Personal Jurisdiction waived and waited too long to bring up 317

JPMorgan Chase Bank, N.A. v Soussis, 2018 NY Slip Op 07294 [2d Dept. 2018]

The defendant waived any claim that the Supreme Court lacked personal jurisdiction over her. The defendant appeared in the action by serving a notice of appearance, and neither she nor her attorney moved to dismiss the complaint on the ground of lack of personal jurisdiction at that time or asserted lack of personal jurisdiction in a responsive pleading (see CPLR 320[a], [b]; U.S. Bank N.A. v Pepe, 161 AD3d 811, 812-813; Wilmington Sav. Fund Socy., FSB v Zimmerman, 157 AD3d 846, 847; American Home Mtge. Servicing, Inc. v Arklis, 150 AD3d 1180, 1181; National Loan Invs., L.P. v Piscitello, 21 AD3d 537, 538).

The defendant’s contention that she was entitled to relief pursuant to CPLR 317 is improperly raised for the first time on appeal (see Deutsche Bank Natl. Trust Co. v Saketos, 158 AD3d 610, 612).

Being duly sworn and a personal jurisdiction problem

Ulster Sav. Bank v Fiore, 2018 NY Slip Op 06588 [2d Dept. 2018]

Contrary to Nicholas's contention, the affidavit of the plaintiff's Collections Officer, submitted by the plaintiff in support of its motion, was not improperly sworn and, therefore, was adequate to support the motion, since the affidavit expressly contained the phrase "being duly sworn" and was notarized (Citibank, NA v Abrams, 144 AD3d 1212, 1216; see Matter of Bennett, 148 AD3d 1449, 1449-1450). In opposition to the motion, the defendants failed to raise a triable issue of fact.

We also agree with the Supreme Court's determination to deny, without a hearing, that branch of the defendants' cross motion which was pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against Nicholas for lack of personal jurisdiction. Nicholas waived the defense of lack of personal jurisdiction by failing to assert it in his answer or in a pre-answer motion to dismiss (see MidFirst Bank v Ajala, 146 AD3d 875, 875; cf. Hopstein v Cohen, 143 AD3d 859, 860).

The bold is mine.

Consent to Change / Service

Sperry Assoc. Fed. Credit Union v John, 2018 NY Slip Op 02823 [2d Dept. 2018]

CPLR 321(b)(1) provides that an attorney of record may be changed by filing a consent to change attorney signed by the retiring attorney and the party. Notice must be given to adverse parties. In this case, it appears that at the time the defendant's motion for leave to renew and reargue was made, no consent to change attorney had been filed. A technical failure to comply with CPLR 321(b), however, does not render the acts of the new attorney a nullity (see Diamadopolis v Balfour, 152 AD2d 532; Imor v Imor, 119 AD2d 913). In this case, the plaintiff claims no prejudice, and the consent to change attorneys was filed while the motion was still pending (see Elite 29 Realty LLC v Pitt, 39 AD3d 264). Thus, contrary to the plaintiff's contention, the belated compliance with CPLR 321(b) was not a basis to deny the defendant's motion (cf. Dobbins v County of Erie, 58 AD2d 733; Matter of Kitsch Riker Oil Co., 23 AD2d 502).

At a hearing on the validity of service of process, the plaintiff bears the burden of proving personal jurisdiction by a preponderance of the evidence (see Deutsche Bank Natl. Trust Co. v O'King, 148 AD3d 776). The plaintiff failed to meet that burden. Where a process server has no independent recollection of events, a process server's logbook may be admitted in evidence as a business record (see Gilmore v Tindel, 210 AD2d 1). Here, however, the logbook was not produced in court or introduced in evidence. Thus, there was no evidence—other than the process server's description of a business record not before the court, which the process server claimed he was unable to locate—to support the claim that service occurred at 7:05 p.m., when the person who allegedly received the papers was present to receive them.

Emphasis is mine.

Sufficient Start [3211(d)]

Robins v Procure Treatment Ctrs., Inc., 2018 NY Slip Op 00464 [1st Dept 2018]

Plaintiff made a "sufficient start" in establishing that New York courts have jurisdiction over PPM under CPLR 301 and 302(a)(1) to be entitled to disclosure pursuant to CPLR 3211(d) (see Peterson v Spartan Indus., 33 NY2d 463, 467 [1974]). With regard to general jurisdiction, codified in CPLR 301, it is not clear whether PPM's "affiliations with the State [New York] are so continuous and systematic as to render [it] essentially at home in the [] State" (Daimler AG v Bauman, __ US __, 134 S Ct 746, 761 [2014] [internal quotation marks omitted]). However, the record contains a State filing in which PPM identified itself as having a principal place of business in Manhattan — "tangible evidence" upon which to question PPM's claims to the contrary (see SNS Bank v Citibank, 7 AD3d 352, 354 [1st Dept 2004] [internal quotation marks omitted]).

