CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association...

302
CPLR U pdate Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education ____________________________________________________________________________ Speaker: David L. Ferstendig, Esq. Law Offices of David L. Ferstendig, LLC. New York City Date: Thursday, August 16, 2018 Time: 9:05 to 10:20 a.m. Where: Hotel Pennsylvania 401 7th Avenue New York, NY 10001

Transcript of CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association...

Page 1: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

CPLR Update

Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education

____________________________________________________________________________

Speaker: David L. Ferstendig, Esq. Law Offices of David L. Ferstendig, LLC.

New York City

Date: Thursday, August 16, 2018

Time: 9:05 to 10:20 a.m.

Where: Hotel Pennsylvania

401 7th Avenue

New York, NY 10001

Page 2: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Portions of the text reprinted from the following permission:

• Ferstendig, LexisNexis AnswerGuide New York Civil Litigation (2018 ed. Matthew Bender). Copyright 2016 Matthew

Bender & Company, Inc. a LexisNexis company. All rights reserved.

• LexisNexis® Expert Commentaries, David L. Ferstendig on Brill v. City of New York. Copyright 2007 Matthew

Bender & Company, Inc. a LexisNexis company. All rights reserved.

• Weinstein, Korn & Miller: New York Civil Practice: CPLR, Rel 162 – 169 (David L. Ferstendig ed., LexisNexis

Matthew Bender 2d Ed.). Copyright 2018 Matthew Bender & Company, Inc. a LexisNexis company. All

rights reserved.

DAVID L. FERSTENDIG BIO

David L. Ferstendig, currently a member of Law Offices of David L. Ferstendig, LLC, New York,

was a founding officer of the law firm Breindel & Ferstendig, P.C. He litigates a spectrum of civil

and commercial matters, including breach of contract, products liability, toxic tort, insurance and

reinsurance coverage, jewelers’ block, political risk, environmental liability, trade secret, and

professional indemnity. Mr. Ferstendig is also an adjunct law professor at Brooklyn Law School

and New York Law School, where he teaches New York Practice. He is the General Editor of

Weinstein, Korn & Miller New York Civil Practice: CPLR (LexisNexis), the premier 15-volume

litigation treatise cited regularly as authoritative by New York State and Federal courts; author of

Ferstendig, Chase New York CPLR Manual (LexisNexis) and LexisNexis AnswerGuide New

York Civil Litigation; and General Editor of CPLR Practice Insights, published in New York

Consolidated Laws Service (LexisNexis). He has written articles for the New York Law Journal,

authored a law review article entitled: “A Practitioner’s Continued Uncertainty: Disclosure from

Nonparties,” 74 ALB. L. REV. 731 (2010/2011) and was a panelist at New York University School

of Law in March 2013 for the symposium entitled “The CPLR at Fifty: Its Past, Present, and

Future” which resulted in the publication of his remarks, “The CPLR: A Practitioner’s

Perspective.” Mr. Ferstendig has co-authored two law review articles with Professor Oscar Chase

of NYU Law School entitled: Chief Judge Kaye: Improving the Pace and Integration of Litigation,

92 N.Y.U. L. REV. 11 (2017) and Should Counsel for a Non-Party Deponent be a “Potted Plant”?,

2014 N.Y.U. J. Legis. Pub. Pol’y Quorum 52. Mr. Ferstendig has provided expert testimony

interpreting the meaning and application of New York law and has been quoted as an expert on

legal procedure in New York in The Washington Post. He was a 2015 and 2011 recipient of New

York Law School’s Otto L. Walter Distinguished Writing Award. A graduate of New York

University School of Law, Mr. Ferstendig has lectured on civil practice issues for bar associations,

the New York State Judicial Institute and LexisNexis. He is a member and past Chair of the CPLR

Committee for the New York State Bar Association. Effective with the May, 2015 edition, Mr.

Ferstendig became the Editor of the New York State Law Digest. He was selected by the New

York State Board of Law Examiners as a faculty member presenting Civil Practice and Procedure

to 2016 bar examination candidates as part of the New York law course.

Page 3: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

Table of Contents

Table of 2018 CPLR Amendments ................................................................................................. 8

Table of 2017 CPLR Amendments ............................................................................................... 10

New Appellate Division Uniform Rules ....................................................................................... 11

New E-Filing Rules Applicable to Appellate Division................................................................. 11

STATUTE OF LIMITATIONS .................................................................................................... 12

CPLR 201.................................................................................................................................. 12

CPLR 202 - Borrowing Statute ................................................................................................. 14

Relation Back ............................................................................................................................ 20

CPLR 204 Stay ......................................................................................................................... 25

CPLR 205(a) - Six Month Extension ........................................................................................ 26

CPLR 207- Absence Toll .......................................................................................................... 30

CPLR 208 - Disability toll ........................................................................................................ 30

CPLR 212- Ten year statute of limitations ............................................................................... 31

CPLR 213 – Six-year statute of limitations .............................................................................. 32

CPLR 213-a - Residential rent overcharge ............................................................................... 43

CPLR 214 - Three year statute of limitations ........................................................................... 44

CPLR 214-a - Medical, dental or podiatric malpractice actions – two years and six months .. 52

CPLR 214-c- Discovery statute of limitations .......................................................................... 61

CPLR 214-c - Statute runs from date condition or symptom is discovered or reasonably should

have been discovered, not the discovery of the specific cause of the condition or symptom .. 62

CPLR 215 - One year statute of limitations .............................................................................. 63

CPLR 217- Four month statute of limitations, “[u]nless a shorter time is provided in the law

authorizing the proceeding” ...................................................................................................... 63

CPLR 217 - Article 78 proceeding appropriate where challenge is directed to the procedure

followed in enacting, rather than the substance of, legislation ................................................. 69

CPLR 217 - 30-day statute of limitations applies ..................................................................... 70

CPLR 217 - Challenge to university's academic and administrative decision ......................... 70

CPLR 217 - No toll for plaintiff's invocation of defendant's voluntary student grievance

procedure................................................................................................................................... 70

CPLR 217 - Gravamen of petition was that grading system was implemented in violation of

lawful procedure, affected by an error of law, and arbitrary and capricious. ........................... 71

CPLR 217-a - One year and 90 days ........................................................................................ 72

JURISDICTION ........................................................................................................................... 77

Page 4: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

CPLR 301.................................................................................................................................. 77

CPLR 302 - Specific Jurisdiction ............................................................................................. 85

COMMENCEMENT .................................................................................................................... 94

CPLR 304 - Commencing actions or special proceedings ........................................................ 95

SUMMONS .................................................................................................................................. 96

CPLR 305 - Summons .............................................................................................................. 96

SERVICE ...................................................................................................................................... 97

CPLR 306-b - Service of initiating pleadings ........................................................................... 97

CPLR 308 - Personal service on natural persons .................................................................... 103

CPLR 311 - Personal service on corporation or governmental subdivision ........................... 114

CPLR 312-a - Service by mail ................................................................................................ 115

DEFENDANT’S APPEARANCE .............................................................................................. 115

CPLR 320 - Defendant’s appearance ...................................................................................... 115

CPLR 321- Attorneys ............................................................................................................. 117

REMOVAL ................................................................................................................................. 118

CPLR 325 - Grounds for removal ........................................................................................... 118

CPLR 325(b) - Motion must be accompanied by a request for leave to amend the ad damnum

clause of the complaint ........................................................................................................... 118

FORUM NON CONVENIENS .................................................................................................. 118

ARTICLE 4 - SPECIAL PROCEEDINGS................................................................................. 120

CPLR 402 - Pleadings in special proceedings ........................................................................ 120

CPLR 403 - Notice of petition; order to show cause .............................................................. 121

CPLR 408 - Disclosure in special proceeding ........................................................................ 123

ARTICLE 5 - VENUE ................................................................................................................ 123

ARTICLE 9 – CLASS ACTIONS .............................................................................................. 131

ARTICLE 10 - PARTIES GENERALLY .................................................................................. 133

CPLR 1003 - Service outside time to add parties as of right .................................................. 133

ARTICLE 14- A – CONTRIBUTORY NEGLIGENCE ............................................................ 134

CPLR 1412 - Burden of proof ................................................................................................ 134

ARTICLE 20- MISTAKES, DEFECTS, IRREGULARITIES AND EXTENSIONS OF TIME

..................................................................................................................................................... 136

ARTICLE 21 - PAPERS ............................................................................................................. 145

CPLR 2103 - Service of papers .............................................................................................. 145

ARTICLE 22- STAY, MOTIONS, ORDERS AND MANDATES ........................................... 146

Page 5: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

CPLR 2212 - Where motion made .......................................................................................... 146

CPLR 2214- service of motion papers .................................................................................... 147

CPLR 2219/2220 - Time, form, entry and filing of order ...................................................... 147

CPLR 2221 - Motions to reargue or renew ............................................................................. 149

ARTICLE 23 - SUBPOENAS, OATHS AND AFFIRMATIONS ............................................ 151

CPLR 2303-a - Service of a trial subpoena ............................................................................ 151

CPLR 2304 - Motions to quash .............................................................................................. 151

CPLR 2308 - Disobedience of subpoena ................................................................................ 152

ARTICLE 30 – REMEDIES AND PLEADINGS ...................................................................... 152

CPLR 3001- Declaratory judgment ........................................................................................ 152

CPLR 3011 - Kinds of pleadings ............................................................................................ 153

CPLR 3012-a - Certificate of merit in medical, dental and podiatric malpractice actions ..... 154

CPLR 3013 - Particularity of statements, generally ............................................................... 155

CPLR 3016 - particularity in specific actions ......................................................................... 156

CPLR 3018- Responsive pleadings ........................................................................................ 157

CPLR 3019 - Counterclaims and cross-claims ....................................................................... 158

CPLR 3022 – Remedy for defective verification ................................................................... 159

CPLR 3025 – Amended and supplemental pleadings............................................................. 159

CPLR 3043 - Bill of particulars in personal injury actions .................................................... 164

ARTICLE 31 - DISCLOSURE ................................................................................................... 165

CPLR 3101- Scope of disclosure ............................................................................................ 165

CPLR 3104 - Supervision of disclosure.................................................................................. 180

CPLR 3116 - Signing Deposition ........................................................................................... 181

CPLR 3119 - Uniform interstate depositions and discovery .................................................. 182

CPLR 3121 - Physical or Mental Examination....................................................................... 182

CPLR 3122 - Objections to disclosure, inspection or examination ........................................ 184

CPLR 3122-a - Certification of business records ................................................................... 184

CPLR 3124 - Motion to compel disclosure ............................................................................ 185

CPLR 3126- Penalties for refusal to comply with order or to disclose .................................. 185

ARTICLE 32- ACCELERATED JUDGMENT ......................................................................... 195

CPLR 3211- Motion to Dismiss ............................................................................................. 195

CPLR 3212 - Summary judgment motion .............................................................................. 209

CPLR 3213 - Summary judgment in lieu of complaint .......................................................... 216

CPLR 3215 - Default judgment .............................................................................................. 219

Page 6: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

CPLR 3216 - Want of prosecution- neglect to proceed .......................................................... 224

CPLR 3217- Voluntary discontinuance .................................................................................. 227

CPLR 3218 – Judgment by confession ................................................................................... 229

ARTICLE 34 - CALENDAR PRACTICE ................................................................................. 229

CPLR 3402 - Note of issue ..................................................................................................... 229

CPLR 3408 - Mandatory settlement conference in residential foreclosure action ................. 231

ARTICLE 41 - TRIAL BY JURY .............................................................................................. 232

CPLR 4102 - Jury demand and waiver ................................................................................... 232

CPLR 4111 - General and specific verdicts and written interrogatories ................................ 233

ARTICLE 42 - TRIAL BY THE COURT .................................................................................. 233

CPLR 4201 - Powers of referees to report .............................................................................. 233

CPLR 4213 - Decision of the court......................................................................................... 234

ARTICLE 43 - TRIAL BY A REFEREE ................................................................................... 235

CPLR 4311 - Order of reference ............................................................................................. 235

CPLR 4313 - Notice................................................................................................................ 235

CPLR 4319 - Decision ............................................................................................................ 235

ARTICLE 44 - TRIAL MOTIONS ............................................................................................ 236

CPLR 4401 - Motion for judgment during trial ...................................................................... 236

CPLR 4404 - Post trial motions .............................................................................................. 236

ARTICLE 45 - EVIDENCE ....................................................................................................... 241

CPLR 4503 - Attorney ............................................................................................................ 241

CPLR 4504- Doctor, dentist, podiatrist, chiropractor and nurse ............................................ 244

CPLR 4515 - Form of expert opinion ..................................................................................... 244

CPLR 4518 - Business records ............................................................................................... 247

CPLR 4545 - Admissibility of collateral source of payment .................................................. 249

CPLR 4547 - Compromise and offers to compromise............................................................ 251

ARTICLE 50 - JUDGMENTS.................................................................................................... 252

CPLR 5001 - Interest to verdict, report or decision ................................................................ 252

CPLR 5002 - Interest from verdict, report or decision to judgment ....................................... 253

CPLR 5003-a - Prompt payment following settlement........................................................... 253

CPLR 5011 - Definition and content of judgment .................................................................. 255

CPLR 5014 - Action upon judgment ...................................................................................... 258

CPLR 5015 - Relief from judgment or order .......................................................................... 258

CPLR 5019 - Validity and correction of judgment or order ................................................... 265

Page 7: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

ARTICLE 51 - ENFORCEMENT OF JUDGMENTS AND ORDERS GENERALLY ........... 266

CPLR 5104 - Enforcement of judgment or order by contempt .............................................. 266

ARTICLE 52 - ENFORCEMET OF MONEY JUDGMENTS .................................................. 267

CPLR 5225 - Payment or delivery of property of judgment debtor ....................................... 267

CPLR 5241 - Income execution for support enforcement ...................................................... 267

ARTICLE 53 - RECOGNITION OF FOREIGN COUNTRY MONEY JUDGMENTS ........... 268

CPLR 5302 - Applicability ..................................................................................................... 268

CPLR 5304 - Grounds for non-recognition ............................................................................ 269

ARTICLE 55 - APPEALS GENERALLY ................................................................................. 269

CPLR 5501 - Scope of review ................................................................................................ 269

CPLR 5511 - Permissible appellant and respondent............................................................... 270

CPLR 5513 - Time to take appeal ........................................................................................... 272

CPLR 5515 - Taking an appeal ............................................................................................... 273

CPLR 5522 - Disposition of appeal ........................................................................................ 273

CPLR 5526 - Content and form of record on appeal .............................................................. 276

CPLR 5528 - Content of briefs and appendices ...................................................................... 276

ARTICLE 57- APPEALS TO THE APPELLATE DIVISION .................................................. 277

CPLR 5701 - Appeals to appellate division from supreme and county courts ....................... 277

ARTICLE 62 - ATTACHMENT ................................................................................................ 277

CPLR 6201 - Grounds for attachment .................................................................................... 277

CPLR 6212 - Motion papers ................................................................................................... 278

ARTICLE 63 – INJUNCTION ................................................................................................... 278

CPLR 6301 - Grounds for preliminary injunction and temporary restraining order .............. 278

CPLR 6312 - Motion papers ................................................................................................... 279

ARTICLE 65 - NOTICE OF PENDENCY ................................................................................ 280

CPLR 6501 - Notice of pendency; constructive notice .......................................................... 280

CPLR 6514 - Motion for cancellation of notice of pendency ................................................. 280

ARTICLE 75 - ARBITRATION ................................................................................................ 281

CPLR 7501 - Effect of arbitration agreement ......................................................................... 281

CPLR 7503 - Application to compel or stay arbitration ......................................................... 281

CPLR 7511- Vacating or modifying award ............................................................................ 283

CPLR 7513 - Fees and expenses ............................................................................................. 284

ARTICLE 78 - PROCEEDING AGAINST BODY OR OFFICER ........................................... 284

CPLR 7801 - Nature of proceeding ........................................................................................ 284

Page 8: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

CPLR 7803 - Questions raised ................................................................................................ 287

ARTICLE 83 - DISBURSEMENTS AND ADDITIONAL ALLOWANCES .......................... 292

CPLR 8303-a - Frivolous claims ............................................................................................ 292

ARTICLE 86 - COUNSEL FEES AND EXPENSES IN CERTAIN ACTIONS AGAINST THE

STATE ........................................................................................................................................ 295

RECENT COMMERCIAL DIVISION RULES ........................................................................ 299

Page 9: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

CPLR Section or Rule

Amendment

Effective Date

NY CLS CPLR

203(g)(2) and 214-a

CPLR 214-a and 203(g) were amended to significantly alter the

limitation period for claims alleging failure to diagnose cancer

or a malignant tumor. CPLR 214-a was amended to provide that

the two and a half year limitation period in cases alleging a

failure to diagnose cancer or a malignant tumor, begins to run

from the later of either (i) when the person knows or reasonably

should have known of the alleged negligent act or omission and

knows or reasonably should have known that it caused the injury,

with a cap of seven years from the alleged act or omission, or (ii)

the date of the last treatment, where there is continuous treatment

for such injury, illness or condition. In addition, CPLR

203(g)(2) was added to apply to notices of claim and statutes of

limitation for actions against the state (see Court of Claims Act

§ 10) and municipal defendants (see General Municipal Law §

50-e and § 50-i). It parallels the CPLR 214-a amendment.

Includes revival provision.

1/31/2018

NY CLS CPLR 214-b Amended to extend the expiration date for renewal of time

barred Agent Orange claims to June 16, 2020.

7/1/2018

NY CLS CPLR 2111 Amended to extending provisions of law relating to the use of

electronic means for the commencement and filing of papers in

certain actions or proceedings until September 1, 2019.

7/24/2018

NY CLS CPLR 5003-b Added to provide that an employer (or its employee or officer)

cannot include in a settlement agreement in connection with a

sexual harassment claim, a nondisclosure agreement preventing

the disclosure of the underlying facts and circumstances of the

claim or action unless it is the plaintiff’s (settling individual’s)

preference. In addition, the plaintiff must have 21 days to

consider whether to accept the provision; and even after signing

the agreement, the plaintiff has an additional seven days to

revoke the agreement.

7/11/2018

NY CLS CPLR 7515 Added to bar mandatory arbitration clauses in connection with

sexual harassment claims, except where inconsistent with

federal law. The mandatory arbitration clause concerns a

provision in a written contract (1) requiring the submission of a

matter to arbitration (as defined in CPLR Article 75) prior to

bringing any legal action, and (2) providing that an arbitrator’s

determination with respect to an alleged “unlawful

discriminatory practice based on sexual harassment [is] final and

not subject to independent court review.” If such provisions are

7/11/2018

Table of 2018 CPLR Amendments

Page 10: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

included, they will be deemed null and void. Where there is a

conflict between provisions of this section and a collective

bargaining agreement, the latter controls.

Page 11: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

Table of 2017 CPLR Amendments

CPLR Section or Rule Amendment Effective Date

NY CLS CPLR § 503 Amended to authorize venue in "the county in which a substantial

part of the events or omissions giving rise to the claim occurred."

10/23/2017

NY CLS CPLR § 1101 Amended to extend the expiration dates for subsections (d) and

(f) with respect to the waiver of the fee in certain cases and the

fees for inmates to September 1, 2019.

4/20/2017

NY CLS CPLR § 2111 Amended to extend the expiration date for subsection (b) 2-a to

September 1, 2018.

7/24/2017

NY CLS CPLR § 2112 Amended to eliminate present exclusions from mandatory e-

filing in the Appellate Division.

7/24/2017

NY CLS CPLR R 3408 Amended to add Para (a)(2) and clarify that Para (a)(1) shall not

apply to a home loan secured by a reverse mortgage where the

default was triggered by the death of the last surviving borrower

unless (i) the last surviving borrower's spouse, if any, is a resident

of the property subject to foreclosure, or (ii) the last surviving

borrower's successor in interest, who was residing in the property

when the last surviving borrower died, owns or has a claim to the

ownership of the property subject to foreclosure. In addition, the

amendment empowers the superintendent of financial services to

promulgate rules as are necessary to implement these provisions.

4/20/2017

NY CLS CPLR R 4518 Amended to provide that hospital records located in a jurisdiction

other than New York State, may be admissible "by either a

certification or authentication by the head of the hospital,

laboratory, department or bureau of a municipal corporation or

of the state or by an employee delegated for that purpose, or by

a qualified physician."

8/21/2017

NY CLS CPLR R 5521 Amended to reference Public Officers Law § 89(4)(d), relating

to an order requiring disclosure of documents under the Freedom

of Information law.

5/27/2017

Page 12: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

New Appellate Division Uniform Rules

A new set of Uniform Rules applicable to all four Departments of the Appellate Division

(Practice Rules of the Appellate Division) will become effective on September 17, 2018. See 22

NYCRR Part 1250. In addition, each Department has enacted its own new set of supplemental

rules. See 22 NYCRR Part 600 (First Department); Part 670 (Second Department); Part 850 (Third

Department – its prior rules were in Part 800); and Part 1000 (Fourth Department). The new

Practice Rules of the Appellate Division and individual Department rules are attached.

New E-Filing Rules Applicable to Appellate Division

Effective March 1, 2018, the four Departments of the Appellate Division have implemented

electronic filing through NYSCEF with respect to certain appellate matters and original

proceedings. See 22 NYCRR Part 1245 (attached). For now, the applicable actions covered –

which differ from Department to Department – are as follows:

First Department: All appeals in commercial matters originating in Supreme

Court, Bronx and New York Counties.

Second Department: All appeals in matters originating and electronically filed in

Supreme and Surrogate’s Courts in Westchester County.

Third Department: All appeals in civil actions commenced by summons and

complaint in Supreme Court originating in the Third Judicial

District.

Fourth Department: All appeals in matters originating in, or transferred to, the

Commercial Division of Supreme Court in the Fourth

Judicial District.

The list of cases and case types will be increased in the coming months.

Page 13: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

LAW OFFICES OF DAVID L. FERSTENDIG, LLC ATTORNEYS AT LAW

280 MADISON AVENUE, NEW YORK, NY 10016 TELEPHONE: 212-213-1233

FAX: 212-213-1221 EMAIL: [email protected]

WWW.FERSTLAW.COM

CPLR UPDATE

By: David L. Ferstendig

STATUTE OF LIMITATIONS

CPLR 201

CPLR 201 - Statute of Limitations versus Statute of Repose

Nestor v. Putney Twombly Hall & Hirson, LLP, 153 A.D.3d 840, 61 N.Y.S.3d 248 (2d Dep’t 2017)

(“‘In New York, Statutes of Limitation are generally considered procedural because they are

[v]iewed as pertaining to the remedy rather than the right’ (citation omitted). A statute of

limitations ‘does not begin to run until a cause of action accrues’ (citation omitted). In contrast, ‘a

statute of repose begins to run when the specified event or events takes place, regardless of whether

a potential claim has accrued or, indeed, whether any injury has occurred’ (citation omitted). ‘The

repose period serves as an absolute barrier that prevents a plaintiff’s right of action’ (citation

omitted). ‘In other words, the period of repose has the effect of preventing what might otherwise

have been a cause of action from ever arising’ (citation omitted). Statutes of repose ‘exhibit a

substantive texture, nature and consequence that distinguishes them from ordinary limitation

provisions’ (citation omitted). In Tanges, in distinguishing statutes of repose from statutes of

limitations, the Court of Appeals noted that it had previously stated that ‘[i]f a statute creates a

cause of action and attaches a time limit to its commencement, the time is an ingredient of the

cause’ (citation omitted). In contrast, when a cause of action ‘was cognizable at common law or

by other statute law, a statutory time limit is commonly taken as one of limitations and must be

asserted by way of defense’ (citation omitted). California Code of Civil Procedure § 366.3(a)

provides: ‘If a person has a claim that arises from a promise or agreement with a decedent to

distribution from an estate or trust or under another instrument, whether the promise or agreement

was made orally or in writing, an action to enforce the claim to distribution may be commenced

within one year after the date of death, and the limitations period that would have been applicable

does not apply’ (citation omitted). In applying this statute, California courts have referred to it as

a statute of limitations (citations omitted). Here, contrary to the plaintiff’s contention, California

Code of Civil Procedure § 366.3 is a statute of limitations, not a statute of repose. Unlike a statute

of repose, section 366.3 begins to run at the time the cause of action to recover on the promise to

make a testamentary disposition accrues, namely, the date of the promisor’s death (citations

omitted). Moreover, California cases analyzing section 366.3 have termed this statute a statute of

limitations, not a statute of repose, and in one case, the court found that a defense based on this

statute of limitations had been waived because the executor of the estate had not pleaded it

Page 14: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

(citations omitted). Although the California courts’ classification of section 366.3 is not

dispositive, it ‘is instructive and should not be ignored’ (citation omitted). Thus, section 366.3 is

a procedural statute of limitations, and it would not have applied to Christina’s claim against the

decedent’s estate in New York. Since section 366.3 was inapplicable, the plaintiff would not ‘have

prevailed on the underlying claim’ had the Putney defendants raised this defense (citation

omitted).”).

CPLR 201 - Parties to an insurance contract may agree in writing to shorten the period of

time in which to commence an action against an insurer for the nonpayment of claims

Mercedes-Benz Fin. Servs. USA, LLC v. Allstate Ins. Co., 2018 NY Slip Op 04064 (3d Dep’t 2018)

(“While the statute of limitations period applicable to a breach of contract claim is ordinarily six

years (citation omitted), parties to an insurance contract may agree in writing to shorten the period

of time in which to commence an action against an insurer for the nonpayment of claims (citations

omitted). Here, there is no dispute that the insurance policy shortened the period of time within

which plaintiff had to commence this action. . . . However, the term ‘date of loss’ is not defined in

the policy, and the parties disagree as to its meaning and, thus, when the one-year limitations period

began to run. In particular, plaintiff contends that the ‘date of loss’ is the date on which defendant

denied the insurance claim, thereby giving rise to its breach of contract claim. In contrast,

defendant asserts that the ‘date of loss’ is the date on which the vehicle was stolen. We agree with

plaintiff. . . . In view of the foregoing, we hold that the one-year limitations period set forth in the

insurance policy began to run on the date that defendant denied the claim for coverage (citations

omitted). In so holding, we decline to follow the conflicting line of cases cited by defendant in

support of its assertion that the "date of loss" is the date of the underlying theft (citations

omitted).”).

CPLR 201 - Agreement to shorten statute of limitations period- period of time within which

to bring action should be fair and reasonable

D&S Restoration, Inc. v. Wenger Constr. Co., Inc., 160 A.D.3d 924, 75 N.Y.S.3d 505 (2d Dep’t

2018) (“‘[A]n agreement which modifies the Statute of Limitations by specifying a shorter, but

reasonable, period within which to commence an action is enforceable’ (citations omitted). ‘[T]he

period of time within which an action must be brought . . . should be fair and reasonable, in view

of the circumstances of each particular case . . . The circumstances, not the time, must be the

determining factor’ (citations omitted). There is nothing inherently unreasonable about the one-

year period of limitation, to which the parties here freely agreed (citations omitted). ‘The problem

with the limitation period in this case is not its duration, but its accrual date’ (citation omitted). It

is neither fair nor reasonable to require that an action be commenced within one year from the date

of the plaintiff's substantial completion of its work on the project, while imposing a condition

precedent to the action that was not within the plaintiff's control and which was not met within the

limitations period. ‘A limitation period' that expires before suit can be brought is not really a

limitation period at all, but simply a nullification of the claim’ (citation omitted). The limitation

period in the subcontract conflicts with the conditions precedent to payment becoming due to the

plaintiff, which, under the circumstances of this case, acted to nullify any claim the plaintiff might

have for breach of the subcontract. Therefore, interpreting the subcontract against the defendant,

Page 15: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

which drafted the agreement (citations omitted), we find that the one-year limitation period is

unenforceable under the circumstances here (citations omitted). Accordingly, the Supreme Court

should not have granted that branch of the defendant's motion which was to dismiss the breach of

contract cause of action as time-barred.”).

CPLR 202 - Borrowing Statute

CPLR 202 - Residence is where plaintiff allegedly sustained economic impact

Grinbaum v. Klisivitch, 146 A.D.3d 755, 756, 46 N.Y.S.3d 120, 121-122 (2d Dep’t 2017) (“Here,

as the plaintiff resides in Quebec, Canada, and Quebec is the place where he allegedly sustained

the economic impact of the loss, the action accrued in Quebec. It is undisputed that the applicable

limitations period to commence the instant action is six years in New York, but only three years

under Quebec law. Consequently, since this action was commenced more than three years after it

accrued, it is untimely.”).

CPLR 202 - Borrowing statute

David L. Ferstendig, Court of Appeals Agrees That Contractual Choice-of-Law Provision Does

Not Preclude Application of Borrowing Statute, 692 N.Y.S.L.D. 1-2 (2018).

Court of Appeals Agrees That Contractual Choice-of-Law Provision Does Not Preclude

Application of Borrowing Statute

The Provision Reflected the Parties’ Intent to Apply New York’s Substantive and Procedural

Law and CPLR 202 Is Part of That Procedural Law

In the November, 2016 edition of the Digest, we discussed the First Department’s decision in

Ontario, Inc. v. Samsung C&T Corp., 144 A.D.3d 122 (1st Dep’t 2016). There, the court held that

a broadly drawn contractual choice-of-law provision did not preclude the application of New

York’s borrowing statute, contained in CPLR 202. It found that while the choice-of-law provision

prohibited a conflict of law analysis, the borrowing statute was not a choice-of-law directive, but

a statute of limitations. Here, we are dealing with the Court of Appeals’ affirmance. 2018 N.Y.

Slip Op. 04274 (June 12, 2018).

As we previously noted, CPLR 202 provides that where a nonresident brings an action in New

York with respect to a claim accruing outside of the state, the applicable statute of limitations is

the lesser of New York’s limitation period and the limitation period where the cause of action

accrued. The contractual choice-of-law provision here states in relevant part:

This Agreement shall be governed by, construed and enforced in accordance with the laws of the

State of New York. You hereby irrevocably and unconditionally consent to submit to the exclusive

jurisdiction of the courts of the State of New York and of the United States District Courts located

in the County of New York for any lawsuits, actions or other proceedings arising out of or relating

Page 16: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

to this Agreement and agree not to commence any such lawsuit, action or other proceeding except

in such courts. (Emphasis added.)

It was undisputed that the plaintiff’s claims accrued in Ontario, that Ontario’s limitation period

was two years, in contrast to the applicable New York six-year statute of limitations, and that if

Ontario’s two-year period applied, the action was time-barred

The Court of Appeals noted that generally contractual choice-of-law provisions apply to

substantive issues and statutes of limitations are procedural. In this case, however, the parties

agreed with the Appellate Division’s finding that the contract should be interpreted to reflect the

parties’ intent to apply both the substantive and procedural law of New York State to their dispute.

The plaintiff argued that because the choice-of-law provision specifically stated that the contract

would be "enforced" under New York law, it indicated the parties’ intent to apply New York’s

procedural law except for its statutory choiceof-law provisions. The plaintiff claimed that CPLR

202 was such a statutory choice-of-law provision. The Court of Appeals rejected that argument,

holding

that the mere addition of the word "enforced" to the NDA’s choice-of-law provision

does not demonstrate the intent of the contracting parties to apply solely New

York’s six-year statute of limitations in CPLR 213 (2) to the exclusion of CPLR

202. Rather, the parties have agreed that the use of the word "enforced" evinces the

parties’ intent to apply New York’s procedural law. CPLR 202 is part of that

procedural law, and the statute therefore applies here.

Id. at ∗1.

The Court distinguished the statutory choice-of-law provision it dealt with in Ministers &

Missionaries Benefit Bd. v. Snow, 26 N.Y.3d 466 (2015), which it characterized as "a codification

of a long-standing common-law conflict-of-laws principle" and CPLR 202, which "is in derogation

of the long-standing common-law conflicts principle that the law of the forum applies to

procedural issues such as the statute of limitations." Ontario, 2018 N.Y. Slip Op. 04274 at ∗1.

Thus, it rejected the plaintiff’s plea "to broadly redefine a ‘statutory choice-of-law directive’ as

any statute that may require the application of the law of another state." Id.

The Court also dismissed plaintiff’s argument that it was "irrational" to conclude that the parties

intended CPLR 202 to apply:

As explained, the borrowing statute is a stable fixture of New York’s procedural

law, of which these sophisticated commercial entities were presumably aware when

they chose New York’s procedural law to govern their arrangement. Notably, the

NDA was signed in 2008, several years before we decided Ministers and

Missionaries and therefore before the phrase "statutory choice-of-law directive"

entered our vocabulary. It is therefore reasonable to conclude that the parties may

have intended for CPLR 202 to apply, perhaps for strategic reasons, or because they

Page 17: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

did not think at the time that it was possible to contract around the application of

statutes they believed to be statutory choice-of-law directives, or otherwise.

Id. at ∗1–2.

The Court stressed that while forum shopping was not a consideration in this case because the

parties agreed contractually that New York was the exclusive forum, and forum shopping is a

primary purpose of CPLR 202, it is not the statute’s only purpose. In fact, it also adds clarity and

certainty to the law.

Because the parties did not expressly agree that New York’s six-year limitation period governed

or that CPLR 202 did not apply, the Court had

no occasion to address whether enforcement of such a contractual provision would

run afoul of CPLR 201 or General Obligations Law § 17-103, or would otherwise

violate New York’s public policy against contractual extensions of the statute of

limitations before accrual of the cause of action. We therefore express no opinion

on that issue (citation omitted).

Id. at ∗2.

CPLR 202 - Borrowing statute applies despite New York contractual choice of law clause

All My Children’s Hosp., Inc. v. Citigroup Global Mkts., Inc., 151 A.D.3d 583, 59 N.Y.S.3d 7

(1st Dep’t 2017) (“The motion court was correct in utilizing New York’s borrowing statute, CPLR

202, and applying Florida’s shorter statute of limitations to plaintiff’s claims, despite the

contractual choice-of-law provision pointing to New York law (citation omitted).”).

CPLR 202 - Borrowing statute

David L. Ferstendig, Court Holds that Cayman Islands Rule is Procedural in Nature, 686

N.Y.S.L.D 3 (2018).)

Court Holds That Cayman Islands Rule Is Procedural In Nature

Thus, Under Choice of Law Principles, It Did Not Apply To Derivative Action Brought In

New York

The issue in Davis v. Scottish Re Group Ltd., 2017 N.Y. Slip Op. 08157 (November 20, 2017),

was whether a particular Cayman Islands Rule was substantive and thus applied under choice of

law principles to an action brought here.

Some basic principles first when analyzing choice of law issues. First, under New York common

law principles, the forum’s procedural rules govern. Moreover, the law of the forum generally

governs the determination as to whether a particular foreign law is procedural or substantive in

Page 18: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

nature, although the foreign jurisdiction’s characterization of the law is instructive, but not

dispositive. See Tanges v. Heidelberg N. Am., Inc., 93 N.Y.2d 48, 54 (1999).

Here, the plaintiff commenced an action asserting both direct and derivative claims against various

defendants, including Scottish Re Group Limited (Scottish Re), a Cayman Islands company,

formerly a reinsurer. Rule 12A, contained in Order 15 of the Cayman Islands Grand Court Rules

1995, provides that a plaintiff who brings a contested derivative action in the Cayman Islands is

required to apply to the Cayman Islands Grand Court for leave to continue the action. The Rule is

intended to avoid vexatious or unfounded litigation. If Rule 12A was determined to be substantive,

then under choice of law principles, the plaintiff would be barred from bringing this action in New

York (having failed to seek leave from the Cayman Islands Grand Court).

The parties agreed that Cayman Islands substantive law governed the merits of this action. Plaintiff

argued Rule 12A was inapplicable because it

is a procedural rule governing the way in which the parties appear before the

Cayman courts, what manner of evidence shall be presented and, should a court

make a determination to grant the plaintiff leave to continue, the next steps to be

taken toward ultimate resolution of a derivative action.

Davis, 2017 N.Y. Slip Op. 08157, at ∗3

The defendants countered that the rule is a "substantive ‘gatekeeper’ in derivative actions involving

Cayman Island companies." Id. As a result, a plaintiff who files a derivative action anywhere in

the world on behalf of a Cayman Islands-organized company is required to comply with Rule 12A

and seek leave from the Cayman Islands Grand Court.

The Court first looked to the language of Rule 12A, which talks of derivative actions "commenced

by writ," and states that an application to the Grand Court is required when the defendant has

"given notice of intention to defend." The Court noted that these procedures are specific to Cayman

Islands litigation; actions in New York are not commenced by writ, and the Grand Court rules have

their own specific method for how a defendant acknowledges service of the writ. Thus, it

concluded that Rule 12A was procedural and did not apply in New York courts. The Court added

that there is no suggestion in the rule’s language that it applies to derivative actions brought on

behalf of Cayman Island companies outside the Cayman Islands.

The Court here found that the defendant’s reliance on the Court’s decision in Tanges, supra, was

misplaced. In Tanges, answering a certified question from the Second Circuit, the Court of Appeals

applied a Connecticut limitation period in products liability actions "barring any action

commenced later than 10 years from the date the defendant no longer had control of the injury-

causing product." Tanges, 93 N.Y.2d at 54–55. In doing so, the Court found the limitation period

to be a statute of repose, which is substantive in nature, as opposed to a statute of limitations, which

is procedural:

Page 19: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

In Tanges, we reasoned that statutes of limitation are generally treated as procedural

in New York because they pertain "to the remedy rather than the right," meaning

that when the allotted time period under the statute has expired, the plaintiff loses

its remedy, although it continues to have the underlying right.

Statutes of limitation begin to run when a cause of action accrues. Statutes of repose are

"theoretically and functionally" different. A statute of repose begins to run when a specified event

takes place, and can expire before a possibly valid cause of action ever accrues. The repose period

creates an "absolute barrier" to a plaintiff’s right of action. Given this potential impact on the right

of a plaintiff to bring a cause of action, the Tanges Court held that repose statutes "exhibit a

substantive texture, nature and consequence," different from regular statutes of limitation, and thus

are substantive. In other words, unlike a statute of limitations, a statute of repose "envelop[es] both

the right and the remedy (citations omitted)." Davis, 2017 N.Y. Slip Op. 08157, at ∗5.

The Court here stated that Rule 12A was not functionally similar to a statute of repose, since it did

not nullify a plaintiff’s right to ever bring an action. Rather,

allows any plaintiff the right to commence a derivative action, and sets forth a

procedural mechanism for a threshold determination of merits and standing.

Certainly, if a plaintiff does not seek leave to continue, the rule creates an

impregnable barrier to continuing the derivative action, forestalling any remedy,

just as a statute of limitations forecloses a plaintiff who sleeps on its rights from

obtaining a remedy. However, Rule 12A itself neither creates a right, nor defeats it.

Rather, it is the initial decision by the Grand Court judge, made after an evaluation

of the plaintiff’s complaint using the substantive law, along with the defendant’s

evidence, that may terminate the action.

Id. at ∗5–6.

Finally, the Court maintained that the general policy considerations described in Tanges compelled

the Court here to conclude that Rule 12A is procedural. Finding that Rule 12A is procedural does

not impose a burden on either the New York or Cayman Islands courts. However, if the rule was

determined to be substantive

it is unclear what procedural path a party seeking to bring a derivative action in

New York on behalf of a Cayman company would follow to comply with Rule 12A.

Must the party first proceed by writ in the Grand Court and then discontinue the

Cayman action to return to, or commence its action here in New York? Would the

ruling by the Grand Court that there was a sufficient showing of merit be binding

on a New York court on a motion to dismiss or for summary judgment? Rule 12A

provides no answers.

Id. at ∗6.

Page 20: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

As a result, the Court concluded that plaintiff’s failure to first seek leave from the Cayman Islands

Grand Court did not bar his derivative claims here.

CPLR 202 - Borrowing statute - where alleged injury is economic, accrual is in state where

plaintiff resides and sustains the economic impact of the loss

Centre Lane Partners, LLC v. Skadden, Arps, Slate, Meagher, & Flom LLP, 154 A.D.3d 525, 62

N.Y.S.3d 341 (1st Dep’t 2017) (“Where the alleged injury is economic in nature, the cause of

action is generally deemed to accrue in the state ‘where the plaintiff resides and sustains the

economic impact of the loss’ (citations omitted). Here, the debtors’ principal places of business

are in Oregon, and their financial losses were allegedly incurred in that state. Contrary to plaintiffs’

claim, the motion court’s application of Oregon’s two-year statute of limitations via New York’s

borrowing statute (CPLR 202) in light of, inter alia, the situs of debtors’ Oregon-based businesses,

the legal relationships existing between plaintiffs, debtors and defendants, and the nature of the

instant action, was proper and the result would not be ‘absurd,’ notwithstanding defendants’ place

of business being located in New York (citations omitted). . . . Given such factual pleadings, the

motion court properly rejected plaintiffs’ argument that Oregon’s discovery/tolling rule for legal

malpractice claims rendered this malpractice action timely commenced. The court properly

concluded that a reasonable person, knowing the facts that the debtors had available to them at the

time of the two challenged transfers, should have been aware of a substantial possibility of

defendants’ conflicted representation, as well as the harm that such negligent representation had

caused, and such knowledge could not have been gained later than when the debtors filed for

Chapter 7 bankruptcy on December 31, 2013 (citation omitted).”).

CPLR 202 - Borrowing statute –where was injury/economic impact?

Deutsche Bank Natl. Trust Co. v. Barclays Bank PLC, 156 A.D.3d 401, 66 N.Y.S.3d 472 (1st

Dep’t 2017) (“Plaintiff, a California domiciliary, argues that the plaintiff-residence rule of Global

Financial — a case in which the plaintiff was a corporation suing to recover for an injury to itself

— should not be applied here, where plaintiff is suing solely in its capacity as trustee of the subject

trusts. Rather, plaintiff argues that we should apply the multi-factor test used in Maiden v. Biehl

(582 F. Supp 1209 [SD NY 1984]), which also dealt with a trustee-plaintiff, to determine where

the injury occurred. However, we need not decide whether the plaintiff-residence rule or the multi-

factor test applies in this context because, even under the multi-factor test, we find that the

injury/economic impact was felt in California and the claims are thus deemed to have accrued

there. Initially, it is undisputed that the domiciles of the trust beneficiaries, which are in various

jurisdictions, do not provide a workable basis for determining the place of accrual. As to the New

York choice-of-law clauses of the relevant agreements, because these provisions do not expressly

incorporate the New York statute of limitations, they ‘cannot be read to encompass that limitation

period’ (citation omitted). By contrast, the subject trust in each action comprises a pool of

mortgage loans, originated by California lenders and encumbering California properties, either

exclusively (in the Barclays case) or predominantly (in the HSBC case), and, as previously

discussed, administered in California by plaintiff, a California-based trustee. Further, it is

undisputed that the relevant pooling and servicing agreement (PSA) for each trust contemplates

the payment of state taxes, if any, in California. To the extent the physical location of the notes

Page 21: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

memorializing the securitized mortgage loans has relevance to the analysis, each trust’s PSA

contemplates that the notes may be maintained in California, but neither contemplates maintaining

the notes in New York.”).

Relation Back

CPLR 203(b) - Relation doctrine not applicable because there was no unity of interest

Belair Care Ctr., Inc. v. Cool Insuring Agency, Inc., 61 A.D.3d 1263 (3d Dep’t 2018) (“Plaintiffs

failed to establish the second prong of the relation back doctrine. ‘Unity of interest requires a

showing that the judgment will similarly affect the proposed defendant, and that the new and

original defendants are vicariously liable for the acts of the other’ (citations omitted). The proposed

amended complaint alleges that Treiber — like all brokers — engaged in a cooperative strategy

with CRM to market the trust; however, it contains no allegations that there was a jural, or legal,

relationship between Treiber and CRM that would make either vicariously liable for the acts of

the other. Thus, Supreme Court properly denied plaintiffs leave to amend the complaint to assert

a negligence cause of action against Treiber.”).

Jones v. Seneca County, 154 A.D.3d 1349, 63 N.Y.S.3d 620 (4th Dep’t 2017) (“Contrary to

plaintiff’s further contention, we conclude that the court properly denied her motion seeking leave

to amend her complaint to add respondent as a defendant. Plaintiff failed to establish that

respondent and defendant are united in interest, and thus plaintiff is not entitled to the benefit of

the relation back doctrine (citations omitted). Here, respondent and defendant are not united in

interest inasmuch as defendant cannot be held vicariously liable for the acts of its Sheriff’s deputies

(citations omitted). In view of our determination, we do not address the alternative ground upon

which the court denied the motion.”).

Thomas v. City of New York, 154 A.D.3d 417, 62 N.Y.S.3d 97 (1st Dep’t 2017) (“Substitution of

Crockwell via the relation back doctrine is also improper because Crockwell is not ‘united in

interest’ with the City of New York, the original defendant (CPLR 203[b]). The City cannot be

held vicariously liable for its employees’ violations of 42 USC § 1983, and there is no unity of

interest in the absence of a relationship giving rise to such vicarious liability (citation omitted).

Nor can plaintiff demonstrate that, but for an excusable mistake as to the proper parties’ identities,

he would have brought the action against Crockwell, since he knew before the statute of limitations

expired that Crockwell was the arresting officer (citation omitted).”).

CPLR 203(c) - Relation back- because prior action was dismissed, there was no amended

pleading

CPLR 205(a): Prior action dismissed on the merits, so CPLR 205(a) does not apply

Moran v. JRM Contr., Inc., 145 A.D.3d 1584, 43 N.Y.S.3d 828 (4th Dep’t 2016) (“Defendant

established that the action was commenced more than six years after the breach of contract cause

Page 22: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

of action accrued and was therefore time-barred (citations omitted). Contrary to plaintiff’s

contention, the relation back doctrine does not apply herein (see CPLR 203 [b]). ‘[T]he relation

back doctrine allows a claim asserted against a defendant in an amended filing to relate back to

claims previously asserted against a codefendant for [s]tatute of [l]imitations purposes where the

two defendants are united in interest’ (citation omitted). Here, inasmuch as the prior action was

dismissed, there was no amended pleading (citations omitted) and, moreover, Madalena was not a

codefendant (citations omitted). Contrary to plaintiff’s further contention, CPLR 205 (a) also does

not apply herein inasmuch as the prior action was dismissed on the merits (citations omitted).

Contrary to the determination of the court, the relation back doctrine cannot be ‘bootstrapped onto

CPLR 205 (a).’”).

CPLR 203(c) - Parties united in interest – failure to sue defendant initially was not mistake

Branch v. Community Coll. of the County of Sullivan, 148 A.D.3d 1410, 48 N.Y.S.3d 861 (3d

Dep’t 2017) (“The first prong of that test was indisputably met. Assuming without deciding that

the second was as well, the third was not in that plaintiff’s failure to timely commence an action

against defendant ‘was not the result of a mistake or an inability to identify the correct defendant

within the applicable limitations period’ (citation omitted). Plaintiff was well aware that defendant

maintained the dormitory where decedent died and, in December 2007, the notice of claim she

served upon the County (and additionally mailed to defendant) stated as much. She nevertheless

elected to commence an action against the County alone in the belief that defendant ‘was a

department of the County.’ Defendant is not, and a failure to appreciate that defendant was a legally

required party is not the type of mistake contemplated by the relation back doctrine (citations

omitted). Plaintiff accordingly failed to demonstrate that the relation back doctrine applied and,

thus, Supreme Court properly dismissed the complaint as time-barred.”).

CPLR 203(c) - Relation back - intentional decision not to name proposed defendant is not a

mistake

Ahrorgulova v. Mann, 144 A.D.3d 953, 42 N.Y.S.3d 203 (2d Dep’t 2016) (“The plaintiff’s

intentional decision not to name Perl as a defendant in the original complaint, even though she

performed the subject medical procedure, cannot be viewed as the kind of inadvertent mistake as

would trigger the application of the relation-back doctrine (citation omitted).”).

CPLR 203(c) - Relation back-Proceeding was not commenced by real party in interest

Risk Control Assoc. Ins. Group v. Maloof, Lebowitz, Connahan & Oleske, P.C., 151 A.D.3d 527,

57 N.Y.S.3d 139 (1st Dep’t 2017) (“National Specialty’s claims are time-barred by the three-year

statute of limitations applicable to nonmedical malpractice actions, whether sounding in breach of

contract or tort (citations omitted). Plaintiff’s argument, that leave to amend to substitute new

parties, related to the original parties, should not be precluded as time-barred so long as the earlier

pleading gave the adverse party sufficient notice of the transaction out of which the new claim

arises (citation omitted), is unavailing in these circumstances, as the proceeding was not

commenced by the real party in interest, and the amendment to add the proper party was time-

barred.”).

Page 23: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

CPLR 203(d) - “Untimely” counterclaims and third-party causes of actions can be asserted

as offset if they arise out of the same transactions and occurrences upon which the complaint

depends

Lewis, Brisbois, Bisgaard & Smith, LLP v. Law Firm of Howard Mann, 141 A.D.3d 574, 35

N.Y.S.3d 267 (2d Dep’t 2016) (“The Supreme Court properly denied those branches of the motion

of the plaintiff and the third-party defendants (hereinafter collectively the appellants) which were

pursuant to CPLR 3211(a)(5) to dismiss, as time-barred, the second, fourth, fifth, sixth, and eighth

counterclaims, as well as the first and third causes of action in the third-party complaint, all of

which allege legal malpractice, breach of contract, or breach of fiduciary duty, as well as the ninth

counterclaim and the fourth cause of action in the third-party complaint, which allege a violation

of Judiciary Law § 487.”[C]laims and defenses that arise out of the same transaction as a claim

asserted in the complaint are not barred by the Statute of Limitations, even though an independent

action by defendant might have been time-barred at the time the action was commenced” (citations

omitted). In the instant matter, the subject counterclaims and third-party causes of action all arise

from the transactions and occurrences upon which the complaint depends. Accordingly, they are

not time-barred to the extent of the demand in the complaint (see CPLR 203[d]). Since the

appellants’ motion did not address the applicability of CPLR 203(d), the appellants did not

establish their entitlement to dismissal pursuant to CPLR 3211(a)(5).”).

CPLR 203(d) - Otherwise untimely defense or counterclaim is not barred, and may be

asserted as an offset only

Matter of Jenkins v. Astorino, 155 A.D.3d 733, 64 N.Y.S.3d 285 (2d Dep’t 2017) (“The language

of CPLR 203(d) is based on the equitable doctrine of recoupment (citation omitted). By the plain

language of the statute, an otherwise untimely defense or counterclaim is ‘not barred’ only ‘to the

extent of the demand in the complaint’ (citation omitted). Accordingly, CPLR 203(d) does not

permit a defendant to obtain affirmative relief by way of a counterclaim (citations omitted). . . .

Contrary to the Supreme Court’s conclusion, the defendants’ answer does not seek any affirmative

relief. Rather, it raises a defense that is ‘predicated on [an] act or fact growing out of the matter

constituting the cause or ground of the action brought’ by the plaintiffs (citation omitted). In other

words, the assertion that the Local Law was not validly enacted in accordance with the applicable

referendum procedures specified in state and local law ‘arises from, and directly relates to’ the

plaintiffs’ claim that the Local Law was, in fact, enacted in accordance with the applicable

referendum procedures and that they were therefore entitled to a declaration that the Local Law

was valid (citations omitted). Accordingly, the court erred when it, in effect, dismissed the

affirmative defense contained in the defendants’ answer alleging that the Local Law was not

validly enacted on the ground that the affirmative defense was time-barred (citation omitted). Since

the merits of the defendants’ affirmative defense were not reached by the court, it should not have

awarded judgment in favor of the plaintiffs.”).

