Category: CPLR

SOL for DJ

Village of Islandia v County of Suffolk, 2018 NY Slip Op 04025 [2d Dept. 2018]

An action for which no limitation is specifically prescribed by law must be commenced within six years (see CPLR 213[1]).

While no period of limitation is specifically prescribed for a declaratory judgment action, the six-year catch-all limitation period of CPLR 213(1) does not necessarily apply to all such actions. Rather, in order to determine the statute of limitations applicable to an action for a declaratory judgment, a court must examine the substance of the action. Where it is determined that [*2]the parties' dispute can be, or could have been, resolved in an action or proceeding for which a specific limitation period is statutorily required, that limitation period governs (see Matter of Save the Pine Bush v City of Albany, 70 NY2d 193, 202; Solnick v Whalen, 49 NY2d 224, 229; Matter of Dandomar Co., LLC v Town of Pleasant Val. Town Bd., 86 AD3d 83, 90).

CPLR 4547 — Negotiations / Missing Witness / Hearsay

Matter of Chi-ChuanFile Wang, 2018 NY Slip Op 04090 [1st Dept. 2018]

Here, proponents challenge the documents and testimony admitted into evidence concerning settlement negotiations in Shanghai at which proponent provided objectant with paintings he denied having taken from decedent's bank vault. Although CPLR 4547 precludes presentation of evidence of settlement negotiations, it expressly exempts exclusion of evidence, which is otherwise discoverable, solely because such evidence was presented during the course of settlement negotiations.

The list of paintings that was signed by proponent as part of the settlement conference in Shanghai was admitted into evidence because it included a factual admission that proponent possessed a painting that he accused objectant of stealing. Thus, its use at trial was permissible, notwithstanding that the factual statement was contained in a settlement document (see PRG Brokerage Inc. v Aramarine Brokerage, Inc., 107 AD3d 559, 560 [1st Dept 2013]).

Proponents also challenge the court's missing witness charge with respect to two of decedent's treating doctors in the hospital and the attorney who drafted the will. The court did not improvidently exercise its discretion in providing a missing witness charge with respect to decedent's treating doctors. The court's missing witness charge with respect to the attorney, Jerome Kamerman, was in error. Mr. Kamerman was living in Florida at the time of trial and was unavailable to proponents (see Zeeck v Melina Taxi Co., 177 AD2d 692, 694 [1st Dept 1991] [Proof that a witness is beyond the jurisdiction of the court is ordinarily sufficient to bar the inference as a matter of law]; People v Gonzalez, 68 N.Y.2d 424, 428 [1986]). In light of the testimony at trial regarding decedent's testamentary capacity, we find the error to be harmless as a matter of law (see CPLR 2002; Nestorowich v Ricotta, 97 NY 2d 393 [2002] ["viewing the charge as a whole, and in light of the evidence presented, counsel's arguments and the otherwise proper jury instructions, there is no indication that the error in judgment' charge clouded the issue or negatively influenced the jury's determination"]).

Emphasis is mine

Finally, proponents challenge the testimony of objectant's expert because his opinion was based in part on conversations with objectant regarding decedent's mental capacity. A psychiatrist's opinion may be received in evidence even though some of the information on which it is based is inadmissible hearsay, if the hearsay is "of a kind accepted in the profession as reliable in forming a professional opinion, or if it comes from a witness subject to full cross-examination on [] trial" (People v Goldstein, 6 NY3d 119, 124 [2005], cert denied 547 US 1159 [2006]). The court properly permitted the expert to testify, despite his conversations with objectant, since she was subject to full cross-examination at trial.

 

Service of subpoena on attorney

Chicoine v Koch, 2018 NY Slip Op 03825 [2d Dept. 2018]

A court of record generally has the power "to issue a subpoena requiring the attendance of a person found in the state to testify in a cause pending in that court" (Judiciary Law § 2-b[1]). "Where the attendance at trial of a party or person within the party's control can be compelled by a trial subpoena, that subpoena may be served by delivery in accordance with [CPLR 2103(b)] to the party's attorney of record" (CPLR 2303-a). Here, the trial subpoena was properly served upon the defendant's attorneys pursuant to CPLR 2303-a and 2103(b)(2). Contrary to the defendant's contention, because he is a party to this action, over whom personal jurisdiction had been obtained, he is "found in the state" within the meaning of Judiciary Law § 2-b(1) (see Coutts Bank [Switzerland] v Anatian, 275 AD2d 609; cf. Zeeck v Melina Taxi Co., 177 AD2d 692, 694; see generally Matter of Standard Fruit & S. S. Co. v Waterfront Commn. of N.Y. Harbor, 43 NY2d 11, 15).

