Category: CPLR R. 3211

Interesting 3211(a)(8) Motion

CPLR R. 3211(a)(8)

Lettieri v Cushing, 2011 NY Slip Op 00194 (App. Div., 2nd 2010)

ORDERED that the order is modified, on the law, by adding to the provision denying that branch of the defendants' motion which was, in effect, pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against the defendant Jumpking, Inc., a further provision that the denial is without prejudice to renewal upon the completion of discovery on the issue of whether personal jurisdiction may be established over that defendant; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

As the party seeking to assert personal jurisdiction, the plaintiff bears the burden of proof on this issue (see Castillo v Star Leasing Co.,69 AD3d 551; Shore Pharm. Providers, Inc. v Oakwood Care Ctr., Inc., 65 AD3d 623, 624; Brinkmann v Adrian Carriers, Inc., 29 AD3d 615, 616; Ying Jun Chen v Lei Shi, 19 AD3d 407). However, "in opposing a motion to dismiss pursuant to CPLR 3211(a)(8) on the ground that discovery on the issue of personal jurisdiction is necessary, plaintiffs need not make a prima facie showing of jurisdiction, but instead must only set forth, a sufficient start, and show[ ] their position not to be frivolous'" (Shore Pharm. Providers, Inc. v Oakwood Care Ctr., Inc., 65 AD3d at 624, quoting Peterson v Spartan Indus., 33 NY2d 463, 467). "[T]he plaintiffs need only demonstrate that facts may exist' to exercise personal jurisdiction over the defendant" (Ying Jun Chen v Lei Shi, 19 AD3d at 408, quoting Peterson v Spartan Indus.,33 NY2d at 467; see Castillo v Star Leasing Co., 69 AD3d 551). [*2]

Here, in opposition to the defendants' motion to dismiss, the plaintiff established that facts "may exist" to exercise personal jurisdiction over the defendant Jumpking, Inc. (hereinafter Jumpking), and made a "sufficient start" to warrant further disclosure on the issue of whether personal jurisdiction may be established over that defendant (Peterson v Spartan Indus., 33 NY2d at 467; see Castillo v Star Leasing Co.,69 AD3d at 552). Thus, the Supreme Court properly denied that branch of the defendants' motion which was, in effect, pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against Jumpking. However, the Supreme Court should have denied that branch of the defendants' motion without prejudice to renewal upon the completion of discovery on the issue of whether personal jurisdiction may be established over Jumpking (see Peterson v Spartan Indus., 33 NY2d at 467; Castillo v Star Leasing Co., 69 AD3d at 552).

In addition, CPLR 3212(f) permits a party opposing a motion for summary judgment to obtain further discovery when it appears that facts supporting the position of the opposing party exist but cannot be stated (see Botros v Flamm, 77 AD3d 602; Family-Friendly Media, Inc. v Recorder Tel. Network, 74 AD3d 738; Aurora Loan Servs., LLC v LaMattina & Assoc., Inc., 59 AD3d 578). Under the circumstances presented here, the Supreme Court properly denied, as premature, with leave to renew upon the completion of disclosure, that branch of the defendants' motion which was for summary judgment dismissing the complaint insofar as asserted against the defendant Wal-Mart Stores, Inc., doing business as Sam's Club.

 

CPLR R. 3211(a)(7) and Res Judicata

Pereira v St. Joseph's Cemetery, 2010 NY Slip Op 08917 (App. Div., 2nd 2010)

"Where a dismissal does not involve a determination on the merits, the doctrine of res judicata does not apply" (Djoganopoulos v Polkes, 67 AD3d 726, 727; see Asgahar v Tringali Realty, Inc., 18 AD3d 408; Sclafani v Story Book Homes, 294 AD2d 559, 559-560). As a general rule, a [*2]dismissal for failure to state a cause of action is not on the merits and, thus, will not be given res judicata effect (see Maitland v Trojan Elec. & Mach. Co., 65 NY2d 614, 615; Asgahar v Tringali Realty, Inc., 18 AD3d at 408; see also Sullivan v Nimmagadda, 63 AD3d 908, 909). Here, our prior dismissal was not on the merits and, consequently, the doctrine of res judicata was not a bar to the plaintiff's second action.

