Category: CPLR

2309(c) still dead

Hall v Elrac, Inc., 2010 NY Slip Op 08864 (App. Div., 1st 2010)

We find that the IAS court properly considered the affidavit of defendant Elrac's senior account manager in the damage unit in concluding that defendant's disposal of the vehicle in question was not done in bad faith. Initially, plaintiff's claim that the affidavit was not in admissible form because it was signed outside New York State but notarized by a New York notary, without providing a certificate of conformity as required by CPLR 2309(c) and Real Property Law § 299-a is unpreserved (see Matapos Tech. Ltd. v Compania Andina de Comercio Ltda, 68 AD3d 672, 673 [2009]; P.T. Bank Cent. Asia v Chinese Am. Bank, 229 AD2d 224, 229 [1997]). In any event, as long as the oath is duly given, authentication of the oathgiver's authority can be secured later, and given nunc pro tunc effect if necessary (Matapos Tech. Ltd., 68 AD3d at 673).

The affidavit was based on the affiant's personal knowledge and his review of the documents, including wholesale purchase order/bill of sale and the check received by defendant in payment for the wrecked vehicle, sold as salvage, which established the date of transfer. This is not a summary judgment motion, where the movant's evidence must be in admissible form, and even a summary judgment motion affords some flexibility to the party opposing the motion (see Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067-1068 [1979]).

 

Late Papers. CPLR 2214(b)

CPLR 2214(b)

Prato v Arzt, 2010 NY Slip Op 09550 (App. Div., 1st 2010)

Defendant's argument that the court improperly declined to reject plaintiff's opposition to his motion as untimely pursuant to CPLR 2214(b) is misguided. The issue was addressed and resolved by the motion court, which granted defendant's request for an opportunity to file a reply.  More importantly, defendant has not shown that he suffered any prejudice as a result of the court's acceptance of plaintiff's late opposition papers (see Dinnocenzo v Jordache Enters., 213 AD2d 219 [1995]).

Conform pleading to the proof. CPLR R. 3025(c)

CPLR R. 3025(c)

Worthen-Caldwell v Special Touch Home Care Servs., Inc., 2010 NY Slip Op 08096 (App. Div., 2nd 2010)

" Leave to conform a pleading to the proof pursuant to CPLR 3025(c) should be freely granted absent prejudice or surprise resulting from the delay'" (Bryant v Broadcast Music, Inc., 60 AD3d 799, 800, quoting Alomia v New York City Tr. Auth., 292 AD2d 403, 406). The determination whether to grant such leave is within the court's discretion, and the exercise of that discretion will not be lightly disturbed (see Surgical Design Corp. v Correa, 31 AD3d 744, 745; Comsewogue Union Free School Dist. v Allied-Trent Roofing Sys., Inc., 15 AD3d 523, 524; Leonardi v City of New York, 294 AD2d 408, 409; Castagne v Barouh, 249 AD2d 257, 257-258). In determining whether a motion for leave to conform should be granted, the court " should consider how long the party seeking the amendment was aware of the facts upon which the motion was predicated, whether a reasonable excuse for the delay was offered, and whether prejudice resulted therefrom'" (American Cleaners, Inc. v American Intl. Specialty Lines Ins. Co., 68 AD3d 792, 794, quoting Cohen v Ho, 38 AD3d 705, 706; see Rose v Velletri, 202 AD2d 566, 567; Rothstein v City Univ. of N.Y., 194 AD2d 533). " Mere lateness is not a barrier to the amendment. It must be lateness coupled with significant prejudice to the other side, the very elements of the laches doctrine'" (Edenwald Contr. Co. v City of New York, 60 NY2d 957, 959, quoting Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR 3025:5, at 477 [1974 ed]; see Abrahamian v Tak Chan, 33 AD3d 947, 949; Sievert v Morlef Holding Co., 220 AD2d 403; Evans v Kringstein, 193 AD2d 714).

