Category: CPLR

CPLR § 2309: What’s the point?

CPLR § 2309 Oaths and affirmations
(c) Oaths and affirmations taken without the state.

CPLR § 2309 has been watered down so as to be non-existent.  And from what I can tell, it serves no useful purpose.  Why not just scrap the damn thing.  I really don’t care whether we have the section or not; however, it’s dumb to keep it there for the sake of keeping it there.

Why the sudden outburst?

JT over at No-Fault Defender has been going on and on and on about 2309. And after seeing several decisions on the issue, came to the same conclusion.  Actually, he came to the conclusion first.  We do however, disagree as to the application of 2309.  I say, if it’s there, just apply the damn thing.  Don’t get cute with it.  Don’t allow parties to fix it at the appellate level, like the Appellate Term did in Eastern Star Acupuncture, P.C. v Clarendon Natl. Ins. Co., 2010 NY Slip Op 50043(U) (App. Term, 1st, 2010):

Order (Raul Cruz, J.), entered October 16, 2008, reversed, without costs, motion granted and complaint dismissed on the condition that defendant, within 60 days of service upon it of a copy of this order with notice of entry, files with the Clerk of the Civil Court and serves upon plaintiffs an affidavit of Steven Esteves that is accompanied by a certificate demonstrating that the notary administered the oath as prescribed by the laws of the State of New Jersey. In the event defendant fails to duly file and serve such an affidavit, the order is affirmed, without costs.

The affidavit submitted by defendant of its employee (Esteves) established defendant’s entitlement to summary judgment dismissing this action to recover first-party no-fault benefits. Plaintiffs, however, raised a timely objection to the form of this affidavit, asserting that it did not comply with CPLR 2309(c). Specifically, plaintiffs correctly note that the affidavit failed to include a certificate demonstrating that the notary administered the oath as prescribed by the laws of the State of New Jersey, the state in which the oath was administered (see CPLR 2309[c]; Real Property Law § 299-a[1]; PRA III, LLC v Gonzalez, 54 AD3d 917 [2008]). Inasmuch as the document can be given nunc pro tunc effect once the appropriate certificate is obtained (Nandy v Albany Med. Ctr. Hosp., 155 AD2d 833, 834 [1989]; see Moccia v. Carrier Car Rental, Inc., 40 AD3d 504, 505 [2008]; see also Matapos Tech. Ltd. v Compania Andina de Comercio Ltda, ___AD3d___, 2009 NY Slip Op. 09713 [Dec. 29, 2009]), we reverse the order and grant defendant’s motion for summary judgment dismissing the complaint on the conditions stated above (cf. Sandoro v Andzel, 307 AD2d 706, 708-708 [2003]).

JT made a very similar suggestion right before the decision was published.  What happens if defendant screws up the 2309(c) affidavit?  It happens more often than you think.

CPLR R. 4518 from up on high

CPLR R. 4518 Business records
(a) Generally.

People v Ramos, 2010 NY Slip Op 00192 (Ct. App., 2010)

The trial court erred when it admitted hearsay evidence without a proper foundation (CPLR 4518[a]). Even assuming some documents may be admitted as business records without foundation testimony (see People v. Kennedy, 68 NY2d 569, 577 n 4), the record at issue in this case was not such a document. Nothing on its face indicates that it “was made in the regular course of business and that it was the regular course of business to make it” (CPLR 4518[a]). Nor can the error be deemed harmless in the circumstances of this case.

Today in the First Department (22 NYCRR 202.2, CPLR R. 3211, CPLR R. 3212, CPLR § 306-b, CPLR § 3121, SOL)

Several decisions popped out of the Appellate Division, First Department,  today.  In a break from my normal posting style, where I try to split posts between sections and rules, I'm going to post the few decisions that I found interesting.


