Category: CPLR

Service round-up

CPLR § 306-b. Service of the summons and complaint, summons with
notice, third-party summons and complaint, or petition with a notice of
petition or order to show cause

CPLR § 312-a Personal service by mail
(a) Service
(b) Completion of service and time to answer

CPLR § 301 Jurisdiction over persons, property, or status

CPLR § 302 Personal Jurisdiction by acts of non-domiciliaries

CPLR
§ 308 Personal service upon a natural person
(4) Nail and Mail

CPLR R. 305 Summons; supplemental summons, amendment

I had less of these laying around than I thought.

JPMorgan Chase Bank, N.A. v Szajna, 2010 NY Slip Op 03286 (App. Div., 2nd, 2010)

The process server retained by the plaintiff made three attempts to
serve the defendant at his dwelling. Contrary to the defendant’s
contention, the three attempts to serve him at his dwelling at different
times and on different days, including an attempt on an early weekday
morning and an attempt during midday Saturday, were sufficient to
constitute “due diligence” within the meaning of CPLR 308(4) (see County of Nassau v Gallagher, 43 AD3d 972,
973-974; Johnson v Waters, 291 AD2d 481; Matos v Knibbs, 186
AD2d 725; Mitchell v Mendez, 107 AD2d 737, 738). Since there was
no indication that the defendant worked Saturdays or that his workplace
was readily ascertainable, the plaintiff was not required to attempt to
serve the defendant at his workplace (see Johnson v Waters, 291
AD2d 481; Matos v Knibbs, 186 AD2d 725; Mitchell v Mendez, 107
AD2d at 738; cf. Pizzolo v Monaco, 186 AD2d 727). Accordingly,
the process server properly resorted to service of process pursuant to
CPLR 308(4), and the defendant’s motion to vacate the default judgment
for lack of jurisdiction was properly denied.

Klein v Educational Loan Servicing, LLC, 2010 NY Slip Op 02519 (App. Div., 2nd, 2010)

Here, the defendants did not seek dismissal of the complaint insofar
as asserted against the corporate defendants on the ground of lack of
jurisdiction under either CPLR 301 or 302. Rather, the defendants
contended that the complaint should be dismissed insofar as asserted
against the corporate defendants based on improper service of process.
By failing to contend that there was no jurisdiction under either CPLR
301 or 302 over the corporate defendants in their cross motion, the
defendants waived their challenge to whether the corporate defendants
were subject to personal jurisdiction (see Weisener v Avis
Rent-A-Car, 182 AD2d 372, 373; Hatch v Tu Thi Tran, 170 AD2d
649, 650; Boswell v Jiminy Peak, 94 AD2d 782, 783).

Nevertheless, the plaintiff’s motion for leave to enter a default
judgment should have been denied and the complaint dismissed as against
all defendants since the plaintiff failed to present proof of valid
service of the summons and complaint as required by CPLR 312-a(a) and
(b). The plaintiff submitted evidence that he served the defendants by
certified mail, return receipt requested. However, he presented no
evidence that copies of the summons and complaint were sent to the
defendants, by first-class mail, together with, inter alia, two copies
of a statement of service by mail and acknowledgment of receipt, and
that the signed acknowledgment of receipts were mailed or delivered to
the plaintiff (see CPLR 312-a[a], [b]). In the absence of proper
service, no personal jurisdiction was acquired over the defendants (see
Bennett v Acosta, 68 AD3d 910; Horseman Antiques, Inc. v Huch, 50
AD3d 963, 964; Dominguez v Stimpson Mfg. Corp., 207 AD2d 375,
375).

Continue reading “Service round-up”

Venue and Consolidation

Grinman v Alamo Rent A Car, Inc., 2010 NY Slip Op 03067 (App. Div., 2nd, 2010)

The Supreme Court did not improvidently exercise its discretion in granting the motion of the defendants Highland Trans Fleet and Manuel Rebelo and that branch of the cross motion of the defendants Alamo Rent A Car, Inc., National Car Rental, Inc., and Inna Grinman which were to change the venue of the action from Kings County to Steuben County where the underlying motor vehicle accident occurred. The affirmations of the defendants' attorneys and supporting evidence sufficiently detailed (1) the names, addresses, and occupations of numerous prospective witnesses, at least one of whom was a State Trooper based in Bath, (2) the facts to which the witnesses will testify at trial, (3) a statement 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, 909; Lafferty v Eklecco, LLC, 34 AD3d 754, 755; Professional Veh. Leasing v Continuing Dev. Servs., 275 AD2d 313, 314).

KMK Safety Consulting, LLC v Jeffrey M. Brown Assoc., Inc., 2010 NY Slip Op 02927 (App. Div., 2nd, 2010)

In the present action, arising out of a contractual dispute and
commenced in the Supreme Court, Richmond County, the defendants produced
a copy of the subject contract in support of their motion. That
contract recited, inter alia, that the defendant Jeffrey M. Brown
Associates, Inc., was a Pennsylvania corporation, and it further
provided, in relevant part, that "[a]ny dispute between the parties
related to this Contract shall be determined by the Pennsylvania Court
of Common Pleas, Philadelphia County." Contrary to the plaintiff's
contention, the Supreme Court properly granted the defendants' motion to
dismiss the complaint on the basis of documentary evidence containing
this unambiguous forum selection clause.