Here, the Supreme Court, after weighing these considerations, permitted the plaintiff to conform her pleadings to the proof by adding a claim under the New York City Human Rights Law, but accepted the defendants' principal argument that they would be prejudiced by the resultant availability of punitive damages, and therefore disallowed any punitive damages claim. In doing so, the Supreme Court did not improvidently exercise its discretion (see 715 Ocean Parkway Owners Corp. v Klagsbrun, 74 AD3d 1314; Bryant v Broadcast Music, Inc., 60 AD3d 799; RCLA, LLC v 50-09 Realty, LLC, 48 AD3d 538, 539; Pansini Stone Setting, Inc. v Crow & Sutton Assoc., Inc., 46 AD3d 784, 786; Dinizio & Cook, Inc. v Duck Cr. Mar. at Three Mile Harbor, Ltd., 32 AD3d 989, 990).

 

Successive SJ

Greene v Sager, 2010 NY Slip Op 08068 (App. Div., 2nd 2010)

Prior to discovery, the Supreme Court denied a motion by the plaintiff and cross motion by the defendants for summary judgment. After discovery, the defendants submitted additional evidence and again moved for summary judgment dismissing the complaint, and the plaintiff cross-moved for summary judgment on the issue of liability. The Supreme Court determined the motion and cross motion on the merits, noting that its previous order denying the parties' motions had been, in effect, without prejudice. Therefore, contrary to the plaintiff's contention, the defendants' motion did not offend the rule against successive motions for summary judgment (see Carella v Reilly & Assoc.,6 AD3d 373, 375; Varsity Tr. v Board of Educ. of City of N.Y., 300 AD2d 38, 39; cf. Sutter v Wakefern Food Corp., 69 AD3d 844, 845).

Bad Discovery Demands = Nuke, not prune

CPLR R. 3124

CPLR § 3126

Board of Mgrs. of the Park Regent Condominium v Park Regent Assoc., 2010 NY Slip Op 08055 (App. Div., 2nd 2010)

The Supreme Court providently exercised its discretion in denying the appellant's motion, inter alia, pursuant to CPLR 3124 and 3126 to compel certain discovery or, in the alternative, to preclude the plaintiff from adducing certain evidence at trial, and granting the plaintiff's cross motion for a protective order vacating his demand for a bill of particulars and inspection. "Where, as here, discovery demands are palpably improper in that they are overbroad, lack specificity, or seek irrelevant or confidential information, the appropriate remedy is to vacate the entire demand rather than to prune it" (Bell v Cobble Hill Health Ctr., Inc., 22 AD3d 620, 620; see Astudillo v St. Francis-Beacon Extended Care Facility, Inc., 12 AD3d 469, 470; Latture v Smith, 304 AD2d 534, 536). "[I]t is not for the courts to correct a palpably bad" discovery demand (Lopez v Huntington Autohaus, 150 AD2d 351, 352).

CPLR § 510 venue properly changed. And other stuff ( R. 511; § 503)

CPLR § 510 Grounds for change of place of trial

Lopez-Viola v Duell, 2010 NY Slip Op 08539 (App. Div., 2nd 2010) 

The Supreme Court improvidently exercised its discretion in denying the defendants' motion to change the venue of the action from Kings County to Montgomery County, where the underlying motor vehicle accident occurred. The papers submitted by the appellants contained (1) the names, addresses, and occupations of two prospective witnesses, both of whom were officers with the Montgomery County Sheriff's Department, (2) the facts to which the witnesses would testify at trial, (3) statements demonstrating that the witnesses are willing to testify, and (4) a statement that the witnesses would be greatly inconvenienced if the venue of the action was not changed (see Walsh v Mystic Tank Lines Corp., 51 AD3d 908; Lafferty v Eklecco, LLC, 34 AD3d 754; Professional Veh. Leasing v Continuing Dev. Servs., 275 AD2d 313). Moreover, the convenience of local government officials is of paramount importance, because they should not be kept from their duties unnecessarily (see Lafferty v Eklecco, LLC, 34 AD3d at 754; Professional Veh. Leasing v Continuing Dev. Servs., 275 AD2d at 313). In contrast, the plaintiff's residence was the only apparent connection to Kings County and, in opposition to the motion, and the plaintiff failed to offer proof that there were any independent witnesses who would be inconvenienced if the action were transferred to Montgomery County.

