We Moved

I’ve decided to move thecplrblog to here, under the bruteforcelawyer site, because typepad has been absolutely terrible for me for quite some time now.  Some things might be moved around since I’m not sure whether I want to run more than one blog on this site. So, you might have to take an extra step to click on the CPLR stuff at some point.

Choice of law: procedure and substance

Royal Park Invs. SA/NV v Morgan Stanley, 2018 NY Slip Op 06695 [1st Dept. 2018]

“[C]ourts will generally enforce choice-of-law clauses” (Ministers & Missionaries Benefit Bd. v Snow, 26 NY3d 466, 470 [2015]). However, “when parties include a choice-of-law provision in a contract, they intend application of only that state’s substantive law” (Id. at 474 [internal quotation marks omitted]). In other words, “[c]hoice of law provisions typically apply to only substantive issues” (Portfolio Recovery Assoc., LLC v King, 14 NY3d 410, 416 [2010]).

Unlike substantive law, “matters of procedure are governed by the law of the forum state” (FIA Leveraged Fund Ltd. v Grant Thornton LLP, 150 AD3d 492, 496 [1st Dept 2017]). The question of whether a plaintiff has standing “is a procedural matter” (O’Neill v Warburg, Pincus & Co., 39 AD3d 3d 281 [1st Dept 2007]; see also Mertz v Mertz, 271 NY 466, 473 [1936] [“The law of the forum determines … the capacity of parties to sue or to be sued”]).

Judiciary Law § 753(A)(3)

Union Temple of Brooklyn v Seventeen Dev., LLC, 2018 NY Slip Op 04023 [2d Dept. 2018]

To prevail on a motion to hold a party in contempt pursuant to Judiciary Law § 753(A)(3), the movant must demonstrate by clear and convincing evidence that (1) a lawful order of the court, clearly expressing an unequivocal mandate, was in effect, (2) the order was disobeyed, (3) the party to be held in contempt had knowledge of the court's order, and (4) the movant was prejudiced by the offending conduct (see El-Dehdan v El-Dehdan, 26 NY3d 19, 29; McCain v Dinkins, 84 NY2d 216, 226; Matter of Savas v Bruen, 154 AD3d 859, 860). Here, the plaintiff established by clear and convincing evidence that Seventeen failed to comply with the order dated May 19, 2015, of which it was aware, and that such conduct prejudiced the plaintiff. Contrary to Seventeen's contention, it was not necessary to show that its disobedience was deliberate or willful (see Town of Huntington v Reuschenberg, 70 AD3d 814, 815; Hinkson v Daughtry-Hinkson, 31 AD3d 608). Once the plaintiff made its prima facie showing, the burden shifted to Seventeen to refute the plaintiff's showing or to offer evidence of a defense, such as an inability to comply with the order (see El-Dehdan v El-Dehdan, 26 NY3d at 35-36; Matter of Savas v Bruen, 154 AD3d at 860; Lundgren v Lundgren, 127 AD3d 938, 941). Seventeen failed to make such a showing or to raise a factual issue warranting a hearing (see Bais Yoel Ohel Feige v Congregation Yetev Lev D'Satmar of Kiryas Joel, Inc., 78 AD3d 626, 627; Town of Huntington v Reuschenberg, 70 AD3d at 815).

3126

Lee v 13th St. Entertainment LLC, 2018 NY Slip Op 03751 [1st Dept. 2018] (note the dissent)

A court may strike an answer only when the moving party establishes "a clear showing that the failure to comply is willful, contumacious or in bad faith" (Palmenta v Columbia Univ., 266 AD2d 90, 91 [1st Dept 1999]). Here, it was improper for the motion court to strike defendants' answer because plaintiff failed to establish that defendants' conduct was willful, contumacious or in bad faith. Although defendants failed to produce deposition witnesses in violation of two court orders, defendants' business was defunct and its former employees and officers were no longer within their control(see Ewadi v City of New York, 66 AD3d 583 [1st Dept 2009]; Schneider v 17 Battery Place N. Assoc. II, 289 AD2d 164, 165 [1st Dept 2001]).

