Category: CPLR

CPLR 602 You cant’ consolidate a dismissed action into another action

CPLR 602

Jacobs v Mostow, 2014 NY Slip Op 00328 [2nd Dept. 2014]

The Supreme Court properly denied that branch of the plaintiff's motion which was to consolidate this action with an action entitled Jacobs v Mostow, filed in the Supreme Court, Nassau County, under Index No. 7715/07 (hereinafter the 2007 action). Consolidation requires two pending actions (see CPLR 602). Since the 2007 action was dismissed, and that dismissal was affirmed on appeal, there is no pending 2007 action to consolidate with this action.

 

 

CPLR 3101 Additional discovery of financial documents was neither material nor necessary

CPLR 3101(a)

Hatter v Myerson, 2014 NY Slip Op 00326 [2nd Dept. 2014]

Contrary to the appellant's contention, the Supreme Court providently exercised its discretion in concluding that the additional discovery of financial documents sought by the appellant was neither material nor necessary in the defense of the action (see CPLR 3101[a]; Constantino v Dock's Clam Bar & Pasta House, 60 AD3d 612).

Decision doesnt give anything in the way of facts, but it might prove useful as a cite.

Pecile v Titan Capital Group, LLC, 2014 NY Slip Op 00425 [1st Dept. 2014]

 

Regarding defendants' demand for access to plaintiffs' social media sites, they have failed to offer any proper basis for the disclosure, relying only on vague and generalized assertions that the information might contradict or conflict with plaintiffs' claims of emotional distress. Thus, the postings are not discoverable (see Tapp v New York State Urban Dev. Corp., 102 AD3d 620 [1st Dept 2013]).

 

Lastly, defendants correctly assert that prior criminal convictions and pleas of guilty are relevant and discoverable (CPLR 4513; see also Sansevere v United Parcel Serv., 181 AD2d 521 [*2][1st Dept 1992]). However, "[a] youthful offender adjudication is not a judgment of conviction for a crime or any other offense" (Criminal Procedure Law § 720.35[1]). Thus, defendants cannot compel disclosure of the details of a youthful offense, since that would "contravene[] the goals envisioned by the youthful offender policy" (State Farm Fire & Cas. Co. v Bongiorno, 237 AD2d 31, 36, [2d Dept 1997]; see also Auto Collection, Inc. v C.P., 93 AD3d 621, 622 [2d Dept 2012]). Nothing in the record suggests that the evidence sought would serve as collateral estoppel to the claim, or is relevant in some other manner that would serve as an exception to that general rule (see Green v Montgomery, 95 NY2d 693 [2001]).

 

3212(a) outstanding discovery was not sufficient to warrant extention to make late SJ

CPLR 3212(a)

Courtview Owners Corp. v Courtview Holding B.V., 2014 NY Slip Op 00322 [2nd Dept. 2014]

Further, the Supreme Court properly denied, as untimely, those branches of the plaintiff's motion which were for summary judgment, and the defendants' cross motion for summary judgment, as the parties failed to demonstrate good cause for making their respective motion and cross motion more than 60 days after the filing of the note of issue, as required by a preliminary conference order (see Rivera v New York Presbyt. Hosp., 57 AD3d 755; Jackson v Jamaica First Parking, LLC, 49 AD3d 501, 501; Coty v County of Clinton, 42 AD3d 612, 614). While significant outstanding discovery may, in certain circumstances, constitute good cause for a delay in making a motion for summary judgment (see Gonzalez v 98 Mag Leasing Corp., 95 NY2d 124, 129; Kung v Zheng, 73 AD3d 862, 863), contrary to the defendants' contention, the discovery outstanding at the time the note of issue was filed was not essential to their cross motion (see Avezbakiyev v City of New York, 104 AD3d 888, 888-889; Greenpoint Props., Inc. v Carter, 82 AD3d 1157, 1158).

Emphasis is mine.