"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" (LSPA Enter.,
Inc. v Jani-King of N.Y., Inc., 31 AD3d 394, 395; see Boss v American [*2]Express
Fin. Advisors Inc., 6 NY3d 242, 246; Brooke Group v JCH
Syndicate 488, 87 NY2d 530, 534; Trump v Deutsche Bank Trust Co. Ams., 65 AD3d
1329, 1331; W.J. Deutsch & Sons, Ltd. v Charbaut Am., Inc.,
57 AD3d 529; Koob v IDS Fin. Servs., 213 AD2d 26, 33). The
plaintiff's vague and conclusory assertions that the forum selection
clause is unconscionable and unreasonable are inadequate to defeat the
defendants' motion (see Tatko Stone Prods., Inc. v Davis-Giovinzazzo
Constr. Co., Inc., 65 AD3d 778, 779; Horton v Concerns of Police Survivors, Inc., 62
AD3d 836, 836-837; Casper v Pines Assocs., L.P., 53 AD3d 764,
765; Stravalle v Land Cargo, Inc., 39 AD3d 735,
736; LSPA En-ter., Inc. v Jani-King of N.Y., Inc., 31 AD3d 394,
395). Similarly, the plaintiff's contentions that its president did not
read the contract and was unaware of its terms prior to signing it are
patently unavailing (see Gillman v Chase Manhattan Bank, 73 NY2d
1, 11; British W. Indies Guar. Trust Co. v Banque Internationale A
Luxembourg, 172 AD2d 234).

Richmond Amboy Realty, LLC v 3881 Richmond Ave. Realty, Inc., 2010 NY Slip Op 03098 (App. Div., 2nd, 2010)

In the interests of judicial economy, the Supreme Court providently
exercised its discretion in granting those branches of the plaintiff's
motion which were to remove a summary nonpayment proceeding, pending in
the Civil Court, to the Supreme Court, and to consolidate that
proceeding with the instant action seeking, inter alia, a declaration
regarding the plaintiff tenant's right to be restored to possession of
the premises (see CPLR 602[b]; Pinecrest Natl. Funding, LLC., v
Aatlas-B Props., Inc., 68 AD3d 833; Kally v Mount Sinai Hosp.,
44 AD3d 1010).

Jackam v Nature's Bounty, Inc., 70 AD3d 1000 (App. Div., 2nd, 2010)

The plaintiffs commenced this action against the
defendants in November 2004. After some discovery was completed, the
defendants moved in
March 2006 to dismiss the complaint on the ground of forum non
conveniens. The Supreme
Court denied the motion without prejudice to renewal after discovery was
completed.
Accordingly, after discovery was completed, the defendants renewed their
motion to dismiss the
complaint in September 2008 on the ground of forum non conveniens. The
court again denied
the motion. We reverse. "The common-law doctrine of forum non
conveniens, also
articulated in CPLR 327 (a), permits a court to stay or dismiss [an
action] where it is determined
that the action, although jurisdictionally sound, would be better
adjudicated elsewhere. In a
motion to dismiss on the ground of forum non conveniens, the burden is
on a defendant
challenging the forum to demonstrate relevant private or public interest
factors which militate
against accepting the litigation here. The court's determination will
not be disturbed on appeal
unless the court has failed to properly consider all the relevant
factors" (Prestige Brands, Inc.
v Hogan & Hartson, LLP, 65 AD3d 1028, 1028-1029 [2009] [internal
quotation marks and
citations omitted]; see Islamic Republic of Iran v Pahlavi, 62
NY2d 474 [1984], cert
denied 469 US 1108 [1985]; Harleysville Ins. Co. v Ermar Painting
& Contr., Inc., 8
AD3d 229 [2004]; Korea Exch. Bank v A.A. Trading Co., 8 AD3d 344
[2004]). 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 [2009]). "The court has discretion whether
[or not] to retain
jurisdiction" (Rosenberg v Stikeman Elliott, LLP, 44 AD3d 840,
841 [2007]). The court's
determination will not be disturbed on appeal "absent an improvident
exercise of
. . . discretion or a failure to consider the relevant factors" (Brinson
v Chrysler
Fin., 43 AD3d 846, 848 [2007]; see Islamic Republic of Iran v
Pahlavi, 62 NY2d
474 [1984]; Cheggour v R'Kiki, 293 AD2d 507, 508 [2002]).