Defendants provided plaintiff with contact information for their employees and plaintiff could have subpoenaed such employees as nonparty witnesses. Furthermore, defendants did not receive prior warning from the court that a failure to comply with the court orders would result in CPLR 3126 sanctions. Accordingly, in light of the strong preference to resolve actions on their merits, plaintiff's motion to strike should have been denied (see e.g. Catarine v Beth Israel Med. Ctr., 290 AD2d 213, 215 [1st Dept 2002]).

Vizcaino v Western Beef, Inc., 2018 NY Slip Op 03752 [1st Dept. 2018]

We see no reason to disturb the motion court's exercise of discretion in declining to strike defendants' answer (seeCPLR 3126[3]). Defendants ultimately provided current contact information for the cashier who assisted plaintiff after her accident at their store, and explained their delay in providing this information as the result of a series of purported good faith mistakes. However, in view of the length of time it took and multiple discovery motions and court orders for defendants finally to provide complete and accurate information, we find that monetary sanctions are warranted. An award of the costs of this motion and appeal is appropriate to compensate plaintiff for the extraordinary time and effort necessitated by defendants' lack of diligence.

Broderick v Edgewater Park Owners Coop., Inc., 2018 NY Slip Op 03924 [1st Dept. 2018]

Plaintiffs' motion to compel the depositions of certain witnesses was properly denied for failure to demonstrate that the witnesses already deposed had insufficient knowledge, and the substantial likelihood that those witnesses they sought to depose possessed information material and necessary to the prosecution of the case (see Colicchio v City of New York , 181 AD2d 528, 529 [1st Dept 1992]). Injured plaintiff's one-page supporting affidavit contradicted his prior deposition testimony and was properly disregarded by the court. Moreover, the affidavit did not address the testimony of the witnesses already deposed, and contained only vague assertions as to the relevant information the named witnesses might likely provide. Accordingly, there is no basis to disturb the court's determination (see generally Allen v Crowell-Collier Publ. Co. , 21 NY2d 403, 406-407 [1968])

Aggrieved / Appealable

Preferred Contrs. Ins. Co. Risk Retention Group, LLC v Nuway Interior Corp., 2018 NY Slip Op 03162 [2d Dept. 2018]

A party is aggrieved "when he or she asks for relief but that relief is denied in whole or in part" or "when someone asks for relief against him or her, which the person opposes, and the relief is granted in whole or in part" (Mixon v TBV, Inc., 76 AD3d 144, 156-157 [emphasis omitted]). Here, the order appealed from granted that branch of the plaintiff's motion which sought relief against the defendants Nuway, Antonyshyn, and Mytsyk, but not against the appellants. The order appealed from specifically states that the "plaintiff bears no duty to defend, or to indemnify, Nuway [*2]in the underlying personal injury action." Accordingly, the appellants are not aggrieved by the order appealed from, and their appeal must be dismissed (see Faicco v Mr. Lucky's Pub, Inc., 131 AD3d 920Soho Plaza Corp. v Birnbaum, 108 AD3d 518, 519).

 

Matter of Wood v Port Wash. Police Dist., 2018 NY Slip Op 03134 [2d Dept. 2018]

The order appealed from is not appealable as a matter of right, as no appeal lies as of right from a nonfinal order in a proceeding pursuant to CPLR article 78 (see CPLR 5701[b][1]; Matter of Scarcella v Village of Scarsdale Bd. of Trustees, 72 AD3d 831). Leave to appeal has not been granted and, under the circumstances of this case, we decline to grant leave to appeal sua sponte (see CPLR 5701[c]; Matter of Young Israel of Merrick v Board of Appeals of Town of Hempstead, 304 AD2d 834).

Daviotis v Kappa Servs. Corp., 2018 NY Slip Op 03121 [2d Dept. 2018]

A person is aggrieved within the meaning of CPLR 5511 when he or she asks for relief but that relief is denied in whole or in part, or when someone asks for relief against him or her, which the person opposed, and the relief is granted in whole or in part (see Faicco v Mr. Lucky's Pub, Inc., 131 AD3d 920Mixon v TBV, Inc., 76 AD3d 144). Here, the defendants moved, inter alia, to impose discovery sanctions against the plaintiff, and the order appealed from denied the defendants' motion as academic. Since the plaintiff is not aggrieved by the order appealed from, his appeal must be dismissed (see CPLR 5511; Fiacco v Mr. Lucky's Pub, Inc., 131 AD3d 920Edgar S. v Roman, 115 AD3d 931).