Ocasio-Gary v Lawrence Hosp., 2010 NY Slip Op 00003 (App. Div., 1st, 2009)

Even had St. Barnabas met its initial burden, plaintiff's expert's submission raises triable issues of fact regarding the hospital's negligence (see DaRonco v White Plains Hosp. Ctr., 215 AD2d 339 [1995]). The trial court should not have rejected the expert's opinion on the ground that the expert failed to expressly state that he or she possessed the requisite background and knowledge in emergency medicine to render an opinion. The expert, who is board certified in internal medicine, is qualified to render an opinion as to diagnosis and treatment with respect to the symptoms presented by the decedent. In contrast, the expert's affirmation in Browder v New York City Health & Hosps. Corp. (37 AD3d 375 [2007]), cited by the trial court, failed to indicate either the expert's specialty or that he or she possessed the requisite knowledge to furnish a reliable opinion. Venue should be retained in Bronx County. The only ground for the motion to change venue was the dismissal of the complaint against St. Barnabas, and the complaint has been reinstated.

The motion to vacate plaintiff's note of issue, served more than 20 days after service of that note, was properly denied as untimely (see 22 NYCRR 202.21[e]), "no showing of special circumstances or adequate reason for the delay having been offered" (Arnold v New York City Hous. Auth., 282 AD2d 378 [2001]). Nor did the court err in finding that defendant Orin failed to demonstrate good cause for an extension of time in which to file his motion for summary judgment (CPLR 3212[a]; Brill v City of New York, 2 NY3d 648, 652 [2004]).

Johnson v Concourse Vil., Inc., 2010 NY Slip Op 00010 (App. Div., 1st, 2009)

Although plaintiff's counsel served her pleadings just one day after the applicable 120-day service period expired (see CPLR 306-b), and counsel offered proof that he attempted to arrange for service with eight days remaining out of the 120-day period, he nonetheless failed to show diligence in his efforts to effect service, particularly as the three-year statute of limitations (CPLR 214[5]) had already expired, and he did not follow up with the process server regarding completion of service until after the 120-day service period had expired. There was no evidence to indicate that the corporate defendants could not be located, or that they could not be readily served through the Secretary of State. Furthermore, counsel waited until after defendants moved to dismiss before he cross-moved for an extension of the time to serve some several months later. Such evidence of lack of diligence undermines plaintiff's "good cause" argument in support of her extension request (see generally Leader v Maroney, Ponzini & Spencer, 97 NY2d 95 [2001]).

Nor is a grant of an extension to serve the pleadings warranted in the interest of justice. The circumstances presented, including that the statute of limitations expired, plaintiff's lack of diligence in prosecuting this action, the lack of probative evidence offered as to the claim's merit, the vague allegations of injury, the lack of notice given of the claim for more than three years and three months, the prejudice to defendants and the several month delay in moving for an extension of the time to serve, demonstrate that the dismissal of this action was appropriate (see Slate v Schiavone Constr. Co., 4 NY3d 816 [2005]; Posada v Pelaez, 37 AD3d 168 [2007]; compare de Vries v Metropolitan Tr. Auth., 11 AD3d 312 [2004]).

One day late.

Suss v New York Media, Inc., 2010 NY Slip Op 00011 (App. Div., 1st, 2009)

We reject plaintiff's argument that such evidence fails to show, prima facie, that the issue first was published on April 29. The affidavits submitted by defendants were made with personal knowledge of the issue's distribution date; the distributor's affidavit was the proper vehicle for the submission of photographs taken by him and his staff (see H.P.S. Capitol v Mobil Oil Corp., 186 AD2d 98, 98 [1992]); and the photographs, as enhanced and highlighted in defendants' reply, clearly depict what they are claimed to depict. In opposition, plaintiff failed to submit any evidence of a later publication.

We also reject plaintiff's argument that unless the court gives CPLR 3211(c) notice of its intention to do so, it may not consider nondocumentary evidentiary materials for fact-finding purposes on a motion to dismiss pursuant to CPLR 3211(a)(5) (see Alverio v New York Eye & [*2]Ear Infirmary, 123 AD2d 568 [1986]; Lim v Choices, Inc., 60 AD3d 739 [2009]).

