Category: CPLR

CPLR § 901: App. Div. can make de novo review of class certification decision

CPLR § 901 Prerequisites to a class action

Yeger v E*Trade Sec. LLC, 2009 NY Slip Op 06077 (App. Div., 1st, 2009)

In April 2008, Justice Cahn granted class certification and found the Yegers to be proper class representatives.
Noting that the "minuscule" nature of the damages sought did not
bar the claim, the court found the requisite class action element of
commonality based on the allegations that "the same practices were
done" to all members of the class. Aware that plaintiffs had accepted a
refund, the court stated there were "other deductions from the account
for [m]aintenance [f]ees which plaintiffs contend were deducted early
and which were not returned or accepted." After motion practice about
the proper term of the class period, the parties eventually stipulated,
without prejudice to this appeal, to a class period "commencing with
the third quarter of 2003 and ending with the fourth quarter of 2003"
as to all customers charged an AMF "in violation of their customer
agreement."

The Appellate Division may exercise de novo review of a class
certification decision, "even when there has been no abuse of
discretion as a matter of law by the nisi prius court" (Small v Lorillard Tobacco Co., 94 NY2d 43, 53 [1999]). To determine whether a lawsuit [*3]qualifies
as a class action, a court applies the five criteria of CPLR 901(a)
(numerosity, commonality, typicality, adequacy of representation and
superiority) to the
facts (see Hazelhurst v Brita Prods Co., 295 AD2d 240, 242 [2002])[FN1].
"[T]hat wrongs were committed pursuant to a common plan or pattern does
not permit invocation of the class action mechanism where the wrongs
done were individual in nature or subject to individual defenses" (Mitchell v Barrios-Paoli, 253 AD2d 281, 291 [1999]).

Whether E*Trade's conduct in assessing AMFs a day early caused
an individual class member to suffer actual damages depends upon facts
so individualized that it is impossible to prove them on a class-wide
basis. The motion court concluded that class certification was
appropriate because there was a common question as to whether E*Trade
collected the AMF too early, ie, before the date permitted in E*Trade's
contracts. However, this is only half the question. A breach of
contract claim only exists if E*Trade's common conduct actually damaged
a customer. Therefore, to recover, each class member would have to show
that he or she would have avoided the fee had E*Trade collected it at
the proper time. There were several actions that customers could have
taken to avoid the assessment (such as depositing additional funds or
executing additional securities trades), as well as other conditions
not under their control that could have prevented it, such as when
E*Trade, as a courtesy, refunded those customers who paid the AMF. It
is this aspect of proof that would be subject to a host of factors
peculiar to the individual. This aspect of proof is critical. To allow
the Yegers, or any class member, to recover the fee merely because
E*Trade collected it early—without proof that each member of the class
would have taken steps to avoid the fee had collection occurred at its
proper time—would result in a windfall to those plaintiffs who would
not have taken corrective action. In certain cases, it could also
result in writing the AMF out of the agreement entirely, a fee the
parties had agreed to freely. Accordingly, individualized issues,
rather than common ones, predominate (CPLR 901[a][2]).

In addition, plaintiffs are not proper class representatives
because their rejection of E*Trade's offer to refund the fee renders
their claim atypical (CPLR 901[a][3]). We have considered the
plaintiffs' remaining contentions and find them unavailing.

The bold is mine.

CPLR R. 3108 Court declines to issue commision to compel deposition of out of state witness

CPLR R. 3108 Written questions; when permitted

Hinds v Fischer, 2009 NY Slip Op 51594(U) (App. Term, 1st, 2009)

The motion court did not improvidently exercise its
broad discretion in the supervision of discovery-related matters (see Red Apple Supermarkets, Inc. v Malone & Hyde, Inc.,
251 AD2d 78 [1998]) by denying defendant's eleventh-hour motion to take
the deposition of several nonparty witnesses in Connecticut. Viewing
the pro se defendant's application as one seeking the issuance of a
commission pursuant to CPLR 3108, the motion was properly denied in the
absence of any showing that "the proposed out-of-State deponent[s]
would not cooperate with a notice of deposition or would not
voluntarily come within this State or that the judicial imprimatur
accompanying a commission will be necessary or helpful when the
[designee] seeks the assistance of the foreign court in compelling the
witness[es] to attend the examination[s]'" (Reyes v Riverside Park Community [Stage I], Inc., 59 AD3d 219 [2009], quoting, inter alia, Wiseman v American Motors Sales Corp, 103 AD2d 230, 235 [1984]).

We also sustain the denial of that branch of defendant's motion
for discovery of plaintiff's medical records pertaining to plaintiff's
physical condition (including "AIDS, sexually transmitted diseases
[and] alcohol and/or substance abuse"), since such records are
privileged and are not "material and necessary" to the defense of
plaintiff's sole remaining defamation cause of action (CPLR 3101[a]; see generally Monica W. v Milevoi, 252 AD2d 260, 262-263 [1999]). Defendant's remaining discovery request has been rendered moot.

