CPLR R. 3211 – Page 8

CPLR R. 3211(a)(7) and Exhibits

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

Hashmi v Messiha, 2009 NY Slip Op 06665 (App. Div., 2nd, 2009)

"[A] motion to dismiss made pursuant to CPLR 3211(a)(7) will fail if,
taking all facts alleged as true and according them every possible
inference favorable to the plaintiff, the complaint states in some
recognizable form any cause of action known to our law" (Shaya B. Pac., LLC v Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, 38 AD3d 34, 38; see AG Capital Funding Partners, L.P. v State Street Bank and Trust Co., 5 NY3d 582, 591; Leon v Martinez,
84 NY2d 83, 87-88). However, when, as here, the moving party offers
evidentiary material, "the court is required to determine whether the
proponent of the pleading has a cause of action, not [just] whether
[they have] stated one" (Hartman v Morganstern, 28 AD3d 423, 424).

I don't think I'll ever quite understand the part in bold.

SOL Buden of proof for money owed pursuant to a contract

CPLR R. 3211(a)(5) Motion to dismiss for SOL (or other things, but SOL in this case)

Kuo v Wall St. Mtge. Bankers, Ltd., 2009 NY Slip Op 06511 (App. Div., 2nd, 2009)

The Supreme Court also correctly denied that branch of the defendant's
motion which was to dismiss the complaint as barred by the statute of
limitations. "To dismiss a cause of action pursuant to CPLR 3211(a)(5)
on the ground that it is barred by the Statute of Limitations, a
defendant bears the initial burden of establishing prima facie that the
time in which to sue has expired . . . In order to make a prima facie
showing, the defendant must establish, inter alia, when the plaintiff's
cause of action accrued. Where, as here, the claim is for the payment
of a sum of money allegedly owed pursuant to a contract, the cause of
action accrues when the plaintiff possesses a legal right to demand
payment'" (Swift v New York Med. Coll., 25 AD3d 686, 687, quoting Matter of Prote Contr. Co. v Board of Educ. of City of N.Y., 198 AD2d 418, 420 [citations [*2]omitted]; see Cimino v Dembeck, 61 AD3d 802; Matter of Schwartz, 44 AD3d 779).
The defendant offered no evidence that would support a determination
that the plaintiff had a legal right to demand payment of her
compensation, in connection with the subject loan transaction, prior to
the defendant's receipt of the commission fees from the borrower.

The bold is mine.

Accord and Satisfaction

CPLR R. 3211(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

Profex, Inc. v Town of Fishkill, 2009 NY Slip Op 06320 (App. Div., 2nd, 2009)

"[T]he rule of accord and satisfaction has generally been accepted as a
legitimate and expeditious means of settling contract disputes" (Horn Waterproofing Corp. v Bushwick Iron & Steel Co.,
66 NY2d 321, 325). The party asserting the affirmative defense of
accord and satisfaction must establish that there was a disputed or
unliquidated claim between the parties which they mutually resolved
through a new contract discharging all or part of their obligations
under the original contract (see Merrill Lynch Realty/Carll Burr, Inc. v Skinner, 63 NY2d 590, 596; Pothos v Arverne Houses, 269 AD2d 377, 378; Trans World Grocers v Sultana Crackers,
257 AD2d 616, 617). The defendants established their respective
entitlement to judgment as a matter of law on the basis of an accord
and satisfaction (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851). In opposition, the plaintiff failed to raise a triable issue of fact (see Zuckerman v City of New York, 49 NY2d 557).

The bold is mine.

CPLR R. 3211(a)(5) Converted to CPLR R. 3212

CPLR R. 3212 Motion for summary judgment

Hopper v McCollum, 2009 NY Slip Op 06315 (App. Div., 2nd, 2009)

[T]he defendant interposed a verified answer. In June 2008 the
defendant moved to dismiss the complaint pursuant to CPLR 3211(a)(5) on
the ground that the plaintiffs had received payment through their
homeowners' insurance policy and were not entitled to any additional
recovery from her. The Supreme Court, in effect, converted the motion
to dismiss into one for summary judgment dismissing the complaint and
granted the motion. We modify.