Brill and CPLR R. 3211(a)(7)

CPLR R. 3211(a)(7), as most of you know, permits a motion to dismiss because the complaint fails to state a cause of action.  Unlike CPLR R. 3212, there is no 120-day timeline.  The standard of review is different as well.[1]  You can make the motion at any time.[2] But it needs to be converted.  See, Rich v. Lefkovits, 56 N.Y.2d 276 (Ct. App. 1982).

But can you get around CPLR R. 3212's 120-day timeline[3] by calling your summary judgment motion as motion to dismiss.  The short answer is no;[4] however, an explanation is required.

CPLR R. 3211(a)(7) should be used to weed out those complaints that don’t state a cause of action.  That’s it.  A complaint either states a cause of action or doesn’t.  Affidavits aren’t appropriate.  But, if an affidavit is attached, the motion turns into a different animal—it shouldn’t, but it generally does.  No longer will the court limit its inquiry into whether the complaint states a cause of action; now the inquiry is, does the plaintiff have a cause of action.  Whether a plaintiff states a cause of action or has a cause of action is a different question than whether the plaintiff will ultimately be successful, which is “not part of the calculus in determining a motion to dismiss.”[5]

Whether a plaintiff will ultimately be successful is fodder for a motion for summary judgment.  It follows then, that any motion made under 3211(a)(7) that isn’t directed at the pleadings is a summary judgment motion is disguise.[6]  That disguised motion is subject CPLR 3212’s 120-day timeline.  But to get back to my earlier point, any motion to dismiss under (a)(7) that utilizes and affidavit, is not proper.  I don’t care what anyone says.  If the motion doesn’t fit within 3211, then it’s a 3212 motion, subject to the time limit.

Now the question is why should it be subject to the time limit.  The answer is Brill v City of New York, 2 NY3d 648 (Ct. App. 2004).[7]  The Court of Appeals could have modified or completely done away with Brill in Crawford v Liz Claiborne, Inc., 11 NY3d 810 (Ct. App. 2008), but it didn’t.  It remains good law.

There is no reason to permit disguised summary judgment motions, no matter how meritorious, under CPLR R. 3211(a)(7).  Otherwise, Brill is meaningless.  Motions made under (a)(7) that are converted to Summary Judgment motions or those 3211(a)(7) motions were both parties charted a summary judgment course shouldn’t be permitted either.

If anyone is interested, JT’s post prompted me to write this post.

 

[1] “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.” Garner v China Natural Gas, Inc., 2010 NY Slip Op 02095 (App. Div., 2nd, 2010)

[2] For some interesting reading check out Butler v Catinella, 58 AD3d 145(App. Div., 2nd 2008), where the Appellate Division, Second Department corrected itself, and allowed the defense to be interposed in an answer.

[3] This is a hard timeline, with very little wiggle room.  Rivera v City of New York, 2010 NY Slip Op 03773 (App. Div., 1st, 2010)

[4] Brewi-Bijoux v City of New York, 2010 NY Slip Op 04535 (App. Div., 2nd, 2010); West Broadway Funding Assoc. v Friedman, 2010 NY Slip Op 04781 (App. Div., 2nd, 2010)

[5] Crepin v Fogarty, 2009 NY Slip Op 01272 (App. Div., 2nd, Feb. 19, 2009).  See also; Etzion v Etzion, 2009 NY Slip Op 03688 (App. Div., 2nd, 2009)

[6] In most, but not all cases.  It is possible that the 3211(a)(7) isn’t a disguised summary judgment motion; that it is just a garbage motion.

[7]

We conclude that "good cause" in CPLR 3212 (a) requires a showing of good cause for the delay in making the motion—a satisfactory explanation for the untimeliness—rather than simply permitting meritorious, nonprejudicial filings, however tardy. That reading is supported by the language of the statute—only the movant can show good cause—as well as by the purpose of the amendment, to end the practice of eleventh-hour summary judgment motions. No excuse at all, or a perfunctory excuse, cannot be "good cause."

