Category: Uncategorized

Capitol Fire Sprinkler Co., Inc. v Capitale Rest., 2010 NY Slip Op 50222(U) (App. Term, 2nd, 2010)

Weird.  I know.

Hotel 71 Mezz Lender LLC v Falor, 2010 NY Slip Op 01348 (Ct. App., 2010)

The primary issue before the Court is whether the intangible personal property plaintiff sought to attach, i.e., defendants’ ownership/membership interests in various out-of-state business entities, was subject to attachment under CPLR article 62. We conclude that the issuance of an order of attachment in New York on defendant Guy T. Mitchell, the nondomiciliary garnishee of defendants’ intangible personal property, who voluntarily submitted to personal jurisdiction in New York, was appropriate.

We further hold that Supreme Court did not abuse its discretion in appointing a receiver pursuant to CPLR 5228. 

It’s a long decision.  I’ll add more later.  The bold is mine.

I received a comment from the no-fault blog from Turkewitz asking whether there was an provision in the CPLR that extends the SOL by a day if today is the last day to file.  Almost all of the NYC courts are closed today on account of the snow.

The CPLR does not (See CPLR § 201) have a provision that extends; however, Judiciary Law § 282 does.  I found one decision on point: Martin v. J.C. Penney Co., Inc., 275 A.D.2d 910 (App. Div., 4th, 2000). My search was more haphazard than thorough, so feel free to keep on searching.  I found it funny that I couldn’t find the decision on the New York Official Reports site, but I found it after a two second search on Google Scholar.

Plaintiffs commenced this negligence action to recover damages for personal injuries sustained by plaintiff Yvonne H. Martin on January 4, 1996 when she allegedly slipped on water in defendant’s store. On January 4, 1999, the date on which the Statute of Limitations for plaintiffs’ action expired, a snowstorm in the City of Buffalo resulted in a travel ban and the closing of the Erie County Clerk’s Office. Plaintiffs did not file their summons and complaint until January 5, 1999. In denying defendant’s motion to dismiss the action as time-barred, Supreme Court determined that the Statute of Limitations was extended by the travel ban and closing of the County Clerk’s office on the last day of the limitations’ period. Defendant contends that the court had no authority to extend the Statute of Limitations. We disagree.

Judiciary Law § 282-a provides that, “[w]henever the last day on which any paper is required to be filed with a clerk of a court * * * expires on a Saturday, Sunday, a public holiday or a day when the office of such clerk is closed for the transaction of business, the time therefor is hereby extended to and including the next business day such office is open for the transaction of business.” Pursuant to County Law § 525(1), the County Clerk is the Clerk of the Supreme Court and County Court within his or her county. In Erie County, the Clerk of the Supreme Court is therefore the Erie County Clerk for the purpose of “filing, recording and depositing of * * * papers in actions” (County Law § 525[2] ). Here, there is no dispute that the Erie County Clerk’s office was closed for business on January 4, 1999 due to a snow emergency. Such emergency closing extended the filing of plaintiffs’ summons and complaint to the next day when the Clerk was open for the transaction of business ( see, Judiciary Law § 282-a; see also, County Law § 206-a [2] ). Plaintiffs filed their summons and complaint the following day, and thus their filing was timely.

There you have it.  The bold is mine.

Brownrigg v New York City Hous. Auth., 2010 NY Slip Op 00795 (App. Div., 2nd, 2009)

Prior to directing a verdict in favor of one party to an action, a court must determine “whether there [is] any rational basis on which a jury could [find] for [the opposing party], the [opposing party] being entitled to every favorable inference which could reasonably be drawn from the evidence submitted by [it]” (Rhabb v New York City Hous. Auth., 41 NY2d 200, 202; see Pollack v Klein, 39 AD3d 730, 730). In making this determination, a court must not “engage in a weighing of the evidence,” nor may it direct a verdict where “the facts are in dispute, or where different inferences may be drawn or the credibility of witnesses is in question” (Dolitsky v Bay Isle Oil Co., 111 AD2d 366, 366).

Sepulveda v Dayal, 2010 NY Slip Op 00782 (App. Div., 1st, 2010)

The record shows that prior to obtaining the medical records indicating which physicians had reviewed the sonograms taken during the pregnancy of plaintiff mother, plaintiffs commenced an action naming Montefiore Medical Center and the 43 radiologists employed at the time of the alleged malpractice. After ascertaining the identity of the four physicians who had interpreted the sonograms, none of whom had been named in the first action, plaintiffs commenced a second action against those four physicians and Montefiore. The defendants in the first action subsequently moved for summary judgment and with plaintiffs failing to oppose, the motion was granted on default and judgment was entered in favor of those defendants. After the defendants moved to dismiss the second action, which was resolved by a stipulation discontinuing it “without prejudice to bringing a new action on behalf of the infant plaintiff,” plaintiffs commenced this action naming the same four physicians, but not Montefiore.