Myoung Hee Yi v Meitetsu Express, 2010 NY Slip Op 08545 (App. Div., 2nd 2010)

For venue purposes, generally the sole residence of a foreign corporation is the county within the State in which its principal office is located, as designated in its application for authority to conduct business filed with the State of New York, or an amendment thereof (seeCPLR 503[c]; Business Corporation Law § 102[a][10]; Ashjian v Orion Power Holdings, Inc., 9 AD3d 440; Bailon v Avis Rent A Car,270 AD2d 439, 440; Collins v Trigen Energy Corp., 210 AD2d 283). Thus, here, where the general rule applies, New York County was the residence of the defendant Meitetsu Express, a California corporation authorized to do business in New York State, as that was the county designated in its application for authority. Accordingly, since none of the parties maintained a residence in Queens County, the plaintiff's designation of Queens County as the place of trial was improper, and the Supreme Court erred in denying the defendants' motion for a change of venue from Queens County to Nassau County, where the plaintiff and the individual defendant resided and the accident occurred. 

Moracho v Open Door Family Med. Ctr., Inc., 2010 NY Slip Op 0938 (App. Div., 1st 2010)

While there is no statutory time limit for a motion to change venue upon dismissal of a party whose residence provided the basis for venue, this Court has nonetheless required that such motions be made promptly (Clase v Sidoti, 20 AD3d 330 [2005]; Caplin v Ranhofer, 167 AD2d 155, 157-58 [1990]), that is, within a reasonable time after the movant obtains knowledge of the facts supporting the request (Herrera v R. Conley Inc., 52 AD3d 218 [2008]; Diaz v Clock Tower Assoc., 271 AD2d 290 [2000]). It also bears noting that a party need not wait for notice of entry of the order dismissing the improper party before it moves for a change of venue (see Emerick v Metropolitan Transp. Auth., 272 AD2d 150 [2000] [venue motion made simultaneous with dismissal motion]).

Here, defendants may have been aware as early as February 28, 2008, fifteen months before making their motion, that Primary Care Development Corporation, the sole defendant on whose residence venue in New York County was based, sought dismissal of the action against it [FN1]. Thereafter, Primary Care's September 2008 dismissal motion, made more than eight moths prior to the other defendants' venue applications, was unopposed. By order entered March 4, 2009, the court dismissed Primary Care from the case. In its order, the court explicitly stated that [*2]"none of the remaining parties has any connection to New York County and that [the] case is therefor amenable to a motion to change venue".

Notwithstanding this pronouncement, the remaining defendants waited an additional three months, during which time they appeared in New York County and set a trial date, without giving any indication of a venue problem. Two months after the trial date was set, the motion was made to change venue to Westchester. Given these circumstances, the grant of the motion was an improvident exercise of discretion and an implicit endorsement of careless motion practice, in disregard of the important principles of fair notice and judicial economy (see e.g. Herrera v R. Conley Inc., 52 AD3d 218 [2008]; Schwarz v Erpf Estate, 232 AD2d 316 [1996]; see also Litt v Balmer, 146 AD2d 559 [1989] [that trial date had been set was factor supporting finding that granting untimely venue change was abuse of discretion]).

There is a dissent.