Page 24: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

CPLR 203(d) - Asserting untimely counterclaims as offset

California Capital Equity, LLC v. IJKG, LLC, 151 A.D.3d 650, 54 N.Y.S.3d 578 (1st Dep’t 2017)

(“At this, the pleading stage, however, we cannot conclude that the counterclaim does not arises

out of the same series of transactions that forms the basis of, and is not sufficiently related to, the

cause of action for breach of the tax distribution provisions of the Note Agreement (citations

omitted). If proved, the counterclaim could be used defensively as a shield for recoupment

purposes, but IJKG could not obtain any affirmative relief, such as disgorgement (citations

omitted). Therefore, IJKG can assert its otherwise untimely counterclaim solely to offset any

damage award or deficiency judgment that plaintiff may obtain in its favor against IJKG (citations

omitted).”).

CPLR 203(d) - Untimely counterclaim did not arise out of same transactions or occurrences

upon which claim in complaint depends; so cannot be used as offset

CPLR 214(2): 3 year statute of limitations for action to recover upon a liability created or

imposed by statute

Town of N. Hempstead v. County of Nassau, 149 A.D.3d 1134, 54 N.Y.S.3d 19 (2d Dep’t 2017)

(“Contrary to the defendants’ contention, the Supreme Court properly determined that their

common-law right of setoff cannot be exercised to recover upon claims that are time-barred

(citations omitted). Pursuant to CPLR 214(2), an action to recover upon a liability created or

imposed by statute must be commenced within three years from the time the cause of action

accrued. As the court correctly determined, the County’s obligation to pay FIT tuition, and its right

to seek reimbursement from the Town, were created by statute, i.e., Education Law § 6305(2) and

(5). Since the County’s right to seek reimbursement from the Town was created by statute, and did

not exist at common law, such an action would be governed by the three-year statute of limitations

set forth in CPLR 214(2). Pursuant to CPLR 203(d), a time-barred claim may be used to set off

another claim only to the extent that the two claims arise from the same incident or transaction

(citations omitted). Here, however, the chargebacks sought by the County are unrelated to the sales

tax revenue owed by the County to the Town, and therefore, the County is barred from asserting a

right of setoff as a defense (citation omitted), since its claims are time-barred under CPLR

214(2).”).

CPLR 203(d) - No offset for “untimely” counterclaim because alleged legal malpractice did

not arise from transactions sued upon

Verkowitz v. Ursprung, 153 A.D.3d 1443, 61 N.Y.S.3d 336 (2d Dep’t 2017) (“The defendant was

properly precluded from seeking equitable recoupment pursuant to CPLR 203(d) based on the

time-barred counterclaim and affirmative defense, as the legal malpractice that allegedly occurred

in the divorce action did not arise from the transaction sued upon, which involved the defendant’s

alleged failure to pay the plaintiff’s legal fees in the subsequent litigation involving the estate of

the defendant’s former husband (citation omitted).”).

Page 25: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

CPLR 203(d) / 203(f) - Underlying action was dismissed in defendants' favor more than one

year before defendants moved for leave to amend counterclaim; leave to amend denied and

CPLR 203(d) does not apply

People's Capital & Leasing Corp. v. 1 800 Postcards, Inc., 2018 NY Slip Op 04651 (1st Dep’t

2018) (“We affirm the denial of defendants’ motion for leave to amend. While malicious

prosecution claims can be premised on civil proceedings (citations omitted), the proposed

malicious prosecution counterclaim is time-barred. The underlying action was dismissed in

defendants' favor more than one year before defendants moved for leave to amend (citation

omitted). Contrary to defendants’ arguments, under the circumstances of this case, neither CPLR

203(d) nor CPLR 203(f) avails them. The proposed counterclaim fails, moreover, due to

defendants' failure to adequately allege special damages (citation omitted).”).

CPLR 203(f) - Amendment to add crossclaim granted, even though it added new theory of

recovery, because it arose out of the same occurrence set forth in the original pleadings

Taylor v. Deubell, 153 A.D.3d 1662, 60 N.Y.S.3d 739 (4th Dep’t 2017) (After liability trial,

defendant sought leave to amend answer to add additional cross-claims against co-defendant for

property damage and loss of use of bus. “The determination whether to grant leave to amend a

pleading rests within the court’s sound discretion and will not be disturbed absent a clear abuse of

that discretion (citation omitted), and we conclude that the court did not abuse its discretion here.

Although the amended answer added a new theory of recovery against Masters Edge, it arose out

of the same occurrence set forth in the original pleadings, i.e., a motor vehicle accident allegedly

caused by the negligence of Masters Edge (citations omitted).”).

CPLR 203(f) - Relation-back doctrine did not apply because “[t]he allegations of the original

complaint, which were limited to claims that the plaintiff was falsely arrested and imprisoned

while lawfully present at certain premises, failed to give notice of transactions or occurrences

to be proven with respect to the proposed cause of action for malicious prosecution.”

Martin v. City of New York, 153 A.D.3d 693, 61 N.Y.S.3d 63 (2d Dep’t 2017) (“The Supreme

Court also providently exercised its discretion in declining to permit the plaintiff to amend the

complaint to add a cause of action alleging malicious prosecution. As the plaintiff correctly

concedes, the statute of limitations for asserting that cause of action has expired. ‘The relation-

back doctrine permits a plaintiff to interpose a claim or cause of action which would otherwise be

time-barred, where the allegations of the original complaint gave notice of the transactions or

occurrences to be proven and the cause of action would have been timely interposed if asserted in

the original complaint’ (citations omitted). However, the allegations of the original complaint,

which were limited to claims that the plaintiff was falsely arrested and imprisoned while lawfully

present at certain premises, failed to give notice of transactions or occurrences to be proven with

respect to the proposed cause of action for malicious prosecution. In particular, the original

complaint failed to provide the defendant with notice of the need to defend against allegations that

the defendant commenced or continued the underlying criminal proceeding, such as by supplying

the prosecutor with falsified evidence (citation omitted).”).

Page 26: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

CPLR 203(f) - Majority and dissent disagree as to whether the original timely pleading

alleging gender discrimination gave notice of occurrence plaintiff seeks to prove in amended

(otherwise untimely) pleading alleging discrimination on the basis of sexual orientation

O’Halloran v. Metropolitan Transp. Auth., 154 A.D.3d 83, 60 N.Y.S.3d 128 (1st Dep’t 2017)

(“Compare majority: The narrow issue on appeal is whether the motion court providently

permitted plaintiff to amend her complaint to include belated claims of discrimination on the basis

of sexual orientation on the ground that those claims related back to the original pleading, which

timely alleged, inter alia, discrimination on the basis of gender. We hold that it did, because the

original pleading gave defendants notice of the occurrences plaintiff seeks to prove pursuant to her

amended complaint (see CPLR 203[f]), and defendants will not suffer undue prejudice as a result

of the delay (see CPLR 3025[b]).”; and dissent: “With regard to whether the relation-back

exception to the timeliness requirement is applicable in this case, while the original complaint

included factual allegations in support of its claims of gender and disability discrimination, as well

as retaliation, it contained no factual allegations as to any transactions or occurrences attributed by

plaintiff to discrimination on the basis of sexual orientation. Indeed, although plaintiff filed a series

of complaints both within her own agency and with administrative agencies and courts on both the

federal and state level, she never asserted a claim of sexual orientation discrimination in any of

those complaints. Neither does the record reveal any mention by her of sexual orientation

discrimination in two days of deposition testimony. Thus, defendants were provided with no notice

of any transactions or occurrences that plaintiff intended to use to prove the sexual orientation

discrimination claims she now seeks to add by way of her proposed amended complaint. In any

event, even actual notice of a potential sexual orientation claim would not suffice to permit plaintiff

to invoke the relation-back doctrine, because notice of the potential claim, including the conduct

with which defendants would be charged in the new claim, must be provided in the original

pleading itself (citations omitted).”).

CPLR 204 Stay

CPLR 204(b) - Toll runs from time demand for arbitration served until final determination

of non arbitrability

Board of Educ. of Palmyra-Macedon Cent. Sch. Dist. v. Flower City Glass Co., Inc., 160 A.D.3d

1497, 75 N.Y.S.3d 735 (4th Dep’t 2018) (“We also reject the contention of the Flower City

defendants that they met their burden of proof on their motion by establishing that the District

made the demand for arbitration in bad faith (citation omitted). We therefore conclude that the

CPLR 204 (b) toll applied from the time the demand for arbitration was served, on September 30,

2014, until the final determination of nonarbitrability by the court on June 5, 2016. In addition, for

the same reasons that the claim for arbitration did not accrue until the architect certified

‘Substantial Completion’ of the work on October 1, 2008, we conclude that the breach of contract

cause of action did not accrue until October 1, 2008. Applying the CPLR 204 (b) toll, we further

conclude that the District timely commenced the breach of contract cause of action in appeal No.

2 on September 11, 2015.”).

Page 27: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

CPLR 205(a) - Six Month Extension

CPLR 205(a) - Termination of action, 6-month extension; applies to actions and special

proceedings; dismissal of prior proceeding by being marked off calendar is not dismissal on

the merits

Matter of Lindenwood Cut Rate Liquors, Ltd. v. New York State Liq. Auth., 161 A.D.3d 1077 (2d

Dep’t 2018) (“As the petitioner correctly contends, CPLR 205(a) applies not only to actions but

also to special proceedings under CPLR article 78 (citations omitted). The toll of CPLR 205(a)

would not apply, however, if the prior proceeding was dismissed on the merits; thus, the court

must determine whether the order dismissing the prior proceeding is entitled to res judicata effect

(citation omitted). Here, the prior proceeding was dismissed after being marked off the calendar.

Contrary to the Authority’s contention, ‘[a] dismissal of an action by being marked off the Trial

Calendar is not a dismissal on the merits,’ and ‘[a] new action on the same theory is therefore not

barred by the doctrine of res judicata’ (citations omitted). Moreover, there is nothing in the order

denying the petitioner’s motion to restore the prior proceeding to the calendar which suggests that

the prior proceeding was dismissed with prejudice (citation omitted).”).

CPLR 205(a) - Termination of action, 6 month extension; sua sponte dismissal of first action

was not due to neglect to prosecute because order did not set forth any specific conduct that

demonstrated a general pattern of delay; court splits on whether plaintiff’s second action

was timely and that rested on determining when the first action was “terminated” for the

purposes of CPLR 205(a)

Bank of N.Y. Mellon v. Slavin, 156 A.D.3d 1073, 67 N.Y.S.3d 328 (2d Dep’t 2017), (the first

foreclosure action was dismissed in January 2013 as a result of plaintiff’s failure to appear at a

mandatory conference. The trial court twice denied plaintiff’s motion to vacate the dismissal, and

in July 2015, the Appellate Division affirmed. In August 2015, plaintiff brought a second

foreclosure action against the defendant, among others. The Appellate Division was unanimous

in finding that the sua sponte dismissal of the first action was not due to a neglect to prosecute

because the order did not set forth any specific conduct that demonstrated a general pattern of

delay. However, the court split on whether plaintiff’s second action was timely and that rested on

determining when the first action was “terminated” for the purposes of CPLR 205(a). In finding

the second action timely, the majority found that because the trial court’s sua sponte dismissal

gave rise to a motion to vacate and an appeal from the order deciding that motion, the January

2013 order did not terminate the action. The dissent maintained that that the first action was

terminated upon the January, 2013 dismissal. It asserted that prior case law in this area mandated

that conclusion.).

Page 28: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

CPLR 205(a) - Applied even though plaintiffs in first and second actions were different

David L. Ferstendig, Majority of Second Department Holds That CPLR 205(a) Applies Even

Where Plaintiffs in First and Second Actions Are Different, 677 N.Y.S.L.D. 3-4 (2017).

Majority of Second Department Holds That CPLR 205(a) Applies Even Where Plaintiffs in

First and Second Actions Are Different

Finds Plaintiffs Sought to Enforce the Very Same Right

We have referred to CPLR 205(a) on several occasions in the past, most recently in the July 2016

Law Digest. As you may recall, CPLR 205(a) provides that if an action is timely commenced and

is terminated in a manner other than that prescribed by the statute (for example, a dismissal for

neglect to prosecute the action), the plaintiff can commence a second action upon the same

transactions or occurrences or series of transactions or occurrences within six months after

termination of the first action. Service upon the defendant(s) must also be effected within that six-

month period.

Wells Fargo Bank, N.A. v. Eitani, 47 N.Y.S.3d 80 (2d Dep’t 2017), is a mortgage foreclosure

action. The first action was commenced by Argent Mortgage Company, LLC (“Argent”); however,

during the course of the action, Argent assigned and delivered the adjustable rate note and

mortgage to Wells Fargo Bank, N.A., as trustee (“Wells Fargo”). In addition, the defendant Eitani

conveyed by deed to the defendant-appellant David Cohen the subject property while the action

was pending. Almost eight years after the first action was commenced, the Administrative Judge,

“on a routine clearing of the docket,” issued an order dismissing the action “as abandoned pursuant

to CPLR 3215(c), without costs or prejudice.” Id. at 82. The handwritten caption on the form order

still noted Argent as the plaintiff, even though Argent had divested itself of the note and mortgage

to Wells Fargo more than five years earlier.

Within four months of the dismissal, Wells Fargo commenced this action and served the defendant

pursuant to CPLR 205(a). The questions presented were (1) whether the ministerial dismissal of

the first action fell under the neglect to prosecute exclusion, and (2) if the plaintiff in this action,

Wells Fargo, could take advantage of CPLR 205(a), even though it was not the named plaintiff in

the first action.

The Second Department unanimously agreed that the ministerial dismissal of the first action

without prejudice was not “a neglect to prosecute” under the statute. The majority stated that the

order tracked the language of CPLR 3215(c) (not CPLR 3216), stating that the plaintiff had failed

to proceed to enter a judgment within one year of the default, and that the “[t]ime spent prior to

discharge from a mandatory settlement conference [was not] computed in calculating the one year

period.” Id. at 84. In addition, the order did not comply with CPLR 205(a)’s requirement, added

via a 2008 amendment, that where the dismissal is for a neglect to prosecute, “the judge shall 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.” Id. at 89.

Page 29: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

The second issue, which the majority characterized as “more novel,” split the court. The majority

focused on the fact that Argent had transferred the note and mortgage to Wells Fargo and recorded

the assignment during the pendency of the first action. As a result,

Wells Fargo became Argent’s successor in interest with respect to the right to

foreclose under the note and mortgage (citations omitted). As the assignee of the

mortgage, Wells Fargo had a statutory right, pursuant to CPLR 1018, to continue

the prior action in Argent’s place, even in the absence of a formal substitution

(citations omitted). Since, by virtue of CPLR 1018, the prior action could have been

continued by Argent’s successor in interest, Wells Fargo was, in actuality, the true

party plaintiff in the prior action, and is entitled to the benefit of CPLR 205(a).

Id. at 84.

The majority also referred to the Court of Appeals’ recent reaffirmation that CPLR 205(a)’s “broad

and liberal purpose is not to be frittered away by any narrow construction.” Id. at 85 (citing to

Malay v. City of Syracuse, 25 N.Y.3d at 327). It distinguished the decision in Reliance Ins. Co. v.

PolyVision Corp., 9 N.Y.3d 52 (2007), where the Court of Appeals stated that, outside of the

representative context (that is, an executor or administrator, if the plaintiff dies), it had not

previously read “‘the plaintiff’ to include an individual or entity other than the original plaintiff.”

9 N.Y.3d at 57. However, in Reliance, the corporate affiliates involved in the two actions sought

to enforce different interests. Here, as noted above, the majority found that after assignment of the

loan and mortgage, Wells Fargo became Argent’s successor in interest during the pendency of the

first action. Moreover, both Argent and Wells Fargo sought to enforce the same right to foreclose

on the subject property based on the same default on the subject note and mortgage. Thus, this case

“may be a rare circumstance in which dismissal of a prior action commenced by a different party

plaintiff justifies application of CPLR 205(a) to recommencement by a successor in interest to the

prior plaintiff.” Wells Fargo Bank at 86. The majority concluded that its decision was consistent

with CPLR 205(a)’s intended purpose to remedy a timely action terminated for a technical defect.

The dissent asserted that CPLR 205(a) cannot apply where the second action is commenced by a

plaintiff other than the one that brought the first action. It found that, just as in Reliance, here the

entities are not the same, “Wells Fargo is not Argent in a different capacity,” and Wells Fargo is

not seeking to vindicate Argent’s rights in this action. Moreover, “Wells Fargo is not continuing

Argent’s action in Argent’s name, and Wells Fargo was not substituted for Argent in that action.”

Id. at 91.

CPLR 205(a) - No valid pre-existing action to relate back to

U.S. Bank Natl. Assn. v. DLJ Mtge. Capital, Inc., 141 A.D.3d 431, 35 N.Y.S.3d 82 (1st Dep’t

2016) (“Although the Trustee commenced this action within the applicable statute of limitations,

it did not meet the condition precedent to enforcement of defendant DLJ Mortgage Capital, Inc.’s

secondary ‘backstop’ repurchase obligation, which required that the Trustee first provide notice of

the alleged breaches to defendant Ameriquest Mortgage Company, and allow a 90-day cure period

to expire. Under these circumstances, the Trustee’s timely claims were properly dismissed without

Page 30: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

prejudice to refiling pursuant to CPLR 205(a) (citations omitted)…Generally, actions dismissed

on standing grounds may be refiled pursuant to CPLR 205(citation omitted). However, here, the

Trustee is not entitled to refile the claims under CPLR 205(a), because it is not a “plaintiff” under

that statute (citations omitted) to save its refiled claims, because there was no “valid preexisting

action” to relate back to (citations omitted). Because the Trustee cannot benefit from either CPLR

203(f) or 205(a), the refiled claims are time-barred on standing grounds.”).

CPLR 205(a) - Does not apply because out of state action is not “prior” action

Deadco Petroleum v. Trafigura AG, 151 A.D.3d 547, 58 N.Y.S.3d 16 (1st Dep’t 2017) (“While

the California action was timely commenced, the tolling provision of CPLR 205(a) does not avail

plaintiff, because an out-of-state action is not a ‘prior action’ within the meaning of that provision

(citations omitted).”).

CPLR 205(a) - Does not apply where prior action was dismissed for neglect to prosecute

Familio v. Hersh, 150 A.D.3d 1203, 52 N.Y.S.3d 901 (2d Dep’t 2017) (“The Supreme Court

properly directed the dismissal of the complaint as time-barred on the ground that the provisions

of CPLR 205(a) that toll the statute of limitations are inapplicable in this action because the

plaintiff’s prior action had been dismissed for neglect to prosecute (citations omitted). Contrary to

the plaintiff’s contention, under the circumstances of this case, the record of the dismissal of the

prior action set forth the specific conduct constituting the neglect to prosecute, which conduct

demonstrated a general pattern of delay (citations omitted).”).

CPLR 205(a) - Does not apply where prior action dismissed for lack of personal jurisdiction

Matter of Littlejohn v. New York State Dept. of Corr. & Community Supervision, 150 A.D.3d 1523,

55 N.Y.S.3d 775 (3d Dep’t 2017) (“The record demonstrates that petitioner, who was aware in

March 2015 that his application to participate in the shock incarceration program was denied, did

not commence this CPLR article 78 proceeding within the applicable four-month statutory time

period (citations omitted). Although petitioner timely filed a petition by order to show cause in

Dutchess County, that proceeding was dismissed for lack of personal jurisdiction and, thus, the

tolling provisions of CPLR 205 (a) are inapplicable.”).

CPLR 205(a) - Commencement within six months after reconsideration decision is timely

Arty v. New York City Health & Hosps. Corp., 148 A.D.3d 407, 48 N.Y.S.3d 388 (1st Dep’t 2017)

(“The District Court’s August 18, 2014 order granted reconsideration to the extent of designating

the dismissal of plaintiff’s NYCHRL claim to be without prejudice, so that plaintiff could

recommence an action, including that claim, within six months under CPLR 205(a) (citation

omitted). Additionally, after the motion for reconsideration was decided, plaintiff could have

pursued an appeal as of right, and the prior federal action then would not have ‘terminated’ for

purposes of CPLR 205(a) until the appeal was exhausted by either a determination on the merits

or dismissal (citation omitted). Instead, plaintiff properly commenced an action in state court,

asserting a discrimination claim under the NYCHRL and a defamation claim within six months

Page 31: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

after the reconsideration decision, which is timely under CPLR 205(a). Plaintiff was not required

to commence a defamation action in state court while the reconsideration motion was pending, or

to file a notice of appeal in federal court, in order to gain the benefit of the six-month extension

(citation omitted); were our decision otherwise, the result would waste judicial resources by

forcing a party to commence either a federal appeal or a new state court action while his or her

case was still ongoing in federal court.”).

CPLR 205(a) - Prior action terminated upon issuance of Second Circuit order

Fischer v. City of New York, 147 A.D.3d 1030, 48 N.Y.S.3d 247 (2d Dep’t 2017) (First federal

court action dismissed by district court followed by Second Circuit affirmance; “Contrary to the

plaintiff’s contention, the Supreme Court properly determined that for the purposes of CPLR

205(a), the plaintiff’s prior, federal action terminated upon issuance of the Second Circuit’s order

in May 2013 (citations omitted). Thereafter, the plaintiff had six months to commence a new

action, and she did not do so. The instant action was not commenced until June 17, 2014.”).

CPLR 207- Absence Toll

CPLR 207 - Absence toll did not apply

Schwartz v. Chan, 75 N.Y.S.3d 31 (1st Dep’t 2018) (“Plaintiff's claims are time-barred since they

were brought more than a year after the allegedly offending statements were published (citation

omitted). Plaintiff argues, for the first time on appeal, that his time to commence the action was

tolled by CPLR 207. This argument is unpreserved and in any event unavailing, since plaintiff

failed to show that jurisdiction over defendant could not be obtained without personal service to

her within the state (citation omitted), i.e., that it was or would have been a ‘practical impossibility’

for him to serve her while she was outside the state, either in England or in New Jersey (citations

omitted). Plaintiff's contention that defendant lied about her address in an effort to evade service

is unsubstantiated by the record.”).

CPLR 208 - Disability toll

CPLR 208 - Disability toll applies as decedent was under legal disability from day of accident

until the disability was removed by his death

Kealos v. State of New York, 150 A.D.3d 1211, 55 N.Y.S.3d 411 (2d Dep’t 2017) (“Here, the

claimant established that the decedent was under a legal disability from the day of the accident

until the disability was removed by his death on April 13, 2011 (citations omitted). Thus, the

claimant’s initial motion, served on February 19, 2013, which sought, inter alia, to file a late claim

alleging medical malpractice and lack of informed consent, was timely made within 2½ years of

the decedent’s death on April 13, 2011 (citations omitted). Moreover, the time to file the claimant’s

renewed motion was further tolled so long as the initial motion remained pending before the Court

of Claims (citations omitted). The renewed motion, which was served upon the State on November

Page 32: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

27, 2013, was therefore timely made. Accordingly, the Court of Claims erred in denying as

untimely that branch of the claimant’s renewed motion which was for leave to file a late claim

alleging medical malpractice.”).

CPLR 208 - No evidence that dementia disability existed at time claim accrued

Estate of Smulewicz v. Meltzer, Lippe, Goldstein & Breitstone, LLP, 160 A.D.3d 543, 72 N.Y.S.3d

433 (1st Dep’t 2018) (“Plaintiffs' argument that the limitation period was tolled by the decedent's

alleged dementia is also unavailing, as there is no evidence that the decedent suffered from such

disability at the time the claim accrued (CPLR 208), or that it rendered her ‘unable to protect [her]

legal rights because of an over-all inability to function in society’ (citations omitted).”).

CPLR 208 - Toll did not terminate upon the appointment of the article 81 guardian

Mederos v. New York City Health & Hosps. Corp., 154 A.D.3d 597, 61 N.Y.S.3d 905 (1st Dep’t

2017) (“Supreme Court correctly found that the CPLR 208 toll did not terminate upon the

appointment of the article 81 guardian (citations omitted). The 90-day period to serve the notice

of claim was not extended by the CPLR 208 toll (citations omitted). However the 90-day period

was tolled in this case by the continuous treatment doctrine.”).

CPLR 208/ 217-a

Mederos v. New York City Health & Hosps. Corp., 154 A.D.3d 597, 61 N.Y.S.3d 905 (1st Dep’t

2017) (“Supreme Court correctly found that the CPLR 208 toll did not terminate upon the

appointment of the article 81 guardian (citations omitted). The 90-day period to serve the notice

of claim was not extended by the CPLR 208 toll (citations omitted). However the 90-day period

was tolled in this case by the continuous treatment doctrine.”).

CPLR 212- Ten year statute of limitations

CPLR 212 - Ten year statute of limitations and adverse possession

Slacer v. Kearney, 151 A.D.3d 1602, 57 N.Y.S.3d 255 (4th Dep’t 2017) (“It is well settled that an

adverse possessor gains title to occupied real property upon the expiration of the statute of

limitations for an action to recover real property pursuant to CPLR 212 (a) (citations omitted)…

Here, plaintiff gained possession of the disputed land when she purchased her property in 1986

and continued to possess the disputed land for 10 years; thus, so long as the other elements of

adverse possession have been met, plaintiff acquired legal title to the disputed land in 1996.

Defendant contends that plaintiff was required to commence a judicial action after the requisite

10-year period passed, i.e., sooner than 2014, in order to gain title to the disputed land. We reject

that contention on the ground that ‘RPAPL 501 (2), as amended, recognizes that title, not the right

to commence an action to determine title, is obtained upon the expiration of the limitations period’

(citation omitted). As we explained in Franza, ‘[A]dverse possession for the requisite period of

Page 33: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

time not only cuts off the true owner’s remedies but also divests [the owner] of his [or her] estate’

. . . Thus, at the expiration of the statutory period, legal title to the land is transferred from the

owner to the adverse possessor . . . Title to property may be obtained by adverse possession alone,

and [t]itle by adverse possession is as strong as one obtained by grant (id.). Contrary to defendant’s

contention, plaintiff had no legal obligation to take any legal action to obtain title to the disputed

land after 1996 inasmuch as title vested with her that year upon the expiration of the 10-year

period.”).

CPLR 212(a) - 10 year statute of limitations bars claim

Weichert v. Plumadore, 152 A.D.3d 1190, 58 N.Y.S.3d 833 (4th Dep’t 2017) (“We conclude that

the court properly granted the Plumadores’ cross motion for summary judgment dismissing the

complaint against them on the ground that the action was barred by the statute of limitations

(citations omitted). CPLR 212 (a) provides that ‘[a]n action to recover real property or its

possession cannot be commenced unless the plaintiff, or his predecessor in interest, was seized or

possessed of the premises within 10 years before the commencement of the action.’ ‘A person

claiming title to real property, but not in possession thereof, must act, affirmatively and within the

time provided by statute’ (citations omitted). Here, the Plumadores submitted evidence

establishing that plaintiffs did not possess the disputed property during the 10 years immediately

preceding the commencement of this action and, in opposition to the cross motion, plaintiffs failed

to raise a triable issue of fact (citations omitted).”).

CPLR 212(c) - Not applicable because action was not one to “redeem” a mortgage by

“making payment of the debt owed to the mortgagee”

Fabtastic Abode, LLC v. Arcella, 153 A.D.3d 668, 60 N.Y.S.3d 318 (2d Dep’t 2017) (“The

Supreme Court properly determined that this action is one to quiet title and that, under CPLR

212(a), read together with RPAPL 311, the action was timely (citation omitted). Contrary to the

defendant’s contention, this action is not barred by RPAPL 1501(4), since it is not one to discharge

the mortgage on the ground that an action to enforce the mortgage is time-barred (citation omitted).

Moreover, CPLR 212(c), which governs the timeliness of actions to redeem a mortgage, is

inapplicable since the instant action is not one to “redeem” a mortgage by ‘making payment of the

debt owed to the mortgagee’ (citation omitted).”).

CPLR 213 – Six-year statute of limitations

CPLR 213 - Plaintiff's challenge is to substance of the Local Law and is therefore subject to

six-year statute of limitations

Matter of Weikel v. Town of W. Turin, 2018 NY Slip Op 04876 (4th Dep’t 2018) (“Contrary to

plaintiff's contention and the court's determination, to the extent that plaintiff seeks a declaration

that the presumptively valid Local Law is invalid (citations omitted), plaintiff's challenge is to the

substance of the Local Law and is therefore subject to the six-year statute of limitations pursuant

to CPLR 213 (1) (citations omitted).”).

Page 34: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

CPLR 213 - Where mortgage holder accelerates entire debt by a demand, six-year statute of

limitations begins to run on the entire debt

Wilmington Sav. Fund Socy., FSB v. Gustafson, 160 A.D.3d 1409 (4th Dep’t 2018) (“We agree

with plaintiff that defendants failed to meet their initial burden of establishing that the action is

time-barred. Where, as here, a mortgage is payable in installments, separate causes of action accrue

for each unpaid installment, and the six-year statute of limitations begins to run on the date that

each installment becomes due (citations omitted). If, however, the mortgage holder accelerates the

entire debt by a demand, the six-year statute of limitations begins to run on the entire debt (citations

omitted). Here, defendants' own submissions in support of the motion establish that, although

another entity purported to accelerate defendants' entire debt in 2010 and 2012, that entity was not

the holder or assignee of the mortgage and did not hold or own the note. Thus, the entity's purported

attempts to accelerate the entire debt were a nullity, and the six-year statute of limitations did not

begin to run on the entire debt (citations omitted). Although this mortgage foreclosure action

therefore is not time-barred, we note that, ‘in the event that the plaintiff prevails in this action, its

recovery is limited to only those unpaid installments which accrued within the six-year [and 90-

day] period immediately preceding its commencement of this action’ (citations omitted).”).

CPLR 213 - Acceleration of mortgage debt

U.S. Bank N.A. v. Barnett, 151 A.D.3d 791, 56 N.Y.S.3d 255 (2d Dep’t 2017) (“Here, in support

of her cross motion, the defendant submitted proof that the mortgage debt was accelerated on May

15, 2007, when the plaintiff commenced the first action to foreclose the subject mortgage. Thus,

the six-year limitations period expired prior to the commencement of the instant action on July 9,

2013. Moreover, while a lender may revoke its election to accelerate the mortgage (citation

omitted), the record in this case is barren of any affirmative act of revocation occurring during the

six-year limitations period subsequent to the initiation of the prior action (citations omitted).”).

CPLR 213 - Action to recover debt owed and to foreclose upon a mortgage

Maidman Family Parking, LP v. Wallace Indus., Inc., 145 A.D.3d 1165, 42 N.Y.S.3d 476 (3d

Dep’t 2016) (“The notes were due and payable on June 30, 2005, and it is undisputed that no

payments were made. Despite the default, plaintiff did not commence this action to recover the

debt owed and to foreclose upon the mortgages until July 2, 2015, well beyond the six-year

limitations period (see CPLR 213)… ‘In order to meet the requirements of [General Obligations

Law § 17-101], a writing must be signed, recognize an existing debt and contain nothing

inconsistent with an intention on the debtor’s part to pay it’ (citations omitted). Here, Wallace

signed an August 26, 2010 letter in which he acknowledged the principal amount and maturity

date for each loan and, indeed, agreed to waive any statute of limitations defense available to

defendants against “any claim [by plaintiff] to enforce collection of any monies due [it] arising out

of the” loans. This language “clearly conveys and is consistent with an intention to pay, which is

all that need be shown in order to satisfy” the statute, even if the phrasing implies that the sums

owed by defendants might vary from the original principal amounts (citations omitted). A renewed

Page 35: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

statute of limitations for plaintiff’s claims accordingly began to run no earlier than August 26,

2010 and, thus, the commencement of this action on July 2, 2015 was timely.”).

CPLR 213 - No evidence that contract called for continuing performance

Keles v. Hultin, 144 A.D.3d 988, 42 N.Y.S.3d 60 (2d Dep’t 2016) (“‘A breach of contract can be

said to occur when the claimant’s bill is expressly rejected, or when the party seeking payment

should have viewed his claim as having been constructively rejected’ (citation omitted).

‘[K]nowledge of the occurrence of the wrong on the part of the plaintiff is not necessary to start

the Statute of Limitations running in [a] contract [action]’ (citations omitted). Here, the defendants

established, prima facie, that the plaintiff’s remaining cause of action alleging breach of contract

accrued, at the latest, in 1998, and that this cause of action, interposed in 2012 when this action

was commenced, was therefore barred by the statute of limitations (citations omitted). In

opposition, the plaintiff failed to raise a triable issue of fact. Contrary to the plaintiff’s contention,

there is no evidence that a contract between the parties called for continuing performance over a

period of time such that a new breach occurred for statute of limitations purposes each time the

defendants failed to make a required payment (citation omitted). Further, the plaintiff’s alleged

lack of knowledge that a breach occurred did not toll the running of the limitations period (citations

omitted).”).

CPLR 213 - Breach of contract is breach of contract, not fraud!

NWM Capital, LLC v. Scharfman, 144 A.D.3d 414, 41 N.Y.S.3d 471 (1st Dep’t 2016) (“Claim is

time-barred by the six-year statute of limitations applicable to breach of contract actions (citations

omitted). The two-year fraud discovery rule (citations omitted), is inapplicable since the claim is

one for breach of contract, not fraud (citation omitted).”).

CPLR 213 - Breach of contract claims accrue at the time of the breach, even where damages

accrue at a later date

Lebedev v. Blavatnik, 144 A.D.3d 24, 38 N.Y.S.3d 159 (1st Dep’t 2016) (“The breach of contract

and joint venture claims ‘accrue at the time of the breach,’ even in the event that the damages do

not accrue until a later date (citation omitted). A breach of fiduciary duty claim accrues where the

fiduciary openly repudiates his or her obligation — i.e., once damages are sustained (citation

omitted). The statute of limitations on a breach of contract or joint venture cause of action is six

years (citations omitted). The statute of limitations on a breach of fiduciary duty claim is three

years where (as here) money damages are sought (citations omitted). This action was commenced

within both limitations periods, because defendants ‘had a recurring obligation to pay plaintiff his

. . . share of the profits generated by’ the joint venture (citations omitted). A new claim accrued

when the obligation to do so was allegedly breached in 2013.”).

Page 36: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

CPLR 213 - Breach of construction contract claim accrues upon substantial completion of

work

W&W Steel, LLC v. Port Auth. of N.Y. & N.J., 142 A.D.3d 478, 37 N.Y.S.3d 80 (1st Dep’t 2016)

(“In general, a construction contract is breached, and the resulting cause of action accrues, ‘upon

substantial completion of the work’ (citation omitted). Although there is evidence that W & W

completed some work at a later date, admissions in the complaint, and in the papers attached to

the complaint, establish that the work was substantially completed in April 2011 — more than two

years before the suit was filed. The agreement contains procedures for dispute resolution, but,

contrary to W & W’s contention, the agreement does not set any additional conditions precedent

to bringing suit that would require a finding that a different accrual date applies (citations

omitted).”).

CPLR 213(2) - Claim against contractor for defective construction accrues upon completion

of performance under contract

Kamath v. Building New Lifestyles, Ltd., 146 A.D.3d 765, 44 N.Y.S.3d 532 (2d Dep’t 2017) (“An

action upon a contractual obligation or liability, express or implied,’ must be commenced within

six years (CPLR 213[2]). ‘A claim against a contractor for damages arising from defective

construction accrues, for limitations purposes, upon completion of performance under the contract’

(citation omitted). ‘This rule applies no matter how a claim is characterized in the complaint

because all liability for defective construction has its genesis in the contractual relationship of the

parties’ (citation omitted). Moreover, ‘construction may be complete even though incidental

matters relating to the project remain open’ (citations omitted). Here, BNL established its prima

facie entitlement to judgment as a matter of law dismissing the cause of action alleging breach of

contract insofar as asserted against it under the statute of limitations by submitting proof

demonstrating that the certificate of occupancy was issued in July 1994, that the plaintiffs moved

back into the house in 1995 or 1996, and, at the time the plaintiffs moved back into the house, the

only major work left to be completed from the renovation project was interior decorating (citation

omitted). In opposition, the plaintiffs failed to raise a triable issue of fact.”).

CPLR 213 - Acceleration of mortgage debt

U.S. Bank N.A. v. Barnett, 151 A.D.3d 791, 56 N.Y.S.3d 255 (2d Dep’t 2017) (“Here, in support

of her cross motion, the defendant submitted proof that the mortgage debt was accelerated on May

15, 2007, when the plaintiff commenced the first action to foreclose the subject mortgage. Thus,

the six-year limitations period expired prior to the commencement of the instant action on July 9,

2013. Moreover, while a lender may revoke its election to accelerate the mortgage (citation

omitted), the record in this case is barren of any affirmative act of revocation occurring during the

six-year limitations period subsequent to the initiation of the prior action (citations omitted).”).

Page 37: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

CPLR 213 - “[T]he plaintiff possessed a legal right to demand payment at the time that each

loan was advanced to the defendants, and the statute of limitations began to run at each of

those respective times.”

Elia v. Perla, 150 A.D.3d 962, 55 N.Y.S.3d 305 (2d Dep’t 2017) (“Here, the parties’ agreement,

as alleged in the amended complaint, provided that the sums loaned to the defendants were

repayable on demand. Accordingly, the plaintiff possessed a legal right to demand payment at the

time that each loan was advanced to the defendants, and the statute of limitations began to run at

each of those respective times (citations omitted). Contrary to the plaintiff’s contention, the three-

month period for repayment following a demand did not constitute a condition that had to be

fulfilled before the right to final payment arose (citations omitted). Accordingly, the Supreme

Court properly granted that branch of the defendants’ motion which was pursuant to CPLR

3211(a)(5) to dismiss as time-barred so much of the first cause of action as was predicated upon

loans that allegedly were made more than six years prior to the commencement of the action.”).

CPLR 213 - “The filing of the summons and complaint and notice of pendency in the 2007

action constituted a valid election to accelerate the maturity of the debt.”

Beneficial Homeowner Serv. Corp. v. Tovar, 150 A.D.3d 657, 55 N.Y.S.3d 59 (2d Dep’t 2017)

(“The filing of the summons and complaint and notice of pendency in the 2007 action constituted

a valid election to accelerate the maturity of the debt (citations omitted). Contrary to the plaintiff’s

contention, the fact that the 2007 action was dismissed as against the defendant homeowner for

failure to effectuate personal service does not invalidate the plaintiff’s election to exercise its right

to accelerate the maturity of debt. ‘The fact of election should not be confused with the notice or

manifestation of such election’ (citation omitted). Nothing in the parties’ agreement provides that

the plaintiff’s election is not valid until the defendant homeowner receives notice thereof.

Consequently, the failure to properly serve the summons and complaint upon the defendant

homeowner did not as a matter of law destroy the effect of the sworn statement that the plaintiff

had elected to accelerate the maturity of the debt (citations omitted).”).

CPLR 213 - No extension of statute of limitations

Gad v. Almod Diamonds Ltd., 147 A.D.3d 417, 45 N.Y.S.3d 790 (1st Dep’t 2017) (“The motion

court correctly determined that plaintiff’s claims for breach of contract, unjust enrichment,

constructive trust, and breach of fiduciary duty are time-barred (see CPLR 213[1], [2]; 214[4]).

The letter of understanding, signed by plaintiff and his brother Albert in 1995, in which plaintiff

agreed that he would not ask for shares in defendant Almod Diamonds Ltd., the family company,

and that only Albert would decide if and when shares of that company were distributed, constituted

a breach of the alleged earlier oral agreement entitling plaintiff to ten percent of the company.

Thus, plaintiff’s claims accrued upon execution of the letter (citation omitted). Plaintiff’s

subsequent demand for shares in 2013, which was refused, did not extend the statute of limitations

(citation omitted). Nor was the statute of limitations extended by the alleged subsequent

amendment to the oral agreement, pursuant to which plaintiff would be compensated for his share

of Almod by Almod agreeing to purchase diamonds from him (citation omitted). The doctrine of

Page 38: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

equitable estoppel does not apply to bar the assertion of the statute of limitations defense, since

plaintiff failed to allege that specific subsequent acts by defendants kept him from timely bringing

suit (citation omitted).”).

CPLR 213-Reformation based upon a purported mistake

Nationstar Mtge., LLC v. Hilpertshauser, 156 A.D.3d 1052, 66 N.Y.S.3d 687 (3d Dep’t 2017)

(“‘Reformation based upon a purported mistake is governed by a six-year statute of limitations

that is generally measured from the occurrence of the mistake’ (citations omitted). Contrary to

plaintiff’s representation (citation omitted), ‘the same period applies to [its] cause of action seeking

an equitable mortgage’ (citations omitted). The statute of limitations will not begin to run upon the

mistake for those ‘in possession of real property under an instrument of title,’ but plaintiff does

not allege that it has ever been in possession of the mortgaged property and does not benefit from

that exception (citations omitted). The alleged mistake occurred no later than the execution of the

mortgage in 2007 and, therefore, this 2015 action was appropriately dismissed against defendant

as time-barred.”).

CPLR 213- Action to recover on a promissory note- where a note is payable in installments

and the debt has not been accelerated, there are separate causes of action for each installment

accrued, and the statute of limitations begins to run on the date each installment becomes

due and is defaulted upon

Amrusi v. Nwaukoni, 155 A.D.3d 814, 65 N.Y.S.3d 62 (2d Dep’t 2017) (“Generally, a promissory

note is enforceable under traditional principles of contract law (citation omitted). ‘The statute of

limitations for an action to recover on a promissory note is six years’ (citations omitted). Where,

as here, a note is payable in installments and the debt has not been accelerated, there are separate

causes of action for each installment accrued, and the statute of limitations begins to run on the

date each installment becomes due and is defaulted upon (citation omitted). . . . Applying the six-

year statute of limitations to each installment which became due and was defaulted upon, the Court

should have granted dismissal of only so much of the first cause of action as sought to recover

unpaid installments accruing under the note more than six years prior to March 3, 2016, as time-

barred (citation omitted). Thus, the first cause of action was timely to the extent that it sought to

recover unpaid installments accruing under the note on or after March 3, 2010.”).

CPLR 213-To determine the statute of limitations applicable to a particular declaratory

judgment action, the court must examine the substance of that action to identify the

relationship out of which the claim arises and the relief sought

Wells Fargo Bank, N.A. v. Burke, 155 A.D.3d 668, 64 N.Y.S.3d 228 (2d Dep’t 2017) (“Here, the

defendants established, prima facie, that the causes of action seeking declarations that the plaintiff

had a mortgage on the property under the doctrines of equitable mortgage and equitable

subrogation were barred by the six-year statute of limitations. ‘In order to determine the Statute of

Limitations applicable to a particular declaratory judgment action, the court must examine the

substance of that action to identify the relationship out of which the claim arises and the relief

sought’ (citations omitted). ‘If the court determines that the underlying dispute can be or could

Page 39: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

have been resolved through a form of action or proceeding for which a specific limitation period

is statutorily provided, that limitation period governs the declaratory judgment action’ (citation

omitted). A cause of action seeking to establish a lien pursuant to the doctrine of equitable

mortgage or the doctrine of equitable subrogation is governed by a six-year statute of limitations

(citations omitted). Those causes of action accrued no later than June 16, 1997, when the mortgage

and note were made (citation omitted) and, therefore, those causes of action, commenced in 2014,

are untimely. In opposition to the defendants’ motion, the plaintiff failed to demonstrate the

existence of an issue of fact as to whether the relevant statutes of limitation were tolled or were

otherwise inapplicable (citation omitted). Accordingly, those branches of the defendants’ motion

which were pursuant to CPLR 3211(a)(5) to dismiss the causes of action seeking declarations that

the plaintiff had a mortgage on the property under the doctrines of equitable mortgage and

equitable subrogation should have been granted.”).

CPLR 213- Action to enforce distributive award in a matrimonial action subject to the six-

year statute of limitations set forth versus motion to enforce the terms of the separation

agreement pursuant to Domestic Relations Law § 244, not subject to six year statute of

limitations

Holsberger v. Holsberger, 154 A.D.3d 1208, 63 N.Y.S.3d 559 (3d Dep’t 2017) (“Next, we reject

the husband’s argument that the enforcement of the separation agreement is barred by the statute

of limitations. In general, a statute of limitations defense applies to actions and special proceedings

(citation omitted). The husband correctly argues that an action to enforce a distributive award in a

matrimonial action is subject to the six-year statute of limitations set forth in CPLR 213 (1) and

(2) (citation omitted). Here, however, the wife’s motion to enforce the terms of the separation

agreement pursuant to Domestic Relations Law § 244 is not an action and thus not subject to the

statute of limitations set forth in CPLR 213 (2) (citations omitted).”).

CPLR 213(1) - Statute of limitations for breach of fiduciary duty claim depends on

substantive remedy sought

Matter of Twin Bay Vil., Inc. v. Kasian, 153 A.D.3d 998, 60 N.Y.S.3d 560 (3d Dep’t 2017) (“Next,

we are unpersuaded by respondents’ contention that this proceeding is time-barred. It is well settled

that ‘New York law does not provide a single statute of limitations for breach of fiduciary duty

claims [and] the choice of the applicable limitations period depends on the substantive remedy that

the [petitioner] seeks’ (citations omitted). Here, the gravamen of the petition is that respondents,

as the majority shareholders, breached their fiduciary duties owed to petitioners, as the minority

shareholders. Although the petition alleges fraudulent acts in the form of looting, the allegation of

fraud is not essential to the breach of fiduciary duty claim. In light of this, and the fact that the

remedy of a judicial dissolution is equitable in nature, we find that ‘the six-year limitations period

of CPLR 213 (1) applies’ (citations omitted), and it does not commence ‘until there has been an

open repudiation by the fiduciary or the relationship has otherwise been clearly terminated’

(citations omitted). In our view, respondents’ attempt in 2009 to force petitioners to sell their shares

is the earliest point at which respondents can be said to have openly repudiated the fiduciary

relationship. Given that this proceeding was commenced within six years of the 2009 force-out

attempt, we agree with Supreme Court that this proceeding is not time-barred.”).

Page 40: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

CPLR 213(2) - Transaction predominantly for services, not for goods subject to UCC 2-725

Fallati v. Concord Pools, Ltd., 151 A.D.3d 1446, 54 N.Y.S.3d 345 (3d Dep’t 2017) (“Contrary to

plaintiff’s assertion, ‘the transaction in this case is predominantly one for services,’ i.e., the

construction of a swimming pool, and any ‘sale of goods is merely incidental to the services

provided’ by defendant (citation omitted). Thus, plaintiff’s claim is not encompassed by the four-

year statute of limitations set forth in UCC 2-725 but, rather, is governed by the six-year statute of

limitations set forth in CPLR 213 (2) (citations omitted). As plaintiff’s claim accrued upon the

completion of the swimming pool in 2002 and this action was not commenced until 2015,

plaintiff’s breach of contract claim is time-barred.”).

CPLR 213(2) - Transactions predominantly for services

Hagman v. Swenson, 149 A.D.3d 1, 47 N.Y.S.3d 324 (1st Dep’t 2017) (Contract for interior design

services. “Mixed transaction contracts, involving both goods and services, require a determination

as to whether the transaction is predominantly one for goods or one for services, for statute of

limitations purposes. In this case, the issue is raised in the context of a contract that provides for

interior design services, including the procurement of furniture and other items required for

achieving the desired design. Interestingly, notwithstanding that interior design services are

apparently in much demand in New York, to our knowledge, there are no published opinions on

this issue in this state. The action arises from an unpaid bill mostly for furniture and other items.

The primary question on appeal is whether plaintiff’s breach of contract claim is governed by the

four-year statute of limitations set forth in UCC 2-725 for breach of a sale-of-goods contract or the

six-year statute of limitations in CPLR 213 for breach of a services contract. We find that the

transaction in this case is predominantly one for services (citation omitted), and the sale of goods

is merely incidental to the services provided. Accordingly, plaintiff’s breach of contract claim is

timely.”).

CPLR 213(4) – Action to foreclose mortgage

Kashipour v. Wilmington Sav. Fund Socy., FSB, 144 A.D.3d 985, 41 N.Y.S.3d 738 (2d Dep’t 2016)

(“As relevant here, RPAPL 1501(4) authorizes a person having an estate or interest in real property

subject to a mortgage to maintain an action against another to secure the cancellation and discharge

of record of such encumbrance where the period allowed by the applicable statute of limitations

for the commencement of an action to foreclose the mortgage has expired, provided, however, that

the mortgagee or its successor is not in possession of the affected real property at the time of the

commencement of the action (see RPAPL 1501[4]). An action to foreclose a mortgage is subject

to a six-year statute of limitations (see CPLR 213[4]). ‘The law is well settled that, even if a

mortgage is payable in installments, once a mortgage debt is accelerated, the entire amount is due

and the Statute of Limitations begins to run on the entire debt’ (citations omitted). Here, the

plaintiffs submitted proof that the mortgage debt was accelerated on August 20, 2009, and thus the

six-year statute of limitations for an action to foreclose the mortgage had expired by the time the

instant action was commenced on September 3, 2015.”).

Page 41: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

CPLR 213(8) - Governs fraud claims – Executive Law § 63(12)

People v. Credit Suisse Sec. (USA) LLC, 145 A.D.3d 533, 47 N.Y.S.3d 236 (1st Dep’t 2016) (“As

this Court previously held in State of New York v. Bronxville Glen I Assoc. (181 AD2d 516, 516

[1st Dept 1992]), the statute of limitations for an action brought by the Attorney General under the

Martin Act alleging investor fraud ‘is six years pursuant to CPLR 213(8), and not three years

pursuant to CPLR 214’ (citations omitted). More recently in Matter of People v Trump

Entrepreneur Initiative LLC (137 AD3d 409 [1st Dept 2016]), lv granted 2016 NY Slip Op

73667[U] [May 17, 2016] (Trump) we analyzed the issue of the statute of limitations for claims

brought under Executive Law § 63(12). In conducting this analysis, we first noted that the language

of § 63(12) parallels the language of the Martin Act (citation omitted). Additionally, we noted,

section 63(12) ‘did not make’ unlawful the alleged fraudulent practices, but only provided standing

in the Attorney-General to seek redress and additional remedies for recognized wrongs which pre-

existed the statute []’ (citation omitted). We further found that ‘section 63(12) does not encompass

a significantly wider range of fraudulent activities than were legally cognizable before the section’s

enactment’ (citation omitted). Thus, we concluded, the Attorney General’s ‘fraud claim under

[Executive Law] § 63(12) . . . is subject to the residual six-year statute of limitations in CPLR

213(1)’ because the section ‘does not create any liability nonexistent at common law, at least under

the court’s equitable powers’ (citation omitted). We adhere to that determination here. The

conduct targeted under § 63(12) parallels the conduct covered under the Martin Act’s definition of

fraud in that both the Martin Act and § 63(12) target wrongs that existed before the statutes’

enactment, as opposed to targeting wrongs that were not legally cognizable before enactment.

Accordingly, § 63(12) is not subject to the three-year statute of limitations under CPLR 214

(citation omitted). The dissent maintains that the complaint is based on statutory violations

encompassing a larger range of claims than were legally cognizable before § 63(12)’s enactment.

But, as noted above, and as we noted in Trump, the conduct at issue in this action was, in fact,

always subject to granting of relief under the courts’ equitable powers (citation omitted). Further,

CPLR 213(1), rather than CPLR 214(2), is applicable to an Executive Law § 63(12) claim based

on a scheme to obtain ownership of distressed properties by means of fraudulent

misrepresentations (citation omitted).”).

