Category: CPLR

The decision will surely be of use to some no-fault types.  For a case with a more intricate discussion of what documentary evidence is and is not, read Fontanetta.

CPLR R. 3211(a)(1)

Hernandez v Chefs Diet Delivery, LLC, 2011 NY Slip Op 00647 (App. Div., 2nd 2011)

Contrary to the determination of the Supreme Court, the defendants failed to submit documentary evidence conclusively establishing that the plaintiffs were independent contractors and not employees (see generally Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326; Leon v Martinez, 84 NY2d 83, 87-88; Paramount Transp. Sys., Inc. v Lasertone Corp., 76 AD3d 519, 520). Initially, the federal income tax documents submitted by the defendants which identified some of the plaintiffs as independent contractors were insufficient to conclusively establish that the plaintiffs and the other drivers in the putative class were independent contractors. "While the manner in which the relationship is treated for income tax purposes is certainly a significant consideration, it is generally not singularly dispositive" (Gagen v Kipany Prods., Ltd., 27 AD3d 1042, 1043; see Matter of Stuckelman [Blodnick, Gordon, Fletcher & Sibell, P.C.-Commissioner of Labor], 16 AD3d 882). Furthermore, the various internal documents and the noncompete and confidentiality agreement signed by one of the plaintiffs were similarly insufficient to conclusively establish that the plaintiffs and the other putative class members were independent contractors. "The fact that a contract exists designating a person as an independent contractor is to be considered, but is not dispositive" (Araneo v Town Bd. for Town of Clarkstown, 55 AD3d 516, 518; see Gfeller v Russo, 45 AD3d 1301; Shah v Lokhandwala, 265 AD2d 396; Matter of Wilde [Enesco Imports Corp.—Sweeney], 236 AD2d 722, [*3]723; Carrion v Orbit Messenger, 192 AD2d 366; Matter of Pepsi Cola Buffalo Bottling Corp. [Hartnett], 144 AD2d 220, 222). In fact, to the extent that the noncompete provision of the agreement prohibited any of the drivers from engaging in other businesses that deliver food products on a regularly scheduled basis, the agreement itself weighed in favor of a finding that the drivers were not independent contractors (see Bynog v Cipriani Group, 1 NY3d at 198; cf. Rokicki v 24 Hour Courier Serv., 294 AD2d 555; Matter of Seaver [Glens Falls Newspapers-Hartnett], 162 AD2d 841). To the extent that the Supreme Court relied on the affidavits of several of the defendants, the Supreme Court erred as those affidavits were not documentary evidence (see Suchmacher v Manana Grocery, 73 AD3d 1017; Fontanetta v John Doe 1, 73 AD3d 78, 85; Berger v Temple Beth-El of Great Neck, 303 AD2d 346).

The bold is mine. 

I know someone is researching this issue right now. You're welcome.  I really could have used this case a few weeks ago. 

CPLR R 3025 Amended and supplemental pleadings

Alrose Oceanside, LLC v Mueller, 2011 NY Slip Op 00631 (App. Div., 2nd 2011)

Additionally, the Supreme Court providently exercised its discretion in denying that branch of the plaintiffs' motion which was for leave to amend the complaint to add a cause of action on behalf of Alrose based on concerted action liability insofar as asserted against the infant defendant. "Although leave to amend a pleading shall be freely given' in the absence of surprise or prejudice, the determination whether to grant such leave is within the court's discretion, and the [*2]exercise of that discretion will not be lightly disturbed" (Comsewogue Union Free School Dist. v Allied-Trent Roofing Sys., Inc., 15 AD3d 523, 524, quoting CPLR 3025[b]; see Fischer v RWSP Realty, LLC, 53 AD3d 595, 596). "[W]here the application for leave to amend is made long after the action has been certified for trial, judicial discretion in allowing such amendments should be discrete, circumspect, prudent, and cautious'" (Morris v Queens Long Is. Med. Group, P.C., 49 AD3d 827, 828, quoting Clarkin v Staten Is. Univ. Hosp., 242 AD2d 552, 552). "Moreover, when . . . leave is sought on the eve of trial, judicial discretion should be exercised sparingly" (Morris v Queens Long Is. Med. Group, P.C., 49 AD3d at 828; see American Cleaners, Inc. v American Intl. Specialty Lines Ins. Co., 68 AD3d 792; Comsewogue Union Free School Dist. v Allied-Trent Roofing Sys., Inc., 15 AD3d at 525). In light of Alrose's delay in moving for leave to amend its complaint to add a cause of action based on concerted action liability insofar as asserted against the infant defendant, and in light of the failure of Alrose to set forth a reasonable excuse for the delay in seeking such relief, we discern no reason to disturb the Supreme Court's determination on this issue (see American Cleaners, Inc. v American Intl. Specialty Lines Ins. Co., 68 AD3d 792; Sampson v Contillo, 55 AD3d 591; Fischer v RWSP Realty, LLC, 53 AD3d at 596-597; Cohen v Ho, 38 AD3d 705, 706; Comsewogue Union Free School Dist. v Allied-Trent Roofing Sys., Inc., 15 AD3d at 525).