The Supreme Court properly, in effect, converted the motion to
dismiss to one for summary judgment since it was made after issue had
been joined (see Fischer v RWSP Realty, LLC, 53 AD3d 594, 595; Schultz v Estate of Sloan, 20 AD3d 520; Tufail v Hionas, 156
AD2d 670, 671), and the parties clearly charted a summary judgment
course by laying bare their proof and submitting documentary evidence
and evidentiary affidavits (see Myers v BMR Bldg. Inspections, Inc., 29 AD3d 546; Jamison v Jamison, 18 AD3d 710, 711). However, upon such conversion, the Supreme Court [*2]erred
in granting the defendant's converted motion for summary judgment
dismissing the complaint. Contrary to the defendant's contention, the
plaintiffs are not precluded from maintaining this action against the
defendant simply because they received payment from their insurance
carrier (see generally Fisher v Qualico Contr. Corp., 98 NY2d 534, 538; Spectra Audio Research, Inc. v Chon, 62 AD3d 561; Corsa v Pacific Indem. Co., 52 AD3d 450, 451; Winkelmann v Hockins, 204
AD2d 623, 623-624). If the trier of facts in this matter finds the
defendant liable and awards damages to the plaintiffs, then the
plaintiffs' receipt of the insurance payment may be relevant as a
possible setoff against the damages award (see CPLR 4545[c]; Fisher v Qualico Contr. Corp., 98 NY2d at 539-540).

While the Court notes that because issue was joined–among other things–conversion was appropriate, that is not always the case. Consider Roche v Claverack Coop. Ins. Co., 2009 NY Slip Op 01390 (App. Div., 3d, 2009). There the Third Department allowed for a pre-answer summary judgment motion because the parties charted their course and it "treated defendants' summary
judgment motion as if issue had indeed been joined." (I took out the internal quotes).

Lately I've seen a lot of 3211 motions under subdivisions that are inapplicable. More often than not, they are 3212 motions being masked behind 3211.

Supplemental summons not filed–CPLR R. 305(a)–>Dismissed–CPLR R. 3211(a)(2)

CPLR R. 305 Summons; supplemental summons, amendment
(a) Summons; supplemental summons

CPLR R. 3211(a)(2) the court has not jurisdiction of the subject matter of the cause of action

CPLR § 203 Method of computing periods of limitation generally
(c) Claim in complaint where action commenced by filing.
In an action which is commenced by filing, a claim asserted in the
complaint is interposed against the defendant or a co-defendant united
in interest with such defendant when the action is commenced.

Benn v Losquadro Ice Co., Inc., 2009 NY Slip Op 06307 (App. Div., 2nd, 2009)

The plaintiff was injured on June 20, 2003, when she slipped and
fell while working at a restaurant known as Orin's Seafood Hideaway,
located at 1683 Utica Avenue in Brooklyn. She commenced this negligence
action against, among others, the defendant Losquadro Ice Company, Inc.
(hereinafter Losquadro), the owner of the subject premises. Losquadro
commenced a third-party action against the defendant third-party
defendant Foodsaver New York, Inc., a/k/a Orin's Seafood Hideaway
(hereinafter Foodsaver). The plaintiff filed an amended complaint on
April 11, 2006, adding Foodsaver as a defendant in the action. In its
answer to the third-party complaint, Foodsaver disclosed that it had
subleased a portion of the subject premises to the appellant Utica
Restaurant Corp. (hereinafter Utica). On June 9, 2006, Losquadro served
the parties and Utica with an amended third-party complaint, which
joined Utica as a third-party defendant. On September 5, 2006, the
plaintiff filed a second amended complaint which joined Utica as a
direct defendant.

It is the filing of a supplemental summons and complaint which
commences an action against a newly-joined defendant or a third-party
defendant (see CPLR 305[a]; Perez v Paramount Communications, 92 NY2d 749, 756; Tricoche v Warner Amex Satellite Entertainment Co., 48 [*2]AD3d 671, 673; Matter of Williams v County of Genesee,
306 AD2d 865, 867). It is undisputed that Losquadro's amended
third-party complaint was never filed with the court. Therefore, that
branch of Utica's motion which was pursuant to CPLR 3211(a)(2) to
dismiss the amended third-party complaint insofar as asserted against
it should have been granted.