CPLR 213(8) - Duty to inquire that fraud has been committed

MBI Intl. Holdings Inc. v Barclays Bank PLC, 151 A.D.3d 108, 57 N.Y.S.3d 119 (1st Dep’t 2017)

(“This appeal arises out of an alleged scheme to defraud a Saudi Arabian residential real estate

developer out of hundreds of millions of dollars owed to it by the Saudi government. Its resolution

requires us to construe New York’s date of discovery rule for purposes of ascertaining when the

statute of limitations was triggered with respect to plaintiffs’ fraud-based claims. Ultimately, the

result we reach today embraces the well-settled rule established in New York long ago - ‘[W]here

the circumstances are such as to suggest to a person of ordinary intelligence the probability that he

[or she] has been defrauded, a duty of inquiry arises, and if he [or she] . . . shuts his [or her] eyes

to the facts which call for investigation, knowledge of the fraud will be imputed to him [or her]’

(citation omitted). Thus, we affirm the motion court’s holding to the extent it dismissed plaintiffs’

action as time-barred….[W]e find that it conclusively appears in this case that the plaintiffs had

undisputed knowledge of facts by at least 2008 from which fraud could reasonably be inferred

Page 42: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

(citations omitted). Because the statute was triggered by at least 2008, and plaintiffs failed to

pursue any investigation until 2013, five years later, plaintiffs are barred from asserting a claim

for fraud.”).

CPLR 213(8) - Reasonable diligence to discover fraud

Norddeutsche Landesbank Girozentrale v. Tilton, 149 A.D.3d 152, 48 N.Y.S.3d 98 (1st Dep’t

2017) (“‘The inquiry as to whether a plaintiff could, with reasonable diligence, have discovered

the fraud turns on whether the plaintiff was possessed of knowledge of facts from which [the fraud]

could be reasonably inferred. Generally, knowledge of the fraudulent act is required and mere

suspicion will not constitute a sufficient substitute. Where it does not conclusively appear that a

plaintiff had knowledge of facts from which the fraud could reasonably be inferred, a complaint

should not be dismissed on motion and the question should be left to the trier of the facts’ (citation

omitted). At the same time, ‘[i]t is well settled that if a party omits an inquiry when it would have

developed the truth, and shuts his eyes to the facts which call for investigation, knowledge of the

fraud will be imputed to him’ (citation omitted). Loss alone, however, cannot give rise to such a

duty to inquire (citation omitted). Defendants maintain that plaintiffs should have inferred the

existence of the fraudulent scheme they allege as early as 2009, based on the various documents

and events they present in support of their motion. Plaintiffs counter that the ‘clues’ defendants

contend they should have picked up were insufficient for them to establish the crux of their

complaint, which is that the Funds were not CDOs, but rather a method by which defendants could

use borrowed money to enrich themselves by plundering the Portfolio Companies. Giving to

plaintiffs, as we must, the most favorable interpretation of defendants’ evidence, we find that

plaintiffs had insufficient facts before the SEC proceeding to plead their causes of action.”).

CPLR 213 - Fraud-issue of when a plaintiff, acting with reasonable diligence, could have

discovered an alleged fraud involves a mixed question of law and fact

Berman v. Holland & Knight, LLP, 156 A.D.3d 429, 66 N.Y.S.3d 458 (1st Dep’t 2017) (“The two-

year discovery provision does apply to actual fraud (first cause of action). ‘[T]he issue of when a

plaintiff, acting with reasonable diligence, could have discovered an alleged fraud . . . involves a

mixed question of law and fact, and, where it does not conclusively appear that a plaintiff had

knowledge of facts from which the alleged fraud might be reasonably inferred, the cause of action

should not be disposed of summarily on statute of limitations grounds. Instead, the question is one

for the trier-of-fact’ (citation omitted). One cannot say, as a matter of law, that the Internal Revenue

Service’s July 2007 deficiency notice, which mentioned only nonparty Derivium, placed plaintiffs

on inquiry notice of defendant’s alleged fraud (citation omitted). Plaintiffs plausibly allege that,

until defendant produced its file on January 8, 2015 in response to a motion to compel in Tax

Court, they had no inkling of its purported fraud (citation omitted). Unlike the subprime crisis in

Aozora Bank, Ltd. v Deutsche Bank Sec. Inc. (citation omitted) (cited by defendant), Derivium’s

fraud was not common knowledge.”).

Page 43: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

CPLR 213- Fraud claims barred-plaintiffs failed to establish that the fraud could not have

been discovered earlier

Moses v. Dunlop, 155 A.D.3d 466, 64 N.Y.S.3d 214 (1st Dep’t 2017) (“The fraud claims, to the

extent they arise from conduct that occurred in 2006, are time-barred (citation omitted). Plaintiffs

failed to establish that the fraud could not have been discovered earlier (citation omitted). At the

very latest, they were on inquiry notice by January 2007, when Dunlop presented Moses and

Kaufman with the settlement and release agreement — more than two years before the

commencement of this action (citations omitted). Unlike the situation in CSAM Capital, plaintiffs

allowed years to go by without confronting Dunlop or Bravo about any concerns they may have

had in the face of Dunlop’s highly publicized continued involvement in the Series, his participation

in and receipt of credits for spin-offs in other locations.”).

CPLR 213(8) - Plaintiff established that he could not, with reasonable diligence, have

discovered the fraud until 2013, when he learned for the first time that he was the beneficiary

of a structured settlement from which he was entitled to receive millions of dollars in monthly

and periodic lump-sum payments

Monteleone v. Monteleone, 2018 NY Slip Op 04317 (2d Dep’t 2018) (“Contrary to the defendant's

contentions, since the cause of action for conversion is based upon fraud, it is governed by the

statute of limitations period for fraud set forth in CPLR 213(8) (citations omitted). The limitations

period for fraud under CPLR 213(8) also applies to the breach of fiduciary duty causes of action

inasmuch as the allegations of fraud are essential to those claims (citations omitted). . . . Here, the

plaintiff established that he could not, with reasonable diligence, have discovered the fraud until

2013, when he learned for the first time that he was the beneficiary of a structured settlement from

which he was entitled to receive millions of dollars in monthly and periodic lump-sum payments.

The plaintiff initiated this action within a few months of learning this information and confronting

the defendant, who refused to share details about the structured settlement with him because she

was purportedly bound by a confidentiality agreement not to do so. Contrary to the defendant's

contention, she did not raise a triable issue of fact as to whether the plaintiff could have, with

reasonable diligence, discovered the alleged misconduct earlier. Accordingly, we agree with the

Supreme Court's determinations that the conversion and breach of fiduciary duty causes of action

are not time-barred, and to grant the plaintiff's motion for summary judgment on the issue of

liability.”).

CPLR 213(8) - Cause of action for aiding and abetting a breach of fiduciary duty – alleging

fraud essential to claim

New York State Workers’ Compensation Bd. v. Fuller & LaFiura, CPAs, P.C., 146 A.D.3d 1110,

46 N.Y.S.3d 266 (3d Dep’t 2017) (“Next, Fuller contends that Supreme Court erred in failing to

order the dismissal of the portions of the causes of action for aiding and abetting a breach of

fiduciary duty (fourteenth cause of action), aiding and abetting fraud (twenty-third cause of action)

and professional negligence (thirty-second cause of action) that Supreme Court determined were

governed by the three-year statute of limitations period set forth in CPLR 214 (6). Starting first

with the causes of action for aiding and abetting a breach of fiduciary duty and aiding and abetting

Page 44: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

fraud, plaintiff contends that Supreme Court, in the first instance, erred in applying a three-year

statute of limitations to those claims. We agree. The cause of action for aiding and abetting a

breach of fiduciary duty is premised upon allegations that Fuller, among other things, intentionally

misrepresented the trust’s true financial condition with the knowledge that this would aid and abet

the breach of fiduciary duties by the trustees, Cody and CSI. Inasmuch as ‘the allegations of fraud

perpetrated by [Fuller] are essential to this claim, a six-year statute of limitations pursuant to CPLR

213 (8) is applicable’ (citations omitted). Similarly, our review of the aiding and abetting fraud

claim confirms that the underlying facts are also based in fraud, and, thus, the six-year statute of

limitations also applies to this claim (citations omitted). Accordingly, these causes of action are

timely insofar as they allege conduct occurring after May 31, 2007.”).

CPLR 213-a - Residential rent overcharge

CPLR 213-a - Court properly looked back beyond the four-year limitations period for

plaintiffs' rent-overcharge claim to establish the proper base rent, as there was sufficient

indicia of fraud

Butterworth v. 281 St. Nicholas Partners, LLC, 160 A.D.3d 434, 74 N.Y.S.3d 528 (1st Dep’t 2018)

(“The court properly looked back beyond the four-year limitations period for plaintiffs' rent-

overcharge claim (citation omitted) to establish the proper base rent, in that sufficient indicia of

fraud existed (citation omitted). While neither an increase in rent, standing alone, nor plaintiffs'

skepticism about apartment improvements suffice to establish indicia of fraud (citations omitted),

here at the same time that the predecessor landlord increased the rent from $949.34 to $1,600 in

plaintiffs' initial lease, it also ceased filing annual registration statements for 2007 through 2012.

Moreover, plaintiffs' initial lease contained a ‘Deregulation Rider for First Unregulated Rent,’

which left blank spaces which would have indicated either that the last legal regulated rent or the

new legal rent exceeded the $2,000 threshold for deregulation, and may well be viewed as an

attempt to obfuscate the regulatory status of the apartment, despite that the rent had not reached

the $2,000 threshold. Nevertheless, while the court properly determined that the last legal rent

was $949.34, and that the complaint should not be dismissed based on this four-year limitation

period, this look back based on such indicia of fraud did not warrant assessing overcharge damages

for the entire period. Rather, ‘section 213-a merely limits tenants' recovery to those overcharges

occurring during the four-year period immediately preceding [plaintiffs'] rent challenge’ (citations

omitted). Furthermore, the discrepancies in plaintiffs' initial lease, and the lack of any annual

registration statements after the increase, coupled with the fact that the $1,600 did not reach the

threshold for deregulation, demonstrate that defendant landlord failed to show by a preponderance

of evidence that it did not act willfully (citations omitted). However, ‘[n]o penalty of three times

the overcharge may be based upon an overcharge having occurred more than two years before the

complaint is filed’ (citation omitted).”).

CPLR 213-a - Action for residential rent overcharge – 4 years

Roberts v. Tishman Speyer Properties LP, 13 N.Y.3d 270, 890 N.Y.S.2d 388, 918 N.E.2d 900

(2009) (Court of Appeals held landlords were not entitled to use luxury deregulation provisions of

Rent Stabilization Law while receiving J-51 tax program benefits for building rehabilitation and

Page 45: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

capital improvement projects. The Court left other issues, “including retroactivity, class

certification, the statute of limitations, and other defenses that may be applicable to particular

tenants,” for determination by the lower court.).

CPLR 213-b - Action by victim of criminal offense

CPLR 213-b - “Crime” does not include violation

Elliott v. Grant, 150 A.D.3d 1080, 52 N.Y.S.3d 645 (2d Dep’t 2017) (“In support of her cross

motion to dismiss the complaint as time-barred, and in opposition to the plaintiff’s motion, in

effect, to strike the affirmative defense of the statute of limitations, the defendant established that

she was convicted of the violations of harassment and disorderly conduct in connection with the

incidents at issue. Pursuant to Penal Law § 10.00(6), ‘Crime’ means a misdemeanor or a felony’

(citation omitted). Where the defendant was not convicted of any crime in connection with the

subject of the action, ‘CPLR 213-b, by its plain terms, does not apply’ (citation omitted). Here,

since the defendant was convicted of violations, which are not crimes, the Supreme Court properly

declined to apply the seven-year statute of limitations as provided in CPLR 213-b and granted the

defendant’s cross motion pursuant to CPLR 3211(a)(5) to dismiss the complaint as time-barred.”).

CPLR 214 - Three year statute of limitations

CPLR 214 - Claims under New York State and City Human Rights Law barred

Chung v. Mary Manning Walsh Nursing Home Co., Inc., 147 A.D.3d 452, 46 N.Y.S.3d 587 (1st

Dep’t 2017) (“In September 2013, defendants, plaintiff, and plaintiff’s union entered into a

‘Settlement Agreement’ resolving a grievance proceeding brought by the union regarding her

separation from employment in January 2012. Among other provisions, in the Settlement

Agreement, the parties agreed that plaintiff would be deemed to have resigned on January 8, 2012.

Since plaintiff makes no claim that the Settlement Agreement is invalid (citations omitted), it thus

fixes the date of her separation from employment at January 8, 2012 (citations omitted).

Defendants’ assertion of the Settlement Agreement’s terms via motion in response to the complaint

renders this a ‘proceeding to enforce [its] terms’ as stipulated therein (citations omitted). Since

plaintiff filed the complaint in this action on January 17, 2015, more than three years after the

stipulated date of her resignation, her claims under the New York State and City Human Rights

Laws are time-barred under the applicable three-year limitations periods (citations omitted).”).

CPLR 214(2) - Does not automatically apply to all causes of action in which a statutory

remedy is sought, but only where liability “would not exist but for a statute”‘

New York State Workers’ Compensation Bd. v. Any-time Home Care Inc., 156 A.D.3d 1043, 66

N.Y.S.3d 690 (3d Dep’t 2017) (“As the provisions in the trust agreements pertaining to joint and

several liability are mandated by the Workers’ Compensation Law, the SL defendants contend that

the cause of action is statutory rather than contractual. However, ‘CPLR 214 (2) does not

Page 46: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

automatically apply to all causes of action in which a statutory remedy is sought, but only where

liability “would not exist but for a statute”‘ (citations omitted). ‘[C]laims which, although provided

for in a statute, merely codify or implement an existing common-law liability’ are not governed

by CPLR 214 (2), but by the limitations period that applies to the underlying common-law cause

of action (citations omitted). Here, Workers’ Compensation Law § 50 (3-a) (3) did not create a

new liability, but merely implemented the existing common-law concept of joint and several

liability by requiring group self-insured trusts to include it in their contractual relationships with

members. Members of the trust incurred joint and several liability for the trust’s cumulative deficit

by entering into agreements that imposed that liability. If they had not done so, the statute would

have imposed no liability upon them. The statutory requirement to include joint and several

liability provisions in the agreements ‘does not alter the fact that the dispute is fundamentally

contractual in nature and not a creature of statute’ (citations omitted). Thus, Supreme Court

correctly determined that the action is timely. The parties’ remaining arguments related to this

issue are rendered academic by this determination.”).

CPLR 214 - Action barred by three-year statute of limitations for recovery of a chattel

Loscalzo v. 507-509 President St. Tenants Assn. Hous. Dev. Fund Corp., 153 A.D.3d 614, 57

N.Y.S.3d 427 (2d Dep’t 2017) (“The defendants established that the action was barred by the three-

year statute of limitations for recovery of a chattel (citation omitted). ‘In order to determine the

Statute of Limitations applicable to a particular declaratory judgment action, the court must

examine the substance of that action to identify the relationship out of which the claim arises and

the relief sought’ (citations omitted). ‘If the court determines that the underlying dispute can be or

could have been resolved through a form of action or proceeding for which a specific limitation

period is statutorily provided, that limitation period governs the declaratory judgment action’

(citations omitted). Here, the plaintiff seeks to recover a stock certificate representing shares in a

cooperative apartment corporation. An action to recover a stock certificate is governed by the

three-year statute of limitations for recovery of a chattel (citations omitted). ‘Shares of stock issued

in connection with cooperative apartments are personal property, not real property’ (citations

omitted).”).]

CPLR 214 / 214-a - Is it malpractice or ordinary negligence? The critical factor is the nature

of the duty owed to the plaintiff that the defendant is alleged to have breached

Bell v. WSNCHS N., Inc., 153 A.D.3d 498, 59 N.Y.S.3d 475 (2d Dep’t 2017) (“The sole issue to

be determined on this appeal is whether the 2½-year statute of limitations applicable to an action

sounding in medical malpractice (citation omitted) or the three-year statute of limitations for an

ordinary negligence action (citation omitted) is applicable. The critical factor is the nature of the

duty owed to the plaintiff that the defendant is alleged to have breached. A hospital or medical

facility has a general duty to exercise reasonable care and diligence in safeguarding a patient, based

in part on the capacity of the patient to provide for his or her own safety (citations omitted). ‘The

distinction between ordinary negligence and malpractice turns on whether the acts or omissions

complained of involve a matter of medical science or art requiring special skills not ordinarily

possessed by lay persons or whether the conduct complained of can instead be assessed on the

basis of the common everyday experience of the trier of the facts’ (citations omitted). Generally,

Page 47: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

a claim will be deemed to sound in medical malpractice ‘when the challenged conduct constitutes

medical treatment or bears a substantial relationship to the rendition of medical treatment by a

licensed physician’ (citations omitted). Thus, when the complaint challenges a medical facility’s

performance of functions that are ‘an integral part of the process of rendering medical treatment’

and diagnosis to a patient, such as taking a medical history and determining the need for restraints,

the action sounds in medical malpractice (citations omitted). Here, in support of their motion for

summary judgment dismissing the complaint as time-barred, the defendants established, prima

facie, that this action, commenced on April 12, 2012, was barred by the 2½-year statute of

limitations applicable to medical malpractice actions. The defendants’ evidence showed that on

April 12, 2009, the plaintiff’s decedent, Ruby Bell (hereinafter the decedent), was admitted to New

Island Hospital with a history of dementia, and placed on ‘Fall Prevention Protocol.’ After the

decedent was found standing at her bedside trying to remove her foley catheter, a physician ordered

that she be restrained with a vest and wrist restraints. On the morning of April 18, 2009, the

decedent was discovered sitting on the floor next to her bed. The bed’s side rails were up and the

decedent was not aware of how she came to be on the floor. She had apparently fallen while trying

to climb out of her bed. Thereafter, the decedent was diagnosed with a distal radius fracture of the

right forearm. The plaintiff alleged that this incident arose out of the failure of the defendants’ staff

to follow the physician’s order to restrain her (citations omitted). In opposition to the defendants’

prima facie showing of entitlement to judgment as a matter of law, the plaintiff failed to raise a

triable issue of fact. Contrary to the plaintiff’s contentions, the allegations at issue essentially

challenged the defendants’ assessment of the decedent’s supervisory and treatment needs (citation

omitted). Thus, the conduct at issue derived from the duty owed to the decedent as a result of the

physician-patient relationship and was substantially related to her medical treatment (citations

omitted).”).

Moore v. St. James Health Care Ctr., LLC, 141 A.D.3d 701, 35 N.Y.S.3d 464 (2d Dep’t 2016)

(“For two weeks in June 2003, the plaintiff’s decedent, an 83-year-old man who suffered from

various ailments, was a resident of the defendant, St. James Health Care Center, LLC, a residential

health care facility. Alleging that the decedent sustained certain injuries while in the defendant’s

care, the plaintiff commenced this action setting forth causes of action to recover damages for

medical malpractice, negligence, gross negligence, and deprivation of rights pursuant to Public

Health Law § 2801-d. In an order dated July 7, 2007, the Supreme Court, inter alia, directed the

dismissal of the medical malpractice cause of action as time-barred. In the order appealed from,

the Supreme Court granted those branches of the defendant’s motion which were for summary

judgment dismissing the causes of action alleging negligence, gross negligence, and deprivation

of rights pursuant to Public Health Law § 2801-d. In a judgment entered June 17, 2014, the

complaint was dismissed. The plaintiff appeals. The critical question in determining whether an

action sounds in medical malpractice or simple negligence is the nature of the duty to the plaintiff

which the defendant is alleged to have breached” (citation omitted). “When the duty arises from

the physician-patient relationship or is substantially related to medical treatment, the breach gives

rise to an action sounding in medical malpractice, not simple negligence” (id.). Here, the Supreme

Court properly determined that the cause of action to recover damages for negligence, to the extent

not premised upon the defendant’s alleged failure to protect the decedent from falling (which claim

the court found to be without merit), actually sounded in medical malpractice, and was therefore

Page 48: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

time-barred by the 2½-year statute of limitations governing medical malpractice causes of action

(citations omitted).”).

CPLR 214(2) - Does not apply because Insurance Law 3105 does not create a cause of action

CIFG Assur. N. Am., Inc. v. J.P. Morgan Sec. LLC, 146 A.D.3d 60, 44 N.Y.S.3d 2 (1st Dep’t 2016)

(Court applies six year statute of limitations. “There is no merit to defendant’s argument that

CIFG’s Insurance Law § 3105 claim is time-barred under CPLR 214(2), which imposes a three-

year statute of limitations for ‘action[s] to recover upon a liability . . . created or imposed by

statute.’ CPLR 214(2) applies ‘only where liability would not exist but for a statute,’ and ‘does not

apply to liabilities existing at common law which have been recognized or implemented by statute’

(citation omitted). Insurance Law § 3105 does not, by its terms, create a cause of action, but merely

codifies common law principles (citation omitted). Thus, CPLR 214(2) does not bar the

misrepresentation claim.”).

CPLR 214(2)

David L. Ferstendig, Majority of Court of Appeals Applies Three-Year Statute of Limitations to

No-Fault Claims Against a Self-Insurer, 691 N.Y.S.L.D. 1-2 (2018).

Majority of Court of Appeals Applies Three-Year Statute of Limitations to No-Fault Claims

Against a Self-Insurer

Dissent Advocates Six-Year Limitation Period, Seeing No Reason to Distinguish Between No-

Fault Claims Versus a Self-Insurer, as Opposed to an Insurer

Three of the four Appellate Division departments have applied a six-year statute of limitations to

no-fault claims asserted by an insured against an insurer under an insurance policy. That issue,

however, was not before the Court of Appeals in Contact Chiropractic, P.C. v. New York City Tr.

Auth., 2018 N.Y. Slip Op. 03093 (May 1, 2018). The question here was which period should be

applied to no-fault claims brought against a self-insurer: a three-year or a six-year statute of

limitations. On that issue, the Court of Appeals split.

In Contact Chiropractic, a passenger in a bus owned by the defendant, the New York Transit

Authority (NYCT), was injured in a motor vehicle accident. NYCT did not have nofault insurance

coverage; it was self-insured. After the plaintiff provided health services to the injured passenger

arising out of her injuries in the accident, the passenger assigned her right to the plaintiff to recover

first-party benefits from NYCT. Plaintiff brought this action, seeking reimbursement for

outstanding invoices.

The defendant moved to dismiss, arguing, among other things, that the action was untimely under

CPLR 214(2), which applies a three-year statute of limitations to actions to recover upon a liability

created or imposed by statute. Defendant argued that CPLR 213(2), which provides for a six-year

statute of limitations in actions based on a contractual obligation or liability, did not apply because

it was selfinsured and did not have an insurance policy. Defendant relied on First Department

Page 49: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

authority providing that a self-insurer’s "obligation to provide no-fault benefits arises out of the

no-fault statute," and that the three-year statute of limitations applies to actions arising out of the

payment of such benefits. The plaintiff countered that a six-year limitation period applied, relying

on Second Department authority holding that uninsured motorist benefits claims against a self-

insured vehicle owner are contractual in nature, even though they are statutorily mandated.

The Civil Court denied the motion, applying the six-year statute of limitations. The Appellate Term

and Appellate Division affirmed. A majority of the Court of Appeals reversed. While

acknowledging the Appellate Division’s application of a six-year limitation period to no-fault

claims against insurers, it noted that the law was unsettled with respect to claims against a self-

insurer. In concluding that the three-year limitation period under CPLR 214(2) applied, the Court

emphasized that the no-fault law is a creature of statute, unknown at common law, and the no-fault

benefits here were not provided by contract with a private insurer, but by a self-insurer meeting its

statutory obligations. The majority assured that "our holding here does not reduce the no-fault

liability or obligations of self-insurers, or curtail the substantive no-fault rights of injured parties

or their assignees as against such self-insurers." Id. at ∗2.

The dissent was troubled by establishing two sets of limitation periods, one for actions against

insurers (six years) and one for actions against self-insurers (three years). It maintained that the

no-fault law did not distinguish between insurers or self-insurers and imposed equal liability for

the payment of no-fault benefits on both; the accrual date for both types of claims is the same

(when payments become overdue); the no-fault law provides no limitation period; there is no

dispute in the courts below that a six-year limitation period applies to a no-fault action against an

insurer; and the absence of a contract does not necessarily mean that actions against self-insurers

are statutory in nature, particularly here where a self-insurer’s obligation to provide no-fault

benefits is not fundamentally different from that of an insurer.

The dissent argued that public policy considerations and "fundamental fairness" militated against

having a different statute of limitation period for actions against a self-insurer and that settled

precedent confirmed no meaningful difference between insurers and self-insurers.

The dissent concluded that providing self-insurers with a shorter statute of limitations leads to

"arbitrary and inequitable" results:

Consider the scenario of a private automobile, insured through a policy of

insurance, colliding with a public bus, insured through a certificate of self-

insurance. The driver of the car and a passenger on the bus suffer relatively minor

injuries requiring medical treatment. They both seek payment for first-party

medical benefits from those obligated to pay. Under the majority’s holding, the

injured driver will have six years to file suit based on the failure to pay first-party

benefits, but the injured passenger will have only three years. By the mere fortuity

that a public bus company is "self-insured," the injured passenger is put at

significant disadvantage. From an injured claimant’s perspective, however, the

right to recover benefits from a self-insurer is no different than the equivalent right

under a contract of insurance issued to a private automobile owner. The rule now

Page 50: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

put forward by the majority raises the troubling appearance that an equally-

deserving claimant could be barred from recovering benefits merely because the

offending party effectively "bought" self-insured status (citations omitted).

Id. at ∗3.

CPLR 214(3) - Statute of limitations in declaratory judgment action determined by

examining substance of action; here three year statute of limitations for recovery of chattel

applied

Loscalzo v. 507-509 President St. Tenants Assn. Hous. Dev. Fund Corp., 153 A.D.3d 614, 57

N.Y.S.3d 427 (2d Dep’t 2017) (“The defendants established that the action was barred by the three-

year statute of limitations for recovery of a chattel (citation omitted). ‘In order to determine the

Statute of Limitations applicable to a particular declaratory judgment action, the court must

examine the substance of that action to identify the relationship out of which the claim arises and

the relief sought’ (citations omitted). ‘If the court determines that the underlying dispute can be or

could have been resolved through a form of action or proceeding for which a specific limitation

period is statutorily provided, that limitation period governs the declaratory judgment action’

(citations omitted). Here, the plaintiff seeks to recover a stock certificate representing shares in a

cooperative apartment corporation. An action to recover a stock certificate is governed by the

three-year statute of limitations for recovery of a chattel (citations omitted). ‘Shares of stock issued

in connection with cooperative apartments are personal property, not real property’ (citations

omitted).”).

CPLR 214(4) - Governs a de facto taking claim

Matter of South Richmond Bluebelt, Phase 3. 594 Assoc., Inc. (City of New York), 141 A.D.3d 672,

35 N.Y.S.3d 628 (2d Dep’t 2016) (“A de facto taking claim is governed by the three-year statute

of limitations applicable to claims to recover damages for injury to property set forth in CPLR

214(4) (citations omitted). Such a claim accrues at the time of the taking or, at the latest, when the

taking becomes apparent, regardless of the time of discovery (citations omitted). Here, the record

established that the headwall and overflow outlet were readily visible when the alleged taking

occurred in September 2005. Accordingly, the Supreme Court properly determined that the

claimant’s time to bring any claim for damages for the alleged de facto taking expired in September

2008, and so properly granted the City’s motion to strike the claimant’s appraisal report and

preclude it from offering any testimony concerning the report’s contents on that ground. Contrary

to the claimant’s contention, the continuous wrong doctrine is not applicable to its de facto taking

claim (citations omitted).”).

CPLR 214(6) - Cause of action against an architect for professional malpractice accrues

“upon the actual completion of the work to be performed and the consequent termination of

the professional relationship”

Willis Ave Dev., LLC v. Block 3400 Constr. Corp., 142 A.D.3d 993, 37 N.Y.S.3d 160 (2d Dep’t

2016) (“A cause of action to recover damages against an architect for professional malpractice is

Page 51: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

governed by a three-year statute of limitations (citations omitted). Such a cause of action accrues

‘upon the actual completion of the work to be performed and the consequent termination of the

professional relationship’ (citations omitted). However, ‘[t]he completion of an architect’s

obligations must be viewed in light of the particular circumstances of the case’ (citation omitted).

Here, Stanley and Lauria established, prima facie, that the professional malpractice causes of

action asserted against them accrued more than three years prior to commencement of the action

(citations omitted). Specifically, the causes of action against them accrued, at the latest, on

February 4, 2004, when the site plan was approved by the DOB (citations omitted). Thus, Stanley

and Lauria established their prima facie entitlement to judgment as a matter of law dismissing the

professional malpractice causes of action asserted against them on the ground that those causes of

action were time-barred. In opposition, the plaintiff failed to raise a triable issue of fact.”).

Wallace v. BSD-M Realty, LLC, 142 A.D.3d 701, 36 N.Y.S.3d 884 (2d Dep’t 2016) (“Here, BSD-

M failed to demonstrate its prima facie entitlement to judgment as a matter of law on its

counterclaim seeking to equitably estop the plaintiff from asserting title to the property. Although

BSD-M made a prima facie showing that the plaintiff knew of the allegedly forged deed

transferring title from her to Edward Wallace, unjustifiably delayed almost two years in

commencing this action from the time she was advised to do so by the Kings County District

Attorney’s Office, and intended her delay to be acted upon, and that BSD-M lacked knowledge of

the allegedly forged deed and prejudicially changed its position (citations omitted), BSD-M failed

to establish, prima facie, that its reliance upon the plaintiff’s conduct was justified (citations

omitted). BSD-M submitted evidence that it had no knowledge of the allegedly defective chain of

title and would not have purchased the property or expended almost $400,000 on renovations if it

had been aware of such issues. However, according to the recorded instruments, prior to the closing

of the sale of the property from Edward Wallace to BSD-M, Edward Wallace was no longer the

record owner of the property. Furthermore, on the date of the closing, the “confirmation deed”

purporting to confirm the conveyance from the plaintiff to Edward Wallace had not yet been

executed. BSD-M’s submissions, therefore, failed to eliminate all triable issues of fact as to

whether its reliance on the plaintiff’s conduct was justified (citations omitted). In any event, the

plaintiff raised a triable issue of fact in opposition by submitting evidence that BSD-M should have

been alerted to potential defects in the chain of title (citation omitted).”).

CPLR 214(6) - Continuous representation

Cordero v. Koval Retjig & Dean PLLC, 151 A.D.3d 587, 57 N.Y.S.3d 145 (1st Dep’t 2017) (“The

claim for malpractice accrued when defendants failed to timely file a notice of claim (citation

omitted) upon the City of New York and the New York City Department of Transportation after

plaintiff was allegedly injured in a fall from his motorcycle because he struck a defectively-placed

construction plate in the road (citation omitted). However, the evidence raised triable issues

whether the malpractice statute of limitations (citation omitted) was tolled under the continuous

representation doctrine. Mark Koval, an attorney formerly employed by defendant law firm, joined

another law firm at or about the time plaintiff’s personal injury case was transferred to such new

law firm. Defendants admit that plaintiff’s case was transferred to the new firm, and Koval does

not deny having worked on the case at either the old or new firm (citations omitted). Although

Koval claims he subsequently left the new firm and did not take plaintiff’s case with him, there is

Page 52: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

no evidence that plaintiff was ever informed of, or had objective notice of, Koval’s departure such

as to end the continuous representation circumstance and the tolling of the statute of limitations

(citations omitted).”).

CPLR 214(6) - Continuous representation doctrine is limited to ongoing representation

pertaining specifically to matter in which the attorney committed the alleged malpractice; it

is not applicable to a client's continuing general relationship with a lawyer.

Davis v. Cohen & Gresser, LLP, 160 A.D.3d 484, 74 N.Y.S.3d 534 (1st Dep’t 2018) (“The

documentary evidence establishes that following decedent's death, defendant did not represent the

estate in the Devine action. The retainer agreements executed with defendant after the decedent's

death were explicitly limited to representing the estate in other litigation and not the Devine

litigation. In addition, the evidence demonstrated that following decedent's passing defendant

never entered an appearance on the estate's behalf while other law firms were substituted as counsel

in the Devine action, made a motion to substitute the estate as plaintiff, and appeared on behalf of

the estate, and ultimately settled with the Devine parties in May 2014 (citation omitted). Further,

the continuous representation doctrine does not apply where there is only a vague ‘ongoing

representation’ (citation omitted). For the doctrine to apply, the representation must be specifically

related to the subject matter underlying the malpractice claim, and there must be a mutual

understanding of need for further services in connection with that same subject matter (citation

omitted). . . . The fact that defendant represented the estate in related matters is not sufficient to

establish continuous representation, as these matters were sufficiently distinct as to not be ‘part of

a continuing, interconnected representation’ (citations omitted). The continuous representation

doctrine is limited to ongoing representation ‘pertain[ing] specifically to the matter in which the

attorney committed the alleged malpractice’ and ‘is not applicable to a client's ... continuing

general relationship with a lawyer’ (citation omitted). Nor is the fact that defendant represented

decedent's son personally in the Devine action sufficient, as he is a separate client.”).

CPLR 214(6) -There is no indication of an ongoing, continuous, developing and dependent

relationship between the client and the attorney or mutual understanding of the need for

further representation on the specific subject matter underlying the malpractice claim

Knobel v. Wei Group, LLP, 160 A.D.3d 409, 70 N.Y.S.3d 839 (1st Dep’t 2018) (“The motion court

correctly determined that the legal malpractice claim is barred by the three-year statute of

limitations (citation omitted). No triable issue of fact exists as to whether the doctrine of continuous

representation tolled the statute of limitations. It is undisputed that on March 12, 2012, plaintiff

Steven M. Knobel sent defendant Eric Wei an email directing Wei ‘to cease all [ ] work’ and that

shortly thereafter, Knobel sent an email to the court indicating his desire to appear pro se. Contrary

to plaintiffs' contention, there is no indication of ‘an ongoing, continuous, developing and

dependent relationship between the client and the attorney’ or a ‘mutual understanding of the need

for further representation on the specific subject matter underlying the malpractice claim’ after

March 12, 2012 (citation omitted). Plaintiffs' argument that the billing invoices show that

defendants continued to represent them up until and after March 19, 2012 is unpersuasive. The

invoices in the record do not indicate that after March 12, 2012 defendants performed any

substantive legal work or provided any legal advice on the matters which plaintiffs allege

Page 53: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

defendants committed malpractice (citation omitted). Rather, the invoices show that plaintiffs were

billed for work pertaining to communications with the court, client, and subsequent counsel, which

did not toll the statute of limitations (citation omitted).”).

CPLR 214-a - Medical, dental or podiatric malpractice actions – two years and six months

CPLR 214-a

David L. Ferstendig, Bitter Split in Court of Appeals on Application of Continuous Treatment

Doctrine, 689 N.Y.S.L.D. 1-2 (2018)

Bitter Split in Court of Appeals on Application of Continuous Treatment Doctrine

Majority and Dissent Disagree As To Whether There Was Continuous Treatment, as

Opposed to a Continuous Diagnosis, Continuous Relationship, or a Chronic Condition

We have touched on the continuous treatment doctrine on several occasions, most recently in the

October 2017 edition of the Digest. Here, we deal with the decision in Lohnas v. Luzi, 30 N.Y.3d

752, 71 N.Y.S.3d 404, 94 N.E.3d 892 (2018), in which the Court of Appeals split bitterly on the

doctrine’s application.

Medical, dental, and podiatric malpractice actions are governed by a two-and-a-half-year statute

of limitations, running from the act, omission, or failure. CPLR 214-a. The continuous treatment

doctrine, however, defers accrual of the limitation period to the "last treatment where there is

continuous treatment for the same illness, injury or condition which gave rise to the said act,

omission or failure." Id. at ∗2.

In Lohnas, beginning in 1998, the plaintiff received treatment from the defendant for chronic

shoulder problems. In 1999, the plaintiff underwent surgery with the defendant, and over the

coming year she returned to the defendant for five post-operative visits. After a scheduled one year

post-surgery appointment, plaintiff did not return to the defendant until 19 months later, when she

experienced shoulder pain. A second surgery following injections occurred in January 2002; there

was a postoperative visit in April 2002; and a September 2003 doctor’s appointment after

plaintiff’s shoulder injury was aggravated. Thirty months then passed without any treatment.

Plaintiff returned in April 2006 because of continued pain, even though she "‘had gotten

discouraged with [defendant]’ but ultimately returned to him because defendant ‘was all [she]

had.’" Id. at ∗1. Following x-rays, defendant referred the plaintiff to his partner for a third surgery,

because he was no longer performing shoulder surgeries. Although plaintiff consulted with the

defendant’s partner, she instead began visiting a new orthopedic surgeon in July 2006.

The plaintiff commenced this action in September 2008, alleging that the defendant negligently

performed the 1999 surgery and failed to diagnose the problematic surgery, leading to continued

difficulties with her shoulder and the second surgery. The defendant moved for partial summary

judgment, seeking dismissal of all claims relating to alleged malpractice occurring before March

Page 54: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

2006 on statute of limitations grounds. The trial court denied the motion, finding issues of fact as

to whether the continuous treatment doctrine applied. The Appellate Division affirmed.

A narrow majority of the Court of Appeals (4-3) affirmed. It found that there were material issues

of fact as to whether the plaintiff and the defendant intended a continuous course of treatment. The

majority dismissed the defendant’s argument that the gaps between plaintiff’s visits and "the ‘as

needed’ basis for scheduling some of those appointments" negated the application of the doctrine.

Id. at ∗2. Instead, it stressed that the plaintiff’s visits to the defendant over a seven-year period for

her shoulder, which included two surgeries, were for the same related illness or injury. Plaintiff

accepted defendant’s referral for a third surgery. She did not seek a second opinion and continued

to see the defendant for care, notwithstanding the fact that she was "feeling discouraged" with

defendant’s treatment. Finally, the majority noted that with respect to the 30-month gap in

treatment,

we have previously held that a gap in treatment longer than the statute of limitations

"is not per se dispositive of defendant’s claim that the statute has run." To the extent

that lower courts have held to the contrary, those cases should not be followed

(citations omitted).

Id.

The dissent insisted that an essential element was missing in order to apply the continuous

treatment doctrine: continuing efforts by the doctor to treat a particular condition. Here, the

plaintiff was not undergoing continuous treatment; the defendant told the plaintiff to return "as

needed." During the 30- month gap, the plaintiff did not seek corrective treat ment from the

defendant. The dissent reviewed the public policy concerns behind the continuous treatment

doctrine: a doctor’s continuous treatment to correct a patient’s unresolved problems should not be

interrupted by the filing of a lawsuit, and a patient undergoing such treatment should not be forced

to sue her doctor in a timely fashion during treatment. The dissent felt that when there is no

continuous treatment, as it concluded was the case here, these policy considerations actually cut

the other way:

a plaintiff whose surgery and follow-up appointments have been completed, who

has been discharged from the hospital, returns to normal life activities, and still

suffers "terrible" pain, is on notice that something may be wrong, and is required

to take steps to determine whether she has a claim — including by consulting a

different doctor if necessary — and file it within the prescribed period.

Id. at ∗3.

The dissent maintained that the majority opinion undermined prior decisions of the Court, and

risked expanding the limitation period indefinitely,

so long as a plaintiff can establish that she suffers from the same condition or injury

and believed she had no other option than to continue to see the same physician.

Page 55: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

The decision also vitiates the doctrine’s timeliness requirement, which bars the toll

as a matter of law where, as here, a gap in treatment exceeds any reasonable

interpretation of timely (citation omitted).

Id.

It emphasized that the continuous treatment doctrine cannot apply if there is only a continuing

diagnosis or a continuous relationship between the doctor and the patient. It requires continuous

treatment. The dissent suggested that the majority decision could require a doctor, upon the

conclusion of treatment, to send a letter to the patient advising him or her never to return, so as to

commence the limitation period (a result the dissent characterizes as "ghastly"). This conclusion

was dismissed by the majority as "unwarranted." Moreover, the majority read the dissent as

unfairly obligating a plaintiff (particularly one with limited resources) to seek a second opinion,

and placing the burden on the plaintiff to "change doctors by a certain time or risk being blamed,

as a matter of law, for the extent of her injury." Id. at ∗2.

CPLR 214-a

David L. Ferstendig, Majority of Court of Appeals Holds That Wrongful Birth Claim Accrues Upon

Infant’s Birth, 687 N.Y.S.L.D. 1 (2018)

Majority of Court of Appeals Holds That Wrongful Birth Claim Accrues Upon Infant’s Birth

Dissent Believes Majority’s Interpretation Contravenes the Plain Meaning of the Statute

In the February 2016 edition of the Law Digest, we reported on the First Department’s decision in

B & F v. Reproductive Medicine Assocs. of New York, LLP, 136 A.D.3d 73 (1st Dep’t 2015),

holding that a wrongful birth cause of action accrues upon an infant’s birth. Recently, a majority

of the Court of Appeals affirmed. 2017 N.Y. Slip Op. 08712 (December 14, 2017).

The Court of Appeals was actually dealing with the appeal of two separate cases. However, their

fact patterns were essentially the same. They were medical malpractice actions, in which it was

alleged that the defendants failed to do adequate genetic screening of an egg donor in connection

with an in-vitro fertilization. The parents did not know that the egg donor was a carrier of Fragile

X, a chromosomal abnormality, which produces intellectual disabilities and other deficits,

particularly in males. Subsequently, one of the couples gave birth to an infant with the Fragile X

mutation. The other gave birth to twins, one of which had Fragile X.

The parents’ claim being asserted here was for "wrongful birth," seeking recovery for

their past and future "extraordinary financial obligations relating to the care" of that

child during his or her minority. To recover such damages on a wrongful birth cause

of action, "the parents must establish that malpractice by a defendant physician

deprived them of the opportunity to terminate the pregnancy within the legally

Page 56: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

permissible time period, or [as alleged here] that the child would not have been

conceived but for the defendant’s malpractice" (citations omitted).

136 A.D.3d at 77.

The issue at hand was whether the claims were timely and that hinged on when the cause of action

accrued. The defendants argued that the limitation period began to run when the malpractice was

allegedly committed (that is, the date the embryos were implanted). The plaintiffs countered that

the statute of limitations accrued on the date of birth.

A majority of the Court of Appeals agreed with the plaintiffs that "due to its unique features," the

wrongful birth cause of action accrued upon the birth of the child, and was thus timely. The Court

found that, until the alleged malpractice results in the birth of a child, there can be no extraordinary

expenses claim. Moreover, before birth it cannot be determined whether the plaintiffs will incur

such extraordinary expenses. The Court reasoned that

[d]ue to these unique circumstances, the cause of action accrues upon the birth of

an infant with a disability. This date appropriately balances the competing statute

of limitations policy concerns—it gives parents a reasonable opportunity to bring

suit while at the same time limiting claims in a manner that provides certainty and

predictability to medical professionals engaged in fertility treatment and prenatal

care (citations omitted).

2017 N.Y. Slip Op. 08712 at ∗4

Responding to the dissent, the majority asserted that nothing in the legislative history of CPLR

214-a— which governs the statute of limitations in medical malpractice actions and contains its

own exceptions, including the continuous treatment doctrine and the foreign object rule—

"suggests an intent to constrict judicial authority to otherwise define when a cause of action

accrues." Id. at ∗5.

It stressed that "this is not the typical medical malpractice" and that in the past it had similarly

"confronted a situation that falls outside the contours of CPLR 214-a, and reached a similar result."

Id. at ∗6. The majority was referencing the Court’s decision in LaBello v. Albany Med. Ctr. Hosp.,

85 N.Y.2d 701 (1995), where it was held that "an infant plaintiff’s medical malpractice cause of

action, premised on alleged injurious acts or omissions occurring prior to birth, accrues on the

earliest date the injured infant plaintiff could juridically assert the claim and sue for relief, that is,

the date of being born alive." Id. at 703.

The dissent, written by Judge Garcia, maintained that the majority created a third exception to

CPLR 214- a and its "date of birth" accrual contravened the statute’s explicit accrual from "the act,

omission or failure complained of"; CPLR 214-a did not merely codify the common law, but

instead was enacted to "‘constrict[] judicial expansiveness towards a more plaintiff friendly …

rule’" and, thus, the two exceptions in CPLR 214-a are not to be expanded; the legislature has

refused repeatedly to change the accrual date under CPLR 214-a in the nearly 40 years since the

Page 57: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

Court recognized a wrongful birth cause of action; and the Court’s decision in LaBello does not

justify its decision here, because in LaBello, the cause of action was being asserted on behalf of

an infant and thus could not accrue "before the infant acquired the recognized legal capacity to

sue." Here, the plaintiffs’ parents had the capacity to sue when the alleged malpractice occurred.

CPLR 214-a - Action timely commenced within 2½ years of the cessation of defendants'

continuous treatment of plaintiff's atrial fibrillation condition

Phillips v. Buffalo Heart Group, LLP, 160 A.D.3d 1495, 75 N.Y.S.3d 732 (4th Dep’t 2018) (“We

further agree with plaintiff that the record establishes that defendants provided continuous

treatment to plaintiff for a condition, i.e., atrial fibrillation, until January 2, 2013; the alleged

wrongful acts or omissions were related to that condition; and such treatment ‘gave rise to the . . .

act, omission or failure’ complained of (citations omitted). Indeed, the record establishes that the

alleged wrongful acts or omissions themselves ran continuously until January 2, 2013. We

therefore reject defendants' contention that the statute of limitations began to run at the time of the

first prescription of Pradaxa on January 10, 2011. We conclude that the court erred in granting the

motion inasmuch as this action was timely commenced within 2½ years of the cessation of

defendants' continuous treatment of plaintiff's atrial fibrillation condition (citations omitted). To

the extent that the decision of this Court in Patten v Hamburg OB/GYN Group, P.C. (citation

omitted) conflicts with our decision herein, it should no longer be followed.”).

CPLR 214-a - Continuous treatment doctrine – plaintiff did not anticipate further treatment

Jianfeng Jiang v. Xue Chao Wei, 151 A.D.3d 555, 54 N.Y.S.3d 278 (1st Dep’t 2017) (“We reject

plaintiff’s contention that both the November and May visits were part of a continuous course of

treatment such that the statutory period for filing a notice of claim was tolled (citation omitted).

Although it is clear that HHC anticipated further treatment by HHC at the time of discharge in

2010, it is likewise clear that plaintiff did not (citations omitted), given his failure to show up for

follow-up appointments (citations omitted) and his exclusive reliance on codefendant Xue Chao

Wei (an acupuncturist who plaintiff believed to be a licensed physician) for treatment during the

interim period (citations omitted). Plaintiff’s actions indicated an intention to discontinue his

relationship with HHC; his return visit must therefore be deemed a ‘renewal, rather than a

continuation, of the physician-patient relationship’ (citation omitted).”).

CPLR 214-a - Continuous treatment doctrine – issue of fact as to whether further treatment

was explicitly anticipated by both patient and doctor

Freely v. Donnenfeld, 150 A.D.3d 697, 54 N.Y.S.3d 66 (2d Dep’t 2017) (“In the present case,

Donnenfeld testified at his deposition that when he discussed treatment options with the plaintiff,

he advised the plaintiff that a new treatment process was available outside the United States and

that he was cautiously optimistic that, at some time in the foreseeable future, he could offer it to

the plaintiff in New York. The plaintiff, who was aware that the treatment process was the subject

Page 58: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

of a study aimed at obtaining FDA approval, testified at his deposition that he was waiting for the

new treatment process to become available. After being told, in November 2008, that his only

options were to wait for the new treatment or seek treatment outside the country, the plaintiff

returned to the defendants for treatment of the same condition on March 9, 2011, and, in fact,

received treatment for the same condition from the defendants continuing until December 2012.

Under these circumstances, there are questions of fact as to whether further treatment was

explicitly anticipated by both the defendants and the plaintiff after 2008, and whether, under the

particular circumstances of this case, the March 9, 2011, visit constituted a timely return visit

(citations omitted).”).

CPLR 214-a - Continuous treatment doctrine applied to doctor who left medical practice,

where plaintiff continued to be treated by doctors in that practice

Matthews v. Barrau, 150 A.D.3d 836, 55 N.Y.S.3d 282 (2d Dep’t 2017) (“With respect to failure-

to-diagnose cases, a physician ‘cannot escape liability under the continuous treatment doctrine

merely because of a failure to make a correct diagnosis as to the underlying condition, where [he

or she] treated the patient continuously over the relevant time period for symptoms that are

ultimately traced to that condition’ (citations omitted). The continuous treatment doctrine may be

applied to a physician who has left a medical practice by imputing to him or her the continued

treatment provided by subsequent treating physicians in that practice (citations omitted).”).

CPLR 214-a - Continuous treatment doctrine applies where prescriptions being issued and

refilled by doctor and there is continuing relationship with the patient

Murray v. Charap, 150 A.D.3d 752, 54 N.Y.S.3d 28 (2d Dep’t 2017) (“According to the defendant,

during the relevant period prior to May 22, 2001, he prescribed and refilled the plaintiff’s

prescriptions for cholesterol-lowering medications, told the plaintiff to resume his diet, explained

to the plaintiff that he had elevated cholesterol and that it was a risk for heart disease, and had a

conversation with the plaintiff to make sure he was taking his medication. ‘The continuous

treatment rule applies to the period if prescriptions are being issued by the doctor where there is a

continuing relationship’ with the patient’ (citations omitted). Therefore, the plaintiffs raised a

question of fact as to whether their claims with respect to treatment prior to May 22, 2001, were

barred by the statute of limitations.”).

CPLR 214-a - Continuous treatment doctrine does not apply to mother’s derivative claim

Reeder v. Health Ins. Plan of Greater N.Y., 146 A.D.3d 996, 46 N.Y.S.3d 148 (2d Dep’t 2017)

(Continuous treatment toll does not extend to mother’s derivative claim. “The continuous

treatment toll is personal to the child and is not available to extend the time by which the plaintiff

was required to assert her derivative claim. Accordingly, the Supreme Court properly granted those

branches of the motions of Solaiman and BMG which were for summary judgment dismissing the

plaintiff’s derivative claims against them (citations omitted).”).

Page 59: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

CPLR 214-a – “These root canal therapies constituted isolated and discrete procedures, and

as such, the continuous treatment doctrine does not apply to the treatment of these teeth to

toll the statute of limitations”

Greenstein v. Sol S. Stolzenberg, D.M.D., P.C., 156 A.D.3d 465, 64 N.Y.S.3d 884 (1st Dep’t 2017)

(“Dismissal of the complaint as against Berman was proper since the alleged malpractice occurred

in 2003 and 2007, and the action was not commenced until January 2016, which was well beyond

the applicable statute of limitations (citation omitted). The record establishes that Berman

performed root canal work on two separate occasions to address plaintiff Linda Greenstein’s

emergent pain issues. These root canal therapies constituted isolated and discrete procedures, and

as such, the continuous treatment doctrine does not apply to the treatment of these teeth to toll the

statute of limitations (citation omitted).”).

CPLR 214-a / 2221 / 3212(a)

David L. Ferstendig, First Department Splits on Application of Continuous Treatment Doctrine,

683 N.Y.S.L.D. 2-4 (2017).

We initially treat Lewis v. Rutkovsky, 153 A.D.3d 450 (1st Dep’t 2017), for its analysis of the

continuous treatment doctrine. But the case also touches on other current important issues,

including my nemesis (that’s right, it’s Brill time again), discussed below.