Keep in mind that defendant is pro se, the "eleventh-hour" timing, and that the matter is in civil court. 

Even if the lower court issued a commission, a Connecticut court would have to enforce it.  For an interesting example of a New York court being asked to enforce an out of state commission, click here.

CPLR § 105(u) Use of a verified pleading as an affidavit — Didn’t work this time

CPLR § 105 Definitions

(u) Verified pleading. A “verified pleading” may be utilized as an affidavit whenever the latter is required.

Griffin v 1869 Utica Ave. Corp., 2009 NY Slip Op 51585(U) (App. Term, 2nd, 2009)

CPLR 5015 (a) (1) provides that a court which rendered a judgment
may, upon motion, relieve a party from such judgment upon the ground of
excusable default. In order to obtain such relief, however, the movant
must establish that the default was excusable and that there is a
meritorious defense to the action (see e.g. Kaplinsky v Mazor,
307 AD2d 916 [2003]). In the instant case, defendant failed to
establish by competent evidence a reasonable excuse for defendant's
default in appearing. The affidavit of Mr. Greenbaum's daughter
consisted of conclusory allegations regarding the state of her father's
health, which were insufficient to constitute a reasonable excuse for
the default, particularly in light of the fact that the record
demonstrates that defendant was properly served at Mr. Greenbaum's
address, the corporate address, as directed by the court.

In view of our determination, we need not address the question
of whether defendant established the existence of a meritorious
defense. However, we note that although a verified pleading may be
accepted in lieu of an affidavit of merit (CPLR 105 [u]), it must
contain evidentiary facts from a person with knowledge in order to
establish the merits of the defense (see Juseinoski v Board of Educ. of City of NY, 15 AD3d 353 [2005]). The verified answer in the instant case was insufficient as an affidavit of merit.

Finally, we reject defendant's argument that it was improper for
the court to deem defendant to be self-represented if it did not secure
counsel. A corporate defendant may not obstruct or impede the progress
of litigation by refusing to retain counsel (see e.g. Valisa MFG, LLC v 54 Group, Ltd., 19 Misc 3d 1136[A],
2008 NY Slip Op 51017[U] [2008]), and, where a corporate defendant
fails to appear by attorney, it is proper for a court to hold said
defendant in default (id.; see also World on Columbus, Inc. v L.C.K. Rest. Group, Inc., 260 AD2d 323 [1999]).

The bold is mine.  Most people are unaware of 105(u).  While the provision offered no benefit here, it will in countless cases, should people take advantage of it.  In vacating defaults, CPLR § 317 is another underutilized rule.

Out of State Affidavit: CPLR § 2309(c); RPL § 299-a (1) Substance Rules the Day

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

RPL § 299-a. Acknowledgment to conform to law of New York or of place where taken; certificate of conformity

Andromeda Med. Care, P.C. v Utica Mut. Ins. Co., 2009 NY Slip Op 51629(U) (App. Term, 2nd, 2009)

The affidavits proffered by defendant in support of its
motion for summary judgment were executed out of state. Although the
affidavits were accompanied by documents that purported to be
certificates of conformity, the certificates did not comply with Real
Property Law § 299-a and, thus, the affidavits did not comply with CPLR
2309 (c) (see Ford Motor Credit Co. v Prestige Gown Cleaning Serv.,
193 Misc 2d 262 [2002]). Since this defect was duly objected to by
plaintiff in the Civil Court, defendant failed to introduce competent
evidence in admissible form establishing its entitlement to summary
judgment (see Impulse Chiropractic, P.C. v New York Cent. Mut. Fire Ins. Co., 19 Misc 3d 127[A],
2008 NY Slip Op 50498[U] [App Term, 2d & 11th Jud Dists 2008]).
Consequently, defendant's motion for summary judgment should have been
denied (id.).

This issue seem peculiar to no-fault litigation.  While you see it pop up here in there in other areas of law, it is not nearly as frequent as it is in no-fault.

The Difference Between a CPLR Section and a CPLR Rule

I ran across this reading the introduction to Siegel's New York Practice (Fourth Edition).  Apparently up until 1978 a section could be changed only by the legislature and a rule could be changed by the legislature or Judicial Conference.  In 1978, the section of the Judiciary Law delineating the difference between the two was repealed and the distinction was lost.  Now only the legislature can make changes (though Siegel is clear that this isn't entirely clear).

Also, as I'm sure at least two of you readers have noticed, courts rarely indicate whether they are citing a section or rule.  CPLR § 101(Short title; application) allows such citation.

If you're interested, you can find all this on page 3 of the introduction in the softcover version.

