Category: CPLR R. 3211

CPLR R. 3211/3212 timing: Interesting decision from App. Div., 1st

Fofana v 41 W. 34th St., LLC, 2010 NY Slip Op 01830 (App. Div., 1st, 2010)

On December 3, 2004, Fofana commenced an action against, inter alia,
41 West, GSL, and Winoker, and on February 28, 2006, he commenced a
separate action against Midboro. Both actions were filed in Supreme
Court, New York County.
[*2]

Previously, on August 5, 2004,
Haynes had commenced a personal injury action in Supreme Court, Bronx
County, against several of the same defendants. Eventually, the Haynes
action was consolidated in the Bronx with plaintiff's two New York
County actions. Fofana was impleaded as a third-party defendant in the Haynes
action.

By notice dated October 5, 2006, the defendants in the Haynes action
moved for summary judgment on the grounds, inter alia, that the
evidence established that the freight elevator complied with the
elevator code in effect when built, and contained no defects at the time
of the accident. They contended that the elevator door was caused to be
opened by the force of being struck by plaintiff's and Haynes's weight,
as the two fought.

On August 17, 2007, the trial court granted the motion, on the
ground, inter alia, that there was no evidence that defendants had any
notice that the fourth floor hoistway doors had been defective prior to
the incident. In an order entered May 19, 2009, this Court upheld the
dismissal of the complaint, finding that defendants had made a prima
facie showing that the accident was not caused by any defect in the
hoistway door (62 AD3d 519, 521 [2009]). In particular, the Court noted
that an elevator inspector from the New York City Department of
Buildings who had inspected the accident scene within 80 minutes after
the accident, found that the sliding panel for the elevator door "was
bent and protruded into the hoistway in a manner indicating that a
substantial horizontal force had been exerted against the sliding panel"
(id. at 520). The Court also observed that the evidence
indicated that there had not been any problems with the hoistway doors
before the accident occurred (id.).

By notice dated August 31, 2007, two weeks after the trial court
granted summary judgment in the Haynes action, the defendants in
the Fofana action moved to amend their answers to assert the
affirmative defenses of collateral estoppel and res judicata, and, upon
the granting of said relief, for dismissal on those grounds pursuant to
CPLR 3211(5).

By order entered January 15, 2008, the court granted leave to
amend, but denied the motion to dismiss. In so doing, the court found
that, as discovery in the Fofana action had not been completed at
the time of the Haynes motion, Fofana was not in a position to
meaningfully litigate the issues raised on the motion to dismiss.

Subsequently, on February 19, 2008, defendants, who did not
appeal from the January 15 order, moved for leave to file a summary
judgment motion and, upon the granting of leave, for summary judgment
dismissing the complaint. In support of their motion, defendants noted
that the Haynes note of issue had been filed on March 7, 2006,
while the note of issue in this case was only filed on May 7, 2007. They
also observed that the Haynes summary judgment motion had been
served on all parties to the action, including Fofana, who was a
third-party defendant in that action.

Defendants argued they had a reasonable belief that plaintiff, a
party to the Haynes action, would be bound by the Haynes
decision, which was dispositive of all the issues herein. Thus, they
claimed, they made a motion to dismiss pursuant to CPLR 3211(a)(5),
rather than a motion for summary judgment pursuant to CPLR 3212. They
aver that this reasonable belief constitutes "good cause" for the delay
in moving for summary judgment. In opposition, Fofana argued that
defendants failed to show why they could not have sought alternative
relief when filing the motion to dismiss, and that the excuse was akin
to inexcusable law office failure.

The trial court denied the motion as untimely, finding that the
proffered excuse constituted law office failure, with the result that
the requisite good cause to entertain the motion had not been shown. The
court reasoned that defendants should have recognized that the motion [*3]to dismiss could be denied, and thus the
motion for summary judgment should have been made with the prior motion.
We reverse.

CPLR 3212(a) provides that the "court may set a date after which
no [dispositive] motion may be made," and, "[i]f no such date is set by
the court, such motion shall be made no later than one hundred twenty
days after the filing of the note of issue, except with leave of court
on good cause shown." In Brill v City of New York (2 NY3d 648 [2004]),
the Court of Appeals made clear that the statutory deadline should be
strictly enforced, in order to prevent the filing of "[e]leventh-hour
summary judgment motions," a practice that "ignores statutory law,
disrupts trial calendars, and undermines the goals of orderliness and
efficiency in state court practice" (id. at 650-651). It
concluded that the "good cause" called for by CPLR 3212(a) requires a
"satisfactory explanation for the untimeliness – rather than simply
permitting meritorious, nonprejudicial filings, however tardy" (id.
at 652) (see also Miceli v State Farm Mut. Auto. Ins. Co.,
3 NY3d 725 [2004]). This Court has subsequently observed that
"courts may not excuse a late motion, no matter how meritorious, upon a
perfunctory claim of law office failure" (Azcona v Salem, 49 AD3d 343, 343 [2008]).

In this case, however, it is undisputed that defendants made a
timely motion to dismiss on the grounds of collateral estoppel.
Moreover, in defending the "failure" to make a simultaneous motion for
summary judgment, they noted that Fofana, as a third-party defendant in
the Haynes action, had been served with the motion papers.
Regardless of whether he chose to submit papers in opposition to the
motion, he was put on notice that the defendants were taking the
position that the elevator door was not defective prior to the accident,
and that the accident occurred as a result of the force exerted by the
weight of the two combatants as they fell against the door. He thus had
the opportunity to litigate the issue, and yet declined. Furthermore,
since the note of issue had not yet been filed in his own action, Fofana
still had the opportunity to pursue further discovery with regard to
this defense, in the event such a motion was made in his own case.