Here, even though the defendants are New York residents, their
renewed motion to dismiss
the complaint on the ground of forum non conveniens should have been
granted. The record
establishes that the injured plaintiff ingested Xtreme Lean in Georgia,
and that his alleged injury
and all of his subsequent medical treatment for that alleged injury
occurred in Georgia.
Furthermore, all of the injured plaintiff's treating physicians and his
medical records are located
in Georgia. There are also additional fact witnesses that reside in
Georgia. While the defendants
have not produced affidavits from those witnesses showing that it would
be a hardship for them
to travel to New York to testify, it appears that the plaintiffs have
frustrated the defendants'
efforts to obtain discovery and depositions from those witnesses in
Georgia. This has made it
difficult, if not impossible, for the defendants to produce these
affidavits. Under these
circumstances, since it appears that all or most of the evidence that
will be required from the
defendants would be in the form of documents, and since the defendants
have agreed to be
subject to subpoena in Georgia, which appears to be available as an
alternate forum, the Supreme
Court improvidently exercised its discretion in denying the defendants'
renewed motion to
dismiss the complaint on the ground of forum non conveniens (see
Prestige Brands, Inc. v
Hogan & Hartson, LLP, 65 AD3d 1028 [2009]; Brinson v Chrysler
Fin., 43 AD3d
846 [2007]; Cheggour v R'Kiki, 293 AD2d at 508; Evdokias v
Oppenheimer,
123 AD2d 598 [1986]; see also Matter of Henry v Skratt, 11 AD3d
691 [2004]; cf.
Harleysville Ins. Co. v Ermar Painting & Contr., Inc., 8 AD3d
229 [2004]).

In order to assure the availability of a forum for the action,
our reversal and granting of the
defendants' motion to dismiss the complaint pursuant to CPLR 327 is
conditioned on the
defendants stipulating to waive jurisdictional and statute of
limitations defenses (see
CPLR 327 [a]; Turay v Beam Bros. Trucking, Inc., 61 AD3d 964
[2009]).

The bold is mine.

ROM testing with a touch of CPLR R. 4518

CPLR R. 4518 Business records

I was going to post this for another reason, but JT makes a good point.

Simanovskiy v Barbaro, 2010 NY Slip Op 03304 (App. Div., 2nd, 2010)

Neither plaintiff offered competent medical evidence to demonstrate
the existence of a significant range-of-motion limitation in the
cervical or lumbar regions of their spines contemporaneous with the
subject accident (see Bleszcz v Hiscock, 69 AD3d 890; Caraballo v Kim, 63 AD3d 976, 977; Niles v Lam Pakie Ho, 61 AD3d 657, 659; Washington v Mendoza, 57 AD3d 972; Magid v Lincoln Servs. Corp., 60 AD3d 1008).
Although the affirmations and affirmed [*2]medical
reports of the plaintiffs' treating physician, Dr. Boris Dudelzak,
found "decreased" range of motion in the cervical and lumbar regions of
both plaintiffs' spines, he failed to quantify the results of his
range-of-motion tests (see Barnett v Smith, 64 AD3d 669, 671; Kuchero v Tabachnikov, 54 AD3d 729, 730; Duke v Saurelis, 41 AD3d 770, 771).
Furthermore, the computerized range-of-motion tests referred to in Dr.
Dudelzak's affirmations were not in admissible form because they were
not affirmed by someone with personal knowledge of the facts (see Taylor v Flaherty, 65 AD3d 1328; see also Luna v Mann, 58 AD3d 699, 700; Washington v Mendoza, 57 AD3d 972). Without
admissible evidence of quantified range-of-motion limitations
contemporaneous with the accident, the plaintiffs could not have
established the duration of the injuries required to raise a triable
issue of fact as to whether they sustained a serious injury under the
permanent consequential limitation or significant limitation of use
categories of the no-fault law (see Kuchero v Tabachnikov, 54
AD3d at 730; Ferraro v Ridge Car Serv., 49 AD3d 498).

The affirmed magnetic resonance imaging reports of the
plaintiffs' radiologist, which indicated that the plaintiff Boris
Simanovskiy suffered from bulging cervical and lumbar discs, and that
the plaintiff Nadezhda Simanovskaya suffered from a torn meniscus, also
were insufficient to raise a triable issue of fact. The existence of
bulging discs and torn ligaments is not evidence of a serious injury in
the absence of objective evidence of the extent and duration of the
alleged physical limitations resulting from these injuries (see Casimir v Bailey, 70 AD3d 994; Bleszcz v Hiscock, 69 AD3d 890; Mora v Riddick, 69 AD3d 591; Caraballo v Kim, 63 AD3d 976, 977-978).

And JT found somene making a peculiar argument in Family Court.

Matter of Fortunato v Murray, 2010 NY Slip Op 03122 (App. Div., 2nd, 2010)

The father thereafter filed an objection to the Support Magistrate's
order on the ground that the Support Magistrate erroneously excluded his
medical records from evidence. The Family Court denied the objection,
stating, in an order dated November 19, 2008, that

"[the father] objects to the Support Magistrate's order
on the grounds that the doctor's records dated July 8, 2008, which the
Support Magistrate did not allow into evidence should have been admitted
into evidence. The Support Magistrate denied petitioner's request based
on the fact that the records are hearsay as they deprive respondent of
the right to confront the witness. This Court agrees. The [father]
refers to CPLR 4518(a). This section refers to business records, not
doctors office records or notes."