Something that everyone knows, but is constantly ignored

CPLR R. 3211(a)(8)the court has not jurisdiction of the person of the defendant 

Associates First Capital Corp. v Wiggins, 2010 NY Slip Op 06225 (App. Div., 2nd, 2010)

The Supreme Court properly denied, without a hearing, inter alia, that branch of the defendants' motion which was to dismiss the complaint for lack of personal jurisdiction. "A process server's affidavit of service constitutes prima facie evidence of proper service" (Scarano v Scarano, 63 AD3d 716, 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 (see Skyline Agency v Coppotelli, Inc., 117 AD2d 135, 139), 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). Here, since the defendants' affidavits amounted to no more than bare and conclusory denials of service which were insufficient to rebut the prima facie proof of proper service pursuant to CPLR 308(1) and (2) created by the process server's affidavit, no hearing was required (see City of New York v Miller, 72 AD3d 726; Scarano v Scarano, 63 AD3d at 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).

By "defendant's sworn denial of receipt"  the Court does not mean that just anyone can deny receipt.  The person who was served has to do it or a person with sufficient knowledge. "I checked the file" is not sufficient.  But, like anything else, there are exceptions.

For some crazy reason, typepad decided to get rid of the justify button.  Posts will take longer because of this.

Waiver and Amendment CPLR R. 3211(e); CPLR R. 3025(b)

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

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

Complete Mgt., Inc. v Rubenstein, 2010 NY Slip Op 04726 (App. Div., 2nd, 2010)

However, the Supreme Court improvidently exercised its discretion in
denying that branch of the defendants' motion which was for leave to
amend their answer to assert the affirmative defense of lack of capacity
to sue. Although the defendants waived this defense by failing to raise
it in their answer or in a motion to dismiss made prior to answering (see
CPLR 3211[a][3];[e]; FBB Asset Mgrs. v Freund, 2 AD3d 573, 574; Harte
v Richmond County Sav. Bank, 224 AD2d 585, 586), " defenses waived
under CPLR 3211(e) can nevertheless be interposed in an answer amended
by leave of court pursuant to CPLR 3025(b) so long as the amendment does
not cause the other party prejudice or surprise resulting directly from
the delay'" (Nunez v Mousouras, 21 AD3d 355, 356, quoting Endicott
Johnson Corp. v Konik Indus., 249 AD2d 744, 744). Under the
circumstances of this case, the granting of leave to amend would not
have resulted in prejudice or surprise to the plaintiff, and the
proposed amendment was neither palpably insufficient nor totally devoid
of merit (see Bajanov v Grossman, 36 AD3d 572, 573; Nunez
v Mousouras, 21 AD3d at 356).

Compare with

Sackett v Konigsberg, 2010 NY Slip Op 04765 (App. Div., 2nd, 2010)

Contrary to the plaintiff's contention, the Supreme Court properly
granted the defendants' motion to strike the amended complaint based
upon her failure to comply with CPLR 3025. The record indicates that the
plaintiff served her amended complaint well beyond the period within
which an amended pleading may be served as of right (see CPLR
3025[a]) without first obtaining leave of the court or the stipulation
of the parties (see Nikolic v Federation Empl. & Guidance Serv.,
Inc., 18 AD3d 522, 524).

The appeal from the order dated March 17, 2008, must be dismissed
as abandoned, as the plaintiff does not seek in her brief reversal or
modification of any portion of the order (see Sirma v Beach, 59
AD3d 611, 614; Bibas v Bibas, 58 AD3d 586, 587).

The sad state of CPLR § 2309 and other things.

CPLR § 2309 is a disaster.  The courts are wildly inconsistent in how they treat it.  Some prefer the substance over form approach and others do the opposite.  Not too long ago, the Appellate Term, First Department allowed a party to add a certificate of conformity at the appellate level.  See, Eastern
Star Acupuncture, P.C. v Clarendon Natl. Ins. Co., 2010 NY Slip
Op 50043(U) (App. Term, 1st, 2010).  A few days ago, the Appellate Division, First Department wasn't as understanding. (h/t JT).  In Green v Fairway Operating Corp., 2010 NY Slip Op 03481 (App. Div., 1st, 2010) the defendant's motion for summary judgment was granted on default.  Plaintiff moved to vacate and attached an affidavit from a non-party witness which was sworn in the DR.  The plaintiff's motion was denied and the Appellate Division affirmed.  I think I said this once before, but it remains true, it's an exceptionally silly reason to lose a motion.  JT compares it to russian roulette, which is pretty apt.

