Category: CPLR

CPLR R. 3016(b) with particularity

CPLR R. 3016 Particularity in specific actions

Nicosia v Board of Mgrs. of the Weber House Condominium, 2010 NY Slip Op 07254 (App. Div., 1st 2010)

Plaintiff's fraud claim should be dismissed for the additional reason that it is not pleaded with particularity (CPLR 3016[b]). A cause of action for fraud requires plaintiff to plead: (1) a material misrepresentation of a fact, (2) knowledge of its falsity, (3) an intent to induce reliance, (4) justifiable reliance and (5) damages (Eurycleia Partners, LP v Seward & Kissel, LLP, 12 NY3d 553, 559 [2009]). Plaintiff's complaint is bare-bones. Among other deficiencies, plaintiff does not allege how he learned that the Board was purporting to exercise its right of first refusal. Plaintiff attaches an August 6, 2007 letter that the Board sent to Axminster's attorney stating that the Board was electing to exercise its right of first refusal. However, plaintiff does not articulate who communicated this information to him or when he received this information. Thus, we are left to guess that somehow Axminster's attorney communicated the Board's decision to plaintiff at some point. Plaintiff also does not explain how he relied to his detriment on the Board's alleged exercise of its right of first refusal. While we can suppose that plaintiff's reliance somehow involved his refraining from taking steps to enforce the closing, it is not for us to interject our supposition into plaintiff's pleading. Nor is it our place to explain what damages might have flowed from the failure to close. The dissent points to allegations from the tortious interference cause of action where plaintiff alleges that because of defendants' wrongful conduct, "plaintiff's contract with Axminster to purchase the Unit was not consummated." However, this language does not appear in plaintiff's cause of action for fraud. And, even if it did, this language would hardly satisfy the CPLR 3016(b) requirement that the facts constituting the fraud "be stated in detail." Certainly, what plaintiff did or did not do after learning that the Board was exercising its right of first refusal, and what damages flowed from that action or inaction, are within plaintiff's purview.

While the dissent may be correct that plaintiff can prevail on his fraud claim "if Axminster reasonably relied on the misrepresentation in selling the unit to Kesy," plaintiff has not alleged this. Rather, plaintiff's allegations concerning Axminster are more nefarious — that Axminster directly breached its duties to plaintiff by failing to perform "its required due diligence to determine if the sale to KESY was in accordance with the By-laws."

Thus, the facts of this case could very well eventually support a fraud claim. However, plaintiff has not pleaded these facts sufficiently and, unlike the dissent, we decline to speculate and infer the facts for him, especially given our liberal rules regarding amendment of pleadings.

The bold is mine.

 

Settled without a stipulation. How does it get back on the calendar?

Santana v Vargas, 2010 NY Slip Op 07160 (App. Div., 2nd 2010)

Contrary to the defendants' contention, the action was not marked "off" or stricken from the trial calendar within the meaning of CPLR 3404 (see Freehill v ITT Sheraton Corp., 74 AD3d 876; Long-Waithe v Kings Apparel Inc., 10 AD3d 413, 414). Rather, the Supreme Court's order dated June 1, 2007, indicates that the case was marked "settled" after the parties reached a tentative agreement. Accordingly, CPLR 3404 is inapplicable (see Long-Waithe v Kings Apparel Inc., 10 AD3d at 413; Baez v Kayantas, 298 AD2d 416), and the plaintiff was not required to demonstrate a reasonable excuse, meritorious cause of action, lack of intent to abandon, and lack of prejudice in order to have the matter restored to the active trial calendar (see Long-Waithe v Kings Apparel Inc., 10 AD3d at 41

The bold is mine.