Contrary
to the Family Court's general statement of the applicable law, "[a]
physician's office records, supported by the statutory foundations set
forth in CPLR 4518(a), are admissible in evidence as business records.
However, medical reports, as opposed to day-to-day business entries of a
treating physician, are not admissible as business records where they
contain the doctor's opinion or expert proof" (Matter of
Bronstein-Becher v Becher, 25 AD3d 796, 797 [internal quotation
marks and citations omitted]; see Batts v Rutrick, 298 AD2d 417; Napolitano
v Branks, 141 AD2d 705, 705-706). Moreover, a physician's office
records "may be received as evidence despite the fact that a physician
is available to testify as to the substance and contents of the records"
(Napolitano v Branks, 141 AD2d at 705-706; see Clarke v New
York City Tr. Auth., 174 AD2d 268). Here, upon the father's appeal
of the Family Court's order, this Court does not have the benefit of the
actual medical documents in dispute since the documents are not part of
the original papers before this Court. Thus, from the record, it is
unclear whether the subject documents were the type which this Court
views as admissible. Accordingly, we remit the matter to the Family
Court, Nassau County, for a review by the Support Magistrate of the
subject medical documents in light of and pursuant to the aforementioned
standard as to admissibility.

And one more that I found.  Of course I realized that I read the case about five seconds after I initially published this post.

Elshaarawy v U-Haul Co. of Miss., 2010 NY Slip Op 03273 (App. Div., 2nd, 2010)

On appeal, the defendants contend that the Supreme Court erred in
granting the plaintiff's motion for summary judgment on the issue of
serious injury to his right knee under the 90/180 day category of
Insurance Law § 5102(d). We agree. As the proponent of the summary
judgment motion, the plaintiff had the burden of making a prima facie
showing that he suffered a serious injury pursuant to Insurance Law §
5102(d), and that his injury was causally related to the accident (see Autiello v Cummins, 66 AD3d 1072; McHugh v Marfoglia, 65 AD3d 828, 829; LaForte v Tiedemann, 41 AD3d 1191, 1192; Ellithorpe v Marion, 34 AD3d 1195). The
plaintiff satisfied this burden by submitting the affirmation of his
orthopedic surgeon and his own affidavit, which established that as a
result of the accident he had sustained a "a medically determined
injury" to his right knee which prevented him from performing
substantially all of his usual and customary daily [*3]activities
for at least 90 of the first 180 days following the accident (Insurance
Law § 5102[d]; see Ellithorpe v Marion, 34 AD3d 1195,
1197). However, in opposition, the defendants raised a triable issue of
fact as to whether the plaintiff's knee injuries were caused by the
subject accident by submitting the affirmation of their examining
orthopedic surgeon, and the plaintiff's ambulance report and hospital
emergency room records, which indicated that he made no complaints of
knee pain immediately after the accident, and that examination of his
knees revealed no swelling. Although the ambulance report and hospital
emergency room records were uncertified, a defendant may rely upon
unsworn medical reports and uncertified records of an injured
plaintiff's treating medical care providers in order to demonstrate the
lack of serious injury (see Hernandez v Taub, 19 AD3d 368; Kearse v New York City Tr. Auth., 16 AD3d 45,
47; Itkin v Devlin, 286 AD2d 477; Abrahamson v Premier Car
Rental of Smithtown, 261 AD2d 562; Pagano v Kingsbury, 182
AD2d 268, 271). Accordingly, the plaintiff's motion for summary judgment
on the issue of serious injury to his right knee under the 90/180 day
category should have been denied. Since the jury was instructed that its
damages award must include compensation for the plaintiff's knee
injuries, which the Supreme Court determined to be causally linked to
the accident, the jury did not expressly find that the plaintiff
sustained a significant limitation of use of his right knee, and the
jury did not specifically allocate damages to compensate the plaintiff
for injuries to any particular parts, functions, or systems of his body,
the judgment must be reversed, and a new trial on the issue of damages
must be granted.

We further note that the Supreme Court erred in permitting the
plaintiff's treating neurologist to testify as to the contents of a
report interpreting magnetic resonance imaging (hereinafter MRI) films
of the plaintiff's cervical spine, which was prepared by a radiologist
who did not testify at trial (see Wagman v Bradshaw, 292 AD2d 84;
see also Clevenger v Mitnick, 38 AD3d 586,
587; Jemmott v Lazofsky, 5 AD3d 558, 560; Beresford
v Waheed, 302 AD2d 342, 343; DeLuca v Ding Ju Liu, 297 AD2d
307). This testimony was improperly admitted because the MRI films were
not in evidence, the plaintiff failed to elicit sufficient proof to
establish that the MRI report interpreting the films was reliable, and
the defendants had no opportunity to cross-examine the radiologist who
prepared the report (see Wagman v Bradshaw, 292 AD2d at 89-90).

What CPLR?

 Lisa Solomon and Marshall R. Isaacs have an interesting post over at the NYSBA's Smallfirmville blog about the variations in how the Courts interpret or ignore the CPLR throughout the counties.  They start with CPLR R. 3216.  Specifically, they talk about what is going on in Brooklyn. There the judges are giving a date by which the NOI must be filed.  Failure to file will result in dismissal. CPLR R. 3216 does not allow the Court to dismiss without certain requirements being met.  And one of those requirements is that the notice be sent by "registered or certified mail." 