Contrary to Utica's contention, however, it was not entitled to
dismissal pursuant to CPLR 3211(a)(5) of the plaintiff's second amended
complaint insofar as asserted against it. A claim asserted against a
defendant in an amended filing may relate back to claims previously
asserted against a codefendant for statute of limitations purposes
where the two defendants are "united in interest" (CPLR 203[c]; see Buran v Coupal, 87 NY2d 173; Brock v Bua,
83 AD2d 61). The deposition testimony of Orin Tucker, the owner of both
Foodsaver and Utica, demonstrated that the relationship between the two
companies was such that Utica could be charged with notice of the
institution of the action under this doctrine and would not be
prejudiced in maintaining its defense on the merits (see Buran v Coupal, 87 NY2d at 178; Brock v Bua, 83 AD2d at 69).

The bold is mine.

Standing; CPLR R. 3211

CPLR R. 3211 Motion to dismiss

RLI Ins. Co. v Steely, 2009 NY Slip Op 06130 (App. Div., 2nd, 2009)

The defendant William Steely sought insurance coverage for a boating
accident pursuant to, inter alia, a homeowner's policy issued to him by
the defendant New York Central Mutual Fire Insurance Company
(hereinafter NY Mutual), and an umbrella policy issued to him by the
plaintiff, RLI Insurance Company. NY Mutual allegedly denied coverage
on the ground that, inasmuch as Steely owned the boat on the date of
the accident, there was no coverage because of a specific exclusion
under its policy. The plaintiff commenced this action for a judgment
declaring, inter alia, that NY Mutual was obligated to provide coverage
to Steely because he did not, in fact, [*2]own
the boat on the date of the accident, and that any such coverage
provided by the plaintiff's policy was excess to any coverage provided
by NY Mutual's policy.

NY Mutual moved, inter alia, pursuant to CPLR 3211 to dismiss
the complaint for lack of standing insofar as asserted against it. NY
Mutual argued, among other things, that the plaintiff lacked standing
to challenge its disclaimer of coverage to its insured. The Supreme
Court, inter alia, granted that branch of NY Mutual's motion which was
to dismiss the complaint insofar as asserted against it. We reverse the
order insofar as appealed from.

We find that the plaintiff has standing to challenge NY
Mutual's disclaimer of coverage to its insured. "A plaintiff need not
be privy to an insurance contract to commence a declaratory judgment
action to determine the rights and obligations of the respective
parties, so long as the plaintiff stands to benefit from the policy" (Mortillaro v Public Serv. Mut. Ins. Co., 285 AD2d 586, 587). Here, the plaintiff clearly stands to benefit from NY Mutual's policy.

The bold is mine.

Republication Reaches New Audience, SOL Begins to Run from Republication

I don't know why I do the weird capitalization thing in my post titles. Eventually I'll stop or find some other, just as stupid, format for them.

CPLR R. 3211(a)(5) Motion to dismiss for SOL (or other things, but SOL in this case)

CPLR §
215 Actions to be commenced within one year: against sheriff, coroner
or constable; for escape of prisoner; for assault, battery, false
imprisonment, malicious prosecution, libel or slander; for violation of
right of privacy; for penalty given to informer; on arbitration award

Ross v Kohl's Dept. Stores, Inc., 2009 NY Slip Op 06131 (App. Div., 2nd, 2009)

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

The Supreme Court erred in granting the defendant's motion to dismiss the complaint [*2]pursuant
to CPLR 3211(a)(5) and CPLR 215(3) on the ground that the statute of
limitations had expired. The alleged libelous statement was published
by the defendant in 2000 when it forwarded a report regarding the
plaintiff to USIS, a reporting agency that provides background
information to employers, thereby communicating the information to a
third party (see Gregoire v Putnam's Sons, 298 NY 119). The
report generated by USIS in 2006 and provided to the plaintiff's
employer was a republication, as it was a separate and distinct
publication from the original that was intended to, and actually did,
reach a new audience (see Rinaldi v Viking Penguin, 52 NY2d 422,
433-435). Accordingly, the alleged libelous material was republished
and the statute of limitations began to run anew from the time of the
republication. This action was timely commenced within one year from
the republication and, therefore, the motion should have been denied.

The bold is mine.

CPLR § 6514 and Fun With Constructive Trusts

CPLR § 6514 Motion for cancellation of notice of pendency

(b) Discretionary cancellation
The court, upon motion of any person aggrieved and upon such notice as
it may require, may direct any county clerk to cancel a notice of
pendency, if the plaintiff has not commenced or prosecuted the action
in good faith.