Thus, defendants' averment that they had good cause not to file a
motion for summary judgment contemporaneously with the motion to
dismiss is valid. The disposition of the Haynes summary judgment
motion provided sufficient grounds either to invoke collateral estoppel
or to dismiss the Fofana case. The conditions for the
applicability of collateral estoppel are an identity of issue which has
been necessarily decided in the prior action and is decisive of the
present action, and a full and fair opportunity to contest the decision
now said to be controlling (Schwartz v Public Admin. of County of
Bronx, 24 NY2d 65, 71 [1969]). The issue of whether the elevator was
defective was at the heart of the Haynes case, and Fofana was a
party to that action. Even as a third-party defendant he had a vested
interest in opposing any contention that the elevator door was not the
cause of the accident. Like the codefendants in Schwartz, he was
in every respect an antagonist to the defendants/third-party plaintiffs
who impleaded him, and who asserted that the elevator door was not
defective (id. at 72).

We therefore conclude that defendants were not guilty of law
office failure in not also moving for summary judgment.

The bold is mine.

The Problem with CPLR R. 3211(a)(7)

CPLR R. 3211(a)(7)  pleading fails to state a cause of action

Thomas v Thomas, 2010 NY Slip Op 01586 (App. Div., 1st, 2010)

Because the instant motion is pursuant to CPLR 3211, the complaint "is to be afforded a liberal construction (see, CPLR 3026). We accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal theory." (Leon v Martinez, 84 NY2d 83, 87-88 [1994]). Applying this standard, plaintiffs have stated a cause of action for a constructive trust. As a preliminary matter, it is accepted that a constructive trust over real property can be imposed even where an underlying agreement is not in writing (see Sharp, 40 NY2d at 122). The complaint clearly alleges that Janet Thomas promised to transfer the property back to plaintiffs. It can be inferred that plaintiffs relied on that promise, or they would have not made the transfer. That plaintiffs meant to convey in their complaint that Janet Thomas would be unjustly enriched without judicial intervention can be similarly assumed.

While it is not clearly spelled out in the complaint that plaintiffs and Janet Thomas had a confidential relationship, Janet Thomas's affidavit, submitted in support of her motion, provides sufficient information to draw such an inference. Specifically, the affidavit volunteers the existence of the partner program and the fact that, until shortly before the transaction at issue, the parties were co-venturers in a quasi-banking enterprise, however informal that enterprise may have been. This is sufficient to infer that the parties had fiduciary responsibilities to one another [*3]which elevated the relationship from one of mere acquaintances to a "confidential" one. We disagree with the dissent's position that we may not consider Janet Thomas's affidavit. On a CPLR 3211 motion a plaintiff's affidavit "may be used freely to preserve inartfully pleaded, but potentially meritorious, claims" (Rovello v Orofino Realty Co., Inc., 40 NY2d 633, 635 [1976]). It follows, a fortiori, that admissions in a defendant's affidavit may similarly be used to ascertain whether a plaintiff has a valid cause of action.

***

ROMÁN, J. (dissenting)

Since I believe that the majority misconstrues well settled law, applicable to motions to dismiss pursuant to CPLR § 3211(a)(7), I dissent.

***

When deciding a motion to dismiss a complaint, pursuant to CPLR 3211(a)(7), all [*4]allegations in the complaint are deemed to be true (Sokoloff v Harriman Estates Dev. Corp., 96 NY2d 409, 414 [2001]; Cron v Hargro Fabrics, 91 NY2d 362, 366 [1998]). All reasonable inferences which can be drawn from the complaint and the allegations therein stated shall be resolved in favor of the plaintiff (id.). In opposition to such a motion, a plaintiff may submit affidavits to remedy defects in the complaint (CPLR 3211[c]; Cron v Hargro Fabrics, 91 NY2d at 366; Leon v Martinez, 84 NY2d 83, 87-88 [1994]; Amaro v Gani Realty Corp., 60 AD3d 491, 492 [2009]). If an affidavit is submitted for that purpose, it should be given its most favorable intendment (Cron v Hargro Fabrics, 91 NY2d at 366).

***

While a plaintiff can cure pleading defects by submitting an affidavit, it does not follow that any such defects in a plaintiff's pleadings can be cured by a defendant's submissions, affidavit or otherwise. Here the majority finds that the existence of a confidential relationship by virtue of an affidavit submitted by Janet Thomas in support of her motion to dismiss the complaint. While the majority's position finds some support in Rovello v Orofino Realty Co., 40 NY2d 633 [1976], where the court held that affidavits can be used to correct pleading defects in a complaint, without ever stating whose affidavits could be so considered, in Leon and then again in Cron, the Court of Appeals, while citing Rovello, nevertheless implicitly narrowed the holding in Rovello, stating that "[i]n opposition to such a motion [one pursuant to CPLR 3211], a plaintiff may submit affidavits to remedy defects in the complaint' and preserve inartfully pleaded but potentially meritorious claims'" (Cron v Hargro Fabrics, 91 NY2d at 366, citing Rovello v Orofino Realty Co., Inc., 40 NY2d at 635-636 [emphasis added]). Thus, it is only a plaintiff's affidavit which can be used to remedy a defect in the complaint (id.; see Leon v Martinez, 84 NY2d at 88; Amaro v Gani Realty Corp., 60 AD3d at 492; see also Fitzgerald v Federal Signal Corp., 63 AD3d 994, 995 [2009]).

The bold is mine.  (a)(7), like (a)(1), and like 5015, is constantly construed differently.  Someone needs to clear this mess up.

Today in the First Department (22 NYCRR 202.2, CPLR R. 3211, CPLR R. 3212, CPLR § 306-b, CPLR § 3121, SOL)

Several decisions popped out of the Appellate Division, First Department,  today.  In a break from my normal posting style, where I try to split posts between sections and rules, I'm going to post the few decisions that I found interesting.