Welter v Feigenbaum, 2010 NY Slip Op 00012 (App. Div., 1st, 2009)

A plaintiff, in an action for negligent transmittal of genital herpes simplex II, may demand that the defendant submit to a blood test to determine if the latter indeed has the virus (see CPLR 3121). Since the test was ordered in conjunction with the litigation, it is not subject to the physician-patient privilege (see Connors, McKinney's CPLR Practice Commentary C3121:2). Even were the privilege to apply, defendant waived it by asserting the affirmative defense that he was asymptomatic (see e.g. Dillenbeck v Hess, 73 NY2d 278, 287-288 [1989]). Defendant's effort to limit the scope of discovery has simply focused the issue on whether or not he has the virus. This issue is relevant to — and potentially dispositive of — the action. If the test is negative, the case will be subject to dismissal. If, on the other hand, it is positive, defendant will have an opportunity to prove his affirmative defenses that he did not have the virus in 2002, or was unaware that he had it or was asymptomatic at the time of alleged transmittal to plaintiff.

All concur except Andrias and McGuire, JJ., who concur in a separate memorandum by McGuire, J. as follows:

McGUIRE, J. (concurring)

We write separately to emphasize that we express no view on the issue of whether, if the test is positive, it is adm
issible at trial (see People v Scarola, 71 NY2d 769, 777 [1988] ["(e)ven where technically relevant evidence is admissible, it may still be excluded by the trial court in the [*2]exercise of its discretion if its probative value is substantially outweighed by the danger that it will unfairly prejudice the other side or mislead the jury"]).

The herpes case.

CPLR R. 3212: It’s all about the timing

CPLR R. 3212 Motion for summary judgment
(a) Time; kind of action
(f) Facts unavailable to opposing party

Alexandru v Pappas, 2009 NY Slip Op 08978 (App. Div., 2nd, 2009)

However, to the extent that the plaintiff's motion sought to compel the defendants to specifically perform their obligations under the stipulations of settlement, which is the ultimate relief sought in the action, that branch of the motion was, in effect, for summary judgment, which procedurally could not be granted, as issue had yet to be joined (see CPLR 3212[a]). Thus, that branch of the motion was properly denied.

Joson v G & S Realty 1, LLC, 2009 NY Slip Op 09620 (App. Div., 2nd, 2009)

Generally, unless a trial court specifies otherwise, a party has 120 days after the filing of a note of issue to move for summary judgment, after which it may do so only with "leave of court on good cause shown" (CPLR 3212[a]). This "requires a showing of good cause for the delay in making the motion—a satisfactory explanation for the untimeliness—rather than simply permitting meritorious, nonprejudicial filings, however tardy" (Brill v City of New York, 2 NY3d 648, 652). A trial court has discretion in determining whether to consider a motion for summary judgment made more than 120 days after the filing of a note of issue (see CPLR 3212[a]; Gonzalez v 98 Mag Leasing Corp., 95 NY2d 124, 129). Here, the trial court providently exercised its discretion in denying the motion of the defendant TPD Construction Corp. for summary judgment dismissing the complaint and all cross claims insofar as asserted against it because it failed to timely file its motion (see CPLR 3212[a]; Brill v City of New York, 2 NY3d at 652; Gonzalez v 98 Mag Leasing Corp., 95 NY2d at 129).

Fontanez v Lazarus, 2009 NY Slip Op 09373 (App. Div., 1st, 2009)

In a stipulation so-ordered by the court, any motions by defendants for summary judgment were to be "served and filed" by November 21, 2007, and that while appellant served its motion on November 21, it did not file it until November 30. Accordingly, appellant was required, but failed, to show good cause for the late filing (Corchado v City of New York, 64 AD3d 429 [2009]).

Some courts have specific rules as to when motions can be filed.  Assume that in this case there was such a rule and because of that rule, the motion could not be filed within the timeline.  Whether or not the movant has a reasonable excuse may depend on duration between service and filing of the motion. 

North Fork Preserve, Inc. v Kaplan, 2009 NY Slip Op 09006 (App. Div., 2nd, 2009)

After extensive discovery, the defendants moved for summary judgment dismissing the remaining claims in the amended complaint. Although the defendants had made two previous motions for summary judgment, the third motion did not violate the general proscription against successive motions for summary judgment since it was based on deposition testimony and numerous documents that had been elicited after the prior motions were denied (see Auffermann v Distl, 56 AD3d 502; Kobre v United Jewish Appeal-Fedn. of Jewish Philanthropies of N.Y., Inc., 32 AD3d 218; Staib v City of New York, 289 AD2d 560).