CPLR R. 3025(b)

CPLR R. 3025 Amended and supplemental pleadings
(b) Amendments and supplemental pleadings by leave

Sanatass v Town of N. Hempstead, 2009 NY Slip Op 05955 (App. Div., 2nd, 2009)

The Supreme Court properly determined that the defendant Town of
North Hempstead failed to establish its prima facie entitlement to
judgment as a matter of law on the issue of whether it received prior
written notice of the alleged defect (see Bonilla v Incorporated Vil. of Hempstead, 49 AD3d 788, 789; Kramer v Town of Hempstead, 284
AD2d 503, 504). Accordingly, the Supreme Court properly denied the
Town's motion for summary judgment dismissing the complaint and all
cross claims insofar as asserted against it.

"Leave to amend pleadings should be freely given provided that
the amendment is not palpably insufficient, does not prejudice or
surprise the opposing party, and is not patently devoid of merit" (Gitlin v Chirinkin, 60 AD3d 901, 902; see Sheila Props., Inc. v A Real Good Plumber, Inc., 59 AD3d 424, 426; Boakye-Yiadom v Roosevelt Union Free School Dist., 57 AD3d 929,
931). "A determination whether to grant such leave is within the
Supreme Court's broad discretion, and the exercise of that discretion
will not be lightly disturbed" (Gitlin v Chirinkin, 60 AD3d at 902; see Ingrami v Rovner, 45 AD3d 806,
808). Under the circumstances presented here, the Supreme Court
providently exercised its discretion in granting the plaintiff's cross
motion for leave to amend her pleadings pursuant to CPLR 3025(b).

Trans-World Trading, Ltd. v North Shore Univ. Hosp. at Plainview, 2009 NY Slip Op 05958 (App. Div., 2nd, 2009)

The plaintiff commenced this action seeking, inter alia, damages for
conversion against the Hospital. The cause of action to recover damages
for conversion alleged that the goods allegedly converted were housed
in the coffee shop. In May 2007 the plaintiff moved for leave to amend
the complaint to add a cause of action against the Hospital alleging
tortious interference with the plaintiff's contractual relations with
the coffee shop. It also sought leave to amend the cause of action to
recover damages for conversion against the Hospital to include, in
addition to the goods housed in the coffee shop, goods that were
purportedly stored in the Hospital basement.

A motion for leave to amend a complaint should be freely
granted "unless the proposed amendment is palpably insufficient or
patently devoid of merit, or where the delay in seeking the amendment
would cause prejudice or surprise'" (Commissioners of State Ins. Fund v Service Unlimited, USA, Inc., 50 AD3d 1085, 1085, quoting Lucido v Mancuso, 49 AD3d 220, 222; see G.K. Alan Assoc. Inc. v Lazzari, 44 AD3d 95, 99, affd 10 NY3d 941). The Supreme Court [*2]providently
exercised its discretion in denying that branch of the plaintiff's
motion which was for leave to amend the cause of action to recover
damages for conversion to include goods that were purportedly stored in
the Hospital's basement. Although exposure to additional liability
alone does not, in and of itself, amount to prejudice (see Loomis v Civetta Corinno Constr. Corp., 54 NY2d 18, 23; Commissioners of State Ins. Fund v Service Unlimited, USA, Inc.,
50 AD3d at 1085), in this case, the five-year delay in seeking the
amendment based upon facts that the plaintiff had known since the
inception of this action caused the Hospital surprise and prejudice.
The plaintiff's claim that the Hospital converted a few hundred boxes
of goods stored in its basement was not discernible from the complaint.
Thus, for more than five years, the Hospital proceeded on the premise
that the merchandise underlying the conversion claim was housed inside
the coffee shop (see Morris v Queens Long Is. Med. Group, P.C., 49 AD3d 827; cf. Schutz v Finkelstein Bruckman Wohl Most & Rothman,
247 AD2d 460, 461). Moreover, the plaintiff failed to present a
reasonable excuse for the delay. In light of the prejudice, it is not
necessary to address whether the proposed amendment was palpably
insufficient or patently devoid of merit (see Morris v Queens Long Is. Med. Group, P.C., 49 AD3d at 829; G.K. Alan Assoc., Inc. v Lazzari, 44 AD3d at 99; Lucido v Mancuso, 49 AD3d at 222).

Under the circumstances of this case, the Supreme Court also
providently exercised its discretion in denying that branch of the
plaintiff's motion which was for leave to amend the complaint to add a
cause of action against the Hospital alleging tortious interference
with contract (see Scofield v DeGroodt, 54 AD3d 1017, 1018; Benyo v Sikorjak, 50 AD3d 1074, 1076; Lucido v Mancuso, 49 AD3d at 222; Beja v Meadowbrook Ford, 48 AD3d 495).

The bold is mine.

CPLR § 503(a); CPLR § 510; CPLR R. 511(d)

CPLR § 510 Grounds for change of place of trial

The court, upon motion, may change the place of trial of an action where:

1. the county designated for that purpose is not a proper county; or

2. there is reason to believe that an impartial trial cannot be had in the proper county; or3. the convenience of material witnesses and the ends of justice will be promoted by the change.