The Appellate Division appears to allow this to go on, by finding that a court order directing that a NOI be filed by a certain date, has "the same effect as a 90-day notice pursuant to CPLR 3216."  See, Shcherbina v Queens Nassau Nursing Home, Inc., 2009 NY Slip Op 07615 (App. Div., 2nd, 2009)1.  By giving it the same effect, the Appellate Division appears to take the court's notice outside the specific requirement of CPLR R. 3216.  It's different, but the same.  Compare Shcherbina with Passet v Menorah Nursing Home, Inc., 2009 NY Slip Op 09009 (App. Div., 2nd, 2009) where the Appellate Division told us "CPLR 3216 permits a court to dismiss an action for want of prosecution only after the court or the defendant has served the plaintiff with a written notice…." Did you notice how Passet said nothing about the manner of notice?  Weird, right?

Check out CPLR § 3215(c), which tells the court that it "shall" dismiss, whether on it's own "initiative or on motion."  Notice the differences in the language of Rule 3216 and Section 3215.  One has a specific notice requirement, the other doesn't.  That should matter.  Moreover, CPLR R. 3216 doesn't allow the courts to mess around the method or timing, like CPLR R. 3212(a) does.  Well, to be clear, CPLR R. 3212(a) doesn't allow for a change in the method; only the timing.

While we are on the subject of paying attention to the language, remember CPLR § 205(a)?  Yeah, that one.  The one that requires courts to make certain findings before dismissing pursuant to CPLR R. 3216.  No one is paying attention to that.

You should check out the rest of the post.  They go on to discuss other issues and what can be done about them.

Wow.  I made a post that barely contained any copy and pasting.  Hooray for me.

——————————————————–

1.  Check out Davis v Cardiovascular Consultants of Long Is., P.C., 2009 NY Slip Op 06501 (App. Div., 2nd, 2009) and my post where I pointed out the whole "registered or certified mail" part.  There have been a lot of decisions like this lately. 

Serve it right (OSC)

CPLR
§ 308 Personal service upon a natural person

CPLR
R. 2103 Service of papers

City of New York v Miller, 2010 NY Slip Op 03059 (App. Div., 2nd, 2010)

The Supreme Court properly denied, without a hearing, the defendants' motion to dismiss the complaint pursuant to CPLR 3211(a)(8) for lack of personal jurisdiction. The affidavits of the process servers constituted prima facie evidence of proper service pursuant to CPLR 308(4) (see Scarano v Scarano, 63 AD3d 716, 716; Mortgage Elec. Registration Sys., Inc. v Schotter, 50 AD3d 983, 983; 425 E. 26th St. Owners Corp. v Beaton, 50 AD3d 845, 846; Simonds v Grobman, 277 AD2d 369, 370). Although a defendant's sworn denial of receipt of service generally rebuts the presumption of proper service established by a 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 (see Scarano v Scarano, 63 AD3d at 716; Simonds v Grobman, 277 AD2d at 370). Here, the defendants' bare denial of service was insufficient to rebut the prima facie proof of proper service pursuant to CPLR 308(4) created by the process servers' affidavits and to necessitate a traverse hearing (see Scarano v Scarano, 63 AD3d at 716; Mortgage Elec. Registration Sys., Inc. v Schotter, 50 AD3d at 983; 425 E. 26th St. Owners Corp. v Beaton, 50 AD3d at 846; Simonds v Grobman, 277 AD2d at 370).

The Supreme Court also properly denied the defendants' motion, inter alia, to vacate a temporary restraining order and preliminary injunction based on lack of proper service of the order to show cause. "The method of service provided for in an order to show cause is jurisdictional in nature and must be strictly complied with" (Matter of El Greco Socy. of Visual Arts, Inc. v Diamantidis, 47 AD3d 929, 929; see Matter of Del Villar v Vekiarelis, 59 AD3d 642, 643; Matter [*2]of Master v Pohanka, 43 AD3d 478, 480, affd 10 NY3d 620; Matter of Hennessey v DiCarlo, 21 AD3d 505, 505). Here, the express terms of the order to show cause required the plaintiffs to serve the order to show cause and other papers on the defendants as well as their attorneys. However, while it is undisputed that attorney Vincent M. Gerardi represented the defendants in a related but separate and independent action, and that the plaintiffs were aware of that action, it is also undisputed that, in the instant action, as of the time the plaintiffs were required to serve the order to show cause, no attorney had appeared on behalf of the defendants (see generally CPLR 320[a], 321[a]). CPLR 2103(c) expressly provides that, if a party has not appeared by an attorney, service shall be upon the party. Thus, notwithstanding the language directing service in the order to show cause, the plaintiffs were not required to serve Gerardi with the order to show cause merely because he represented the defendants in a separate and independent, if not entirely unrelated, action, where neither he nor any other attorney had appeared on behalf of the defendants in this action (see Long v Long, 196 Misc 982, 984).