***

Finally, the Supreme Court providently exercised its discretion in denying that branch of the plaintiffs' motion which was for leave to renew their opposition to the defendants' motion for summary judgment, since the alleged new evidence was improperly submitted for the first time in the plaintiffs' reply papers (see GJF Constr. Corp. v Cosmopolitan Decorating Co. Inc., 35 AD3d 535; Adler v Suffolk County Water Auth., 306 AD2d 229). In any event, the plaintiffs did not offer a reasonable justification for their failure to present this evidence on the prior motion (see CPLR 2221[e]; Williams v Nassau County Med. Ctr., 37 AD3d 594).

Compare this decision with Matapos Tech. Ltd. v Compania Andina de Comercio Ltda1, 2009 NY Slip Op 09713 (App. Div., 1st, 2009) ("In its reply, plaintiff submitted a supplemental affidavit containing endorsements to the notes, which had inadvertently been omitted on the initial moving papers. The court properly considered this submission because defendant had made an issue of the omission in response to the motion (see Matter of Kennelly v Mobius Realty Holdings LLC, 33 AD3d 380, 382 [2006]; Ryan Mgt. Corp. v Cataffo, 262 AD2d 628, 630 [1999]). ) and with McMullin v Walker, 2009 NY Slip Op 09438 (App. Div., 2nd, 2009) (The "Final Narrative" medical report of Dr. Jerome L. Greenberg, McMullin's chiropractor, was not in affidavit form and therefore was insufficient to raise a triable issue of fact (see Kunz v Gleeson, 9 AD3d 480; Doumanis v Conzo, 265 AD2d 296). In an attempt to cure that defect, McMullin submitted Dr. Greenberg's affidavit, along with the "Final Narrative" report, in a surreply entitled, "Supplemental Affirmation in Opposition." This was improper, and the Supreme Court should not have [*2]considered this submission (see Flores v Stankiewicz, 35 AD3d 804)).

Hsing Hsung Chuang v Whitehouse Condominium, 2009 NY Slip Op 09375 (App. Div., 1st, 2009)

To the extent plaintiffs argue that discovery is needed, they failed to demonstrate either that the required evidence is within defendants' exclusive knowledge or that they "at least made some attempt to discover facts at variance with [defendants'] proof" (see Voluto Ventures, LLC v Jenkens & Gilchrist Parker Chapin LLP, 44 AD3d 557, 557 [2007]).

The bold is mine.

————————————-

1.  The decision also has an important discussion of CPLR § 2309(c)

You Can’t Be Forced to Give What You Don’t Have (Discovery)

I can't begin to tell you how often I see attorneys demanding that the other side produce items that don't exist.

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

Gottfried v Maizel, 2009 NY Slip Op 09619 (App. Div., 2nd, 2009)

Under the circumstances of this case, the Supreme Court did not improvidently exercise its discretion in only partially granting the plaintiff's motion to compel disclosure. The defendant could not be compelled to produce records, documents, or information that were not in his possession, or did not exist (see Argo v Queens Surface Corp., 58 AD3d 656; Maffai v County of Suffolk, 36 AD3d 765; Sagiv v Gamache, 26 AD3d 368, 369), or that were privileged (see Logue v Velez, 92 NY2d 13). Contrary to the plaintiff's arguments, the Preliminary Conference Order dated February 13, 2008, did not preclude the court from reviewing the propriety of his discovery demands or the adequacy of the defendant's response to those demands.

The bold is mine.

False Start–CPLR § 304

CPLR § 304. Method of commencing action or special proceeding

Goldenberg v Westchester County Health Care Corp., 2009 NY Slip Op 09616 (App. Div., 2nd, 2009) [Edit: 4/7/11. Affirmed by Goldenberg v Westchester County Health Care Corp., 2011 NY Slip Op 02075 (Ct. App. 2011)

The plaintiff served the summons and complaint upon the defendants in this malpractice action without ever filing them or obtaining an index number and paying the filing fee for the action. Accordingly, the action was never validly commenced (see CPLR 304). Following the expiration of the applicable statute of limitations, the defendants moved to dismiss the complaint as time-barred, and the plaintiff cross-moved, inter alia, for leave to file the summons and complaint nunc pro tunc. The Supreme Court correctly granted the defendants' motion and denied the plaintiffs' cross motion.