CPLR R. 511 Change of place of trial

CPLR § 503 Venue based on residence

Morreale v 105 Page Homeowners Assn., Inc., 2009 NY Slip Op 05952 (App. Div., 2nd, 2009)

Upon renewal, the appellants submitted excerpts of the
plaintiff's deposition testimony, which was taken after the Supreme
Court's original order dated January 8, 2007, denying their motion
pursuant to CPLR 510(1) and 511 to change the venue of the action from
Kings County to Richmond County. The relevant testimony revealed that
on or about December 31, 2005, which was just over one year after the
subject accident, the plaintiff moved to her son's apartment in
Brooklyn from her house in Staten Island after a "diabetic episode,"
that in March or April 2006, she entered into a contract to purchase a
house in New Jersey, that on August 8, 2006, three days after
commencing this action, she "took over" her new house in New Jersey,
and moved into it in November 2006.
[*2]

A residence for venue purposes
is a place where one stays for some time with "the bona fide intent to
retain the place as a residence for some length of time and with some
degree of permanency" (Katz v Siroty, 62 AD2d 1011, 1012; see Jones-Ledbetter v Biltmore Auto Sales, 229 AD2d 518, 519; Mandelbaum v Mandelbaum, 151 AD2d 727, 728).

Upon renewal, the appellants made a prima facie showing that the
plaintiff was temporarily staying at the Brooklyn apartment at the time
she commenced this action without "the bona fide intent to retain the
place as a residence for some length of time and with some degree of
permanency" (Katz v Siroty, 62 AD2d at 1012; see Neu v St. John's Episcopal Hosp., 27 AD3d 538; Jones-Ledbetter v Biltmore Auto Sales, 229 AD2d at 519; Sibrizzi v Mount Tom Day School, 155 AD2d 337). The plaintiff failed to rebut that showing (see Samuel v Green,
276 AD2d 687). Accordingly, upon renewal, the appellants' motion to
change venue from Kings County to Richmond County, the county where the
defendants resided, should have been granted (see CPLR 503[a]; Maggio v Wal-Mart Stores, 275 AD2d 350, 351).

The bold is mine.

Bumpus (IMPORTANT): CPLR § 1024; § 306-b; § 3102; R. 3025; § 602; § 203

CPLR § 1024 Unknown parties

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 §
3102 Method of obtaining disclosure
(c) Before action commenced

CPLR R. 3025 Amended and supplemental pleadings
(b) Amendments and supplemental pleadings by leave

CPLR § 602 Consolidation
(a) Generally

CPLR § 203 Method of computing periods of limitation generally
(f) Claim in amended pleading

I'm only posting the analysis on this one.  For the facts in their entirety, read the decision.  For a brief intro to the decision, click here.

Bumpus v New York City Tr. Auth., 2009 NY Slip Op 05737 (App. Div., 2nd, 2009)

II. The Interplay of CPLR 1024 and 306-b

The
New York State Legislature has recognized that there are circumstances
where a party is ignorant, in whole or in part, of the identity of a
person who should be made a party to an action. CPLR 1024 allows for
the commencement of an action against an unknown party "by designating
so much of his name and identity as is known" (see generally Orchard Park Cent. School Dist. v Orchard Park Teachers Assn., 50
AD2d 462, 467). To be effective, a summons and complaint must describe
the unknown party in such a manner that the "Jane Doe" would understand
that she is the intended defendant by a reading of the papers (see Olmsted v Pizza Hut of Am., Inc., 28 AD3d 855, 856; Justin v Orshan, 14 AD3d 492; Lebowitz v Fieldston Travel Bur., 181 AD2d 481, 482).

The use of CPLR 1024 presents many pitfalls. One pitfall is that
parties are not to resort to the "Jane Doe" procedure unless they
exercise due diligence, prior to the running of the statute of
limitations, to identify the defendant by name and, despite such
efforts, are unable to do so (see Hall v Rao, 26 AD3d 694, 695; Justin v Orshan, 14 AD3d 492, 492-493; Opiela v May Indus. Corp., 10 AD3d 340, 341; Tucker v Lorieo, 291 AD2d 261; Porter v Kingsbrook OB/GYN Assoc., 209
AD2d 497). Any failure to exercise due diligence to ascertain the "Jane
Doe's" name subjects the complaint to dismissal as to that party (see Hall v Rao, 26 AD3d at 695; Justin v Orshan, 14 AD3d at 492-493; Opiela v May Indus. Corp., 10
AD3d at 341). A second requirement unique to CPLR 1024 is that the
"Jane Doe" party be described in such form as will fairly apprise the
party that she is the intended defendant (see City of Mount Vernon v Best Dev. Co., 268 NY 327, 331; Olmsted v Pizza Hut of Am., Inc., 28 AD3d at 856; Justin v Orshan, 14
AD3d at 492-493). An insufficient description subjects the "Jane Doe"
complaint to dismissal for being jurisdictionally defective (see Lebowitz v Fieldston Travel Bur., 181 AD2d 481, 482-483; Reid v Niagra Mach. & Tool Co., 170 AD2d 662). A third pitfall unique to CPLR 1024 is its interplay with CPLR 306-b.

