Category: CPLR

The plaintiff commenced this action seeking, inter alia, to
impose a constructive trust in her favor on certain real property
formerly owned by her. She filed a notice of pendency on the property
on April 12, 2007. On or about May 1, 2007, the defendant Harvey Sorid
was served with four copies of the summons and complaint at the
business office of all of the defendants. On May 4, 2007, the plaintiff
mailed two copies of the summons and complaint to the business office,
addressed to each of the defendants Jay Sorid and Susan Sorid
(hereinafter together the appellants). The envelopes were marked
"privileged + confidential."

The appellants moved, inter alia, pursuant to CPLR 6514(a) to
cancel the notice of pendency and pursuant to CPLR 6514(c) for an award
of costs, arguing that Harvey Sorid did not have an ownership interest
in the premises and that service was not properly effectuated upon
either of them within the 30-day time limit of CPLR 6512. The
appellants did not challenge personal jurisdiction [*2]as
it was undisputed that service was effectuated upon them in June 2007.
The plaintiff opposed the motion, arguing that Harvey Sorid had an
equitable interest in the property and therefore service upon him was
sufficient to avoid cancellation of the notice of pendency, and that,
in any event, service had been effectuated on the appellants pursuant
to CPLR 308(2) within the statutory time period. In the order appealed
from, the Supreme Court, inter alia, denied those branches of the
appellants' motion which were pursuant to CPLR 6514(a) to cancel the
notice of pendency and pursuant to CPLR 6514(c) for an award of costs.
We affirm the order insofar as appealed from.

CPLR 6514(a) provides for mandatory cancellation of a notice of
pendency if service of a summons has not been completed within the time
period set forth in CPLR 6512, which is 30 days after filing of the
notice of pendency. In multi-defendant cases, service is sufficient for
purposes of CPLR 6514(a) if it is timely made on any one defendant with
an ownership interest in the subject property (see Merchants Bank of N.Y. v Rosenberg, 31 AD3d 507; Weiner v MKVII-Westchester, 292 AD2d 597; Rabinowitz v Larkfield Bldg. Corp., 231 AD2d 703; Slutsky v Blooming Grove Inn, 147 AD2d 208, 212).

Contrary to the plaintiff's contention, the defendant Harvey Sorid did not have an ownership interest in the subject property (cf. Merchants Bank of N.Y. v Rosenberg, 31 AD3d 507). Accordingly, service upon him was insufficient to meet the requirements of the statute.

However, for the purposes of CPLR 6514, service upon the
appellants was timely effectuated pursuant to CPLR 308(2). While the
envelopes mailed to their business office erroneously bore the legend
"privileged + confidential" instead of "personal and confidential,"
under the circumstances of this case, where the defect does not
implicate personal jurisdiction and no prejudice resulted from the
mislabeling, the defect was properly disregarded pursuant to CPLR 2001 (see Patrician Plastic Corp. v Bernadel Realty Corp., 25 NY2d 599, 608; Matter of Perez v Villamil, 19 AD3d 501; Federal Loan Home Mtge. Corp v Torres, 238 AD2d 306, 307).

People v. Kozlowski,
2008 NY Slip Op 07759, (Ct. App.)

Today's issue of the New York Law Journal contained a roundup of a few recent Court of Appeals decisions.  The article is authored by Roy L. Reardon and Mary Elizabeth McGarry, partners at Simpson Thacher & Barlett.  One of the decisions, People v. Kozlowski,
2008 NY Slip Op 07759, addressed the work product privilege and how the privilege can be overcome when a party is looking for "investigation materials."

Next, the Court discussed privilege and waiver. Our readers may find it
helpful to be reminded of New York's attorney privilege terminology,
which differs from that of some other jurisdictions. CPLR 3101(c)
provides that, "[t]he work product of an attorney shall not be
obtainable." The Court observed that the drafters of §3101(c)
apparently were attempting to protect attorney-client privileged
materials from disclosure in distinguishing absolutely privileged "work
product" from materials "prepared in anticipation of litigation or for
trial," which are only conditionally protected under CPLR 3101(d)(2).

None of the parties asserted that Boies Schiller's interview materials
were attorney-client privileged. The People maintained that they
constituted absolutely protected work product, while the defendants
argued that they constituted qualifiedly privileged trial preparation
materials. The Court of Appeals agreed with the trial court that the
factual portions of interview notes and memoranda were trial
preparation materials, observing that "the mere fact that a narrative
witness statement is transcribed by an attorney is not sufficient to
render the statement 'work product.'"


The trial court found that defendants had failed to meet their burden
of establishing the elements of the §3101(d)(2) test for overcoming the
conditional protection of trial preparation materials, i.e., a
"substantial need" because the defendants could not obtain the
"substantial equivalent of the materials" without "undue hardship." The
Court of Appeals affirmed, stating that it could not conclude that the
trial court had abused its discretion as a matter of law.

Between the lines of the decision, however, is the suggestion that, had
the judges decided the issue in the first instance, the outcome may
well have been different. The opinion took note of the fact that the
interviews of directors and employees are a common feature of internal
investigations, as are "consult[ation]" between prosecutors and a
corporation's counsel seeking to protect his or her client from
criminal sanctions. It recognized that such "collaboration" may have a
public benefit, but stated that it also "may come at the expense of the
proper safeguarding of the rights of individual corporate employees."
The Court instructed that these factors should be balanced in deciding
whether to grant a defendant access to trial preparation materials
under a claim of "substantial need."

The article discussed several other cases which are not mentioned here.  To read the rest of the article, click HERE.

The bold is mine.