CPLR 214-a provides for a two-and-a-half-year statute of limitation in medical, dental, or podiatric

malpractice actions, running from the act, omission, or failure. The statute contains two exceptions,

the foreign object rule (dealt with, for example, in edition 657 of the Digest) and the continuous

treatment doctrine. With respect to the latter, it provides that the limitation period will not begin

to accrue until the “last treatment where there is continuous treatment for the same illness, injury

or condition which gave rise to the said act, omission or failure.” There has been much litigation

in this area, and courts have generally strictly construed the language, sometimes resulting in rather

inequitable results. For example, it has been held that the failure to establish a course of treatment

cannot satisfy the continuous treatment doctrine. Thus, in Young v. New York City of Health &

Hosps. Corp., 91 N.Y.2d 291 (1998), the continuous treatment doctrine was not applied to toll the

filing of a 90-day notice of claim, finding that the plaintiff’s allegations that the defendants failed

to timely diagnose and treat her cancerous breast condition were “nothing more than defendants’

failure to timely diagnose and establish a course of treatment for her breast condition, omissions

that do not amount to a ‘course of treatment.’” Id. at 297.

In Lewis, a medical malpractice action, the plaintiff alleged that the defendants failed to detect,

diagnose, and treat a benign brain tumor (meningioma) and ignored her repeated complaints of

symptoms, including migraine headaches and blurred vision. Eventually, the plaintiff underwent

a left frontal parasagittal craniotomy and suffered vision loss.

With respect to defendants’ summary judgment motions on statute of limitations grounds, the

question was whether there was a continuous course of treatment. A majority of the First

Page 60: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

Department found there to be an issue of a fact. It focused on the treatment provided for plaintiff’s

“recurring and sometimes severe headaches—that were traceable to plaintiff’s meningioma,”

which continued until late 2007. Lewis, 153 A.D.3d at 454. The majority rejected the dissent’s

argument “that there was no evidence of regular appointments or ongoing treatment for plaintiff’s

headache-related complaints.” Id. at 455. It stressed that the law does not require that a plaintiff

attend “regular” appointments

for the sole purpose of treating the allegedly misdiagnosed condition. Rather, the

inquiry centers on whether the treated symptoms indicated the presence of the

condition that was not properly diagnosed — here, a meningioma that gave rise to

plaintiff’s severe headaches and partial loss of vision, both of which Dr. Rutkovsky

undertook to treat by, among other things, prescribing reading glasses (citations

omitted).

Id.

The dissent pointed out that some of the plaintiff’s visits to the doctor were for routine annual

checkups; that there were gaps in treatment (for example, between 1999 and 2004); that there was

no evidence during the plaintiff’s 2004 and 2006 visits that there was an explicit anticipation by

both doctor and patient of further treatment; and that “it appear[ed] plaintiff’s complaints of

headaches were isolated and not part of a continuous course of treatment.” Id. at 458.

In sum, plaintiff complained of headaches and/or vision problems on five separate

occasions with long gaps in between during approximately 30 visits to Dr.

Rutkovsky and over a period of close to a decade. Clearly, this set of circumstances

cannot support a continuous course of treatment for plaintiff’s sporadic complaints

of headache.

Id.

The dissent maintained that plaintiff’s equivocal self-serving deposition testimony, which was

contradicted by documentary evidence, did not create an issue of fact -

Here, plaintiff’s bare, equivocal statements of the times she saw Dr. Rutkovsky

during this time period concerning complaints of headache, contradicted by the

medical records, is insufficient to raise a factual issue concerning continuous

treatment. Moreover, plaintiff does not connect these purported visits between

January and June 2007 to her documented visit in September 2007, or otherwise

raise an issue regarding a continuing course of treatment for headaches.

Id. at 459.

My Good Friend, Mr. Brill (CPLR 3212)

Page 61: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

A preliminary issue in Lewis was the timeliness of defendants’ summary judgment motions. The

relevant PC order provided that: “Motions for Summary Judgment and/or other dispositive

motions shall be made by order to show cause no later than 60 (sixty) days from the filing of the

Note of Issue, unless the Court directs otherwise.” Apparently, the defendants filed their motions

via order to show cause with the clerk’s office in a timely fashion, but because of Winter Storm

Juno the courts closed early and were closed the following day. Thus, the orders were not signed

until two to three days after the summary judgment motion deadline. Notwithstanding these

circumstances, the trial court found the motions to be untimely, because “neither movant addressed

the issue of good cause.” Id. at 452–53. As the Appellate Division noted, in reversing on this issue:

No party disputes that, on the day the orders would usually have been processed

and timely signed, inclement weather from Winter Storm Juno created a “state of

emergency” and caused the early closure of the courts; indeed, because of the storm,

the Governor signed an executive order suspending legal deadlines.

Id. at 453.

Moreover, the Appellate Division expressly found that “even if we were to find that the orders

were untimely” the weather conditions and court closing provided “good cause” for the minimal

delay. Id. at 454.

This preliminary issue was ultimately resolved in a favorable manner. However, it again resulted

in a waste of resources, time, and money because of the trial court’s strict adherence to the well-

intended decision in Brill v. City of New York, 2 N.Y.3d 648 (2004), with respect to a very short

delay beyond the control of the parties. The orders to show cause were delivered to the court in a

timely fashion, and there was a weather emergency resulting in court closings and an executive

order suspending legal deadlines. That should have been enough for the trial court to go forward

and decide the motions on the merits. For those of you unfamiliar with my rant on Brill (“Take a

Chill Brill”), I refer you to edition 660 at your peril.

Appeal of Order Denying Leave to Reargue (CPLR 2221)

Practitioners presented with an unfavorable decision sometimes move to reargue. Holding off on

an appeal until the reargument motion is decided, rather than appealing from the original order,

presents certain dangers. While the denial or grant of a motion for leave to renew is appealable,

only an order granting a motion to reargue is appealable. What sometimes becomes confusing

when reading the case law in this area is what is meant by the denial of a motion to reargue. The

nomenclature is important. CPLR 2221 talks in terms of a motion for leave to renew or to reargue.

That is because these motions are really a two step-process: will the court agree to hear the motion

in the first place (and thus grant leave) and, if so, will the court adhere to or reverse its original

order? Only an order denying leave to reargue is non-appealable. If the court grants reargument,

but adheres to its original decision, that order is an appealable paper. Some decisions, however,

are not crystal clear as to what type of “denial” is involved. In Lewis, the court found that the order

determining the defendants’ motion to reargue was an appealable paper:

Page 62: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

Here, however, although the motion court purported to deny the motion to reargue,

it nonetheless considered the merits of defendants’ argument that the inclement

weather on the motion’s due date provided good cause for the delay. As a result,

the court, in effect, granted reargument, then adhered to the original decision

(citation omitted).

Lewis, 153 A.D.3d at 453.

Regardless, good practice is always to serve and file your notice of appeal (and any supplementary

papers required by the appellate court) from the original order in a timely fashion.

If leave to reargue is denied, you are protected. If leave is granted, and the court adheres to its

original decision, you should file another notice of appeal from the order determining the

reargument motion. In the rare instance where the motion to reargue is granted, thereby vitiating

the need for the original appeal, all you have wasted is the limited amount of time and effort in

protecting your rights with respect to the original order. Not a stiff price to pay, especially taking

into account the unlikelihood that you will be successful on the motion to reargue. It also will

prevent sleepless nights and perhaps a call to your insurance carrier!

CPLR 214-a - Foreign object rule did not apply to capsule camera

Leace v. Kohlroser, 151 A.D.3d 707, 55 N.Y.S.3d 434 (2d Dep’t 2017) (“The capsule camera at

issue herein was used diagnostically to visualize the condition of the plaintiff’s intestines. It was

not used or even introduced into the plaintiff’s body in the course of a surgical procedure. Rather,

the capsule camera was knowingly and intentionally swallowed by the plaintiff with the

expectation that it would travel through her digestive system until eliminated in the regular course

of digestion. Thus, the malpractice alleged against the moving defendants, the failure to recognize

from the 2009 CT scan that the observed metallic object was a retained endoscopic capsule camera,

and to advise the plaintiff of such, ‘is most logically classified as one involving misdiagnosis—a

category for which the benefits of the ‘foreign object’ discovery rule have routinely been denied’

(citations omitted). Accordingly, the Supreme Court correctly rejected the plaintiff’s argument that

the statute of limitations was tolled by the foreign object discovery rule so as to render the cause

of action alleging malpractice timely.”).

CPLR 214-c- Discovery statute of limitations

CPLR 214-c – Toxic torts- because plaintiffs claim no additional damage to their facility

since asbestos was introduced, there were no “latent effects”

All Craft Fabricators, Inc. v. Syska Hennessy Group, Inc., 144 A.D.3d 435, 39 N.Y.S.3d 783 (1st

Dep’t 2016) (“Because the parties have no contractual relationship with each other, the claim must

be viewed in terms of simple negligence (citation omitted), with accrual occurring within three

years of the date of injury (citation omitted), rather than a claim for professional negligence, which

Page 63: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

generally accrues upon the completion of the work at issue (citation omitted). We reject

defendant’s position that the date of injury was in January 2012 when the asbestos-laden doors and

panels were delivered to the facility. Until plaintiffs’ personnel actually unsealed the wooden

crates that the doors and panels were encased in and cut into the material, any contamination of

plaintiffs’ facility had not yet occurred. Nevertheless, plaintiffs’ contention that the date of injury

was, at the earliest, May 29, 2012, exactly three years before they commenced the action, when

they first noticed what they believed to be asbestos, is unavailing. ‘[T]he damage that [plaintiffs]

are seeking to undo’ is not the fact that they discovered asbestos, but the fact of its incorporation

in their buildings’ (citation omitted). The record makes clear that, while plaintiffs may have first

noticed asbestos on May 29, they exposed the facility to it earlier that month. CPLR 214-c does

not avail plaintiffs. As they claim no additional damage to their facility since the asbestos was

introduced, it cannot be said that the injury they sustained resulted from the latent effects of

exposure to asbestos (citation omitted).”).

CPLR 214-c - Statute runs from date condition or symptom is discovered or reasonably

should have been discovered, not the discovery of the specific cause of the condition or

symptom

Haynes v. Williams, 2018 NY Slip Op 04626 (3d Dep’t 2018) (“We find that defendants'

submissions ‘were sufficient to demonstrate that plaintiff was cognizant of [his] claimed injuries,

or, at a minimum, reasonably should have been, such that the action is barred by the statute of

limitations’ (citation omitted). Here, if we accept that lead was the causative harmful substance,

plaintiff has been aware of his injuries since early childhood, when they were first evident, and

then as they continued throughout his school years and to the present day. Plaintiff argues that the

statute of limitations did not commence until July 2013 when, after receiving a solicitation letter

from his attorney, he became aware of his exposure to lead as a young child. This argument is

without merit as ‘the statute runs from the date the condition or symptom is discovered or

reasonably should have been discovered, not the discovery of the specific cause of the condition

or symptom’ (citations omitted). Consequently, defendants' motions were properly granted.”).

CPLR 214-c - Discovery occurs when, based upon an objective level of awareness of the

dangers and consequences of the particular substance, the injured party discovers the

primary condition on which the claim is based

Sullivan v. Keyspan Corp., 155 A.D.3d 804, 64 N.Y.S.3d 82 (2d Dep’t 2017) (“‘For purposes of

CPLR 214-c, discovery occurs when, based upon an objective level of awareness of the dangers

and consequences of the particular substance, the injured party discovers the primary condition on

which the claim is based’ (citations omitted). Here, the defendants demonstrated that they

undertook extensive efforts beginning in 1999 to inform and engage with property owners

potentially affected by the contamination and remediation. These efforts included, among other

things, door-to-door canvassing, mailing a survey in 2002 inquiring about observable effects of

contamination on properties, testing properties for contaminant intrusion, and mailing periodic

newsletters and fact sheets detailing the nature and extent of the contamination and providing

updates on the remediation. The defendants also held dozens of public meetings, which they

advertised in advance in local media and in direct mailers, and conducted highly visible

Page 64: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

remediation work. The defendants undertook these actions in conjunction with and under the

supervision of the New York State Department of Environmental Conservation in accordance with

an order on consent dated September 30, 1999. Although the level of the defendants’ contact with

the appellants varied, the defendants satisfied their burden of establishing, prima face, that each of

the appellants had an objective level of awareness of the dangers and consequences of the

contamination sufficient to place them on notice of the primary condition on which their claims

are based (citation omitted).”).

CPLR 215 - One year statute of limitations

CPLR 215 - Counterclaim not barred by one year statute of limitations, but was governed

by continuing tort doctrine

Estreicher v. Oner, 148 A.D.3d 867, 49 N.Y.S.3d 530 (2d Dep’t 2017) (“Contrary to the plaintiff’s

contention, the Supreme Court properly concluded that so much of the defendant’s third

counterclaim as was based on conduct occurring prior to September 29, 2013, was not barred by

the one-year statute of limitations (see CPLR 215), and that it was instead governed by the

continuing tort doctrine, which permits claims based on ‘wrongful conduct occurring more than

one year prior to commencement of the action, so long as the final actionable event occurred within

one year of the suit’ (citations omitted). The counterclaim was supported by factual allegations

that the plaintiff engaged in a continuing and concerted campaign of harassment and intimidation

of the defendant that progressed from, among other things, calling the defendant, his family, and

guests ethnic and racial epithets and throwing items onto his property to eventually making threats

of violence, making false criminal accusations, committing assault and battery against the

defendant, and continuing to engage in threatening and intimidating conduct nearly two months

after the physical confrontation that is the subject of the plaintiff’s complaint (citations omitted).

The final actionable event, allegedly occurring in November 2013, fell within one year of the

defendant’s service of the verified answer with counterclaims (citations omitted).”).

CPLR 217- Four month statute of limitations, “[u]nless a shorter time is provided in the law

authorizing the proceeding”

CPLR 217 - Accrual of claim

New York Ins. Assn., Inc. v. State of New York, 145 A.D.3d 80, 41 N.Y.S.3d 149 (3d Dep’t 2016)

(“Plaintiffs’ first cause of action attacks the manner in which the Director of the Budget and

defendant Superintendent of Financial Services (and previously the Superintendent of Insurance)

implemented Insurance Law former § 332 and Financial Services Law § 206 — in essence,

whether they acted arbitrarily and capriciously or in excess of their authority by including the costs

of the sub-allocated programs in the annual assessments collected during fiscal years 2008-2009

through 2012-2013 — and, therefore, could have been advanced in a CPLR article 78 proceeding

(citations omitted). Accordingly, Supreme Court properly applied a four-month statute of

Page 65: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

limitations to plaintiffs’ first cause of action (citation omitted), which began to run at the time that

each quarterly assessment was levied and not at the time of the ‘true-up’ assessment (citations

omitted), to determine that only so much of the first cause of action as challenged the quarterly

assessment levied on November 5, 2009 was timely. Interpreted broadly, plaintiffs’ second cause

of action challenges the constitutionality of Insurance Law former § 332 and Financial Services

Law § 206, a challenge which is inappropriate for review in a CPLR article 78 proceeding

(citations omitted). Thus, Supreme Court should have applied the residual six-year statute of

limitations to plaintiffs’ second cause of action (citation omitted). Applying the appropriate statute

of limitations, which began to run upon the enactment of the challenged statutory provisions

(citations omitted), only that portion of the second cause of action alleging that Financial Services

Law § 206 unlawfully delegated to the Department the power to tax is timely (see L 2011, ch 62,

part A, § 1).”).

Pebble Hill Bldg. Corp. v. Madelik, 143 A.D.3d 684, 38 N.Y.S.3d 433 (2d Dep’t 2016) (“The

Supreme Court correctly concluded that, although brought as a declaratory judgment action, the

true nature of the instant matter is directed toward review of an agency determination and,

therefore, is governed by CPLR article 78 (citations omitted). The plaintiff, in effect, seeks review

of a resolution adopted by the Planning Board of the Town of Huntington dated June 17, 2009,

requiring the plaintiff, as conditions of final approval of a subdivision map, to both reserve a

portion of the property as a conservation area and pay a recreation fee. Since the resolution was

filed with the office of the Town Clerk on June 22, 2009, this action, commenced in December

2010, was time-barred (citations omitted).”).

Matter of Tirado v. Board of Trustees of N.Y. City Fire Dept. Pension Fund, Subchapter 2, 142

A.D.3d 709, 37 N.Y.S.3d 295 (2d Dep’t 2016) (“Contrary to the appellants’ contention, the

proceeding was timely commenced within four months of the October 2, 2012, determination

denying her request for prospective surviving spouse pension benefits (citations omitted). The

October 2, 2012, letter was the first and only unambiguously final decision sent to the petitioner

regarding her claim for surviving spouse pension benefits (citations omitted). Although the

petitioner was notified in 2003 that pension benefits would commence being paid to the minor

children, that notification did not advise the petitioner of the Fund’s current position that, once

such payments to the children began, they could never revert back to the petitioner even if she

obtained vacatur of the default divorce judgment, nor did it address the petitioner’s claim at all.”).

CPLR 217 - Four-month statute of limitations begins to run when the determination to be

reviewed becomes final and binding upon the petitioner

Matter of Singleton v. New York State Off. of Children & Family Servs., 161 A.D.3d 1357 (3d

Dep’t 2018) (“The parties agree that petitioner's challenge to the classification of his injury ‘is

subject to the four-month statute of limitations set forth by CPLR 217 (1), which begins to run

when the determination to be reviewed becomes final and binding upon the petitioner. A

determination is final and binding when two requirements are satisfied: first, the agency must have

reached a definitive position on the issue that inflicts actual, concrete injury and second, the injury

inflicted may not be prevented or significantly ameliorated by further administrative action or by

steps available to the complaining party’ (citations omitted). Supreme Court properly found that

Page 66: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

the determination that petitioner's injury was not assault-related became binding upon him when

he received the letter dated August 25, 2015, because it established the duration of leave to which

he was entitled. Moreover, there was no possibility that subsequent agency action would prevent

or ameliorate the harm claimed by petitioner inasmuch as the statutory and regulatory scheme at

issue did not provide petitioner with any procedure for challenging that determination.”).

CPLR 217 - Where a party would expect to receive notification of a determination, but has

not, the statute of limitations begins to run when the party knows, or should have known,

that it was aggrieved by the determination

Valyrakis v. 346 W. 48th St. Hous. Dev. Fund Corp., 161 A.D.3d 404 (1st Dep’t 2018) (“[T]he

first cause of action is barred by the statute of limitations. A proceeding challenging an action

taken by a cooperative corporation must be commenced within four months after the action is final

(CPLR 217[1]). ‘In circumstances where a party would expect to receive notification of a

determination, but has not, the Statute of Limitations begins to run when the party knows, or should

have known, that it was aggrieved by the determination’ (citation omitted).”).

CPLR 217 - No final determination, no exhaustion of administrative remedies, no actual,

concrete injury

David L. Ferstendig, Once, Twice, Three Times a Maybe, 677 N.Y.S.L.D. 2 (2017).

The issue in Matter of East Ramapo Cent. Sch. Dist. v. King, 2017 N.Y. Slip Op. 02360 (March

28, 2017), related to a challenge brought by a local educational agency, the plaintiff East Ramapo

Central School District (“the District”), to a determination of the State Education Department, a

state education agency (“the State”). The State regulates the District’s compliance with the

requirements of the Individuals with Disabilities Education Act (the “IDEA”).

To receive IDEA funding, the State must establish policies and procedures to assure that students

with disabilities receive “a free appropriate public education in the least restrictive environment

and an individualized education program tailored to their unique needs, and that these students and

their parents are afforded certain procedural safeguards.” Matter of East Ramapo Cent. Sch. Dist.

v. King, 130 A.D.3d 19, 21 (3d Dep’t 2015). The District’s receipt of IDEA funding depends on

its annual submission of a plan that assures that the District is complying with the State Education

Department’s policies and procedures. Here, in reviewing various student records, the State

determined that the District’s dispute resolution practices violated state and federal law and

directed the District to take corrective measures. The District brought this Article 78 proceeding

challenging the State’s determination on the ground that its findings were unsupported by

substantial evidence and were based on an erroneous construction of the IDEA.

The trial court dismissed the petition on the merits. The Appellate Division affirmed, but on the

ground that Congress did not provide the District with a private right of action under the IDEA to

challenge the State’s determination. The court found the IDEA did not expressly confer such a

private right of action and there was no evidence that Congress intended to create such a right.

Page 67: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

The Court of Appeals affirmed, but yet again on a different ground. The Court did not decide the

issue as to whether the District had a private right of action. Instead, it assumed it did, but found

that the State had not made a final determination, that the District had not established that it had

exhausted its administrative remedies, and that the District was “unable to articulate any actual,

concrete injury that it has suffered at this juncture.” 2017 N.Y. Slip Op. 02360 at ∗2.The Court

noted that although the State had advised the District that its failure to comply could result in

further enforcement actions, including the withholding of funds, the State had not made a final

decision to withhold funds.

So, after three unsuccessful attempts, the District is left with a ruling that it cannot bring the

proceeding at this point and with no assurances that if and when those impediments to finality are

removed, it has a private right of action under the IDEA.

CPLR 217/ Article 78 - Petitioner’s request for reconsideration did not toll the statute of

limitations

Matter of Mercado v. Rodriguez, 153 A.D.3d 1534, 60 N.Y.S.3d 699 (3d Dep’t 2017) (“Inasmuch

as petitioner did not commence the instant CPLR article 78 proceeding within four months of

receiving the June 2015 administrative determination as required, Supreme Court properly

dismissed this proceeding as time-barred by the statute of limitations (citations omitted). Further,

contrary to his contention, petitioner’s request for reconsideration did not toll or revive the statute

of limitations (citations omitted). Accordingly, the merits of petitioner’s claims are not before

us.”).

CPLR 217 - City’s letter reiterating earlier position did not serve as basis to extend statute

of limitations

St. John’s Riverside Hosp. v. City of Yonkers, 151 A.D.3d 786, 58 N.Y.S.3d 51 (2d Dep’t 2017)

(“Here, the City established that, although the hospital, through UtiliSave, was notified by letter

dated September 20, 2013, of its determination rejecting the hospital’s request for an adjustment

of its water bills for services rendered prior to December 30, 2010, the hospital failed to commence

this proceeding until October 10, 2014, thereby rendering this proceeding time-barred under the

four-month statute of limitations applicable for CPLR article 78 proceedings (citation omitted).

Consequently, the City established its prima facie entitlement to judgment as a matter of law

dismissing the petition as time-barred (citations omitted). In opposition, the hospital failed to raise

a triable issue of fact (citation omitted). The City’s issuance of a check to the hospital related to

reimbursement, although subsequent to its September 20, 2013, determination, was in accordance

with its determination that it would only reimburse the hospital for overbilling relating to services

provided after December 30, 2010. Further, the City’s June 2014 correspondence merely reiterated

its earlier position set forth in the September 20, 2013, letter and did not serve as a basis to extend

Page 68: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

the statute of limitations or render the September 20, 2013, determination nonfinal (citations

omitted).”).

CPLR 217 - But limitation period extended where agency conducts fresh and complete

examination of the matter based on newly presented evidence

Matter of Kaneev v. City of New York Envtl. Control Bd., 149 A.D.3d 742, 52 N.Y.S.3d 107 (2d

Dep’t 2017) (“Generally, a request for discretionary consideration does not serve to extend the

statute of limitations or change a final determination into a nonfinal one (citation omitted).

‘However, where the agency conducts a fresh and complete examination of the matter based on

newly presented evidence,’ an aggrieved party may seek review in a CPLR article 78 proceeding

commenced within four months of the new determination’ (citations omitted). Here, the ECB

conducted a fresh and complete examination of the matter in response to the petitioner’s October

21, 2013, letter, in which he sought dismissal of the March NOVs due to the ECB’s dismissal of

the June NOV. In its responsive letter to the petitioner dated November 8, 2013, the ECB expressly

stated that the rejection of the appeal would become final on November 18, 2013. Thus, contrary

to the Supreme Court’s finding that the ECB’s determination became final on September 4, 2008,

it actually became final on November 18, 2013. Nonetheless, the proceeding was time-barred since

the petitioner commenced this proceeding on April 8, 2014, more than four months after the

determination became final on November 18, 2013.”).

CPLR 217 - Constructive notice test

Matter of Knavel v. West Seneca Cent. Sch. Dist., 149 A.D.3d 1614, 53 N.Y.S.3d 731 (4th Dep’t

2017) (“Initially, we and our dissenting colleagues agree that the ‘determination to be reviewed’

in this proceeding is the decision embodied in the undated letter sent on June 5, 2014 (citation

omitted)…. Respondents contend that the date of mailing, rather than the date of receipt by

petitioners, of the undated letter to petitioners notifying them of the discontinuance of their

participation in the District’s health insurance plan, was the event which began the running of the

statute of limitations. In order to apply the date of mailing to the analysis, which involves a

constructive notice test, it is necessary to make the legal conclusion, as a threshold matter, that the

determination at issue was ‘quasi-legislative’ in nature (citations omitted). Respondents contend

that the undated letter is properly characterized as a ‘quasi-legislative’ decision, that actual notice

is not required, and that constructive notice by mailing was sufficient to commence the four-month

limitations period . . . We thus conclude that respondents failed to meet their burden of establishing

that the challenged determination was ‘quasi-legislative’ and, therefore, that the ‘readily

ascertainable’ constructive notice test should be applied herein (citations omitted).”).

CPLR 217 - Unreasonable delay in making demand

Matter of Granto v. City of Niagara Falls, 148 A.D.3d 1694, 51 N.Y.S.3d 714 (4th Dep’t 2017)

(“[T]he four-month limitations period of CPLR article 78 proceedings has been treat[ed] . . . as a

measure of permissible delay in the making of the demand’ ‘ (citation omitted). Here, petitioners

asserted that they became aware that they could be designated detectives under Civil Service Law

§ 58 (4) (c) (ii) when Supreme Court granted such relief to similarly-situated members of the

Page 69: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

NFPD in September 2012 (citation omitted). Petitioners’ demand, therefore, should have been

made no later than January 2013, but petitioners did not make their demand to be designated as

detectives until March 2014, which was well beyond four months after they knew or should have

known of the facts that provided them a clear right to relief (citation omitted). Contrary to

petitioners’ contention in appeal No. 1 that they had a reasonable excuse for the delay in making

the demand, there was nothing about the pendency of the Sykes proceeding that should have led

petitioners to conclude that their own proceeding did not have merit. In addition, the self-serving

affidavit submitted by petitioners in opposition to the motion, in which they claimed that they had

feared retaliation if they demanded designation as detectives, is based solely upon conclusory and

speculative allegations, and thus does not substantiate their assertion that they had a reasonable

excuse for the delay. We therefore conclude that ‘it was [well] within the court’s discretion to

determine that petitioner[s] unreasonably delayed in making the demand’ (citations omitted).”).

CPLR 217 - Different statute of limitations applied to different causes of action

New York Ins. Assn., Inc. v. State of New York, 145 A.D.3d 80, 41 N.Y.S.3d 149 (3d Dep’t 2016)

(“Plaintiffs’ first cause of action attacks the manner in which the Director of the Budget and

defendant Superintendent of Financial Services (and previously the Superintendent of Insurance)

implemented Insurance Law former § 332 and Financial Services Law § 206 — in essence,

whether they acted arbitrarily and capriciously or in excess of their authority by including the costs

of the sub-allocated programs in the annual assessments collected during fiscal years 2008-2009

through 2012-2013 — and, therefore, could have been advanced in a CPLR article 78 proceeding

(citations omitted). Accordingly, Supreme Court properly applied a four-month statute of

limitations to plaintiffs’ first cause of action (citation omitted), which began to run at the time that

each quarterly assessment was levied and not at the time of the ‘true-up’ assessment (citations

omitted), to determine that only so much of the first cause of action as challenged the quarterly

assessment levied on November 5, 2009 was timely. Interpreted broadly, plaintiffs’ second cause

of action challenges the constitutionality of Insurance Law former § 332 and Financial Services

Law § 206, a challenge which is inappropriate for review in a CPLR article 78 proceeding

(citations omitted). Thus, Supreme Court should have applied the residual six-year statute of

limitations to plaintiffs’ second cause of action (citation omitted). Applying the appropriate statute

of limitations, which began to run upon the enactment of the challenged statutory provisions

(citations omitted), only that portion of the second cause of action alleging that Financial Services

Law § 206 unlawfully delegated to the Department the power to tax is timely (see L 2011, ch 62,

part A, § 1).”).

CPLR 217 - Action untimely filed more than 4 months after resolution was filed

Pebble Hill Bldg. Corp. v. Madelik, 143 A.D.3d 684, 38 N.Y.S.3d 433 (2d Dep’t 2016) (“The

Supreme Court correctly concluded that, although brought as a declaratory judgment action, the

true nature of the instant matter is directed toward review of an agency determination and,

therefore, is governed by CPLR article 78 (citations omitted). The plaintiff, in effect, seeks review

of a resolution adopted by the Planning Board of the Town of Huntington dated June 17, 2009,

requiring the plaintiff, as conditions of final approval of a subdivision map, to both reserve a

portion of the property as a conservation area and pay a recreation fee. Since the resolution was

Page 70: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

filed with the office of the Town Clerk on June 22, 2009, this action, commenced in December

2010, was time-barred (citations omitted).”).

CPLR 217 - Letter denying request for prospective surviving spouse pension benefits was

first and only unambiguously final decision sent to petitioner

Matter of Tirado v. Board of Trustees of N.Y. City Fire Dept. Pension Fund, Subchapter 2, 142

A.D.3d 709, 37 N.Y.S.3d 295 (2d Dep’t 2016) (“Contrary to the appellants’ contention, the

proceeding was timely commenced within four months of the October 2, 2012, determination

denying her request for prospective surviving spouse pension benefits (citations omitted). The

October 2, 2012, letter was the first and only unambiguously final decision sent to the petitioner

regarding her claim for surviving spouse pension benefits (citations omitted). Although the

petitioner was notified in 2003 that pension benefits would commence being paid to the minor

children, that notification did not advise the petitioner of the Fund’s current position that, once

such payments to the children began, they could never revert back to the petitioner even if she

obtained vacatur of the default divorce judgment, nor did it address the petitioner’s claim at all.”).

CPLR 217- Academic determination for which the plaintiff should have sought review in the

context of a proceeding pursuant to CPLR article 78

Hernandez v. Teachers Coll., Columbia Univ., 153 A.D.3d 1241, 61 N.Y.S.3d 285 (2d Dep’t 2017)

(“Here, the plaintiff’s complaint challenged her dismissal from Teachers College following her

receipt of a failing grade in the elective course. This is an academic determination for which the

plaintiff should have sought review in the context of a proceeding pursuant to CPLR article 78

(citations omitted). Since the plaintiff’s claims would have been barred by the four-month statute

of limitations applicable to such a proceeding (see CPLR 217), the Supreme Court properly granted

Teachers College’s motion to dismiss the complaint on the ground that it was time-barred (citations

omitted). The plaintiff’s remaining contentions either need not be reached in light of our

determination or are without merit.”).

CPLR 217 - Article 78 proceeding appropriate where challenge is directed to the procedure

followed in enacting, rather than the substance of, legislation

Village of Islandia v. County of Suffolk, 2018 NY Slip Op 04025 (2d Dep’t 2018) (“A proceeding

pursuant to CPLR article 78 is unavailable to challenge the validity of a legislative act (citation

omitted). However, when a challenge is directed to the procedure followed in enacting, rather than

the substance of, legislation, a proceeding pursuant to CPLR article 78 may be maintained

(citations omitted). Here, the plaintiff's third cause of action alleged that the actions taken by the

defendants in the formation of the agency were void, invalid, and illegal due to the failure of the

defendants to comply with the requirements of the State Environmental Quality Review Act

(citations omitted). ‘SEQRA challenges must be commenced within four months after the

determination becomes final and binding upon the petitioner’ (citation omitted). The defendants'

determination with regard to the formation of the agency became final and binding on the plaintiff

more than four months prior to the commencement of the action. Accordingly, we agree with the

Page 71: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

Supreme Court's determination that the plaintiff's third cause of action was time-barred pursuant

to CPLR 217 (citations omitted).”).

CPLR 217 - 30-day statute of limitations applies

Matter of Woodworth v. Town of Groveland, 160 A.D.3d 1373 (4th Dep’t 2018) (“Contrary to

petitioners' contention, the court properly dismissed the amended petition as time-barred, as

asserted by respondents in their answer. The 30-day statute of limitations for this proceeding began

to run on April 12, 2016, when the ZBA's decision was filed in the Town Clerk's office, and thus

the limitations period expired before petitioners commenced this proceeding (citation omitted).

We reject petitioners' contention that the statute of limitations began to run on April 18, 2016,

when the ZBA filed the draft hearing minutes (citation omitted). We further reject petitioners'

contention that respondents are equitably estopped from asserting the statute of limitations as a

defense (citation omitted). Finally, we have considered petitioners' remaining contentions and

conclude that they do not warrant reversal or modification of the judgment.”).

CPLR 217 - 60-day statute of limitations applies

Matter of Sierra Club v. Martens, 156 A.D.3d 454 (1st Dep’t 2017) (“The court correctly held that

the petition was barred by the statute of limitations contained in ECL 15-0905. That section

provides that an article 78 proceeding to review a decision made pursuant to article 15 of the ECL

must be commenced within 60 days after service of the decision upon the applicant and others who

appeared in the proceedings before DEC (citation omitted). Because this proceeding was

commenced on March 23, 2015, approximately four months after DEC made the requisite service

and well beyond the 60-day limitations period, it is untimely (citations omitted).”).

CPLR 217 - Challenge to university's academic and administrative decision

Dawson v. New York Univ., 160 A.D.3d 555, 72 N.Y.S.3d 433 (1st Dep’t 2018) (“Although

plaintiff alleges that he was subjected to unlawful discrimination, the complaint is actually ‘a

challenge to a university's academic and administrative decision[]’ (citations omitted).

Accordingly, it is barred by the four-month statute of limitations for a CPLR article 78 proceeding,

which is the appropriate vehicle for such a challenge (citations omitted).”).

CPLR 217 - No toll for plaintiff's invocation of defendant's voluntary student grievance

procedure

Donoso v. New York Univ., 160 A.D.3d 522, 74 N.Y.S.3d 542 (1st Dep’t 2018) (“The four-month

statute of limitations applicable to article 78 proceedings (citation omitted) was not tolled by

plaintiff's invocation of defendant's voluntary student grievance procedure (citations omitted).

Since this action was commenced some eight months after plaintiff was notified of defendant's

decision to withdraw him from the JSD program, it is time-barred.”).

Page 72: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

CPLR 217 - Gravamen of petition was that grading system was implemented in violation of

lawful procedure, affected by an error of law, and arbitrary and capricious.

Matter of Broadway Barbeque Corp. v. New York City Dept. of Health & Mental Hygiene, 160

A.D.3d 719, 71 N.Y.S.3d 380 (2d Dep’t 2018) (“Here, although the 2015 petition sought injunctive

and declaratory relief, the gravamen of the 2015 petition was that the grading system was

implemented in violation of lawful procedure, affected by an error of law, and arbitrary and

capricious. Therefore, the Supreme Court correctly determined that the four-month statute of

limitations set forth in CPLR 217(1) applies to this proceeding (citations omitted).”).

CPLR 217 / 2001 - Because petitioner did not submit petition and related documentation in

proper form until after the four-month statutory period had expired, trial court properly

dismissed the petition as untimely

Matter of Ennis v. Annucci, 160 A.D.3d 1321, 75 N.Y.S.3d 347 (3rd Dep’t 2018) (“The four-

month statute of limitations period in which to commence this proceeding began to run upon

petitioner's notification of the adverse determination on July 20, 2016 (citation omitted). To that

end, ‘a proceeding such as this is deemed commenced for statute of limitations purposes on the

date on which the clerk of the court actually receives the petition in valid form’ (citations omitted).

Because the record establishes that petitioner did not submit the petition and related documentation

in proper form until after the four-month statutory period had expired, Supreme Court properly

dismissed the petition as untimely (citations omitted). Contrary to petitioner's contention, the

deficiencies in the initial papers submitted — which included unsigned, undated and non-original

documents — are not subject to correction pursuant to CPLR 2001 so as to render the proceeding

timely inasmuch as ‘[t]he failure to file the papers required to commence [a proceeding] constitutes

a nonwaivable, jurisdictional defect’ (citations omitted). Accordingly, the merits of the

disciplinary determination are not properly before us.”).

CPLR 217 / Article 78 – Action untimely

Save The View Now v. Brooklyn Bridge Park Corp., 156 A.D.3d 928, 68 N.Y.S.3d 478 (2d Dep’t

2017) (“Here, the Supreme Court properly determined that this action could have been brought as

a proceeding pursuant to CPLR article 78 to review BBP’s and ESD’s approval of construction

allegedly in violation of the MGPP (citations omitted). Although the plaintiffs are correct that the

defendants failed to submit proof establishing the dates of the relevant approvals of construction

which incorporated rooftop structures over the height limitations listed in the MGPP and

measurement of building height from the revised base plane following Hurricane Sandy, or that

the public was notified of these approvals, the approval of construction allegedly in excess of the

height limitations in the MGPP was readily ascertainable by the plaintiffs, at the latest, by

September 10, 2014, when the northern building reached its maximum height (citation omitted).

Further, the plaintiffs failed to establish that the defendants should be estopped from asserting the

statute of limitations as a defense (citation omitted). The communications between the plaintiffs

and BBP were insufficient to justify an estoppel, since the government defendants did not lull the

plaintiffs into believing that they would take any action with regard to the height limitations of the

MGPP such that the plaintiffs’ claims would be resolved without the need for litigation (citation

Page 73: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

omitted). Accordingly, this action, commenced seven months later, was untimely (citations

omitted). Therefore, the Supreme Court properly granted the defendants’ motions to dismiss the

complaint as untimely, denied that branch of the plaintiffs’ cross motion which was for leave to

amend the complaint (citation omitted), and, upon renewal, adhered to its original determination

denying the plaintiffs’ motion to preliminarily enjoin certain construction (citations omitted).”).

CPLR 217-a - One year and 90 days

CPLR 217-a - Court of Appeals adopts standard on burden of proof in showing whether a

municipality or a public corporation has been substantially prejudiced

David L. Ferstendig, Court of Appeals Finds Lower Court Abused Discretion in Determining That

Respondent Would be Substantially Prejudiced, 675 N.Y.S.L.D. 1-2 (2017).

When suing a municipality or a public corporation in tort, a party must first serve a notice of claim

within 90 days after the claim arises. See General Municipal Law § 50-e (GML). That same section

provides a mechanism by which a party can seek an extension of time to serve the notice. On such

an application, the court is to evaluate whether the public corporation “acquired actual knowledge

of the essential facts constituting the claim or within a reasonable time thereafter.” GML § 50-

e(5). In addition, the court is to consider “all other relevant facts and circumstances.” The statute

provides a nonexhaustive list of factors. A key factor for a court to address is whether the delay in

serving the notice of claim “substantially prejudiced” the public corporation.

In Newcomb v. Middle Country Central School District, 2016 N.Y. Slip Op. 08581 (December 22,

2016), the petitioner’s son was hit and severely injured by a car, which fled the scene, as he was

crossing an intersection near the high school he attended. Within days, the petitioner provided

details of the incident to the high school, including the location and nature of his son’s injuries.

Subsequently, there was a significant delay in the petitioner obtaining the police accident file,

which prompted petitioner to have his own investigator take photographs of the scene. Six months

after the accident, petitioner’s counsel finally received the file, which contained photographs

revealing a large sign at the corner of the intersection where the accident occurred. Because of the

size of the photographs, however, the lettering on the sign was illegible, resulting in an additional

two-month delay in receiving enlargements of the photographs of the sign, which advertised a play

at another high school within the district where the accident occurred. The photographs taken by

the petitioner’s investigator did not reflect the sign, which had apparently been removed after the

accident.

The petitioner timely served notices of claim on the state, town and county, but not on the school

district. Five months after the expiration of the 90-day period, however, petitioner served the notice

of claim on the school district, alleging that the sign obscured the view of the corner, drivers, and

pedestrians, creating a dangerous condition. Simultaneously, the petitioner filed an application to

serve a late notice of claim or deem the notice timely nunc pro tunc. Petitioner asserted that the

school district had actual knowledge because petitioner advised his son’s high school within days

of the accident as to its details and location, and the school district had the sign removed from the

Page 74: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

accident scene within the 90-day statutory period. Moreover, petitioner asserted that because of an

ongoing criminal investigation into the hit-and-run driver, the petitioner or his counsel was

prevented from obtaining photographs of the accident scene in which the subject sign was readable.

Finally, petitioner argued that the school district was not substantially prejudiced by the late notice

for several reasons. In addition to reiterating the school district’s placement and removal of the

sign and its knowledge about the details of the accident shortly after it happened, petitioner asserted

that the School District had access to the police report and photographs from the

police file that would permit the School District to reconstruct the scene and to

interview witnesses; and that, except for removal of the sign by the School District,

the accident scene was unchanged, and could be inspected and investigated by the

School District.

Id. at ∗4.

The school district’s opposition consisted solely of an attorney’s affirmation (generally a “no-no”),

asserting that the police report made no mention of the sign. Significantly, it did not rebut the

petitioner’s showing of lack of substantial prejudice, other than arguing that the petitioner bore the

burden and did not meet it, and that the court should infer that the passage of time created

substantial prejudice as a result of fading witness memories.

The trial court examined four of the GML § 50-e(5) factors. It found that there was no nexus

between petitioner’s son’s infancy and the delay, but that the delay was nevertheless justified

because of the petitioner’s delay in obtaining the photographs of the scene and the severity of the

injuries. In addition, the court held that the school district did not have actual knowledge of the

essential facts within the statutory period because the police report failed to mention the sign and

the school district did not have actual notice that the sign may have contributed to the accident.

Finally, the court placed the burden on the petitioner to establish that the school district was not

substantially prejudiced by the delay and found that that prejudice “could be ‘inferred’ because

‘the mere passage of time creates prejudice with respect to fading memories of witnesses.’” Id. at

∗5. Thus, the trial court held that the school district was substantially prejudiced by the late notice.

The Appellate Division affirmed.

The Court of Appeals reversed, holding that the trial court’s conclusion on the substantial prejudice

issue was based on an inadequate record. The Court found that the trial court had presumed that

the matriculation and graduation of students and personnel changes hindered the school district’s

evidence gathering. In addition, the trial court inferred that the passage of time would cause

prejudice. The Court of Appeals held that such mere inferences cannot support a finding of

substantial prejudice; there must be evidentiary support.

The Court noted that there was a split in the Appellate Division on the issue of which party carries

the burden of proof to demonstrate that a late notice of claim substantially prejudiced the public

corporation. The Court held the proper standard to be that the initial burden should be placed on

the petitioner to show that late notice did not substantially prejudice the public corporation.

Significantly, that “showing need not be extensive, but the petitioner must present some evidence

Page 75: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

or plausible argument that supports a finding of no substantial prejudice.” Id. at *7. Once that

initial showing is made, however, the respondent must come back with a particularized evidentiary

showing of substantial prejudice.

Here, the trial court improperly placed the burden of proof solely on the petitioner. In addition, the

respondent’s submission consisted of speculation and inferences that did not meet the

particularized showing requirement. The Court concluded that the standard it was adopting struck

a proper balance -

We recognize that a petitioner seeking to excuse the failure to timely comply with

the notice requirement should have the initial burden to show that the public

corporation will not be substantially prejudiced by the delay…. Requiring the

public corporation to come forward with a particularized showing is appropriate in

this context given that the public corporation is in the best position to provide

evidence as to whether the late notice has substantially prejudiced its ability to

defend the claim on the merits.

Id. at *8.

CPLR 217-a - Delivery of notice of claim to proper designated person

Carroll v. City of New York, 149 A.D.3d 1026, 52 N.Y.S.3d 465 (2d Dep’t 2017) (Compare

Majority - “As pertinent to this appeal, General Municipal Law § 50-e(3)(a) provides that the

notice of claim should be mailed ‘to the person designated by law as one to whom a summons in

an action . . . may be delivered.’ Although the statute requires that the notice be mailed to the

designated ‘person,’ this generally refers to the public authority or government entity itself rather

than a particular person employed thereby (citations omitted). Here, there is no real dispute that

simply writing ‘NYCHA’ on the envelope would have satisfied the requirements of the statute.

Further, while NYCHA contends that there is no such person or entity as the ‘Comptroller of the

NYCHA,’ a ‘comptroller’ is simply an officer of a municipal corporation, like NYCHA, ‘who is

charged with duties [usually] relating to fiscal affairs, including auditing and examining accounts

and reporting the financial status periodically’ (Black’s Law Dictionary 347 [10th ed 2014]). In

any event, the minor misnomer on the envelope need not be fatal to the action, especially where,

as here, the plaintiff’s attorney properly mailed the same notice of claim form to both the

Comptroller and NYCHA in order to assert a claim against both the City of New York and

NYCHA, and the notice of claim itself named NYCHA. Under these circumstances, we find that

the envelope was properly addressed within the meaning of General Municipal Law § 50-e(3)(b)

and the plaintiff properly served the notice of claim upon NYCHA within the requisite 90-day

statutory period (citations omitted).” and Dissent - ‘Here, the plaintiff’s notice of claim was

addressed to a person that allegedly did not exist—the Comptroller of NYCHA—and therefore

was not properly addressed and not delivered to a proper designated municipal agent. These errors

are fatally significant, as they contributed to the circumstances where the notice of claim was not

recorded in the NYCHA service log and was instead forwarded to the Comptroller of the City of

New York. Since the Office of the Comptroller of the City of New York is a separate jural entity,

the notice of claim received and acknowledged by it cannot be imputed to the defendant, NYCHA

Page 76: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

(citations omitted). Since the plaintiff failed to properly address his notice of claim to the proper

municipal designee as required by statute, and the certified mail receipt card was signed by an

employee of the Comptroller of the City of New York, the plaintiff failed to fulfill the purpose and

intent of the statute of affording NYCHA an opportunity to investigate the claim (citation

omitted).”).

CPLR 217-a - Application to file late notice of claim – factors to consider

Matter of Diegelman v. City of Buffalo, 148 A.D.3d 1692, 51 N.Y.S.3d 279 (4th Dep’t 2017) (‘In

determining whether to grant claimants’ application, the court was required to consider ‘all

relevant facts and circumstances,’ including the ‘nonexhaustive list of factors’ in section 50-e (5)

(citations omitted). ‘[T]he presence or absence of any one of the numerous relevant factors the

court must consider is not determinative’ (citation omitted). The three main factors are whether

the claimants have shown a reasonable excuse for the delay, whether respondents had actual

knowledge of the facts surrounding the claim within 90 days of its accrual ‘or within a reasonable

time thereafter,’ and whether the delay would cause substantial prejudice to the municipality

(citations omitted). Here, even assuming, arguendo, that claimants failed to provide a reasonable

excuse for their delay, we conclude that the remaining factors support the court’s exercise of

discretion in granting their application. Although respondents did not obtain knowledge of the

facts underlying the claim until approximately nine months after the expiration of the 90-day

period, we conclude under the circumstances of this case that ‘this was a reasonable time,

particularly in light of the fact that respondent[s] do[ ] not contend that there has been any

subsequent change in the condition of the [premises] which might hinder the investigation or

defense of this action’ ‘ (citation omitted). Moreover, claimants made a sufficient showing that the

late notice will not substantially prejudice respondents, and respondents failed to ‘respond with a

particularized evidentiary showing that [they] will be substantially prejudiced if the late notice is

allowed’ (Newcomb, 28 NY3d at 467). We therefore conclude that the court ‘properly exercised

its broad discretion in granting [claimants’] application pursuant to General Municipal Law § 50-

e (5)’ (citation omitted).’).

CPLR 217-a - Application to file late notice of claim granted

Camins v. New York City Hous. Auth., 151 A.D.3d 589, 55 N.Y.S.3d 247 (1st Dep’t 2017) (“Here,

we find that the motion court did not improvidently exercise its discretion in granting the

application to file a late notice of claim 22 days after the statutory deadline had passed, as the 22-

day period was still well within the one year and 90 days within which to commence an action

against defendant under CPLR 217-a.”).

CPLR 217-a - “Intentional tort causes of action asserted against municipal defendants must

be commenced within the one-year-and-90-day statute of limitations contained in General

Municipal Law § 50-i, which ‘takes precedence over the one-year period of limitations

provided for in CPLR 215.’”

Page 77: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

Williams v. City of New York, 153 A.D.3d 1301 (2d Dep’t 2017) (“However, the defendants

correctly contend that they were entitled to dismissal of the state common-law causes of action

alleging false arrest and false imprisonment on the ground that they are time-barred. General

Municipal Law § 50-i(1)(c) provides, in pertinent part, that no personal injury action shall be

prosecuted or maintained against a city unless it is commenced within one year and 90 days after

the happening of the event upon which the claim is based. Although causes of action to recover

damages for intentional torts, such as false arrest and false imprisonment, are generally subject to

a one-year period of limitations (citation omitted), intentional tort causes of action asserted against

municipal defendants must be commenced within the one-year-and-90-day statute of limitations

contained in General Municipal Law § 50-i, which ‘takes precedence over the one-year period of

limitations provided for in CPLR 215’ (citations omitted). Here, the state common-law causes of

action alleging false arrest and false imprisonment accrued upon the plaintiff’s release from

confinement at Rikers Island on December 11, 2009 (citations omitted). The plaintiff did not file

and serve his complaint until September 20, 2011. This was well beyond the one-year-and-90-day

statute of limitations (citations omitted).”).

CPLR 217-a - While one year and 90-day statute of limitations began to run upon

plaintiff's commencement of the proceeding, CPLR 204 (a) tolled remainder of statute of

limitations until the date that the court granted the requested relief, at which point the

statute began to run once again

Kulon v. Liberty Fire Dist., 2018 NY Slip Op 04062 (3d Dep’t 2018) (“Pursuant to General

Municipal Law, a plaintiff must first serve a notice of claim against a municipality within 90 days

after the claim arises (citation omitted) and commence any subsequent tort action against the

municipality within one year and 90 days after the claim arises (citation omitted). Because

plaintiff's claims against defendants, if any, arise from the fire that occurred on February 18, 2014,

he was therefore required to file and serve a notice of claim by May 19, 2014 and commence any

subsequent tort action by May 19, 2015. Having failed to file and serve his notice of claim by May

19, 2014, plaintiff was permitted to, and did, commence a special proceeding seeking leave to file

a late notice of claim. While the applicable one year and 90-day statute of limitations began to run

on February 18, 2014, upon plaintiff's commencement of the proceeding, the provisions of CPLR

204 (a) operated to toll the remainder of the statute of limitations until the date that the court

granted the requested relief, at which point the statute began to run once again (citations

omitted).”).

CPLR 217-a - Notice of claim requirement does not apply when litigant seeks only

equitable relief, or commences a proceeding to vindicate a public interest

Matter of Fotopoulos v. Board of Fire Commr. of the Hicksville Fire Dist., 161 A.D.3d 733 (2d

Dep’t 2018) (“In general, ‘[t]he service of a notice of claim is a condition precedent to the

maintenance of an action against a public corporation to recover damages for a tortious or wrongful

act’ (citations omitted). However, the notice of claim requirement does not apply when a litigant

seeks only equitable relief (citations omitted), or commences a proceeding to vindicate a public

interest (citation omitted). Moreover, a litigant who seeks ‘judicial enforcement of a legal right

derived through enactment of positive law’ is exempt from the notice of claim requirement

Page 78: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

(citations omitted). Here, since the petitioner seeks both equitable relief and the recovery of

damages in the form of back pay, the filing of a notice of claim within 90 days after his claim arose

was a condition precedent to the maintenance of this proceeding (citations omitted).”).