 

CPLR § 1024 John and Jane Doe

CPLR § 1024 Unknown parties

Thas v Dayrich Trading, Inc., 2010 NY Slip Op 08930 (App. Div., 2nd 2010)

"While CPLR 1024 allows a party who is ignorant of the name or identity of one who may properly be made a party to proceed by designating so much of his identity as is known, a summons served in a "John Doe" form is jurisdictionally sufficient only if the actual defendants are adequately described and would have known, from the description in the complaint, that they were the intended defendants"(Lebowitz v Fieldston Travel Bur., 181 AD2d 481, 482 [citation and internal quotation marks omitted]). Accordingly, that branch of the defendants' motion which was to vacate the default of the defendant John Doe in appearing or answering the complaint was properly granted since the summons was jurisdictionally insufficient with respect to John Doe, an unidentified person not adequately described in the complaint (see Carmer v Odd Fellows, 66 AD3d 1435; Olmsted v Pizza Hut of Am., Inc., 28 AD3d 855; Lebowitz v Fieldston Travel Bur.,181 AD2d 481). 

CPLR R. 3211(a)(7) and Res Judicata

Pereira v St. Joseph's Cemetery, 2010 NY Slip Op 08917 (App. Div., 2nd 2010)

"Where a dismissal does not involve a determination on the merits, the doctrine of res judicata does not apply" (Djoganopoulos v Polkes, 67 AD3d 726, 727; see Asgahar v Tringali Realty, Inc., 18 AD3d 408; Sclafani v Story Book Homes, 294 AD2d 559, 559-560). As a general rule, a [*2]dismissal for failure to state a cause of action is not on the merits and, thus, will not be given res judicata effect (see Maitland v Trojan Elec. & Mach. Co., 65 NY2d 614, 615; Asgahar v Tringali Realty, Inc., 18 AD3d at 408; see also Sullivan v Nimmagadda, 63 AD3d 908, 909). Here, our prior dismissal was not on the merits and, consequently, the doctrine of res judicata was not a bar to the plaintiff's second action.

CPLR § 325

CPLR § 325

Goodwin v Rice, 2010 NY Slip Op 09103 (App. Div., 2nd 2010)

The Supreme Court and the Surrogate's Court have concurrent jurisdiction over the administration of a decedent's estate (see Cipo v Van Blerkom, 28 AD3d 602; Gaentner v Benkovich, 18 AD3d 424, 428). "However, [w]herever possible, all litigation involving the property and funds of a decedent's estate should be disposed of in the Surrogate's Court'" (Cipo v Van Blerkom, 28 AD3d at 602, quotingNichols v Kruger, 113 AD2d 878, 878-879; see Hollander v Hollander, 42 AD2d 701; cf. Gaentner v Benkovich, 18 AD3d at 428). The Supreme Court, upon motion, may transfer an action to the Surrogate's Court "[w]here an action pending in the supreme court affects the administration of a decedent's estate which is within the jurisdiction of the surrogate's court" (CPLR 325[e]; see NY Const, Art VI, §§ 12[f], 19[a]). The plaintiff commenced this action in her [*2]capacity as preliminary executor of the decedent's estate, and seeks to recover in this action, inter alia, funds the defendants allegedly owe to the estate. As such, determination of this action "affects the administration of the decedent's estate" (see CPLR 325[e]; Cipo v Van Blerkom, 28 AD3d at 602; Birnbaum v Central Trust Co., 156 AD2d 309, 310; Burmax Co. v B & S Indus., 135 AD2d 599, 601-602; Nichols v Kruger, 113 AD2d 878; Hollander v Hollander, 42 AD2d at 701). Moreover, transfer to the Surrogate's Court will "foster judicial economy and lead to an expedited settlement of the [decedent's] estate," as a separate action involving the estate is ongoing in Surrogate's Court (Burmax Co. v B & S Indus., 135 AD2d at 601-602; see Birnbaum v Central Trust Co., 156 AD2d at 310). Accordingly, the Supreme Court properly exercised its power under article VI, section 19(a) of the New York State Constitution to grant the defendants' cross motion pursuant to CPLR 325(e) to transfer this action to the Surrogate's Court, Nassau County (see Benjamin v Morgan Guar. Trust Co. of N.Y., 173 AD2d 373, 374; Peekskill Community Hosp. v Sayres, 88 AD2d 657).