Improper 3211 conversion and some jurisdictional stuff

3211

Bokara Rug Co., Inc. v Kapoor, 2012 NY Slip Op 02269 (1st Dept., 2012)

The motion court improperly treated the motion to dismiss pursuant to CPLR 3211 as a motion for summary judgment dismissing the complaint without providing adequate notice to plaintiffs (see Mihlovan v Grozavu, 72 NY2d 506, 508 [1988]). Plaintiffs did not deliberately chart a summary judgment course, even though they submitted some evidence in opposition to defendants' motion (see Wiesen v New York Univ., 304 AD2d 459, 460 [2003]). Thus, the motion will be reviewed under the standard applicable on a motion to dismiss (see Velez v Captain Luna's Mar., 74 AD3d 1191, 1191 [2010]).

The IAS court erred by dismissing the first, fifth, and sixth causes of actions (alleging fraud, negligent misrepresentation, and breach of contract, respectively) as time-barred. We agree with the motion court that to the extent that these claims are based on transactions or representations that occurred outside the applicable limitations periods, they are barred. However, in support of their motion to dismiss, defendants submitted an ambiguous affidavit and a sampling of invoices, and referred to documents submitted in another case. Defendants did not meet their initial burden of demonstrating that no sales of the type complained of by plaintiff were made by Kapoor Exports or related entities during the four-year limitations period applicable to the breach of contract claim (UCC 2-725; see Benn v Benn, 82 AD3d 548, 548 [2011]; Uniflex, Inc. v Olivetti Corp. of Am., 86 AD2d 538, 539 [1982]), or that none of the alleged misrepresentations in connection with such sales occurred within the six-year limitations period applicable to the fraud and negligent misrepresentation claims (CPLR 203[g], 213[1], [8]).

The IAS court properly denied so much of defendants' motion as sought dismissal on the [*2]ground of lack of personal jurisdiction over Vikram Kapoor. It is undisputed that there were other means of acquiring jurisdiction over his person other than personal service in New York. Thus, Kapoor cannot establish an essential element of the immunity defense to personal jurisdiction (see Olbi USA v Agapov, 294 AD2d 139 [2002]; Brause 59 Co. v Bridgemarket Assoc., 216 AD2d 200, 201 [1995]).

Defendants failed to meet their burden to establish that New York is an inconvenient forum for this action (see Islamic Republic of Iran v Pahlavi, 62 NY2d 474, 478-479 [1984], cert denied 469 US 1108 [1985]; Bank Hapoalim [Switzerland] Ltd. v Banca Intesa S.p.A., 26 AD3d 286, 287 [2006]). There is nothing in the record to suggest that the court did not properly consider the relevant factors (see Pahlavi at 479).

Discovery

Moore v Federated Dept. Stores, Inc., 2012 NY Slip Op 03112 (1st Dept., 2012)

Any right of direct appeal from the intermediate orders terminated with entry of the final judgment dismissing this wrongful termination action for failure to prosecute (see Matter of Aho, 39 NY2d 241, 248 [1976]). Plaintiff did not appeal from the final judgment, and there is no basis for deeming his appeals from the intermediate orders as having been taken from the subsequent judgment (cf. CPLR 5501[c]; 5520[c]).

Were we to consider plaintiff's arguments on appeal, we would nonetheless find them unavailing. The court properly denied plaintiff's motions to strike and compel, as there was no basis in the record to find defendants' conduct in the discovery process to be willful, contumacious, or in bad faith (see Ayala v Lincoln Medical & Mental Health Center, 92 AD3d 542 [2012]). With respect to the court's imposition of sanctions upon plaintiff's counsel, counsel did not appeal from the order or the subsequent judgment awarding sanctions, and plaintiff was not aggrieved by the award and lacks standing to challenge it (see generally CPLR 5511[a]; Matter of Kyle v Lebovits, 58 AD3d 521 [2009], lv dismissed in part and denied in part 13 NY3d 765 [2009], cert denied __ US __ , 130 S Ct 1524 [2010]). Plaintiff was also not aggrieved by the grant of defendant Macy's motion to compel discovery, as plaintiff did not oppose the motion (see Darras v Romans, 85 AD3d 710, 711 [2011]). To the extent plaintiff challenges the denial [*2]of his motion for a stay of enforcement of the order entered July 16, 2010 pending his appeal from the order, his argument is moot (see Diane v Ricale Taxi, Inc., 26 AD3d 232, 232 [2006]).

