR R.3211(a)(8)

R. Scott Miterko v Peaslee, 2011 NY Slip Op 00492 (App. Div., 2nd 2011)

The Supreme Court properly denied the appellant's cross motion pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against it on the ground of lack of personal jurisdiction. In opposition to the appellant's cross motion asserting that service of process pursuant to CPLR 311(a)(1) was not properly effected, the plaintiffs established that valid service was made pursuant to Business Corporation Law § 306(b)(1) (see Perkins v 686 Halsey Food Corp., 36 AD3d 881).

However, the Supreme Court should not have granted the plaintiffs' motion for leave to enter a default judgment. To establish their entitlement to a default judgment, the plaintiffs were required to submit proof of service of the summons and the complaint, of the facts constituting the claim, and of the default (see CPLR 3215[f]; Levine v Forgotson's Cent. Auto & Elec., Inc., 41 [*2]AD3d 552, 553; 599 Ralph Ave. Dev., LLC v 799 Sterling Inc., 34 AD3d 726). The plaintiffs' initial moving papers for leave to enter a default judgment were predicated solely upon their assertion of proper personal service pursuant to CPLR 311(a)(1). They established, prima facie, their entitlement to a default judgment by submitting an affidavit of service attesting that the summons and complaint were delivered to a managing agent of the appellant, a copy of the verified complaint, and an attorney affirmation attesting to the appellant's default in answering the complaint (see CPLR 311[a][1]; Matone v Sycamore Realty Corp., 50 AD3d 978; McIntyre v Emanuel Church of God In Christ, Inc., 37 AD3d 562; Bankers Trust Co. of Cal. v Tsoukas, 303 AD2d 343, 343-344). In opposition, the appellant rebutted these allegations and raised issues of fact by submitting an affidavit from its president stating that the person upon whom service allegedly was made was not employed by the appellant, nor authorized to accept service of process on behalf of the appellant. The affidavit of the plaintiffs' process server submitted in reply to this opposition raised an additional issue of fact as to whether the recipient, if not a managing agent, was cloaked with an apparent authority to accept service on the appellant's behalf (see generally Fashion Page v Zurich Ins. Co., 50 NY2d 265, 271-273; McDonald v Ames Supply Co., 22 NY2d 111, 115-116; Aguilera v Pistilli Constr. & Dev. Corp., 63 AD3d 765, 766-767; Seda v Armory Estates, 138 AD2d 362, 363-364). Accordingly, a hearing is necessary to determine the issue of whether proper personal service was effected pursuant to CPLR 311(a)(1), solely for the purpose of determining the plaintiffs' entitlement to a default judgment (see McIntyre v Emanuel Church of God In Christ, Inc., 37 AD3d at 562-563; Garcia v Munseob, 33 AD3d 586; Mortgage Access Corp. v Webb, 11 AD3d 592, 593; Bankers Trust Co. of Cal. v Tsoukas, 303 AD2d at 343-344; Frankel v Schilling, 149 AD2d 657, 659).

Since the plaintiffs' assertion that they were entitled to a default judgment based on proper service pursuant to Business Corporation Law § 306(b)(1) was made in their reply papers supporting their motion, two days before the return date and the date of the order appealed from, and the appellant did not have an opportunity to respond, the Supreme Court should not have considered that claim in determining the motion (see Matter of Crawmer v Mills, 239 AD2d 844, 844-845; cf. Matter of Whittaker v New York City Bd. of Educ., 71 AD3d 776, 778; Valure v Century 21 Grand, 35 AD3d 591, 592).

The appellant's contention that the plaintiffs failed to state a cause of action insofar as asserted against it is raised for the first time on appeal and, thus, is not properly before this Court (see McLearn v Cowen & Co., 60 NY2d 686, 689; Viafax Corp. v Citicorp Leasing, Inc., 54 AD3d 846, 849; Resnick v Doukas, 261 AD2d 375, 376).

The bold is mine.