Ocasio-Gary v Lawrence Hosp., 2010 NY Slip Op 00003 (App. Div., 1st, 2009)

Even had St. Barnabas met its initial burden, plaintiff's expert's submission raises triable issues of fact regarding the hospital's negligence (see DaRonco v White Plains Hosp. Ctr., 215 AD2d 339 [1995]). The trial court should not have rejected the expert's opinion on the ground that the expert failed to expressly state that he or she possessed the requisite background and knowledge in emergency medicine to render an opinion. The expert, who is board certified in internal medicine, is qualified to render an opinion as to diagnosis and treatment with respect to the symptoms presented by the decedent. In contrast, the expert's affirmation in Browder v New York City Health & Hosps. Corp. (37 AD3d 375 [2007]), cited by the trial court, failed to indicate either the expert's specialty or that he or she possessed the requisite knowledge to furnish a reliable opinion. Venue should be retained in Bronx County. The only ground for the motion to change venue was the dismissal of the complaint against St. Barnabas, and the complaint has been reinstated.

The motion to vacate plaintiff's note of issue, served more than 20 days after service of that note, was properly denied as untimely (see 22 NYCRR 202.21[e]), "no showing of special circumstances or adequate reason for the delay having been offered" (Arnold v New York City Hous. Auth., 282 AD2d 378 [2001]). Nor did the court err in finding that defendant Orin failed to demonstrate good cause for an extension of time in which to file his motion for summary judgment (CPLR 3212[a]; Brill v City of New York, 2 NY3d 648, 652 [2004]).

Johnson v Concourse Vil., Inc., 2010 NY Slip Op 00010 (App. Div., 1st, 2009)

Although plaintiff's counsel served her pleadings just one day after the applicable 120-day service period expired (see CPLR 306-b), and counsel offered proof that he attempted to arrange for service with eight days remaining out of the 120-day period, he nonetheless failed to show diligence in his efforts to effect service, particularly as the three-year statute of limitations (CPLR 214[5]) had already expired, and he did not follow up with the process server regarding completion of service until after the 120-day service period had expired. There was no evidence to indicate that the corporate defendants could not be located, or that they could not be readily served through the Secretary of State. Furthermore, counsel waited until after defendants moved to dismiss before he cross-moved for an extension of the time to serve some several months later. Such evidence of lack of diligence undermines plaintiff's "good cause" argument in support of her extension request (see generally Leader v Maroney, Ponzini & Spencer, 97 NY2d 95 [2001]).

Nor is a grant of an extension to serve the pleadings warranted in the interest of justice. The circumstances presented, including that the statute of limitations expired, plaintiff's lack of diligence in prosecuting this action, the lack of probative evidence offered as to the claim's merit, the vague allegations of injury, the lack of notice given of the claim for more than three years and three months, the prejudice to defendants and the several month delay in moving for an extension of the time to serve, demonstrate that the dismissal of this action was appropriate (see Slate v Schiavone Constr. Co., 4 NY3d 816 [2005]; Posada v Pelaez, 37 AD3d 168 [2007]; compare de Vries v Metropolitan Tr. Auth., 11 AD3d 312 [2004]).

One day late.

Suss v New York Media, Inc., 2010 NY Slip Op 00011 (App. Div., 1st, 2009)

We reject plaintiff's argument that such evidence fails to show, prima facie, that the issue first was published on April 29. The affidavits submitted by defendants were made with personal knowledge of the issue's distribution date; the distributor's affidavit was the proper vehicle for the submission of photographs taken by him and his staff (see H.P.S. Capitol v Mobil Oil Corp., 186 AD2d 98, 98 [1992]); and the photographs, as enhanced and highlighted in defendants' reply, clearly depict what they are claimed to depict. In opposition, plaintiff failed to submit any evidence of a later publication.

We also reject plaintiff's argument that unless the court gives CPLR 3211(c) notice of its intention to do so, it may not consider nondocumentary evidentiary materials for fact-finding purposes on a motion to dismiss pursuant to CPLR 3211(a)(5) (see Alverio v New York Eye & [*2]Ear Infirmary, 123 AD2d 568 [1986]; Lim v Choices, Inc., 60 AD3d 739 [2009]).

Welter v Feigenbaum, 2010 NY Slip Op 00012 (App. Div., 1st, 2009)

A plaintiff, in an action for negligent transmittal of genital herpes simplex II, may demand that the defendant submit to a blood test to determine if the latter indeed has the virus (see CPLR 3121). Since the test was ordered in conjunction with the litigation, it is not subject to the physician-patient privilege (see Connors, McKinney's CPLR Practice Commentary C3121:2). Even were the privilege to apply, defendant waived it by asserting the affirmative defense that he was asymptomatic (see e.g. Dillenbeck v Hess, 73 NY2d 278, 287-288 [1989]). Defendant's effort to limit the scope of discovery has simply focused the issue on whether or not he has the virus. This issue is relevant to — and potentially dispositive of — the action. If the test is negative, the case will be subject to dismissal. If, on the other hand, it is positive, defendant will have an opportunity to prove his affirmative defenses that he did not have the virus in 2002, or was unaware that he had it or was asymptomatic at the time of alleged transmittal to plaintiff.

All concur except Andrias and McGuire, JJ., who concur in a separate memorandum by McGuire, J. as follows:

McGUIRE, J. (concurring)

We write separately to emphasize that we express no view on the issue of whether, if the test is positive, it is adm
issible at trial (see People v Scarola, 71 NY2d 769, 777 [1988] ["(e)ven where technically relevant evidence is admissible, it may still be excluded by the trial court in the [*2]exercise of its discretion if its probative value is substantially outweighed by the danger that it will unfairly prejudice the other side or mislead the jury"]).

The herpes case.