Prior to 1992, when actions in the Supreme and County Courts
were commenced by the service of process rather than by filing, a party
suing a "Jane Doe" defendant was under no particular time deadline for
ascertaining the unknown party's identity, other than commencing an
action against all defendants prior to the expiration of the relevant
statute of limitations (see Luckern [*3]v Lyondale Energy Ltd. Partnership, 229 AD2d 249, 255)[FN1].
However, the enactment of CPLR 306-a in 1992 required that actions in
Supreme and County Courts be commenced by filing rather than by service
(L 1992, ch 216, § 6; see generally Matter of Fry v Village of Tarrytown, 89
NY2d 714, 718-720) and upon filing, CPLR 306-b, which was enacted at
the same time as 306-a (L 1992, ch 216, § 7), superimposed the
requirement that service of process be effected within 120 days (see CPLR 306-b; see generally Leader v Maroney, Ponzini & Spencer, 97
NY2d 95, 100-101). The filing of the summons with notice or summons and
complaint fixed the point at which an action was commenced for statute
of limitations purpose (see Leader v Maroney, Ponzini & Spencer, 97 NY2d at 100; Matter of Gershel v Porr, 89 NY2d 327, 330).

The enactment of CPLR 306-b placed plaintiffs wishing to
commence actions against "Jane Doe" defendants in an unenviable
position that did not previously exist. By virtue of CPLR 306-b,
plaintiffs were required to ascertain the identity of unknown "Jane
Doe" parties, and to serve process upon them, within 120 days from
filing. As a practical matter, it is not always easy or even possible
for plaintiffs naming "Jane Doe" defendants to meet the service
expectations of CPLR 306-b. In any given case involving two or more
defendants including an unknown party, a plaintiff may serve process
upon the known defendants early in the 120-day service period, and then
wait 20 or 30 days for appearances and answers (see CPLR 320[a]), absent consent extensions or pre-answer motions to dismiss the complaint (see CPLR
3211). Upon the joinder of issue, the plaintiff may then serve
discovery demands upon the known parties or upon non-parties for
information that may identify the unknown party, and wait for responses
which may or may not be fruitful, complied with, or timely. The
mechanics of serving process upon known parties, joining issue,
demanding discovery, and receiving meaningful responses will, as a
practical matter, exhaust, in many cases, all or most of the 120-day
period of CPLR 306-b for effecting service upon the newly-identified
party. If a "Jane Doe" is the only named defendant in an action, the
timely identification of the party's true identity for service of
process is even more challenging.

The harshness of CPLR 306-b under these circumstances is
ameliorated, in appropriate instances, by the "good cause" and
"interest of justice" exceptions to CPLR 306-b. These exceptions have
particular utility in actions where, as here, a plaintiff is delayed in
effecting service of process by virtue of not knowing the identity of a
target defendant.

The 120-day service provision of CPLR 306-b can be extended by
a court, upon motion, "upon good cause shown or in the interest of
justice" (CPLR 306-b). "Good cause" and "interest of justice" are two
separate and independent statutory standards (see Leader v Maroney, Ponzini & Spencer, 97 NY2d at 104). To establish good cause, a plaintiff must demonstrate reasonable diligence in attempting service (see Leader v Maroney, Ponzini & Spencer, 97 NY2d at 105-06). Good cause will not exist where a plaintiff fails to make any effort at service (see Valentin v Zaltsman, 39 AD3d 852; Lipschitz v McCann, 13 AD3d 417), or fails to make at least a reasonably diligent effort at service (see e.g. Kazimierski v New York Univ., 18 AD3d 820; Baione v Central Suffolk Hosp., 14 AD3d 635, 636-637; Busler v Corbett, 259
AD2d 13, 15). By contrast, good cause may be found to exist where the
plaintiff's failure to timely serve process is a result of
circumstances beyond the plaintiff's control (see U.S. 1 Brookville Real Estate Corp. v Spallone, 13 Misc 3d 1236[A], quoting Eastern Refractories Co., Inc. v Forty-Eight Insulations, Inc., 187 FRD 503, 505; see also Greco v Renegades, Inc., 307 AD2d 711, 712 [difficulties of service associated with locating defendant enlisted in military]; Kulpa v Jackson, 3 Misc 3d 227, 235 [difficulties associated with service abroad through the Hague Convention]).