Forum Non Con (CPLR R. 327)

CPLR R. 327 Inconvenient forum

Matter of OxyContin II, 2010 NY Slip Op 06636 (App. Div., 2nd 2010)

ORDERED that the order is reversed, on the law, on the facts, and in the exercise of discretion, with costs, and the defendants' motion pursuant to CPLR 327(a) to dismiss the complaints of the plaintiffs who reside outside of New York State is granted on condition that the defendants stipulate (1) that they will accept service of process in newly commenced out-of-state actions upon the same causes of action as those asserted in the instant complaints by the out-of-state plaintiffs; (2) that they will waive any defenses which were not available to them in New York at the time of service upon them of a copy of this decision and order; (3) that each deposition of any of their home-office employees taken by a plaintiff's counsel may be cross-noticed and deemed to be taken in all of the cases of that counsel; and (4) that, in the new forum, they will not raise any objection to having their home-office employees appear for deposition or trial on the ground of venue or location of the lawsuit; the out-of-state plaintiffs' time to commence the new actions shall [*2]be within 90 days after service of the stipulation upon the plaintiffs; and it is further,

ORDERED that the defendants' time to stipulate shall be within 30 days after service upon them of a copy of this decision and order; in the event that the defendants fail to so stipulate, then the order is affirmed, with costs.

****

The Court of Appeals has said that, "[o]rdinarily, nonresidents are permitted to enter New York courts to litigate their disputes as a matter of comity. Obviously, however, our courts are not required to add to their financial and administrative burdens by entertaining litigation which does not have any connection with this State. The common-law doctrine of forum non conveniens, also articulated in CPLR 327, permits a court to . . . dismiss such actions where it is determined that the action, although jurisdictionally sound, would be better adjudicated elsewhere" (Islamic Republic of Iran v Pahlavi, 62 NY2d 474, 478-479 [footnote omitted]). The Supreme Court held that the actions brought by the nonresident plaintiffs should be adjudicated in New York State. We disagree and reverse, because we conclude that, although jurisdictionally sound, the actions brought by the nonresidents would be better adjudicated elsewhere.

On a motion to dismiss on the ground of forum non conveniens, the burden is on the defendant challenging the forum to demonstrate that considerations relevant to private or public interest militate against accepting or retaining the litigation (see Prestige Brands, Inc. v Hogan & Hartson, LLP, 65 AD3d 1028, 1029; Stravalle v Land Cargo, Inc., 39 AD3d 735, 736). "Among the factors the court must weigh are the residency of the parties, the potential hardship to proposed witnesses including, especially, nonparty witnesses, the availability of an alternative forum, the situs of the underlying actionable events, the location of evidence, and the burden that retention of the case will impose upon the New York courts" (Turay v Beam Bros. Trucking, Inc., 61 AD3d 964, 966; see Jackam v Nature's Bounty, Inc., 70 AD3d 1000, 1001; Tiger Sourcing [HK] Ltd. v GMAC Commercial Fin. Corporation-Can., 66 AD3d 1002, 1003). Also of importance, inter alia, is the extent to which the defendant will face particular difficulties in litigating the claim in this State (see Banco Ambrosiano v Artoc Bank & Trust, 62 NY2d 65, 73;Varkonyi v S.A. Empresa De Viacao Airea Rio Grandense [Varig], 22 NY2d 333, 338; Waterways Ltd. v Barclays Bank PLC, 174 AD2d 324, 327). In this case, these considerations weigh heavily against retaining the actions of the nonresident plaintiffs.

There is no significant dispute that the Oxycontin involved was not manufactured in New York, and the defendant's corporate offices are not located in this State. None of the nonresident plaintiffs purchased Oxycontin in New York, none ingested the drug here and, importantly, none received treatment for alleged resulting injuries in this State. Consequently, witnesses with critical information on both proximate cause and damages do not reside in New York. That fact presents substantial difficulties for the defendants inasmuch as New York courts lack the authority to subpoena out-of-state nonparty witnesses (see Judiciary Law § 2-b[1]; Wiseman v American Motors Sales Corp., 103 AD2d 230, 234 ["service of a subpoena on a nonparty witness outside this State is void because no authorization for such service exists"]). Moreover, "[u]nder[*3]established conflict of laws principles, the applicable law should be that of the jurisdiction which, because of its relationship or contact with the occurrence or the parties, has the greatest concern with the specific issue raised in the litigation'" (Matter of Doe, 14 NY3d 100, 109, quotingBabcock v Jackson, 12 NY2d 473, 481; see King v Car Rentals, Inc., 29 AD3d 205, 208). Thus, inasmuch as the hundreds of nonresident plaintiffs come from almost all of the 50 states and Puerto Rico, should New York courts retain those cases, they might well be called upon to apply different principles of law to identical claims. Moreover, under the circumstances presented here, we can find no strong counterbalancing consideration for retaining the cases of the out-of-state plaintiffs in our courts. Consequently, we find that the Supreme Court improvidently exercised its discretion in denying the defendant's motion to dismiss. Nevertheless, in order to ensure the availability of a forum for the claims of the nonresident plaintiffs, our reversal is conditioned on the defendants' entering into a stipulation as indicated herein (see Jackam v Nature's Bounty, Inc., 70 AD3d at 1002; Turay v Beam Bros. Trucking, Inc., 61 AD3d at 967; Brinson v Chrysler Fin., 43 AD3d 846, 848). 