False Start–CPLR § 304

CPLR § 304. Method of commencing action or special proceeding

Goldenberg v Westchester County Health Care Corp., 2009 NY Slip Op 09616 (App. Div., 2nd, 2009) [Edit: 4/7/11. Affirmed by Goldenberg v Westchester County Health Care Corp., 2011 NY Slip Op 02075 (Ct. App. 2011)

The plaintiff served the summons and complaint upon the defendants in this malpractice action without ever filing them or obtaining an index number and paying the filing fee for the action. Accordingly, the action was never validly commenced (see CPLR 304). Following the expiration of the applicable statute of limitations, the defendants moved to dismiss the complaint as time-barred, and the plaintiff cross-moved, inter alia, for leave to file the summons and complaint nunc pro tunc. The Supreme Court correctly granted the defendants' motion and denied the plaintiffs' cross motion.

Contrary to the plaintiff's contention, the defendants raised timely objections to the plaintiff's failure to file and to the untimeliness of the action, since they asserted affirmative defenses regarding lack of jurisdiction and the expiration of the statute of limitations in their amended verified answer (see CPLR 3211[e]; see generally Harris v Niagara Falls Bd. of Educ., 6 NY3d 155, 159; cf. Sirkis v Cohen, 23 AD3d 369). Similarly, the defendants were not obligated to move to dismiss the action within 60 days following the service of their answer pursuant to CPLR 3211(e), since their objection was not based on improper service (see Sangiacomo v County of Albany, 302 AD2d 769, 772). Indeed, the plaintiff was free to move pursuant to CPLR 3211(b) to dismiss the jurisdictional defense if he desired a more prompt resolution of the merits of that defense. [*2]

Furthermore, the plaintiff cannot rely upon the remedial language of CPLR 2001 to cure his error, since that statute does not excuse a complete failure to file within the statute of limitations, as occurred here (see Matter of Miller v Waters, 51 AD3d 113, 117-118; Alexander, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR, C304:3, 2009 Pocket Part, at 162, 165). Likewise, the plaintiff cannot rely on his filing of a proposed complaint in a prior proceeding for leave to file a late notice of claim to act as the functional equivalent of a filing in this action (see generally Rybka v New York City Health & Hosps. Corp., 263 AD2d 403). The papers served in an action must conform in all material respects to the papers that are filed to commence it (see Matter of Gershel v Porr, 89 NY2d 327, 332; Page v Marusich, 30 AD3d 871, 873; Louden v Rockefeller Ctr. N., 249 AD2d 25, 26). Here, the complaint served in this action dramatically differed, substantively and materially, from the proposed complaint which the plaintiff filed in the prior proceeding. Accordingly, the Supreme Court properly granted the defendant's motion to dismiss the complaint. Moreover, the court properly denied the plaintiff's cross motion for leave to file the summons and complaint nunc pro tunc since, under the circumstances herein, the granting of that relief would impermissibly extend the statute of limitations (see CPLR 201; Bradley v St. Clare's Hosp., 232 AD2d 814, 815).

The bold is mine.

CPLR R. 3211(a)(7) and Punitive Damages

CPLR R. 3211(a)(7)  pleading fails to state a cause of action

Fragrancenet.com, Inc. v Fragrancex.com, Inc., 2009 NY Slip Op 09613 (App. Div., 2nd, 2009)

[T]he Supreme Court properly, inter alia, granted that branch of the defendants' motion pursuant to CPLR 3211(a)(7) which was to dismiss the plaintiff's claim for punitive damages.

"Punitive damages are permitted when the defendant's wrongdoing is not simply intentional but evince[s] a high degree of moral turpitude and demonstrate[s] such wanton dishonesty as to imply a criminal indifference to civil obligations'" (Ross v Louise Wise Serv., Inc., 8 NY3d 478, 489, quoting Walker v Sheldon, 10 NY2d 401, 405; see Prozeralik v Capital Cities Communications, 82 NY2d 466, 479; Sharapata v Town of Islip, 56 NY2d 332, 335). Here, the allegations in the complaint do not support the imposition of punitive damages.

Oral Decision, Not Reduced to Writing, Does Not Get Res Judicata Effect (last case)

Res Judicata
Collateral Estoppel
Law of the Case

Specialized Indus. Servs. Corp. v Carter, 2009 NY Slip Op 09018 (App. Div., 2nd, 2009)

In the underlying action, judgment was entered against the plaintiff upon its default in answering or appearing. The plaintiff obtained an order vacating the default judgment, which was ultimately reversed by this Court (see Dave Sandel, Inc. v Specialized Indus. Servs. Corp., 35 AD3d 790). Generally, a party who has lost a case as a result of alleged fraud or false testimony cannot collaterally attack the judgment in a separate action for damages against the party who adduced the false evidence, and the plaintiff's remedy lies exclusively in moving to vacate the default judgment (see North Shore Envtl. Solutions, Inc. v Glass, 17 AD3d 427; Retina Assoc. of Long Is. v Rosberger, 299 AD2d 533; New York City Tr. Auth. v Morris J. Eisen, P.C., 276 AD2d 78, 87; Yalkowsky v Century Apts. Assoc., 215 AD2d 214, 215). Under an exception to that rule, a separate lawsuit may be brought where the [*2]alleged perjury or fraud in the underlying action was "merely a means to the accomplishment of a larger fraudulent scheme" (Newin Corp. v Hartford Acc. & Indem. Co., 37 NY2d 211, 217) which was "greater in scope than the issues determined in the prior proceeding" (Retina Assoc. of Long Is. v Rosberger, 299 AD2d at 533 [internal quotation marks omitted]). The plaintiff here, in its amended verified complaint and supplemental affidavits, has sufficiently alleged a larger fraudulent scheme to fit within the exception to the rule against collateral attack (see New York City Tr. Auth. v Morris J. Eisen, P.C., 276 AD2d at 80, 87-88; cf. North Shore Envtl. Solutions, Inc. v Glass, 17 AD3d at 428).

