CPLR § 5015(a)(1); (22 NYCRR) § 125.1(c); Affirmation of Engagement

CPLR § 5015(a)(1)

(22 NYCRR) § 125.1 Engagement of counsel (c)

CPLR R. 3405


Carroll v Nostra Realty Corp., 2008 NY Slip Op 07041 (App. Div., 1st)

Discovery was dragging on for several years and the Court told plaintiff to file an NOI.  After it was filed, both parties were ordered to appear on August 14th.  On that day plaintiff received an adjournment over defendant’s objection.  It was adjourned to October 12.  When October 12th came around, the plaintiff’s attorney who had previously appeared wasn’t there.  Instead, his partner appeared with an "affirmation of engagement".  That affirmation stated that he was on trial in another matter, however, as the court later found out, he was not "on trial."  Rather, he was preparing for a trial; jury selection was to start October 16.

The Court, after becoming aware of the situation, "rejected the affirmation of engagement as misleading, and dismissed this action."  Plaintiff then moved to vacate the default judgment pursuant to CPLR § 5015(a)(1) and the lower court denied the motion.

The Appellate Division agreed:

Section 125.1(b) of the Rules of the Chief Administrator of the Courts states: [*2]"[e]ngagement
of counsel shall mean actual engagement on trial or in argument before
any state or federal trial or appellate court, or in a proceeding
conducted pursuant to rule 3405 of the CPLR and the rules promulgated
On October 12, 2006, Mr. Gold was not actually engaged on trial or
in argument before any court, and as the record reveals, was actually
preparing witnesses on another matter. Accordingly, we reject
plaintiffs’ contention that they demonstrated a reasonable excuse for
failing to proceed to trial in this action.

While there is no express definition of the term "on trial" in
the applicable rules, it is commonly understood that a trial commences
with the selection of a jury
(see Draves v Chua, 168 Misc2d 314, 315 [Sup Ct, Erie County 1996]; Wright v Centurion Investigations, Inc., 109 Misc2d 624 [Civil Court, Kings County 1981]; see also
CPL 1.20[11]). In any event, under no reasonable understanding of that
term can an attorney who is directed to appear days later to select a
jury be considered to be on trial on the day the direction is given.
Contrary to plaintiffs’ contention, an attorney is not actually engaged
on trial when he is issued a jury slip.
Accordingly, Mr. Gold was not
actually engaged on trial in another matter on October 12, 2006 since
he had not commenced selecting a jury in that case.

At a minimum, even if Mr. Gold believed that he was actually
engaged on another matter, he was required to appear on October 12,
2006 on this action, and, pursuant to the Rules of the Chief
Administrator of the Courts (22 NYCRR) § 125.1(c), permit the courts to
determine which trial should proceed first.

All the bold is mine.

CPLR § 205(a) amendment & CPLR R. 3216

CPLR § 205 New action by plaintiff

CPLR R. 3216 Want of prosecution

Monday’s New York Law Journal will have  David Siegel’s (of "Siegel, New York Practice" fame) article, Amendment Bars ‘Neglect to Prosecute’ Dismissal.  In it he discusses a recent amendment to CPLR §  205(a) will have an effect on motions to dismiss pursuant to CPLR R. 3216.

Here is part of the article, you can read the rest in Monday’s Law Journal or in the online edition today:

Chapter 156 of the Laws of 2008 was signed into law on July 7, 2008, took effect immediately, and is in effect now.

Most interesting is that it is not an amendment of CPLR 3216, the
CPLR’s explicit provision on the neglect to prosecute, but of CPLR
205(a), the statute that gives a plaintiff a new six-month period in
which to commence a new action when a non-merits dismissal of an
earlier one occurs and the original statute of limitations has already
expired. The problem aimed at by the amendment is that the neglect to
prosecute dismissal is an exception to CPLR 205(a), which does not
offer its six months when want of prosecution is the reason for the
prior dismissal.

The neglect to prosecute dismissal is not ordinarily on the merits and
therefore doesn’t give rise to a res judicata defense if the plaintiff
brings a new action on the claim. The statute of limitations is and has
almost always been the problem. If the statute has expired when the
neglect to prosecute occurs, a new action is barred by time and CPLR
205(a) offers no lifeline.1

The amendment adds to CPLR 205(a) the instruction that a court making a neglect to prosecute dismissal must:

set forth on the record the specific conduct constituting the
neglect, which conduct shall demonstrate a general pattern of delay in
proceeding with the litigation.