CPLR 217-a / 2001 - Failure to file the application with the appropriate clerk (County

Clerk) is fatal defect that may not be overlooked or corrected by the court pursuant to

CPLR 2001

Matter of Dougherty v. County of Greene, 161 A.D.3d 1253 (3d Dep’t 2018) (“While the Supreme

Court or the County Court may convert an improperly brought motion for leave to serve a late

notice of claim into a special proceeding (citations omitted), the failure to file the application with

the appropriate clerk — the County Clerk — is a fatal defect that may not be overlooked or

corrected by the court pursuant to CPLR 2001 (citations omitted). Indeed, the filing of initiatory

papers with the Clerk of the Supreme and County Courts, rather than the County Clerk, ‘has been

equated to a nonfiling and, thus, 'a nonwaivable jurisdictional defect rendering the proceeding a

nullity’ (citations omitted). Here, petitioner mailed her 2013 application to the Greene County

Courthouse to the attention of the ‘County Lawyer Clerks Office.’ Petitioner's papers were

promptly rejected by the Chief Clerk of the Supreme and County Courts in Greene County and

returned to petitioner with a letter identifying several deficiencies with her papers and directing

that they be mailed to the County Clerk's Office. Petitioner's failure to file her 2013 application

with the proper clerk amounts to a nonwaivable jurisdictional defect, rendering the proceeding a

nullity (citations omitted). Consequently, petitioner's 2015 submissions cannot relate back to her

2013 attempted application. Given that petitioner did not file an application with the Greene

County Clerk prior to the expiration of the one year and 90-day statute of limitations, which

expired in February 2014, Supreme Court was statutorily prohibited from extending the time in

which petitioner had to serve her notice of claim upon respondent (citations omitted).”).

JURISDICTION

CPLR 301

CPLR 301 - Lack of subject matter jurisdiction

Matter of Duran v. Mercado, 155 A.D.3d 725, 64 N.Y.S.3d 90 (2d Dep’t 2017) (“The Family

Court properly dismissed the mother’s petition on the ground that it lacked subject matter

jurisdiction. ‘Where a different state possesses exclusive, continuing jurisdiction, New York

cannot take jurisdiction unless the foreign state declines, even [if] the parties clearly no longer

have a significant connection with that state’ (citations omitted). Here, the record is clear that

Pennsylvania had exclusive, continuing jurisdiction over the custody dispute, as the father

continued to reside in Pennsylvania and the Pennsylvania court had not determined that New York

would be a more appropriate forum (citations omitted).”).

Page 79: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

CPLR 301 - No general jurisdiction over individual

IMAX Corp. v. Essel Group, 154 A.D.3d 464, 62 N.Y.S.3d 107 (1st Dep’t 2017) (“Additionally,

petitioner failed to establish that New York courts have general jurisdiction over respondent

Chandra individually pursuant to CPLR 301. New York courts may not exercise general

jurisdiction against a defendant under the United States Constitution or under CPLR 301 unless

the defendant is domiciled in the state (citations omitted) or in an exceptional case where ‘an

individual’s contacts with a forum [are] so extensive as to support general jurisdiction

notwithstanding domicile elsewhere’ (citation omitted). In the present case, movant has failed to

show either that Chandra was domiciled in New York or that Chandra’s contacts with New York

were so extensive as to support general jurisdiction. Initially, the purchase of the apartment, even

if attributable to him personally, is insufficient to establish that Chandra was domiciled in New

York (citations omitted). Further, the evidence submitted by petitioner demonstrates that

Chandra’s business activities in New York were undertaken on behalf of a corporate entity

(citation omitted). No pretrial jurisdictional disclosure is warranted.”).

CPLR 301 - Domicile jurisdiction – look to where defendant was domiciled when the action

was commenced

Chen v. Guo Liang Lu, 144 A.D.3d 735, 41 N.Y.S.3d 517 (2d Dep’t 2016) (“‘[D]omicile means

living in [a] locality with intent to make it a fixed and permanent home’ (citation omitted). It is the

place ‘where one always intends to return to from wherever one may be temporarily located’

(citation omitted). An individual may have multiple residences, but only one domicile (citations

omitted). In making a determination as to a defendant’s domicile, examination of the defendant’s

intent to permanently reside in a given locality is essential (citations omitted). In this respect, courts

must look to the defendant’s intent as it existed at the time the plaintiff commenced the action

(citation omitted). Where the defendant is not domiciled in New York at the time the action is

commenced, New York courts lack personal jurisdiction over the defendant on that basis (citation

omitted). Here, in opposing dismissal of the complaint pursuant to CPLR 3211(a)(8) for lack of

personal jurisdiction, the plaintiffs failed to make a prima facie showing that the defendant was

domiciled in New York at the time the action was commenced in July 2013. Evidence of the

defendant’s ownership of a cooperative apartment in Queens is, on its own, insufficient to confer

personal jurisdiction over him absent evidence of his intent to make the apartment his ‘fixed and

permanent home’ (citations omitted). The record demonstrated that the defendant resided in

Shanghai, China, while his wife and daughter resided in the cooperative apartment in Queens. It

was undisputed that the defendant had not even visited New York since March 2013. Further,

while the defendant’s immigration status may be indicative of an intent on the part of the defendant

to reside in the United States at the time a petition for an employment-based immigrant visa was

filed on his behalf in December 2009, it does not demonstrate an intent to make New York his

fixed and permanent home at the time this action was commenced in July 2013, four months after

his departure from the United States (citation omitted).”).

CPLR 301

Page 80: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

David L. Ferstendig, Daimler “Doing Business” Standard Revisited, 680 N.Y.S.L.D. 1-2

(2017).

In BNSF Ry. Co. v. Tyrrell, 137 S. Ct. 1549 (2017), Robert Nelson, a North Dakota resident,

brought a Federal Employers Liability Act (FELA) action against his employer, BNSF Railway

Company, in a Montana state court. He alleged that he sustained personal injuries while working

as a BNSF fuel truck driver. Another FELA action was brought on behalf of the deceased, Brent

Tyrell, by an administrator appointed in South Dakota. There it was asserted that the deceased

contracted cancer from exposure to carcinogenic chemicals while employed at BNSF. Neither

plaintiff alleged that the claimed injuries related to work performed in Montana. BNSF is a

Delaware corporation with its principal place of business in Texas, operating railroad lines in 28

states. Its connections to Montana include 2,061 miles of railroad track (about six percent of its

total track mileage), 2,100 employees (less than five percent of its total work force), about 10

percent of its total revenue is derived from there, and it maintains one of its 24 automotive facilities

in the state.

The Montana Supreme Court held that Montana courts could exercise general personal jurisdiction

over BNSF. It based its decision, in part, on FELA § 56, which it determined permitted state courts

to exercise personal jurisdiction over railroads “doing business” in the state. The Montana court

found that BNSF was doing business under the FELA provision due to its many miles of tracks

and employees within the state. It similarly held that BNSF was “found within” the state under

Montana law. Significantly, the court stated that the due process limits set forth in the U.S.

Supreme Court’s decision in Daimler AG v. Bauman, 134 S. Ct. 746 (2014), did not apply because

Daimler did not involve a railroad defendant or a FELA claim.

The U.S. Supreme Court was unanimous in ruling that the Montana Supreme Court erred in finding

that the FELA provision conferred personal jurisdiction over the defendants in state court and that

the Due Process Clause was not implicated. However, the majority and the dissent disagreed on

the result.

The majority, written by Justice Ginsburg, explained that FELA § 56 does not concern personal

jurisdiction, but rather is a federal court venue provision, also conferring subject matter jurisdiction

in FELA actions in state courts concurrent with federal courts. With respect to the Montana statute,

Mont. R. Civ. P. 4(b)(1), which confers personal jurisdiction over “persons found” in Montana,

the majority noted that the defendant did not contest that it was “found within” Montana. Thus,

the Court’s inquiry related to whether “the Montana courts’ exercise of personal jurisdiction under

Montana law comports with the Due Process Clause of the Fourteenth Amendment.” Id. at 1558.

The majority concluded that BNSF’s activities in Montana did not render it “at home” under the

Daimler “doing business” standard (that is, the corporation’s affiliations with the forum state are

so continuous and systematic as to render it essentially “at home” in the forum state).

Daimler provided only three circumstances that satisfied the “at home” requirement - a domestic

corporation, a corporation whose principal place of business is in the forum state, and the

“exceptional case” where a defendant’s operations in another state “may be so substantial and of

such a nature as to render the corporation at home in that State.” 134 S. Ct. 746, n. 19. The

Page 81: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

paradigm case referred to in Daimler as being the “exceptional case” was Perkins v. Benguet

Consol. Mining Co., 342 U.S. 437 (1952), where the war had forced the corporation’s owner to

relocate the operations temporarily from the Philippines to Ohio.

The Court stressed here, as it did in Daimler, that it was required to look at the company’s activities

in their entirety when it operates in many places -

[A]s we observed in Daimler, “the general jurisdiction inquiry does not focus solely

on the magnitude of the defendant’s in-state contacts.” Rather, the inquiry “calls

for an appraisal of a corporation’s activities in their entirety”; “[a] corporation that

operates in many places can scarcely be deemed at home in all of them.” In short,

the business BNSF does in Montana is sufficient to subject the railroad to specific

personal jurisdiction in that State on claims related to the business it does in

Montana. But in-state business, we clarified in Daimler and Goodyear, does not

suffice to permit the assertion of general jurisdiction over claims like Nelson’s and

Tyrrell’s that are unrelated to any activity occurring in Montana (citations omitted).

Id. at 1559.

In her dissent, Justice Sotomayor reiterated her disagreement “with the path the Court struck in

Daimler.” Id. at 1560. She stated that the majority was granting

a jurisdictional windfall to large multistate or multinational corporations that

operate across many jurisdictions. Under its reasoning, it is virtually inconceivable

that such corporations will ever be subject to general jurisdiction in any location

other than their principal places of business or of incorporation. Foreign businesses

with principal places of business outside the United States may never be subject to

general jurisdiction in this country even though they have continuous and

systematic contacts within the United States (citations omitted).

Id.

Justice Sotomayor insisted that the focus should be on the quality and quantity of the defendant’s

contacts in the state. She maintained that the majority opinion, in essence, had read the

“exceptional case” exception “out of existence entirely,” limiting it only to the “exact facts” in

Perkins. Id. at 1561.

In addition, the dissent opined that even if the Daimler “doing business” standard applied, the

correct procedural decision was to remand the case back to the Montana Supreme Court “to

conduct what should be a fact-intensive analysis under the proper legal framework.” Id. at 1560.

CPLR 301

David L. Ferstendig, Daimler “At Home” Standard as Applied to Individuals, 682 N.Y.S.L.D.

2-3 (2017).

Page 82: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

Much has been said in this Digest and elsewhere about the impact of the United States Supreme

Court decision in Daimler AG v. Bauman, 134 S. Ct. 746 (2014). The discussion has been centered

primarily on a corporation’s activities in the forum state, that is, whether they are so systematic

and continuous as to render it “at home.”

But how about an individual “doing business” in New York? Prior to Daimler, there was a conflict

in New York State as to whether jurisdiction can be obtained over an individual while “doing

business” in New York in connection with causes of action which do not arise there. The First

Department holds that jurisdiction can be found in such a circumstance. See ABKCO Industries,

Inc. v. Lennon, 52 A.D.2d 435 (1st Dep’t 1976). The Second Department disagrees. See Nilsa B.B.

v. Clyde Blackwell H., 84 A.D.2d 295 (2d Dep’t 1981) (questioning First Department holding in

ABKCO). See also Pichardo v. Zayas, 122 A.D.3d 699, 703 (2d Dep’t 2014) lv. denied, 26 N.Y.

3d 905 (2015). (“In contrast to the common-law approach to corporations, the common law, as

developed through case law predating the enactment of CPLR 301, did not include any recognition

of general jurisdiction over an individual based upon that individual’s cumulative business

activities within the State. Since the enactment of CPLR 301 did not expand the scope of the

existing jurisdictional authority of the courts of the State of New York, that section does not permit

the application of the ‘doing business’ test to individual defendants (citations omitted).”).

Recently, in Lebron v. Encarnacion, 2017 U.S. Dist. LEXIS 83261 (E.D.N.Y. May 31, 2017),

District Court Judge Arthur D. Spatt addressed the issue of whether an individual’s activities can

render him or her “at home.” In Lebron, the plaintiff, a New York resident, brought tort claims

against a Toronto Blue Jays baseball player, Edwin Encarnacion, who is a citizen and permanent

resident of the Dominican Republic. The plaintiff met the defendant for the first time following a

baseball game between the New York Yankees and the Blue Jays at Yankees Stadium. Their non-

romantic relationship continued for several years, followed by a weekend visit to the Dominican

Republic where they had sexual relations. The plaintiff later developed symptoms of sexually

transmitted diseases and sued the defendant, claiming he failed to advise her that he had been

infected.

The plaintiff argued that, among other things, the court had general jurisdiction over the defendant

based on his regular trips to New York to play baseball against the Yankees and Mets and the fact

that his agents and representatives promoted the defendant’s interests in New York.

The district court stated that while the Daimler decision discussed the “doing business” standard

as it applied to a foreign corporation, “[s]imilarly, as it relates to individuals, the new inquiry

focuses on whether the defendant may fairly be regarded as ‘at home’ in the forum state—a

location which, according to the Second Circuit, is generally limited to that individual’s domicile.”

Id. at ∗4. Noting that the defendant’s domicile was clearly not in New York, the court echoed the

Daimler decision in stating that “[d]etermining whether the Defendant is ‘at home’ in this forum

‘calls for an appraisal of [his] activities in their entirety, nationwide and worldwide.’” Id. at ∗5.

The court noted that the defendant was not a U.S. citizen or permanent resident alien; he never

lived in New York or owned a bank account or other property here; and he is a citizen and

permanent resident of the Dominican Republic with a temporary residence in Toronto during the

Page 83: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

baseball season. It found that the defendant’s occasional visits to New York (for an estimated 9-

12 games a year for 12 seasons) and association with a New York-based union and sports

management agency did not establish that the defendant was “at home” in New York for

jurisdictional purposes. Borrowing from Daimler again, the court focused on the defendant’s

connections with other states -

This is especially true given that that the same evidence used to show the

Defendant’s occasional visits to New York for baseball games also shows that he

has, during the same time period, made a comparable number of annual trips to 16

other states and the District of Columbia for the same purpose. Viewing the

Defendant’s activities “in their entirety, nationwide and worldwide,” the Court

discerns no principled basis for concluding that his trips to New York are any more

substantial or otherwise likely to render him “at home” in this State than any other.

On the contrary, to borrow a phrase from Justice Ginsberg, after Daimler it is

reasonable to presume that a professional athlete who competes in many places can

scarcely be deemed at home in all of them (citations omitted).

Id.

The court rejected the plaintiff’s agency theory, finding that the Major League Baseball Players

Association and Radegan Sports Management were not “primarily employed by the defendant”

and are clearly “engaged in similar services for other clients.” Id. at ∗6. Thus, it held that this was

not one of the “truly ‘exceptional’ occasions” justifying a finding of general jurisdiction. Id. at ∗7.

Finally, the court refused to hold that the defendant was subject to specific jurisdiction in New

York under either CPLR 302(a)(2) or CPLR 302(a)(3), because neither the tort (the sexual act, that

had occurred in the Dominican Republic), nor the injuries (the original event that caused the injury,

the parties’ sexual intercourse, occurred in the Dominican Republic, rather than the manifestation

of physical symptoms) took place in New York.

CPLR 301 / 302

David L. Ferstendig, Business Corporation Law § 1314(b) Limits on Subject Matter

Jurisdiction, 680 N.Y.S.L.D. 3 (2017).

Business Corporation Law § 1314(b) (BCL) is an often overlooked limitation on subject matter

jurisdiction in state court, something generally of rare concern. It provides that an action against a

foreign corporation brought by another foreign corporation or a nonresident may not be maintained

unless it falls within one of the five designated exceptions - where the subject contract was made

or performed in New York or relates to property situated within New York at the time the contract

was made; the “subject matter” of the action is in New York; the cause of action arose in New

York; the defendant is subject to jurisdiction under CPLR 302; or the defendant is a foreign

corporation doing business or authorized to do business in New York.

Page 84: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

Significantly, because “subject matter jurisdiction cannot be conferred by agreement of the

parties”, the parties’ consent to jurisdiction via a forum selection clause, for example, would not

suffice. See Calzaturificio Giuseppe Garbuio S. A. S. v. Dartmouth Outdoor Sports, Inc., 435 F.

Supp. 1209, 1211 (S.D.N.Y. 1997).

In D&R Global Selections, S.L. v. Bodega Olegario Falcon Pineiro, 2017 N.Y. Slip Op. 04494

(June 8, 2017), BCL § 1314(b) applied, requiring the Court to determine in this case whether the

defendant was subject to jurisdiction under CPLR 302(a)(1). The plaintiff, a Spanish limited

liability company based in Pontevedra, Spain, agreed to locate a distributor to import defendant’s

wine into the United States. The defendant is a winery also located in Pontevedra. The defendant

accompanied the plaintiff to New York on several occasions to meet potential distributors and to

promote the defendant’s wine. Ultimately the plaintiff introduced the defendant to a New York

wine importer and distributor. Subsequently, the defendant stopped paying commissions to the

plaintiff, prompting this action.

The defendant failed to appear or answer, resulting in a default judgment. The defendant moved

to vacate the default judgment and to dismiss for lack of subject matter and personal jurisdiction.

The trial court denied the vacate motion, while not considering the motion to dismiss. The

Appellate Division reversed, vacated the default judgment, but found that there were issues of fact

as to whether the court had personal jurisdiction over the defendant under CPLR 302(a)(1)

(transaction of business).

After the matter was remanded to the trial court, the defendant’s motion for summary judgment

was denied by the court. On appeal, the Appellate Division reversed, holding that there was no

jurisdiction because, although the “defendant’s visits to New York to promote its wine constitute

the transaction of business,” there was “no substantial nexus between plaintiff’s claim for unpaid

commissions in connection with the sales of that wine, pursuant to an agreement made and

performed wholly in Spain, and those promotional activities.” 128 A.D.3d 486, 487 (1st Dep’t

2015).

The Court of Appeals reversed. It agreed with the Appellate Division that there was a transaction

of business, in that the defendant “purposefully availed itself of ‘the privilege of conducting

activities’” in New York. 2017 N.Y. Slip Op. 04494 at ∗2-3. The Court focused on defendant’s

numerous trips to New York to attend wine industry events, its introduction to a New York-based

distributor, its return to New York on at least two occasions to promote its wine, and the fact that

it entered into an exclusive distribution agreement with the New York-based company to import

wines into the United States.

However, contrary to the Appellate Division, the Court of Appeals found there to be a substantial

relationship between the plaintiff’s claim and the defendant’s business activities in New York. In

doing so, it rejected the Appellate Division’s finding that the parties’ oral agreement was

performed “wholly in Spain” -

Defendant traveled to New York to attend the Great Match Event where plaintiff

introduced defendant to Kobrand. Defendant then joined plaintiff in attending two

Page 85: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

promotional events hosted by Kobrand in New York, which resulted in Kobrand

purchasing defendant’s wine and, eventually, entering an exclusive distribution

agreement for defendant’s wine in the United States. Those sales to Kobrand - and

the unpaid commissions thereon - are at the heart of plaintiff’s claim.

Id. at *3.

CPLR 301 / 302

David L. Ferstendig, Business Corporation Law § 1314(b) Postscript, 681 N.Y.S.L.D. 4 (2017).

In the July edition of the Digest, we referred to Business Corporation Law § 1314(b) (BCL), which

limits a court’s subject matter jurisdiction in actions brought by a nonresident or foreign

corporation against a foreign corporation. The statute enumerates five designated exceptions. The

case referenced, D&R Global Selections, S.L. v. Bodega Olegario Falcon Pineiro, 29 N.Y.3d 292,

56 N.Y.S.3d 488, 78 N.E.3d 1172 (2017), found that the defendant was subject to personal

jurisdiction under CPLR 302, thereby removing the subject matter jurisdiction infirmity.

While not specifically relevant to our discussion above, practitioners should also be aware of

General Obligations Law § 5-1402(1) (GOL), which provides that -

Notwithstanding any act which limits or affects the right of a person to maintain an

action or proceeding, including, but not limited to, paragraph (b) of section thirteen

hundred fourteen of the business corporation law and subdivision two of section

two hundred-b of the banking law, any person may maintain an action or

proceeding against a foreign corporation, non-resident, or foreign state where the

action or proceeding arises out of or relates to any contract, agreement or

undertaking for which a choice of New York law has been made in whole or in part

pursuant to section 5-1401 and which (a) is a contract, agreement or undertaking,

contingent or otherwise, in consideration of, or relating to any obligation arising

out of a transaction covering in the aggregate, not less than one million dollars, and

(b) which contains a provision or provisions whereby such foreign corporation or

non-resident agrees to submit to the jurisdiction of the courts of this state.

Thus, GOL § 5-1402 expressly provides that where the underlying “contract, agreement or

undertaking” involves a transaction “not less” than one million dollars and has a New York forum

selection clause and a New York choice of law provision (pursuant to GOL § 5-1401), the BCL §

1314(b) subject matter jurisdiction bar does not apply.

Note also that CPLR 327(b) similarly provides that a court cannot stay or dismiss an action on

forum non conveniens grounds, if those conditions are met (e.g., one million dollar transaction and

the agreement between the parties has New York forum selection and choice of law provisions).

For further discussion and specifically which types of contracts are impacted, see Weinstein, Korn

& Miller, New York Civil Practice, CPLR ¶ 327.04 (David L. Ferstendig, LexisNexis Matthew

Bender, 2d Ed.).

Page 86: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

CPLR 302 - Specific Jurisdiction

CPLR 302

David L. Ferstendig, U.S. Supreme Court Tackles Specific Jurisdiction Issues, 681 N.Y.S.L.D.

1-2 (2017).

In the last edition of the Digest, we reported on the United States Supreme Court’s decision in

BNSF Ry. v. Tyrrell, 137 S. Ct. 1549 (2017). There, the Court refused to find general or all-purpose

jurisdiction over the railway company, notwithstanding significant contacts in the state.

In Bristol-Myers Squibb Co. v. Superior Court of Cal., San Francisco County, 137 S. Ct. 1773

(2017), the issue presented to the Court related to specific jurisdiction, where the claim must arise

out of the jurisdictional predicate. BMS, a large pharmaceutical company, is a Delaware

corporation with its headquarters in New York. It has substantial operations in New York and New

Jersey, with 50 percent of its U.S. workforce there. BMS has business activities in other

jurisdictions, including California where it has 160 employees, 250 sales representatives, and a

small state government advocacy office. The plaintiffs claimed that they were injured as a result

of their ingestion of Plavix, a prescription drug intended to thin the blood and inhibit blood clotting.

Significantly, only 86 of the plaintiffs were California residents, while the remaining 592 resided

in 33 other states. BMS did not develop Plavix in California, did not create a marketing strategy

there, and did not manufacture, label, package, or work on the regulatory approval of the product

there. All those activities were performed in New York or New Jersey. BMS did sell 187 million

Plavix pills in California in the period between 2006 and 2012, resulting in $900 million in sales

(approximately 1 percent of BMS’s nationwide sales revenue). However, none of the nonresident

plaintiffs alleged that they had obtained Plavix through California doctors or elsewhere in

California, or that they were injured or treated for their injuries in California.

The California Superior Court denied BMS’s motion to quash service of the summons on the

nonresidents’ claims, 2017finding there to be general jurisdiction over BMS. The California Court

of Appeal found general jurisdiction to be lacking, but held there to be specific jurisdiction. The

California Supreme Court affirmed, unanimously agreeing there was no general jurisdiction.

However, the Court split on specific jurisdiction. The majority agreed there was, applying a

“sliding scale approach” under which “the more wide ranging the defendant’s forum contacts, the

more readily is shown a connection between the forum contacts and the claim.” Id. at 1778.

A majority of the U.S. Supreme Court (8-1) reversed. The Court noted that it had to consider a

variety of factors in assessing whether there was personal jurisdiction, including “the interests of

the forum State and of the plaintiff in proceeding with the cause in the plaintiff’s forum of choice”

(citing to Kulko v. Superior Court of Cal., City and County of San Francisco, 436 U.S. 84, 92

(1978)). Id. at 1780. It stressed, however, that the “primary concern” is “the burden on the

defendant.”

Page 87: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

The Court emphasized that

[a]ssessing this burden obviously requires a court to consider the practical problems

resulting from litigating in the forum, but it also encompasses the more abstract

matter of submitting to the coercive power of a State that may have little legitimate

interest in the claims in question. As we have put it, restrictions on personal

jurisdiction “are more than a guarantee of immunity from inconvenient or distant

litigation. They are a consequence of territorial limitations on the power of the

respective States.” […] “[T]he States retain many essential attributes of

sovereignty, including, in particular, the sovereign power to try causes in their

courts. The sovereignty of each State … implie[s] a limitation on the sovereignty

of all its sister States” (citations omitted).

Id. at 1780.

For there to be specific jurisdiction, a court must find there to be an “affiliation between the forum

and the underlying controversy, principally, [an] activity or an occurrence that takes place in the

forum State.” Id. at 1781 (citation omitted).

The majority found that the “sliding scale approach” adopted by the California Supreme Court was

inconsistent with the Court’s precedents -

Under the California approach, the strength of the requisite connection between the

forum and the specific claims at issue is relaxed if the defendant has extensive

forum contacts that are unrelated to those claims. Our cases provide no support for

this approach, which resembles a loose and spurious form of general jurisdiction.

For specific jurisdiction, a defendant’s general connections with the forum are not

enough. As we have said, “[a] corporation’s ‘continuous activity of some sorts

within a state … is not enough to support the demand that the corporation be

amenable to suits unrelated to that activity’” (citations omitted).

Id. at 1781.

The majority noted that the California Supreme Court did not identify an adequate link between

the nonresidents’ claims and California. The fact that the resident plaintiffs were prescribed,

obtained, and ingested the drug in California, and allegedly shared the same injuries as the

nonresidents, did not allow the State of California to assert specific jurisdiction over the

nonresidents’ claims. As the Court previously stressed in Walden v. Fiore, 134 S. Ct. 1115 (2014),

a defendant’s relationship with third parties in the state is insufficient in and of itself to support a

finding of jurisdiction. The Court found lacking here a “connection between the forum and the

specific claims at issue.” Bristol-Myers, 137 S. Ct. at 1776.

In response to the assertion of a “parade of horribles” that could result from its decision, the

majority pointed out that there could be consolidated actions in New York or Delaware, where

Page 88: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

there would be general jurisdiction over BMS, or residents in particular states (e.g., Texas and

Ohio) could probably sue together in their home states. The Court concluded, that

since our decision concerns the due process limits on the exercise of specific

jurisdiction by a State, we leave open the question whether the Fifth Amendment

imposes the same restrictions on the exercise of personal jurisdiction by a federal

court (citation omitted).

Id. at 1783–84.

The sole dissenter, Justice Sotomayor, stated that the majority’s decision will make it harder for

plaintiffs to aggregate claims in a particular jurisdiction, will result in piecemeal litigation, and

will “make it impossible to bring a nationwide mass action in state court against defendants who

are ‘at home’ in different States.” Id. at 1784.

CPLR 302 - “Arising out of” requirement– there must be substantial relationship of activities

to cause of action

Hall v. City of Buffalo, 151 A.D.3d 1942, 59 N.Y.S.3d 224 (4th Dep’t 2017) (“Contrary to

defendants’ contention, we conclude that plaintiff made ‘a prima facie showing’ that the court has

personal jurisdiction over Habib (citations omitted). As the principal and sole shareholder of

NHJB, which operated a bar in New York, Habib transacted business in New York within the

meaning of CPLR 302 (a) (1) (citations omitted), and we conclude that there is a substantial

relationship between plaintiff’s claims and Habib’s activities in New York (citations omitted). In

addition, we conclude that the exercise of personal jurisdiction over Habib comports with due

process (citations omitted).”).

Leuthner v. Homewood Suites by Hilton, 151 A.D.3d 1042, 58 N.Y.S.3d 437 (2d Dep’t 2017)

(“Here, the plaintiffs failed to make a prima facie showing that the defendants transacted business

in New York. The plaintiffs did not rebut the evidence submitted by the defendants demonstrating

that (1) the defendant Brantley Enterprises, Inc., which does business under the name Brantley

Hotel Group (also named as a defendant), managed the subject hotel, which was known as

Homewood Suites by Hilton (also named as a defendant), and (2) Brantley Enterprises, Inc., was

a Virginia corporation with its principal office in Virginia, which did not conduct business or

maintain any offices outside Virginia, and was not affiliated with any New York hotels. The

plaintiffs also did not rebut the evidence demonstrating that the subject hotel was owned by

nonparty Suite Venture Associates, LLC, a Virginia limited liability company with its principal

office in Virginia, which did not conduct business or maintain any offices outside Virginia, and

was not affiliated with any New York hotels. Contrary to the plaintiffs’ contention, even if there

were other, separate hotels operating in New York under the licensed or franchised name

Homewood Suites by Hilton, the plaintiffs failed to demonstrate that the defendants purposefully

availed themselves of the privilege of conducting business in New York. Moreover, accepting as

true the plaintiffs’ allegation that the defendants were involved in maintaining or operating a

website that permitted consumers in New York to make reservations at the subject hotel in

Virginia, they failed to make a prima facie showing that there was a substantial relationship

Page 89: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

between the causes of action asserted in the complaint and any alleged transaction of business

through that website (citations omitted).”).

America / International 1994 Venture v. Mau, 146 A.D.3d 40, 42 N.Y.S.3d 188 (2d Dep’t 2016)

(‘Here, even if Kraft were considered to be the defendant’s agent for jurisdictional purposes, the

plaintiffs presented no evidence that the alleged business activities in New York, conducted by

Kraft on behalf of all investors including the defendant, were substantially related to or gave rise

to the cause of action to recover on the note (citation omitted). Kraft’s business activities in New

York were related to the operation of the joint venture. The subject cause of action arose from the

defendant’s failure to pay the note when it came due. The subject claim resulted from the execution

of the note in Illinois 20 years prior to the commencement of this action. This relationship is too

remote and indirect to create an articulable nexus. Furthermore, the defendant’s appointment of

Kraft as his agent in New York does not bear a substantial relationship to the subject matter of this

action. ‘These are . . . merely coincidental’ occurrences that have a tangential relationship to the

present case’ (citation omitted). The defendant’s appointment of Kraft as his agent and Kraft’s

alleged actions in New York do not form the basis of this action. The plaintiffs’ claim based on

the defendant’s failure to pay the note is completely independent of Kraft’s activities pursuant to

the terms of the Subscription Agreement.”).

Chen v. Guo Liang Lu, 144 A.D.3d 735, 41 N.Y.S.3d 517 (2d Dep’t 2016) (“Here, the sole

purposeful activity cited by the plaintiffs in support of their argument that the defendant is subject

to personal jurisdiction pursuant to CPLR 302(a)(1) is the employment relationship between

Crystal Window and the defendant. However, the alleged wrongdoing upon which the complaint

primarily is based occurred during the defendant’s employment with Huai’an Crystal, a Chinese

company, prior to any employment with Crystal Window. Further, although the plaintiffs allege

that the defendant visited New York on several occasions in 2009 prior to any employment with

Crystal Window, there is no indication that any business was transacted during those visits or that

the visits were related in any way to the allegations of wrongdoing contained in the complaint.

Therefore, the plaintiffs failed to make a prima facie showing that the defendant is subject to

personal jurisdiction pursuant to CPLR 302(a)(1) by virtue of an employment relationship between

the defendant and Crystal Window (citations omitted).”).

Hopstein v. Cohen, 143 A.D.3d 859, 40 N.Y.S.3d 436 (2d Dep’t 2016) (“The fact that the appellant

may have owned property in New York at some time does not establish jurisdiction under CPLR

302 where, as here, the plaintiffs’ negligence cause of action against the defendant did not arise

out of such ownership of property, but rather, the operation of his vehicle in New Jersey (citations

omitted).”).

Fernandez v. DaimlerChrysler, A.G., 143 A.D.3d 765, 40 N.Y.S.3d 128 (2d Dep’t 2016) (“Here,

the plaintiff failed to establish, prima facie, that Daimler conducted purposeful activities in New

York which bore a ‘substantial relationship’ or an ‘articulable nexus’ to the subject matter of this

action (citations omitted). Daimler did not manufacture the subject vehicle or the allegedly

defective parts of the subject vehicle, or sell the subject vehicle to the decedent. Additionally, the

plaintiff failed to establish that any activities conducted by Daimler in New York had an

‘articulable nexus’ or a ‘substantial relationship’ to any of the recalls that were issued on the

Page 90: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

allegedly defective parts of the subject vehicle. Since the plaintiff failed to demonstrate, prima

facie, that the causes of action asserted in the complaint arose from any of Daimler’s activities in

New York, the Supreme Court was not authorized to exercise personal jurisdiction over Daimler

pursuant to CPLR 302(a)(1).”).

CPLR 302 - Purposeful availment

Bloomgarden v. Lanza, 143 A.D.3d 850, 40 N.Y.S.3d 142 (2d Dep’t 2016) (“Here, the plaintiffs

failed to show that the defendants actively projected themselves into New York to engage in a

sustained and substantial transaction of business within New York, thereby purposefully availing

themselves of the privilege of conducting activities in New York so as to subject them to long-arm

jurisdiction pursuant to CPLR 302(a)(1) (citation omitted). The defendants communicated from

California with the plaintiffs in New York via mail, telephone, and email because the plaintiffs

were New York domiciliaries, not because the defendants were actively participating in

transactions in New York, and the communications with the plaintiffs in New York all concerned

the services that the defendants were performing in Florida (citations omitted).”).

CPLR 302 - Does foreign bank’s use of NY correspondent bank account confer personal

jurisdiction?

David L. Ferstendig, Court of Appeals Splits on Whether Foreign Bank’s Use of New York

Correspondent Bank Account Confers Personal Jurisdiction, 674 N.Y.S.L.D. 2 (2017).

The maintenance or use of a bank account in New York as a jurisdictional predicate with respect

to a foreign defendant has been an issue that courts have grappled with over the years. For example,

in Banco Ambrosiano v. Artoc Bank & Trust, 62 N.Y.2d 65 (1984), the Court sustained quasi-in

rem jurisdiction, where the bank account was closely related to the claim and was the same account

through which the defendant effectuated the transaction at issue.

On the other end of the jurisdictional spectrum was the First Department’s decision in Georgia-

Pacific Corp. v. Multimark’s Int’l, 265 A.D.2d 109 (1st Dep’t 2000), where the court held that a

defendant’s use of a New York bank account to conduct virtually all of its worldwide business was

sufficient to confer general jurisdiction over the defendant. It is doubtful, however, that the

Georgia-Pacific holding survives the United States Supreme Court’s decision in Daimler AG v.

Bauman, 134 S. Ct. 746 (2014), which significantly narrowed the “doing business” basis for

general jurisdiction. See What Remains of Doing Business and Consent as Jurisdictional Bases,

661 N.Y. St. Law Digest 4 (2015).

Most recently, in Al Rushaid v. Pictet & Cie, 2016 N.Y. Slip Op. 07834 (Nov. 22, 2016), the Court

of Appeals was concerned with whether a foreign country bank’s use of a New York correspondent

bank account conferred specific jurisdiction under CPLR 302, which requires a connection

between the cause of the action and the jurisdictional predicate. In Al Rushaid, plaintiffs, two Saudi

Arabian companies and a Saudi individual, owner and co-owner of the respective companies, sued

a private Switzerland-based bank among others, alleging that they concealed ill-gotten money

arising out of a scheme arranged by three of the plaintiffs’ employees. The defendants moved to

Page 91: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

dismiss the amended complaint for lack of jurisdiction and failure to state a cause of action, among

other relief. The trial court granted the motion, concluding that the defendants’ use of

correspondent bank accounts in New York was passive, not purposeful. The Appellate Division

affirmed, distinguishing this case from a prior Court of Appeals decision in Licci v. Lebanese Can.

Bank, SAL, 20 N.Y.3d 327 (2012). The Appellate Division noted that Licci required “deliberate

acts” absent in this case because the “defendants merely carried out their clients’ instructions and

have not been shown to have ‘purposefully availed [themselves] of the privilege of conducting

activities in New York’.” 127 A.D.3d 610, 611 (1st Dep’t 2015).

A majority of the Court of Appeals reversed, finding that defendants’ “repeated” use of

correspondent bank accounts to receive and transfer illicit funds was purposeful and “central” to

the bribery and kickback scheme. In addition, the Court held that plaintiffs’ aiding and abetting

and conspiracy claims arose out of these bank transactions. The Court distinguished between a

circumstance where there is a repeated deliberate use of the correspondent account that is approved

by the foreign bank and unintended and unapproved use where the foreign bank “is a passive and

unilateral recipient of funds later rejected.”

The dissent, written by Judge Pigott, expressed the belief that the majority was ignoring prior

precedent, risking “upending over forty years of precedent that holds the mere maintenance of a

New York correspondent account is insufficient to assert personal jurisdiction over a foreign

bank.” Al Rushaid, 28 N.Y.3d at 339. It stressed that the Licci decision required something more

than mere maintenance of and receipt of funds in a correspondent bank and that purposeful contact

is necessary -

[T]he foreign bank in Indosuez International Finance B.V. v National Reserve Bank

(98 NY2d 238 [2002]) was subject to personal jurisdiction where the bank itself

entered into numerous contracts with the plaintiff and specified that payments under

those contracts were to be made into the bank’s New York account, for the benefit

of the bank. Unlike the foreign bank in Amigo Foods, whose only contact with New

York was the maintenance of a correspondent account into which other parties

unilaterally chose to deposit funds, the foreign bank in Indosuez was itself a party

to the contract that had required payments to be made into its correspondent

account. The bank had also expressly designated New York as the place of

performance and submitted to New York jurisdiction in six of its agreements

(citations omitted).

Id. at *16.

The dissent concluded that here, the defendants had no contacts with New York other than

maintaining a correspondent account into which the illicit funds were deposited at the direction of

foreign nationals -

Like the foreign bank in Amigo Foods, Pictet has not wired money through its New

York correspondent account, nor has it initiated any other contact with the forum

state such as the kind we found dispositive in Licci and Indosuez. Even accepting

Page 92: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

as true all of the facts alleged in the amended complaint, Pictet was nothing more

than an “adventitious” recipient of money that had been transferred into its account

at the unilateral direction of foreign nationals, which is insufficient under section

302(a)(1) to exercise personal jurisdiction over a foreign bank.

Id.

CPLR 302(a) - Plaintiff cites no authority to support its argument that New York courts may

exercise jurisdiction over defendant because the policy insured the life of a New York

resident

AMT Capital Holdings, S.A. v. Sun Life Assur. Co. of Can., 161 A.D.3d 465 (1st Dep’t 2018)

(“Defendant issued a $10 million life insurance policy to a trust, designated on the policy

application as the policy owner and beneficiary, which the record shows has its situs in New Jersey.

The policy application was signed in New Jersey, and the receipt reflecting delivery of the policy

identifies New Jersey as the place of execution. While the trustee may be a New York resident, he

is neither the designated owner nor a beneficiary of the policy. Plaintiff cites no authority to

support its argument that New York courts may exercise jurisdiction over defendant because the

policy insured the life of a New York resident. Nor do defendant’s purported ties to New York

suffice. Plaintiff points out that the medical portion of the application was signed in New York by

the insured and the medical examiner and that, before it was delivered to the trustee, the policy

passed through two New York intermediaries. These transactions are not only too fleeting to

provide a jurisdictional foundation, but are also not the acts from which plaintiff’s claims arise

(citations omitted). Even assuming, as the record suggests, that defendant assured plaintiff (which

acquired ownership of the policy) of the incontestability of the policy by a letter faxed to a New

York number, this is not sufficient to establish New York jurisdiction over defendant (citation

omitted).”).

CPLR 302(a) - Defendants subject to jurisdiction because they were part of a conspiracy that

involved the commission of tortious acts in New York

Wimbledon Fin. Master Fund, Ltd. v. Weston Capital Mgt. LLC, 160 A.D.3d 596 (1st Dep’t 2018)

(“The Supreme Court properly concluded that defendants are subject to jurisdiction under New

York's long-arm statute because they were part of a conspiracy that involved the commission of

tortious acts in New York (citations omitted). Defendants were directors on Gerova's board during

most of the time when Gerova was involved in a fraudulent scheme. The amended complaint

details the conspiracy to commit fraud using Gerova, the agreements between Gerova and Weston

board members and insiders, among others, to loot Wimbledon, and Wimbledon's resulting

insolvency (citation omitted). Although defendants did not reside or do business in New York,

other Gerova defendants were in New York or interacted regularly with New York, including one

of the masterminds of the fraudulent scheme, John Galanis. Regarding their overt acts in

furtherance of the conspiracy, defendants' approval of a Gerova proxy statement on which they are

listed and which seeks approval of the sham acquisition of a reinsurance company, their receipt of

‘hush money’ to ignore certain red flags at Gerova, and their failure to correct misrepresentations

or disclose material information to the public sufficed at this stage. Although defendants did not

Page 93: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

mastermind the conspiracy, their receipt of ‘hush money’ allows the reasonable inference that they

exerted ‘control’ to the extent that the fraud could not have been accomplished without their

acquiescence to the proxy and other misconduct (citation omitted).”).

CPLR 302(a)(1) - Defendants did not conduct sufficient purposeful activities in New York,

which bore a substantial relationship to the subject matter of the action

Santiago v. Highway Frgt. Carriers, Inc., 153 A.D.3d 750, 59 N.Y.S.3d 776 (2d Dep’t 2017)

(Motor vehicle accident in Virginia, plaintiffs Nassau County residents, defendants residents of

NJ and Pennsylvania. “The defendants did not conduct sufficient purposeful activities in New

York, which bore a substantial relationship to the subject matter of this action, so as to avail

themselves of the benefits and protections of New York’s laws (citations omitted).”).

CPLR 302(a)(1) - Use of correspondent account in New York

PD Cargo, CA v. Paten Intl. SA, 149 A.D.3d 511, 52 N.Y.S.3d 328 (1st Dep’t 2017) (“Plaintiff’s

allegations that Paten used a correspondent account in New York to run a ‘blue dollar’ currency

exchange operation, and that defendant vendor Lacteos CDS directed plaintiff’s funds to Paten’s

account because Lacteos CDS is a customer of the blue dollar operation, made out a sufficient start

in demonstrating personal jurisdiction under CPLR 302(a)(1). Accordingly, plaintiff is entitled to

jurisdictional discovery (see citations omitted).”).

CPLR 302(a)(1) - Use of New York escrow account

Nick v. Schneider, 150 A.D.3d 1250, 56 N.Y.S.3d 210 (2d Dep’t 2017) (“Contrary to the

defendant’s contention, his alleged contacts with New York amounted to more than mere

communications (citation omitted). The defendant allegedly utilized Sommer & Schneider’s New

York escrow account to further the alleged fraudulent investment scheme by directing the plaintiffs

to deposit the funds for investment deals into the escrow account, by acting as the agent for the

purported investment deals, and by using and allowing Joel to use the investment money deposited

in the escrow account for personal expenses (citation omitted). As to the second prong of the CPLR

302(a)(1) analysis, the plaintiffs’ allegations demonstrated prima facie that the defendant’s

activities in New York had an articulable nexus or substantial relationship to the plaintiffs’ claims

(citation omitted). The plaintiffs’ claims against the defendant of fraud, conversion, breach of

fiduciary duty, and unjust enrichment turned entirely on the defendant’s use of the New York

escrow account to facilitate his fraudulent investment scheme (citation omitted). The plaintiffs also

made a prima facie showing that the defendant committed tortious acts within New York, as the

defendant is alleged to have converted funds held in New York (citations omitted).”).

CPLR 302(a)(1) - Negotiating terms of a note in NY constitutes transaction of business

Page 94: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

Kleinfeld v. Rand, 143 A.D.3d 524, 38 N.Y.S.3d 800 (1st Dep’t 2016) (“Dismissal of the complaint

for lack of personal jurisdiction was improper in this action on defendant’s guaranty of a

promissory note. Defendant is a New Jersey resident, but he came to New York two or three times

— once or twice to negotiate the terms of the note, and once to negotiate his guaranty. Negotiating

the terms of a note constitutes the transaction of business (citations omitted), and by analogy, so

does negotiating the terms of a guaranty of a note.”).

CPLR 302(a)(1) - Transaction of business

Sager v. City of Buffalo, 151 A.D.3d 1908, 58 N.Y.S.3d 796 (4th Dep’t 2017) (“We conclude that

Supreme Court properly determined that plaintiff made a prima facie showing of personal

jurisdiction pursuant to CPLR 302 (a) (1) (citation omitted). Habib is the named principal on the

liquor license and, in opposition to the motion, plaintiff provided the transcript of the testimony of

a witness at the criminal trial of NHJB’s employee in connection with decedent’s death, who stated

that Habib was regularly at Molly’s Pub and was present at Molly’s Pub on the night decedent was

injured, although not at the time the injuries were inflicted. Thus, upon consideration of the totality

of the circumstances, we conclude that Habib ‘has engaged in sufficient purposeful activity to

confer jurisdiction in New York’ ‘(citations omitted). We further conclude that Habib’s ‘conduct

in relation to New York was such that [he] should [have] reasonably anticipate[d] being haled into

court’ ‘in this state, and thus the exercise of jurisdiction does not violate due process (citations

omitted”).

CPLR 302(a)(1) - No transaction of business

Ripplewood Advisors, LLC v. Callidus Capital SIA, 151 A.D.3d 611, 54 N.Y.S.3d 291 (1st Dep’t

2017) (“New York does not have personal jurisdiction over defendants pursuant to CPLR

302(a)(1), as they did not avail themselves ‘of the privilege of conducting activities within [this]

State, thus invoking the benefits and protections of its laws’ (citation omitted). The telephone and

email communications between the Latvian defendants and plaintiff’s office in New York,

concerning a contemplated association in the acquisition of a Latvian bank (with no presence in

New York) undergoing privatization, do not suffice to constitute the transaction of business in

New York. In so concluding, we find it persuasive that defendants never entered New York in

connection with their dealings with plaintiff, that the parties’ electronic communications also ran

between defendants and plaintiff’s London office, that plaintiff traveled to Latvia in connection

with this matter, and that the parties’ contemplated association (if the bank were acquired) would

be centered in Latvia (citation omitted]).”).

CPLR 302(a)(1) - Escrow agreement

First Manhattan Energy Corp. v. Meyer, 150 A.D.3d 521, 56 N.Y.S.3d 28 (1st Dep’t 2017)

(“Plaintiff alleges that defendant Meyer failed to release funds that plaintiff deposited into Meyer’s

lawyer trust account to be held in escrow. Plaintiff had entered into the escrow agreement with a

New York law firm, which had designated defendant, a California attorney, as its agent, pursuant

to an agreement with defendant. Defendant moved to dismiss on the ground, inter alia, of lack of

jurisdiction over him, arguing that he was a California lawyer with no presence in New York, was

Page 95: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

not party to the escrow agreement, and did not transact business in New York. Plaintiff made a

sufficient showing of jurisdiction pursuant to CPLR 302(a)(1) to withstand dismissal (citation

omitted). The record establishes prima facie that defendant, while not a party to the instant escrow

agreement, was designated in the escrow agreement as the ‘Assigned Escrow Agent[]’ into whose

account the funds would be deposited, and that he accepted the funds pursuant to the agreement.

In so doing, pursuant to his agreement with the New York escrowee, defendant ‘affected local

commerce’ in New York by ‘chang[ing] [plaintiff’s] economic position,’ and in receiving the

funds into his California account via wire transfer, he transacted business here by availing himself

of modern technology to participate in and confer upon himself the benefit of the transaction while

living and physically working elsewhere (citation omitted).”).

CPLR 302(a)(1) - Transaction of business – distinguishes Fischbarg case

Coast to Coast Energy, Inc. v. Gasarch, 149 A.D.3d 485, 53 N.Y.S.3d 16, Footnote 1 (1st Dep’t

2017) (“As the dissent observes, the Court of Appeals concluded in Fischbarg that defendants’

retention and subsequent communications with plaintiff in New York established a continuing

attorney-client relationship in this state and thereby constituted the transaction of business under

CPLR 302(a)(1). However, in Fischbarg the record established that defendants called Fischbarg,

a New York attorney, in order to represent them in an action in Oregon, entered into a retainer

agreement, and participated in that relationship via telephone calls, faxes and e-mails over many

months. Thus, the Court found that defendants purposefully projected themselves into New York.

In contrast, here plaintiffs rely on conclusory allegations and have not demonstrated that Wampler

engaged in sustained and substantial business with plaintiffs in New York.”).

CPLR 302(a)(1) - Website

Venegas v. Capric Clinic, 147 A.D.3d 457, 47 N.Y.S.3d 13 (1st Dep’t 2017) (“In opposition to the

doctor’s showing of the lack of personal jurisdiction over him (citation omitted), plaintiff made a

‘sufficient start’ to warrant discovery concerning whether the doctor has jurisdictional contacts

with the State of New York sufficient to support the exercise of jurisdiction under CPLR 302(a)(1)

(citations omitted). Although the website information submitted by plaintiff is, by itself,

insufficient to meet his ultimate burden of establishing jurisdiction (citations omitted), the

statements on the website boasting that the doctor has provided medical treatment in New York

for the last 14 years directly contradict the doctor’s claims that he has never provided any medical

treatment in New York. Because the doctor averred that he only treated plaintiff in Pennsylvania,

and plaintiff submitted no evidence disputing that sworn statement, any injury suffered by plaintiff

occurred in Pennsylvania, where the malpractice took place (citations omitted). Therefore, to the

extent plaintiff alternatively relies on CPLR 302(a)(3)(i), he failed to make a sufficient start in

showing jurisdiction under that provision (id.).”).

COMMENCEMENT

Page 96: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

CPLR 304 - Commencing actions or special proceedings

CPLR 304 - Failure to file initial papers, here in a third-party action, is nonwaivable

jurisdictional defect

DiSilvio v. Romanelli, 150 A.D. 3d 1078, 56 N.Y.S.3d 162 (2d Dep’t 2017) (“Under CPLR 304(a),

an action in Supreme Court is ordinarily commenced ‘by filing a summons and complaint or

summons with notice.’ The failure to file the initial papers necessary to commence an action

constitutes a nonwaivable, jurisdictional defect, rendering the action a nullity (citations omitted).

Here, the appellant undertook no steps to commence a third-party action, despite his unilateral

amendment of the caption of the action in his motion papers to include the nonparty respondents

as ‘third-party defendants.’ Consequently, the jurisdiction of the court was never invoked and the

purported third-party action was a nullity (citation omitted). As a result, all relief sought by the

appellant against the nonparty-respondents was properly denied.”).

CPLR 304 / 2001 - Filing with the wrong clerk renders the proceeding a nullity

Matter of Dougherty v. County of Greene, 161 A.D.3d 1253 (3d Dep’t 2018) (“While the Supreme

Court or the County Court may convert an improperly brought motion for leave to serve a late

notice of claim into a special proceeding (citations omitted), the failure to file the application with

the appropriate clerk — the County Clerk — is a fatal defect that may not be overlooked or

corrected by the court pursuant to CPLR 2001 (citations omitted). Indeed, the filing of initiatory

papers with the Clerk of the Supreme and County Courts, rather than the County Clerk, ‘has been

equated to a nonfiling and, thus, 'a nonwaivable jurisdictional defect rendering the proceeding a

nullity’ (citations omitted). Here, petitioner mailed her 2013 application to the Greene County

Courthouse to the attention of the ‘County Lawyer Clerks Office.’ Petitioner's papers were

promptly rejected by the Chief Clerk of the Supreme and County Courts in Greene County and

returned to petitioner with a letter identifying several deficiencies with her papers and directing

that they be mailed to the County Clerk's Office. Petitioner's failure to file her 2013 application

with the proper clerk amounts to a nonwaivable jurisdictional defect, rendering the proceeding a

nullity (citations omitted). Consequently, petitioner's 2015 submissions cannot relate back to her

2013 attempted application. Given that petitioner did not file an application with the Greene

County Clerk prior to the expiration of the one year and 90-day statute of limitations, which

expired in February 2014, Supreme Court was statutorily prohibited from extending the time in

which petitioner had to serve her notice of claim upon respondent (citations omitted).”).