Contrary to the plaintiff's contention, the defendants raised timely objections to the plaintiff's failure to file and to the untimeliness of the action, since they asserted affirmative defenses regarding lack of jurisdiction and the expiration of the statute of limitations in their amended verified answer (see CPLR 3211[e]; see generally Harris v Niagara Falls Bd. of Educ., 6 NY3d 155, 159; cf. Sirkis v Cohen, 23 AD3d 369). Similarly, the defendants were not obligated to move to dismiss the action within 60 days following the service of their answer pursuant to CPLR 3211(e), since their objection was not based on improper service (see Sangiacomo v County of Albany, 302 AD2d 769, 772). Indeed, the plaintiff was free to move pursuant to CPLR 3211(b) to dismiss the jurisdictional defense if he desired a more prompt resolution of the merits of that defense. [*2]

Furthermore, the plaintiff cannot rely upon the remedial language of CPLR 2001 to cure his error, since that statute does not excuse a complete failure to file within the statute of limitations, as occurred here (see Matter of Miller v Waters, 51 AD3d 113, 117-118; Alexander, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR, C304:3, 2009 Pocket Part, at 162, 165). Likewise, the plaintiff cannot rely on his filing of a proposed complaint in a prior proceeding for leave to file a late notice of claim to act as the functional equivalent of a filing in this action (see generally Rybka v New York City Health & Hosps. Corp., 263 AD2d 403). The papers served in an action must conform in all material respects to the papers that are filed to commence it (see Matter of Gershel v Porr, 89 NY2d 327, 332; Page v Marusich, 30 AD3d 871, 873; Louden v Rockefeller Ctr. N., 249 AD2d 25, 26). Here, the complaint served in this action dramatically differed, substantively and materially, from the proposed complaint which the plaintiff filed in the prior proceeding. Accordingly, the Supreme Court properly granted the defendant's motion to dismiss the complaint. Moreover, the court properly denied the plaintiff's cross motion for leave to file the summons and complaint nunc pro tunc since, under the circumstances herein, the granting of that relief would impermissibly extend the statute of limitations (see CPLR 201; Bradley v St. Clare's Hosp., 232 AD2d 814, 815).

The bold is mine.

CPLR R. 3211(a)(7) and Punitive Damages

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

Fragrancenet.com, Inc. v Fragrancex.com, Inc., 2009 NY Slip Op 09613 (App. Div., 2nd, 2009)

[T]he Supreme Court properly, inter alia, granted that branch of the defendants' motion pursuant to CPLR 3211(a)(7) which was to dismiss the plaintiff's claim for punitive damages.

"Punitive damages are permitted when the defendant's wrongdoing is not simply intentional but evince[s] a high degree of moral turpitude and demonstrate[s] such wanton dishonesty as to imply a criminal indifference to civil obligations'" (Ross v Louise Wise Serv., Inc., 8 NY3d 478, 489, quoting Walker v Sheldon, 10 NY2d 401, 405; see Prozeralik v Capital Cities Communications, 82 NY2d 466, 479; Sharapata v Town of Islip, 56 NY2d 332, 335). Here, the allegations in the complaint do not support the imposition of punitive damages.

Too Little Too Late CPLR R. 3404

CPLR R. 3404 Dismissal of abandoned cases

Bornstein v Clearview Props., Inc., 2009 NY Slip Op 09602 (App. Div., 2nd, 2009)

A plaintiff seeking to restore a case to the trial calendar more than one year after it has been marked "off," and after it has been dismissed pursuant to CPLR 3404, must demonstrate a meritorious cause of action, a reasonable excuse for the delay in prosecuting the action, a lack of intent to abandon the action, and a lack of prejudice to the defendants (see M. Parisi & Son Constr. Co. Inc. v Long Is. Obs/Gyn, P.C., 39 AD3d 819, 820; Krichmar v Queens Med. Imaging, P.C., 26 AD3d 417, 419; Basetti v Nour, 287 AD2d 126, 131). The plaintiff is required to satisfy all four components of the test before the dismissal can be properly vacated and the case restored (see M. Parisi & Son Constr. Co. Inc. v Long Is. Obs/Gyn, P.C., 39 AD3d at 820; Krichmar v Queens Med. Imaging, P.C., 26 AD3d at 419).

