CPLR § 308(5) Impracticable

CPLR § 308 Personal service upon a natural person

CPLR § 308(5) in
such manner as the court, upon motion without notice, directs, if
service is impracticable under paragraphs one, two and four of this

Alvarez v Klein, 2008 NY Slip Op 07845 (App. Div., 2d)

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.

There you have it.  Impracticability is the key.

All the bold is mine.

CPLR § 231(1) “within six years of what?”

CPLR § 231 Actions
to be commenced within six years: where not otherwise provided for; on
contract; on sealed instrument; on bond or note, and mortgage upon real
property; by state based on misappropriation of public property; based
on mistake; by corporation against director, officer or stockholder;
based on fraud

CPLR § 231(1) an action for which no limitation is specifically prescribed by law

Tydings v Greenfield, Stein & Senior, LLP,
2008 NY Slip Op 07763 (Court of Appeals)

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
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.

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]).

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).

For a the rest of the discussion as to the collateral estoppel issue, click on the link above and you'll get the full decision.

CPLR § 7507, Time to vacate or modify an arbitration award

CPLR § 7507.  Award; form; time; delivery1

Matter of Lowe (Erie Ins. Co.), 2008 NY Slip Op 07735 (App. Div., 4th Dept.)

The straightforward but apparent issue of first impression in an
appellate court in New York is whether the 90-day statute of
limitations set forth in CPLR 7511 (a) begins to run on the date on
which the arbitrator's decision was mailed to petitioner or the date on
which it was received by petitioner or his or her agent. We conclude
that the operative measuring date is the date on which the decision was
by the petitioner or his or her agent, and we therefore
conclude that this proceeding was timely commenced.

Article 75 of the CPLR governs review of arbitration proceedings and
provides that an application to vacate or modify an arbitration award
"may be made by a party within ninety days after its delivery to him
[or her]" (CPLR 7511 [a]). The statute does not define "delivery," but
CPLR 7507 provides that the arbitrator "shall deliver a copy of the
award to each party in the manner provided in the agreement, or, if no
provision is so made, personally or by registered or certified mail,
return receipt requested."
An Insurance Department Regulation
concerning master arbitration procedures provides that "[t]he parties
shall accept as delivery of the award the placing of the award or a
true copy thereof in the mail, addressed to the parties or their
designated representatives at their last known addresses, or by any
other form of service permitted by law" (11 NYCRR 65-4.10 [e] [3]).

Although, as noted, this appears to be an issue of first impression, we
conclude that case law supports the interpretation that delivery must
be construed as the date on which the award was received. For example,
in Matter of Case v Monroe Community Coll. (89 NY2d 438, 439-440, rearg denied
89 NY2d 1087), the issue before the Court of Appeals was whether
service of an arbitration award upon the petitioner's union
representative constituted service upon the petitioner for purposes of
measuring the timeliness of an appeal from the award. In determining
that the petitioner was indeed in effect thereby served, the Court
explained that " once counsel has appeared in a matter a Statute of
Limitations or time requirement cannot begin to run unless that counsel
is served with the determination or the order or judgment sought to be
reviewed' " (id. at 441, quoting Matter of Bianca v Frank, 43 NY2d 168, 173).

In further support of our decision, we note that several cases have
explicitly used the terms "receipt" and "received" in discussing the
90-day period set forth in CPLR 7511 (a)2

Less recent cases have used language that essentially is analogous to the terms "receipt" or "received" (Lopez v Coughlin,
220 AD2d 349, 350 ["Petitioner's application challenging the
arbitration award was properly dismissed for failure to bring it within
90 days after service of the award on petitioner's attorneys"]; Matter of Malatestinic v Board of Educ. of City of N.Y.,
132 AD2d 661, 662 ["(The) statute began to run on . . . the date upon
which the petitioner was originally notified of the denial of her
request"]; Matter of Levy [Allstate Ins. Co.], 63 AD2d 982, 983
["(The operative date was date on which the arbitration) award . . .
was transmitted to the parties"]). We acknowledge that, in Robinson v City of New York (237 AD2d 127, 128, lv denied
90 NY2d 801), the First Department held that the "[p]etitioner was
properly deemed served with the arbitration award upon its mailing to
the attorney who represented her at the arbitration hearing." The issue
in that case, however, was whether the attorney's delay in forwarding
the award to the petitioner served to extend the petitioner's 90 days
under CPLR 7511 (a) to move to vacate the award, not whether delivery
of the award was the date on which it was mailed to the attorney.