The last time I wrote about 2309, I said that it was a dead objection, or something like that.  It appears that, in the first department at least, it is alive and well.  The objection, however, must be made in the papers, otherwise it's waived.  You'll find that most people don't know enough to object.

I'm sure you're thinking, "well, what's the rule in the First Department after Green?"  I have no idea.  I'd be interested to see what the Appellate Term does with Green.  Will it distinguish it or make 2309 a hard rule?

Other issues on my mind:

  • Why is there a split between the Second and First Department as to what is required to show a "reasonable excuse" when attempting to vacate a default?
  • Why do the courts allow a defendant to move to dismiss under CPLR R. 3211(a)(7) when the defendant is not claiming that the plaintiff failed to state a cause of action?  When affidavits and other proofs are attached, the courts change their inquiry from whether plaintiff has stated a cause of action to whether plaintiff has a cause of action (which is different from whether a plaintiff will ultimate be successful with that cause of action).  This, mind you, is different than a court converting it to a motion for summary judgment.  It just doesn't make any damn sense to me.

3211(a)(8) “no relationship between defendant’s transaction of business and plaintiff’s claims.”

Georgakis v Excel Mar. Carriers Ltd., 2010 NY Slip Op 02982 (App. Div., 1st, 2010)

Even assuming that defendant transacted business in New York, CPLR 302(a)(1) does not authorize the courts to exercise jurisdiction over it, because there is no relationship between defendant's transaction of business and plaintiff's claims against defendant (see Kreutter v McFadden Oil Corp., 71 NY2d 460, 467 [1988]; Holness v Maritime Overseas Corp., 251 AD2d 220, 224 [1998]).

In any event, we find that New York is not a convenient forum for this litigation between a foreign corporation and its former CEO, in which both parties are residents of Greece, which arose from conduct occurring principally in Greece, and in which the bulk of the witnesses and evidence needed by defendant to defend the action are located in Greece (see Gonzalez v Victoria [*2]Lebensversicherung AG, 304 AD2d 427 [2003], lv denied 1 NY3d 506 [2004]; Holness v Maritime Overseas Corp., 251 AD2d 220, 224 [1998]; Blueye Nav. v Den Norske Bank, 239 AD2d 192 [1997]).

The bold is mine.

Some good old fashioned SOL or Use it or lose it

CPLR R. 3211(e)

Horst v Brown, 2010 NY Slip Op 02836 (App. Div., 1st, 2010)

CPLR 3211(e) explicitly provides that an objection or defense based
on the statute of limitations is waived unless raised in a responsive
pleading or in a pre-answer motion to dismiss. Defendant failed to do
either, and thus waived this defense (see Buckeye Retirement Co., L.L.C., Ltd. v Lee,
41 AD3d 183 [2007] [statute of limitations defense waived unless
raised by aggrieved party]).

As defendant waived the affirmative defense of statute of
limitations, Supreme Court erred in its sua sponte consideration of that
defense (see Paladino v Time Warner Cable of N.Y. City, 16
AD3d 646 [2005] ["court may not take judicial notice, sua sponte,
of the applicability of a statute of limitations if that defense has not
been raised"]).

While "courts generally allow pro se litigants some leeway on the
presentation of their case" (Stoves & Stones v Rubens, 237
AD2d 280, 280 [1997]), in this particular case it was error to treat
defendant's opposition to plaintiff's motion for summary judgment on
damages as either a motion to amend defendant's answer, or a cross
motion for summary judgment based on the statute of limitations. "A
motion for summary judgment on one claim or defense does not provide a
basis for searching the record and granting summary judgment on an
unrelated claim or defense'" (Baseball Off. of Commr. v Marsh &
McLennan, 295 AD2d 73, 82 [2002], quoting Sadkin v Raskin &
Rappoport, 271 AD2d 272, 273 [2000]). 