Here, the plaintiff failed to meet this burden. The unsubstantiated excuse proffered by a former attorney in counsel's law firm regarding health issues in his family and his own depression was insufficient to excuse the more than three-year delay in moving to restore the action after the plaintiff's prior motion to restore was denied, as there was no showing that these problems persisted throughout the period in question (see Bray v Thor Steel & Welding, 275 AD2d 912, 912-913; Knight v City of New York, 193 AD2d 720). Further, in light of the plaintiff's inactivity regarding the action during the delay in moving to restore the action to the calendar, the plaintiff failed to rebut the presumption of abandonment that attaches when a matter has been automatically dismissed (see Krichmar v Queens Med. Imaging, P.C., 26 AD3d at 419; Furniture Vil. v [*2]Schoenberger, 283 AD2d 607; Cruz v Volkswagen of Am., 277 AD2d 340, 341). Moreover, since more than nine years have passed between the time of the acts complained of and the date of the motion under review, the defendants would be prejudiced if the action was restored to the trial calendar (see Krichmar v Queens Med. Imaging, P.C., 26 AD3d at 419; Costigan v Bleifeld, 21 AD3d 871; Kalyuskin v Rudisel, 306 AD2d 246, 247). Accordingly, the plaintiff's renewed motion to vacate the dismissal of the action and to restore the action to the trial calendar should have been denied.

Fun fact: CPLR R. 3404 is not applicable to the Civil Court, at least in the Second Department.

Don’t Count Your Stips Until They’ve Hatched (CPLR R. 2104)

While I've been out in beautiful sunny Ohio, this case has been making the rounds.  It was first noticed by John Hochfelder and followed up by the Turk.  Oh, right, the case.

Diarassouba v Urban, 2009 NY Slip Op 09420 (App. Div., 2nd, 2009)

While the court was in recess and the jury was deliberating, Conrad Jordan, counsel for the plaintiff, communicated to the defendants' counsel, Barry M. Viuker, that his client had authorized him to accept a settlement offer in the sum of $150,000. Viuker provided no confirmation of the settlement, but rather asked, "Do we have a settlement?" Jordan responded that [*2]he accepted the settlement offer. Viuker proceeded to leave the room for several minutes, without having responded in any way to Jordan's statement. The defense counsel's question, "Do we have a settlement?" was his only and final mention of the settlement agreement until after the court took the jury's verdict.

During Viuker's absence from the courtroom, Jordan informed the court clerk that the parties had reached a settlement, although he did not provide a specific settlement amount. The clerk did not record this information, but said that he would inform the Judge, who was already on her way to the courtroom to read a new jury note. Viuker then returned to the courtroom. When the judge arrived at the courtroom, Viuker inquired, off the record, as to the contents of the jury note. The Judge responded that the jury had reached a verdict. Once again, Viuker left the room for a short while.

When Viuker returned, Jordan asked the court to memorialize the settlement on the record prior to taking the verdict, but the court refused Jordan's requests.

"Mr. Jordan: Could I put my request on the record?

"The Court: Once I have a verdict, I take the verdict, and then the parties are free to do what they agreed to. An agreement is an agreement, counsel.

"Mr. Jordan: Why can't we put the agreement to settle the case for $150,000 on the record?

"The Court: Because I said what I have to say. Let's proceed."


Viuker was silent throughout this whole exchange.

The verdict was then taken in the plaintiff's favor, finding that Dr. Lubin and Dr. Horiuchi were each 35% at fault for the plaintiff's injury. The jury awarded the plaintiff the sum of $800,000 for past pain and suffering and the sum of $650,000 for future pain and suffering over 30 years.

After hearing the jury verdict, Jordan asserted that the purported stipulation of settlement was invalid on the ground that the court never permitted the settlement terms to go on the record. Jordan further posited that the settlement was invalid on the ground that the defense never consented to the settlement, but rather, was completely silent throughout Jordan's requests to put the settlement on the record.

"The Court: Now [that the verdict has been taken], Mr. Jordan, what is it that you would like to say?