In attempting to distinguish the cases that use the word
"received," respondent contends that those cases involved labor
arbitration awards rather than no-fault master arbitration awards and
thus are not governed by Insurance Department Regulation (11 NYCRR) §
65-4.10. We reject that contention, for two reasons. First, 11 NYCRR
65-4.10 (e) (3) simply sets forth the method of the delivery of the
award to the parties. It does not define "delivery" as it is used in
CPLR 7511 (a). Second, we agree with petitioner that, once a party
commences a proceeding pursuant to CPLR article 75, the procedures set
forth in that article control over those set forth in the Insurance
Department Regulations. Thus, even if 11 NYCRR 65-4.10 (e) (3)
constitutes an attempt to define "delivery" under CPLR 7511 (a), such
an attempt would be improper. Were we to accept respondent's
contention, the 90-day statute of limitations under CPLR 7511 (a) would
have different measuring dates, depending on what type of arbitration
was sought to be reviewed, and that would be an untenable distinction.

1.  CPLR § 7507 reads as follows:

Except as provided in section 7508,
the award shall be in writing, signed and affirmed by the arbitrator
making it within the time fixed by the agreement, or, if the time is
not fixed, within such time as the court orders. The parties may in
writing extend the time either before or after its expiration. A party
waives the objection that an award was not made within the time
required unless he notifies the arbitrator in writing of his objection
prior to the delivery of the award to him. The arbitrator shall deliver
a copy of the award to each party in the manner provided in the
agreement, or, if no provision is so made, personally or by registered
or certified mail, return receipt requested.

2.  I took the cites out to save space.  You can find them by clicking the hyperlinked case.
All the bold is mine.  The footnotes are mine as well.

Have a look at this post over at New York Legal Update, where Thomas Swartz parses the legal mumbo jumbo and makes the import of the decision clear.


CPLR § 3126.  Penalties for refusal to comply with order to disclose

Koehler v Midtown Athletic Club, LLP, 2008 NY Slip Op 07734 (App. Div., 4th Dept)

Plaintiff commenced this action seeking damages for injuries he
allegedly sustained when his foot became entangled in a net while
playing tennis at a facility owned and operated by defendants.
Plaintiff's attorney notified defendants that the net was important to
the litigation and requested that it be preserved, and plaintiff, as
well as defendants' insurer, photographed the net. Nevertheless,
defendants failed to preserve the net, and plaintiff moved to strike
defendants' answer and for partial summary judgment on liability in
favor of plaintiff as sanctions for spoliation of evidence. On the
record before us, we conclude that plaintiff established that
spoliation had occurred and thus that some sanction was warranted, but
we agree with defendants that Supreme Court abused its discretion in
granting plaintiff the relief sought (see Tomasello v 64 Franklin, Inc., 45 AD3d 1287, 1288; Enstrom v Garden Place Hotel, 27 AD3d 1084, 1085). We therefore modify the order accordingly.