Experts have to know what they are talking about and CPLR 2106

Galluccio v Grossman, 2018 NY Slip Op 03664 [2d Dept. 2018]

In opposition, the affirmation of the plaintiffs' expert failed to raise a triable issue of fact. "While it is true that a medical expert need not be a specialist in a particular field in order to testify regarding accepted practices in that field, the witness nonetheless should be possessed of the requisite skill, training, education, knowledge or experience from which it can be assumed that the opinion rendered is reliable" (Postlethwaite v United Health Servs. Hosps., 5 AD3d 892, 895 [internal quotation marks and citations omitted]). "Thus, where a physician opines outside his or her area of specialization, a foundation must be laid tending to support the reliability of the opinion rendered" (Mustello v Berg, 44 AD3d 1018, 1019; see Behar v Coren, 21 AD3d 1045, 1046-1047). Here, the plaintiffs' expert, who was board-certified in internal medicine and infectious disease, did not indicate in his affirmation that he had training in emergency medicine, or what, if anything, he did to familiarize himself with the standard of care for this specialty. The affirmation, therefore, [*3]lacked probative value, and failed to raise a triable issue of fact (see Lavi v NYU Hosps. Ctr., 133 AD3d 830, 831). Accordingly, the Supreme Court should have granted the motion of Friedman and Island Medical for summary judgment dismissing the complaint and all cross claims insofar as asserted against them.

***

Although the plaintiffs initially opposed the motion with physician affirmations that did not comply with CPLR 2016, the court providently disregarded the defect after the plaintiffs replaced the affirmations with affidavits (see CPLR 2001). However, the court should have granted that branch of the motion which was for summary judgment dismissing the cause of action alleging lack of informed consent insofar as asserted against those defendants, since, as elucidated in the bill of particulars, the claim does not involve an affirmative violation of the plaintiff's physical integrity as is required to state a cause of action for lack of informed consent (see Martin v Hudson Val. Assoc., 13 AD3d 419, 420).

2104 and email

Kataldo v Atlantic Chevrolet Cadillac, 2018 NY Slip Op 03669 [2d Dept. 2018]

To be enforceable, a stipulation of settlement must conform to the criteria set forth in CPLR 2104 (see Forcelli v Gelco Corp., 109 AD3d 244, 248; see also Martin v Harrington, 139 AD3d 1017, 1018). Where, as in the instant case, counsel for the parties did not enter into a settlement in open court, an "agreement between parties or their attorneys relating to any matter in an action . . . is not binding upon a party unless it is in a writing subscribed by him or his attorney" (CPLR 2104). The plain language of CPLR 2104 requires that "the agreement itself must be in writing, signed by the party (or attorney) to be bound" (Bonnette v Long Is. Coll. Hosp., 3 NY3d 281, 286; see Forcelli v Gelco Corp., 109 AD3d at 248). An email message may be considered "subscribed" as required by CPLR 2104, and, therefore, capable of enforcement, where it "contains all material terms of a settlement and a manifestation of mutual accord, and the party to be charged, or his or her agent, types his or her name under circumstances manifesting an intent that the name be treated as a signature" (Forcelli v Gelco Corp., 109 AD3d at 251).

Here, the email confirming the settlement agreement was sent by counsel for the party seeking to enforce the agreement, LICO. There is no email subscribed by the plaintiff, who is the party to be charged, or by her former attorney. In the absence of a writing subscribed by the plaintiff or her attorney, the settlement agreement is unenforceable against the plaintiff (see id. at 248; see also CPLR 2104).

205(a)

Matter of Lindenwood Cut Rate Liquors, Ltd. v New York State Liq. Auth., 2018 NY Slip Op 03680 [2d Dept. 2018]

As the petitioner correctly contends, CPLR 205(a) applies not only to actions but also to special proceedings under CPLR article 78 (see Matter of Morris Inv. v Commissioner of Fin. of City of N.Y. , 69 NY2d 933; Matter of Winston v Freshwater Wetlands Appeals Bd. , 224 AD2d 160). The toll of CPLR 205(a) would not apply, however, if the prior proceeding was dismissed on the merits; thus, the court must determine whether the order dismissing the prior proceeding is entitled to res judicata effect (see Yonkers Contr. Co. v Port Auth. Trans-Hudson Corp ., 93 NY2d 375, 380).