All concur except Gonzalez, P.J. and RomÁn, J. who dissent in part in a
memorandum by RomÁn, J. as follows:

***

Generally, when a defendant fails to plead the statute of limitations as
a defense in his or her answer or fails to move for dismissal on that
ground, via a pre-answer motion, the defense is ordinarily waived (see
Dougherty v City of Rye, 63 NY2d 989, 991-992 [1984]; Fade v
Pugliani, 8 AD3d 612, 614 [2004]). However, when a defendant fails
to plead an affirmative defense, as required by CPLR 3211(e) and
3018(b), but nevertheless asserts that defense in connection with a
motion for summary judgment, the waiver is said to be retracted and the
court can grant, when the defendant is the movant, or deny, when the
defendant is the opponent, summary judgment based upon the unpleaded
affirmative defense (see Lerwick v Kelsey, 24 AD3d 918, 919-920
[2005]; Allen v Matthews, 266 AD2d 782, 784 [1999]; Adsit v
Quantum Chem. Corp., 199 AD2d 899 [1993]). The threshold inquiry is
whether in considering the unpleaded defense, the opponent of the
defense is prejudiced thereby (see BMX Wordlwide v Coppola N.Y.C.,
287 AD2d 383 [2001]; Allen v Matthews, 266 AD2d 782, 784 [1999];
Seaboard Sur. Co. v Nigro, Bros. 222 AD2d 574 [1995]; Rogoff v
San Juan Racing Assn. Inc., 77 AD2d 831 [1980], affd 54 NY2d
883 [1981]). Such prejudice, however, is ameliorated when the defense
was previously raised on a prior motion or during discovery (id.),
or when the opponent of the motion, where defendant seeks summary
judgment based upon said defense, is given an opportunity to fully
respond to the motion for summary judgment (Sheils v County of Fulton, 14 AD3d 919
[2005], lv denied 4 NY3d 711 [2005]; Kirilescu v American Home
Prods. Corp., 278 AD2d 457 [2000], lv denied 96 NY2d 933
[2001]; McSorley v Philip Morris, Inc., 170 AD2d 440 [1991], appeal
dismissed 77 NY2d 990 [1991]; International Fid. Ins. Co. v Robb,
159 AD2d 687 [1990]).

***

Cadlerock, L.L.C. v Renner, 2010 NY Slip Op 02849 (App. Div., 1st, 2010)

Defendant sufficiently pleaded his statute of limitations affirmative
defense (see Immediate v St. John's Queens Hosp., 48 NY2d 671,
673 [1979]). Contrary to plaintiff's contention, the promissory note,
which required defendant to pay principal and interest payments monthly
for 20 years, after which the loan would have self-liquidated, was an
installment contract (see Phoenix Acquisition Corp. v Campcore, Inc.,
81 NY2d 138, 141-142 [1993]), and, since the debt was not accelerated
while defendant was making the monthly payments, the applicable six-year
statute of limitations (CPLR 213[2]) began to run on the date on which
each installment became due and payable (see Phoenix Acquisition
Corp. at 141). Thus, the statute of limitations bars plaintiff from
seeking to recover the amount of the installment payments, including any
interest, that defendant defaulted on before April 18, 2002, when this
action was commenced (see id.; Sce v Ach, 56 AD3d 457, 458-459 [2008]).

The defense of laches is unavailable in this action at law
commenced within the period of limitations (see Matter of American Druggists' Ins. Co., 15
AD3d 268 [2005], lv dismissed 5 NY3d 746 [2005]; Kahn v
New York Times Co., 122 AD2d 655, 663 [1986]). However, we conclude
that a triable issue of fact exists whether plaintiff's claims are
barred by the doctrine of equitable estoppel, i.e., whether defendant
justifiably relied on the nine years of inaction by plaintiff and its
predecessors-in-interest to reasonably conclude that his monthly
payments were sufficient to satisfy his payment obligations under the
note, and therefore was misled into paying a reduced amount for years
without realizing that interest was accruing at the 14% interest rate [*2](see Fundamental Portfolio Advisors, Inc. v
Tocqueville Asset Mgt., L.P., 7 NY3d 96, 106—107 [2006]; Triple
Cities Constr. Co. v Maryland Cas. Co., 4 NY2d 443, 448 [1958]).

The bold is mine.

Like a bullet to the head. CPLR R. 3211(a)(1). What constitutes “documentary evidence.”