"A party seeking a sanction pursuant to CPLR 3126 such as preclusion or
dismissal is required to demonstrate that a litigant, intentionally or
negligently, dispose[d] of crucial items of evidence . . . before the
adversary ha[d] an opportunity to inspect them' . .
. , thus depriving the party seeking a sanction of the means of
proving his claim or defense. The gravamen of this burden is a showing
of prejudice"
(Kirschen v Marino, 16 AD3d 555,
555-556). Here, plaintiff is able to testify at trial that he fell when
his foot became entangled in the net and, indeed, he testified at his
deposition with respect to the cause of the accident. Furthermore, both
plaintiff and defendants photographed the holes in the net in question,
and those photographs are available to plaintiff to support his
contention that defendants had constructive notice of the [*2]alleged dangerous condition, i.e., holes in the net in which a person playing tennis could become entangled (see generally Morgan v State of New York,
90 NY2d 471, 488). Thus, we conclude that, "[u]nder all the relevant
circumstances, neither striking the answer nor precluding defendant[s]
from offering evidence at trial is warranted"
(Quinn v City Univ. of N.Y., 43 AD3d 679,
680). Rather, we conclude that an adverse inference charge against
defendants is a more appropriate sanction. We therefore further modify
the order accordingly.

All the bold is mine.

Article 78, CPLR § 7801(1)


CPLR § 7801(1) Nature of Proceeding

Dreyer v City of Saratoga Springs, 2006 NY Slip Op 52618(U) (Sup Ct, Saratoga County) — I have no idea why a 2006 case made it to the New York Official Reports today.  What's more strange is that the case that affirmed it is a 2007 Slip Op (Matter of Dreyer v City of Saratoga Springs, 2007 NY Slip Op 06386, 43 A.D.3d 586, 840 N.Y.S.2d 680 [App. Div., 3rd])

CPLR 7801 (1) precludes judicial review of determinations which are
"not final". The rationale is that a court ought not issue advisory
New York Public Interest Research Group, Inc. v Carey,
42 NY2d 527, 529 (1977). Judicial review is permitted only when there
exists an actual controversy, a genuine legal dispute, not contingent
upon events which may or may not occur.
see Matter of New York State Inspection, Sec. & Law Enforcement Employees v Cuomo, 64 NY2d 233, 240 (1984); Matter of Rubin v New York State Educ. Dept.,
210 AD2d 550 (3rd Dept 1994). An action taken by a municipality is not
ripe for judicial review until such action inflicts an actual, concrete
injury to the party which challenges that action.
Church of St. [*4]Paul & St. Andrew v Barwick, 67 NY2d 510, 519 (1986); Matter of Town of Coeymans v City of Albany, 237 AD2d 856 (3rd Dept 1997), lv denied
90 NY2d 803 (1997). Stated another way, a challenged determination is
final and binding when it " has its impact' upon the petitioner who is
thereby aggrieved".
Matter of Edmead v McGuire, 67 NY2d 714, 716 (1986); Matter of Maurer v State Emergency Management Office, 13 AD3d 751, 753 (3rd Dept 2004).

Dreyer, of course, was impacted and thus aggrieved when the City
Attorney notified her attorney that no defense would be provided her in
the Cornick litigation.
To avoid a default judgment, she had to interpose at her personal expense a legal defense in the Cornick
action. City Code § 9-1, the predicate for Dreyer's demand for a
defense, sets forth no standardized procedure for addressing an
employee's request for a legal defense. Section 9-1 does not require
that the City Council adopt a formal resolution one way or the other.
That a resolution was adopted in regard to Dreyer's earlier, identical
request in the Moore case does not mean that City Attorney's
letter, which conveyed unequivocally the message that the City would
not provide a defense to her in Cornick , was not a final
determination. To accept the City's argument would impermissibly permit
the City to place Dreyer's request for a defense in a legal limbo
simply by not acting by formal resolution. The City Attorney's letter
constitutes municipal action which impacted and aggrieved Dreyer. Thus,
Dreyer's second claim for defense presents a controversy just as
justiciable as her first, and both are ripe for determination. The
City's objection in point of law lacks merit and is dismissed, without

All the bold is mine.

CPLR § 213(2) Statute of Limitations and Anticipatory Breach of Contract

CPLR § 213 Actions to be commenced within six years

(2) an action upon a contractual obligation or liability.