If good cause for an extension is not established, courts must consider the "interest of justice" standard of CPLR 306-b (see e.g. Busler v Corbett, 259
AD2d at 17). The interest of justice standard does not require
reasonably diligent efforts at service, but courts, in making their [*4]determinations, may consider the presence or absence of diligence, along with other factors (see Leader v Maroney, Ponzini & Spencer, 97 NY2d at 105). The interest of justice standard is broader than the good cause standard (see Mead v Singleman, 24 AD3d 1142,
1144), as its factors also include the expiration of the statute of
limitations, the meritorious nature of the action, the length of delay
in service, the promptness of a request by the plaintiff for an
extension, and prejudice to the defendant (see Leader v Maroney, Ponzini & Spencer, 97 NY2d at 105-106; Matter of Jordan v City of New York, 38 AD3d 336, 339; Estey-Dorsa v Chavez, 27 AD3d 277; Mead v Singleman, 24 AD3d at 1144; de Vries v Metropolitan Tr. Auth., 11 AD3d 312, 313; Hafkin v North Shore Univ. Hosp., 279 AD2d 86, 90-91, affd 97 NY2d 95; see also Slate v Schiavone Const. Co., 4 NY3d 816).

The practicing bar need not rely exclusively on the ameliorative
provisions of CPLR 306-b for coping with the difficulties posed by
pursuing actions against unknown parties. There are, in fact, at least
four procedural mechanisms that may be utilized which, if applicable
and successful, would render unnecessary a party's reliance upon "good
cause" or the "interest of justice" for additional time to serve
process upon "Jane Doe" defendants who cannot be readily identified.

One such method is pre-action disclosure as permitted by CPLR
3102(c). The statute permits a prospective plaintiff to seek, by court
order, disclosure that will aid in bringing the action (see CPLR
3102[c]). It has been recommended that a request for pre-action
disclosure be sought by means of a special proceeding pursuant to CPLR
article 4 (see Connors, Practice Commentary, McKinney's Cons Laws of NY, CPLR C3102:4, quoting Robinson v Government of Malaysia, 174 Misc 2d 560). While pre-action disclosure is often thought of as a device to enable the plaintiff to frame a complaint (see generally Matter of Wien & Malkin v Wichman, 255 AD2d 244; Matter of Perez v New York City Health and Hosps. Corp., 84 AD2d 789; Matter of Rosenberg v Brooklyn Union Gas Co., 80 AD2d 834; Matter of Urban v Hooker Chems. & Plastics Corp., 75 AD2d 720; Matter of Roland, 10 AD2d 263, 265) or to preserve evidence for a forthcoming lawsuit (see generally Matter of Thomas v New York City Tr. Police Dept., 91 AD2d 898; Gearing v Kelly, 15 AD2d 477; Matter of O'Grady v City of New York, 164 Misc 2d 171, 173; Matter of Spraggins v Current Cab Corp., 127
Misc 2d 774, 775), it has also been recognized as an appropriate device
for ascertaining the identities of prospective defendants (see Matter of Alexander v Spanierman Gallery, LLC, 33 AD3d 411; Matter of Toal v Staten Is. Univ. Hosp., 300 AD2d 592; Matter of Stewart v New York City Tr. Auth., 112 AD2d 939, 940; Perez v New York City Health and Hosps. Corp., 84 AD2d at 789; Matter of Bergan v Sullivan Bros. Wood Prods. of Keeseville, 77 AD2d 723; Matter of Roland, 10
AD2d at 265). Plaintiffs' attorneys who are retained sufficiently in
advance of the expiration of the statute of limitations may avoid the
problem of identifying a "Jane Doe" defendant for service within the
time limits of CPLR 306-b, where successful pre-action disclosure
results in the identification of the unknown defendant prior to the
filing of a summons and complaint.

A second mechanism, available when a governmental entity may
know the identify of the unknown party, is the Freedom of Information
Law (Public Officers Law art 8, hereinafter FOIL). In a case such as
this involving a public employee, Public Officers Law § 89 would
require the disclosure of the employee's name (see Matter of Faulkner v Del Giacco, 139
Misc 2d 790, 794 [disclosure of names of prison guards accused of
inappropriate behavior]), but exempt from disclosure the employee's
home address (see Public Officers Law §§ 87[2][b]; 89[2][b]; 89[7]; Matter of Pasik v State Bd. of Law Examiners, 114 Misc 2d 397, 407-408, mod 102
AD2d 395). Nothing in the Public Officers Law appears to prohibit the
disclosure of records identifying an employee's work location and
schedule, which was the information that the NYCTA ultimately agreed to
provide to the plaintiff's counsel in this instance to enable service
of process upon Smith. FOIL requests are designed to be acted upon by
public agencies expeditiously, typically within five business days from
receipt of a written request for non-exempt records (see Public
Officers Law § 95[1][a]). The speed of the statute can prove useful to
practitioners who, facing an approaching statute of limitations, seek
to identify the "Jane Doe" party prior to the commencement of the
action.