Although leave to amend pleadings should be freely granted in the absence of prejudice or surprise (see generally Fahey v County of Ontario, 44 NY2d 934 [1978]), as the motion court found, the proposed amendment is lacking in merit (see Board of Mgrs. of Gramercy Park Habitat Condominium v Zucker, 190 AD2d 636 [1993]). To determine whether collateral estoppel applies, a two-part test must be satisfied. “First, the identical issue necessarily must have been decided in the prior action and be decisive of the present action, and second, the party to be precluded from relitigating the issue must have had a full and fair opportunity to contest the prior determination” (Kaufman v Eli Lilly & Co., 65 NY2d 449, 455 [1985]).

Defendants have failed to satisfy either prong, since the court in the first action did not decide the ultimate issue of whether the instant defendants were negligent. Furthermore, plaintiffs did not have a full and fair opportunity to litigate their claims. By the time the [*2]defendants in the first action moved for summary judgment, plaintiffs were aware that those defendants had not been involved in their medical treatment and there was no reason to raise the merits of their claims (see e.g. Baxter v Fulton Ice & Cube Co., 106 AD2d 82, 85-86 [1985]; compare Kret v Brookdale Hosp. Med. Ctr., 61 NY2d 861 [1984], affg 93 AD2d 449 [1983]).

Found another.

99 Cents Concepts, Inc. v Queens Broadway, LLC, 2010 NY Slip Op 00824 (App. Div., 2nd, 2010)

Under the doctrine of res judicata, a valid final judgment bars future actions between the same parties on the same cause of action (see Parker v Blauvelt Volunteer Fire Co., 93 NY2d 343, 347; Matter of Reilly v Reid, 45 NY2d 24, 27). As a general rule, “once a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if based upon different theories or seeking a different remedy” (O’Brien v City of Syracuse, 54 NY2d 353, 357; see Parker v Blauvelt Volunteer Fire Co., 93 NY2d at 347). Although the first through sixth causes of action asserted by the plaintiff in this action arise out of the same transaction as its counterclaim in the Civil Court proceeding, the so-ordered stipulation settling the Civil Court proceeding expressly recited that it was without prejudice to the Supreme Court action, and did not dismiss the plaintiff’s counterclaim. Under these circumstances, the so-ordered stipulation was not a final judgment on the merits of the plaintiff’s counterclaim which would be entitled to res judicata effect in this action (see Parker v Blauvelt Volunteer Fire Co., 93 NY2d at 349; City of New York v Caristo Constr. Corp., 62 NY2d 819, 821; Miller Mfg. Co. v Zeiler, 45 NY2d 956, 958; Matter of Coleman v Coleman, 1 AD3d 833, 834; Brandenberg v Primus Assoc., 304 AD2d 694, 695; 1829 Caton Realty v Caton BMT Assoc., 225 AD2d 599; A. Colish, Inc. v Abramson, 178 AD2d 252). Furthermore, the doctrine of collateral estoppel is not applicable here because the issue of whether the plaintiff was entitled to, and deprived of, full possession of the basement of the premises never was actually litigated and decided in the Civil Court proceeding, which was settled without prejudice to this action (see Kaufman v Eli Lilly & Co., 65 NY2d 449, 456-457; Brandenberg v Primus Assoc., 304 AD2d at 695; Singleton Mgt. v Compere, 243 AD2d 213, 217; 1829 Caton Realty v Caton BMT Assoc., 225 AD2d at 599). Accordingly, the Supreme Court should not have granted those branches of the defendant’s motion which were to dismiss the first through sixth causes of action.

The bold is mine.

CPLR § 1001 Necessary joinder of parties
(a) Parties who should be joined
(b) When joinder excused

CPLR § 1003 Nonjoinder and misjoinder of parties

CPLR § 1012 Intervention as of right; notice to attorney-general, city, county, town or village where constitutionality in issue

CPLR R. 327 Inconvenient forum

DeMato v Mallin, 2009 NY Slip Op 08991 (App. Div., 2nd, 2009)

Under the circumstances of this case, the Supreme Court properly directed that the Town be joined as a defendant in order to accord complete relief between the parties (see CPLR 1001[a], [b]; Lazzari v Town of Eastchester, 62 AD3d 1002; see also Matter of Lezette v Board of Educ., Hudson City School Dist., 35 NY2d 272, 282). 