The Purge

Bilkho v Roosevelt Sq., LLC, 2018 NY Slip Op 00400 [2d 2018]

On November 27, 2011, the plaintiff allegedly was injured when he fell in an interior stairwell within the defendant's premises. On December 13, 2012, the plaintiff commenced this action against the defendant to recover damages for personal injuries. By order dated October 28, 2013, following a compliance conference, the plaintiff was directed, inter alia, to file a note of issue on or before April 11, 2014.

On April 10, 2014, the plaintiff filed a note of issue and certificate of readiness. However, by order dated June 10, 2015, the Supreme Court vacated the note of issue after it was reported that significant discovery remained outstanding, and the action was "restored to pre-note of issue status before the initially assigned IAS justice." However, the action was subsequently marked "disposed."

By notice of motion dated May 11, 2016, the plaintiff, represented by new counsel, moved to restore the action to active status, in effect, to vacate the "disposed" marking, and to extend his time to serve and file a note of issue. In an order entered September 15, 2016, the Supreme Court denied the motion, and the plaintiff appeals.

The defendant erroneously characterizes the plaintiff's motion as seeking to reinstate the note of issue and restore the action to the trial calendar (see 22 NYCRR 202.21[f]). Rather, the plaintiff moved, inter alia, to restore the action to active status and, in effect, to vacate the "disposed" marking. In light of the Supreme Court's order dated June 10, 2015, vacating the note of issue and restoring the action to pre-note of issue status, the subsequent "disposed" marking was tantamount to a purge or mark off of a pre-note of issue case (see Khaolaead v Leisure Video, 18 AD3d 820, 821), which is not permitted (see Florexile-Victor v Douglas, 135 AD3d 903Arroyo v Board of Educ. of City of N.Y., 110 AD3d 17, 19; Rakha v Pinnacle Bus Servs., 98 AD3d 657Casavecchia v Mizrahi, 62 AD3d 741, 742; Lopez v Imperial Delivery Serv., 282 AD2d 190, 193-194). Therefore, those branches of the plaintiff's motion which were to restore the action to active status and, in effect, vacate the "disposed" marking should have been granted (see Khaolaead v Leisure Video, 18 AD3d at 821).

By restoring the action to pre-note of issue status, the order dated June 10, 2015, also, in effect, extended the plaintiff's time to file a note of issue. Accordingly, that branch of the plaintiff's motion which was to extend the time to serve and file the note of issue should have been denied as unnecessary.

Traffic Tickets

Matter of Matter of Nestle Waters N. Am., Inc. v City of New York, 2014 NY Slip Op 05609 [1st Dept. 2014]

The Court of Appeals has required strict compliance with the requirements of VTL § 238(2). For example, in Ryder Truck Rental, the Court of Appeals reversed the Appellate Division and reinstated the Supreme Court's decision annulling a PVB Appeals Board decision which upheld notices of violation that failed to include the expiration date for the vehicle's registration, as required by the statute. The Court said: "The provisions explicitly prescribed by the Legislature in the statute are mandatory . . . To hold all these elements directory only would evidently be to eviscerate the legislative enactment" (id. at 669—670).

Further, in Matter of Wheels, the Court of Appeals amplified its decision in Ryder Truck by holding that the five mandatory identification elements, which may not be omitted from a parking summons if it is to avoid dismissal, may also not be misdescribed (80 NY2d 1014). Thus, a misdescription of any of the five mandatory identification elements also constitutes a jurisdictional defect mandating dismissal (id.).