Third, if pre-action discovery or FOIL requests are not viable
options, plaintiffs intending to pursue a "Jane Doe" defendant may
commence their actions against any known co-defendants, who may possess
information identifying the unknown party, well in advance of the
statute of limitations (accord Misa v Hossain, 42 AD3d at 486).
Doing so affords two distinct procedural options. If the discovery
process would not lead to an identification of the unknown target in
sufficient time for service of process upon that party under the
limited 120-day deadline of CPLR 306-b, the subsequent disclosure of
identifying information will still permit, within the wider statute of
limitations, either an amended complaint by stipulation or by leave of
court naming the [*5]additional party (see CPLR
3025[b]), or alternatively, the commencement of a timely separate
action against the additional party with a view to its later
consolidation with the original action (see CPLR 602[a]; cf. Matter of Vogel, 19 Misc 3d 853,
859). Commencing the initial action well before the expiration of the
statute of limitations makes service upon the newly-identified party
possible. The same result does not inure to practitioners who wait
until the limitations period is close to expiring before commencing
their actions against known parties.

Fourth, when an originally-named defendant and an unknown "Jane
Doe" party are united in interest, i.e. employer and employee, the
later-identified party may, in some instances, be added to the suit
after the statute of limitations has expired pursuant to the
"relation-back" doctrine of CPLR 203(f), based upon post-limitations
disclosure of the unknown party's identity (see Reznick v MTA/Long Is. Bus, 7 AD3d 773, 774; Gottlieb v County of Nassau, 92
AD2d 858). The relation-back doctrine allows a party to be added to an
action after the expiration of the statute of limitations, and the
claim is deemed timely interposed, if (1) the claim arises out of the
same conduct, transaction, or occurrence, (2) the additional party is
united in interest with the original party, and (3) the additional
party knew or should have known that but for a mistake by the plaintiff
as to the identity of the proper parties, the action would have been
brought against the additional party as well (see Buran v Coupal, 87
NY2d 173, 178). The moving party seeking to apply the relation-back
doctrine to a later-identified "Jane Doe" defendant has the added
burden of establishing that diligent efforts were made to ascertain the
unknown party's identity prior to the expiration of the statute of
limitations (see Hall v Rao, 26 AD3d at 695; Scoma v Doe, 2 AD3d at 433; Tucker v Lorieo, 291 AD2d at 262).

Furthermore, if the plaintiff is truly at the mercy of a service
extension under CPLR 306-b, which is discretionary on the part of the
court (compare Crystal v Lisnow, 56 AD3d 713, 714 with Cooper v New York City Bd. of Educ., 55 AD3d 526),
any "Jane Doe" service problem should be proactively addressed by the
filing of a motion for a CPLR 306-b extension. Indeed, the promptness
of a request for an extension of time to serve a "Jane Doe" defendant
is a specific factor that is to be considered by courts in determining
"interest of justice" extensions (see Leader v Maroney, Ponzini & Spencer, 97 NY2d at 105-106; Matter of Anonymous v New York State Off. of Children & Family Servs., 53 AD3d 810, 810-811; Rosenzweig v 60 N. St. LLC, 35 AD3d 705; Scarabaggio v Olympia & York Estates Co., 278 AD2d 476, affd
97 NY2d 95). While CPLR 306-b is not construed to require that a motion
for a service extension be filed before the expiration of the 120-day
statutory period (see Leader v Maroney, Ponzini & Spencer, 97 NY2d at 106-07), prompt motions are more likely to be successful (id.; Scarabaggio v Olympia & York Estates Co., 278 AD2d at 476), as they are a sign of diligence, whereas dilatory motions are less so (see Matter of Anonymous v New York State Off. of Children & Family Services, 53 AD3d at 810-811).

The bold is mine.

CPLR R. 5015(a)(4) Bad Faith Removal Doesn’t Divest NY Court of Jurisdiction

CPLR R. 5015 Relief from judgment or order
(a) On motion
(4) lack of jurisdiction to render the judgment or order

Astoria Fed. Sav. & Loan Association/Fidelity N.Y. FSB v Lane, 2009 NY Slip Op 05685 (App. Div., 1st, 2009)

Now, more than 10 years after the properties were sold and without
giving any excuse for her extraordinary delay, Lane seeks to undo the
foreclosures, oust the current owners from their homes, and vacate the
judgments. Lane's motions, presumably brought pursuant to CPLR
5015(a)(4), allege that Supreme Court lacked jurisdiction during the
limited time period in 1997 between the filing of the removal petition
and the federal court remand. Notably, Lane does not claim, nor could
she, that Supreme Court did not have jurisdiction over the matter at
any other time during the long history of this case. Lane offers no
reason why her removal attempt was proper, nor does she present any
viable defense on the merits of the foreclosure actions. And it is
undisputed that at the time the properties were sold, the federal court
had already remanded the matter to state court.