I'm adding another case (5/31/10) because it doesn't deserve it's own post, but is nonetheless relevant to the blog.

Lobo v Soto, 2010 NY Slip Op 04553 (App. Div., 2nd, 2010)

"The method of service provided for in an order to show cause is
jurisdictional in nature and must be strictly complied with'" (City
of New York v Miller, 72 AD3d 726, *1, quoting Matter of El Greco
Socy. of Visual Arts, Inc. v Diamantidis, 47 AD3d 929, 929; see
Matter of Del Villar v Vekiarelis, 59 AD3d 642, 643; Matter of
Master v Pohanka, 43 AD3d 478, 480, affd 10 NY3d 620; Matter
of Hennessey v DiCarlo, 21 AD3d 505, 505). Here, the Supreme Court
correctly determined that the plaintiffs failed to strictly comply with
the method of service set forth in the order to show cause in connection
with service of the motion on the referee.

3211(a)(8) “no relationship between defendant’s transaction of business and plaintiff’s claims.”

Georgakis v Excel Mar. Carriers Ltd., 2010 NY Slip Op 02982 (App. Div., 1st, 2010)

Even assuming that defendant transacted business in New York, CPLR 302(a)(1) does not authorize the courts to exercise jurisdiction over it, because there is no relationship between defendant's transaction of business and plaintiff's claims against defendant (see Kreutter v McFadden Oil Corp., 71 NY2d 460, 467 [1988]; Holness v Maritime Overseas Corp., 251 AD2d 220, 224 [1998]).

In any event, we find that New York is not a convenient forum for this litigation between a foreign corporation and its former CEO, in which both parties are residents of Greece, which arose from conduct occurring principally in Greece, and in which the bulk of the witnesses and evidence needed by defendant to defend the action are located in Greece (see Gonzalez v Victoria [*2]Lebensversicherung AG, 304 AD2d 427 [2003], lv denied 1 NY3d 506 [2004]; Holness v Maritime Overseas Corp., 251 AD2d 220, 224 [1998]; Blueye Nav. v Den Norske Bank, 239 AD2d 192 [1997]).

The bold is mine.

On consolidation: CPLR § 602

CPLR § 602 Consolidation
(a)
Generally

Whiteman v Parsons Transp. Group of N.Y., Inc., 2010 NY Slip Op 02944 (App. Div., 2nd, 2010)

Where common questions of law or fact exist, a motion pursuant to
CPLR 602(a) to consolidate or for a joint trial should be granted absent
a showing of prejudice to a substantial right of the party opposing the
motion (see Mas-Edwards v Ultimate Servs., Inc., 45 AD3d 540; Perini
Corp. v WDF, Inc., 33 AD3d 605, 606; Nationwide Assoc. v Targee
St. Internal Med. Group, P.C. Profit Sharing Trust, 286 AD2d 717).
Here, the action commenced in the Supreme Court, Kings County, shares
defendants and questions of law and fact in common with two related
actions pending in the Supreme Court, New York County (see Nigro v
Pickett, 39 AD3d 720, 722; Spector v Zuckermann, 287 AD2d
704). Furthermore, the plaintiff failed to show prejudice to a
substantial right if this action is transferred to New York County, and
mere delay of the trial is not a sufficient basis upon which to deny a
motion for consolidation or a joint trial (see Alsol Enters., Ltd. v
Premier Lincoln-Mercury, Inc., 11 AD3d 494; Zupich v Flushing
Hosp. & Med. Ctr., 156 AD2d 677). Moreover, in the absence of
special circumstances, where the actions have been commenced in
different counties, the place of trial should be in the county where
venue of the first-commenced action currently lies (see Almoghazy v
Gonzalez, 233 AD2d 349, 350; Levertov v Congregation Yetev Lev [*2]D'Satmar, 129 AD2d 680; T T Enters. v
Gralnick, 127 AD2d 651, 652). Since venue properly lies in New York
County with respect to the first of the three subject actions to be
commenced, venue of the action commenced in the Supreme Court, Kings
County, was properly transferred to New York County.

However, the respondent's motion to consolidate the three actions
should have been granted only to the extent of directing a joint trial,
particularly since the actions involve different plaintiffs (see
Perini Corp. v WDF, Inc., 33 AD3d at 606-607; Cola-Rugg Enters., v
Consolidated Edison Co. of N.Y., 109 AD2d 726; Mascioni v
Consolidated R.R. Corp., 94 AD2d 738).

The bold is mine.

Some good old fashioned SOL or Use it or lose it

CPLR R. 3211(e)

Horst v Brown, 2010 NY Slip Op 02836 (App. Div., 1st, 2010)

CPLR 3211(e) explicitly provides that an objection or defense based
on the statute of limitations is waived unless raised in a responsive
pleading or in a pre-answer motion to dismiss. Defendant failed to do
either, and thus waived this defense (see Buckeye Retirement Co., L.L.C., Ltd. v Lee,
41 AD3d 183 [2007] [statute of limitations defense waived unless
raised by aggrieved party]).