CPLR 304 / 2001 - Failure to file papers required to commence a proceeding constitutes a

nonwaivable, jurisdictional defect

Matter of Ennis v. Annucci, 160 A.D.3d 1321, 75 N.Y.S.3d 347 (3rd Dep’t 2018) (“The four-

month statute of limitations period in which to commence this proceeding began to run upon

petitioner's notification of the adverse determination on July 20, 2016 (citation omitted). To that

end, ‘a proceeding such as this is deemed commenced for statute of limitations purposes on the

date on which the clerk of the court actually receives the petition in valid form’ (citations omitted).

Because the record establishes that petitioner did not submit the petition and related documentation

Page 97: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

in proper form until after the four-month statutory period had expired, Supreme Court properly

dismissed the petition as untimely (citations omitted). Contrary to petitioner's contention, the

deficiencies in the initial papers submitted — which included unsigned, undated and non-original

documents — are not subject to correction pursuant to CPLR 2001 so as to render the proceeding

timely inasmuch as ‘[t]he failure to file the papers required to commence [a proceeding] constitutes

a nonwaivable, jurisdictional defect’ (citations omitted). Accordingly, the merits of the

disciplinary determination are not properly before us.”).

SUMMONS

CPLR 305 - Summons

CPLR 305(c) - There was no misnomer that required correction by amendment

Martin v. Witkowski, 2017 NY Slip Op 09014 (4th Dep’t 2017) (“This appeal raises an age-old

dilemma: how should the law distinguish between a father and son of the same name? Under the

circumstances presented here, we hold that plaintiff properly commenced a single action against

Walter Witkowski, Jr. notwithstanding plaintiff’s initial and ineffective attempt to serve

Witkowski, Jr. at the home of his father, Walter Witkowski, Sr. … In light of the foregoing, we

hold that Junior is, and always has been, the only defendant in this case. We emphasize, however,

that our conclusion is based in no part on the rule of Stuyvesant v. Weil (citation omitted), which

‘has been consistently interpreted as allowing a misnomer in the description of a party defendant

to be cured by amendment [so long as] (1) there is evidence that the correct defendant (misnamed

in the original process) has in fact been properly served, and (2) the correct defendant would not

be prejudiced by granting the amendment’ (citations omitted). The Stuyvesant rule, which has been

codified and subsumed within CPLR 305 (c), applies when there has been a ‘misnomer’ in

describing the defendant in the summons and/or complaint, and that simply did not occur here.

Junior was not ‘misnamed’ as defendant ‘Walter Witkowski.’ To the contrary, although this

description is perhaps an imprecise recitation of the defendant’s name, it is not in any sense an

inaccurate recitation of Junior’s name. Whatever else he might choose to be called, Junior is

unquestionably a ‘Walter Witkowski.’ And as then Chief Justice Kent observed over two centuries

ago, the suffix ‘junior is no part of the name . . . It is a casual and temporary designation. It may

exist one day, and cease the next’ (citation omitted). The Stuyvesant rule therefore has no

application here; put simply, there was no ‘misnomer’ that required correction by amendment.”).

CPLR 305(c) - Amendment of caption of summons would prejudice City since it was not

served with a timely notice of claim

West v. City of New York, 143 A.D.3d 810, 39 N.Y.S.3d 65 (2d Dep’t 2016) (“The plaintiff

concedes that neither the City nor the Dormitory Authority is a proper party to this action. He seeks

to amend the caption to substitute CUNY as the defendant and to deem the summons and complaint

served upon CUNY, nunc pro tunc, pursuant to CPLR 305(c). . . . Here, CUNY would be

prejudiced by the amendment because the plaintiff failed to timely serve it with a notice of claim,

which is a condition precedent to the commencement of a tort action against a community college

Page 98: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

of CUNY (citations omitted). While the plaintiff’s initial service of a notice of claim naming the

wrong municipal entity might have constituted a reasonable excuse to support a motion for leave

to serve a late notice of claim made within the available one-year-and-90-day statute of limitations

(see General Municipal Law § 50-e[5]), the plaintiff never made such a timely motion. To the

extent that the plaintiff’s cross motion can be deemed an application to serve a late notice of claim

against CUNY, as the one-year-and-90-day statute of limitations has expired, the Supreme Court

lacked the authority to extend the time to file a notice of claim beyond the statutory time limit for

the asserted claim (citations omitted).”).

CPLR 305(c) - Misnomer exception does not apply because proper party was not served

Gil v. City of New York, 143 A.D.3d 572, 41 N.Y.S.3d 13 (1st Dep’t 2016) (“It is undisputed that

Reyes and Jean filed a complaint naming only New York City Department of Parks and Recreation

(Parks), which it served only on Parks. Movants contend that they should be permitted to amend

the summons and complaint to add the City as a defendant because Parks was a misnomer.

However, the misnomer exception is inapplicable because the proper party, the City, was not

served (citations omitted). Moreover, CPLR 306-b may not be used to extend the statute of

limitations (citation omitted). The relation back doctrine is similarly inapplicable because a

mistake of law is not the type of mistake contemplated by the doctrine (citations omitted). Here,

movants mistakenly believed that Parks was an entity subject to suit (see NY City Charter §

396).”).

CPLR 305(c) - Amendment of caption to correct name of party/entity

Jaramillo v. Asconcio, 151 A.D.3d 947, 58 N.Y.S.3d 412 (2d Dep’t 2017) (“[T]he supplemental

summons and amended complaint did not add Darek Cake, Inc., as a new party. Rather, that

defendant was one of the original parties, sued under the misnomer ‘Darek Cake Company.’ The

amendment of a caption to correct the name of an entity which is already a party to the action is

governed by CPLR 305(c), which provides that the court may permit such an amendment ‘[a]t any

time, in its discretion and upon such terms as it deems just, . . . if a substantial right of a party

against whom the summons issued is not prejudiced’ (citations omitted). The amendment may be

made nunc pro tunc (citation omitted). Here, the so-ordered stipulation, signed and filed in January

2014, was sufficient to correct the caption, and there is no evidence of prejudice. However,

Marzena Lojek was not an original party to the action, nor is there any evidence that she waived

the issue of personal jurisdiction. Therefore, the Supreme Court should have granted that branch

of the motion which was to dismiss the amended complaint insofar as asserted against her as barred

by the statute of limitations.”).

SERVICE

CPLR 306-b - Service of initiating pleadings

CPLR 306-b - Plaintiff’s motion for extension under CPLR 306-b permitted after motion to

dismiss on jurisdictional grounds was granted because no judgment had been entered

Page 99: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

US Bank N.A. v. Saintus, 153 A.D.3d 1380, 61 N.Y.S.3d 315 (2d Dep’t 2017) (“Under the

circumstances of this case, the Supreme Court should have granted that branch of the plaintiff’s

motion which was pursuant to CPLR 306-b for leave to extend its time to serve the summons and

complaint upon Saintus in the interest of justice (citation omitted). While the action was timely

commenced, the statute of limitations had expired when the plaintiff moved for this relief, the

timely service of process was subsequently found to have been defective, there was no identifiable

prejudice to Saintus attributable to the delay in proper service, and the complaint appears to be

potentially meritorious (citations omitted). Contrary to Saintus’s contention, the court did not lack

jurisdiction to entertain this branch of the plaintiff’s motion. Inasmuch as no judgment was entered

dismissing the action, the action was pending when the plaintiff moved to extend the time to serve

Saintus with process (citation omitted).”).

CPLR 306-b - Extension granted

Furze v. Stapen, 161 A.D.3d 827 (2d Dep’t 2018) (‘Here, the record established that the plaintiff

exercised diligence in timely filing, and in attempting to serve Nayak and notify Nayak and her

insurance carrier of the summons and complaint within the 120-day period following the filing of

the summons and complaint, although the attempt to serve Nayak was ultimately deemed defective

(citation omitted). While the action was timely commenced, the statute of limitations had expired

when the plaintiff cross-moved for relief, the plaintiff promptly cross-moved for an extension of

time to serve Nayak, and there was no identifiable prejudice to Nayak attributable to the delay in

service (citations omitted).”).

Nunez-Ariza v. Nell, 161 A.D.3d 614 (1st Dep’t 2018) (“Here, defendant’s insurer was on notice

of the claim within months of the happening of the accident and plaintiff demonstrated a potentially

meritorious action. ‘Because some factors weigh in favor of granting an interest of justice

extension and some do not, we should not disturb Supreme Court’s discretion-laden determination’

(citations omitted).”).

CPLR 306-b - Extension granted in interest of justice

Estate of Fernandez v. Wyckoff Hgts. Med. Ctr., 2018 NY Slip Op 04306 (2d Dep’t 2018)

(“Contrary to the plaintiff's contention, an attempt at service that later proves defective cannot be

the basis for a ‘good cause’ extension of time to serve process pursuant to CPLR 306-b (citations

omitted). However, the more flexible ‘interest of justice’ standard accommodates late service that

might be due to mistake, confusion, or oversight, so long as there is no prejudice to the defendant

(citation omitted). Indeed, the court may consider diligence or lack thereof, along with any other

relevant factor, in making its determination, including expiration of the statute of limitations, the

potentially meritorious nature of the cause of action, the length of delay in service, the promptness

of a plaintiff's request for the extension of time, and prejudice to defendant (citations omitted).

Here, several factors weighed in favor of granting the plaintiff's cross motion. The action was

timely commenced, and the statute of limitations with respect to one of the two causes of action

had expired when the plaintiff cross-moved for relief (citations omitted). The appellant also had

actual notice of this action within 120 days after its commencement (citations omitted).

Page 100: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

Furthermore, an extension of time to serve the summons and complaint under CPLR 306-b in the

interest of justice is available where, as here, ‘service is timely made within the 120-day period

but is subsequently found to have been defective’ (citations omitted). Finally, we note that whether

a plaintiff has demonstrated that he or she has a potentially meritorious cause of action is but one

factor to be considered by a court in determining a CPLR 306-b motion (citation omitted).”).

Gabbar v. Flatlands Commons, LLC, 150 A.D.3d 1084, 55 N.Y.S.3d 353 (2d Dep’t 2017) (“The

Supreme Court providently exercised its discretion in granting the plaintiffs’ cross motion pursuant

to CPLR 306-b to extend their time to serve the summons and complaint upon the appellant in the

interest of justice (citation omitted). The plaintiffs’ time to effect service of process was properly

extended since the verified complaint demonstrated a potentially meritorious cause of action, the

statute of limitations had expired, the action was commenced within the 3-year statutory period,

service of the summons and complaint which was timely made within the 120-day period (citation

omitted) was subsequently found to have been defective, and there is no demonstrable prejudice

to the appellant that would militate against granting the extension of time to serve it (citations

omitted). In the absence of prejudice to the appellant, it would be unjust to deprive the plaintiffs

of the opportunity to prove their causes of action against both defendants (citations omitted).”).

CPLR 306-b - Extreme lack of diligence

Hourie v. North Shore-Long Is. Jewish Health Sys., Inc.-Lenox Hill Hosp., 150 A.D.3d 707, 54

N.Y.S.3d 53 (2d Dep’t 2017) (“Here, the plaintiff failed to demonstrate that she was entitled to an

extension of time to serve the appellant for good cause, as she failed to establish that she exercised

reasonably diligent efforts in attempting to effect proper service (citation omitted). Not only did

the plaintiff fail to make any further attempts to serve the appellant after her first attempt was

unsuccessful, as the summons was returned to her, but her complaint insofar as asserted against

the other defendants was dismissed because she failed to timely serve them with a complaint.

Further, the plaintiff failed to establish her entitlement to an extension of time for service in the

interest of justice, as she exhibited an extreme lack of diligence in attempting to effect proper

service, waited almost five months after the expiration of the 120-day period in which she was

required to serve the appellant to move for the extension of time, and failed to demonstrate a

potentially meritorious cause of action (citations omitted).”).

Krasa v. Dial 7 Car & Limousine Serv., Inc., 147 A.D.3d 744, 46 N.Y.S.3d 196 (2d Dep’t 2017)

(“The plaintiff failed to show good cause for her failure to serve the defendants, since she

admittedly made no attempt to serve them within 120 days after the filing of the summons and

complaint (citations omitted). Furthermore, the plaintiff failed to establish that an extension of

time was warranted in the interest of justice. The plaintiff exhibited an extreme lack of diligence

in commencing the action, which was not commenced until one day before the expiration of the

statute of limitations, made a single attempt to effect service two months after the expiration of the

120-day period set forth in CPLR 306-b, failed to seek an extension of time until after the

defendants moved to dismiss the complaint for lack of personal jurisdiction, failed to offer any

excuse for the delay in serving the defendants, and failed to demonstrate a potentially meritorious

cause of action (citations omitted).”).

Page 101: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

CPLR 306-b - Waiting for 18 months after service was contested to move for extensions,

deemed not unreasonable under circumstances

Deutsche Bank, AG v. Vik, 149 A.D.3d 600, 50 N.Y.S.3d 291 (1st Dep’t 2017) (“The motion court

exercised its discretion in a provident manner in granting the extension both for ‘good cause

shown’ and ‘in the interest of justice’ (citation omitted). Although plaintiff waited to move for the

extension until 18 months after service was contested, this was not unreasonable under the

circumstances presented. Furthermore, other relevant factors weighed in favor of granting the

motion including plaintiff’s diligence, the expiration of the statute of limitations on a number of

the plaintiff’s claims and the absence of prejudice to defendant in light of his actual notice of the

summons and complaint (citation omitted). Where ‘some factors weigh in favor of granting an

interest of justice extension and some do not,’ ‘this Court will not disturb the motion court’s

“discretion-laden determination”‘ (citations omitted)”).

CPLR 306-b - Failure to demonstrate good cause or entitlement to extension in interests of

justice

Encarnacion v. Ogunro, 2018 NY Slip Op 04698 (2d Dep’t 2018) (“The plaintiff failed to

demonstrate good cause. The attempt to serve the defendant pursuant to CPLR 308(4) was

ineffective as a matter of law because the place where process was affixed was not the defendant's

‘actual place of business, dwelling place or usual place of abode’ (citations omitted). The plaintiff

also failed to establish her entitlement to an extension of time for service of the summons and

complaint in the interest of justice in view of the extreme lack of diligence in attempting to effect

service, the more than six-year delay between the filing of the summons and complaint and the

time the cross motion was made, the plaintiff's failure to move for an extension of time until more

than eight months after the defendant moved to vacate the default judgment, the four-year delay

between the expiration of the statute of limitations and the defendant's receipt of notice of this

action, and the inference of substantial prejudice due to the lack of notice of the plaintiff's causes

of action until more than six years after their accrual (citations omitted).”).

Zerbi v. Botwinick, 2018 NY Slip Op 04376 (2d Dep’t 2018) (“The plaintiffs failed to establish

that they exercised reasonably diligent efforts in attempting to effect proper service on Botwinick

and, therefore, failed to demonstrate good cause (citations omitted). The plaintiffs also failed to

establish that an extension of time was warranted in the interest of justice. The plaintiffs exhibited

a lack of diligence in attempting to effect proper service, failed to seek an extension of time until

after the defendants' motion was made, did not rebut the evidence that Botwinick did not learn of

the action until eight months after the statute of limitations had run, and failed to demonstrate a

potentially meritorious cause of action (citations omitted). Accordingly, we agree with the

Supreme Court's determination to deny the plaintiffs' cross motion and to grant that branch of the

defendants' motion which was to dismiss the complaint insofar as asserted against Botwinick.”).

Silvering v. Sunrise Family Med., P.C., 161 A.D.3d 1021 (2d Dep’t 2018) (“Having failed to

investigate whether the defendant still worked at Sunrise, the plaintiffs failed to demonstrate that

they exercised reasonable diligence in attempting to effect service. Thus, the plaintiffs were not

entitled to an extension of time for ‘good cause’ (citations omitted). Nor did the plaintiffs

Page 102: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

demonstrate circumstances warranting an extension of time ‘in the interest of justice’ (citation

omitted). The plaintiffs did not exercise diligence in serving the defendant, the defendant had no

notice of the action until over two years after expiration of the statute of limitations, and there was

no showing of merit to the plaintiffs’ causes of action (citation omitted).”).

CPLR 306-b - Extension unavailable; claims already time-barred and lacked merit

Schwartz v. Chan, 75 N.Y.S.3d 31 (1st Dep’t 2018) (“As plaintiff's claims were already time-

barred under the statute of limitations for libel and slander actions (citation omitted) when he filed

the summons, CPLR 306–b is unavailable to him to extend his time to serve the complaint

(citations omitted). Nor is an extension warranted in the interest of justice, since the claims not

only are time-barred but also lack merit (citations omitted). The statements of which plaintiff

complains are protected by the litigation privilege, since they were prepared in connection with a

threatened litigation, at the direction of a potential defendant, by an individual who, at a minimum,

was a potential witness (citation omitted).”).

CPLR 306-b - Extension denied; factors considered

Holbeck v. Sosa-Berrios, 161 A.D.3d 957 (2d Dep’t 2018) (“Here, the plaintiff failed to

demonstrate ‘good cause’ for an extension of time, as he did not show that he exercised reasonable

diligence in attempting to effect service (citations omitted). The plaintiff resorted to affix and mail

service after only two attempts to deliver the summons and complaint on a weekday, at

approximately the same time of day, when the defendant reasonably could have been expected to

be at work (citations omitted). Further, the affirmation of the plaintiff’s counsel does not indicate

that he made any effort to verify that the defendant still resided at the address listed on the three-

year-old police report, particularly after efforts to deliver the summons and complaint were

unsuccessful (citations omitted). In addition, the Supreme Court did not improvidently exercise its

discretion in declining to grant the plaintiff an extension of time in the interest of justice. … Here,

as a result of the plaintiff’s lack of diligence in serving the defendant, the defendant did not receive

the summons and complaint until approximately 3 months and 3 weeks after expiration of the 120-

day period for service, and approximately 7½ months after expiration of the statute of limitations.

Significantly, there is no evidence that the defendant had any notice of the action until that time.

Further, the plaintiff did not adduce evidence tending to show a lack of prejudice to the defendant,

and there was no showing of merit to the plaintiff’s claim of having sustained a serious injury,

including even a recitation of the injuries he suffered.”).

CPLR 306-b - Plaintiff’s bare assertion that his pro se and incarcerated status constitutes

good cause to extend his time to effectuate service rejected

Stegemann v. Rensselaer County Sheriff’s Off., 155 A.D.3d 1455 (3d Dep’t 2017) (“First, Supreme

Court correctly rejected plaintiff’s bare assertion that his pro se and incarcerated status constitutes

good cause to extend his time to effectuate service (citations omitted). Plaintiff has made no effort

to demonstrate how his imprisonment prevented his compliance with statutory service

requirements. Moreover, we note that he has commenced two other very similar civil actions and

Page 103: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

engaged in extensive motion practice in this case and the other two actions, despite his

incarceration and pro se status.”).

CPLR 306-b - Inasmuch as defendant failed to move to dismiss the complaint based on

improper service within 60 days of serving his answer, he cannot challenge the court’s

determination to grant that part of plaintiff’s cross motion seeking an extension of time for

service of the summons and complaint pursuant to CPLR 306-b

Doe v. D’Angelo, 154 A.D.3d 1300, 62 N.Y.S.3d 680 (4th Dep’t 2017) (“We agree with plaintiff

that Supreme Court properly denied defendant’s motion inasmuch as defendant waived his defense

of lack of personal jurisdiction based on improper service of process by failing to move to dismiss

the complaint on that ground within 60 days of serving his answer (citations omitted). Defendant’s

contention that his motion was based on the statute of limitations, as opposed to improper service,

is belied by the record and, in any event, is without merit because plaintiff filed the summons with

notice prior to the expiration of the limitations period (citations omitted). We likewise conclude

that, inasmuch as defendant failed to move to dismiss the complaint based on improper service

within 60 days of serving his answer, he cannot challenge the court’s determination to grant that

part of plaintiff’s cross motion seeking an extension of time for service of the summons and

complaint pursuant to CPLR 306-b (citation omitted). In any event, upon consideration of the

relevant factors, including the expiration of the statute of limitations, the meritorious nature of

plaintiff’s cause of action against defendant, and defendant’s failure to show any prejudice, we

conclude that the court did not abuse its discretion in granting that part of plaintiff’s cross motion

(citations omitted).”).

CPLR 306-b - Extension denied; lack of reasonable diligence; plaintiff should have known

person served was not authorized to receive service, and made no effort to learn the identity

of the current officers

Goldstein Group Holding, Inc. v. 310 E. 4th St. Hous. Dev. Fund Corp., 154 A.D.3d 458, 62

N.Y.S.3d 105 (1st Dep’t 2017) (“Plaintiff then requested an extension of time for service in

opposition to defendant’s motion to dismiss, instead of formally cross-moving for an extension

(citation omitted). We need not reach the disputed procedural issue regarding whether a formal

cross motion was required because the court providently exercised its discretion in denying the

request for an extension on its merits (citation omitted). By attempting service on Brandstein, who

plaintiff should have known was not authorized to receive service, and making no effort to learn

the identity of the current officers, plaintiff failed to act with reasonable diligence in trying to effect

service, and thus failed to establish good cause in support of its request (citations omitted). Nor is

an extension of time to serve warranted in the interest of justice, given plaintiff’s failure to act with

any due diligence to ensure that the instant action was not dismissed for exactly the same reason

for which the prior action was dismissed. While the statute of limitations on plaintiff’s claim may

have expired, defendant’s low-income tenants have lived through two foreclosure actions and

beyond the statute of limitations with the uncertainty whether they may remain in their homes, and

plaintiff waited until after expiration of the 120-day period to serve defendant or seek an extension

of time (citation omitted).”).

Page 104: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

CPLR 306-b - Extension should be sought via cross-motion

Komanicky v. Contractor, 146 A.D.3d 1042, 43 N.Y.S.3d 761 (3rd Dep’t 2017) (“To the extent

that plaintiff’s papers in opposition to the motions can be read as requesting an extension of time

to serve defendants pursuant to CPLR 306-b, such affirmative relief should have been sought by

way of a cross motion on notice (citations omitted). … In addition to plaintiff’s lack of diligence

in attempting to effectuate service within the time period prescribed by CPLR 306-b (citations

omitted), his purported ‘request’ for an extension of time for service, even if it may be deemed as

such, was made more than 15 months after the 120-day period had expired and only after

defendants had moved for dismissal (citations omitted).”).

CPLR 306-b / CPLR 308(2) - Delivery and mailing must be effected within 120 days

Purzak v. Long Is. Hous. Servs., Inc., 149 A.D.3d 989, 53 N.Y.S.3d 112 (2d Dep’t 2017) (“Both

the delivery and mailing components of CPLR 308(2) must be performed within 120 days of the

filing of process (citations omitted). Here, the affidavits of the plaintiff’s process server state that

he served the summons with notice on DeGennaro, Santantonio, Bonet, and Roman by delivering

copies to Wilder at the LIHS office on December 2, 2011, and by mailing additional copies to

those defendants at the LIHS office on December 5, 2011. December 5, 2011, is 122 days after the

date of the filing of the summons with notice, and beyond the 120-day period required by CPLR

306-b. Consequently, service of the summons with notice upon the individually named defendants

was untimely (citation omitted). Moreover, as to service upon DeGennaro, Santantonio, Bonet,

and Roman, the plaintiff failed to demonstrate good cause for an extension of time to effect proper

service on those defendants, or that an extension was otherwise warranted in the interest of justice

(citations omitted).”).

CPLR 308 - Personal service on natural persons

CPLR 308(2) - Service on 15-year-old as person of “suitable age and discretion” within the

meaning of CPLR 308(2)

Marathon Structured Asset Solutions Trust v. Fennell, 153 A.D.3d 511, 61 N.Y.S.3d 232 (2d Dep’t

2017) (“The Supreme Court properly denied that branch of the defendants’ motion which was to

dismiss the complaint insofar as asserted against them for lack of personal jurisdiction based on

improper service. The affidavit of the process server constituted prima facie evidence of proper

service pursuant to CPLR 308(2) (citations omitted). In opposition, the affidavits submitted by the

defendants were insufficient to rebut the presumption of proper service created by the process

server’s affidavit (citation omitted). Although the defendants demonstrated that service was

effected on their then 15-year-old daughter, they failed to establish that their daughter was not

‘objectively . . . of sufficient maturity, understanding and responsibility under the circumstances

so as to be reasonably likely to convey the summons to [her]’ (citation omitted) and, thus, not a

person of ‘suitable age and discretion’ within the meaning of CPLR 308(2).”).

Page 105: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

CPLR 308(2) - Hearing to determine whether the security guard was person of suitable age

and discretion and if the outer bounds of the defendants’ dwelling place extended to the

security office

Citibank, N.A. v. Balsamo, 144 A.D.3d 964, 41 N.Y.S.3d 744 (2d Dep’t 2016) (“The plaintiff’s

process server averred that he was denied entry to the defendants’ condominium complex ‘by [the]

defendant[s],’ and that he, therefore, left the summons and complaint with ‘JOHN DOE (NAME

REFUSED), SECURITY GUARD.’ ‘[I]f a process server is not permitted to proceed to the actual

apartment by the doorman or some other employee, the outer bounds of the actual dwelling place

must be deemed to extend to the location at which the process server’s progress is arrested’

(citations omitted). However, the defendants rebutted the process server’s affidavit of service

through their specific and detailed averments that they never received the summons and complaint,

that they never denied access to a delivery person or received a call to authorize a delivery on the

date in question or on any other day, and that the security guards are not authorized to receive

packages or deliveries (citation omitted). Under these circumstances, the Supreme Court should

have conducted a hearing to determine whether the security guard was a person of suitable age and

discretion within the contemplation of CPLR 308(2), and if the outer bounds of the defendants’

dwelling place extended to the security office (citations omitted).”).

CPLR 308(2) - Delivery to concierge

Citibank, N.A. v. K.L.P. Sportswear, Inc., 144 A.D.3d 475, 41 N.Y.S.3d 29 (1st Dep’t 2016) (“The

process server testified that it was his general practice not to deliver papers to a concierge without

first seeking permission to go up to the relevant apartment. The property manager of the building

in which defendant resides likewise testified that it was the building’s policy to not allow anyone

to enter without the resident’s permission. This testimony regarding general practices was

sufficient to raise a presumption of proper service (citations omitted), and defendant failed to rebut

this presumption (citation omitted). The process server’s failure to preserve his contemporaneous

logbook is not sufficient to rebut the presumption, especially since the property manager’s

testimony corroborated the testimony of the process server (citation omitted).”).

CPLR 308(2) - “Outer bounds” of defendant’s dwelling – Service not refused

Wells Fargo Bank, N.A. v. Ferrato, 150 A.D.3d 546, 55 N.Y.S.3d 191 (1st Dep’t 2017)

(“Plaintiff’s process server attempted to serve defendant at her apartment, which was a loft

accessed directly from an elevator. The process server averred that a woman was standing inside

holding a baby and a party was in progress, so he dropped the papers. Denying that service was

properly made pursuant to CPLR 308(2), plaintiff submitted the affidavit of a woman who stated

that she was at the entrance to the apartment and holding a baby at the time specified by the process

server, but that he never identified himself, did not ask her to take the papers, did not attempt to

gain access, and did not hand any papers to her or drop papers near her. Instead, the elevator door

closed with the process server and the papers still inside. Under this version of the events, service

was not properly made pursuant to CPLR 308(2). While plaintiff argued that the ‘outer bounds’ of

defendant’s dwelling extended to include the elevator, it did not establish either that its process

Page 106: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

server was not permitted to proceed or that service was made upon ‘a person of suitable age and

discretion’ (citation omitted). Further, since plaintiff did not establish that service was refused

upon the process server informing the person at the apartment that service was being made by

leaving a copy of the summons outside the door (inside the elevator) of the person to be served,

plaintiff did not demonstrate that the process server made the person aware that such service was

being made (citation omitted). In light of the factual issues as to the validity of service, the

threshold issue of personal service should have been resolved with a traverse hearing (citation

omitted).”).

CPLR 308(2) - Service on defendant’s mother while she was inside her own apartment in

same multiple dwelling as defendant is insufficient

Thacker v. Malloy, 148 A.D.3d 857, 49 N.Y.S.3d 165 (2d Dep’t 2017) (“Here, at a hearing to

determine the validity of service of process, the plaintiff failed to meet her burden of proving by a

preponderance of the evidence that jurisdiction over the defendant was obtained by proper service

of process. Evidence showed that the process server walked up to the window of the defendant’s

mother’s ground-floor apartment to give her the summons and complaint as he stood on the

sidewalk and she stood inside her apartment. Although the defendant resided in the same multiple-

dwelling building as his mother, his apartment was on a higher floor, and it was separate and

distinct from his mother’s apartment. Hence, in serving the defendant’s mother with the summons

and complaint while she was inside her own apartment, service was not made at the defendant’s

actual dwelling place (citations omitted). Accordingly, the Supreme Court properly, in effect,

granted that branch of the defendant’s cross motion which was pursuant to CPLR 3211(a)(8) to

dismiss the complaint for lack of personal jurisdiction.”).

CPLR 308(2) - Service proper

Matter of Savitt, 161 A.D.3d 109 (1st Dep’t 2018) (“We find that respondent has failed to rebut

the Committee's evidence of proper service. Jurisdiction was properly attained over respondent

where the petition of charges was delivered to ‘Connie’ at respondent's actual place of business

and then mailed the next day to respondent's office, and any defects in the affidavit of service or

the failure to timely file said affidavits with this Court are irregularities that can be properly cured

by deeming it filed nunc pro tunc (citations omitted).”).

CPLR 308(2) - Failure to file proof of service

Divito v. Fiandach, 160 A.D.3d 1404 (4th Dep’t 2018) (“Contrary to plaintiff's initial contention,

defendant was not in default in the action because plaintiff never effectuated proper service upon

him. Plaintiff attempted personal service pursuant to CPLR 308 (2) by delivering a copy of the

summons and complaint to a person of suitable age and discretion at defendant's workplace and

by mailing a copy to his workplace. Plaintiff did not, however, file proof of service in the Monroe

County Clerk's Office within 20 days of the delivery or mailing (citation omitted), and he never

applied to the court for leave to file a late proof of service (citation omitted). As a result, plaintiff's

subsequent late filing of the proof of service was a nullity (citations omitted). Personal service of

the summons was not deemed to have occurred until March 14, 2016, when defendant's attorney

Page 107: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

filed a notice of appearance (citation omitted). Defendant had 20 days from that date to serve an

answer or a motion to dismiss (citation omitted), to avoid being in default (citation omitted).

Defendant's motion to dismiss the complaint pursuant to CPLR 3211 was made 18 days later, and

thus he never defaulted in the action (citation omitted).”).

CPLR 308(2) / 5015(a)(4)- Mailing requirement not strictly complied with

Deutsche Bank Natl. Trust Co. v. Ferguson, 156 A.D.3d 460, 64 N.Y.S.3d 887 (1st Dep’t 2017)

(“Defendant established his entitlement to vacatur of the judgment of foreclosure and sale by

showing that he was not properly served with the summons and complaint in this action (CPLR

308[2]) and that therefore the court lacked jurisdiction to render the judgment (CPLR 5015[a][4]).

In opposition to plaintiff’s prima facie showing of proper service, defendant raised an issue of fact

as to the veracity of the affidavit with respect to personal delivery (citation omitted). While

defendant’s showing would otherwise require a traverse hearing (id.), it also demonstrated as a

matter of law that the mailing component of CPLR 308(2) was not strictly complied with (citation

omitted). The affidavit of service says that the summons and complaint were mailed to defendant’s

‘last known address,’ without identifying that address. The terms of the mortgage require that

notices to defendant be sent to the address of the mortgaged property, unless defendant gives

plaintiff notice of a different address. There is no evidence in the record that defendant ever gave

plaintiff notice of a different address (citation omitted).”).

CPLR 308(2) - Person of SAD does not have to reside in premises

Nationstar Mtge., LLC v. Kamil, 155 A.D.3d 966, 64 N.Y.S.3d 116 (2d Dep’t 2017) (“Here, the

process server’s affidavit of service contained sworn allegations reciting that service was made

upon the defendant by leaving the relevant papers with a person of suitable age and discretion,

namely ‘Sabir Ahmad, male relative,’ at the defendant’s residence, and by subsequently mailing a

second copy of the papers to the defendant at the same address (citation omitted). Accordingly,

the affidavit of service constituted prima facie evidence of service of the summons and complaint

pursuant to CPLR 308(2) (citations omitted). Contrary to the defendant’s contention, his affidavit

failed to rebut the presumption of proper service arising from the process server’s affidavit as to

service upon him. While the defendant denied knowledge of any person by the name of ‘Sabir

Ahmad,’ and asserted that no one by that name ever resided at the premises, he did not rebut the

process server’s sworn allegation that a person fitting the physical description of Sabir Ahmad was

present at the subject property at the time and accepted service on behalf of the defendant (citations

omitted).”).

Wells Fargo Bank, N.A. v. Decesare, 154 A.D.3d 717, 62 N.Y.S.3d 446 (2d Dep’t 2017) (“Here,

the affidavit of service contained sworn allegations reciting that service was made upon the

defendant Angela Decesare, also known as Angela T. DeCesare (hereinafter the defendant), by

leaving the relevant papers with a person of suitable age and discretion, who identified himself as

‘John DeCesare,’ at the defendant’s residence, and by subsequently mailing a second copy of the

papers to the defendant at the same address. The affidavit of service included a description of ‘John

DeCesare.’ Contrary to the determination of the Supreme Court, the defendant’s submissions

failed to rebut the affidavit of service, since they stated that the only person fitting that description

Page 108: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

who resided at the premises was the defendant’s son Richard, and Richard could not have been

present at the time of the alleged service since he was at work. The defendant’s submissions did

not rebut the sworn allegation that a person fitting the physical description of ‘John DeCesare’ was

present at the residence at the time and accepted service on behalf of the defendant (citations

omitted). Indeed, ‘[v]alid service pursuant to CPLR 308 (2) may be made by delivery of the

summons and complaint to a person of suitable age and discretion who answers the door at a

defendant’s residence, but is not a resident of the subject property’ (citation omitted). Moreover,

the defendant did not deny that she received the papers in the mail and thus did not overcome the

inference of proper mailing that arose from the affidavit of service (citation omitted). Accordingly,

a hearing to determine the validity of service of process was not warranted under the circumstances

of this case (citation omitted), and the Supreme Court should have denied that branch of the

defendant’s cross motion which was pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar

as asserted against her for lack of personal jurisdiction.”).

CPLR 308(2) - Mailing to residence via certified mail was sufficient

Zabari v. Zabari, 154 A.D.3d 613, 63 N.Y.S.3d 364 (1st Dep’t 2017) (“Because the documents

were mailed to defendant’s residence (in addition to his place of business), plaintiff was not

required to send them by first class mail, and the use of certified mail was sufficient (citations

omitted).”).

CPLR 308(2) - Defendant presented evidence establishing that he was residing in Virginia at

the time the summons and amended complaint were served at the D.C. address and at the

mother’s address

Alostar Bank of Commerce v. Sanoian, 153 A.D.3d 1659, 61 N.Y.S.3d 7595 (4th Dep’t 2017)

(“Appeal from an order of the Supreme Court, Niagara County (Frank Caruso, J.), entered October

26, 2015. The order denied the motion of defendant to vacate a default order and judgment,

determined that plaintiff has established jurisdiction over defendant and directed that plaintiff is

allowed to enforce its judgment. … Although those two affidavits establish prima facie that

defendant was validly served, defendant submitted evidence that rebuts the presumption and

establishes as a matter of law that he was improperly served, which obviates the need for a traverse

hearing (citation omitted). Namely, defendant presented evidence establishing that he was residing

in Virginia at the time the summons and amended complaint were served at the D.C. address and

at the mother’s address. Plaintiff failed to submit any evidence demonstrating otherwise. Thus, we

conclude that, inasmuch as plaintiff failed to serve defendant at his actual address, as is required

by both CPLR 308 (2) and (4), the court lacked personal jurisdiction over defendant (citations

omitted). We reject plaintiff’s contention that defendant received actual notice of the action and

thus was properly served. It is well settled that ‘notice received by means other than those

authorized by statute cannot serve to bring a defendant within the jurisdiction of the court’

(citations omitted). We therefore reverse the order and grant defendant’s motion to vacate the

default judgment. Because the court never acquired personal jurisdiction over defendant, we

dismiss the amended complaint (citation omitted), without prejudice.”).

Page 109: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

CPLR 308(4)

David L. Ferstendig, Court Addresses Affixing and Mailing Provision Under New York City

Charter, 686 N.Y.S.L.D 3 (2018).).

Court Addresses Affixing and Mailing Provision Under New York City Charter

Only Single Prior Reasonable Attempt at Personal Delivery at the Premises Is Required

In Mestecky v. City of New York, 2017 N.Y. Slip Op. 08162 (November 20, 2017), the

Department of Buildings’ inspectors issued nine Notices of Violation (NOV) in connection with

the petitioner’s residential property. Each of the NOVs identified the claimed violation and

described a single successful effort by the inspector to personally serve the NOV at the premises.

The inspector then utilized "alternative service," that is, affixing the NOV to the premises in a

conspicuous place and mailing a copy to the petitioner at the premises address (and, for some of

the NOVs, at his home).

The petitioner failed to appear on the hearing dates, resulting in administrative default judgments,

fines and penalties. At a hearing challenging the NOVs, the petitioner asserted that he did not

receive any of the NOVs and argued that more than a single attempt at personal delivery was

required before permitting the affix and mail service.

The relevant provision here is New York City Charter § 1049-a(d)(2), which permits the use of

affix and mail service after "a reasonable attempt" has been made to deliver the notice "to a person

in such premises upon whom service may be made as provided for by article three of the civil

practice law and rules or article three of the business corporation law."

The "generic" nail and mail service that most of us are familiar with is contained in CPLR 308(4).

There, the statute expressly states that the resort to nail and mail service can only be made upon a

showing that service by personal delivery (CPLR 308(1)) or leave and mail (CPLR 308(2)) could

not be effected with "due diligence." The latter requirement has been interpreted to require multiple

attempts at different times. See e.g., Sinay v. Schwartzman, 148 A.D.3d 1068 (2d Dep’t 2017).

The petitioner here argued that by referencing CPLR Article 3, the relevant charter provision

incorporated the "due diligence" requirement of CPLR 308(4), as interpreted by case law. Thus,

the petitioner maintained that the single attempt to deliver the NOVs to a person at the premises

was insufficient.

The Court of Appeals rejected the argument. It focused on the language of New York City Charter

§ 1049-a(d)(2), which begins with a general rule that CPLR Article 3 service rules apply, and

follows with certain alternative service exceptions, including the one relevant here. Thus, to read

the provision in the manner advocated by the petitioner

would make the exception indistinguishable from the general rule, thereby

rendering it superfluous. Considered in context, the only reasonable conclusion is

Page 110: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

that the cross-reference to CPLR article 3 and Business Corporation Law article 3

in the exception was intended to import the provisions of those articles clarifying

the parties or entities who can accept service, such as the clause permitting delivery

to "a person of suitable age and discretion" (see CPLR 308[2]). Indeed, this is the

most natural reading of section 1049-a(d)(2)(b) given that the phrase containing the

statutory cross-references directly follows the clause requiring "a reasonable

attempt" to deliver the notice "to a person in such premises upon whom service may

be made."

Mestecky, 2017 N.Y. Slip Op. 08162, at ∗4–5.

Moreover, the Court pointed to language in the statute which talks in terms of "a reasonable

attempt," that is, the use of the singular "attempt" (as opposed to multiple attempts). As a result,

the statutory language supported the conclusion that a single attempt at personal delivery was

required. The Court added that the legislative history further supported this interpretation, because

it stressed the difficulties encountered in identifying and locating the persons responsible for the

violation(s), and frequent amendments have thus sought to liberalize the service rules to deal with

the widespread problem of violators avoiding service.

Finally, the Court concluded that the procedure providing for a single attempt to deliver the NOV

personally followed by affix and mail "is reasonably calculated to inform owners of violations

relating to their properties." Id. at ∗5.

CPLR 308(4) - Due diligence requirement met

Nationstar Mtge., LLC v. Dekom, 161 A.D.3d 995 (2d Dep’t 2018) (“In this case, the plaintiff

submitted affidavits from the process server which demonstrated that four visits were made to the

defendant’s residence at different times when the defendant could reasonably have been expected

to be found at home. The process server also described the means she used to verify the defendant’s

residential address, and described her unsuccessful attempt to ascertain the defendant’s place of

employment. We agree with the Supreme Court that the affidavits constituted prima facie evidence

that the due diligence requirement was satisfied (citation omitted). The affidavits also constituted

prima facie evidence that the process server properly affixed a copy of the summons and complaint

to the door of the defendant’s residence, and mailed a copy to the residence by first class mail.

Contrary to the defendant’s contention, he failed to rebut the presumption of proper service arising

from the process server’s affidavits. Further, the summons contained statutorily mandated

language warning the defendant that the failure to serve an answer to the complaint may result in

a default judgment and advising him to speak to an attorney (citation omitted).”).

U.S. Bank, N.A. v. Cepeda, 155 A.D.3d 809, 64 N.Y.S.3d 104 (2d Dep’t 2017) (“Here, the affidavit

of the process server demonstrated that three visits were made to the homeowner’s residence, each

on different days and at different times of the day. The process server also described in detail his

unsuccessful attempt to obtain an employment address for the homeowner, including interviewing

a neighbor. Under these circumstances, the Supreme Court improperly concluded that the due

diligence requirement was not satisfied (citations omitted).”).\

Page 111: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

Velez v. Forcelli, 152 A.D.3d 630, 61 N.Y.S.3d 24 (2d Dep’t 2017) (“Here, the evidence elicited

at the hearing demonstrated that seven visits were made to the defendant’s residence at different

times, including those times when the defendant could reasonably have been expected to be found

at his residence (citations omitted). It was further established at the hearing that the process server

sufficiently confirmed that the defendant resided at the premises at which service was attempted.

While there was no evidence presented at the hearing of unsuccessful attempts by the process

server to obtain an employment address for the defendant, it is undisputed that the defendant was

out of work due to injuries he sustained in a car accident. Contrary to the defendant’s contention,

under these circumstances, the Supreme Court properly concluded that the due diligence

requirement was satisfied (citations omitted).”).

CPLR 308(4) - Failure to meet due diligence requirement

Faruk v. Dawn, 2018 NY Slip Op 04307 (2d Dep’t 2018) (“Here, the submissions in support of

the plaintiff's motion contained numerous inconsistent dates regarding when service was attempted

and made upon the defendant. Even accepting the dates of attempted service claimed by the

plaintiff, those attempts were ‘made on weekdays during hours when it reasonably could have been

expected that [the defendant] was either working or in transit to work’ (citations omitted).

Moreover, there is no indication that the process server made any attempt to locate the defendant's

place of employment so he could attempt to effectuate service there (citations omitted). Under

these circumstances, the plaintiff failed to establish that he exercised due diligence in attempting

to effectuate service pursuant to CPLR 308(1) or (2) before resorting to service pursuant to CPLR

308(4) (citations omitted).”).

Greene Major Holdings, LLC v. Trailside At Hunter, LLC, 148 A.D.3d 1317, 49 N.Y.S.3d 769

(3d Dep’t 2017) (“Here, the record reflects that plaintiff’s process server attempted to serve

defendant at a particular residence in Evanston, Illinois on three occasions — on December 10,

2013 at 8 -59 p.m., on December 11, 2013 at 5 -17 p.m. and on December 13, 2013 at 4 -19 p.m.

Although the parties debate whether the subject residence actually constituted Rem’s dwelling

place or usual place of abode and, hence, whether the documents in question were properly affixed

thereto, this issue need not detain us, as we agree with Supreme Court that the underlying service

attempts — all of which occurred on weekdays and two of which occurred during hours that Rem

reasonably could be expected to be either at or in transit from work — fall short of establishing

due diligence in the first instance (citations omitted). For this reason alone, Supreme Court

properly concluded that plaintiff, having failed to comply with the service requirements of RPAPL

1371 (2) and CPLR 308 (4), did not obtain personal jurisdiction over Rem. Accordingly, the court

was well within its discretion in granting Rem’s motion to vacate the deficiency judgment entered

against him and, as such, Supreme Court’s June 2015 order is affirmed.”).

Page 112: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

CPLR 308(4) - General Business Law § 13 - Need hearing to determine whether service on a

Sabbath observer on Saturday was done with malice

JPMorgan Chase Bank, N.A. v. Lilker, 153 A.D.3d 1243, 61 N.Y.S.3d 578 (2d Dep’t 2017) (“The

defendants contend that the plaintiff’s counsel was aware that they are observant, Orthodox Jewish

persons who adhere to the Sabbath, and thus, the Saturday affixation of process to the door of their

residence was invalid. This appears to be an issue of first impression for this Court. We agree with

the other courts that have addressed the issue, which have consistently held, for more than a

century, that service in violation of General Business Law § 13, or its predecessor statute, is void,

and personal jurisdiction is not obtained over the party served (citations omitted). Moreover, we

hold that the statute applies not only to personal service upon a defendant, but also to the affixation

portion of ‘nail and mail’ service pursuant to CPLR 308(4) on the door of a defendant’s residence,

as occurred here (citations omitted). To establish a violation of General Business Law § 13,

malicious intent must be shown (citations omitted). ‘Service on the Sabbath . . . with knowledge

that the person to be served observes the Sabbath . . . constitutes malice’ (citations omitted). The

knowledge of a plaintiff or its counsel is imputed to the process server by virtue of the agency

relationship (citations omitted). In support of their motion, the defendants submitted an August 26,

2013, letter from their counsel which advised the plaintiff’s counsel’s law firm that the defendants

are ‘observant, Orthodox Jews,’ who cannot be served on a Saturday, together with a fax

transmission report indicating a successful transmission. This proof was sufficient to establish,

prima facie, that the plaintiff’s counsel had knowledge that the defendants were protected from

Saturday service by General Business Law § 13 (citations omitted). However, in opposition, the

plaintiff submitted a denial by its counsel of receipt of the faxed letter, and an affidavit by the law

firm’s independent information technology contractor to the effect that there was no indication of

receipt in the firm’s archive system. These submissions raised a question of fact as to whether the

plaintiff’s counsel had knowledge that the defendants could not properly be served on a Saturday,

necessitating a hearing (citations omitted).”).

CPLR 308(4) - Issue of fact as to whether pleadings were affixed to door of condominium

unit, or exterior door of condominium complex

Sinay v. Schwartzman, 148 A.D.3d 1068, 50 N.Y.S.3d 141 (2d Dep’t 2017) (“Service was made

by ‘affix and mail’ service pursuant to CPLR 308(4), which permits such service only where

personal delivery or delivery to a person of suitable age and discretion ‘cannot be made with due

diligence.’ Attempts at service at different times, including a Saturday, which the process server

claimed were accomplished in this case, have been deemed sufficient to establish that service by

personal delivery or delivery to a person of suitable age and discretion ‘cannot be made with due

diligence’ (citations omitted). However, the defendants raised issues of fact as to whether ‘affix

and mail’ service was properly made, i.e., whether the summons and complaint were affixed to the

door of their condominium unit, rather than the exterior door of the condominium complex

(citations omitted). Under the circumstances, a hearing to determine the validity of service upon

the defendants was warranted.”).

Page 113: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

CPLR 308(5) - Court refuses to permit Facebook service

David L. Ferstendig, This Time Service of Process by Facebook Is Not Permitted Under CPLR

308(5), 674 N.Y.S.L.D. 3-4 (2017).

In the July 2015 edition of the Digest, we discussed Baidoo v. Blood-Dzroky, 48 Misc. 3d 309

(Sup. Ct., N.Y. Co. 2015), in which Justice Matthew Cooper permitted Facebook service pursuant

to CPLR 308(5) in a divorce action. Critically, Justice Cooper found that the plaintiff had

established that the Facebook account she identified actually belonged to the defendant and that

the defendant regularly logged into his account. The standard to apply to determine whether a

particular method of service is proper is whether the service comports with the fundamentals of

due process by being reasonably calculated to provide the defendant with notice. If one walked

away from the Baidoo decision with the impression that the floodgates were about to open

permitting widespread Facebook or other social media or email service, he or she would have

reached the wrong conclusion. In fact, Justice Cooper’s meticulously written decision suggests

that courts will permit such service in very limited circumstances.

Qaza v. Alshalabi, 2016 N.Y. Slip Op. 26402 (Sup. Ct., Kings Co. December 5, 2016), is a more

recent case in which the court refused to permit Facebook service. Qaza was also a divorce case,

in which the plaintiff-wife alleged that the defendant-husband left the marital residence three

months after they were married without providing any contact information. The plaintiff believed

that the defendant had been deported and was living in Saudi Arabia. She maintained that all

attempts to locate the defendant had failed and she could not serve him under the Hague

Convention because Saudi Arabia was not a signatory. Finally, the cost of publication in a local

newspaper was prohibitively expensive. As a result, the plaintiff was seeking “publication to

Facebook” of the summons, pursuant to CPLR 308(5). The court here, however, found that the

plaintiff had failed to sufficiently authenticate the Facebook profile as being the defendant’s or

establish that the defendant actually used the Facebook page to communicate or receive messages.

Thus, it concluded that “plaintiff has not demonstrated that, under the facts presented here, service

by Facebook is reasonably calculated to apprise defendant of the matrimonial action.” Id. at *4.

The court noted the particular due process concerns associated with a divorce action -

The act for divorce has a multitude of ancillary affects [sic] on the rights and

liabilities of parties. The Court must be scrupulous in allowing service by a

methodology most likely to give notice not only [to] one’s economic

responsibilities and rights to pay and receive maintenance and child support but

rights to property, inheritance and most importantly the Constitutional right to

custody and visitation (citation omitted). If the standard for review of an agreement

in any matrimonial action is higher than that in a plenary action certainly the Court

must be satisfied that there is some semblance of due process notice (citation

omitted).

Id.

Page 114: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

The court concluded that “[g]ranting this application for service by Facebook under the facts

presented by plaintiff would be akin to the Court permitting service by nail and mail to a building

that no longer exists.” Id. at*5.

With the emphasis on communication via email and social media, there has been a push to “update”

our service statutes to provide for such service, perhaps as a separate enumerated basis in CPLR

308, for example. However, each of these methods of service has its own problems which raise

due process concerns. For example, service by email is complicated by spam folders that may

prevent the delivery of emails and the general warning not to open emails from persons you do not

recognize. Moreover, as the Qaza court stated, “anyone can create a Facebook profile.” Id. So

while the communications of the future outside of litigation will continue to migrate electronically,

it is doubtful that electronic service of process will become an enumerated authorized method of

service under CPLR 308 any time soon. Of course, CPLR 308(5) provides the court with an

opportunity to use such service in the appropriate case, where the particular defendant’s due

process rights are properly considered and protected.