Premature dismissal (3211/3212 was a premature 4401)

CPLR 3212
CPLR 3211
CPLR 4401

Deonarine v Montefiore Med. Ctr., 2014 NY Slip Op 00299 [1st Dept. 2014]

Order, Supreme Court, Bronx County (Sharon A.M. Aarons, J.), entered July 19, 2012, which, to the extent appealed from as limited by the briefs, denied defendant's motion to dismiss the complaint pursuant to CPLR 3211 and 3212, and denied defendant's motion to preclude plaintiff's use of his deposition at trial, unanimously affirmed as to the denial of defendant's motion to dismiss, and the appeal therefrom otherwise dismissed, without costs.

The court properly denied the motion to dismiss the complaint inasmuch as it was based solely on defendant's assertion that plaintiff would be unable to make out a prima facie case at trial by reason of his anticipated "unavailability to testify as a result of his imminent deportation . . ." Accordingly the motion was actually a prematurely made motion for judgment pursuant to CPLR 4401, which has to await the close of plaintiff's case at trial even if plaintiff's ultimate success in the action is improbable (see Cass v Broome County Coop. Ins. Co., 94 AD2d 822, 823 [3rd Dept 1983]). The court's denial of defendant's motion to preclude was effectively an evidentiary ruling made in advance of trial and, as such, is not appealable (see Balcom v Reither, 77 AD3d 863, 864 [2nd Dept 2010]). We have considered defendant's remaining contentions and find them to be without merit.

Emphasis is mine.

3211(a)(7) Court of Appeals

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

Miglino v Bally Total Fitness of Greater N.Y., Inc., 2013 NY Slip Op 00780 (2013)

In this case, though, Bally has moved to dismiss under CPLR 3211 (a)
(7), which limits us to an examination of the pleadings to determine
whether they state a cause of action. Further, we must accept facts
alleged as true and interpret them in the light most favorable to
plaintiff; and, as Supreme Court observed, plaintiff may not be
penalized for failure to make an evidentiary showing in support of a
complaint that states a claim on its face (see Rovello v Orofino Realty Co.,
40 NY2d 633, 635 [1976] [as long as a pleading is facially sufficient,
the plaintiff is not obligated to come forward with claim-sustaining
proof in response to a motion to dismiss unless the court treats the
motion as one for summary judgment and so advises the parties]).

3211(b) dismiss affirmative defenses

3211(b)

Chestnut Realty Corp. v Kaminski, 95 AD3d 1254 (2nd Dept. 2012)

A party may move to dismiss a defense "on the ground that a defense is not stated or has no merit" (CPLR 3211 [b]). "In reviewing a motion to dismiss an affirmative defense, the court must liberally construe the pleadings in favor of the party asserting the defense and give that party the benefit of every reasonable inference" (Fireman's Fund Ins. Co. v Farrell, 57 AD3d 721, 723 [2008]; see Greco v Christoffersen, 70 AD3d 769, 771 [2010]). "[I]f there is any doubt as to the availability of a defense, it should not be dismissed" (Fireman's Fund Ins. Co. v Farrell, 57 AD3d at 723; see Becker v Elm A.C. Corp., 143 AD2d 965, 966 [1988]). Here, the Supreme Court should have granted that branch of the plaintiff's cross motion which was to dismiss the third affirmative defense, which asserted that the complaint failed to state a cause of action, since the complaint was sufficient to state a cause of action.

However, the Supreme Court properly denied that branch of the plaintiff's cross motion which was to dismiss the defendants' other affirmative defenses. Taking the allegations in the first and second affirmative defenses as true, the defendants sufficiently stated an affirmative defense of surrender by operation of law (see e.g. Riverside Research Inst. v KMGA, Inc., 68 NY2d at 691-692), and the plaintiff has not shown that this affirmative defense is without merit as a matter of law. Furthermore, taking the allegations in the fourth affirmative defense as true, the defendants sufficiently stated an affirmative defense of wrongful accounting (see Fireman's Fund Ins. Co. v Farrell, 57 AD3d at 723), and the plaintiff did not show that this affirmative defense is without merit as a matter of law.