Contrary to the defendant's contention, the first cause of action in the amended verified complaint is not barred by the doctrine of res judicata since the Judiciary Law cause of action did not arise out of the factual transaction which was the subject matter of that action (see Matter of Hodes v Axelrod, 70 NY2d 364, 372; Mahler v Campagna, 60 AD3d at 1011; Lazides v P & G Enters., 58 AD3d 607, 609; Triboro Fastener & Chem. Prods. Corp. v Lee, 236 AD2d 603, 603-604). Nor is the first cause of action precluded by principles of collateral estoppel in that the claim was not litigated in the underlying action and much of the evidence upon which the plaintiff relies was discovered subsequent to entry of the default judgment in the underlying action (see Kaufman v Eli Lilly & Co., 65 NY2d 449, 456-457; Izko Sportswear Co., Inc. v Flaum, 25 AD3d at 537; Chambers v City of New York, 309 AD2d 81, 85).

Man Choi Chiu v Chiu, 2009 NY Slip Op 08792, (App. Div., 2nd, 2009)

On a prior appeal in this action, this Court affirmed, inter alia, the Supreme Court's determination to award an attorney's fee to the plaintiffs (see Man Choi Chiu v Chiu, 38 AD3d 619). Thus, the doctrine of the law of the case (see People v Evans, 94 NY2d 499, 502) precludes consideration of whether the plaintiffs were properly awarded an attorney's fee (see Matter of Pantelidis v New York City Bd. of Stds. & Appeals, 43 AD3d 314, affd 10 NY3d 846; Toyos v City of New York, 54 AD3d 628; Combier v Anderson, 34 AD3d 333).

As a general rule, we do not consider any issue raised on a subsequent appeal that was raised, or could have been raised, in an earlier appeal that was dismissed for lack of prosecution, although we have the inherent jurisdiction to do so (see Rubeo v National Grange Mut. Ins. Co., 93 NY2d 750; Bray v Cox, 38 NY2d 350). Here, the defendants appealed from an order of the Supreme Court dated September 7, 2007, which, inter alia, denied their motion to cancel the hearing on the issue of the amount of attorney's fees to be awarded. That appeal was dismissed by decision and order on motion of this Court dated June 18, 2008, for failure to prosecute. We decline to exercise our discretion to determine the merits of that appeal on the instant appeal from the judgment, as amended (see Bray v Cox, 38 NY2d [*2]350; Blue Chip Mtge. Corp. v Strumpf, 50 AD3d 936, 937).

Jespersen v Li Sheng Liang, 2009 NY Slip Op 09000 (App. Div., 2nd, 2009)

As a general rule, a dismissal "with prejudice" signifies that the court intended dismiss the action "on the merits" (Yonkers Contr. v Port Auth. Trans Hudson Corp., 93 NY2d 375, 380). However, an oral decision which has never been reduced to a written order or judgment is not entitled to res judicata effect and thus is ineffective as a bar to subsequent proceedings (see Towne v Asadourian, 277 AD2d 800; Begelman v Begelman, 170 AD2d 562; see also 73 NY Jur 2d, Judgments §§ 354, 436, 437). Moreover, it is clear from the hearing transcript, as well as from the order appealed from, that the Supreme Court did not intend its dismissal of the first action to be on the merits. In addition, while a "duplicate" action is subject to dismissal pursuant to CPLR 3211(a)(4), there was no procedural bar to the plaintiff commencing the second action before the first action had been dismissed.

The bold is mine.

The Long Arm of New York

CPLR § 301 Jurisdiction over persons, property or status

CPLR § 302 Personal jurisdiction by acts of non-domiciliaries
(a) Acts which are the basis of jurisdiction
(1) transacts any business within the state or contracts anywhere to supply goods or services in the state

Executive Life Ltd. v Silverman, 2009 NY Slip Op 08994 (App. Div., 2nd, 2009)

The plaintiff, Executive Life Ltd., d/b/a Executive Alliance (hereinafter Executive), a New York-based executive search agency, allegedly contracted with the defendant, a Colorado-based collections attorney, to refer candidates for open paralegal and attorney positions in the defendant's law firm. The agreement between the parties provided that Executive would be entitled to a commission if it referred a person whom the defendant hired, and the person remained employed by the defendant for 60 consecutive days. The defendant was never physically present in New York, and the agreement between the parties was negotiated by telephone and email. Executive faxed the agreement, which provided that it would be governed by New York law, to the defendant, who executed it and returned it by fax. According to the complaint, Executive referred a candidate whom the defendant hired for the paralegal position and that person remained employed by the defendant for at least 60 consecutive days. Nevertheless, the defendant allegedly failed to pay the commission due. Executive commenced this action against the defendant in the Supreme Court, Suffolk County. The Supreme Court granted the defendant's motion to dismiss the complaint pursuant to CPLR 3211(a)(8) for lack of personal jurisdiction (see CPLR 302[a][1]). We affirm.