Mizrahi v Flaum, 2010 NY Slip Op 00117 (App. Div., 2nd, 2010)

When the Bankruptcy Trustee, Kenneth P. Silverman, abandoned the instant legal malpractice claim at the conclusion of the bankruptcy proceedings, the claim immediately revested with the debtor, Jennifer Mizrahi (see 11 USCA § 554; Guiffrida v Storico Dev., LLC, 60 AD3d 1286; Culver v Parsons, 7 AD3d 931). Thus, the Supreme Court providently exercised its discretion in granting that branch of Silverman's motion which was to substitute Mizrahi as the plaintiff in his place (see CPLR 1003; JCD Farms v Juul-Nielsen, 300 AD2d 446; see also Silverman v Flaum, 42 AD3d 447).

Kinzelberg v Design Quest, Ltd., 67 AD3d 743 (App. Div., 2nd, 2009)

Contrary to the plaintiff's contention, the Supreme Court did not improvidently exercise its discretion in granting that branch of the defendants' motion which was pursuant to CPLR 1003 to the extent of adding Messardiere Design Quest, Inc., as a defendant (see Merchants Bank of N.Y. v Rosenberg, 31 AD3d 507, 508 [2006]; Rutar v Hawes, 157 AD2d 654 [1990]).

Washington Mut. Bank v 373 8th St. Realty Corp., 66 AD3d 1007 (App. Div., 2nd, 2009)

In an action to foreclose a mortgage, the plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Dabiri, J.), dated September 26, 2008, as granted the motion of certain tenants for leave to intervene in the action as party defendants and to be given notice of the rent overcharge determination made by the New York State Division of Housing and Community Renewal included in any notice of foreclosure sale.

Ordered that the order is affirmed insofar as appealed from, with costs.

The intervenors were properly granted leave to intervene (see CPLR 1012).

Wells Fargo Bank, Natl. Assn. v McLean, 2010 NY Slip Op 00838 (App. Div., 2nd, 2010)

ORDERED that the order is reversed, on the facts and in the exercise of discretion, with one bill of costs, and that branch of the motion of NARI, Inc., d/b/a Firestone Construction Company, which was for leave to intervene pursuant to CPLR 1013 is granted.

Upon a timely motion, a person is permitted to intervene as of right in an action involving the disposition of property where that person may be adversely affected by the judgment (see CPLR 1012[a][3]; Velazquez v Decaudin, 49 AD3d 712, 717; George v Grand Bay Assoc. Enter. Inc., 45 AD3d 451, 452; Greenpoint Sav. Bank v McMann Enters., 214 AD2d 647; but see Citibank, N.A. v Plagakis, 8 AD3d 604, 605). In addition, a court, in its discretion, may permit a person to intervene, inter alia, when the person's claim or defense and the main action have a common question of law or fact (see CPLR 1013). Whether intervention is sought as a matter of right under CPLR 1012(a), or as a matter of discretion under CPLR 1013, is of little practical significance since a timely motion for leave to intervene should be granted, in either event, where the intervenor has a real and substantial interest in the outcome of the proceedings (see Berkoski v Board of Trustees of Inc. Vil. of Southampton, 67 AD3d 840; Matter of Bernstein v Feiner, 43 AD3d 1161, 1162; Sieger v Sieger, 297 AD2d 33, 36; County of Westchester v Department of Health of State of N.Y., 229 AD2d 460, 461; Perl v Aspromonte Realty Corp., 143 AD2d 824, 825). In exercising its discretion, the court shall consider whether the intervention will unduly delay the determination of the action or prejudice the substantial rights of any party (see Reliance Ins. Co. of N.Y. v Information Display Tech., 2 AD3d 701).

Halstead v Dolphy, 2010 NY Slip Op 00810 (App. Div., 2nd, 2010)

The appellant, Cambridge Home Capital, LLC (hereinafter Cambridge), demonstrated that it holds a mortgage on the real property which is the subject of this action, and that its interest in the property may be adversely affected by the judgment sought. Cambridge's interest in the subject property entitles it to intervene as a matter of right (see CPLR 1012[a][3]; NYCTL 1999-1 Trust v Chalom, 47 AD3d 779, 780; George v Grand Bay Assoc. Enter. Inc., 45 AD3d 451). Although Cambridge did not seek leave to intervene until more than four years after the commencement of this action, intervention may occur at any time, provided that it does not unduly delay the action or prejudice existing parties (see Poblocki v Todoro, 55 AD3d 1346, 1347; Matter of Ro
meo v New York State Dept. of Educ., 39 AD3d 916, 917; see also Alexander, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C1012:5). Here, the motion for leave to intervene was made before a note of issue was filed in this [*2]action, and Cambridge indicated its willingness to obviate delay and prejudice to the existing parties by stipulating that it will conduct no additional discovery in this action. Under these circumstances, Cambridge should have been granted leave to intervene on the condition that it so stipulated (see Poblocki v Todoro, 55 AD3d 1346; cf. Rectory Realty Assoc. v Town of Southampton, 151 AD2d 737, 738).