See also South Point, Inc. v Redman, 2012 NY Slip Op 03165 (2nd Dept. 2012)

5701 and Appellate Procedure

CPLR § 5701 Appeals to appellate division from supreme and county courts

US Bank Natl. Assn. v Cange, 2012 NY Slip Op 04735 (2nd Dept. 2012)

The appeal from the order dated September 20, 2011, must be dismissed, as it was superseded by the order entered December 22, 2011. In any event, "[a]n order directing a hearing to aid in the determination of a motion does not dispose of the motion and does not affect a substantial right, and therefore is not appealable as of right" (Kornblum v Kornblum, 34 AD3d 749, 751; see CPLR 5701[a][2][v]; Iodice v City of White Plains, 60 AD3d 730) and leave to appeal from the order dated September 20, 2011, was not granted.

Baez v First Liberty Ins. Corp., 95 AD3d 1250 (2nd Dept. 2012)

The defendant appeals from so much of the order as made that determination. The appeal must be dismissed, however, as findings of fact and conclusions of law are not independently appealable (see Soehngen v Soehngen, 58 AD3d 829, 830 [2009]; Higgins v Higgins, 50 AD3d 852, 852 [2008]; Cosh v Cosh, 45 AD3d 798, 799 [2007]; Griggs v Griggs, 44 AD3d 710, 711 [2007]; ELRAC, Inc. v Belessis, 303 AD2d 445, 446 [2003]; Naar v Litwak & Co., 260 AD2d 613, 614 [1999]).

Remittitur or Remand

CPLR § 5524

Glassman v ProHealth Ambulatory Surgery Ctr., Inc., 2012 NY Slip Op 04713 (2nd Dept. 2012)

Upon an opinion of the Court of Appeals dated June 3, 2010, this matter was remitted to the Supreme Court, Nassau County, to determine whether the defendants were entitled, under the terms of the parties' employment agreement, to a setoff derived from certain specified funds, if any, held by the plaintiff, against the amount of the plaintiff's recovery in this action (see Glassman v ProHealth Ambulatory Surgery Ctr., Inc., 14 NY3d 898). The defendants contend, however, that contrary to the Supreme Court's interpretation of the Court of Appeals' decision and order, the remittal instructions did not preclude the Supreme Court from entertaining and granting their motion for leave to renew their prior motion for leave to amend their answer to include an affirmative defense based on breach of contract, and a counterclaim based on breach of fiduciary duty, and thereupon awarding them summary judgment dismissing the complaint based on the proposed affirmative defense and on the proposed counterclaim.

"[A] trial court, upon a remand or remittitur, is without power to do anything except to obey the mandate of the higher court, and render judgment in conformity therewith" (United States v Pink, 36 NYS2d 961, 965). "The judgment or order entered by the lower court on a remittitur must conform strictly to the remittitur, and it cannot afterwards be set aside or modified by the lower court" (Matter of Minister, Elders & Deacons of Refm. Protestant Dutch Church of City of N.Y. v Municipal Ct. of City of N.Y., Borough of Manhattan, 185 Misc 1003, 1007, affd 270 App Div 993, affd 296 NY 822).

If the remittitur is erroneous in any respect, or if there is any uncertainty as to the effect of the language employed, the appropriate remedy is an application to amend it (see CPLR 5524; Matter of Minister, Elders & Deacons of Refm. Protestant Dutch Church of City of N.Y. v Municipal Ct. of City of N.Y., Borough of Manhattan, 185 Misc at 1006). Contrary to the defendants' contention, the Supreme Court correctly adhered to the terms of the Court of Appeals' remittitur in this matter (cf. Wiener v Wiener, 10 AD3d 362, 362).

The defendants' remaining contentions are either barred by the law of the case doctrine (see Rubeo v National Grange Mut. Ins. Co., 93 NY2d 750, 754; RPG Consulting, Inc. v Zormati, 82 AD3d 739, 740), since they were previously determined by this Court (see Glassman v ProHealth Ambulatory Surgery Ctr., Inc., 55 AD3d 538, revd on other grounds 14 NY3d 898), or without merit.