"Mr. Jordan: Now, your Honor, what I will report for the record is that I attempted to talk to the Court about settlement and I watched the defense attorney, while he heard that there was a quick verdict, go outside twice. I heard him come in, and while he was in this courtroom he did nothing to second my application to this Court to put a settlement on the record and the Court did nothing to ask the parties whether there's a settlement on the record. As far as I know, the caselaw is there has to be a settlement on the record to be binding. So, at this point, the position of the plaintiff is that there is not [a] settlement, and there was no settlement."

Thereafter, by order dated March 28, 2008, the Supreme Court granted the defendants' motion to enforce the purported stipulation of settlement. The court determined that the settlement had been made in open court, with the judge on the bench and the court reporter and court clerk in attendance. As such, the court found that it was not necessary for the stipulation to have been placed on the record. The plaintiff appeals. We reverse.

CPLR 2104, the law governing settlements, sets forth that,

"An agreement between parties or their attorneys relating to any matter in an [*3]action other than one made between counsel in open court, is not binding upon a party unless it is in writing subscribed to by him or his attorney or reduced to the form of an order and entered. With respect to stipulations of settlement and notwithstanding the form of the stipulation of settlement, the terms of such stipulation shall be filed by the defendant with the County Clerk."

Thus, a settlement agreement is valid only if both parties stipulate to the settlement in a written agreement or it is made in open court and placed on the record.

Make no mistake about it, this decision is important.  Read the entire decision, then read it again.  Then, go ahead and take a look at Velazquez v St. Barnabas Hosp., 2009 NY Slip Op 09315 (Ct. App. 2009), where the Court of Appeals held:

The parties do not dispute that they agreed to settle the action for a specific amount; however, details regarding conditions of the settlement, including a disputed [*2]confidentiality agreement, were never recorded or memorialized. No agreement was made in open court or filed with the county clerk. Accordingly, it is not binding upon the parties (see CPLR 2104; Matter of Dolgin Eldert Corp., 31 NY2d 1, 9-11 [1972]; Andre-Long v Verizon Corp., 31 AD3d 353, 354 [2d Dept 2006]).

I Loves Me Some Venue: CPLR § 510 R. 511

CPLR § 510 Grounds for change of place of trial

CPLR R. 511 Change of place of trial

Thomas v Guttikonda, 2009 NY Slip Op 09212 (App. Div., 2nd, 2009)

A demand to change venue based on the designation of an improper county (see CPLR 510[1]) "shall be served with the answer or before the answer is served" (CPLR 511[a]). Since the appellants failed to serve a timely demand for a change of venue and failed to make a motion within the 15-day period required under the statute (see CPLR 511[b]), they were not entitled to change the venue of this action as of right (see Baez v Marcus, 58 AD3d 585, 586; Jeffrey L. Rosenberg & Assoc., LLC v Lajaunie, 54 AD3d 813, 816; Obas v Grappell, 43 AD3d 431). Thus, their motion "became one addressed to the court's discretion" (Callanan Indus. v Sovereign Constr. Co., 44 AD2d 292, 295; see Baez v Marcus, 58 AD3d at 586; Jeffrey L. Rosenberg & Assoc., LLC v Lajaunie, 54 AD3d at 816; Obas v Grappell, 43 AD3d at 432). While the appellants contend that their noncompliance with the time limit should be overlooked since they moved promptly after discovering the purported true residence of the defendant Edwin M. Chang, there was no evidence of any willful omissions or misleading statements regarding Chang's residence by the plaintiff (see Joyner-Pack v Sykes, 30 AD3d 469; P.T.R. Co. v Teitelbaum, 2 AD3d 609, 610; Pittman v Maher, 202 AD2d 172, 175; cf. Horowicz v RSD Transp., 249 AD2d 511). Accordingly, the Supreme Court providently exercised its discretion in denying that branch of the appellants' motion which was to change the venue of this action pursuant to CPLR 510(1).

The Supreme Court providently exercised its discretion in denying that branch of the appellants' motion which was to change the venue of this action pursuant to CPLR 510(3) since the [*2]appellants failed to demonstrate that "the convenience of material witnesses and the ends of justice [would] be promoted by the change" (O'Brien v Vassar Bros. Hosp., 207 AD2d 169, 171, quoting CPLR 510[3]).

Notice that 510 is a section and 511 is rule.  What does it mean?  Not a damn thing.