Presumably a neglect to prosecute dismissal made without that
showing – that explicit finding of "a general pattern of delay" – will
no longer disqualify the case for the six-month period for the new
action, which is sterling news for plaintiffs. Tentatively, anyway.

There are lessons here for all litigation participants: judges,
plaintiffs and defendants, especially in view of the fact that there
exist a variety of dismissals based on specific misconduct – failure to
serve a complaint, answer a calendar call, pick a jury, submit to
pretrial disclosure, etc. – that can also qualify as "neglect to
prosecute" dismissals under CPLR 205(a) and thus not earn the six
months for a new action.

There are a number of "neglect to prosecute" dismissals, in other
words, that are not predicated on the "neglect to prosecute" statute,
CPLR 3216. The "neglect to prosecute" reference in CPLR 205(a) is a
galaxy of its own, in which CPLR 3216 is but one planet.

The lesson to judges now faced directly with a CPLR 3216 motion to
dismiss is to grant it only when satisfied that the plaintiff has been
guilty of "a general pattern of delay,",and only if the judge is
prepared to "set forth on the record the specific conduct constituting
the neglect." Dismissing without that record, even if denominating the
dismissal as one for "neglect to prosecute" or using a like phrase,
will not deny the plaintiff the cherished gift of the CPLR 205(a) six

A "general pattern of delay" is the sine qua non, with a written record
detailing the plaintiff’s "specific conduct" that justifies the
"general pattern of delay" conclusion.

Apparently just one or two missteps or delays by a plaintiff won’t do
the job. There’s got to be a "pattern" of dilatory conduct.

The article goes on to discuss ways for defendants to make sure their CPLR R. 3216 motions are effective in light of the "general pattern of delay" requirement as well as whether CPLR § 205(a) will have an impact on CPLR R. 3404 motions. Towards the end, Mr. Siegal has a very interesting discussion regarding the history of CPLR R. 3216.

Look for more on this article later.

All the bold is mine.

CPLR R. 3212(a) — 120 day rule

CPLR R. 3212 Motion for summary judgment.
(a) Time; kind of action.

Matt Lerner, author of New York Civil Law, recently posted about a case about to be argued before the Court of Appeals.  The decision being appealed is Crawford v Liz Claiborne, Inc., 45 AD3d 284 (App. Div., 1st).  Mr. Lerner gives us the context:

In Crawford, the
parties entered into a scheduling order in New York County.  The
outside deadline to file summary judgment motions was pursuant to the
local rules.  The local rules provide that movants have an outside
deadline of 60 days after the filing of the note of issue, rather than
the 120-day deadline.

The defendant unfortunately
overlooked the local rules and, upon realizing the oversight, served
and filed its summary judgment motion a few days after the 60-day
deadline.  The trial court considered the motion, even though the
motion was beyond the 60-day deadline, and dismissed the complaint.
The Appellate Division, First Department reversed the Decision and Order, holding that an oversight regarding the court rules did not constitute "good cause" under Brill and CPLR 3212.  Justice Tom and Williams dissented.

Court of Appeals will address whether this type of oversight
constitutes "good cause."  New York Civil Law will keep you apprised of
the Court’s holding, which should be handed down in October.

Here is a brief excerpt of the Crawford decision::

At bottom, the principal issue on this appeal is whether good cause existed to allow Supreme
Court to consider a summary judgment motion that was untimely. In accord with the precedent
that we are required to follow, we conclude that good cause was lacking in this case. In so
holding, we certainly do not "take[ ] away the discretionary power of [a] trial court to excuse a de
minimis delay in [making a] summary judgment motion"; rather, we find that the de minimis
[*3]delay in this case was not satisfactorily explained

(Brill, 2 NY3d at 652 [" ‘good cause’ in CPLR 3212 (a) 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" (emphasis added)]; see Milano, 17 AD3d at 645 [summary
judgment motion made one day past deadline needed to be supported by good cause for the
delay]). Although we have every confidence that the IAS court would preside fairly and
impartially over the matter upon remand, plaintiff raises a reasonable concern about the
appearance of impartiality, and we accordingly direct that this matter be reassigned to another
Justice. In so doing, contrary to the unfortunate statements by the dissent, we neither "reproach"
nor "impugn[ ] the court’s impartiality"; nor, of course, does our mere disagreement with the IAS
court’s decision to consider the merits of the motion play any role in that direction. Finally,
contrary to the dissent, our concern about the appearance of impartiality is not founded upon
Supreme Court having decided a dispositive motion adversely to plaintiff.