Here, the prior proceeding was dismissed after being marked off the calendar. Contrary to the Authority's contention, "[a] dismissal of an action by being marked off the Trial Calendar is not a dismissal on the merits," and "[a] new action on the same theory is therefore not barred by the doctrine of res judicata" (Lewin v Yedvarb , 61 AD2d 1025, 1026; see Morales v New York City Hous. Auth ., 302 AD2d 571, 571; Gallo v Teplitz Tri-State Recycling , 254 AD2d 253, 253-254; Medalie v Jacobson , 120 AD2d 652). Moreover, there is nothing in the order denying the petitioner's motion to restore the prior proceeding to the calendar which suggests that the prior proceeding was dismissed with prejudice (see Gallo v Teplitz Tri-State Recycling , 254 AD2d at 254).

You can’t renew a motion you didnt oppose

Singh v Reddy, 2018 NY Slip Op 03722 [2d Dept. 2018]

The branch of the plaintiffs' motion which was for leave to renew was properly denied, since there was no opposition to the defendants' motion to dismiss that could have been renewed (see CPLR 2221; Hudson City Sav. Bank v Bomba, 149 AD3d 704, 705). To the extent that the Supreme Court treated that branch of the plaintiffs' motion as, in effect, a motion to vacate the default, that branch of the plaintiffs' motion was also properly denied. The plaintiffs failed to establish a reasonable excuse for their default (see CPLR 5015[a][1]; Taylor Appraisals v Prokop, 99 AD3d 985, 985).

3211(c) standard

Soroush v Citimortgage, Inc., 2018 NY Slip Op 03724 [2d Dept. 2018]

CPLR 3211(c) provides that, "[u]pon the hearing of a motion made under subdivision (a) or (b), either party may submit any evidence that could properly be considered on a motion for summary judgment. Whether or not issue has been joined, the court, after adequate notice to the parties, may treat the motion as a motion for summary judgment." Here, the Supreme Court should not have converted Citimortgage's motion pursuant to CPLR 3211(a) to dismiss the complaint to one for summary judgment without providing "adequate notice to the parties" (CPLR 3211[c]; see Sunset Café, Inc. v Mett's Surf & Sports Corp., 103 AD3d 707; Saleh v New York Post, 78 AD3d 1149; Neurological Servs. of Queens, P.C. v Farmingville Family Med. Care, 63 AD3d 703; Moutafis v Osborne, 18 AD3d 723; Steiner v Lazzaro & Gregory, 271 AD2d 596; Glendora v Kofalt, 224 AD2d 485; Pearsal Props. Corp. v Arzina Realty Corp., 139 AD2d 638; Camarda v Vanderbilt, 100 AD2d 836). None of the recognized exceptions to the notice requirement is applicable here. No specific request for summary judgment was made by any party, the parties did not deliberately chart a summary judgment course, and the action did not exclusively involve issues of law which were fully appreciated and argued by the parties (see Sunset Café, Inc. v Mett's Surf & Sports Corp., 103 AD3d at 708; Moutafis v Osborne, 18 AD3d at 724). Moreover, since Citimortgage's motion to dismiss the complaint should not have been converted to one for summary judgment, the court also should not have searched the record and awarded summary judgment to the plaintiff (see Moutafis v Osborne, 18 AD3d at 724).

1015

Wells Fargo Bank, NA v Emma, 2018 NY Slip Op 03728 [2d Dept. 2018]

Pursuant to CPLR 1015(a), "[i]f a party dies and the claim for or against him [or her] is not thereby extinguished the court shall order substitution of the proper parties" (emphasis added). "Generally, the death of a party divests a court of jurisdiction to act, and automatically stays proceedings in the action pending the substitution of a personal representative for the decedent" (Neuman v Neumann, 85 AD3d 1138, 1139). Here, the decedent's death did not divest the court of jurisdiction and warrant the imposition of a stay, since the decedent is not a party in this action (see Sample v Temkin, 87 AD3d 686, 687-688). Moreover, since the decedent made an absolute conveyance of all her interest in the property to the defendant and the plaintiff elected not to seek a deficiency judgment against the decedent's estate, the decedent was not a necessary party to the action (see Wells Fargo Bank, N.A. v Bachmann, 145 AD3d 712, 714; HSBC Bank USA v Ungar Family Realty Corp., 111 AD3d 673). Accordingly, the Supreme Court should have granted that branch of the plaintiff's motion which was to vacate the stay.