Sometimes procedure serves as a minor irritant, preventing immediate relief.  Other times it works like a baseball bat to your knees, preventing you from getting from point A to point B in your usual and customary fashion.  And in others, it’s a bullet to the head, preventing you from going anywhere at all.

I was going to use that introduction in an article, but it was vetoed.  Perhaps rightfully so.  But I really want to use it.

This decision contains a great discussion of 3211(a)(1), particularly what constitutes "documentary evidence."  CPLR 3211(a)(1), much like (a)(7) is used far too often under circumstances that don't suit it.1  Both are used as a way to get a pre-answer motion to dismiss in, where the facts don't quite fit.  Even though it might get the motion through the gate, it doesn't mean that it will get to the finish line.  It would make more sense to use it to get the motion, in but to request that it be converted. Other times, they are used as a way around 3212(a)'s 120 day time limit.

CPLR R. 3211(a)(1)

Fontanetta v John Doe 1, 2010 NY Slip Op 02743 (App. Div., 2nd, 2010)

 

On November 30, 2007, the defendants moved, inter alia, to dismiss the complaint pursuant to CPLR 3211(a)(1) based on "documentary evidence." They argued, among other things, that the plaintiff's privileges were terminated after he "engaged in a dangerous trend of substandard patient care," and that they were immunized from liability by the HCQIA and New York State Public Health Law § 2805-m(3) because the Hospital's decision to terminate the plaintiff 's privileges "was reasonable and in furtherance of quality health care." In support of their motion, the defendants submitted the following items, asserting that they constituted "documentary evidence" within the intendment of CPLR 3211(a)(1): a completely redacted Quality Improvement Morbidity Report (written conclusions of the CQI Committee reviews); a memorandum from Monica Santoro of the Hospital's Risk Management Department to Barbara Kohart-Kleine, a Vice President of the Hospital administration, regarding the plaintiff's cases that were being reviewed by that Department; five sets of minutes from Quality Improvement Meetings (the minutes of the CQI Committee meetings); a report from New York Patient Occurrence Report and Tracking System; a report from NYPORTS.net; excerpts of testimony from Medical Staff Hearings; five excerpts of minutes from the Ad Hoc Committee Hearings; attendance sheets from CQI Committee meetings; a chart review; a copy of an e-mail correspondence between Barbara Vallone, R.N., and Dr. Teplitz discussing the plaintiff's failure to follow Hospital protocol; a transcript of the proceedings held before the Appellate Review Board; minutes from an Executive Committee Meeting; minutes from a Board of Directors' Executive Session; minutes from the Appellate Review Committee Meeting; and eight letters either from or to the plaintiff, Dr. DiMaio, or the Hospital administration discussing the plaintiff's cases, his failure to follow Hospital protocol, or his suspension (hereinafter collectively the defendants' printed materials).

Both before the Supreme Court and at oral argument in this Court, the defendants limited the scope of that branch of their motion which was to dismiss the complaint to one pursuant to CPLR 3211(a)(1), relying solely on the above-mentioned alleged "documentary evidence," and declined to rely on any other subdivision of CPLR 3211(a). Nor did they argue that their application should be treated as a motion for summary judgment under CPLR 3211(c). In its order entered April 2, 2008, the Supreme Court denied that branch of the defendants' motion which was to dismiss the complaint, finding that the proof relied upon by them was not "documentary evidence." We agree.

Discussion

A motion to dismiss pursuant to CPLR 3211(a)(1) will be granted only if the "documentary evidence resolves all factual issues as a matter of law, and conclusively disposes of the plaintiff's claim" (Fortis Fin. Servs. v Fimat Futures USA, 290 AD2d 383, 383; see Leon v Martinez, 84 NY2d 83, 88; Martin v New York Hosp. Med. Ctr. of Queens, 34 AD3d 650; Berger v Temple Beth-El of Great Neck, 303 AD2d 346, 347). "[I]f the court does not find [their] submissions documentary', it will have to deny the motion" (Siegel, Practice Commentaries, [*4]McKinney's Cons Laws of NY, Book 7B, CPLR C3211:10 at 22). Since the printed materials relied on by the defendants do not qualify as such,[FN2] we affirm the denial of that branch of the defendants' motion which was to dismiss the complaint pursuant to CPLR 3211(a)(1).