Chester Med. Diagnostic, P.C. v Kemper Cas. Ins. Co., 2008 NY Slip Op 52009(U) (Civ Ct City NY, Kings County)

The fact that the defendant may have repudiated the contract on
November 29, 2000 when it issued a denial of the claim and mailed a
copy of the denial to the defendant does alter this result. Under the
doctrine of anticipatory breach, where one party clearly and
unequivocally repudiates his contractual obligations under a contract
prior to the time performance is required, the non-repudiating party
may deem the contract breached and immediately sue for damages
(see American List Corp. v. U.S. News & World Report, 75 NY2d 38, 550 NYS2d 590, 549 NE2d 1161 [1989]; De Lorenzo v. Bac Agency Inc., 256 AD2d 906, 908, 681 NYS2d 846, 848 [3rd Dep't 1998]; Long Is. R.R. Co. v. Northville Indus. Corp., 41 NY2d 455, 463, 393 NYS2d 925, 362 NE2d 558 [1977]).

While the plaintiff may have been entitled to bring the action
under the doctrine of anticipatory breach when the defendant denied the
claim, even though the 30 day period in which defendant had to pay the
claim had yet to expire, plaintiff was well within its rights to elect
to keep the contract in force and await the designated time for
performance before bringing suit
(Ga Nun v. Palmer, 202 NY 483, 493, 96 N.E. 99 [1911]; see also, Rachmani Corp. v. 9 East 96th Street Apartment Corp., 211 AD2d 262, 266, 629 NYS2d 382, 384 [1st Dep't 1995] ). As the Court of Appeals wrote in Ga Nun:
"The man who wrongfully renounces a contract into which he has
deliberately entered cannot justly complain if he is immediately sued
for a compensation in damages by the man whom he has injured; and it
seems reasonable to allow an option to the injured party, either to sue
immediately, or to wait until the time when the act was to be done,
still holding it as prospectively binding for the exercise of this
option, which may be advantageous to the innocent party, and cannot be
prejudicial to the wrongdoer
" (Ga Nun, 202 [*3]NY at 490-491, 96 N.E. at 101 – 102, citing Hochster v. De la Tour, 2 Ellis & Blackburn, 678). For the above reasons, defendant's motion for summary judgment is DENIED.

All the bold is mine, except for the word "DENIED".

In any motion for summary judgment based upon the SOL expiring on a breach of contract action, the inquiry as to when the SOL began to run starts at the breach–the date of the breach must be shown before any calculation can be made.  Here, defendant tried to argue that the breach occurred when it denied the claim and that the SOL accrued from that at.  The Court disagreed.

I'm all but certain that this will wind up being appealed (It isn't my case, in case you're curious).  Look for an Appellate Term decision on this in the near future.

CPLR R. 3212(f)

CPLR R. 3212 Motion for summary judgment

CPLR R. 3212(f) Facts unavailable to opposing party

Barrios v Boston Props. LLC, 2008 NY Slip Op 07579 (App. Div., 1st)

That part of the motion that sought dismissal of the Labor Law § 200
claim was premature, since, as a result of the failure of all
defendants to engage in discovery
, the identity of the defendant that
supervised and controlled the freight elevator into which plaintiff was
loading door bucks was within defendants' exclusive knowledge (see CPLR 3212[f]).1

1.  CPLR 3212(f):

Facts unavailable to opposing party.

Should it appear from affidavits submitted in opposition to the motion
that facts essential to justify opposition may exist but cannot then be
stated, the court may deny the motion or may order a continuance to
permit affidavits to be obtained or disclosure to be had and may make
such other order as may be just.

The footnote and the bold are mine.  Sometimes having the section in front of you can make a decision easier to understand or make the section's application clear.