In an action, inter alia, for the appointment of a receiver, the
defendants Baruch Mappa and Martin Rosenberg appeal, as limited by
their brief, from so much of an order of the Supreme Court, Kings
County (Harkavy, J.), dated May 4, 2007, as, upon granting the
application of the defendant Antonia C. Novello, as Commissioner of the
New York State Department of Health, in effect, to join this action for
trial with a related action entitled State of New York v Baruch Mappa and Martin Rosenberg,
pending in the same court under Index No. 10658/07, permitted the State
of New York, as the plaintiff in the related action, to serve the
summons and complaint in the related action upon their attorney
pursuant to CPLR 308(5).

ORDERED that on the Court's own motion, the notice of appeal
from the order is treated as an application for leave to appeal, and
leave to appeal is granted (see CPLR 5701[c]); and it is further,

ORDERED that the order is reversed insofar as appealed from, on the facts and in the exercise of discretion, with costs.

The respondents failed to establish that service on the appellants pursuant to CPLR 308(1), (2), [*2]and (4) was "impracticable" so as to permit service under CPLR 308(5) (see Staton v Omwukeme, 277 AD2d 443; Smith v Waters, 232 AD2d 545; Coffey v Russo, 231 AD2d 546; Porter v Porter, 227 AD2d 538; Markoff v South Nassau Community Hosp., 91 AD2d 1064, affd
61 NY2d 283). Accordingly, the Supreme Court improvidently exercised
its discretion in permitting service of the summons and complaint in a
related action upon the appellants' attorney pursuant to CPLR 308(5).

The respondents' remaining contention that the appellants
waived their objection to service pursuant to CPLR 308(5), is not
properly before this Court and, in any event, is without merit.

We hold that collateral estoppel does not prevent relitigation of a
ruling that was an alternative basis for a trial-level decision, where
an appellate court affirmed the decision without addressing that
ruling. We also hold that, when a trustee resigns, the statute of
limitations governing an action to compel her to account runs from the
date the trusteeship is [*5]turned over to a successor trustee.

The parties agree that an accounting proceeding against a former
trustee is governed by CPLR 213 (1), which lists "an action for which
no limitation is specifically prescribed by law" among actions that
"must be commenced within six years." The disputed question here is:
within six years of what? We answered this question nearly a century
ago, when we said, speaking through Judge Cardozo:

"While an express trust subsists and has not been
openly renounced, the Statute of Limitations does not run in favor of
the trustee. But after the trust relation is at an end, and the trustee has yielded the estate to a successor, the rule is different. The running of the statute then begins, and only actual or intentional fraud will be effective to suspend it"

(Spallholz v Sheldon, 216 NY 205, 209 [1915] [citations omitted] [emphasis added]).

We see no reason to depart from the rule of Spallholz. It is easy to understand and easy to apply, and gives the successor trustee and the beneficiaries six full years to bring an [*14]accounting
proceeding after the former trustee's role has come to an end. In this
case, Tydings turned over the trusteeship to a successor on January 1,
1997, and the accounting proceeding was brought more than six years
later, on August 20, 2003. It was brought too late.

GSS argues for a different rule, contending that the statute
does not start to run until the former trustee is asked to give an
accounting and refuses to do so. That rule is an impractical one; its
effect would be that the statute would not start to run for years,
perhaps decades, if the former trustee was never asked for an
accounting and had no occasion to say that she would not give one. GSS
claims, however, that its rule is supported by Matter of Barabash (31 NY2d 76 [1972]). We disagree.

Barabash is a different kind of case. The fiduciary there
was the administrator of a decedent's estate, and was also the
decedent's nephew. The administrator had distributed the entire estate
to himself, ignoring the rights of the decedent's children. The
children sued for an accounting some 17 years later. It was not
suggested in Barabash that the administrator had resigned, or
turned over his office to a successor. We held that, on those facts,
the statute did not begin to run until the administrator openly
repudiated his obligation to account. Until that repudiation occurred,
the beneficiaries of the estate were entitled to assume that the
administrator would perform his trust responsibilities. But here,
Singer knew on January 1, 1997 that her brother had replaced Tydings as
trustee. Knowing that Tydings was no longer her fiduciary, she was not
justified in waiting indefinitely to demand an accounting.
[*15][*16][*17]

The Surrogate in the Singer
accounting proceeding did not adopt GSS's present theory, but held that
the "statute of limitations can begin to run on the beneficiary's right
to an accounting only where the former fiduciary has failed to have
accounted after a reasonable time to do so has passed" (12 Misc 3d at
625). The Surrogate's theory, as we understand it, is that the
beneficiaries or the successor trustee cannot or should not bring
action to compel an accounting until a reasonable time after the
resignation, and that the statute should not start running before suit
can be brought.

The Surrogate's theory would leave the courts with the problem
of deciding what a reasonable time is. In this case, for example, the
accounting proceeding was brought six years, seven months and nineteen
days after Tydings turned the trusteeship over to her successor — so
that, on the Surrogate's reasoning, it would be necessary to decide
whether seven months and nineteen days was more or less than a
reasonable time to account. We prefer the clearer and simpler rule that
the time starts running when a successor trustee is put in place. This
rule does not give Singer less than six years to sue, for she could
have sought to compel an accounting the day after Tydings's resignation
if she had wanted to. Under Surrogate's Court Procedure Act § 2205 (1),
"the court may at any time, upon it appearing that it is for
the best interests of the estate, make an order . . . requiring a
fiduciary to file an intermediate or final account . . ." (SCPA § 2205
[1] [a] [emphasis added]).
[*18]

For all these reasons, we reaffirm the rule of Spallholz:
running of the statute of limitations on a proceeding to compel an
accounting begins when "the trust relation is at an end, and the
trustee has yielded the estate to a successor" (216 NY at 208).