Merrill Lynch, Pierce, Fenner & Smith, Inc. v Global Strat Inc., 2012 NY Slip Op 02598 (1st Dept., 2012)

In granting the motion to dismiss as against Albert Nasser for lack of personal jurisdiction, Supreme Court stated that it was vacating the judgment as against him. However, the judgment in the record on appeal names Albert Nasser as a defendant from whom plaintiffs have recovery, and it is that judgment that we affirm. We find that plaintiffs made a prima facie showing that Albert is subject to jurisdiction in New York through evidence that in the first three months of 2008, he actively traded in the New York-based Merrill Lynch accounts of Inversiones, his personal holding company, and that he participated by telephone in a March 2008 meeting with Merrill Lynch in New York concerning the trading activities at issue in this case (see Kreutter v McFadden Oil Corp., 71 NY2d 460, 467 [1988]; compare OneBeacon Am. Ins. Co. v Newmont Min. Corp., 82 AD3d 554, 555 [2011] [no evidence that defendant exercised control over the corporation that purchased insurance policies issued by insurers with principal places of business in New York]).

The Nassers' repeated failure to comply with discovery deadlines or offer a reasonable excuse for their noncompliance with discovery requests, as well as their counsel's [*2]misrepresentations in open court as to the cause of one of their violations, give rise to an inference of willful and contumacious conduct warranting the entry of judgment against them (see Turk Eximbank-Export Credit Bank of Turkey v Bicakcioglu, 81 AD3d 494 [2011]). The Nassers were appropriately warned that judgment would be entered against them if their discovery responses were found by the Special Referee to be noncompliant with plaintiffs' requests (see id.; cf. Corner Realty 30/7 v Bernstein Mgt. Corp., 249 AD2d 191, 194 [1998]).

Zimbardi v City of New York, 2012 NY Slip Op 02574 (1st Dept., 2012)

Contrary to plaintiff's contention, the City produced documents relevant to its knowledge of the alleged dangerous condition and, in any event, it was plaintiff's burden to show that the City had prior written notice of the alleged defect, which she failed to do. Nor did she move for sanctions based on the City's alleged wilful failure to produce documents (see CPLR 3126).

Zinger v Service Ctr. of N.Y., Inc., 2012 NY Slip Op 02591 (1st Dept., 2012)

Plaintiff's requests for vehicular insurance policies and governmental filings were irrelevant to his alter-ego claim against the individually named defendant. However, the requests concerning the corporate defendant's bank accounts and credit cards seek documents and information of the type that would yield evidence of misuse of the corporate form (see e.g. Horizon Inc. v Wolkowicki, 55 AD3d 337 [2008]). Accordingly, we find that such records and information, to the extent limited to the period of plaintiff's employment plus one year, are "material and necessary" for the prosecution of the action (CPLR 3101[a]).

Carnegie Assoc. Ltd. v Miller, 2012 NY Slip Op 02422 (1st Dept., 2012) (note the dissent)

The motion court erred in striking the complaint and reply to defendants' counterclaims since neither CPLR § 3126 nor 22 NYCRR 202.26(e) authorizes this sanction under the circumstances. While CPLR § 3126 authorizes the striking of a party's pleadings, this extreme sanction is only authorized when a party "refuses to obey an order for disclosure or willfully refuses to disclose information which the court finds ought to have been disclosed" (CPLR § 3126) (emphasis added). Thus, by its express terms the sanction prescribed by CPLR § 3126 is warranted only upon a party's failure to comply with discovery requests or court orders mandating disclosure (Bako v V.T. Trucking Co., 143 AD2d 561, 561 [1988]; Henry Rosenfeld, Inc. v Bower & Gardner, 161 AD2d 374, 374-375 [1990] [dismissal of a party's pleading appropriate when a party "disobeys a court order and by his conduct frustrates the disclosure scheme provided by the CPLR"]; Bassett v Bando Sangsa Co., 103 AD2d 728, 728 [1984]). Here, where plaintiff had already been sanctioned for its failure to provide discovery and where defendants premised the instant motion to strike plaintiff's pleadings primarily on plaintiff's [*2]failure to proceed with court-ordered mediation, CPLR § 3126 simply does not apply.