The bold is mine.

Same effect, but different cause. CPLR R. 3216

CPLR R. 3216 Want of prosecution

CPLR § 2004 Extensions of time generally

Sicoli v Sasson, 2010 NY Slip Op 06625 (App. Div., 2nd 2010)

The recertification order of the Supreme Court dated July 16, 2008, directing the plaintiffs to file a note of issue within 90 days and warning that the action would be deemed dismissed without further order of the court if the plaintiffs failed to comply with that directive, had the same effect as a valid 90-day notice pursuant to CPLR 3216 (see Rodriguez v Five Towns Nissan, 69 AD3d 833; Petersen v Lysaght, Lysaght & Kramer, P.C., 47 AD3d 783; Sustad v Karagiannis, 305 AD2d 664). Having received a 90-day notice, the plaintiffs were required either to file a timely note of issue or to move, before the default date, for an extension of time pursuant to CPLR 2004 (see Bokhari v Home Depot U.S.A., 4 AD3d 381, 382; Apicella v Estate of Apicella, 305 AD2d 621; Aguilar v Knutson, 296 AD2d 562). The plaintiffs did neither.

To avoid the dismissal of the action, the plaintiffs were required to demonstrate a reasonable excuse for their failure to comply with the recertification order and the existence of a potentially meritorious cause of action (see Rodriguez v Five Towns Nissan, 69 AD3d 833; Bokhari[*2]v Home Depot U.S.A., 4 AD3d 381, 382; Sustad v Karagiannis, 305 AD2d 664). Even assuming that the plaintiffs provided a reasonable excuse for their default (see CPLR 2005; Giannoccoli v One Cent. Park W. Assoc., 15 AD3d 348, 349; Betty v City of New York, 12 AD3d 472, 473-474; Association for Children with Learning Disabilities, Nassau Ch. v Zafar, 115 AD2d 580, 581), they failed to demonstrate a potentially meritorious cause of action. The affirmation of the plaintiffs' medical expert was insufficient to demonstrate that the causes of action alleging medical malpractice and lack of informed consent were potentially meritorious, since, inter alia, the medical expert failed to establish that his opinions were grounded in facts appearing in the hospital or medical records (see Bollino v Hitzig, 34 AD3d 711; Perez v Astoria Gen. Hosp., 260 AD2d 457, 458; Nepomniaschi v Goldstein, 182 AD2d 743, 744). Accordingly, the Supreme Court properly granted the motions, in effect, pursuant to CPLR 3216 to dismiss the action and properly denied the plaintiffs' cross motion to extend the time to serve and file a note of issue. 

The bold is mine.  Note that the Appellate Division says that it has the same effect as a "valid" 90-day notice.  Look at the requirements for a valid 90-day notice.  The recertification order is missing something.  Lisa Solomon and Marshall R. Isaacs wrote about this not too long ago.

 

No money to hire an attorney. To bad so sad. CPLR R. 5015

CPLR R. 5015 Relief from judgment or order

O'Donnell v Frangakis, 2010 NY Slip Op 06622 (App. Div., 2nd 2010)