Gersten v Lemke, 2009 NY Slip Op 09725 (App. Div., 1st, 2009)

Defendant's bare assertions of inconvenience fail to show the manner in which his proposed witnesses would be inconvenienced by having to travel between Nassau and New York Counties (see Schoen v Chase Manhattan Automotive Fin. Corp., 274 AD2d 345 [2000]; cf. Cardona v Aggressive Heating, 180 AD2d 572, 573 [1992]; Heinemann v Grunfeld, 224 AD2d 204). In addition, the home or work addresses of allegedly inconvenienced witnesses were improperly first provided in defendant's reply papers (see Schoen, supra; Root v Brotmann, 41 AD3d 247 [2007]).

Tiger Sourcing (HK) Ltd. v GMAC Commercial Fin. Corporation-Can., 66 AD3d 1002 (App. Div., 2nd, 2009)

CPLR 327 "permits a court to stay or dismiss such actions where it is determined that the action, although jurisdictionally sound, would be better adjudicated elsewhere" (Islamic Republic of Iran v Pahlavi, 62 NY2d 474, 478-479 [1984], cert denied 469 US 1108 [1985]). The defendant bears the burden in a motion to dismiss on the ground of forum non conveniens to "demonstrate relevant private or public interest factors which militate against accepting the litigation" (id. at 479). On such a motion, the Supreme Court is to weigh the parties' residencies, the location of the witnesses and any hardship caused by the choice of forum, the availability of an alternative forum, the situs of the action, and the burden on the New York court system (see Prestige Brands, Inc. v Hogan & Hartson, LLP, 65 AD3d 1028 [2009]; Turay v Beam Bros. Trucking, Inc., 61 AD3d 964, 966 [2009]). No one factor is dispositive (see Turay v Beam Bros. Trucking, Inc., 61 AD3d at 966; Brinson v Chrysler Fin., 43 AD3d 846, 848 [2007]). The Supreme Court's determination should not be disturbed unless the court improvidently exercised its discretion or failed to consider the relevant factors (see Smolik v Turner Constr. Co., 48 AD3d 452, 453-454 [2008]; Brinson v Chrysler Fin., 43 AD3d at 848).

Under the circumstances of this case, the Supreme Court providently exercised its discretion in granting that branch of the defendants' joint motion which was to dismiss the complaint on the ground of forum non conveniens (see Islamic Republic of Iran v Pahlavi, 62 NY2d 474 [1984]; Prestige Brands, Inc. v Hogan & Hartson, LLP, 65 AD3d 1028 [2009]; Turay v Beam Bros. Trucking, Inc., 61 AD3d 964 [2009]; Smolik v Turner Constr. Co., 48 AD3d 452 [2008]; Stravalle v Land Cargo, Inc., 39 AD3d 735, 736 [2007]).

Rabinowitz v Devereux Conn. Glenholme, 2010 NY Slip Op 00378 (App. Div., 1st, 2010)

The common law doctrine of forum non conveniens, codified in CPLR 327, permits a court to stay or dismiss an action where the action, although jurisdictionally sound, would be better adjudicated elsewhere (Islamic Republic of Iran v Pahlavi, 62 NY2d 474, 479 [1984], cert denied 469 US 1108 [1985]; see CPLR 327). Among the factors to be considered are the burden on the New York courts; the potential hardship to the defendant; the availability of an alternate forum in which the plaintiff may bring suit; the residency of the parties; the forum in which the transaction from which the cause of action arose; and the extent to which the plaintiff's interests may otherwise be properly served by pursuing the claim in this State (see Pahlavi, 62 NY2d at 479; Varkonyi v S.A. Empresa De Viacao Airea Rio Grandense [Varig], 22 NY2d 333, 338 [1968]; Nyugen v Banque Indosuez, 19 AD3d 292, 294 [2005], lv denied 6 NY3d 703 [2006]).

Here, the motion court properly considered all relevant factors (see Pahlavi, 62 NY2d at 479), and concluded that New York was an appropriate forum for litigating this dispute. Both plaintiffs reside in New York, and the matter bears a substantial nexus to New York in that the New York City Board of Education funded plaintiff's residence at defendant school, located in Connecticut. While defendants claim that it would cause undue hardship to maintain the action in New York because it would be difficult to find substitutes for the witnesses who work at the school when they are testifying and because the witnesses are Connecticut residents whose personal lives would be disrupted if the trial were conducted in New York, these circumstances [*2]would exist even if the trial were conducted in Connecticut.

The bold is mine.