Under New York's long-arm statute, "a court may exercise personal jurisdiction over any non-domiciliary . . . who . . . transacts any business within the state . . ." (CPLR 302[a]), regardless of whether that nondomiciliary has actually set foot in New York State (see Fischbarg v Doucet, 9 NY3d 375, 380; Kreutter v McFadden Oil Corp., 71 NY2d 460, 467; Parke-Bernet Galleries v Franklyn, 26 NY2d 13, 17; Bogal v Finger, 59 AD3d 653). Whether a defendant has transacted business within New York is determined under the totality of the circumstances, and rests on whether the defendant, by some act or acts, has "purposefully avail[ed] itself of the privilege of conducting activities within [New York]" (Ehrenfeld v Bin Mahfouz, 9 NY3d 501, 508). "Purposeful activities are those with which a defendant, through volitional acts, avails itself of the [*2]privileges of conducting activities within the forum State, thus invoking the benefits and protections of its laws'" (Fischbarg v Doucet, 9 NY3d at 380, quoting McKee Elec. Co. v Rauland-Borg Corp., 20 NY2d 377, 382). The long-arm statute is a "single-act" statute (Deutsche Bank Sec., Inc. v Montana Bd. of Invs., 7 NY3d 65, 71, cert denied sub nom. Montana Bd. of Invs. v Deutsch Bank Sec., Inc., 549 US 1095; see George Reiner & Co. v Schwartz, 41 NY2d 648, 651-652) and, thus, evidence of even one such transaction is sufficient to confer jurisdiction over a nondomiciliary defendant, provided that the defendant's activities were purposeful and "there is a substantial relationship between the transaction and the claim asserted" (Kreutter v McFadden Oil Corp., 71 NY2d at 467; see Stardust Dance Prods., Ltd. v Cruise Groups, Intl., Inc., 63 AD3d 1262, 1264). "[I]t is the quality of the defendants' New York contacts that is the primary consideration" (Fischbarg v Doucet, 9 NY3d at 380).

The Supreme Court properly dismissed the complaint. Although negotiations may have taken place by telephone, fax, and email, and the defendant allegedly faxed the agreement to Executive's office in New York, the defendant's actions did not amount to a purposeful invocation of the privileges of conducting business in New York. We note that the defendant did not specify that any applicant was to come from New York, and, indeed, the person he hired was already based in Colorado (see Kimco Exch. Place Corp. v Thomas Benz, Inc., 34 AD3d 433, 434; Professional Personnel Mgt. Corp. v Southwest Med. Assoc., 216 AD2d 958; Milliken v Holst, 205 AD2d 508, 509-510; cf. Corporate Campaign v Local 7837, United Paperworkers Intl. Union, 265 AD2d 274, 275-276). The choice of law provision in the agreement, while relevant, is insufficient by itself to confer personal jurisdiction over the defendant in New York under CPLR 302(a)(1) (see Goulds Pumps v Mazander Engineered Equip. Co., 217 AD2d 960, 961; Peter Lisec Glastechnische Industrie GmbH v Lenhardt Maschinenbau GmbH, 173 AD2d 70, 72).

CPLR R. 3211(a)(1) Affidavits Don’t Count

CPLR R. 3211 is a curious rule.  I wrote three paragraphs, but after I read them, I realized that I was only complicating things.  Besides being a quirky rule, it is an extremely complicated rule.

Now consider Herrnsdorf v Bernard Janowitz Constr. Corp., 2009 NY Slip Op 07984 (App. Div., 2nd, 2009).

The Supreme Court properly denied that branch of Utica First’s motion which was pursuant to CPLR 3211(a)(1) to dismiss the third-party complaint. “[I]n order for a complaint to be dismissed pursuant to CPLR 3211(a)(1), the evidence submitted must resolve [ ] all factual issues as a matter of law, and conclusively dispose of the plaintiff’s claim'” (Del Pozo v Impressive Homes, Inc., 29 AD3d 621, 622, quoting Berger v Temple Beth-El of Great Neck, 303 AD2d 346, 347). Utica First failed to conclusively demonstrate that Janowitz was not an additional insured to the [*3]insurance policy. Additionally, Utica First could not rely on affidavits in support of its motion to dismiss pursuant to CPLR 3211(a)(1) because they do not constitute documentary evidence (see Berger v Temple Beth-El of Great Neck, 303 AD2d at 347).

..

CPLR R. 3211 Roundup: CPLR R. 3211(a)(1,3,5,7); CPLR R. 3211(e) and CPLR § 205 with CPLR § 321

In Pari Delicto 

CPLR R. 3211

(a)(1) defense is founded upon documentary evidence

(a)(3) the party asserting the cause of action has not legal capacity to sue

(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

CPLR § 205 Termination of action

(a) New action by plaintiff.

CPLR § 321 Attorneys
(a) Appearance in person or by attorney

Symbol Tech., Inc. v Deloitte & Touche, LLP, 2009 NY Slip Op 07826 (App. Div., 2nd, 2009)

To obtain a dismissal pursuant to CPLR 3211(a)(1), the defendant
must establish that the documentary evidence which forms the basis of
the defense be such that it resolves all factual issues as a matter of
law and conclusively disposes of the plaintiff's claim (see Leon v Martinez, 84 NY2d 83; see also Sheridan v Town of Orangetown, 21 AD3d 365).

CPLR 3211(a)(7) permits the court to dismiss a complaint that
fails to state a cause of action. The complaint must be liberally
construed and the plaintiff given the benefit of every favorable
inference (see Leon v Martinez, 84 NY2d 83; Aberbach v Biomedical Tissue Serv., Ltd., 48 AD3d 716; Mitchell v TAM Equities, Inc., 27
AD3d 703). The court must also accept as true all of the facts alleged
in the complaint and any factual submissions made in opposition to the
motion (see 511 West 232nd Owners Corp. v Jennifer Realty Co., 98 NY2d 144; Sokoloff v Harriman Estates Dev. Corp., 96 NY2d 409; Alsol Enters., Ltd. v Premier Lincoln-Mercury, Inc., 11
AD3d 493). If the court can determine that the plaintiff is entitled to
relief on any view of the facts stated, its inquiry is complete and the
complaint must be declared legally sufficient (see Campaign for Fiscal Equity v State of New York, 86 NY2d 307, 318; see also Sokoloff v Harriman Estates Dev. Corp., 96 NY2d 409; Stucklen v Kabro Assoc., 18
AD3d 461). While factual allegations contained in the complaint are
deemed true, bare legal conclusions and facts flatly contradicted on
the record are not entitled to a presumption of truth (see Lutz v Caracappa, 35 AD3d 673, 674l; Matter of Loukoumi, Inc., 285 AD2d 595).