As a general rule, removal of an action divests the state court of its
jurisdiction over the dispute while the removal petition is pending in
federal court (Matter of Artists' Representatives Assn. [Haley],
26 AD2d 918 [1966]). While no New York case has addressed the specific
issue presented here, a number of other courts have carved out
exceptions to the general rule focusing on situations where removal
petitions were frivolous, duplicative or abusive. For example, in Motton v Lockheed Martin Corp.
(692 So 2d 6 [La App 1997]), after the defendant filed an improper
removal petition but before the federal court remanded, the plaintiff
filed a notice of appeal. The court denied the defendant's motion to
dismiss the appeal, finding that the defendant's removal attempt was
made to delay the plaintiff's right to move forward in the case.

…

We find that under the unique circumstances of this case, where the
federal court found the removal petition to be frivolous on its face
and where it was made in bad faith at the eleventh hour, following an
unsuccessful appeal, the motion court was not required, more than a
decade later, to vacate the judgments based on a claimed lack of
jurisdiction. There is no question that Lane's removal petition was
frivolous. In the order summarily remanding the matter to state court,
the federal court concluded that the petition showed "no non-frivolous
basis for jurisdiction" and that "it clearly appears on the face of the
papers submitted that removal should not be permitted."
[*3]

Moreover, Lane's removal
petition was undeniably untimely. A notice of removal of a civil action
must be filed within 30 days after receipt of a copy of the initial
pleading (28 USC
§ 1446[b]). Here, the foreclosure actions were commenced in
December 1994 and Lane's answers were struck in February 1996, yet the
removal petition was not filed until May 1997. Therefore, in addition
to asserting frivolous grounds for removal, the petition was
time-barred and could not have caused the state court to lose
jurisdiction (see Booth v Stenshoel, 96 Wash App 1019, 1999 WL
438888 [state court had jurisdiction to enter judgment after removal
petition was filed on the day of trial and 16 months after the action
was commenced]; Miller Block Co. v United States Natl. Bank, 389 Pa Super 461, 567 A2d 695 [1989], lv denied
525 Pa 658, 582 A2d 324 91990] [state court not divested of
jurisdiction upon filing of the removal petition where petition was
undisputedly untimely]; Ramsey v A.I.U. Ins. Co., 1985 Ohio App
LEXIS 8157, 1985 WL 10329 [an untimely removal petition is a nullity
and does not divest the state of jurisdiction]).

Lane's bad faith in filing her removal petition is apparent.
After an unsuccessful appeal and the lifting of an appellate stay, Lane
filed for bankruptcy and, as a result, obtained yet another stay of the
foreclosure action, which already had been pending for several years.
After the bankruptcy stay was lifted, plaintiff submitted proposed
judgments of foreclosure. A week later, instead of taking any action in
state court, Lane filed her frivolous removal petition. The only fair
reading of the record is that Lane's actions in attempting removal were
made in bad faith for the purpose of delaying the imminent
foreclosures. Lane's bad faith litigation conduct persists to this day,
as evidenced by her inexcusable delay in waiting more than 10 years to
challenge the judgments despite being aware of their existence within
weeks of their entry.

We recognize that some courts have concluded no exceptions
should be created to the general rule and thus have invalidated state
court action taken after removal but before remand (see e.g. South Carolina v Moore, 447 F2d 1067 [4th Cir 1971]; State ex rel. Morrison v Price, 285 Kan 389, 172 P3d 561 [2007]; People v Martin-Trigona,
28 Ill App 3d 605, 328 NE2d 362 [1975]). These cases are not binding on
us, and in any event, we decline to follow them under the egregious
circumstances presented here. With no good reason, Lane waited over a
decade before deciding to come back to court to challenge the
foreclosures. Her abuse of the legal process, both in filing a bad
faith petition and in failing to move to vacate the judgments she
unquestionably knew about, cannot be countenanced, particularly in
light of the harm that could befall the innocent purchasers of the
properties. To hold otherwise would reward Lane for her inexcusable
delaying tactics and would be entirely "inconsistent with any notion of
fairness and justice" (Farm Credit Bank of St. Paul v Rub, supra, 481 NW2d at 457).

The bold is mine.

CPLR § 217: Blown SOL, adjudicated in NY, Moved to Fed, UnBlown

CPLR §
217 Proceeding against body or officer; actions complaining about
conduct that would constitute a union's breach of its duty of fair
representation; four months

I found this by way of a guest blog on Sui Generis.  Norman Olch, author of Full Court Press, writes about Cloverleaf Realty of New York, Inc. v. Town of Wawayanda, 2nd Circuit Court of Appeals Case, involving the statute of limitations.  Here is the time-line for the case:

  • NY DJ action. Case dismissed because four month SOL is blown. (CPLR 217)
  • Action then brought into Fed Ct.  Fed Ct. dismisses because of prior dismissal in state court prevented this action proceeding in fed.
  • 2nd Cir. reverses.
  • MIND BLOWN

Do yourself a favor and check out his post.