Similarly, this Court is bound by the plain language of VTL 238(2). We must conclude that the New York City Parking Violations Bureau's policy of deeming "IRP" an accurate description of out-of-state "APPORTIONED" license plates for purposes of adjudicating parking violations violates the statute. As indicated, VTL § 238(2) requires that a notice of parking violation shall include the "plate type as shown by the registration plates of said "vehicle" (emphasis added). It is undisputed that each ticket here described the "vehicle type" as "IRP," while the corresponding license plate described the vehicle type as "APPORTIONED." The choice of the words in the statute "as shown" by the vehicle plate is evidence that the legislature intended strict compliance with the statute, and "new language cannot be imported into a statute to give it a meaning not otherwise found therein" (McKinney's Cons Laws of NY, Book 1, Statutes § 94, at 190); see Matter of Raritan Dev. Corp. v Silva, 91 NY2d 98, 104—105 [1997], quoting § 94).

We are cognizant that the terms "IRP" and "APPORTIONED" are used interchangeably by the New York City Parking Violations Bureau as a convenience. For instance, the automatic coding machines issued to New York City parking enforcement personnel contain the short cut key of "IRP," whereas "APP" or "APPORTIONED"' must be keyed in manually. Nevertheless, the statute simply does not allow for such administrative expedience, and neither this Court nor an administrative agency is permitted to effectively amend a statute to permit such shortcut. That is a task for the Legislature, if it sees fit.

In short, the petition should have been granted because the final determination made by respondent to adjudicate petitioners guilty on each of the summonses was contrary to well established law. Dismissal of the traffic summonses was warranted since they failed to comply with the mandatory requirements of VTL § 238(2) (see Matter of Wheels, 80 NY2d 1014; Ryder Truck Rental, 62 NY2d 667).

Accordingly, the judgment of the Supreme Court, New York County (Eileen A. Rakower, J.), entered March 8, 2013, which denied the petition and dismissed the hybrid CPLR article 78 and declaratory judgment proceeding challenging respondents' policy of deeming "IRP" an accurate description of out-of-state "APPORTIONED" license plates and registrations for purposes of adjudicating parking summonses, should be reversed, on the law, without costs, the petition granted, the determination annulled, the violations vacated and dismissed, and it is declared that respondents' policy of deeming "IRP" an accurate description of "Apportioned" license plates issued outside of New York State is violative of § 238 of the Vehicle and Traffic Law.

“leave to renew upon proper papers” / no successive SJ

Hunter Sports Shooting Grounds, Inc. v Foley, 2014 NY Slip Op 05952 [2nd Dept. 2014]

The Supreme Court properly denied the Town's motion for summary judgment dismissing so much of the complaint as alleged that the noise ordinance was unlawfully and improperly applied to the plaintiff. In a prior order dated October 6, 2011, the Supreme Court denied that branch of the Town's prior motion which was for summary judgment dismissing so much of the complaint as alleged that the noise ordinance was unlawfully and improperly applied to the plaintiff "without prejudice to timely renewal, upon submission of proper papers." In the prior order, the Supreme Court explained that the Town failed to present evidence in admissible form establishing the level of sound emitted by the plaintiff's operation, as the affidavit of its expert, Eric Zwerling, which was made and notarized in the State of New Jersey, lacked the required certificate of conformity (see CPLR 2309[c]; PRA III, LLC v Gonzalez, 54 AD3d 917, 918), and a report of the Noise Consultancy, LLC, was without probative value because it was unsworn and uncertified (see Duke v Saurelis, 41 AD3d 770, 771). Instead of correcting the defects in its supporting papers and moving to renew its prior motion, the Town made a second motion for summary judgment, and submitted the same documents it had submitted in support of its original motion, without rectifying the defects identified by the Supreme Court. Nor did the Town submit any other evidence establishing the level of sound emitted by the plaintiff's operation. Although the Town's failure to submit the relevant certificate of conformity was not a fatal defect that would warrant the outright denial of its motion for summary judgment, here, the Supreme Court properly afforded the Town an opportunity to correct the defect, and yet the Town failed to do so (cf. Midfirst Bank v Agho, ___ AD3d ___, 2014 NY Slip Op 05778; Rosenblatt v St. George Health and Racquetball Assocs., LLC, 119 AD3d 45). Accordingly, the Supreme Court properly denied the Town's second motion on the ground that it was an improper successive motion for summary judgment (see Tingling v C.I.N.H.R., Inc., ___ AD3d ___, 2014 NY Slip Op 05783).

Yakima Tingling v C.I.N.H.R., Inc., 2014 NY Slip Op 05783 [2nd Dept. 2014]