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.

CPLR § 2001

CPLR § 2001 Mistakes, omissions, defects & irregularities

Mazzarelli v. 54 Plus Realty Corp., 2008 NY Slip Op 07219 (App. Div., 2nd)

The plaintiff’s
contention that the deposition transcript of the representative of the
defendant 54 Plus Realty Corp. (hereinafter the defendant) was in inadmissible
form and thus improperly considered by the motion court is without merit.
Although the defendant did not submit the complete transcript with its original
motion papers, the properly-certified and executed signature page of the
deposition transcript was submitted with its reply papers. The defendant
demonstrated that it forwarded the original signed transcript to the
plaintiff’s attorney approximately three months prior to moving for summary
judgment. Under these circumstances, the plaintiff was not prejudiced by the
omission of the signature page from the original motion papers, which was
properly disregarded by the Supreme Court (see
CPLR 2001)

Compare this decision with
Tu v Loan Pricing Corp., 2008 NY Slip Op 51945(U) (Supreme Court, New York County), one post below.

All the bold is mine.

CPLR § 104

CPLR § 104 Construction

Tu v Loan Pricing Corp., 2008 NY Slip Op 51945(U) (Supreme Court, New York County)


I’m posting this case not so much for its content per se.  While I’m sure it’s an incredibly interesting case, I was more interested in the footnote at the end.  Particularly, the very last sentence of the footnote:

Footnote 1:In
their papers, each side raises the issue of the defects that exist in
the others motion papers. Plaintiff claims that the court should deny
defendants motion on its face since they failed to submit copies of all
the pleadings in their original submission in violation of CPLR §
3212(b). Plaintiff’s Memorandum at p. 11. Defendants claim that the
plaintiff violated this court’s rules by going over the allocated page
limit in its memorandum of law in opposition to the motion. Defendants
Reply Memorandum at p. 29. The court is mindful of these procedural
defects but will use its inherent power to disregard them in the
interests of justice and decide the motion on its merits. See
CLPR 104.

Give me a couple of minutes (hours probably–I have to put a crib together) to explain.

And a couple of hours (16 or so) later, I haven’t put anything together, however, I can begin to explain:

For any attorney who spends time in one of the various New York courts, that attorney has seen motions upon motions denied for failure to strictly adhere to the requirements of the CPLR.  And, of course, motions that were granted as a result of a party’s failure to do same.  It is indeed a rare event when a Judge is willing to overlook a technical deficiency in order to get to the merits of the motion.

CPLR R. 2221(a)

CPLR R. 2221(a) Motion affecting prior order

Doscher v Doscher,
2008 NY Slip Op 07084 (App. Div., 2nd)

CPLR 2221(a) provides, inter alia, that any motion for leave to
renew or reargue a prior motion shall be made to the judge who signed
the order deciding the prior motion, unless that judge is unable to
hear the motion. "The design of the rule is to prevent a second judge
of the same court from sitting in effect as an appellate court over a
colleague" (Siegel, NY Prac § 253, at 433 [4th ed]).

Here, Justice Ross improperly entertained the plaintiff’s
application for leave to renew and reargue her motion to compel the
defendant to submit to a deposition, since there was no demonstration
by the plaintiff that the Justice who signed the prior order was no
longer available to entertain the application (see CPLR
2221[a]). Justice Ross had no authority to rule on a matter already
reviewed by another Justice of equal authority, and by ruling on the
application for leave to [*2]renew and reargue, Justice Ross, in effect, improperly overruled a court of coordinate jurisdiction
(see People v Evans, 94 NY2d 499,504; Matter of Dondi v Jones, 40 NY2d 8,15; Nong Yaw Trakansook v 39 Wood Realty Corp., 18 AD3d 633; Matter of Eisenstadt v Eisenstadt, 277 AD2d 378; Clearwater Realty Co. v Hernandez, 256 AD2d 100).

In short, a motion to renew and reargue should go to the judge that decided the original order, because we don’t want judges in the same court to overrule each other.  Havoc would ensue.

Where are all the pictures of the CPLR?

You know the one; the big red book we’ve all come to know and love.  I just spent half an hour looking for pictures in an attempt to snazz up this blog, and, much to my surprise and chagrin, I was able to find all of one picture.  And it wasn’t even a good one.  Even more strange were the results from my picture search for "Richardson on Evidence".

No need to worry though.  I will take some pictures of my own books tomorrow.

Now why is this important?  It just is.

While I’m at it, I think everyone should have their own copy of the CPLR.  Having a copy sitting in some lonely corner of the law office library, or in that one person’s office (you know, the one with the coffee stained shirt and the mismatched socks) just isn’t enough.  Every office or cubicle should have one.  You should be reading it on the train and one on CD to listen to while in the car.

It is the final authority on all matters and should be respected.  There, I said it.

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.