Green v New York City Hous. Auth., 2011 NY Slip Op 01436 (App. Div., 2nd 2011)

While leave to amend a bill of particulars is ordinarily to be freely given in the absence of prejudice or surprise (see CPLR 3025[b]), when leave is sought on the eve of trial, judicial discretion should be exercised sparingly (see Torres v Education Alliance, 300 AD2d 469, 470; Danne v Otis El. Corp., 276 AD2d 581, 582; Reape v City of New York, 272 AD2d 533). Furthermore, where there has been an inordinate delay in seeking leave to amend to include a new injury, the plaintiff must establish a reasonable excuse for the delay and submit an affidavit to establish the merits of the proposed amendment (see Itzkowitz v King Kullen Grocery Co., Inc., 22 AD3d 636, 637; Fuentes v City of New York, 3 AD3d 549, 550; Smith v Plaza Transp. Ambulance Serv., 243 AD2d 555). The plaintiffs failed to establish a reasonable excuse for the delay. Further, the purported affirmation of the plaintiffs' expert physician submitted with the purpose of demonstrating that the "post concussion syndrome and neuropsychological impairment secondary to cerebral dysfunction" were causally linked to the infant plaintiff's accident "provided no data to indicate the basis [for the physician's] conclusion [and] was therefore speculative, conclusory, and lacking in probative value" (Paladino v Time Warner Cable of N.Y. City, 16 AD3d 646, 648; see Itzkowitz v King Kullen Grocery Co., Inc., 22 AD3d at 637; Youthkins v Cascio, 298 AD2d 386, affd 99 NY2d 638; Smith v Plaza Transp. Ambulance Serv., 243 AD2d 555).

The bold is mine.

CPLR R. 3211(a)(8)

Williams v DRBX Holdings, LLC, 2011 NY Slip Op 00423 (App. Div., 1st 2011)

In attempting to serve process on defendant, a foreign limited liability company authorized to do business in New York, plaintiff served defendant's attorneys instead of serving the Secretary of State, as required by Limited Liability Company Law § 303. Despite being twice alerted to the error by defense counsel, plaintiff never served the Secretary of State. "Notice received by means other than those authorized by statute does not bring a defendant within the jurisdiction of the court" (Macchia v Russo, 67 NY2d 592, 595 [1986]). The fact that defendant's attorneys would have received a copy of process from the Secretary of State does not avail plaintiff (see Fwu Chyuang Chow v Kenteh Enters. Corp., 169 AD2d 572 [1991]).

The bold is mine.

CPLR 3211(a)(8)

Tikvah Enters., LLC v Neuman, 2011 NY Slip Op 00502 (App. Div., 2nd 2011)

Moreover, the Supreme Court properly denied, without a hearing, the defendant's motion pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against him for lack of personal jurisdiction. A process server's affidavit of service constitutes prima facie evidence of proper service (see Associates First Capital Corp. v Wiggins, 75 AD3d 614; Scarano v Scarano, 63 AD3d 716). "Although a defendant's sworn denial of receipt of service generally rebuts the presumption of proper service established by the process server's affidavit and necessitates an evidentiary hearing . . . no hearing is required where the defendant fails to swear to specific facts to rebut the statements in the process server's affidavits'" (Scarano v Scarano, 63 AD3d at 716, quoting Simonds v Grobman, 277 AD2d 369, 370; see Associates First Capital Corp. v Wiggins, 75 AD3d at 614-615; City of New York v Miller, 72 AD3d 726, 727). Here, the defendant never denied the specific facts contained in the process server's affidavits. Accordingly, no hearing was required (see Scarano v Scarano, 63 AD3d at 716-717; Roberts v Anka, 45 AD3d 752, 754).

Keep this in mind when opposing motions to vacate.

The bold is mine.

You can never have enough of these decisions handy.