A defendant seeking to vacate an order or judgment entered upon his or her default in appearing and answering the complaint must demonstrate a reasonable excuse for [his or her] delay in appearing and answering the complaint and a potentially meritorious defense to the action (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141; see CPLR 5015[a][1]; Gray v B.R. Trucking Co., 59 NY2d 649, 650; Li Gang Ma v Hong Guang Hu, 54 AD3d 312; Verde Elec. Corp. v Federal Ins. Co., 50 AD3d 672; Cooney v Cambridge Mgt. & Realty Corp., 35 AD3d 522). The defendant's excuses that her insurer denied and disclaimed coverage and that she could not initially afford an attorney were insufficient to excuse her lengthy delay in appearing (see Matter of Nieto, 70 AD3d 831; Toland v Young, 60 AD3d 754;Robinson v 1068 Flatbush Realty, Inc., 10 AD3d 716, 717; Rottenberg v Lerner, 232 AD2d 395). In view of the lack of a reasonable excuse, it is unnecessary to consider whether the defendant sufficiently demonstrated the existence of a potentially meritorious defense (see Toland v Young, 60 AD3d 754; Levi v Levi, 46 AD3d 519, 520; Segovia v Delcon Constr. Corp., 43 AD3d 1143, 1144). Accordingly, the defendant's motion should have been denied. 

The bold is mine.

If the insurer denied and disclaimed coverage, how will plaintiff get paid.  The Appellate DIvision cites to cases where the party claiming lack of funds failed to provide sufficient proof, so it isn't always a too bad so sad situation.  But what proof would the court need?  Tax returns?

Substantial Compliance with Discovery demands is not Willful and Contumacious

In this case.  I'm sure there are exceptions.  But generally, substantial compliance contraindicates an argument that a party's conduct was willful and contumacious.

CPLR § 3126 Penalties for refusal to comply with order or to disclose

Lomax v Rochdale Vil., Inc., 

Pursuant to CPLR 3126, "[a] court may strike an answer as a sanction if a defendant refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed'" (Mazza v Seneca, 72 AD3d 754, 754, quoting CPLR 3126). While the nature and degree of the penalty to be imposed pursuant to CPLR 3126 lies within the sound discretion of the trial court (see CPLR 3126[3];Kihl v Pfeffer, 94 NY2d 118, 122-123; Bernal v Singh, 72 AD3d 716, 717), the drastic remedy of striking a pleading is not appropriate absent a clear showing that the failure to comply with discovery demands is willful or contumacious (see CPLR 3126[3]; Moray v City of Yonkers, 76 AD3d 618).

Here, there was no clear showing that the defendants' conduct was willful or contumacious (see Dank v Sears Holding Mgt. Corp., 69 AD3d 557). Rather, the defendants substantially complied with their discovery obligations and, where demanded documents could not be found, the defendants provided affidavits showing that good faith efforts had been made to locate the documents (see Argo v Queens Surface Corp., 58 AD3d 656, 656-657; Maffai v County of Suffolk, 36 AD3d 765, 766; Sagiv v Gamache, 26 AD3d 368, 369). Accordingly, it was an improvident exercise of discretion to strike the answer. 

Motions to strike, generally, are just an easy way to bill or aggravate the other party, serving no useful purpose.

CPLR § 212(a) “Under the law that existed at the time…”

CPLR § 212 Actions to be commenced within ten years
(a) Possession necessary to recover real property

Asher v Borenstein, 2010 NY Slip Op 06611 (App. Div., 2nd 2010)

In July 2008, Real Property Actions and Proceedings Law §§ 501, 522, and 543 were amended. The amendments applied solely to those actions commenced after July 7, 2008. Since the plaintiff commenced this action prior to July 7, 2008, those amendments are not applicable to this action.

Under the law as it existed at the time that the plaintiff filed her lawsuit, where a claim of adverse possession was not based upon a written document, the plaintiff had to demonstrate that she "usually cultivated, improved, or substantially enclosed the land" (Walsh v Ellis, 64 AD3d 702, 703; see former RPAPL former 522). Moreover, the plaintiff had to establish that her possession of the disputed parcel was "(1) hostile and under claim of right; (2) actual; (3) open and notorious; (4) exclusive; and (5) continuous for the required period" (Walling v Przybylo, 7 NY3d 228, 232; see Walsh v Ellis, 64 AD3d 702). We agree with the Supreme Court that the plaintiff satisfied these requirements.

Here, the defendants admitted that the fence between the two properties encroached approximately three feet onto their property and stood in the same location from the time they purchased their property in 1996 until the plaintiff brought suit, and that they were aware that the fence was not on the true property line when they took possession of their property. Nevertheless, from 1996 through 2008, the defendants took no action to eject the plaintiff. Accordingly, the defendants have conceded, through their admissions and their actions, that the plaintiff continually possessed the property for the 10-year statutory period (see Walling v Przybylo, 7 NY3d at 232; CPLR 212[a]).