The History and Development of CPLR 3211(a)(1)

CPLR 3211, including subdivision (a)(1),[FN3] appears to have had its genesis in the 1957 First Preliminary Report of the Advisory Committee on Practice and Procedure (1st Rep Leg Doc [1957] No. 6[b] [hereinafter the Report]). According to that Report, the purpose of CPLR 3211(a)(5) was to cover the most common affirmative defenses founded upon documentary evidence, specifically, estoppel, arbitration and award, and discharge in bankruptcy, whereas 3211(a)(1) was enacted to "cover all others that may arise, as for example, a written modification or any defense based on the terms of a written contract" (id. at 85). To some extent, "documentary evidence" is a "fuzzy" term, and what is documentary evidence for one purpose, might not be documentary evidence for another.[FN4]

As Professor Siegel has noted in his Commentary to CPLR 3211, there is "a paucity of case law" as to what is considered " documentary' under [CPLR 3211(a)(1)]" (Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3211:10, at 21-22). From the cases that exist, it is clear that judicial records, as well as documents reflecting out-of-court transactions such as mortgages, deeds, contracts, and any other papers, the contents of which are "essentially undeniable," would qualify as "documentary evidence" in the proper case (id.; see 2 NY Prac., Com. Litig. in New York State Courts § 7:60, 2d ed). For example, in Matter of Casamassima v Casamassima (30 AD3d 596), this Court held that a trust agreement qualified as "documentary evidence" in a dispute between co-trustees.

In Bronxville Knolls v Webster Town Ctr. Partnership (221 AD2d 248), the Appellate Division, First Department, found that an integrated mortgage and note, which unambiguously made the property itself the plaintiffs' sole recourse, constituted "documentary evidence." In Crepin v Fogarty (59 AD3d 837, 839), the Appellate Division, Third Department, found that a deed qualified as "documentary evidence" where it conclusively established the validity of the disputed easement.

Along the same lines, in 150 Broadway N.Y. Assoc., L.P. v Bodner (14 AD3d 1, 7), the Appellate Division, First Department, found that a lease which unambiguously contradicted the allegations supporting the plaintiff's cause of action alleging breach of contract constituted "documentary evidence" under CPLR 3211(a)(1). The Court noted that this lease represented a clear and complete written agreement between sophisticated, counseled business people negotiating at arms length (id. at 8). Relying on the same reasoning, the Appellate Division, Third Department, in Ozdemir v Caithness Corp. (285 AD2d 961), held that a contract constituted "documentary evidence" in a dispute regarding the payment of a finder's fee.

On the other hand, the case law is somewhat more abundant as to what is not "documentary evidence." As this Court held in Berger v Temple Beth-El of Great Neck (303 AD2d 346, 347), affidavits are not documentary evidence (to the same effect, see Tsimerman v Janoff, 40 AD3d 242 [1st Dept], and Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3211.10). In Weil, Gotshal & Manges, LLP v Fashion Boutique of Short Hills, Inc. (10 AD3d 267, 271), the Appellate Division, First Department, reversed the trial court's dismissal [*5]pursuant to CPLR 3211(a)(1), finding that e-mails and deposition and trial testimony were not the types of documents contemplated by the Legislature when it enacted this provision.

In Frenchman v Queller, Fisher, Dienst, Serrins, Washor & Kool, LLP (24 Misc 3d 486, 495 n 2), the Supreme Court, New York County, held that affidavits and letters did not constitute documentary evidence under CPLR 3211(a)(1) so as to prove that a lawyer-client relationship had been terminated. Also, in Holman v City of New York (19 Misc 3d 600, 602), the Supreme Court, Kings County, found that medical records containing the notes of a doctor were not "documentary evidence," as they raised issues of credibility that are for a jury to decide.

Similarly, in Webster Estate of Webster v State of New York (2003 NY Slip Op 50590[U] *5), the Court of Claims held that records maintained by the New York State and United States Departments of Transportation, which provided detailed information about the railroad crossing at issue, were not "documents" within the meaning of CPLR 3211(a)(1). The court reasoned that those records contain information in a summary form and, thus, are not "essentially undeniable."

In sum, to be considered "documentary," evidence must be unambiguous and of undisputed authenticity (see Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3211:10, at 21-22).