CPLR 308(5) - Court ordered service on insurance carrier

Matthews v. Barrau, 150 A.D.3d 836, 55 N.Y.S.3d 282 (2d Dep’t 2017) (“Here, the Supreme

Court providently exercised its discretion in granting that branch of the plaintiffs’ cross motion

which was to direct an alternative method for service of process upon the defendant, as the

plaintiffs submitted evidence indicating, inter alia, that the defendant retired from his business, left

New York, and was residing at an unspecified location in Haiti, and, thus, that service by the

methods set forth in CPLR 308(1), (2), and (4) was impracticable (citations omitted). Moreover,

as the plaintiffs submitted evidence that the defendant had been in contact with his excess liability

insurance carrier with regard to the plaintiffs’ action, the court providently directed service upon

the insurance carrier, as this method of service was reasonably calculated to apprise the defendant

of the pending action against him and afford him an opportunity to be heard (citations omitted).”).

CPLR 308(5) - Service via email permitted

Kozel v. Kozel, 161 A.D.3d 700 (1st Dep’t 2018) (“Here, Inga left the jurisdiction after the same

court and Justice found her in contempt, and offers no evidence that she was at either her residence

in London or Lithuania. Under these circumstances, the court properly directed that she be served

via email (citation omitted). Since Inga was properly served with the contempt motion, and had

knowledge of the terms of the subject orders of which she was in violation, the court was

empowered to find her in contempt without plaintiff commencing a special proceeding (citation

omitted).”).

CPLR 308(5) - Service via certified mail, return receipt requested, plus regular mail

permitted

Matter of Hunter v. Brown-Ledbetter, 160 A.D.3d 955, 75 N.Y.S.3d 499 (2d Dep’t 2018)

(“Although the mother is correct that the father had the burden to demonstrate that he properly

served her and that the Family Court had acquired jurisdiction over her (citations omitted), her

Page 115: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

claim that the father failed to meet that burden is without merit. The court providently exercised

its discretion in authorizing the father to serve the mother via certified mail, return receipt

requested, plus regular mail, in light of the evidence that the mother was deliberately evading

service (citations omitted). Likewise, the father met his burden of establishing service by

proffering the return receipt and an affidavit of service by mailing, and the mother proffered no

evidence rebutting this showing (citations omitted).”).

CPLR 311 - Personal service on corporation or governmental subdivision

CPLR 311 / 311-a - Affidavit of compliance’ compare BCL 307 and Limited Liability

Company Law § 304

Chan v. Onyx Capital, LLC, 156 A.D.3d 1361, 67 N.Y.S.3d 748 (4th Dep’t 2017) (“It is well

settled that ‘[s]trict compliance with Limited Liability Company Law § 304 is required, including

as to the filing of an affidavit of compliance’ (citations omitted). The Court of Appeals in Flick v.

Stewart-Warner Corp. (citations omitted) analyzed Business Corporation Law § 307, which is

substantively identical to Limited Liability Company Law § 304. The Court explained that “the

statute contains procedures calculated to assure that the foreign corporation, in fact, receives a

copy of the process” (citation omitted). The Court held that ‘[t]he proof called for in the affidavit

of compliance is that the required actual notice has been given either by personal service or by

registered mail . . . These are not mere procedural technicalities but measures designed to satisfy

due process requirements of actual notice’ (citation omitted). In this case, as outlined above,

plaintiff failed to comply with step two of Limited Liability Company Law § 304. We reject

plaintiff’s contention that nothing more was required of her after the registered mail was returned

as undeliverable. Inasmuch as plaintiff failed to comply with step two, she necessarily also failed

to comply with step three, which would show that a party complied with the service requirements

of section 304.”).

CPLR 311(a)(6) - Service on village

Ryan v. Village of Lindenhurst, Inc., 151 A.D.3d 898, 57 N.Y.S.3d 189 (2d Dep’t 2017) (“The

Village’s attorney and Madlon, Deputy Village Clerk, stated, based upon personal knowledge, that

Bodenschatz, the person served, was the Village’s purchasing agent. The plaintiffs argue that the

fact that Bodenschatz was the Village’s purchasing agent did not mean that she was not a mayor,

clerk, or trustee. However, at the time of service of process, Thomas A. Brennan was identified by

the plaintiffs as the Mayor, Shawn Cullinane was identified as Village Clerk, Madlon was

identified as Deputy Village Clerk, and other named parties were identified as Village Trustees.

Bodenschatz was not among them. Service upon a village by leaving papers with a person other

than a mayor, clerk, or trustee is insufficient (citation omitted). Since the Village was not properly

served, it had no obligation to appear in the action, or to present evidence of a potentially

meritorious defense (citation omitted).”).

Page 116: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

CPLR 312-a - Service by mail

CPLR 312-a - Plaintiff moves for immediate judgment in the amount of $110.53, for the

amount expended by plaintiff in serving defendants by the alternative method of service of

process

McGriff v. Mallory, 160 A.D.3d 1460, 72 N.Y.S.3d 912 (4th Dep’t 2018) (“Plaintiff commenced

this negligence action by serving defendants by mail pursuant to CPLR 312-a (a) and thereafter

utilized ‘an alternative method’ of service of process when ‘the acknowledgment of receipt’ was

not returned by defendants or the other persons set forth in CPLR 312-a (b) within the requisite

30-day period. Plaintiff moved for, inter alia, an immediate judgment in the amount of $110.53,

i.e., the amount expended by plaintiff in serving defendants by the alternative method of service

of process (citation omitted). We agree with plaintiff that Supreme Court erred in denying that part

of plaintiff's motion (citation omitted). Here, plaintiff submitted prima facie evidence that his

attorney mailed the requisite documents to defendants pursuant to CPLR 312-a (a), and defendants

failed to raise an issue of fact with respect to that service.”).

DEFENDANT’S APPEARANCE

CPLR 320 - Defendant’s appearance

CPLR 320 / 3012(b) - Potential trap of serving notice of appearance

David L. Ferstendig, The Potential Trap of Serving a Notice of Appearance, 682 N.Y.S.L.D. 3

(2017).

The waiver of defenses can be avoided in most circumstances merely by including them either in

an answer or in a pre-answer motion to dismiss. See CPLR 3211(e). Jurisdictional objections

present additional challenges and requirements. For example, if the defendant moves to dismiss

under CPLR 3211(a) on any ground, jurisdictional objections must be included or waived. In

addition, if one includes a service defense in the answer, a motion must be made within 60 days

thereafter to resolve that issue.

But sometimes an action is commenced via service of a summons with notice. There, the

defendant’s response is first to serve a demand for a complaint or a notice of appearance.

Technically, they are to have the same requisite effect, that is, to compel the plaintiff to serve a

complaint. Moreover, reading CPLR 320 together with CPLR 3211(e), there should be no waiver

by the defendant of any defense when serving a demand or notice of appearance, because he or

she will have an opportunity to assert it in the answer or pre-answer motion to dismiss. See, e.g.,

Balassa v. Benteler-Werke A. G., 23 A.D.2d 664 (2d Dep’t 1965).

Nevertheless, in response to a summons with notice, I always serve a demand for a complaint to

avoid any “misunderstandings” that by serving a notice of appearance I have somehow waived

something.

Page 117: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

However, apparently not all notices of appearance are the same. Sometimes, in very rare instances,

defendant’s counsel will serve a notice of appearance without having been served with a summons

with notice. For example, a defendant may serve a notice of appearance merely to be aware of

developments in a case. See, e.g., Tsionis v. Eriora Corp., 123 A.D.3d 694, 696 (2d Dep’t 2014)

(“Contrary to the plaintiffs’ contention, the appellant was not required to serve an answer where

the complaint did not set forth any allegations that the appellant was required to defend against.

‘A defendant who has no defense, and therefore serves no pleading, might nevertheless serve a

notice of appearance so as to be kept apprised of the progress of the proceeding.’ Such was the

situation here.”) (citing Weinstein, Korn & Miller, New York Civil Practice, CPLR 320.03 (David

L. Ferstendig, LexisNexis Matthew Bender, 2d Ed.).).

A more recent case presented a different scenario. American Home Mtge. Servicing, Inc. v. Arklis,

150 A.D.3d 1180 (2d Dep’t 2017) was a mortgage foreclosure action, in which the defendant

initially failed to answer, resulting in the entry of a default judgment (over a year-and-a-half after

the alleged service) and the appointment of a referee to compute what was due to the plaintiff. Just

over two-and-a-half years later, at a foreclosure settlement conference, defendant’s attorney

executed a form notice of appearance. Almost two years after that, the plaintiff’s assignee moved

for leave to enter a judgment of foreclosure and sale. The defendant crossmoved to dismiss under

CPLR 3211(a)(8) for lack of personal jurisdiction based on improper service, noting specifically

that the defendant was not moving to vacate a default judgment under CPLR 5015(a)(1) or CPLR

317. However, the trial court “deemed” the cross-motion to be pursuant to CPLR 5015, and found

that the defendant was never served and the default judgment to be a nullity.

The Appellate Division reversed, holding that the defendant waived her jurisdictional defense -

“By statute, a party may appear in an action by attorney (CPLR 321), and such an

appearance constitutes an appearance by the party for purposes of conferring

jurisdiction.” Here, the defendant’s attorney appeared in the action on her behalf by

filing a notice of appearance on July 25, 2012, and neither the defendant 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. Accordingly, the defendant waived any claim that the Supreme Court

lacked personal jurisdiction over her in this action (citations omitted).

Id. at 1181–82.

While the above fact pattern may be unusual and perhaps presents itself primarily in mortgage

foreclosure actions, defendants should generally stay away from using a “notice of appearance.”

When served with a summons with notice, respond with a demand for a complaint. And, of course,

preserve your defenses in your answer or a pre-answer motion to dismiss.

The Commercial Division of the Supreme Court continues to adopt rules designed to streamline

and improve the litigation process.

Page 118: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

CPLR 320 / 3012 - Serving demand for complaint

A defendant cannot demand a complaint before being served with a summons with notice. See

Micro-Spy, Inc. v. Small, 9 A.D.3d 122, 778 N.Y.S.2d 86 (2d Dep’t 2004) (service of demand for

complaint after filing of summons but before service was premature). However, a defendant can

serve a demand after the plaintiff serves the defendant pursuant to CPLR 308(2), but before the

plaintiff has filed the proof of service and service is complete. See Wimbledon Fin. Master Fund,

Ltd. v. Weston Capital Mgt. LLC, 150 A.D.3d 427, 55 N.Y.S.3d 1 (1st Dep’t 2017) (“Plaintiff

commenced this securities fraud action against 26 defendants by filing a summons with notice on

October 16, 2015, and served defendant Manley pursuant to CPLR 308(2) twelve days later. On

November 3, 2015, before plaintiff had filed proof of service, defendant served a demand for a

complaint pursuant to CPLR 3012(b). Plaintiff, taking the position that the demand was a nullity,

asked defendant to agree to accept a complaint served by the end of December. Defendant refused,

and instead moved to dismiss the action on November 24, the 21st day after service of its demand.

Plaintiff served a complaint on December 24, 2015. We agree with the motion court that under

CPLR 3012(b), defendant was permitted to serve a demand for a complaint after being served,

notwithstanding that service was not technically ‘complete.’ The time frames applicable to

defendants set forth in CPLR 3012(b) are deadlines, not mandatory start dates (citations omitted).

In the cases relied on by plaintiff, the defendants’ demands were ineffective to trigger plaintiff’s

time to serve a complaint pursuant to CPLR 3012(b) because the defendants had not yet been

served with a summons with notice, and the CPLR makes no provision for an appearance or a

demand for a complaint before the summons is served (citations omitted).”).

CPLR 321- Attorneys

CPLR 321(a) - Compliance with section does not implicate subject matter jurisdiction

Hamilton Livery Leasing, LLC v. State of New York, 151 A.D.3d 1358, 58 N.Y.S.3d 624 (3d Dep’t

2017) (“Here, defendant does not point to any service or filing provision — or any other provision

— of the Court of Claims Act that prohibits claimant from pro se representation. Instead, defendant

relies on CPLR 321 (a), which provides that, subject to express exceptions, a ‘corporation or

voluntary association shall appear by attorney’ to ‘prosecute or defend a civil action,’ and ‘like a

corporation or a voluntary association, [an] LLC may only be represented by an attorney and not

by one of its members who is not an attorney admitted to practice in the state of New York’

(citation omitted). Thus, as an initial matter, we conclude that compliance with CPLR 321 (a) does

not implicate subject matter jurisdiction, as compliance with that provision is not a prerequisite to

the waiver of sovereign immunity pursuant to the Court of Claims Act (citation

omitted)…Accordingly, we hold that, under these circumstances, the irregularity of claimant’s

initial filing was one that the Court of Claims could have disregarded, given counsel’s subsequent

appearance on behalf of claimant, by granting so much of claimant’s motion to amend the claim

as added counsel’s signature (citations omitted).”).

Page 119: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

REMOVAL

CPLR 325 - Grounds for removal

CPLR 325(b) - Motion must be accompanied by a request for leave to amend the ad damnum

clause of the complaint

Hart v. New York City Hous. Auth., 161 A.D.3d 724 (2d Dep’t 2018) (“A motion to remove an

action from the Civil Court to the Supreme Court pursuant to CPLR 325(b) must be accompanied

by a request for leave to amend the ad damnum clause of the complaint pursuant to CPLR 3025(b)

(citation omitted). Here, the amount stated in the ad damnum clause was within the jurisdictional

limits of the Civil Court, and no request for leave to amend the ad damnum clause was made. In

the absence of an application to increase the ad damnum clause, the plaintiff’s motion to remove

the action to the Supreme Court should have been denied (citations omitted). Accordingly, we

remit the matter to the Supreme Court, Kings County, to restore the matter to the Civil Court,

Kings County.”).

FORUM NON CONVENIENS

CPLR 327 - Defendant did not waive FNC objection by participating in action

Aina v. American Univ. of Antigua, 161 A.D.3d 508, 73 N.Y.S.3d 430 (1st Dep’t 2018) (“This

action, where plaintiff, a former student of defendant’s medical school, alleges that he was

discriminated against, was properly dismissed on the ground of forum non conveniens (citations

omitted). Neither party is a New York resident and the underlying conduct took place in Georgia

or Antigua, where the vast majority of witnesses and documents are located. Plaintiff does not

contend that New York law applies to his claim, or that Georgia or Antigua are not adequate

alternative fora. The fact that defendant retains a New York firm to provide administrative support

is not sufficient to render New York an appropriate forum. Defendant did not waive its right to

challenge the New York forum by participating in the instant litigation, as its participation has

been minimal. Defendant filed this motion shortly after filing its amended answer, and before

plaintiff had replied to its counterclaims. Although defendant served discovery demands and

participated in a scheduling conference, no discovery had yet been exchanged and there were no

prior motions. It is further noted that defendant made clear in both its answer and amended answer

that it intended to assert forum non conveniens as an affirmative defense, and expressly agreed to

dismissal of its counterclaims on that basis.”).

CPLR 327 - FNC motion denied; plaintiff NY resident; defendants have substantial

connections to NY; delay in bringing motion

Bacon v. Nygard, 160 A.D.3d 565, 76 N.Y.S.3d 27 (1st Dep’t 2018) (“It is true that the alleged

defamation related to events occurring in the Bahamas, and that some of the nonparty witnesses

and documents are likely to be located in the Bahamas. However, this is not dispositive (citations

omitted). Plaintiff is a New York resident. While also not dispositive, this is generally ‘the most

Page 120: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

significant factor in the equation’ (citation omitted). In addition, only one of the defendants is a

resident of the proposed alternative forum (the Bahamas), and all of the defendants have substantial

connections to New York (citations omitted); and although defendants claim that Nygard

International Partnership's principal place of business is in Canada, its website identifies New York

as its ‘World Headquarters.’ Because defendants have a substantial presence in New York, as well

as ‘ample resources,’ it would not be a hardship for them to litigate here (citation omitted). The

burden on the New York courts is also minimal. There is no need to translate documents or witness

testimony from a foreign language. Plus, defendants effectively conceded that New York law

applies by relying on it in their prior motion to dismiss and in their counterclaims (citation

omitted). By contrast, plaintiff would suffer hardship if required to litigate in the Bahamas, which

has no jury trial right and no mechanism to obtain pre-trial deposition testimony from Bahamian

witnesses (citations omitted). The fact that defendants waited fourteen months before bringing the

instant motion, until after discovery began, their prior motion to partially dismiss the complaint

was granted and affirmed on appeal, and plaintiff's motion to dismiss their counterclaims was

granted, also counsels against dismissal (citations omitted). The parties have since exchanged

several thousand pages of documents and completed five depositions. The fact that there are

currently twelve related actions pending in the Bahamas cuts the other way (citations omitted).

However, only one of these involves any of the instant defendants, and it is not for defamation and

was instituted after the instant action.”).

CPLR 327 - FNC motion denied; various factors considered

Pacific Alliance Asia Opportunity Fund L.P. v. Kwok Ho Wan, 160 A.D.3d 452 (1st Dep’t 2018)

(“Defendant failed to meet the heavy burden of establishing that New York is an inconvenient

forum and that there is no substantial nexus between New York and this action (citation omitted).

It is true that the agreements at issue in this breach of contract action concern a Chinese real estate

development project and that most (although not all) of them were negotiated and executed in

Hong Kong or China. However, while defendant is a Chinese citizen, he has resided in New York

for the past two years and is seeking asylum here (citation omitted). Moreover, although Hong

Kong is a potential alternative forum, it is not a suitable or adequate alternative, because defendant

cannot return there due to his pending asylum claim and fugitive status (citations omitted).

Defendant has not shown that it will be a hardship for him to litigate in New York. He lives here,

has brought suit against others here, and has invited others to sue him here. The agreements at

issue, which are written in English, are available here, and, although plaintiff is a foreign

corporation, its employees are willing to travel here at no expense to defendant (citation omitted).

While defendant alleges broadly that his former employees and relevant documents are located in

Hong Kong or China, he has not identified any specific witnesses or documents that will be

necessary (citation omitted). He does not purport to know the witnesses' whereabouts with

certainty, and he has not made any showing with respect to their materiality (citation omitted). The

fact that Hong Kong law governs the instant dispute, pursuant to the choice of law provisions in

the agreements, is not dispositive, since ‘our courts are frequently called upon to apply the laws of

foreign jurisdictions’ (citation omitted). Moreover, Hong Kong law is the only foreign

jurisdiction's law at issue (citations omitted).”).

Page 121: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

CPLR 327 - Forum non convenience motion granted even though the plaintiff alleged that

he sustained personal injuries when the defendant assaulted him on a plane at John F.

Kennedy Airport

Park v. Heather Hyun-Ah Cho, 153 A.D.3d 1311, 60 N.Y.S.3d 482 (2d Dep’t 2017) (“On a motion

pursuant to CPLR 327 to dismiss the complaint on the ground of forum non conveniens, the burden

is on the movant to demonstrate the relevant private or public interest factors that militate against

a New York court’s acceptance of the litigation (citations omitted). ‘Among the factors the court

must weigh are the residency of the parties, the potential hardship to proposed witnesses, the

availability of an alternative forum, the situs of the actionable events, and the burden which will

be imposed upon the New York courts, with no one single factor controlling’ (Kefalas v.

Kontogiannis, 44 AD3d 624, 625). A court’s determination of a motion to dismiss on the ground

of forum non conveniens will not be disturbed on appeal unless the court failed to properly consider

all the relevant factors or improvidently exercised its discretion in deciding the motion (citations

omitted). Here, the plaintiff alleges that he sustained personal injuries when the defendant

assaulted him on a plane at John F. Kennedy Airport in Queens, New York. However, both the

plaintiff and the defendant are Korean citizens who reside in Seoul, the plaintiff received medical

treatment for the injuries he allegedly sustained as a result of the incident in Korea, and criminal

charges stemming from the incident were brought against the defendant in Korea. Under these

circumstances and considering all of the relevant factors, including the fact that all potential

witnesses are in Korea, we find no basis to disturb the Supreme Court’s determination (citations

omitted).”).

CPLR 327(b) - FNC unavailable

Honeywell Intl. Inc. v. ARC Energy Servs., Inc., 152 A.D.3d 444, 55 N.Y.S.3d 658 (1st Dep’t

2017) (“Plaintiff and defendant ARC entered into a services agreement which included an explicit

choice of law and forum provision selecting New York law and New York courts. Supreme Court

erred in considering ARC’s forum non conveniens argument. ‘[W]here a party to a contract has

agreed to submit to the jurisdiction of a court, that party is precluded from attacking the court’s

jurisdiction on forum non conveniens grounds’ (citations omitted). Moreover, the services

agreement satisfied the requirements of NY General Obligations Law §§ 5-1401 and 5-1402, and

therefore, the court did not have discretion under CPLR 327(b) to consider the forum non

conveniens argument.”).

ARTICLE 4 - SPECIAL PROCEEDINGS

CPLR 402 - Pleadings in special proceedings

CPLR 402 - Cross claim is not permitted in a special proceeding without leave of court

Matter of Espinal v. Sosa, 153 A.D.3d 819, 61 N.Y.S.3d 566 (2d Dep’t 2017) (“The Supreme

Court properly dismissed Sosa’s cross claim to validate his designating petition. Although the

cross claim was denominated as a counterclaim, it was properly a cross claim because it sought

Page 122: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

relief against the Board, which was a respondent in the proceeding (citation omitted). Pursuant to

CPLR 402, the pleadings in a special proceeding are limited to a petition, an answer, and a reply

to any counterclaim asserted. ‘The court may permit such other pleadings as are authorized in an

action upon such terms as it may specify’ (citation omitted). ‘[A] cross claim is not permitted in a

special proceeding without leave of court’ (citations omitted). Here, Sosa did not seek leave to

interpose a cross claim, and thus, the cross claim was not properly before the court (citations

omitted). In any event, Sosa’s cross claim was insufficiently pleaded as a matter of law (citation

omitted).”).

CPLR 403 - Notice of petition; order to show cause

CPLR 403[a] / 2001

David L. Ferstendig, Court’s Ability to Correct or Disregard Mistakes, Omissions, Defects or

Irregularities, 685 N.Y.S.L.D. 3-4 (2017)

Court’s Ability to Correct or Disregard Mistakes, Omissions, Defects or Irregularities

The Third and Fourth Departments Switch Course on Whether the Failure to Include

Return Date in Notice of Petition Is Fatal, Precluding a Court’s Resort to CPLR 2001

Generally, CPLR 2001 provides that the court can correct procedural mistakes, omissions, defects

or irregularities, “upon such terms as may be just.” Moreover, “if a substantial right of a party is

not prejudiced,” the error “shall” be disregarded.

Thus, for example, courts have relied on CPLR 2001 to correct various kinds of defects in a

pleading, order or judgment, to correct the names of parties set forth in the summons or other

papers if the party was fairly apprised that it was the party intended to be named, to disregard

technical defects in motion papers, the failure to include the certificate authenticating the authority

of a notary who administered an oath in connection with an affidavit signed outside of New York

State, the delay in filing a request for judicial intervention in a residential foreclosure action, the

defendant’s failure to include the answer in its initial summary judgment motion papers, but only

with its reply affirmation, and to consider CPLR 317 as a basis to vacate a default even where the

defendant did not cite to that section. For an exhaustive list of mistakes, omissions, defects, and

irregularities that can be corrected or disregarded under CPLR 2001, see Weinstein, Korn & Miller,

New York Civil Practice, CPLR ¶ 2001.03 (David L. Ferstendig, LexisNexis Matthew Bender, 2d

Ed.).

One of the thornier issues has been mistakes in commencement, and particularly the filing of the

initiating pleadings. In Harris v. Niagara Falls Bd. of Educ., 6 N.Y.3d 155 (2006), after making

two successful applications to serve late notices of claim, the plaintiff failed to purchase a new

index number for a subsequent personal injury action, instead using the same index number as

from the prior special proceeding. The Court of Appeals held that the defect did not implicate

Page 123: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

subject matter jurisdiction, but instead was a waivable defect. Since the defendant had objected in

a timely fashion, the action was dismissed.

In response, CPLR 2001 was amended in 2007 (L. 2007, ch. 529, eff. August 15, 2007) to enable

a court to correct or ignore mistakes in the commencement process. The amendment specifically

referred to filing errors and provided that where the error was a failure to pay the index number

fee, the court is to condition the denial of a motion to dismiss on the payment of the applicable fee.

However, the sponsor’s memorandum explained that the amendment was not intended to excuse

a complete failure to file the initiating pleadings within the statute of limitations or the failure to

file the proper pleadings, for example, filing a “bare summons” (that is, one served without the

requisite notice or a complaint). “The purpose of this measure is to clarify that a mistake in the

method of filing, AS OPPOSED TO A MISTAKE IN WHAT IS FILED, is a mistake subject to

correction in the court’s discretion.” Sponsor’s Mem, Bill Jacket, L 2007, ch. 529. The “failure to

file” defect has been interpreted to include both the failure to file initiating pleadings at all, and

the failure to file with the proper (county) clerk. See, e.g., Matter of Peterkin v. Marcy Houses, 87

A.D.3d 649 (2d Dep’t 2011) (failure to file a petition constituted non-waivable jurisdictional

defect, rendering the proceeding a “nullity”); Matter of Miller v. Waters, 51 A.D.3d 113 (3d Dep’t

2008) (finding failure to file with the proper clerk to be a defect impacting the court’s subject

matter jurisdiction). In addition, in Goldenberg v. Westchester County Health Care Corp., 16

N.Y.3d 323, 328 (2011), the Court of Appeals referred to the legislative history of CPLR 2001 and

stated that,

[h]ere, plaintiff never filed a summons and complaint. The closest he came was the

proposed complaint attached to the petition he filed when seeking permission to file

a late notice of claim, itself a prerequisite to the commencement of this action.

Given the absence of a summons, there was “a complete failure to file within the

statute of limitations,” which CPLR 2001 does not allow a trial judge to disregard.

For some time, the Third Department had held that the failure to include a return date in a notice

of petition was not a “mere irregularity”, but instead was fatal, precluding a court’s resort to CPLR

2001. See, e.g, Matter of Lamb v. Mills, 296 A.D.2d 697, 698 (2002), lv. denied, 99 N.Y.2d 501

(2002); Matter of Oates v. Village of Watkins Glen, 290 A.D.2d 758, 759 (2002); Matter of

Hawkins v. McCall, 278 A.D.2d 638, 638 (2000), lv denied, 96 N.Y.2d 713 (2001); Matter of

Vetrone v. Mackin, 216 A.D.2d 839, 840–41 (1995); Matter of Kalinsky v. State Univ. of N.Y. at

Binghamton, 188 A.D.2d 810, 811 (1992). However, recently in Matter of Oneida Pub. Lib. Dist.

v. Town Bd. of the Town of Verona, 153 A.D.3d 127 (3d Dep’t 2017), the Third Department

reversed course, overruling its prior holdings. It found that the 2007 amendment to CPLR 2001,

discussed above, was specifically enacted to permit courts to correct or disregard technical

commencement-type defects, like the omission of the return date in a notice of petition in this

action:

We now hold that the omission of a return date in a notice of petition does not

constitute a jurisdictional defect so as to deprive the court from assessing whether

such omission may be excused under CPLR 2001, and our prior decisions stating

Page 124: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

to the contrary should no longer be followed for such proposition. . . . “[T]he

primary purpose of a petition is to give notice to the respondent that the petitioner

seeks a judgment against [a] respondent so that it may take such steps as may be

advisable to defend the claim.” A return date accomplishes this purpose by

notifying the responding party when responsive papers must be served and when

the petition will be heard. Here, the record reflects that respondents had sufficient

notice of the petition. Indeed, respondents’ counsel conceded at oral argument

before Supreme Court that they had “plenty of time to respond” and, on appeal,

they do not contend that they suffered any prejudice. As such, the omission of a

return date should have been disregarded as a mere technical infirmity (citations

omitted).

Id. at 130.

Shortly, thereafter, the Fourth Department followed suit. See Matter of Kennedy v. New York

State Off. for People With Developmental Disabilities, 154 A.D.3d 1346 (4th Dep’t 2017). See

also Matter of Bender v. Lancaster Cent. Sch. Dist., 2017 N.Y. Slip Op. 07853 (4th Dep’t Nov. 9,

2017) (“[S]uch a technical defect is properly disregarded under CPLR 2001 so long as the

respondent had adequate notice of the proceeding and was not prejudiced by the omission.”).

CPLR 408 - Disclosure in special proceeding

CPLR 408 - Availability of notice to admit in special proceeding

Matter of Moody’s Corp. & Subsidiaries v. New York State Dept. of Taxation & Fin., 141 A.D.3d

997, 35 N.Y.S.3d 785 (3d Dep’t 2016) (“Finally, while a notice to admit is technically available

in a special proceeding without leave of court (citations omitted), it is generally used only where

there are issues of fact requiring a trial (citation omitted). Here, no trial was pending or warranted

and petitioners sought admissions of facts that were either material to the central issues of the

proceeding or not relevant to the proceeding. We thus agree that the notice to admit was improper

and find that Supreme Court properly denied petitioners’ motion to strike the Department’s

responses to the notice to admit (citations omitted).”).

ARTICLE 5 - VENUE

CPLR 501 - Written agreement fixing venue

Tower Broadcasting, LLC v. Equinox Broadcasting Corp., 160 A.D.3d 1435 (4th Dep’t 2018)

(“Pursuant to CPLR 501, a ‘written agreement fixing [the] place of trial, made before an action is

commenced, shall be enforced upon a motion for change of [the] place of trial.’ Here, the two

written agreements that form the basis of plaintiff's causes of action fix the place of trial as Monroe

Page 125: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

County. We reject defendant's contention that plaintiff cannot enforce the forum selection

provision of the amended settlement agreement entered into between defendant and plaintiff's

predecessor in interest. Plaintiff, as the assignee of its predecessor in interest, may enforce the

forum selection provisions of that contract inasmuch as an assignee stands in the shoes of the

assignor and is thus subject to all the benefits and burdens of the assignor (citations omitted).

Moreover, because plaintiff alleges that it owns the tower as the result of the asset purchase

agreement executed by plaintiff and its predecessor in interest, the forum selection provision in

that agreement may also be enforced. Defendant contends that Chemung County is the ‘proper’

forum on the ground that the tower and the real property upon which it is situated are both located

in Chemung County (citations omitted). We reject that contention. First, this action concerns a

broadcasting tower, which is a trade fixture and therefore retains its character as personal property

(citation omitted). Thus, CPLR 507, which concerns actions involving real property, is

inapplicable. Second, although CPLR 508 provides that the ‘place of trial of an action to recover

a chattel may be in the county in which any part of the subject of the action is situated at the time

of the commencement of the action’ (emphasis added), that section is permissive and not

mandatory. Thus, it does not preclude an action in another venue, particularly where, as here, there

is a written agreement fixing the place of trial in that other venue.”).

CPLR 503 - Individual can have more than one residence

Johnson v. Finkelstein, 145 A.D.3d 863, 43 N.Y.S.3d 479 (2d Dep’t 2016) (“Further, we note that

the ZBA’s reading of this language is consistent with the well-settled principle that an individual

can have more than one residence (citations omitted).”).

CPLR 503 - Multiple residences

Johnson v. Finkelstein, 145 A.D.3d 863, 43 N.Y.S.3d 479 (2d Dep’t 2016) (“Further, we note that

the ZBA’s reading of this language is consistent with the well-settled principle that an individual

can have more than one residence (citations omitted).”).

CPLR 503 - Stay at rehabilitation facility was temporary

Manzo v. Acevedo, 145 A.D.3d 532, 41 N.Y.S.3d 888 (1st Dep’t 2016) (“GC’s argument that

Bronx County is an improper venue as its placement in that county is tenuous in view of evidence

that its employee, defendant Acevedo, was in a rehabilitation facility in Montrose, New York when

the pleadings were served upon his mother at her Bronx County residence, is unavailing given the

documentation that Acevedo’s stay at the rehabilitation facility was temporary and that he resided

with his mother in Bronx County (citations omitted.)”).

Page 126: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

CPLR 503(c) - Residency for venue purpose of domestic or authorized foreign corporation

determined by designation of principal office in application for authority. But how about if

a different office is designated in the biennial statement?

David L. Ferstendig, Residency for Venue Purposes of Domestic or Authorized Foreign

Corporation Determined by Designation of Principal Office in Application for Authority, 678

N.Y.S.L.D. 3, 4 (2017)

CPLR 503(c) provides that, for the purposes of venue, the residency of a domestic corporation or

foreign corporation authorized to transact business in New York is the county of its “principal

office.” Much of the case law interpreting this section deals with circumstances in which a

corporation conducts its business activities in a county other than the one designated in its

application for authority. The courts have (generally) held that the designation in the application

controls. See, e.g., American Bldrs. & Contrs. Supply Co., Inc. v. Capitaland Home Improvement

Showroom, 128 A.D.3d 870, 871 (2d Dep’t 2015). (“Notwithstanding the plaintiff’s assertions to

the contrary, it is a resident of New York County for venue purposes. Indeed, the law is clear that

‘[f]or purposes of venue, the sole residence of a foreign corporation is the county in which its

principal office is located, as designated in its application for authority to conduct business filed

with the State of New York,’ regardless of where it transacts business or maintains its actual

principal office (citations omitted).”).

A recent trial court decision raises a different and interesting issue. Business Corporation Law §

408 (BCL) provides that a domestic or foreign corporation must set forth in its biennial statement

“[t]he street address of its principal executive office.” What if that office address conflicts with the

information provided in any prior original or amended certificate of incorporation? Which county

should control for venue purposes? In Astarita v. Acme Bus Corp., 2017 N.Y. Misc. LEXIS 657

(Sup. Ct., Nassau Co. Feb. 14, 2017), a Nassau County judge opined that the biennial statement’s

designation should prevail. The court pointed to the Court of Appeals decision from 1859 in

Western Transp. Co. v. Scheu, 19 N.Y. 408 (1859), where the Court looked to the certainty of

relying on the principal office designation in the certificate of incorporation as a means to “avoid

disputes” on the issue. The Astarita court noted that the legislative history behind the adoption of

BCL § 408 to “streamline the procedure for making simple changes to corporate information” was

consistent with the rationale of Western Transport to provide certainty. It pointed to “the advances

in technology and ready internet access,” permitting up to date access to the information contained

in the Department of State official database.

Moreover, the court asked that the dissenting opinion in Discolo v. River Gas & Wash Corp., 41

A.D.3d 126 (1st Dep’t 2007) be “revisited.” There, Justice Saxe cited to the similarity between

CPLR 503’s use of the term “principal office” and BCL’s § 408 use of “principal executive office,”

concluding that to ignore the BCL § 408 designation would appear to be a case of “willful

ignorance.” Id. at 128.

The majority relies on the often-cited rule that the sole legal residence of a

corporation for venue purposes is the county designated in its certificate of

incorporation. I do not dispute that this is the prevailing rule. But, I find it difficult

Page 127: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

to accept that the law requires an unthinking, automatic application of this rule

where a more recent document, which the law requires a corporation to file every

two years with the Department of State, lists the corporation’s “principal executive

office” at a location other than the “principal office” listed in the certificate of

incorporation. Under these circumstances, the continued automatic application of

the rule that we may look only at the certificate of incorporation, and must ignore

documents that as a practical matter serve to update the information in that

certificate, seems like willful ignorance. It is particularly offensive to permit a

defendant to use this rule as a shield to avoid a lawsuit in the only county where its

only business is located, and to both select and forever fix the county of venue

where it must be sued merely by virtue of the county named years earlier in its

certificate of incorporation (citations omitted).

Id. at 127-28.

CPLR 503(c) - Residence of a domestic corporation for venue purposes is the county

designated in certificate of incorporation, regardless of fact that corporation maintains

offices or facilities in another county

Villalba v. Brady, 2018 NY Slip Op 04518 (1st Dep’t 2018) (“In any event, plaintiff properly

placed venue in New York County based upon defendant DM Carpentry Corp.'s certificate of

incorporation, filed in 2011, which designated New York County as the location of its corporate

office (citations omitted). Although the Brady defendants provided a 2017 printout of information

from the Department of State showing that DT Carpentry's initial filing date was 2011 and that its

principal executive offices are in Suffolk County, absent any indication that the 2011 certificate of

incorporation was ever amended, the residence designated in that certificate controls for venue

purposes (citations omitted).”).

Janis v. Janson Supermarkets LLC, 161 A.D.3d 480, 73 N.Y.S.3d 419 (1st Dep’t 2018)

(“Wakefern, a foreign corporation, submitted a copy of its application for authorization to conduct

business filed with the Secretary of State, in which it identified New York County as ‘[t]he county

within this state where its office is to be located’ (citation omitted). Wakefern’s designation of

New York County in its application is controlling for venue purposes, even if it does not actually

have an office in New York County (citations omitted).”).

Kidd v. 22-11 Realty, LLC, 142 A.D.3d 488, 35 N.Y.S.3d 719 (2d Dep’t 2016) (“‘[T]he sole

residence of a domestic corporation for venue purposes is the county designated in its certificate

of incorporation, despite its maintenance of an office or facility in another county’ (citations

omitted).Here, the defendants failed to submit Abro’s certificate of incorporation or otherwise

demonstrate that the certificate of incorporation had been amended to designate Nassau County as

the location of Abro’s principal office. Accordingly, the defendants failed to meet their initial

burden of demonstrating that Abro’s principal office was located in Nassau County and that the

plaintiff’s choice of venue in Kings County, based on Abro’s alleged principal place of business,

was improper (citations omitted).”).

Page 128: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

CPLR 506(b)(1) - No original subject matter jurisdiction in Appellate Division because no

“justice of the supreme court or . . . judge of a county court or the court of general sessions”

was named

Matter of Thomas v. Hecht, 142 A.D.3d 1091, 37 N.Y.S.3d 456 (2d Dep’t 2016) (“This Court does

not have original subject matter jurisdiction to entertain this proceeding, as no “justice of the

supreme court or . . . judge of a county court or the court of general sessions” was named as a

respondent (CPLR 506[b][1]). Since subject matter jurisdiction cannot be waived, the petition

must be dismissed (citations omitted).”).

CPLR 506(b)(1) - Venue for action against judge with multiple judicial positions is

determined by capacity in which judge was serving when taking challenged action

Matter of Tonawanda Seneca Nation v. Noonan, 27 N.Y.3d 713, 715, 37 N.Y.S.3d 36, 38, 57

N.E.3d 1073, 1075 (2016) (“The Nation argues that because Judge Noonan also serves as a County

Court Judge, CPLR 506 (b) (1) requires that the proceeding be commenced in the Appellate

Division. We reject this argument and hold that the determination of venue for an article 78

proceeding against a multi-bench judge turns on the capacity in which the judge was serving when

taking the challenged action. Here, where Judge Noonan was acting as Surrogate with respect to

the probate of the will, the Nation’s suit challenging those actions should have been brought in

Supreme Court (see CPLR 7804 [b]).”).

CPLR 507 - Does not apply to action seeking determination of individual parties’ rights as

shareholders of corporation

Fish v. Davis, 146 A.D.3d 485, 45 N.Y.S.3d 46 (1st Dep’t 2017) (“While CPLR 507 mandates that

venue of an action involving title to or possession, use or enjoyment of real property be the county

where the property is located (citations omitted), here, the action essentially seeks a determination

of the individual parties’ rights as shareholders of defendant corporation, which owns real property

in Rockland County (citation omitted). In opposition to the motion, plaintiff demonstrated that

subdivision of the property is not possible, and that the complaint seeks either rescission of the

shareholders agreement or specific enforcement of its provision requiring the parties to implement

a cooperative ownership plan. Accordingly, the court providently exercised its discretion in

denying the motion to transfer venue to Rockland County.”).

CPLR 510 / 511[d] / 503(a) - Once plaintiff is wrong on choice of venue, he or she forfeits

right and defendant gets to choose proper venue. Plaintiff did not cross-move to retain venue

Nunez v. Yonkers Racing Corp., 153 A.D.3d 1355, 61 N.Y.S.3d 600 (2d Dep’t 2017) (“The

plaintiff placed venue of the action in Kings County based on his purported residence but the

defendant, in support of its motion, demonstrated that the plaintiff actually resided in Bronx

County, not Kings County, at the time of commencement of the action. Thus, the plaintiff’s choice

of venue was improper (citation omitted). By selecting an improper venue in the first instance, the

plaintiff forfeited the right to choose venue (citations omitted). Contrary to the plaintiff’s

contention, the defendant’s motion pursuant to CPLR 510(1) to change venue of the action from

Page 129: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

Kings County to Westchester County was addressed to the Supreme Court’s discretion (citations

omitted), and was timely as the defendant promptly moved to change venue after ascertaining the

plaintiff’s true county of residence (citations omitted). Further, the plaintiff failed to demonstrate

that Westchester County, the county specified by the defendant, was improper, and he did not

cross-move to retain venue in Kings County or to change venue to a county other than that urged

by the defendant (citations omitted).”).

CPLR 510 / 511 / 503 / 507 - Venue improperly placed

Patiwana v. Shah, 2018 NY Slip Op 04746 (2d Dep’t 2018) (“Here, since the plaintiff and the

defendants, the only parties to this derivative action (citations omitted), were residents of Nassau

County when it was commenced, venue was improperly placed in Queens County. Contrary to the

plaintiff's contention, the fact that two of the corporations and the LLC are located in Queens

County did not make Queens County a proper venue to commence this action, since those entities

are not parties to the action. Furthermore, venue could not have been properly placed in Queens

County pursuant to CPLR 507. While CPLR 507 mandates that venue of an action which seeks a

judgment that will ‘affect the title to, or the possession, use or enjoyment of, real property’ shall

be placed in the county where the property is located (citation omitted), here, the action seeks,

inter alia, a determination of the plaintiff's membership interest in the LLC (citations omitted). In

opposition to the motion, the plaintiff failed to demonstrate that the relief he is seeking will affect

real property in Queens County. The plaintiff failed to move by notice of cross motion to retain

venue in Queens County pursuant to CPLR 510(3), and we decline to review the plaintiff's

informal request in the exercise of discretion (citations omitted).”).

CPLR 510(2) - Impartial trial

Palma v. Burgos, 147 A.D.3d 426, 45 N.Y.S.3d 798 (1st Dep’t 2017) (“The court’s denial of

defendant’s motion was a provident exercise of discretion (citation omitted). Plaintiff is a member

of the New York City Council and is Secretary of the Bronx Democratic Committee. These

positions held by plaintiff, however, do not justify an inference that a fair trial cannot be held in

Bronx County. As in Midonick, the subject motion was based merely upon defendant’s belief that

an impartial trial could not be held ‘without any showing of facts and circumstances demonstrating

that the belief was well-founded’ (citation omitted). Defendant’s reliance on cases involving

motions for a change of venue where judges were involved with a case in the jurisdiction where

he or she presided (citations omitted), is misplaced. Plaintiff is not a judge in Bronx County, nor

is she closely related to one.”).

United States Fid. & Guar. Co. v. American Re-Insurance Co., 145 A.D.3d 600, 42 N.Y.S.3d 790

(1st Dep’t 2016) (“Defendants based this motion on the fact that plaintiffs’ former lead counsel,

who was scheduled to be a fact witness, had retired from law firm practice and become a Justice

of the Supreme Court, Commercial Division. . . . Here, defendants’ arguments consist not of factual

evidence, but of conclusory allegations, beliefs, suspicions, and the repeated invocation of the

phrase ‘appearance of impropriety.’ The evidence in the record demonstrates that the motion court

providently exercised its discretion in denying defendants’ motion. There is no personal

relationship between the trial judge and the judge-witness and no personal relationship between

Page 130: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

the judge-witness and the party (citation omitted). The mere fact that the jury may discover a

nonparty witness is a judge is not enough to prejudice a defendant where a plaintiff does not seek

to exploit the witness’s status to enhance his credibility (citations omitted). Moreover, the same

concerns would exist, no matter in what venue the case is tried.”).

CPLR 510(3) / 511 - Failure to show witness inconvenience

Ambroise v. United Parcel Serv. of Am., Inc., 143 A.D.3d 927, 39 N.Y.S.3d 255 (2d Dep’t 2016)

(“Here, the defendants failed to set forth any of the facts to which the prospective witnesses would

testify at trial, or to describe how their testimony would be necessary or material. Furthermore, the

defendants made only conclusory statements that the prospective witnesses would be

inconvenienced, and failed to establish the manner or extent to which those witnesses would be

inconvenienced (citations omitted). The mere fact that the witnesses would be required to travel a

significant distance does not establish, without more, that requiring their testimony would impose

an undue burden on them (citations omitted).”).

CPLR 510(3) / 511 - Adequate showing that police officers’ testimony would be material and

officers would be burdened by travel

Schwartz v. Walter, 141 A.D.3d 641, 37 N.Y.S.3d 272 (2d Dep’t 2016) (“Here, the appellant

established that all of the identified nonparty witnesses reside in or near Rockland County. The

two nonparty eyewitnesses who made statements to Ramapo Police Department officers

concerning their observations of the accident reside in Rockland County (citation omitted). The

seven police officers who responded to the scene of the accident reside either in Rockland County

or in Orange County. The police reports prepared by the Town of Ramapo Police Department

officers with respect to the accident demonstrate that the testimony of the officers would be

material to the trial of this action (citation omitted). Further, it would be a burden for the police

officers to be required to travel from Rockland County to Kings County during their normal

business hours for depositions and trial (citations omitted).”).

CPLR 510(3) / 511- Motion to change venue granted; it was proper for the trial court to

consider police officers’ convenience, because their testimony regarding their investigation

as to how the accident happened bears on liability

Kochan v. Target Corp., 161 A.D.3d 499 (1st Dep’t 2018) (“Supreme Court did not improvidently

exercise its discretion in granting Target’s motion to change venue to Suffolk County even though

plaintiff properly placed venue in New York County based upon Target’s principal place of

business at the time the action was commenced (citation omitted). The motor vehicle accident

happened in Suffolk County, plaintiffs and codefendants live in that county, the decedent received

her medical treatment there (citation omitted). Target also submitted the affidavits of two Suffolk

County police officers, who averred that they were involved in the investigation including

interviewing witnesses at the accident location and that they would be inconvenienced by having

to travel to New York County because it would cause them to be absent from their police duties

for a full day (citation omitted). That the police officers signed affidavits in favor of the motion to

change venue establishes that they were aware of the action and demonstrates that they are willing

Page 131: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

to testify at trial. It was proper for the motion court to consider the police officers’ convenience,

because their testimony regarding their investigation as to how the accident happened bears on

liability (citation omitted). Furthermore, the police officers’ affidavits are not insufficient because

they do not set forth their home addresses, since it is undisputed that they work in Suffolk County

(citations omitted).”).

CPLR 510(3) / 511- Motion denied; insufficient showing on convenience of witnesses

Gorodetsky v. Bridgewater Wholesalers, Inc., 161 A.D.3d 722 (2d Dep’t 2018) (“Here, the

defendants failed to disclose the addresses of all but one of the prospective witnesses, made only

conclusory statements that the prospective witnesses would be inconvenienced, and failed to

establish the manner or extent to which those witnesses would be inconvenienced (citations

omitted). With regard to those witnesses who were New York State police officers, while ‘the

convenience of local government officials, such as police officers, is of paramount importance

because they should not be kept from their duties unnecessarily’ (citation omitted), here, only

conclusory statements, without any details, were provided as to how those witnesses would be

inconvenienced. As such, these statements were insufficient to establish that those witnesses would

be inconvenienced if venue were not changed. Accordingly, the Supreme Court providently

exercised its discretion in denying the defendants’ motion for a change of venue from Richmond

County to Warren County.”).

CPLR 510(3) / 2212 - Venue on discretionary motion placed “in the county in which the

action is pending, or in any county in that judicial district, or in any adjoining county”; after

implementation of IAS system, latter choices (other than where action pending) generally

unavailable

Fensterman v. Joseph, 2018 NY Slip Op 04532 (2d Dep’t 2018) (“It is undisputed that, pursuant

to CPLR 503(a), venue of the Ulster County Action is properly in Ulster County, where Bacci, one

of the Ulster plaintiffs, resided at the time the action was commenced (citation omitted). A motion

to change venue on discretionary grounds, unlike motions made as of right, must be made in the

county in which the action is pending, or in any county in that judicial district, or in any adjoining

county (citations omitted). The Fenstermen parties, therefore, were required to make a motion

pursuant to CPLR 510(3) either in Ulster County, where the Ulster County Action was pending,

in another county in the 3rd Judicial District, or in a county contiguous to Ulster County (citations

omitted). Since Ulster County and Nassau County are not contiguous, and Nassau County is not

in the 3rd Judicial District, the Fensterman parties' motion to change venue pursuant to CPLR

510(3) based on discretionary grounds was improperly made in the Supreme Court, Nassau County

(citations omitted). Although not argued by the parties in the Supreme Court, Nassau County, but

argued on appeal, we reach this issue in the exercise of our discretion because it appears on the

face of the record and could not have been avoided or explained if raised in the Supreme Court

(citations omitted).”).

Page 132: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

CPLR 511 - Where demand e-filed, election to serve via U.S. mail does not extend time to

bring motion to change venue

Woodward v. Millbrook Ventures LLC, 148 A.D.3d 658, 49 N.Y.S.3d 303 (1st Dep’t 2017)

(“Supreme Court properly concluded that defendants’ motion was untimely. Having consented to

electronic filing, defendants were required to serve their papers electronically (Uniform Rules for

Trial Cts [22 NYCRR] § 202.5-b[d][1]), and indeed served their demand for change of venue,

together with their answer, by e-filing the documents on July 14, 2015 (22 NYCRR 202.5-

b[f][2][ii]). Having served their demand, defendants were required to bring their motion to change

venue within 15 days, or by July 29, 2015 (CPLR 511). However, defendants did not bring their

motion until July 31, 2015, rendering it untimely. That defendants also elected to serve their

demand via United States mail did not extend the deadline for their motion under CPLR

2103(b)(2). Because they consented to participate in Supreme Court’s e-filing system, defendants

were bound by the applicable rules governing service.”).

CPLR 511 - Where defendant fails to serve timely demand, court can still exercise discretion

to change venue

Fish v. Davis, 146 A.D.3d 485, 45 N.Y.S.3d 46 (1st Dep’t 2017) (“The motion court properly

noted that defendants failed to comply with the procedural requirements of CPLR 511 by moving

to change venue four months after serving an answer that did not request a change of venue

(citations omitted). When a defendant fails to make a demand to change venue, the court may still

exercise its discretion to change venue, but ‘only in certain limited situations,’ such as when the

defendant seeks to enforce a contract provision or when ‘judicial policy dictates that a case be

heard only in a proper county’ (citation omitted).”).

ARTICLE 9 – CLASS ACTIONS

CPLR 908 – Dismissal, discontinuance or compromise

David L. Ferstendig, Divided Court of Appeals Holds That CPLR 908 Applies to Pre-Certified

Class Actions, 687 N.Y.S.L.D. 1 (2018)

Divided Court of Appeals Holds That CPLR 908 Applies to Pre-Certified Class Actions

Thus, Court Approval and Notice to Putative Class Members of Proposed Dismissal,

Discontinuance or Compromise Is Required

CPLR 908 requires court approval before a class action is dismissed, discontinued or

compromised. In addition, it provides that "[n]otice of the proposed dismissal, discontinuance, or

compromise shall be given to all members of the class in such manner as the court directs." The

question presented in Desrosiers v. Perry Ellis Menswear, LLC., 2017 N.Y. Slip Op. 08620

(December 12, 2017), was whether CPLR 908 only applies to certified class actions or if it also

Page 133: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

applies to class actions settled or dismissed before the class is certified. A split Court of Appeals

held that CPLR 908 applies to pre-certified actions.

The majority noted that CPLR 908 is ambiguous as to whether a "class action" means only a

certified class or could include an action from the moment the complaint containing class action

allegations is filed. Furthermore, the fact that the statute required that notice be provided to "all

members of the class" is "inconclusive" because it is not clear whether there are "class members"

before a class is certified.