The law as it existed at the time that the plaintiff filed her lawsuit made it clear that even "actual knowledge that another person is the title owner does not, in and of itself, defeat a claim of right by an adverse possessor" (Walling v Przybylo, 7 NY3d at 230; see Merget v Westbury Props., LLC, 65 AD3d 1102, 1105). Instead, "[c]onduct will prevail over knowledge, particularly when the true owners have acquiesced in the exercise of ownership rights by the adverse possessors" (Walling v Przybylo, 7 NY3d at 232-233; see Hall v Sinclaire, 35 AD3d 660, 663). Accordingly, the question of whether the plaintiff was aware that her fence encroached upon the defendants' property is immaterial to her proof of the element of hostility in this matter.

For actions commenced prior to July 7, 2008, "[t]he type of cultivation or improvement sufficient to satisfy the statute will vary with the character, condition, location and potential uses for the property" (Birnbaum v Brody, 156 AD2d 408, 408; see former RPAPL 522[1]). Here, the plaintiff's cultivation and improvement of the disputed parcel, consisting of maintaining the grass, planting shrubs, and installing a walkway, was consistent with the use to which a " thrifty owner[]'" would put comparable property (Ray v Beacon Hudson Mtn. Corp., 88 NY2d 154, 160, quoting Ramapo Mfg. Co. v Mapes, 216 NY 362, 373; see former RPAPL 522[1]; Birnbaum v Brody, 156 AD2d at 408-409; see also 2 N. St. Corp. v Getty Saugerties Corp., 68 AD3d 1392, 1394-1395; but see Giannone v Trotwood Corp., 266 AD2d 430, 431). In addition, the presence of the fence for the statutory period constituted a substantial enclosure of the disputed parcel (see former RPAPL 522[2]; Morris v DeSantis, 178 AD2d 515, 516; Birnbaum v Brody, 156 AD2d at 409).

Since the record demonstrates by clear and convincing evidence, under the law existing at the time this action was commenced, that the plaintiff cultivated or improved the subject parcel, enclosed it with a fence, and satisfied the elements of adverse possession, and the defendants "acquiesce[d] . . . in the exercise of an obvious adverse or hostile ownership through the statutory period" (Walling v Przybylo, 7 NY3d at 232 [internal quotation marks omitted]), the Supreme Court properly determined that the plaintiff acquired title to the disputed parcel via adverse possession.

The bold is mine.

CPLR § 3101 (facebook/myspace)

CPLR  3101 Scope of disclosure

Lentz v Nic's Gym Inc., 2010 NY Slip Op 06620 (App. Div., 2nd 2010)

CPLR 3101(a) is to be construed liberally so that there should be disclosure of any material that is even arguably relevant (see Shanahan v Bambino, 271 AD2d 519). However, "unlimited disclosure is not required, and supervision of disclosure is generally left to the trial court's broad discretion" (Palermo Mason Constr. v Aark Holding Corp., 300 AD2d 460, 461 [internal quotation marks omitted]; see Silcox v City of New York, 233 AD2d 494). The essential test is one based on "usefulness and reason" (Andon v 302-304 Mott St. Assoc., 94 NY2d 740, 746 [internal quotation marks omitted]). Here, the Supreme Court providently exercised its discretion in granting that branch of the plaintiff's motion which was to direct the defendant to allow the plaintiff to inspect the gym mats which allegedly caused her to fall and sustain injuries, and in denying the defendant's cross motion for a protective order.

And here is a recent decision on interweb discovery. Look for many more in the future. 

Romano v Steelcase Inc., 2010 NY Slip Op 06620 (Supreme Court, Suffolk County 2010)

The present application was brought on by Order to Show Cause. The Court has reviewed the submissions both in favor of and in opposition to the relief sought, as well as the applicable federal statutory law, specifically the Stored [*2]Communications Act, 18 U.S.C. ¶ 2701 et seq., which prohibits an entity, such as Facebook and MySpace from disclosing such information without the consent of the owner of the account (see, 18 U.S.C. ¶ 2702(b)(3); Flagg v City of Detroit, 252 FRD 352 [ED Mich 2008]).

You can read more over at NFP.