It must be pointed out that some of the confusion as to what constitutes documentary evidence pursuant to CPLR 3211(a)(1) stems from the fact that various courts appear to refer to any printed materials as "documentary evidence," particularly in cases not involving CPLR 3211(a)(1). For example, in Gray v South Colonie Cent. School Dist. (64 AD3d 1125), the Appellate Division, Third Department, referred to deposition testimony as "documentary evidence" in discussing a motion for summary judgment. In addressing a motion to change venue in Garced v Clinton Arms Assoc. (58 AD3d 506, 509), the Appellate Division, First Department, referred to affidavits as "documentary evidence." However, it is clear that affidavits and deposition testimony are not "documentary evidence" within the intendment of a CPLR 3211(a)(1) motion to dismiss.

The Instant Motion

The essence of the defendants' contentions, both in their briefs and at oral argument, is the following: first, that their (alleged) "documentary evidence," i.e., the defendants' printed materials, demonstrates that a peer review process (as defined by the HCQIA) took place; second, a review of the complaint shows that the claims are all based on the allegedly wrongful termination of the hospital privileges of the individual plaintiff for not providing quality medical care; and, third, under the HCQIA, the defendants have a presumption of immunity for claims resulting from their participation in a peer review process. They maintain that this established the necessary prerequisites for the presumption to apply, and the burden has, therefore, shifted to the plaintiff to demonstrate why the complaint should not be dismissed or, at least, to show the existence of a factual question on that issue. The defendants argue that the plaintiff did not make that showing. Thus, based on the printed materials the defendants submitted, they were entitled to dismissal of the complaint.

We reject the defendants' position. Their printed materials (with the above-noted possible exception of the clearly insufficient attendance reports) can best be characterized as letters, summaries, opinions, and/or conclusions of the defendants and/or the Hospital's agents and employees. They clearly do not reflect an out-of-court transaction and are not "essentially undeniable" (see Siegel, Practice Commentaries, McKinney's Cons Law of NY, Book 7B, CPLR C3211:10 at 22). Thus, they are not "documentary evidence" within the intendment of CPLR 3211(a)(1).

Since the defendants' printed materials were not "documentary evidence" and they made this motion exclusively under CPLR 3211(a)(1), their submissions were insufficient as a matter of law to grant their motion. In light of that determination, we need not address the parties' remaining contentions.

We also reject the defendants' position at oral argument, i.e., that the policy considerations underlying the immunity granted to them by the HCQIA mandate that this matter be decided by their 3211(a)(1) motion to dismiss, without requiring them to wait and make a summary judgment motion. [*6]

Pursuant to CPLR 3211(c),[FN5] a party can have its motion treated as one for summary judgment (even prior to joinder) either by charting a summary judgment course or by requesting such treatment. Thus, had the defendants truly desired an expedited determination, they could have first moved to dismiss pursuant to CPLR 3211(a) and then requested that the court convert that motion to one for summary judgment under CPLR 3211(c) prior to serving an answer, since all of the papers they chose to rely on were available prior to the commencement of this action (see Mihlovan v Grozavu, 72 NY2d 506, 508; Yule v New York Chiropractic Coll., 43 AD3d 540, 541; Bowes v Healy, 40 AD3d 566; Love v Morrow & Co., 193 AD2d 586). Alternatively, the defendants could have answered and then moved for summary judgment pursuant to CPLR 3212 without waiting for any discovery.

Instead, they chose this narrowly circumscribed and focused motion pursuant to CPLR 3211(a)(1), and thereby charted their own course. As such, they should not be heard to complain about the consequences thereof (see Nishman v De Marco, 62 NY2d 926, 929; Nissequogue Boat Club v State of New York, 14 AD3d 542, 544-545; Manning v Brookhaven Mem. Hosp. Med. Ctr., 11 AD3d 518, 522).

The bold is mine.

——

1.  You see a lot of these motions in no-fault.  Judge's are starting to see that 3211 is not the catch-all defendant's would make it out to be. See VIT Acupuncture, P.C. v State Farm Auto. Ins. Co., 2010 NY Slip Op 51560(U) (Civ Ct City NY, Kings County).

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.”