As defendant waived the affirmative defense of statute of
limitations, Supreme Court erred in its sua sponte consideration of that
defense (see Paladino v Time Warner Cable of N.Y. City, 16
AD3d 646 [2005] ["court may not take judicial notice, sua sponte,
of the applicability of a statute of limitations if that defense has not
been raised"]).

While "courts generally allow pro se litigants some leeway on the
presentation of their case" (Stoves & Stones v Rubens, 237
AD2d 280, 280 [1997]), in this particular case it was error to treat
defendant's opposition to plaintiff's motion for summary judgment on
damages as either a motion to amend defendant's answer, or a cross
motion for summary judgment based on the statute of limitations. "A
motion for summary judgment on one claim or defense does not provide a
basis for searching the record and granting summary judgment on an
unrelated claim or defense'" (Baseball Off. of Commr. v Marsh &
McLennan, 295 AD2d 73, 82 [2002], quoting Sadkin v Raskin &
Rappoport, 271 AD2d 272, 273 [2000]). 

All concur except Gonzalez, P.J. and RomÁn, J. who dissent in part in a
memorandum by RomÁn, J. as follows:

***

Generally, when a defendant fails to plead the statute of limitations as
a defense in his or her answer or fails to move for dismissal on that
ground, via a pre-answer motion, the defense is ordinarily waived (see
Dougherty v City of Rye, 63 NY2d 989, 991-992 [1984]; Fade v
Pugliani, 8 AD3d 612, 614 [2004]). However, when a defendant fails
to plead an affirmative defense, as required by CPLR 3211(e) and
3018(b), but nevertheless asserts that defense in connection with a
motion for summary judgment, the waiver is said to be retracted and the
court can grant, when the defendant is the movant, or deny, when the
defendant is the opponent, summary judgment based upon the unpleaded
affirmative defense (see Lerwick v Kelsey, 24 AD3d 918, 919-920
[2005]; Allen v Matthews, 266 AD2d 782, 784 [1999]; Adsit v
Quantum Chem. Corp., 199 AD2d 899 [1993]). The threshold inquiry is
whether in considering the unpleaded defense, the opponent of the
defense is prejudiced thereby (see BMX Wordlwide v Coppola N.Y.C.,
287 AD2d 383 [2001]; Allen v Matthews, 266 AD2d 782, 784 [1999];
Seaboard Sur. Co. v Nigro, Bros. 222 AD2d 574 [1995]; Rogoff v
San Juan Racing Assn. Inc., 77 AD2d 831 [1980], affd 54 NY2d
883 [1981]). Such prejudice, however, is ameliorated when the defense
was previously raised on a prior motion or during discovery (id.),
or when the opponent of the motion, where defendant seeks summary
judgment based upon said defense, is given an opportunity to fully
respond to the motion for summary judgment (Sheils v County of Fulton, 14 AD3d 919
[2005], lv denied 4 NY3d 711 [2005]; Kirilescu v American Home
Prods. Corp., 278 AD2d 457 [2000], lv denied 96 NY2d 933
[2001]; McSorley v Philip Morris, Inc., 170 AD2d 440 [1991], appeal
dismissed 77 NY2d 990 [1991]; International Fid. Ins. Co. v Robb,
159 AD2d 687 [1990]).

***

Cadlerock, L.L.C. v Renner, 2010 NY Slip Op 02849 (App. Div., 1st, 2010)

Defendant sufficiently pleaded his statute of limitations affirmative
defense (see Immediate v St. John's Queens Hosp., 48 NY2d 671,
673 [1979]). Contrary to plaintiff's contention, the promissory note,
which required defendant to pay principal and interest payments monthly
for 20 years, after which the loan would have self-liquidated, was an
installment contract (see Phoenix Acquisition Corp. v Campcore, Inc.,
81 NY2d 138, 141-142 [1993]), and, since the debt was not accelerated
while defendant was making the monthly payments, the applicable six-year
statute of limitations (CPLR 213[2]) began to run on the date on which
each installment became due and payable (see Phoenix Acquisition
Corp. at 141). Thus, the statute of limitations bars plaintiff from
seeking to recover the amount of the installment payments, including any
interest, that defendant defaulted on before April 18, 2002, when this
action was commenced (see id.; Sce v Ach, 56 AD3d 457, 458-459 [2008]).

The defense of laches is unavailable in this action at law
commenced within the period of limitations (see Matter of American Druggists' Ins. Co., 15
AD3d 268 [2005], lv dismissed 5 NY3d 746 [2005]; Kahn v
New York Times Co., 122 AD2d 655, 663 [1986]). However, we conclude
that a triable issue of fact exists whether plaintiff's claims are
barred by the doctrine of equitable estoppel, i.e., whether defendant
justifiably relied on the nine years of inaction by plaintiff and its
predecessors-in-interest to reasonably conclude that his monthly
payments were sufficient to satisfy his payment obligations under the
note, and therefore was misled into paying a reduced amount for years
without realizing that interest was accruing at the 14% interest rate [*2](see Fundamental Portfolio Advisors, Inc. v
Tocqueville Asset Mgt., L.P., 7 NY3d 96, 106—107 [2006]; Triple
Cities Constr. Co. v Maryland Cas. Co., 4 NY2d 443, 448 [1958]).