There was a strong dissent.

CPLR R. 3212(a) is one of those little things that can turn into one of those big things if it’s overlooked or its importance underestimated.

Keep an eye on New York Civil Law for future developments.  Don’t forget to check here as well.

All the bold is mine.

CPLR § 3103(a); § 3102(e)

Enforcement of an out of state subpoena and the Court’s ability to quash.

3102 Method of obtaining disclosure
3103 Protective orders

Matter of Trump v Sulzberger, 2008 NY Slip Op 51810(U) (Supreme Court, New York County).

Here, Trump made a motion in New Jersey for "non-party out-of-state depositions of three executives of The Times" and the motion was granted by Judge Kassel.

Addressing possible objections by the deponents or The Times, Judge
Kassel ruled that as non-parties, their objections would have to be
raised in New York after the subpoenas were served, and that he was
only "looking at whether or not the defendants are prejudiced." Judge
Kassal concluded that "[t]he bottom line is this, and I can’t give a
better reason, other than the fact that my sense that it’s not a wild
goose chase. . . . I’m going to permit the depositions, at least from
New Jersey’s end."

Well, what about New York’s end?  Here’s where it gets interesting.

On March 19, 2008, Trump filed an ex parte application in the Supreme
Court of the County of New York, for an order pursuant to CPLR 3201(e)
authorizing New York service of subpoenas ad testificandum and duces
tecum on Sulzberger, Keller and Ingrassia. On that same day, the Hon.
William J. Davis issued an ex parte order granting the application, and
directing Sulzberger, Keller and Ingrassia to appear for depositions,
and to produce the demanded documents. Sulzberger and Keller [FN4]
are now moving to quash the subpoenas, arguing that they impose an
unreasonable burden on senior executives of a non-party who have no
direct knowledge of the facts in the dispute, and that the "tangential
information" sought from these witnesses is not legitimately needed in
the New Jersey action.

CPLR 3102(e) provides that when a court in another state issues a
mandate or commission requiring testimony by a New York witness, the
witness "may be compelled to appear and testify in the same manner and
by the same process as may be employed for the purpose of taking
testimony in actions pending in the state."
CPLR 3102(e). Under section
3102(e), a New York court can order the testimony of a witness or
compel the production of documents in aid of an action pending outside
the state. The purpose of CPLR 3102(e) is to make available the
mechanism of New York courts to secure disclosure from persons subject
to New York jurisdiction for use in an action in any other
jurisdiction. See Kirkland & Ellis v. Chadbourne & Parke LLP,
176 Misc 2d 73, 76-77 (Sup Ct, NY Co 1998); 7B McKinney’s §3102,
Commentary C3102:9 at 500-500. "It is appropriate for the Sister State
court which has the underlying case, and is therefore in a better
position to determine the appropriate scope of disclosure, to make the
threshold determination as to whether to permit the discovery. The New [*4]York court’s role is necessarilBiggery more limited." Matter of Welch, 183 Misc 2d 890, 891 (Sup Ct, NY Co 2000).

If the court in another state permits the discovery, the New York
"court’s inquiry with respect to objections raised by persons required
to testify pursuant to CPLR 3102(e) is limited to determining (1)
whether the witnesses’ fundamental rights are preserved; (2) whether
the scope of inquiry falls within the issues of the pending
out-of-state action; and (3) whether the examination is fair."
Matter of Ayliffe & Cos, 166 AD2d 223, 224 (1st Dept 1990), lv app den 76 NY2d 714 (1990) (citing Matter of Brandes v. Harris,
78 AD2d 638, 639 [2nd Dept 1980]). "The courts will not prejudge the
materiality or the competency of the evidence in a cause pending in
another jurisdiction and will afford the widest possible latitude in
the conduct of such examinations.’" Id (quoting Matter of Roberts, 214 AD 271, 275 [1st Dept 1925]).