 

On Vacatur CPLR R. 5015 & § 317

CPLR R. 5015 Relief from judgment or ordersummons to the door

CPLR § 317 Defense by person to whom summons not personally delivered

C&H Import & Export, Inc. v MNA Global, Inc., 2010 NY Slip Op 09205 (App. Div., 2nd 2010)

The plaintiff demonstrated its entitlement to a default judgment against the appellants, MNA Global, Inc. (hereinafter MNA), and Menashe Amitay, an officer of MNA, by submitting proof of service of the summons and complaint, proof of the facts constituting its claim, and proof of the appellants' defaults in answering or appearing (see CPLR 3215[f]; Mercury Cas. Co. v Surgical Ctr. at Milburn, LLC, 65 AD3d 1102). In opposition to the plaintiff's motion, the appellants alleged that the Supreme Court lacked personal jurisdiction over them (see CPLR 5015[a][4]). The process server's affidavits of service constituted prima facie evidence of proper service upon Amitay pursuant to CPLR 308(2) and upon MNA pursuant to CPLR 311(a)(1) (see Beneficial Homeowner Serv. Corp. v Girault, 60 AD3d 984;McIntyre v Emanuel Church of God In Christ, Inc., 37 AD3d 562). The unsubstantiated denials by Amitay that neither he nor MNA were served with the summons and complaint were insufficient to rebut the presumption of proper service (see Pezolano v Incorporated City of Glen Cove, 71 AD3d 970; Sturino v Nino Tripicchio & Son Landscaping, 65 AD3d 1327; Sime v Ludhar, 37 AD3d 817). Notably, Amitay failed to submit any affidavit by the person upon whom process was allegedly served pursuant to CPLR 308(2) denying receipt of the summons and complaint (see Roberts v Anka, 45 AD3d 752, 754; Foster v Jordan, 269 AD2d 152; cf. Lattingtown Harbor Prop. Owners Assn., Inc. v Agostino, 34 AD3d 536, 538). Furthermore, Amitay did not deny that the individual described in the affidavit with respect to service of MNA was a managing agent of MNA (see SFR Funding, Inc. v Studio Fifty Corp., 36 AD3d 604; Ralph DiMaio Woodworking Co. v Ameribuild Constr. Mgt., 300 AD2d 558). The appellants offered no other excuse for their defaults in answering the complaint (see CPLR 5015[a][1]). [*2]

Even if that branch of the appellants' cross motion which sought, in effect, to vacate their default was treated as one made pursuant to CPLR 317 (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 143; Irwin Mtge. Corp. v Devis, 72 AD3d 743; Mann-Tell Realty Corp. v Cappadora Realty Corp., 184 AD2d 497), the appellants failed to demonstrate that they did not receive notice of the summons and complaint in time to defend the action (see Irwin Mtge. Corp. v Devis, 72 AD3d 743; Sturino v Nino Tripicchio & Son Landscaping, 65 AD3d 1327). The plaintiff's evidence that a copy of the summons and complaint was mailed to Amitay's correct residence address created a presumption of proper mailing and of receipt (see Engel v Lichterman, 62 NY2d 943; Cavalry Portfolio Servs., LLC v Reisman, 55 AD3d 524). His mere denial of receipt, without more, did not rebut the presumption of proper mailing (see Cavalry Portfolio Servs., LLC v Reisman, 55 AD3d at 525; De La Barrera v Handler, 290 AD2d 476; Udell v Alcamo Supply & Contr. Corp., 275 AD2d 453).

The Supreme Court also properly denied that branch of the appellants' cross motion which sought, in effect, an extension of time to serve a late answer pursuant to CPLR 3012(d), as they did not establish a reasonable excuse for their failure to timely serve an answer (see 599 Ralph Ave. Dev., LLC v 799 Sterling Inc., 34 AD3d 726; Elite Limousine Plus v Allcity Ins. Co., 266 AD2d 259).