CPLR R. 5015

CPLR R. 3215

Maida v Lessing's Rest. Servs., Inc., 2011 NY Slip Op 00490 (App. Div., 2nd 2011)

To vacate the order entered upon its default in opposing the motion for leave to enter a default judgment, the defendant Lessing's Restaurant Services, Inc. (hereinafter the appellant), was required to demonstrate, inter alia, a reasonable excuse for its default in appearing or answering the complaint and a potentially meritorious defense to the action (see CPLR 5015[a][1]; Abdul v Hirschfield, 71 AD3d 707; Bekker v Fleischman, 35 AD3d 334; Epps v LaSalle Bus, 271 AD2d 400). In support of its motion, which was not made until nine months after the order granting the plaintiff's motion for leave to enter a default judgment, the appellant did not offer a reasonable excuse for its failure to appear or answer the complaint (see Gartner v Unified Windows, Doors & Siding, Inc., 71 AD3d 631, 632; Kramer v Oil Servs., Inc., 65 AD3d 523, 524; Leifer v Pilgreen Corp., 62 AD3d 759, 760; Martinez v D'Alessandro Custom Bldrs. & Demolition, Inc., 52 AD3d 786, 787; Segovia v Delcon Constr. Corp., 43 AD3d 1143, 1144). Accordingly, it is unnecessary to consider whether the appellant sufficiently demonstrated the existence of a potentially meritorious defense to the action (see Abdul v Hirschfield, 71 AD3d at 709; Segovia v Delcon Constr. Corp., 43 AD3d at 1144; American Shoring, Inc. v D.C.A. Constr., Ltd., 15 AD3d 431). In addition, contrary to the appellant's contention, the plaintiff's submissions in support of her motion for leave to enter a default judgment were sufficient. The verified complaint and the plaintiff's affidavit set forth sufficient facts to enable the Supreme Court to determine that the plaintiff alleged a viable cause of action (see Woodson v Mendon Leasing Corp., 100 NY2d 62, 71; Neuman v Zurich N. Am., 36 AD3d 601, 602). Accordingly, the Supreme Court providently exercised its discretion in denying the appellant's motion to vacate the order dated November 24, 2008.

CPLR R.3211(a)(8)

R. Scott Miterko v Peaslee, 2011 NY Slip Op 00492 (App. Div., 2nd 2011)

The Supreme Court properly denied the appellant's cross motion pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against it on the ground of lack of personal jurisdiction. In opposition to the appellant's cross motion asserting that service of process pursuant to CPLR 311(a)(1) was not properly effected, the plaintiffs established that valid service was made pursuant to Business Corporation Law § 306(b)(1) (see Perkins v 686 Halsey Food Corp., 36 AD3d 881).

However, the Supreme Court should not have granted the plaintiffs' motion for leave to enter a default judgment. To establish their entitlement to a default judgment, the plaintiffs were required to submit proof of service of the summons and the complaint, of the facts constituting the claim, and of the default (see CPLR 3215[f]; Levine v Forgotson's Cent. Auto & Elec., Inc., 41 [*2]AD3d 552, 553; 599 Ralph Ave. Dev., LLC v 799 Sterling Inc., 34 AD3d 726). The plaintiffs' initial moving papers for leave to enter a default judgment were predicated solely upon their assertion of proper personal service pursuant to CPLR 311(a)(1). They established, prima facie, their entitlement to a default judgment by submitting an affidavit of service attesting that the summons and complaint were delivered to a managing agent of the appellant, a copy of the verified complaint, and an attorney affirmation attesting to the appellant's default in answering the complaint (see CPLR 311[a][1]; Matone v Sycamore Realty Corp., 50 AD3d 978; McIntyre v Emanuel Church of God In Christ, Inc., 37 AD3d 562; Bankers Trust Co. of Cal. v Tsoukas, 303 AD2d 343, 343-344). In opposition, the appellant rebutted these allegations and raised issues of fact by submitting an affidavit from its president stating that the person upon whom service allegedly was made was not employed by the appellant, nor authorized to accept service of process on behalf of the appellant. The affidavit of the plaintiffs' process server submitted in reply to this opposition raised an additional issue of fact as to whether the recipient, if not a managing agent, was cloaked with an apparent authority to accept service on the appellant's behalf (see generally Fashion Page v Zurich Ins. Co., 50 NY2d 265, 271-273; McDonald v Ames Supply Co., 22 NY2d 111, 115-116; Aguilera v Pistilli Constr. & Dev. Corp., 63 AD3d 765, 766-767; Seda v Armory Estates, 138 AD2d 362, 363-364). Accordingly, a hearing is necessary to determine the issue of whether proper personal service was effected pursuant to CPLR 311(a)(1), solely for the purpose of determining the plaintiffs' entitlement to a default judgment (see McIntyre v Emanuel Church of God In Christ, Inc., 37 AD3d at 562-563; Garcia v Munseob, 33 AD3d 586; Mortgage Access Corp. v Webb, 11 AD3d 592, 593; Bankers Trust Co. of Cal. v Tsoukas, 303 AD2d at 343-344; Frankel v Schilling, 149 AD2d 657, 659).