Similarly, despite plaintiff's conceded failure to proceed with the court-ordered mediation, it was also error to strike its pleadings pursuant to 22 NYCRR 202.26(e). While 22 NYCRR 202.26 authorizes the trial court to schedule pretrial conferences, a mediation, pursuant to Rule 3 of the Rules of the Commercial Division of the Supreme Court (22 NYCRR 202.70[g]), is not a pretrial conference. More importantly, even if this rule did apply, the only sanction authorized by 22 NYCRR 202.26(e) for a party's failure to appear at a pretrial conference is "a default under CPLR § 3404," which initially only authorizes the striking of the case from the court's trial calendar. Accordingly, here, striking plaintiff's pleadings, which by operation of law resulted in dismissal of this action is not warranted pursuant to 22 NYCRR 202.26(e).

While we agree with the dissent that plaintiff's conduct was egregious, we nevertheless find that the sanction imposed by the motion court, namely, dismissal of plaintiff's complaint and the striking of its reply to defendant's counterclaims was simply not permitted. We further note that, here, plaintiff was in fact penalized for its conduct inasmuch as the motion court granted defendants' motion for costs and fees incurred as a result of plaintiff's failure to proceed to mediation.

In support of its argument that the motion court's order was appropriate, the dissent partly relies on Rule 8(h) of the Commercial Division, Supreme Court, New York County, Rules of the Alternative Dispute Resolution Program. However, the dissent alone raises this argument, one which has never been advanced by any of the parties, either on appeal or below. Therefore, we should not consider it (Misicki v Caradonna, 12 NY3d 511, 519 [2009] ["We are not in the business of blindsiding litigants, who expect us to decide their appeals on rationales advanced by the parties, not arguments their adversaries never made"]). Moreover, contrary to the dissent's remaining position, 22 NYCRR 202.70(g) Rule 12 does not avail plaintiff since like 22 NYCRR 202.26(e), the dismissal promulgated by Rule 12, which is made more clear by its reference to 22 NYCRR 202.27, is for the failure to appear at a conference and not for the failure to proceed to mediation.

Filatava v Rome Realty Group LLC, 2012 NY Slip Op 02261 (1st Dept., 2012)

Defendant appeals from the striking of its answer as a discovery sanction pursuant to CPLR 3126. It is undisputed that defendant violated three express orders to produce documents responsive to plaintiffs' requests. More egregiously, defendant knew it had no business records of the subject premises, as it failed to retain any records when it sold the premises two months after the instant complaint was filed. Yet, it concealed this information from the court and plaintiffs for some two years. As such, there was ample evidence to support the IAS court's [*2]finding that defendant had wilfully delayed and failed to fulfill its obligations in discovery (cf. Banner v New York City Hous. Auth., 73 AD3d 502, 503 [2010]).

Ellis v Park, 2012 NY Slip Op 01864 (1st Dept., 2012)

Dismissal of the complaint was an improvident exercise of discretion, since defendants failed to "show[] conclusively that [plaintiff's] failure to disclose was wilful, contumacious or in bad faith" (Christian v City of New York, 269 AD2d 135, 137 [2000]; see also Mateo v T & H Enters., 60 AD3d 411 [2009]). Contrary to the motion court's findings, the record does not support the view that plaintiff repeatedly refused to comply with orders regarding disclosure. The argument that plaintiff responded only to defendant Prudential's demand for a bill of particulars and not the demand of defendants Parks, is belied by plaintiff's responses to the demand.

Moreover, the November 16, 2009 preliminary conference order directed plaintiff to be deposed on January 6, 2010. However, during a subsequent telephone conference with the court, plaintiff and the Parks agreed to postpone the deposition to a mutually convenient date. Thus, the fact that plaintiff was not deposed by January 6, 2010 does not constitute disobedience of a court order. Plaintiff appeared and was deposed on two dates set by the court and although it is [*2]true that on the third day of her deposition she said she could not stay beyond 11:45 A.M., she provided a reasonable explanation for having to leave and her counsel was actually engaged later that day.

Rosario v Vasquez, 2012 NY Slip Op 01874 (1st Dept., 2012)

Contrary to the motion court's finding, depositions are not needed, since Guzman-Sosa had personal knowledge of the facts (see Avant, 74 AD3d at 534).