The bold is mine.

CPLR R. 3212 Roundup

Welcome to the  CPLR R. 3212 roundup.  Like the R. 3211 roundup, some of these decisions are a few months old because I've let them sit.  And like the 3211 roundup, this one might be kind of long. Three are about timing, the rest are (f).

Shaibani v Soraya, 2010 NY Slip Op 02771 (App. Div., 2nd, 2010)

CPLR 3212(a) provides that "[a]ny party may move for summary judgment in any action, after issue has been joined." Joinder of issue requires the service of a complaint by the plaintiff and an answer or counterclaim by the defendant (see Chakir v Dime Sav. Bank of N.Y., 234 AD2d 577, 578; Woodworth v Woodworth, 135 AD2d 1143). Here, the plaintiff served the defendant with a summons with notice on or about January 15, 2008. There is no indication in the record that the plaintiff ever served the defendant with a complaint. Instead, the plaintiff moved, and the defendant cross-moved, for summary relief. Under these circumstances, the Supreme Court erred in considering the merits of the motion and cross motion, in effect, for summary judgment, since issue had not yet been joined as required by CPLR 3212 (see CPLR 3212[a]; City of Rochester v Chiarella, 65 NY2d 92, 101; Union Turnpike Assoc., LLC v Getty Realty Corp., 27 AD3d 725, 727).

Hurley v Best Buy Stores, L.P., 2010 NY Slip Op 02424 (App. Div., 1st, 2010)

Defendants failed to demonstrate "good cause" for their belated summary judgment motion (CPLR 3212[a]; Brill v City of New York, 2 NY3d 648, 652 [2004]). The fact that they switched counsel before their prior counsel could take steps for relief from plaintiff's negligence claims does not constitute good cause, since prior counsel should have been aware of various defenses and should have requested such relief in a timely manner in their first summary judgment motion (see Breiding v Giladi, 15 AD3d 435 [2005]; see also Perini Corp. v City of[*2]New York, 16 AD3d 37 [2005]). In light of this decision, we need not consider whether triable issues of fact would have precluded summary relief.

Continue reading “CPLR R. 3212 Roundup”

CPLR R. 4212

You don't see this rule too often, and rarely in this context. Pretty cool.

CPLR R. 4212 Advisory jury; referee to report.

Jones Inlet Mar., Inc. v Hydraulitall, Inc., 2010 NY Slip Op 02752 (App. Div., 2nd, 2010)

The plaintiff (hereinafter the Marina) commenced this action against
the defendants for breach of contract. In a companion action entitled

Hydraulitall,
Inc. v Jones Inlet Marina, Inc., which was commenced in the Supreme
Court, Suffolk County, under Index No. 14387/04 (hereinafter Action No.
1), and is based upon the same facts as this action, a jury determined
that the Marina breached the subject contract, and that Hydraulitall,
Inc. (hereinafter Hydraulitall), the defendant in this action, was
entitled to damages. The Supreme Court, purportedly relying upon CPLR
4212, treated the jury verdict in Action No.1 as an advisory verdict in
the instant action, and dismissed the Marina's complaint in the instant
action. However, in a companion appeal (see Hydraulitall, Inc. v
Jones Inlet Marina, Inc.,AD3d [decided herewith]), we reversed the
judgment entered in Action No. 1 based upon our conclusion that the
Supreme Court should have granted the Marina's motion, made at the close
of Hydraulitall's case, for judgment as a matter of law dismissing the
complaint in that action for failure to prove damages (id.).
Consequently, we reverse the judgment in the instant action and
reinstate the Marina's complaint.

CPLR 4212 provides:

"Upon the motion of any party as provided in rule 4015
or on its own initiative, the court may submit any issue of fact
required to be decided by the court to an advisory jury or, upon a
showing of some exceptional condition requiring it or in matters of
account, to a [*2]referee to report. An
order under this rule shall specify the issues to be submitted. The
procedures to be followed in the use of an advisory jury shall be the
same as those for a jury selected under article forty-one. Where no
issues remain to be tried, the court shall render decision directing
judgment in the action."

The Supreme Court did not
follow the procedure outlined in the statute since no order was ever
issued and the Supreme Court never specified to the jury the issue to be
decided. Instead, after the jury returned its verdict in Action No.1,
the Supreme Court simply treated that verdict as dispositive of the
instant action. This was error.

Moreover, in light of our determination in Action No. 1 that the
Supreme Court erred in denying the Marina's motion for judgment as a
matter of law for Hydraulitall's failure to make out a prima facie case
with respect to the issue of damages, it would be incongruous to hold
that it was nevertheless proper for the Supreme Court to utilize the
verdict in Action No. 1 as a basis for the dismissal of the complaint in
the instant action, even though the Marina did not expressly challenge,
on the companion appeal, the liability determination in Action No. 1
that it failed to comply with the terms of the contract.