 Glassman v ProHealth Ambulatory Surgery Ctr., Inc., 2012 NY Slip Op 04714 (2nd Dept. 2012)

The defendants are not aggrieved by so much of the order appealed from as granted that branch of their motion which was to discharge or cancel an appeal bond filed by them on January 22, 2009 (see CPLR 5511; Mixon v TBV, Inc., 76 AD3d 144). Moreover, the appeal from so much of the order as denied that branch of the defendants' motion which was to discharge or cancel an appeal bond filed by them on May 23, 2007, has been rendered academic, since the initial judgment that the bond was meant to secure has been superseded by an amended judgment entered August 10, 2011. Further, findings of fact and conclusions of law which do not grant or deny relief are not independently appealable (see Matter of Flamenbaum,AD3d, 2012 NY Slip Op 04165, *2 [2d Dept 2012]; Ramirez v City of New York, 90 AD3d 1009, 1009; Verderber v Commander Enters. Centereach, LLC, 85 AD3d 770, 771). Thus, no appeal lies from so much of the order as determined that the plaintiff is entitled to enforce an interlocutory judgment, entered on the consent of the parties, that awarded him an attorney's fee. The mere fact that the order appealed from contains language which the defendants deem adverse to their interests does not render them aggrieved by that order (see Pennsylvania Gen. Ins. Co. v Austin Powder Co., 68 NY2d 465, 472-473; Mixon v TBV, Inc., 76 AD3d at 148-149). In any event, the award of the attorney's fee pursuant to the interlocutory judgment was incorporated into the amended judgment entered August 10, 2011, which we are affirming in a companion appeal (see Glassman v ProHealth Ambulatory Surgery Ctr., Inc.,AD3d [Appellate Division Docket No. 2011-08249, decided herewith]).

Joint Trial/Consolidation 602

CPLR § 602 Consolidation
(a) Generally
(b) Cases pending in different courts

Alizio v Feldman, 2012 NY Slip Op 05378 (2nd Dept. 2012)

Where, as here, common questions of law or fact exist, a motion pursuant to CPLR 602(a) for a joint trial should be granted absent a showing of prejudice to a substantial right of the party opposing the motion (id. at 1088; see Mas-Edwards v Ultimate Servs., Inc., 45 AD3d 540, 540; Perini Corp. v WDF, Inc., 33 AD3d 605, 606). Here, the defendants failed to show prejudice to a substantial right if this action is joined with others for trial (see Moor v Moor, 39 AD3d 507, 507-508). Moreover, mere delay is not a sufficient basis to justify the denial of a joint trial (see Perini Corp. v WDF, Inc., 33 AD3d at 606; Alsol Enters., Ltd. v Premier Lincoln-Mercury, Inc., 11 AD3d 494, 496).

Accordingly, the Supreme Court should have granted the plaintiffs' motion to join this action for trial with the action entitled Alizio v Perpignano, pending in the Supreme Court, Nassau County, and several related actions previously joined for trial.

Matter of Matter of Rostkowski v Baginski, 2012 NY Slip Op 05177 (2nd Dept. 2012)

The petitioner's contention that the Family Court acted improperly by consolidating his petition with a petition in a related case is without merit. Although it is true that a court may not order consolidation sua sponte (see CPLR 602[a]; AIU Ins. Co. v ELRAC, Inc., 269 AD2d 412; Matter of Amy M., 234 AD2d 854, 855), here, there was no consolidation. The individual petitions were left intact. They were merely brought together to be heard on the same day. The captions of the individual petitions remained the same, and different determinations were rendered in separate orders.

Hae Sheng Wang v Pao-Mei Wang, 2012 NY Slip Op 05141 (2nd Dept. 2012)

The plaintiffs' cause of action alleging breach of contract involves issues of law and fact in common with those in the holdover proceeding pending in the Civil Court, and most of the parties are the same. "Where common questions of law or fact exist, a motion to consolidate [pursuant to CPLR 602(b)] should be granted absent a showing of prejudice to a substantial right by the party opposing the motion" (Kally v Mount Sinai Hosp., 44 AD3d 1010, 1010). The defendant did not make a showing that removal and consolidation would prejudice a substantial right. Therefore, those branches of the plaintiffs' motion which were to stay the holdover proceeding, to remove it to the Supreme Court, Queens County, and to consolidate it with this action should have been granted (see CPLR 602[b]; Kally v Mount Sinai Hosp., 44 AD3d at 1010-1011).

The case also has a discussion about res judicata.

 

Personal Jurisdiction. Forum Non Con. Venue. Forum Selection.