“CPLR 3216 ‘is extremely forgiving of litigation delay'”

CPLR R. 3216 Want of prosecution

Umeze v Fidelis Care N.Y., 2010 NY Slip Op 06603 (App. Div., 1st 2010)

"When served with a 90-day demand pursuant to CPLR 3216, it is incumbent upon a plaintiff to comply with the demand by filing a note of issue or by moving, before the default date, to either vacate the notice or extend the 90-day period" (Primiano v Ginsberg, 55 AD3d 709, 709 [2008]; see Serby v Long Is. Jewish Med. Ctr., 34 AD3d 441 [2006], lv denied 8 NY3d 805 [2007]). Here, having done neither, to avoid dismissal, this pro se plaintiff was required to show both a "justifiable excuse for the delay and a good and meritorious cause of action" (CPLR 3216[e]). Furthermore, CPLR 3216 "is extremely forgiving of litigation delay" (Baczkowski v Collins Constr. Co., 89 NY2d 499, 503 [1997]), and "[t]he nature and degree of the penalty to be imposed on a motion to dismiss for want of prosecution is a matter of discretion with the court" (Espinoza v 373-381 Park Ave. S., LLC, 68 AD3d 532, 533 [2009]).

Based on the foregoing principles and under the circumstances presented, the motion court did not abuse its discretion in granting the motion to dismiss conditioned on plaintiff resuming prosecution of the action within 10 days of service of the order with notice of entry. Plaintiff's attempts to obtain counsel twice during this litigation indicate that there was no intent to abandon the action (see e.g. Di Simone v Good Samaritan Hosp., 100 NY2d 632, 633-634 [2003]). This includes that, in response to the 90-day notice, plaintiff contacted an attorney who, in a September 15, 2008 letter, stated that his firm was considering substituting for the "pro se plaintiff" and requested an additional 30 days to decide whether to take the case. Thus, plaintiff clearly met with an attorney in an attempt to resume this litigation. There is also evidence in the record that counsel for the defense refused to call back plaintiff's initial counsel. Contrary to defendants' contention, the "complaint, verified by plaintiff on the basis of personal knowledge and which detailed [the defendants'] acts of negligence, was a sufficient affidavit of merits" (Salch v Paratore, 60 NY2d 851, 852-53 [1983]).

All concur except Gonzalez, P.J. and Catterson, J. who dissent in a [*2]memorandum by Catterson, J. as follows:

 

CATTERSON, J. (dissenting)

I must respectfully dissent because in my opinion, the motion court improvidently exercised its discretion by allowing the plaintiff additional time after he failed to file a note of issue in response to the defendants' 90-day demand, and failed to proffer a justifiable excuse for not so doing. Specifically, I disagree with the majority's reliance on the Court of Appeals' observation in Baczkowski v. Collins Constr. Co. (89 N.Y.2d 499, 503, 655 N.Y.S.2d 848, 850, 678 N.E.2d 460, 462 (1997)) that CPLR 3216 is "extremely forgiving of litigation delay." The Court's observation is made upon the recitation of precisely those statutory requirements – filing the note of issue or tendering a justifiable excuse for not so doing — with which the plaintiff in this case failed to comply.

Make sure to click on the case to read the remainder of the dissent.  The bold is mine.

CPLR § 511(b) Sufficiency of affidavit can’t be weighed, but contents may be considered.

CPLR § 503 Venue based on residence

CPLR § 510 Grounds for change of place of trial

CPLR R. 511 Change of place of trial 

HVT, Inc. v Safeco Ins. Co. of Am., 2010 NY Slip Op 06571 (App. Div., 2nd 2010)

On this appeal, we must determine whether an affidavit served by a plaintiff in accordance with CPLR 511(b) may be scrutinized to ensure that it does, in fact, "show[ ] either that the county specified by the defendant is not proper or that the county designated by him is proper," or if the mere service of such an affidavit, irrespective of its content, satisfies the plaintiff's burden. We hold that, while the sufficiency of the factual averments set forth in such affidavits may not be weighed, the contents of the affidavits may nonetheless be considered to confirm that the averments therein do indeed "show[ ] either that the county specified by the defendant is not proper or that the county designated by [the plaintiff] is proper" as required by the statute (CPLR 511[b]).

It's a long decision, but it's worth reading.  I'll add more later.