Since the plaintiffs' assertion that they were entitled to a default judgment based on proper service pursuant to Business Corporation Law § 306(b)(1) was made in their reply papers supporting their motion, two days before the return date and the date of the order appealed from, and the appellant did not have an opportunity to respond, the Supreme Court should not have considered that claim in determining the motion (see Matter of Crawmer v Mills, 239 AD2d 844, 844-845; cf. Matter of Whittaker v New York City Bd. of Educ., 71 AD3d 776, 778; Valure v Century 21 Grand, 35 AD3d 591, 592).

The appellant's contention that the plaintiffs failed to state a cause of action insofar as asserted against it is raised for the first time on appeal and, thus, is not properly before this Court (see McLearn v Cowen & Co., 60 NY2d 686, 689; Viafax Corp. v Citicorp Leasing, Inc., 54 AD3d 846, 849; Resnick v Doukas, 261 AD2d 375, 376).

The bold is mine.

This really isn't groundbreaking, but I was looking for a case on this issue the other week and couldn't find a recent one.  So I'll just leave this here.

CPLR R 3025 Amended and supplemental pleadings

Jenal v Brown, 2011 NY Slip Op 00487 (App. Div. 2nd, 2011)

While leave to serve an amended pleading should be freely given upon such terms as are just (see CPLR 3025[b]; Edenwald Contr. Co. v City of New York, 60 NY2d 957; AYW Networks v Teleport Communications Group, 309 AD2d 724; Charleson v City of Long Beach, 297 AD2d 777; Holchendler v We Transp., 292 AD2d 568), leave should not be granted where "the proposed amendment is palpably insufficient as a matter of law or is totally devoid of merit" (Morton v Brookhaven Mem. Hosp., 32 AD3d 381, 381; see Thone v Crown Equip. Corp., 27 AD3d 723). Here, the proposed amendment was clearly without merit as the plaintiffs' motion was made nearly one year after the statute of limitations had expired, and there was no basis in the record to support a claim that the Town of Babylon should be estopped from relying upon the expiration of the statute of limitations (see Luka v New York City Tr. Auth., 100 AD2d 323, 325, affd 63 NY2d 667; Yassin v Sarabu, 284 AD2d 531; Nowinski v City of New York, 189 AD2d 674, 675). 

found another

Schroeder v Good Samaritan Hosp., 2011 NY Slip Op 00500 (App. Div., 2nd 2011)

Where, as here, a summons and complaint are timely filed but not served, service of a substantively similar amended summons and complaint without leave of court under the same index number is proper when it is served "before the period for responding to the original complaint has expired" (see O'Keefe v Baiettie, 72 AD3d 916, 917, citing CPLR 3025[a]). Thus, the Supreme Court obtained personal jurisdiction over the defendants because they were served with substantively similar amended pleadings during the 120-day period when service of the original pleadings was required under CPLR 306-b (see O'Keefe v Baiettie, 72 AD3d 916). Moreover, under the circumstances, the action was timely commenced as against the defendants.

The bold is mine.

CPLR R. 2104 Stipulations 

Dental Health Assoc. v Zangeneh, 2011 NY Slip Op 00484 (App. Div., 2nd 2011) 

Zangeneh correctly argues that the parties' stipulation entered into on May 6, 2002, bars this belated claim for disgorgement. "By stipulation, the parties may shape the facts to be determined at trial and thus circumscribe the relevant issues for the court to the exclusion of disputed matters that otherwise would be available to the parties" (Deitsch Textiles v New York Prop. Ins. Underwriting Assn., 62 NY2d 999, 1002; see Roberts v Worth Constr., Inc., 21 AD3d 1074; Nishman v De Marco, 76 AD2d 360). Here, the parties agreed that the accounting issues, as raised in a motion made by the plaintiffs in March 2002, inter alia, to adopt the accounting report, would be the only unresolved issues following the trial of the tort and contract claims. The claim for disgorgement was not raised in the plaintiffs' March 2002 motion. Accordingly, the plaintiffs' belated request for disgorgement should have been denied.

Some stipulations, while seemingly inconsequential, are anything but.