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

CPLR § 6301 Grounds for preliminary injunction and temporary restraining order

CPLR R. 327 Inconvenient forum

CPLR § 510 Grounds for change of place of trial

CPLR R. 511 Change of place of trial

Cantalupo Constr. Corp. v 2319 Richmond Terrace Corp., 2012 NY Slip Op 04310 (2nd Dept. 2012)

Given the circumstances of this case, and in the interests of justice and judicial economy, the Supreme Court should have granted that branch of the plaintiff's motion which was to remove the summary nonpayment proceeding pending in Civil Court, Richmond County, to the Supreme Court, Richmond County, and to consolidate that proceeding with the instant action for specific performance of an alleged agreement to purchase the subject property (see Richmond Amboy Realty, LLC v 3881 Richmond Ave. Realty, Inc., 72 AD3d 783; Kally v Mount Sinai Hosp., 44 AD3d 1010, 1010-1011; Morrell & Co. Wine Emporium v Richalan Realty Corp., 93 AD2d 736, 737).

Gliklad v Cherney, 2012 NY Slip Op 05333 (1st Dept. 2012)

The IAS court erred in granting plaintiff's motion to strike defendant's affirmative defense of lack of personal jurisdiction. Contrary to plaintiff's contention, defendant did not waive this defense by moving for summary judgment dismissing the complaint on the merits, given that defendant had previously raised the jurisdictional defense. Competello v Giorando (51 NY2d 904 [1980]) is distinguishable, as the defendant in that case failed to raise the defense of lack of personal jurisdiction in a motion pursuant to CPLR 3211(a)(7).

Defendant failed to meet his burden of establishing that New York is an inconvenient forum for this action (see Islamic Republic of Iran v Pahlavi, 62 NY2d 474, 478-479 [1984], cert denied 469 US 1108 [1985]). Further, the subject promissory note contained a clause selecting New York as the forum, barring defendant's forum non conveniens motion (see Sebastian Holdings, Inc. v Deutsche Bank AG., 78 AD3d 446, 447 [2010]).

The court properly granted plaintiff's motion for a preliminary injunction barring defendant from prosecuting the action he had commenced in Israel over the same promissory note at issue in the instant action. A party moving for a preliminary injunction must establish a likelihood of success on the merits, irreparable harm if the injunction were not granted, and a balance of the equities in the movant's favor (see W.T. Grant Co. v Srogi, 52 NY2d 496, 517 [1981]; Casita, L.P. v MapleWood Equity Partners [Offshore] Ltd., 43 AD3d 260 [2007]). Here, even if defendant may have a meritorious defense, plaintiff made a prima facie showing that his claim under the promissory note has merit (see Matter of Witham v Finance Invs., Inc., 52 AD3d 403 [2008]; Bingham v Struve, 184 AD2d 85 [1992]). Plaintiff also established a risk that he would suffer irreparable harm if he were to travel to Israel to litigate the other action, since this act might jeopardize his Canadian asylum status. In addition, the balance of the equities favors plaintiff, since the expenditures of time and resources by the parties and the court would be potentially wasted if the Israeli action, which defendant commenced one-and-a-half years after the commencement of the instant action, were to result in a decision precluding any decision the court might have reached in this case (see Jay Franco & Sons Inc. v G Studios, LLC, 34 AD3d 297 [2006]).

Further, defendant appeared to be forum shopping by attempting to obtain a favorable decision from the Israeli court, which would interfere with the New York court's ability to resolve the issues before it (see IRB-Brasil Resseguros S.A. v Portobello Intl. Ltd., 59 AD3d 366 [2009]).

Finally, the court did not err in denying defendant's motion to renew. Contrary to defendant's contention that the court should have ordered plaintiff to post an undertaking to cover defendant's damages in the event the injunction were found to have been erroneously issued, the injunction would actually save both parties time and money by relieving them from the burden of litigating a second action (see Ithilien Realty Corp. v 180 Ludlow Dev. LLC, 80 AD3d 455 [2011]; Visual Equities Inc. v Sotheby's, Inc., 199 AD2d 59 [1993]).