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

Maiorino v Galindo, 2009 NY Slip Op 06123 (App. Div., 2nd, 2009)

Inasmuch as the motion was made pursuant to CPLR 3211(a)(7), the
court must accept all facts as alleged in the complaint to be true and
accord the plaintiff the benefit of every possible inference (see Leon v Martinez, 84 NY2d 83, 87; Breytman v Olinville Realty, LLC, 54 AD3d 703, 703-704; Smith v Meridian Tech., Inc., 52 AD3d 685,
686). In general, it may be appropriate to impose a constructive trust
in situations " [w]hen property has been acquired in such circumstances
that the holder of the legal title may not in good conscience retain
the beneficial interest'" (Sharp v Kosmalski, 40 NY2d 119, 121, quoting Beatty v Guggenheim Exploration Co.,
225 NY 380, 386). The necessary elements for the imposition of a
constructive trust are: (1) a confidential or fiduciary relationship;
(2) a promise; (3) a transfer in reliance on that promise; and (4)
unjust enrichment (see Sharp v Kosmalski, 40 NY2d at 121; Pereira v Glicker, 61 AD3d 948; Nastasi v Nastasi, 26 AD3d 32,
37). Here, the complaint does not adequately plead a cause of action to
impose a constructive trust on the Bethpage property. While there was a
confidential relationship between the plaintiff and Galindo as 50%
shareholders in Demo, and Galindo and Madia may have been unjustly
enriched by the alleged diversion of Demo's assets, there was no
promise to either the plaintiff or Demo with respect to the Bethpage
property and no transfer of that property in reliance on any promise.
Indeed, there is no allegation that either the plaintiff or Demo had
any preexisting interest or expectation of an interest in the Bethpage
property. The complaint contains the plaintiff's acknowledgment that
Madia borrowed the money using his own credit to pay for the purchase
of the property, and it is not alleged that any assets of Demo or
personal funds of the plaintiff were used in the purchase of the
property (see Gargano v V.C. & J. Constr. Corp., 148 AD2d 417, 418—419).

Inasmuch as the cause of action seeking to impose a constructive
trust on the Bethpage property was the only cause of action in the
complaint that would affect the title to, or the possession, use or
enjoyment of that property, that branch of the defendants' motion which
was to cancel the notice of pendency should have been granted (see CPLR 6514[b]; Shkolnik v Krutoy, 32 AD3d 536, 537; Distinctive Custom Homes Bldg. Corp. v Esteves, 12 AD3d 559).

The bold is mine.

CPLR R. 3211 ROUNDUP: CPLR R. 3211(a)(1)(7)(8); CPLR R. 3016(a)

CPLR R. 3211

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

(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

(8) the court has not jurisdiction of the person of the defendant

CPLR R. 3016 Particularity in specific actions

Freud v St. Agnes Cathedral School, 2009 NY Slip Op 05943 (App. Div., 2nd, 2009)

It is undisputed that, on August 27, 2007, the plaintiff's process
server visited the defendant's school and delivered the summons and
complaint in this action to Patricia Wren, who was employed by the
defendant. The defendant moved to dismiss the complaint on the ground
that service of process was invalid since Wren was only a secretary and
not authorized to receive service of process on behalf of the
defendant. At the hearing to determine the validity of service of
process upon the defendant, the process server testified that she
approached Wren, whom she believed to be a secretary, identified the
summons and complaint, and asked Wren if she was authorized to accept
service of the papers. According to the process server, Wren replied
that she was so authorized. Wren testified at the hearing that she was
employed by the defendant as a clerk, but denied that she ever told the
process server that she was authorized to accept service of process on
behalf of the defendant. After the hearing, the court denied the motion
to dismiss.

Ordinarily, the hearing court's assessment of a witness's credibility is entitled to substantial deference (see Ortiz v Jamwant, 305 AD2d 477; McGuirk v Mugs Pub, 250 AD2d 824, 825; Carlin v Crum & Forster Ins. Co., 170 AD2d 251). Under these circumstances, we perceive no reason to disturb its determination on appeal (see Fashion Page v Zurich Ins. Co., 50 NY2d 265).