Finally, CPLR 3211(a)(5) permits the defendant to seek and
obtain a dismissal of one or more causes of action asserted against it
on the ground that the cause of action is barred by the statute of
limitations.

***

The doctrine of in pari delicto is an equitable defense based on
agency principles which bars a plaintiff from recovering where the
plaintiff is itself at fault (see Ross v Bolton, 904 F2d 819, 824-825; Matter of Food Management Group v Rattet, 380 BR 677, 693-694; Albright v Shapiro, 214 AD2d 496; Bullmore v Ernst & Young Cayman Is., 20
Misc 3d 667, 670). Moreover, the misconduct of managers acting within
the scope of their employment will normally be imputed to the
corporation (see Wight v Bank America Corp., 219 F3d 79, 86; Center v Hampton Affiliates, 66 NY2d 782, 784; Christopher S. v Douglaston Club, 275
AD2d 768, 769). The underlying concept is that the actions of an agent
can be imputed to a corporation when its agent acts within the scope of
his or her employment (see Center v Hampton Affiliates, 66 NY2d at 784).

Under New York law, the doctrine of in pari delicto is subject to the "adverse interest" exception [FN2] (see Center v Hampton Affiliates, 66
NY2d 782). In this case, Symbol's amended complaint is sufficient to
trigger the adverse interest exception to the in pari delicto doctrine.

The "adverse interest" exception is a method by which a
plaintiff corporation can demonstrate that its agent's actions should
not be imputed to it. The corporation must show that the agent's fraud
was entirely self-interested and that the corporation did not benefit
in any way (see 546-552 West 146th St., LLC v Arfa, 54 AD3d 543; Capital Wireless Corp. v Deloitte & Touche, 216
AD2d 663, 666). If the agent was acting solely for his or her own
benefit and to the detriment of the corporation, it cannot be said that
the agent was acting in the scope of his or her employment (see Center v Hampton Affilliates, 66 [*4]NY2d at 784).

This exception has been defined very narrowly in New York (see 546-552 West 146th St., LLC v Arfa, 54
AD3d 543). Under this narrow exception, management misconduct will not
be imputed to the corporation if the officer acted entirely in his own
interest and adversely to the interest of the corporation (see Center v Hampton Affiliates, 66
NY2d at 785). "The theory is that where an agent, though ostensibly
acting in the business of the principal, is really committing a fraud
for his own benefit, he is acting outside of the scope of his agency,
and it would therefore be most unjust to charge the principal with
knowledge of it" (Wight v Bank America Corp., 219 F3d 79, 87).
The adverse interest exception applies only when the agent has "totally
abandoned" the principal's interests and is acting entirely for his own
or another's purposes (Center v Hampton Affiliates, 66 NY2d at 785).

Credigy Receivables, Inc. v Agiwal, 2009 NY Slip Op 07790 (App. Div., 2nd, 2009)

The appeal from the intermediate order dated February 7, 2008, must
be dismissed because the right of direct appeal therefrom terminated
with the entry of judgment in the action (see Matter of Aho, 39 NY2d 241, 248). The issues raised on appeal from that order are brought up for [*2]review and have been considered on appeal from the judgment (see CPLR 5501[a][1]).

The defendant's motion to dismiss the complaint based on lack of
personal jurisdiction was properly denied on the ground that the
objection of improper service of the summons and complaint was waived
by the defendant's failure to move to dismiss on that ground within 60
days of service of the answer (see CPLR 3211[e]).

In its motion for summary judgment, the plaintiff established
its entitlement to judgment as a matter of law against the defendant in
the principal sum of $55,682.32, and the defendant failed to raise a
triable issue of fact in response thereto (see Alvarez v Prospect Hosp., 68 NY2d 320).

Moran Enters., Inc. v Hurst, 2009 NY Slip Op 07807 (App. Div., 2nd, 2009)

The Supreme Court erred in dismissing the complaint pursuant to CPLR
3211(a)(5). The principle of res judicata bars relitigation of claims
where a judgment on the merits exists from a prior action between the
same parties involving the same subject matter (see Matter of Hunter,
4 NY3d 260, 269). Dismissal of the prior action insofar as asserted by
MEI was upheld by this Court on the ground that MEI failed to appear by
an attorney as required by CPLR 321(a) (see Moran v Hurst, 32
AD3d 909). Such was not a

Continue reading “CPLR R. 3211 Roundup: CPLR R. 3211(a)(1,3,5,7); CPLR R. 3211(e) and CPLR § 205 with CPLR § 321”

Standing Waived; CPLR R. 3211(e) and other issues (CPLR § 3020(d)(3) & CPLR § 105(u))

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

CPLR § 3020 Verification

CPLR § 105 Definitions

(u) Verified pleading. A “verified pleading” may be utilized as an affidavit whenever the latter is required.

Deutsche Bank Natl. Trust Co. v Young, 2009 NY Slip Op 07578 (App. Div., 2nd, 2009)

Contrary to the appellants' contention, the Supreme Court did not err
in determining that they waived the issue of standing by failing to
timely appear or answer (see CPLR 3211[a][3], [e]; HSBC Bank, USA v Dammond, 59 AD3d 679; Wells Fargo Bank Minn., N.A. v Mastropaolo, 42 AD3d 239).

Simple enough.