Pratik Apparels, Ltd. v Shintex Apparel Group, Inc., 2012 NY Slip Op 04985 (2nd Dept. 2012)

"A contractual forum selection clause is prima facie valid and enforceable unless it is shown by the challenging party to be unreasonable, unjust, in contravention of public policy, invalid due to fraud or overreaching, or it is shown that a trial in the selected forum would be so gravely difficult that the challenging party would, for all practical purposes, be deprived of its day in court. Absent a strong showing that it should be set aside, a forum selection agreement will control" (Hluch v Ski Windham Operating Corp., 85 AD3d 861, 862 [internal quotation marks and citations omitted]; see Bernstein v Wysoki, 77 AD3d 241, 248-249; Stravalle v Land Cargo, Inc., 39 AD3d 735, 736). "Forum selection clauses are enforced because they provide certainty and predictability in the resolution of disputes, particularly those involving international business agreements" (Brooke Group v JCH Syndicate 488, 87 NY2d 530, 534). Here, the forum selection clause contained in the subject bill of lading submitted by the defendant Classic Logistics, Inc. (hereinafter Classic), conclusively established that the plaintiff's action against Classic must be brought in federal court (see CPLR 3211[a][1]; W.J. Deutsch & Sons, Ltd. v Charbaut Am., Inc., 57 AD3d 529, 530). The plaintiff failed to show that enforcement of the forum selection clause would be unreasonable, unjust, or would contravene public policy, or that the clause is invalid because of fraud or overreaching (see Bernstein v Wysoki, 77 AD3d at 249-250; Best Cheese Corp. v All-Ways Forwarding Int'l. Inc., 24 AD3d 580, 581; Koko Contr. v Continental Envtl. Asbestos Removal Corp., 272 AD2d 585, 586).

Kassotis v Kassotis, 2012 NY Slip Op 05148 (2nd Dept. 2012)

Under the circumstances of this case, the Supreme Court providently exercised its discretion in granting the plaintiff's cross motion to the extent it did, and in denying the defendant's motion without prejudice to renewal in the Family Court, Westchester County (see CPLR 510[3]; McCarthy v McCarthy, 49 AD3d 696, 697). The parties have litigated issues relating to child support in the Family Court, Westchester County, since 2006. The so-ordered stipulation, which the defendant seeks to modify, was entered in the Family Court, Westchester County. Further, the petitions filed by the defendant in the Family Court, Westchester County, are apparently still pending, as the defendant filed objections to the Support Magistrate's order denying the petitions. The Family Court, Westchester County, is familiar with the issues in the matter, while the Supreme Court, Queens County, has not been involved with the parties since the judgment of divorce was entered in February 1999. In addition, the defendant and the parties' children reside in Westchester County, and it appears that most of the material witnesses are in Westchester County (see CPLR 510[3]; McCarthy v McCarthy, 49 AD3d at 697).

Pruitt v Patsalos, 2012 NY Slip Op 04986 (2nd Dept. 2012)

ORDERED that the order is reversed, on the facts and in the exercise of discretion, with costs, the plaintiffs' motion pursuant to CPLR 510(2) to change the venue of the action from Orange County to Dutchess County is granted, and the Clerk of the Supreme Court, Orange County, is directed to deliver to the Clerk of the Supreme Court, Dutchess County, all papers filed in the action and certified copies of all minutes and entries (see CPLR 511[d]).

To obtain a change of venue pursuant to CPLR 510(2), a movant is required to produce admissible factual evidence demonstrating a strong possibility that an impartial trial cannot be obtained in the county where venue was properly placed (see Matter of Michiel, 48 AD3d 687; Jablonski v Trost, 245 AD2d 338, 339; Albanese v West Nassau Mental Health Ctr., 208 AD2d 665, 666). Under the circumstances of this case, including the evidence demonstrating that the defendant is a retired Orange County Supreme Court Justice, who presided in that court for more than two decades, that his relative is a retired Orange County Court Judge, and that the defendant's daughter is a Support Magistrate in the Orange County Family Court, the protection of the court from even a possible appearance of impropriety requires a change of the venue of the action from Orange County to Dutchess County (see Saxe v OB/GYN Assoc., 86 NY2d 820, 822; Kavelman v Taylor, 245 AD2d 9; Milazzo v Long Is. Light. Co., 106 AD2d 495).