CPLR § 317

CPLR § 317 Defense by person to whom summons not personally delivered

Caruso v Valentin,
2008 NY Slip Op 07204 (App. Div., 2nd)

The Supreme Court did not improvidently exercise its discretion in
denying that branch of the defendants’ motion which was to vacate the
judgment entered upon their failure to appear or answer pursuant to
CPLR 5015 since they failed to present a reasonable excuse for their
default or to demonstrate the existence of a meritorious defense (see CPLR 5015[a][1]; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141; Taylor v Saal, 4 AD3d 467; Dominguez v Carioscia, 1 AD3d 396; Kaplinsky v Mazor,
307 AD2d 916). Moreover, vacatur was not warranted under CPLR 317 since
the defendants failed to demonstrate that they did not personally
receive notice of the summons and complaint in time to defend the
(see CPLR 317; Taieb v Hilton Hotels Corp., 60 NY2d 725; Brockington v Brookfield Dev. Corp., 308 AD2d 498; Samet v Bedford Flushing Holding Corp., 299 AD2d 404, 405).

Generally motions to vacate pursuant to CPLR § 317 are less frequent than those pursuant to § 5015.  When making a motion under CPLR § 317 it is important to take note of the peculiar requirements of that section.

All the bold is mine.


CPLR § 5501, CPLR § 4017, CPLR § 4110(b)

CPLR § 5501 Scope of review

CPLR § 4017 Objections

CPLR § 4110(b) Instructions to jury; objection

In any trial, whether in a bench or jury trial, it’s easy to get lost in the heat of it, and miss those crucial objections. Or, forget to object in such a way as to preserve your objection for appellate review.  In Preserving Objections to Jury Charges, an article that will appear in Monday’s New York Law Journal (it is available in the online version now) Victor Olds and Elizabeth Bohnett,A discuss the consequences of failing to adequately preserve objections to jury charges, including the difficulties that can be faced on appeal when the objections aren’t properly preserved.

Of course, this being a blog devoted to the CPLR, I’m really only interested in that aspect of article, however, that should not be taken to mean that the article should not be read in its entirety–it should.

Without any further interruption, here is the CPLR part(s):

The Preservation Doctrine

The preservation doctrine (also called the "contemporaneous objection
rule") has several objectives, to wit, (1) to ensure that each party
has ample opportunity to hear and respond to the arguments of the other
party; (2) to provide the trial judge with the ability to issue rulings
on all matters and correct errors while the case is still at the trial
phase; and (3) to curtail the number of time-consuming, frivolous
Indeed, the overarching effect of the preservation doctrine is to limit
appellate review exclusively to those grounds that were raised at the
trial court level.4

Section 5501 of the CPLR is the basic statutory provision governing
appellate review in New York. Under that provision, appellate
consideration of any final judgment is proper regarding a ruling or
jury instruction contained therein, provided an appropriate objection
has been made by the appellant at trial below.5
In addition, CPLR §4017 requires that any objection so rendered be both
"timely" and "specific" in order to be adequately preserved. Moreover,
with reference to jury instructions, CPLR §4110-b mandates that
appellate review of jury charges is available only in those instances
where the party claiming error registers a specific objection and does
so before the jury retires to consider the verdict.

New York courts have generally held that the timeliness requirement
means that the objection must be registered at some point during the
trial proceeding,6
while the specificity component insists that the challenge be focused
on the precise alleged error whose correction is being urged on appeal.7
It follows that if counsel neglects to make a timely and specific
objection, he will be deemed to have waived his challenge on appeal.8
As the case law indicates, appellate courts generally take a dim view
of a failure to adhere to these rules, especially in cases involving
post-verdict challenges. What is particularly interesting, however, are
the various contexts in which these issues arise with respect to jury
charges. Indeed, the cases that have addressed this point are both
illustrative of how courts choose to apply the rules relating to
preservation, and instructive in helping one avoid some of the common
pitfalls that could entirely foreclose appellate review.

All the bold is mine.  I added the footnote with the bios as they appear in the online version because it would take up too much damn space to put anything remotely similar in the text.


A. Victor Olds is the managing director and general
counsel of Bedford-Stuyvesant Community Legal Services and an adjunct
professor of appellate advocacy at Brooklyn Law School.
Elizabeth Bohnett is a staff attorney at Bedford-Stuyvesant Community Legal Services. Helen Tang, a law student at Columbia Law School, participated in the preparation of this article.