Accent Collections, Inc. v Cappelli Enters., Inc., 2012 NY Slip Op 03121 (2nd Dept., 2012)

" The Supreme Court has broad discretion in the supervision of discovery, and its determinations should not be disturbed on appeal unless improvidently made'" (Foster v Herbert Slepoy Corp., 74 AD3d 1139, 1140, quoting Casabona v Huntington Union Free School Dist., 29 AD3d 723, 723). Here, the Supreme Court did not improvidently exercise its discretion in denying that branch of the plaintiff's motion which was to vacate the trial readiness order based upon its determination that, pursuant to a compliance conference order, the additional discovery sought by the plaintiff was waived (see Provident Life & Cas. Ins. Co. v Brittenham, 284 AD2d 518; cf. Summers v Kardex Sys., 210 AD2d 216; see generally Foster v Herbert Slepoy Corp., 74 AD3d at 1140; Casabona v Huntington Union Free School Dist., 29 AD3d at 723).

Crawford v Village of Millbrook, 2012 NY Slip Op 03128 (2nd Dept., 2012)

The Supreme Court providently exercised its discretion in denying the plaintiff's motion on the eve of trial to admit the testimony of a newly identified witness. The plaintiff failed to disclose this witness until six years after commencing the action, and failed to provide a reasonable explanation for his delay in disclosing the identity of the witness (see CPLR 3101; Spectrum Sys. Intl. Corp. v Chemical Bank, 78 NY2d 371, 376; Mayorga v Jocarl & Ron Co., 41 AD3d 132, 134; Ortega v New York City Tr. Auth., 262 AD2d 470).

Colandrea v Choku, 2012 NY Slip Op 03127 (2nd Dept., 2012)

In opposition, the defendants failed to raise a triable issue of fact as to whether the plaintiff was at fault in the happening of the accident (see Vainer v DiSalvo, 79 AD3d at 1024; Yelder v Walters, 64 AD3d 762, 764). To the extent the defendants suggest the possibility that the accident might have been avoided, or that the plaintiff may have been speeding, such assertions, upon this record, are completely speculative and inadequate to withstand summary judgment (see Socci v Levy, 90 AD3d 1020; Loch v Garber, 69 AD3d at 816; Berner v Koegel, 31 AD3d 591, 592; Jacino v Sugerman, 10 AD3d 593, 595). Accordingly, the Supreme Court properly granted the plaintiff's motion for summary judgment on the issue of liability.

The Supreme Court improvidently exercised its discretion, however, in denying those branches of the defendants' timely motion which were to (a) vacate the note of issue and certificate of readiness for trial, (b) strike the matter from the trial calendar, and (c) direct the plaintiff to appear for a deposition and submit to an independent physical examination. "While discovery determinations rest within the sound discretion of the trial court, the Appellate Division is vested with a corresponding power to substitute its own discretion for that of the trial court, even in the absence of abuse" (Andon v 302-304 Mott St. Assoc., 94 NY2d 740, 745). Here, although the defendants may have waived their right to conduct a deposition and independent physical examination of the plaintiff by their failure to schedule and complete the deposition and examination by the dates set forth in a preliminary conference order, the circumstances of this case warranted relieving the defendants of the waiver, particularly since there was no prejudice to the plaintiff (see Barbosa v Capolarello, 52 AD3d 629, 629; High Point of Hartsdale I Condominium v AOI Constr., Inc., 31 AD3d 711; Venia v 18-05 215th St. Owners, 288 AD2d 463; Poltorak v Blyakham, 225 AD2d 600). Accordingly, the Supreme Court should have granted those branches of the defendants' motion which were to (a) vacate the note of issue and certificate of readiness for trial, (b) strike the matter from the trial calendar, and (c) direct the plaintiff to appear for a deposition and submit to an independent physical examination.

33

Personal Jurisdiction. Consent.

Pena v R & B Transp., 2012 NY Slip Op 02389 (1st Dept., 2012)

Defendant R & B is a federally regulated motor carrier, covered by the Motor Carrier Act of 1935. Pursuant to that act, it appointed an agent for service of process in New York (49 USC 13304). The IAS court adopted the referee's finding that this was not a consent to jurisdiction over R & B in New York. This was error. We have previously addressed this precise question, and found that the appointment of an agent under the act is consent to suit in this State (Eagle v Hall & Sons, Inc., 265 AD 809 [1942]; see also Brinkmann v Adrian Carriers, Inc., 29 AD3d 615, 617 [2006]).

Truck driver Boyd, a Georgia resident, was driving from Florida to Massachusetts when the accident occurred in New Jersey. As such, there is no basis for personal jurisdiction over him (Daniel B. Katz & Assoc. Corp. v Midland Rushmore, LLC, 90 AD3d 977 [2011]).