Notwithstanding the foregoing, New York courts retain
discretionary authority under CPLR 3103(a) to issue a protective order
or to quash a subpoena issued pursuant to CPLR 3102(e), due to over
breadth or to prevent unnecessary harassment
, see Matter of Dier, 297 AD2d 577 (1st Dept 2002), Law Office of Paul A. Lange v. Roman Catholic Diocese of Dallas, 245 AD2d 118, 119 (1st Dept 1997), due to an independent determination that the material sought is not critical or necessary, see Brown & Williamson Tobacco Corp. v. Wigand,
228 AD2d 187 (1st Dept 1996), app withdrawn 90 NY2d 901 (1997), or due
to the inclusion of material protected by the attorney-client
, see Bombadier Capital Inc. v. Schoengold Sporn Laitman & Lometti P.C., 46 AD3d 323 (1st Dept 2007), Kirkland & Ellis v. Chadbourne & Parke, supra.
These cases require this court to exercise its discretion and review
the subpoenas under the standards enumerated above, rather than simply
"rubber stamping" the determination of the New Jersey court. See id at 77.


All the bold is mine.

In the end, the Court, after taking several factors into account, decided to quash one subpoena and limit the scope of the discovery requested as to the other.

In short, CPLR § 3102(e) allows New York courts to enforce discovery ordered by a court in a different state, it has the ability to issue a protective order pursuant to CPLR § 3103(a) under a limited set of circumstances.


CPLR R. 3117

CPLR R. 3117 Use of depositions

In Rivera v New York City Tr. Auth., 2008 NY Slip Op 06684 (App. Div., 1st), the First Department addressed the admissibility of 50(h) transcripts in a relatively unusual set of circumstances.  Initially there were several plaintiffs, several 50(h)s, and several separate lawsuits.  Nine of those lawsuits were consolidated for trial and by the time the trial went forward, six of the plaintiff's had settled.  During the trial, the court allowed defense counsel to read parts of all nine 50(h) transcripts into evidence.  Plaintiff objected, arguing that that the transcripts were inadmissible hearsay; none of the plaintiffs received notice of the other's 50(h) and none of the plaintiffs were represented by counsel.

The Court agreed, basing its opinion on CPLR R. 3117(a)(2). Without deciding whether it allowed the use of depositions where there was no notice and where an attorney wasn't present, the court found the transcripts to be inadmissible:

CPLR 3117(a)(2) provides that "the deposition testimony of a party or of any person who was a party when the testimony was given . . . may be used [at trial] for any purpose by any party who was adversely interested when the deposition testimony was given or who is adversely interested when the deposition testimony is offered in evidence." The statute expressly provides, however, that the use of a deposition is authorized only "so far as admissible under the rules of evidence" (CPLR 3117[a] [emphasis added]). Thus, even assuming (without deciding) that CPLR 3117(a)(2), unlike CPLR 3117(a)(3) (setting forth the conditions for the use of "the deposition of any person"), permits the use of the deposition of a party against another party who did not receive notice of the deposition and was not present or represented at its taking (see Bianchi v Federal Ins. Co., 142 Misc 2d 82 [Sup Ct, NY County 1988]; but see Andrusziewicz v Atlas, 13 AD3d 325 [2004]; Siniscalchi v Central Gen. Hosp., 80 AD2d 849 [1981]; Weinstein-Korn-Miller, NY Civ Prac ¶ 3117.05 [2d ed]), deposition testimony otherwise satisfying the requirements of CPLR 3117(a)(2) still is not admissible unless it is shown that, as to each party against whom the deposition is to be used, it falls within an exception to the rule against hearsay (see United Bank v Cambridge Sporting Goods Corp., 41 NY2d 254, 264 [1976]). No such showing was made here.

While the deposition testimony of each plaintiff was admissible against that plaintiff as an admission (see Prince, Richardson on Evidence, §§ 8-201, 8-202 [Farrell 11th ed]), the status of such testimony as an admission of the plaintiff who testified did not render it admissible against the other plaintiffs (id. § 8-203; see also Claypool v City of New York, 267 AD2d 33, 35 [1999] [GML § 50-h testimony was not admissible at trial against parties who "were not notified and were not present at the hearing"])[FN1]. Neither were the depositions admissible under the hearsay exception for declarations against the declarant's interest, since none of the deponents was shown to have been unavailable to testify at trial (see Prince, Richardson, supra, § 8-404). Further, since none of the deponents testified at trial before his or her deposition was read into evidence, the deposition testimony was not admissible as a trial witness's prior inconsistent statement (cf. Letendre v Hartford Acc. & Indem. Co., 21 NY2d 518 [1968]; Campbell v City of Elmira, 198 AD2d 736, 738 [1993], affd 84 NY2d 505 [1994]; Prince, Richardson, supra, § 8-104).

All the bold is mine.