Urban Justice Ctr. v Silver, 2009 NY Slip Op 07506 (App. DIv., 1st, 2009)

Plaintiff Urban Justice Center (UJC) lacks standing to bring this
action. While it alleges vaguely that the prohibitions on communication
contained in the Assembly and Senate rules as to what constitutes
"official mail" for purposes of Legislative Law § 16 interfere with its
ability and that of its clients to receive the communications necessary
to enable them to measure the responsiveness and efficacy of their
elected representatives while determining the best use of their limited
advocacy resources, this is not an infringement unique and distinct to
UJC and its clients. All citizens have the right to open access to
their elected representatives, and are deprived of that right when
communications from their legislators are censored. UJC has failed to
allege a personally concrete and demonstrable injury distinct from that
suffered by the public at large (see Matter of Transactive Corp. v New York State Dept. of Social Servs.,
92 NY2d 579, 587 [1998]). For the same reason, UJC also lacks
third-party standing to raise a First Amendment claim on behalf of its
clients (see Matter of MFY Legal Servs. v Dudley, 67 NY2d 706,
708-709 [1986]). Because it has not alleged that the rules and
practices at issue have caused it "injury by way of an added burden on
[its] resources," or that its need to litigate this action on behalf of
its clients is such a "central concern of our society" as to justify
giving it standing without otherwise meeting the requirement of showing
injury-in-fact, there is no basis for conferring organizational
standing upon UJC under Grant v Cuomo (130 AD2d 154, 159 [1987], affd 73 NY2d 820 [1988]).

A little more complicated.

Wells Fargo Bank, N.A. v Marchione, 2009 NY Slip Op 07624 (App. Div., 2nd, 2009)

Wells Fargo also contends that the assignment is valid, as it is
retroactive to October 28, 2007, a date prior to the commencement of
the action. Wells Fargo again relies on Hoovis, where the retroactive assignment was effective on May 1, 1997, prior to the commencement of the action on June 19, 1997 (see Bankers Trust Co. v Hoovis, 263 AD2d at 938). In Hoovis, however,
the defendant was unable to contradict the plaintiff's documentation
demonstrating that delivery of the note and mortgage occurred prior to
the initiation of the action. Here, it is clear that the date of the
execution of the assignment was after the commencement of the action.
If an assignment is in writing, "the execution date is generally
controlling and a written assignment claiming an earlier effective date
is deficient unless it is accompanied by proof that the physical
delivery of the note and mortgage was, in fact, previously effectuated"
(LaSalle Bank Natl. Assn., 59 AD3d at 912). While recognizing
that in some circumstances parties to an agreement may bind themselves
retroactively, "the fiction of retroactivity . . . should not be
applied to affect adversely the rights of third persons" (Debreceni v Outlet Co., 784 F2d 13, 20; see also 2
Lord, Williston on Contracts § 6:61, at 893 [4th ed]). Thus, a
retroactive assignment cannot be used to confer standing upon the
assignee in a foreclosure action commenced prior to the execution of
the assignment (see LaSalle Bank Natl. Assn., 59 AD3d 912). We
disagree with the contention of Wells Fargo that public policy favors
permitting less than strict compliance with the requirement that, in
order to commence a foreclosure action, a plaintiff must have a legal
or equitable interest in the subject mortgage.

Wells Fargo also argues that if the action were to be
dismissed, the result would be a waste of judicial resources, as it
would simply commence another action as soon as the original action was
dismissed. Wells Fargo might have reached this conclusion earlier in
its calculus to commence the lawsuit prior to the execution of the
assignment.

Significantly, Wells Fargo's attorney submitted a verification
pursuant to CPLR 3020(d)(3), which allows an attorney to verify the
complaint if the party is not in the county where the attorney
maintains [*4]an office. "A verification
is a statement under oath that the pleading is true to the knowledge of
the deponent, except as to matters alleged on information and belief,
and as to those matters, he believes it to be true" (CPLR 3020[a]).
"Since the verification makes the pleading, or those parts of the
pleading that are verified, sworn data, a verified pleading is the
equivalent of an affidavit, CPLR 105, and may be used for the same
purposes" (Siegel, Practice Commentaries, McKinney's Cons Laws of NY,
Book 7B, CPLR C3020:2). When an attorney verifies, he or she affirms
under the penalties of perjury (see Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3020:9).

In the verification, Wells Fargo's attorney affirmed the
complaint to be true to the best of his knowledge, and his belief as to
matters stated to be alleged on information and belief was based upon
"correspondence, memoranda and statements of account in affirmant's
possession." The complaint included a paragraph that stated Wells Fargo
was "now the sole, true and lawful owner of record of the bond(s),
note(s) and mortgage(s) securing the Mortgaged Premises." This averment
was not based on information and belief and could not have been true on
the date of the verification, November 29, 2007, since the actual
execution of the assignment did not take place until December 4, 2007.
Thus, the complaint contained a misstatement of a material fact which
is not excused simply because the attorney was the one who verified the
complaint.

Note the Court's comment on the verification.  Rough.

Maldonado v Altemburger, 2009 NY Slip Op 07507 (App. Div. 1st, 2009)

This is the second action brought by plaintiff to recover damages
for injuries he allegedly sustained in a car accident. The first action
was dismissed as a nullity, because the person who was named as the
sole defendant had died before the action was commenced (see Maldonado v Law Off. of Mary A. Bjork, 64 AD3d 425
[2009]). This action must be dismissed because the named defendant is
not the personal representative of the decedent's estate (see id.; Marte v Graber, 58 AD3d 1, 3 [2008]).

It does not avail plaintiff that defendant did not cooperate
with him in his efforts to obtain the necessary documentation for a
SCPA 1002(1) petition for the appointment of an administrator.
Plaintiff apparently failed to timely seek a court order to obtain the
documentation.

Not quite a standing issue.  More of a there-isn't-anyone-to-sue issue.  Not even that.  More of a who-is-in-charge-of-this-thing issue.