Horbul v Mercury Ins. Group, 2009 NY Slip Op 05947 (App. Div., 2nd, 2009)

The plaintiff alleged in the complaint that the defendants committed
slander per se when they reported to the police that the plaintiff had
filed a fraudulent claim with them for no-fault medical benefits for
his son. However, the complaint failed to comply with CPLR 3016(a),
which requires that a complaint sounding in defamation "set forth the
particular words complained of'" (Simpson v Cook Pony Farm Real Estate, Inc., 12 AD3d 496, 497, quoting CPLR 3016[a]; see Fusco v Fusco, 36 AD3d 589). Compliance with CPLR 3016(a) is strictly enforced (see Abe's Rooms, Inc. v Space Hunters, Inc., 38 AD3d 690).
Accordingly, that branch of the defendants' motion which was pursuant
to CPLR 3211(a)(7) to dismiss the complaint for failure to state a
cause of action should have been granted.

Pinkava v Yurkiw, 2009 NY Slip Op 05953 (App. Div., 2nd, 2009)

The Supreme Court denied the defendants' motion, in effect, to
dismiss the first cause of action pursuant to CPLR 3211(a)(7), for
summary judgment dismissing the second through twelfth causes of action
on the ground that they were barred by the statute of frauds, and for
summary judgment on the counterclaims. We affirm.

The statue of frauds prohibits the conveyance of real property without a written contract (see
General Obligations Law § 5-703[1]). While the statute of frauds
empowers courts of equity to compel specific performance of agreements
in cases of part performance (see General Obligations Law § 5-703[4]), the claimed partial performance "must be unequivocally referable to the agreement" (Messner Vetere Berger McNamee Schmetterer Euro RSCG v Aegis Group, 93 NY2d 229, 235; Luft v Luft, 52 AD3d 479,
481). It is not sufficient that the oral agreement gives significance
to the plaintiff's actions. Rather, the actions alone must be "
unintelligible or at least extraordinary,' [and] explainable only with
reference to the oral agreement" (Anostario v Vicinanzo, 59 NY2d 662, 664, quoting Burns v McCormick, 233 NY 230, 232; see Adelman v Rackis,
212 AD2d 559, 561). Significantly, the doctrine of part performance "is
based on principles of equity, in particular, recognition of the fact
that the purpose of the Statute of Frauds is to prevent frauds, not to
enable a party to perpetrate a fraud by using the statute as a sword
rather than a shield" (Nicolaides v Nicolaides, 173 AD2d 448, 449-450, see Scutti Enters. v Wackerman Guchone Custom Bldrs., 153 AD2d 83, 87).

Continue reading “CPLR R. 3211 ROUNDUP: CPLR R. 3211(a)(1)(7)(8); CPLR R. 3016(a)”

Another Sighting of the Rare Motion to Replead (CPLR R. 3211(e))

CPLR R. 3211 Motion to dismiss

CPLR R. 3211(e) Motion to replead

For some much needed background on this procedural novelty read Janssen v Incorporated Vil. of Rockville Ctr., 2008 NY Slip Op 09962 (App. Div., 2nd). For the shorter, highlighted version, click HERE.

Clark v Pfizer, Inc., 2009 NY Slip Op 05743 (App. Div., 2nd, 2009)

The defendant correctly contends that the appeal from the order
dated November 2, 2007, must be dismissed, inasmuch as the plaintiff
failed to file a notice of appeal within 35 days after service upon him
by mail of that order with notice of entry (see CPLR 2103[b][2]; 2103[c], 5513[a]; Matter of Wei v New York State Dept. of Motor Vehs., 56 AD3d 484, 485; Jones Sledzik Garneau & Nardone, LLP v Schloss, 37 AD3d 417; Matter of Eagle Ins. Co. v Soto, 254 AD2d 483).

Moreover, the Supreme Court properly denied that branch of the
plaintiff's motion which was, in effect, for leave to replead so as to
assert a cause of action to recover damages for discrimination in the
terms, privileges, and conditions of employment in violation of
Executive Law [*2]§ 296. A motion
for leave to replead, although now constituting little more than a
"poor substitute" or "arcane alternative" to a motion for leave to
amend a pleading under CPLR 3025(b) (Janssen v Incorporated Vil. of Rockville Ctr., 59 AD3d 15, 19), is still cognizable and is not expressly "constrained by any time limitation" (id.).
Nonetheless, in the matter before us, the proposed complaint, as sought
to be repleaded, is palpably insufficient and patently devoid of merit (see Lucido v Mancuso, 49 AD3d 220, 226-227; see also Barnum v New York City Tr. Auth., 62 AD3d 736).

The bold is mine.