The majority then looked at other principles of statutory interpretation and sources beyond the text.

CPLR Article 9 was modeled on a similar federal law. The majority of federal circuit courts

interpreting the relevant (earlier) version of FRCP 23(e), which was virtually identical to CPLR

908, concluded that it applied to pre-certified actions, but that the notice was discretionary.

Moreover, the only New York State appellate case dealing with the issue (prior to this case)—

Avena v. Ford Motor Co., 85 A.D.2d 149 (1st Dep’t 1982)—concluded that CPLR 908 applied to

settlements before certification. The Court of Appeals never overruled Avena, and no other

Appellate Division department has reached a contrary conclusion. The majority ascribed

persuasive significance to legislative inaction, that is,

the fact that the legislature has not amended CPLR 908 in the decades since Avena has been

decided is particularly persuasive evidence that the court correctly interpreted the legislature’s

intent as it existed when CPLR 908 was enacted in light of developments occurring in the years

after Avena was decided.

Derosiers, 2017 N.Y. Slip Op. 08620 at ∗6.

FRCP 23(e) was amended in 2003 to make notice required only for certified classes, and proposals

to amend CPLR 908 to provide for discretionary pre-certification notice where necessary to protect

putative class members (as opposed to the mandatory requirement enunciated in Avena) have

never been adopted or acted upon by the State Legislature. The majority concluded that the

practical difficulties and policy concerns arising out of this issue should be addressed by the

legislature,

especially considering that there are also policy reasons in favor of applying CPLR 908 in the

precertification context, such as ensuring that the settlement between the named plaintiff and the

defendant is free from collusion and that absent putative class members will not be prejudiced.

The balancing of these concerns is for the legislature, not this Court, to resolve (citations omitted).

Id. at ∗7–8.

The dissent, written by Judge Stein, asserted that the majority found there to be ambiguity in CPLR

908 where there was none and placed too much weight on the First Department’s decision in

Avena. CPLR 908 requires notice in a "class action" and here plaintiffs did not "transform the

purported class action into an actual class action." Moreover, prior to class certification, there are

no "members of the class" to whom notice could be provided; a court, "not a would-be class

Page 134: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

representative, has the power to determine whether an action ‘brought as a class action’ may be

maintained as such"; and notice to putative class members here would lack practical significance,

because "the notice would essentially inform putative class members that an individual claim— of

which they received no prior notice—was being resolved by an agreement that was not binding on

them." Id. at ∗11.

The dissent concluded that the appellate courts’ and legislature’s inactions after Avena, a decision

characterized by the dissent as flawed and questioned by many, should not impact "our adherence

to the statutory text." Finally, federal case law interpreting the pre-2003 version of FRCP 23(e)

held that notice in pre-certified cases was discretionary. They did not address the issue here: that

is, whether the notice is mandatory.

ARTICLE 10 - PARTIES GENERALLY

CPLR 1003 - Service outside time to add parties as of right

Jaramillo v. Asconcio, 151 A.D.3d 947, 58 N.Y.S.3d 412 (2d Dep’t 2017) (“Here, the plaintiff

served and filed the supplemental summons and amended complaint outside of the time periods

specified in CPLR 1003, and before obtaining leave of court or a stipulation of the parties who had

appeared in the action. Since the plaintiff failed to obtain leave of court or a stipulation between

the parties before serving and filing the supplemental summons and amended complaint, that

service may be deemed a nullity, and the amended complaint dismissed insofar as asserted against

the additional parties for lack of personal jurisdiction (citations omitted). However, lack of

personal jurisdiction may be waived (citations omitted). Under the circumstances of this case, by

his appearance in June 2012 and his voluntary participation in the action, Dariusz Lojek submitted

to the jurisdiction of the court and waived any defense of lack of personal jurisdiction within the

applicable statute of limitations (citations omitted).”).

CPLR 1024 - Provision permitting commencement of action against unknown parties does

not toll the statute of limitations

Walker v. Hormann Flexon, LLC, 153 A.D.3d 997, 59 N.Y.S.3d 614 (3d Dep’t 2017) (“The

statutory provision allowing commencement of an action against unknown parties does not toll the

statute of limitations (citations omitted). As Supreme Court held, plaintiff was required to serve

all parties within 120 days of filing, or seek leave to extend the time for service ‘upon good cause

shown or in the interest of justice’ (citations omitted). Here, plaintiff failed to seek leave to extend

the time for service prior to expiration of the statutory limitations period. Further, a party seeking

to apply the relation-back doctrine under CPLR 1024 carries the burden ‘of establishing that

diligent efforts were made to ascertain the unknown party’s identity prior to the expiration of the

statute of limitations” (citations omitted).”).

Page 135: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

ARTICLE 14- A – CONTRIBUTORY NEGLIGENCE

CPLR 1412 - Burden of proof

CPLR 1412 / 3212

David L. Ferstendig, Majority of Court of Appeals Holds Plaintiffs Need Not Establish the Absence

of Their Own Comparative Negligence to Obtain Partial Summary Judgement on Liability Only,

690 N.Y.S.L.D. 1-2 (2018)

Majority of Court of Appeals Holds Plaintiffs Need Not Establish the Absence of Their Own

Comparative Negligence to Obtain Partial Summary Judgement on Liability Only

Court Resolves Conflict and Confusion in This Area

In the November 2016 Edition of the Digest, we discussed the confusion within the First

Department as to whether a plaintiff must establish that he or she is free from comparative

negligence in order to be successful on a partial summary judgment motion on liability only. In

Rodriguez v. City of New York, 142 A.D.3d 778 (1st Dep’t 2016), a First Department panel joined

the Second Department in finding that the plaintiff had such an obligation.

Recently, on appeal, a narrow majority of the Court of Appeals reversed. Rodriguez v. City of

New York, 2018 N.Y. Slip Op. 02287 (April 3, 2018). The Court noted that placing such a burden

on the plaintiff is inconsistent with CPLR Article 14-A, which codified comparative negligence

principles. CPLR 1412 provides that "[c]ulpable conduct claimed in diminution of damages, in

accordance with [CPLR 1411], shall be an affirmative defense to be pleaded and proved by the

party asserting the defense." Thus, the majority insisted that requiring the plaintiff to prove the

absence of comparative fault here would "flip" the burden.

The defendant argued that CPLR 3212(b), which requires that a summary judgment motion

establish that "there is no defense to the cause of action," supported its position. The majority

rejected this argument because comparative negligence "is not a defense to any element (duty,

breach, causation) of plaintiff’s prima facie cause of action for negligence," and, as noted above,

does not bar plaintiff’s recovery, but only serves to reduce the damages. Id. at ∗4.

The majority maintained that the legislative history of CPLR Article 14-A supported its approach.

Moreover, it also addressed the elephant in the room, that is, the Court of Appeals’ prior decision

in Thoma v. Ronai, 82 N.Y.2d 736 (1993), where, in upholding the First Department’s order, the

Court stated that:

The submissions to the nisi prius court on plaintiff’s motion for summary judgment,

consisting of her affidavit and the police accident report, demonstrate that she may

have been negligent in failing to look to her left while crossing the intersection.

Plaintiff’s concession that she did not observe the vehicle that struck her raises a

Page 136: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

factual question of her reasonable care. Accordingly, plaintiff did not satisfy her

burden of demonstrating the absence of any material issue of fact and the lower

courts correctly denied summary judgment.

Thoma, 82 N.Y.2d at 737.

The majority in Rodriguez insisted that, notwithstanding the language in the Thoma case and

reliance by numerous appellate courts on it, Thoma never addressed the precise question here (that

is, whether the plaintiff bears the burden to show the absence of comparative negligence) or

considered the impact of Article 14-A.

Finally, the majority rejected defendant’s contention that granting plaintiff’s motion would serve

no practical purpose:

A principal rationale of partial summary judgment is to narrow the number of issues

presented to the jury. In a typical comparative negligence trial, the jury is asked to

answer five questions:

1. Was the defendant negligent?

2. Was defendant’s negligence a substantial factor in causing [the injury or the

accident]?

3. Was plaintiff negligent?

4. Was plaintiff’s negligence a substantial factor in causing (his or her) own

injuries?

5. What was the percentage of fault of the defendant and what was the percentage

of fault of the plaintiff? (PJI 2:36). Where plaintiff has already established

defendant’s liability as a matter of law, granting plaintiff partial judgment

eliminates the first two questions submitted to the jury, thereby serving the

beneficial purpose of focusing the jury on questions and issues that are in dispute

(citations omitted).

Rodriguez, 2018 N.Y. Slip Op. 02287 at ∗6.

The dissent rejected the majority’s position that the Court’s decision in Thoma did not settle the

issue here, and, in fact, it maintained that subsequent Court of Appeals’ decisions followed the

"Thoma rule."

In addition, the dissent noted that, for the most part, the Appellate Division Departments have held

that a plaintiff cannot obtain partial summary judgment where there are issues of fact concerning

comparative fault. Moreover, there have been failed legislative proposals to place the burden on a

defendant opposing a summary judgment motion to produce evidence of plaintiff’s comparative

fault to raise issues of fact. Thus, such attempts to amend the statute "would be unnecessary if

plaintiffs were entitled to summary judgment despite the existence of issues of fact concerning

comparative fault." Id. at ∗8. In addition, the dissent insisted that the "Thoma rule" is a "fairer

outcome"; determinations of the degree of fault should be made as a whole; assessing one party’s

Page 137: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

fault with a preconceived idea of the other party’s liability is inherently unfair; the Pattern Jury

Instructions advise that a jury is to consider both parties’ liability together; and the issue of the

defendant’s liability and comparative fault are intertwined.

Regardless of whether you agree or disagree with the Court of Appeals’ ruling, its benefits are

manifest in finally resolving this issue and avoiding confusing intra and inter Appellate Division

Department conflicts. Yet another conflict resolved!

CPLR 1412 / 3212 - But the issue of a plaintiff's comparative negligence can be decided in

the context of a summary judgment motion where, as here, the plaintiff moved for summary

judgment dismissing a defendant's affirmative defense of comparative negligence

Poon v. Nisanov, 2018 NY Slip Op 04365 (2d Dep’t 2018) (“Although a plaintiff need not

demonstrate the absence of his or her own comparative negligence to be entitled to partial summary

judgment as to a defendant's liability (citation omitted), the issue of a plaintiff's comparative

negligence may be decided in the context of a summary judgment motion where, as here, the

plaintiff moved for summary judgment dismissing a defendant's affirmative defense of

comparative negligence (citation omitted).”).

ARTICLE 20- MISTAKES, DEFECTS, IRREGULARITIES AND EXTENSIONS OF

TIME

CPLR 2001 - Untimeliness of the proper service overlooked

Capolino v. Goren, 155 A.D.3d 1414, 65 N.Y.S.3d 272 (3d Dep’t 2017) (“Due to the

inapplicability of those contractual provisions, plaintiffs’ effort to serve defendant by mail was

deficient in that service ‘under CPLR 3213 is subject to the rules governing service of the summons

generally’ (citations omitted). The mailing nevertheless placed defendant on notice of the pending

motion for summary judgment in lieu of complaint, and she responded with a cross motion that

opposed the motion on various grounds. Plaintiffs then arranged for proper, albeit untimely,

service of defendant pursuant to CPLR 308 (2), and advised that they were amenable to any further

adjournment of the return date ‘as defendant and [Supreme] Court may find proper.’ Accordingly,

while a wholesale failure to timely serve defendant with the initiatory papers constitutes ‘a fatal

jurisdictional defect’ (citations omitted), defendant was placed on notice, then submitted a cross

motion that raised various objections and included substantive opposition before being properly

served. In light of these peculiar circumstances, as well as the absence of any prejudice flowing

from plaintiffs’ missteps, we are persuaded that the untimeliness of the proper service could be

and rightly was overlooked (citations omitted).”).

CPLR 2001 - Disregard a mistake in indexing a notice of pendency

Beltway Capital, LLC v. Gutierrez, 140 A.D.3d 998, 35 N.Y.S.3d 164 (2d Dep’t 2016) (“The

Supreme Court erred in denying the plaintiff’s motion pursuant to CPLR 2001 (citation omitted).

Page 138: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

‘CPLR 2001 permits a court, at any stage of an action, to disregard a party’s mistake, omission,

defect, or irregularity if a substantial right of a party is not prejudiced’ (citations omitted).

Prejudice can be considered in determining whether a mistake in indexing a notice of pendency

can be disregarded under CPLR 2001 (citation omitted). Here, however, given the respondents’

actual knowledge of the notice of pendency and the foreclosure proceeding, they cannot claim that

they would be prejudiced by disregarding the omission of lot 123 from the description of the

property on the documents (citations omitted). Accordingly, the Supreme Court should have

granted the plaintiff’s motion to amend the notice of pendency, judgment of foreclosure and sale,

and all other documents in the action, nunc pro tunc, to correct the legal description of the

foreclosed property.”).

CPLR 2001 - Unsigned deposition admissible

Gallway v. Muintir, LLC, 142 A.D.3d 948, 38 N.Y.S.3d 28 (2d Dep’t 2016) (“The plaintiff’s

challenges to the admissibility of the defendants’ evidence are without merit. The plaintiff’s

unsigned deposition was admissible, since it was submitted by the plaintiff herself in opposition

to the defendant’s motion, thus acknowledging its accuracy (citation omitted). Additionally, the

defendants cured any defects in the admissibility of the deposition transcripts submitted in support

of their motion by submitting, in reply, the reporter’s certification of those transcripts and the fact

that the depositions were forwarded to the parties for review and signature (citations omitted).”).

CPLR 2001 - Substituting, nunc pro tunc, the newly signed affidavit of merit in place of the

affidavit of merit that had been attached to its application for an order of reference

US Bank, N.A. v. Steele, 142 A.D.3d 1161, 39 N.Y.S.3d 178 (2d Dep’t 2016) (“The Supreme Court

providently exercised its discretion in granting those branches of the plaintiff’s motion which were

to substitute, nunc pro tunc, the newly signed affidavit of merit in place of the affidavit of merit

that had been attached to its application for an order of reference, and to validate the order of

reference. CPLR 2001 ‘permits a court, at any stage of an action, to disregard a party’s mistake,

omission, defect, or irregularity if a substantial right of a party is not prejudiced’ (citations

omitted). In addition, pursuant to CPLR 5019(a), a court has ‘discretion to correct an order or

judgment which contains a mistake, defect, or irregularity not affecting a substantial right of a

party’ (citation omitted). Here no substantial right of the defendant has been affected by the court’s

substitution of the new affidavit of merit ((citations omitted).”).

CPLR 2001 - Disregarding a failure to comply with RPAPL 1301(3) by commencing a new

action without court leave before the discontinuance of an earlier action

Wells Fargo Bank, N.A. v. Irizarry, 142 A.D.3d 610, 36 N.Y.S.3d 689 (2d Dep’t 2016) (“Here, the

plaintiff violated RPAPL 1301(3) by, without leave of the Supreme Court, commencing the 2013

action prior to the court granting its motion to discontinue the 2008 action. However, by the time

the defendant moved to dismiss the complaint in the 2013 action based upon the plaintiff’s

violation of RPAPL 1301(3), the court had already granted the plaintiff’s motion to discontinue

the 2008 action. Under the unique circumstances of this case, where the defendant was not

prejudiced by the plaintiff’s failure to comply with RPAPL 1301(3) since he was not in the position

Page 139: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

of having to defend against more than one lawsuit to recover the same mortgage debt, granting

dismissal of the complaint in the 2013 action after the 2008 action had already been discontinued

afforded the defendant more relief than is contemplated by RPAPL 1301(3). The plaintiff’s failure

to comply with RPAPL 1301(3) should have been disregarded as a mere irregularity which did not

prejudice a substantial right of any party (see CPLR 2001), and that branch of the defendant’s

motion which was pursuant to RPAPL 1301(3) to dismiss the complaint insofar as asserted against

him should have been denied.”).

CPLR 2001 - Correct a judgment

Rosenblum v. Rosenblum, 145 A.D.3d 460, 43 N.Y.S.3d 36 (1st Dep’t 2016) (“The court had the

authority to correct the judgment to reflect the reduced ad damnum clause of the complaint because

the change did not prejudice defendant or affect a substantial right (see CPLR 2001).”).

CPLR 2001 - Disregarding an error in a slight variance between the caption appearing on

the defendant’s motion papers and the summons and complaint filed

Ambroise v. United Parcel Serv. of Am., Inc., 143 A.D.3d 929, 40 N.Y.S.3d 444 (2d Dep’t 2016)

(“The Supreme Court erred in denying the defendants’ motion solely upon a procedural ground

that the parties did not raise or litigate (citations omitted). Although there was a slight variation

between the caption appearing on the defendants’ moving papers and the summons and complaint

filed by the plaintiffs, this defect in form should have been disregarded since it did not prejudice

the substantial rights of any party, and the plaintiffs failed to raise a timely objection to it (citations

omitted). Accordingly, the Supreme Court should have determined the motion on the merits

(citations omitted). In the interest of judicial economy, we deem it appropriate to address the

motion on the merits, rather than remit the matter of the Supreme Court, Queens County, to do so

(citation omitted).”).

CPLR 2001 - Considered out of state affidavit subscribed and sworn to out of state and not

accompanied by a certificate of conformity

Bank of New York Mellon v. Sakadawen Vytalingam, 144 A.D.3d 1070, 42 N.Y.S.3d 274 (2d Dep’t

2016) (“The Supreme Court should have considered the affidavit of the plaintiff’s loan servicer

notwithstanding that it was subscribed and sworn to out of state and not accompanied by a

certificate of conformity as required by CPLR 2309(c), as such a defect is not fatal, and no

substantial right of the defendants was prejudiced by disregarding the defect (citations omitted).

As the defendants failed to oppose the plaintiff’s motion or raise the issue, it was inappropriate for

the Supreme Court to, sua sponte, do so on their behalf (citations omitted).”).

American Cas. Co. of Reading, Pa. v. Motivated Sec. Servs., Inc., 148 A.D.3d 521, 48 N.Y.S.3d

591 (1st Dep’t 2017) (“The motion court properly considered the out-of-state affidavit of SBF’s

president, even though it lacks a certificate of conformity (CPLR 2309[c]). The lack of such

certification is not a fatal defect and the irregularity may be corrected later (citations omitted).”).

Page 140: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

CPLR 2001 - But where plaintiff’s affidavit of purported service lacked certificate of

conformity, trial court finds defect is not excusable under CPLR 2001

JPMorgan Chase Bank, N.A. v. Diaz, 56 Misc. 3d 1136, 57 N.Y.S.3d 358 (Sup. Ct. Suffolk Co.

2017) (“Generally, although a defective out-of-state affidavit, which is defective because it is not

accompanied by a certificate of conformity, may be waived or cured under CPLR §2001, such

defect waiver or cure may occur only after jurisdiction has been established (citations omitted).

Indeed, personal jurisdiction over a defendant is not obtained until service is properly effected,

and while correction of mistakes, omissions, defects or irregularities is generally permitted under

CPLR §2001, irregularities or defects related to personal jurisdiction are not among those that are

correctable (citations omitted)….. Accordingly, the legislative intent of CPLR §2001 was to

excuse non-prejudicial defects in court filings, not defects pertaining to jurisdiction. Here, the

affidavit at issue is plaintiff’s affidavit of purported service. Therefore, contrary to plaintiff’s

contentions, CPLR §2001 is not curative of plaintiff’s failure to comply with CPLR §2309(c). If

an out-of-state affidavit of service is defective for failure to comply with the certificate of

conformity requirements of CPLR §2309(c), such defect may be waived or cured only by a

subsequent affidavit that corrects such defect (citations omitted). Since the plaintiff has again

failed to submit a certificate of compliance with the out-of-state affidavit of service as required by

CPLR §2309(c), and has failed to submit an affidavit curing such defect, jurisdiction over the

defendant has not been properly established. Based upon the foregoing, the plaintiff’s motion for

a default order of reference is denied. Plaintiff is afforded one final opportunity to establish proper

jurisdiction and compliance with the requirements of CPLR §2309(c) regarding plaintiff’s out-of-

state affidavit of purported service. Failure to do so shall result in dismissal plaintiff’s complaint.”).

But see Federal Natl. Mtge. Assn. v Chiusano, 2018 N.Y. Misc. LEXIS 1646, 2018 NY Slip Op

28143 (Sup. Ct. Sufolk Co. 2018).

CPLR 2001 - Disregarded failure to attach an admission of service to the motion papers, and

the failure to file proof of service of the petition and notice of petition

Gonzalez v. Haniff, 144 A.D.3d 1087, 43 N.Y.S.3d 375 (2d Dep’t 2016) (“Here, the Haniffs served

the order to show cause and supporting papers in accordance with the directives set forth in the

order to show cause. Thus, the Supreme Court had jurisdiction to entertain the motion. Moreover,

the Haniffs properly filed the admission of service with the Clerk of Queens County (see CPLR

2102[a]). Although the admission of service was not annexed to the motion papers, the plaintiffs

submitted opposition to the motion on the merits without raising any failure of proper service or

irregularity in the Haniffs’ submissions to the court. Under these circumstances, given that no

substantial right of the plaintiffs was prejudiced, the court should have disregarded the alleged

irregularity and determined the motion on the merits (citations omitted).”).

Matter of Meighan, 144 A.D.3d 917, 42 N.Y.S.3d 182 (2d Dep’t 2016) Three Amigos SJL Rest.,

Inc. v 250 W. 43 Owner LLC, 144 A.D.3d 490, 41 N.Y.S.3d 224 (1st Dep’t 2016) (“Here, there is

no dispute that the respondents were served with the notice of petition and petition, as they moved

to dismiss on the ground that the petition failed to state a cause of action. At no time did they argue

that the proceeding should be dismissed for failure to file proof of service. As such, the parties did

not have an opportunity to address the purported failure to file proof of service, the ground upon

Page 141: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

which the Supreme Court relied in denying the petition and dismissing the proceeding, even though

such defect is readily curable (see CPLR 2001, 2004). ‘The lack of notice and opportunity to be

heard implicates the fundamental issue of fairness that is the cornerstone of due process’ (citation

omitted). Therefore, the Supreme Court should have alerted the parties to the purported defect and

afforded the appellant an opportunity to correct it, rather than denying the petition and dismissing

the proceeding (citation omitted).”).

CPLR 2001 - Disregarding an error made in moving against the amended complaint

(declared a nullity by the court) instead of the original complaint

Mew Equity, LLC v. Sutton Land Servs., LLC, 144 A.D.3d 874, 42 N.Y.S.3d 175 (2d Dep’t 2016).

CPLR 2001 - Deem a notice of appeal filed by a prior landlord to be the notice of appeal by

the current landlords

Three Amigos SJL Rest., Inc. v. 250 W. 43 Owner LLC, 144 A.D.3d 490, 41 N.Y.S.3d 224 (1st

Dep’t 2016) (“Although the current landlord defendants were not parties to the action at the time

of issuance of the order on appeal or at the time the former landlord filed the notice of appeal, we,

sua sponte, deem the notice of appeal dated October 19, 2015 to be a notice of appeal by the current

landlords (citation omitted). The current landlords are ‘aggrieved part[ies]’ within the meaning of

CPLR 5511, and therefore have standing to appeal.”).

CPLR 2001 - Correct a judgment to reflect the reduced ad damnum clause of the complaint

Rosenbaum v. Rosenbaum, 145 A.D.3d 460, 43 N.Y.S.3d 36 (1st Dep’t 2016) (“The court had the

authority to correct the judgment to reflect the reduced ad damnum clause of the complaint because

the change did not prejudice defendant or affect a substantial right (see CPLR 2001).”).

CPLR 2001 - Correct a name in the caption

Bessa v. Anflo Indus., Inc., 148 A.D.3d 974, 51 N.Y.S.3d 102 (2d Dep’t 2017) (to permit

amendment of caption and pleadings to reflect plaintiff’s correct legal name. “Although dismissal

of the complaint was not warranted, the Supreme Court nevertheless should have taken steps to

ensure that the caption and the pleadings in this action were amended to reflect the plaintiff’s

correct name. ‘[W]here the right party plaintiff is in court but under a defective name or title as

party plaintiff . . . an amendment correcting the title is permissible’ (citations omitted). Indeed,

‘CPLR 2001 permits a court, at any stage of an action, to disregard a party’s mistake, omission,

defect, or irregularity if a substantial right of a party is not prejudiced’ (citation omitted), and

CPLR 5019(a) gives trial and appellate courts the discretion to cure mistakes, defects, and

irregularities that do not affect substantial rights of parties (citations omitted). Inasmuch as the

appellants failed to demonstrate that they would suffer any prejudice if the plaintiff’s name is

Page 142: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

corrected, the court should have directed the amendment of the caption and the pleadings to reflect

the plaintiff’s correct legal name (citations omitted).”).

US Bank N.A. v. Konstantinovic, 147 A.D.3d 1002, 48 N.Y.S.3d 182 (2d Dep’t 2017) (“Contrary

to the defendant’s contention, the Supreme Court providently exercised its discretion by permitting

the correction of the name of the plaintiff in the caption since the correction did not affect a

substantial right of the defendant (citations omitted). Moreover, the defendant waived her

objection to the plaintiff’s standing by failing to raise the objection in an answer or in a pre-answer

motion to dismiss the complaint (citations omitted). Contrary to the defendant’s further contention,

the plaintiff’s motion was not made pursuant to CPLR 3025(b), and therefore, the corrections to

the caption made pursuant to CPLR 2001 did not provide her an opportunity to serve an answer to

an amended complaint (cf. CPLR 3025[d]).”).

CPLR 2001 - Disregarding the plaintiff’s mistake in labeling his bill of particulars as a

‘supplemental’ bill

Mackauer v. Parikh, 148 A.D.3d 873, 49 N.Y.S.3d 488 (2d Dep’t 2017) (“Contrary to the

defendants’ contention, the plaintiff’s ‘supplemental’ bill of particulars adequately set forth the

plaintiff’s theory that the defendants negligently failed to diagnose him with appendicitis.

Although the bill of particulars was denominated as a ‘supplemental’ bill of particulars, which may

not be used to articulate a new theory of liability (citaions omitted), the plaintiff was entitled to

‘amend’ his bill of particulars once as of right at any time prior to filing the note of issue (citations

omitted). We may disregard the plaintiff’s mistake in labeling his bill of particulars as a

‘supplemental’ bill where, as here, a substantial right of a party will not be prejudiced (citations

omitted). The supplemental bill of particulars was filed approximately 54 days before the

defendants moved, inter alia, for summary judgment and, notably, the defendants’ expert

addressed the plaintiff’s failure-to-diagnose theory when he opined that the plaintiff ‘did not

exhibit any signs or symptoms of appendicitis on April 21, 2009.’ Moreover, the defendants did

not reject the supplemental bill of particulars when it was served upon them, and have not claimed

that they would be prejudiced by treating it as an amended bill of particulars.”).

CPLR 2001 - Disregarding the delay in filing a request for judicial intervention

HSBC Bank USA, N.A. v. Corazzini, 148 A.D.3d 1314, 49 N.Y.S.3d 202 (3d Dep’t 2017)

(“Defendant also claimed that she was entitled to summary judgment due to plaintiff’s failure to

file a request for judicial intervention with the county clerk at the time that it filed proof of service

of the summons and complaint in February 2009. The filing of the request for judicial intervention

might have obliged Supreme Court to ‘hold a mandatory [residential mortgage foreclosure]

conference within [60] days’ (CPLR former 3408 [a], as added by L 2008, ch 472, § 3; see 22

NYCRR former 202.12a [b]), although it is unclear whether this case involves the type of home

loan to which the then-extant version of CPLR 3408 applied (citation omitted). It is also worthy

of note that a conference at that time would have been of questionable value, as the version of

CPLR 3408 then in effect did not require that the parties negotiate in good faith (see CPLR 3408

[f], as added by L 2009, ch 507, § 9). In any case, defendant did not describe any negotiations that

were hampered by the lack of a timely settlement conference and, in fact, she failed to attend the

Page 143: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

conference when it finally occurred. The delay in filing a request for judicial intervention was

nothing more than a nonprejudicial procedural error under these circumstances and, as such, it

“shall be disregarded” (CPLR 2001).”).

CPLR 2001 - Disregarding an error in identifying the proper order of support in a petition

Matter of Nimkoff v. Nimkoff, 147 A.D.3d 850, 47 N.Y.S.3d 349 (2d Dep’t 2017) (“Although the

father, in his petition, mistakenly referred to the October 3, 2013, order as the final order of child

support, rather than the judgment of divorce, the judgment of divorce incorporating the prior order

was before the Support Magistrate, and it was clear that the father sought downward modification

of the support obligation imposed in the judgment of divorce—an application the Family Court

had the subject matter jurisdiction to determine (citations omitted). The mother moved to dismiss

the petition on the merits, and was not prejudiced by the father’s mistake in identifying the proper

final order of support. Since no substantial right of the mother was prejudiced by the father’s error,

the mistake should have been disregarded and the petition and motion to dismiss the petition

entertained on their merits (citations omitted). Accordingly, the Family Court should have granted

the father’s objections, vacated the Support Magistrate’s order, and remitted the matter to the

Support Magistrate to determine the mother’s motion to dismiss on the merits (citation omitted).”).

CPLR 2001 - Treat an appeal as also being taken by the claimant, even though the notice of

appeal was filed on behalf of his attorney only

Matter of Tenecela v. Vrapo Constr., 146 A.D.3d 1217, footnote 1, 45 N.Y.S.3d 678 (3d Dep’t

2017) (“Given that the issues raised on appeal concern both claimant and his attorney, the notice

of appeal should have also been filed on behalf of claimant and not solely on behalf of his attorney

(citations omitted). The parties do not address this issue and, in the absence of any alleged

prejudice, we will disregard the error and treat the appeal as also taken by claimant (see CPLR

2001).”).

CPLR 2001 - Disregard failure to attach pleadings on summary judgment motion

Wade v. Knight Transp., Inc., 151 A.D.3d 1107, 58 N.Y.S.3d 458 (2d Dep’t 2017) (“We also

disagree with the contention of Wade and the infant plaintiff that the Supreme Court should have

denied the Knight defendants’ motions for summary judgment on the ground that they failed to

submit copies of certain pleadings concerning the defendant Daniel Freudenberg with their motion

papers. Freudenberg was a witness to the accident and was made a defendant in these actions after

giving deposition testimony that revealed that his actions may have contributed to the accident.

Notwithstanding that CPLR 3212(b) requires that motions for summary judgment be supported by

a copy of the pleadings, CPLR 2001 permits a court, at any stage of an action, to ‘disregard a

party’s mistake, omission, defect, or irregularity if a substantial right of a party is not prejudiced’

(citations omitted). The record here is sufficiently complete, Freudenberg was not a party to the

instant motions, and Wade and the infant plaintiff do not argue that they were prejudiced in any

way by the Knight defendants’ failure to include those pleadings (citations omitted).”).

Page 144: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

CPLR 2001 - Improperly serving party, rather than counsel, not excusable under CPLR

2001

Deutsche Bank Natl. Trust Co. v. Lamontanaro, 150 A.D.3d 680, 53 N.Y.S.3d 685 (2d Dep’t 2017)

(“The Supreme Court properly granted that branch of Lamontanaro’s motion which was to strike

Jack Anthony’s cross claims insofar as asserted against him. Jack Anthony attempted to serve its

answer, including its cross claims, upon Lamontanaro at his residence. However, since

Lamontanaro was represented by counsel during the relevant time period, Jack Anthony’s answer

was required to have been served upon Lamontanaro’s attorney pursuant to CPLR 2103(b)

(citation omitted). Furthermore, Jack Anthony’s answer was untimely (citation omitted). Contrary

to Jack Anthony’s contention, under the circumstances of this case, the court providently exercised

its discretion in declining to disregard the above-mentioned defects pursuant to CPLR 2001

(citation omitted).”).

CPLR 2001 - Failure to file proof of service

Buist v. Bromley Co., LLC, 151 A.D.3d 682, 55 N.Y.S.3d 443 (2d Dep’t 2017) (“Accordingly, we

reverse the order and remit the matter to the Supreme Court, Kings County. Upon remittal, the

defendants’ application for an extension of time to properly file the affidavit of service in the

Clerk’s office should be granted ‘upon such terms as may be just’ (citation omitted), including

service of the motion papers upon the plaintiff, who appeared pro se at the court appearance and

on appeal, and an extension of the plaintiff’s time to oppose the motion. The defendants’ motion

for summary judgment should thereafter be determined on the merits.”).

Matter of Meighan, 144 A.D.3d 917, 42 N.Y.S.3d 182 (2d Dep’t 2016) (“Here, there is no dispute

that the respondents were served with the notice of petition and petition, as they moved to dismiss

on the ground that the petition failed to state a cause of action. At no time did they argue that the

proceeding should be dismissed for failure to file proof of service. As such, the parties did not have

an opportunity to address the purported failure to file proof of service, the ground upon which the

Supreme Court relied in denying the petition and dismissing the proceeding, even though such

defect is readily curable (see CPLR 2001, 2004). ‘The lack of notice and opportunity to be heard

implicates the fundamental issue of fairness that is the cornerstone of due process’ (citation

omitted). Therefore, the Supreme Court should have alerted the parties to the purported defect and

afforded the appellant an opportunity to correct it, rather than denying the petition and dismissing

the proceeding (citation omitted).”).

Morgan Stanley Mtge. Loan Trust (2007-8XS) v. Harding, 141 A.D.3d 511, 35 N.Y.S.3d 235 (2d

Dep’t 2016) (“As the Supreme Court correctly concluded, Harding’s papers on her motion to

vacate her default were insufficient, as they did not include the plaintiff’s original motion papers

or Harding’s proposed opposition papers (citations omitted) and failed to demonstrate that she had

a potentially meritorious defense to the foreclosure action (citation omitted.”).

Page 145: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

CPLR 2001 / 3026 - Verification error overlooked

Matter of Harder v. Kuhn, 153 A.D.3d 1119, 60 N.Y.S.3d 597 (3d Dep’t 2017) (“Preliminarily,

we find no error in Supreme Court’s failure to dismiss the verified petition due to the verification

having been notarized by Clyne. Clyne is a named respondent only because of his status as a

Commissioner of the Board, the entity with which the certificates of substitution were filed, and

he has no direct or pecuniary interest in the outcome (citation omitted). In view of this, and absent

any prejudice to respondents flowing from the purported defect in the verification (citations

omitted), Clyne’s notarization is not a basis for dismissal of the verified petition.”).

CPLR 2001 – But Failure to file remains jurisdictional defect not curable by CPLR 2001

Matter of Dougherty v. County of Greene, 161 A.D.3d 1253 (3d Dep’t 2018) (“While the Supreme

Court or the County Court may convert an improperly brought motion for leave to serve a late

notice of claim into a special proceeding (citations omitted), the failure to file the application with

the appropriate clerk — the County Clerk — is a fatal defect that may not be overlooked or

corrected by the court pursuant to CPLR 2001 (citations omitted). Indeed, the filing of initiatory

papers with the Clerk of the Supreme and County Courts, rather than the County Clerk, ‘has been

equated to a nonfiling and, thus, 'a nonwaivable jurisdictional defect rendering the proceeding a

nullity’ (citations omitted). Here, petitioner mailed her 2013 application to the Greene County

Courthouse to the attention of the ‘County Lawyer Clerks Office.’ Petitioner's papers were

promptly rejected by the Chief Clerk of the Supreme and County Courts in Greene County and

returned to petitioner with a letter identifying several deficiencies with her papers and directing

that they be mailed to the County Clerk's Office. Petitioner's failure to file her 2013 application

with the proper clerk amounts to a nonwaivable jurisdictional defect, rendering the proceeding a

nullity (citations omitted). Consequently, petitioner's 2015 submissions cannot relate back to her

2013 attempted application. Given that petitioner did not file an application with the Greene

County Clerk prior to the expiration of the one year and 90-day statute of limitations, which

expired in February 2014, Supreme Court was statutorily prohibited from extending the time in

which petitioner had to serve her notice of claim upon respondent (citations omitted).”).

Dealy-Doe-Eyes Maddux v. Schur, 139 A.D.3d 1281, 30 N.Y.S.3d 590 (3d Dep’t 2016) (“We

affirm. ‘An action is commenced by filing a summons and complaint or summons with notice in

accordance with [CPLR 2102]’ (CPLR 304 [a]). The failure to file the papers required to

commence an action constitutes a nonwaivable, jurisdictional defect (citations omitted), and such

a defect is not subject to correction under CPLR 2001 (citations omitted). Here, although plaintiff

purchased an index number and filed a complaint, she never filed a summons or summons with

notice. Given plaintiff’s failure, the purported action was a nullity, and Supreme Court properly

dismissed it for want of subject matter jurisdiction (citations omitted). Moreover, to the extent that

the complaint raised claims that were identical to those previously litigated and dismissed after a

trial, such claims were barred by principles of res judicata (citations omitted). Plaintiff’s remaining

contentions have been examined and found to be without merit.”).

Wesco Ins. Co. v. Vinson, 137 A.D.3d 1114, 26 N.Y.S.3d 870 (2d Dep’t 2016) (“In the Supreme

Court, pursuant to CPLR 304, an action is ordinarily commenced ‘by filing a summons and

Page 146: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

complaint or summons with notice,’ and a special proceeding is ordinarily commenced ‘by filing

a petition’ (CPLR 304[a]). The failure to file the papers necessary to institute an action or a

proceeding constitutes a nonwaivable, jurisdictional defect, rendering the action or proceeding a

nullity (citations omitted). Although Wesco obtained an index number and moved to fix the

amount of its workers’ compensation lien pursuant to Workers’ Compensation Law § 29, Wesco

did not file or serve a summons, a complaint, or a petition. In light of this failure to file, the

jurisdiction of the Supreme Court was never invoked and the purported action or proceeding was

a nullity (citations omitted). Furthermore, Wesco’s complete failure to file the initial papers

necessary to commence an action or a proceeding is not the type of error that falls within the court’s

discretion to correct under CPLR 2001 (citations omitted).”).

ARTICLE 21 - PAPERS

CPLR 2103 - Service of papers

CPLR 2103(b) - Cannot serve party, where represented by counsel

Deutsche Bank Natl. Trust Co. v. Lamontanaro, 150 A.D.3d 680, 53 N.Y.S.3d 685 (2d Dep’t 2017)

(“The Supreme Court properly granted that branch of Lamontanaro’s motion which was to strike

Jack Anthony’s cross claims insofar as asserted against him. Jack Anthony attempted to serve its

answer, including its cross claims, upon Lamontanaro at his residence. However, since

Lamontanaro was represented by counsel during the relevant time period, Jack Anthony’s answer

was required to have been served upon Lamontanaro’s attorney pursuant to CPLR 2103(b)

(citation omitted). Furthermore, Jack Anthony’s answer was untimely (citation omitted). Contrary

to Jack Anthony’s contention, under the circumstances of this case, the court providently exercised

its discretion in declining to disregard the above-mentioned defects pursuant to CPLR 2001

(citation omitted).”).

CPLR 2103(b)(5) - Failure to effect proper service

Matter of Gabriel v. Morse, 145 A.D.3d 1401, 42 N.Y.S.3d 877 (3d Dep’t 2016) (“After

completing an in-patient rehabilitation program, the father commenced this modification

proceeding seeking joint legal custody and a schedule of parenting time. When the father failed to

fully respond to the mother’s requests to disclose his treatment records, she moved for an order

dismissing this proceeding with the condition that the father provide certified copies of his

treatment records prior to refiling the petition. Thereafter, the father faxed a letter to Family Court

seeking to withdraw the petition without prejudice. The father also faxed the letter to the mother’s

counsel, despite the fact that the fax number set forth on prior correspondence from the mother’s

counsel expressly provided that it was not to be used for service purposes (see CPLR 2103 [b] [5]).

In addition, the father failed to follow up the fax to the mother’s counsel with a mailed copy of the

letter, as required to complete service (see CPLR 2103 [b] [5]). Notwithstanding these failures,

Family Court granted the father’s request within a few hours of receiving it, dismissed the petition

without prejudice and denied the mother’s motion as moot. The mother now appeals, and we

Page 147: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

reverse. We agree with the mother that the father’s letter must be treated as a motion for voluntary

discontinuance pursuant to CPLR 3217 (b) (citations omitted) and, as such, it must comply with

the applicable service requirements (see CPLR 2103 [b] [5]; 2214 [b]). Inasmuch as the father’s

failure to effectuate proper service here ‘deprive[d] the court of jurisdiction to entertain the motion’

(citations omitted), we find that Family Court erred in dismissing the petition. In light of our

determination, the mother’s remaining contentions are rendered academic.”).

ARTICLE 22- STAY, MOTIONS, ORDERS AND MANDATES

CPLR 2212 - Where motion made

CPLR 2212(a) / 510[3] / 511 / 511(b) - Even under IAS system, there can be a very limited

circumstance where a motion can be made in a court other than the one in which the action

is pending

CPLR 511(b) permits a motion to change venue based on improper county grounds to be made in

the county in which the action is pending or in the county specified in the motion as being proper,

if certain prerequisites are met (e.g., the defendant serves the demand to change venue with or

prior to serving the answer and the plaintiff does not serve an affidavit showing that the county

chosen by the plaintiff is correct or the county proposed by the defendant is incorrect). Otherwise,

under the IAS system, generally motions are to be made in the court in which the action is pending.

However, CPLR 2212(a) (which was enacted before the adoption of the IAS system) provides that

a “motion on notice in an action in the supreme court shall be noticed to be heard in the judicial

district where the action is triable or in a county adjoining the county where the action is triable.”

This provision would seem to have very limited applicability after the adoption of the IAS System,

perhaps restricted to rural or upstate courts, where there may be no available motion terms.

However, some cases have suggested that the provision remains viable even downstate. See

e.g.,Schwartz v. Yellowbook, Inc., 118 A.D.3d 691, 986 N.Y.S.2d 840 (2d Dep’t 2014) (“A motion

to change venue on discretionary grounds, unlike motions made as of right, must be made in the

county in which the action is pending, or in any county in that judicial district, or in any adjoining

county (citations omitted). Schwartz was therefore required to make a motion pursuant to CPLR

510(3) in Nassau County, where the action was pending, in another county in the 10th Judicial

District, or in a county contiguous to Nassau County (citation omitted). Since Nassau County and

Richmond County are not contiguous, and Richmond County is not in the 10th Judicial District,

the Supreme Court, Richmond County, erred in granting that branch of the motion which was

pursuant to CPLR 510(3) (citations omitted).”). See also Minenko v. Swinging Bridge Camp

Grounds of N.Y., Inc., 155 A.D.3d 1413, 63 N.Y.S.3d 914 (3d Dep’t 2017) (“It is well-settled that

a motion to change venue on a discretionary ground, such as the convenience of material witnesses

pursuant to CPLR 510 (3), ‘must be made in the county in which the action is pending, or in any

county in that judicial district, or in any adjoining county’ (citations omitted). Here, it is undisputed

that the action is pending in Kings County and that Sullivan County is not in the same judicial

district as Kings County nor is it an adjoining county. In light of this, we find that defendants failed

to bring their motion in a proper county and, thus, Supreme Court should not have entertained the

motion (citations omitted).”).

Page 148: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

CPLR 2214- service of motion papers

CPLR 2214(d) - Method of service provided for in an order to show cause is jurisdictional in

nature and must be strictly complied with

People ex rel. Strong v. Warden Griffin, 75 N.Y.S.3d 540 (2d Dep’t 2018) (“‘The method of

service provided for in an order to show cause is jurisdictional in nature and must be strictly

complied with’ (citations omitted). Here, we agree with the Supreme Court's determination to

dismiss the proceeding for lack of personal jurisdiction due to the petitioner's failure to follow the

directive of the order to show cause to serve the respondent and the Attorney General with a copy

of the papers upon which the order to show cause was based. Given the petitioner's failure to

comply with the service requirements of the order to show cause, dismissal of the proceeding was

warranted (citations omitted).”).

CPLR 2219/2220 - Time, form, entry and filing of order

CPLR 2219 / 2220 - Where there is a conflict between an order and decision, the decision

controls

Where there is a conflict between an order and a decision, the decision controls. See Matter of

Esposito v. Magill, 140 A.D.3d 1772, 32 N.Y.S.3d 802 (4th Dep’t 2016) (“As a preliminary matter,

we note that where, as here, there is a conflict between the decision and order, the decision controls

(citation omitted), and the order ‘must be modified to conform to the decision’ (citations omitted).

We therefore modify the order by granting the motion seeking to dismiss the first petition.”);

Wilson v. Colosimo, 101 A.D.3d 1765, 1766, 959 N.Y.S.2d 301, 303 (4th Dep’t 2012). See also

Austin Harvard LLC v. City of Canandaigua, 141 A.D.3d 1158, 36 N.Y.S.3d 335 (4th Dep’t 2016)

(“With respect to the declaratory judgment action, it is well settled that ‘parties to a civil dispute

are free to chart their own litigation course’ (citation omitted), and ‘may fashion the basis upon

which a particular controversy will be resolved’ (citation omitted). Here, the record establishes

that the parties charted a summary judgment course, and Supreme Court’s bench decision reflects

that the court denied plaintiff’s motion for summary judgment seeking a declaration in the second

cause of action. The judgment, however, recites that the complaint ‘is in all respects denied and

the matter is dismissed,’ and ‘[w]here, as here, there is a conflict between [a judgment] and a

decision, the decision controls’ (citations omitted). We therefore modify the judgment to conform

to the court’s bench decision.”).

CPLR 2219 / 2220 - 22 NYRR - § 202.48 does not apply because determination did not direct

that proposed order or judgment be settled or submitted

HSBC Bank USA, N.A. v. Molev, 145 A.D.3d 970, 42 N.Y.S.3d 857 (2d Dep’t 2016) (“The

Supreme Court incorrectly, sua sponte, dismissed the action as abandoned pursuant to 22 NYCRR

202.48(b) because, unlike the order dated March 7, 2007, its determination of the plaintiff’s 2014

motion did not expressly direct that the proposed judgment or order be settled or submitted for

signature (see 22 NYCRR 202.48[a]; Funk v Barry, 89 NY2d 364, 367). Accordingly, we remit

Page 149: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

the matter to the Supreme Court, Suffolk County, for a determination of the plaintiff’s motion on

the merits.”).

CPLR 2219 / 2220 - Once notice and proposed order filed in a timely fashion, “events that

may have transpired thereafter to delay settlement of the order did not implicate 22 NYCRR

202.48”

HSBC Bank USA, N.A. v. Yonkus, 154 A.D.3d 643, 62 N.Y.S.3d 132 (2d Dep’t 2017) (“Here,

the initial order granting the motion for summary judgment, dated September 30, 2010, directed

the plaintiff to ‘[s]ettle order.’ Thus, pursuant to 22 NYCRR 202.48(a), the plaintiff was required

to submit a notice of settlement and proposed order within 60 days thereafter, i.e., by the end of

the day on November 19, 2010. In fact, the plaintiff filed the notice and proposed order on

November 17, 2010, two days before the expiration of its time to do so pursuant to 22 NYCRR

202.48(a), as evidenced by a copy of the notice, stamped by the Queens County Clerk as received

at 3 -06 p.m. that day. Any events that may have transpired thereafter to delay settlement of the

order did not implicate 22 NYCRR 202.48. Moreover, it is apparent from the procedural history

that the delay in entry of the judgment of foreclosure and sale was due to procedural irregularities,

and not abandonment by the plaintiff (citations omitted).”).

CPLR 2219 / 2220 - Plaintiff’s failure to properly serve copy of summary judgment order

with notice of entry did not render that order null and void

Wells Fargo Bank, N.A. v. Frierson, 150 A.D.3d 1045, 55 N.Y.S.3d 332 (2d Dep’t 2017) (“Here,

the summary judgment order indisputably affected the rights of the defendant. Consequently, it

was incumbent upon the plaintiff, in moving to confirm the referee’s report and for a judgment of

foreclosure and sale, to demonstrate that the order was properly served upon the defendant’s

attorney of record (citations omitted). Indeed, the summary judgment order provided that proof of

such service ‘must accompany any application for final judgment of foreclosure and sale.’ The

plaintiff failed to do so. Contrary to the defendant’s contention before the Supreme Court, the

plaintiff’s failure to properly serve a copy of the summary judgment order with notice of entry did

not render that order null and void (citation omitted). However, since the plaintiff failed to establish

that a copy of the summary judgment order with notice of entry was properly served upon the

defendant, its motion to confirm the referee’s report and for a judgment of foreclosure and sale

was properly denied on that ground (citation omitted). In light of our determination, we need not

reach the plaintiff’s remaining contention.”).

CPLR 2219 / 2220 - Appeal not properly before court because order was neither filed nor

entered

Matter of Merrell v. Sliwa, 156 A.D.3d 1186 (3d Dep’t 2017) (“As a threshold matter, and as

petitioner’s counsel acknowledged at oral argument, an appeal is not properly before this Court if

the order appealed from ‘was not “entered and filed in the office of the clerk of the court where

the action is triable”’ (citation omitted). The order at issue was neither entered nor filed.

Accordingly, the appeal must be dismissed (citations omitted). . . . Footnote 1 - After oral

argument, petitioner provided us with a copy of the order that reflects that it was ‘received’ by the

Page 150: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

Albany County Clerk’s office. However, there is no indication that the order was filed or entered

as required by CPLR 2220. We note that Supreme Court’s order explicitly stated that it was

transferring the papers to the Albany County Clerk and returning the original order to counsel for

respondents. Significantly, Supreme Court notified the parties that the signing of the order did not

constitute entry or filing or relieve them of the obligation to do so pursuant to CPLR 2220.”).

CPLR 2221 - Motions to reargue or renew

CPLR 2221 - If a motion for leave to reargue, it was untimely and not appealable; if to renew,

no reasonable justification proferred

Bank of N.Y. Mellon Trustee for CSMC Trust 2011-11 v. Xiaoling Shirley He, 151 A.D.3d 1403,

59 N.Y.S.3d 148 (3d Dep’t 2017) (“Defendant’s remaining contentions are equally without merit.

If we construe defendant’s motion as one to reargue, given that it was filed 16 months after the

order and 11 months after the judgment, it was untimely (citation omitted). In any event, no appeal

lies from the denial of a motion to reargue (citations omitted). If we construe defendant’s motion

as one to renew, it was properly denied on the ground that defendant failed to provide any

reasonable justification for her failure to present the evidence proffered prior to the June 2013

order or the judgment of foreclosure and sale (citations omitted). Defendant’s remaining

contentions are also academic and/or without merit.”).

CPLR 2221 - Law office failure constitutes reasonable justification

Trigoso v. Correa, 150 A.D.3d 1041 , 55 N.Y.S.3d 130 (2d Dep’t 2017) (“‘CPLR 2221(e) has not

been construed so narrowly as to disqualify, as new facts not offered on the prior motion, facts

contained in a document originally rejected for consideration because the document was not in

admissible form’ (citation omitted). Here, Danu’s failure to provide signed copies of the deposition

transcripts with the original summary judgment motion was tantamount to law office failure, which

constituted a reasonable justification (citations omitted). Thus, the Supreme Court properly granted

that branch of Danu’s motion which was for leave to renew.”).

CPLR 2221 – Motion to renew- no reasonable justification

Wright v. State of New York, 156 A.D.3d 1413, 65 N.Y.S.3d 874 (4th Dep’t 2017) (“Although

claimant provided the court with a medical record purportedly documenting a medical appointment

scheduled for June 11, 2015, he failed to provide a reasonable justification for his failure to present

that medical record or the facts contained therein on the initial motion (citation omitted).”).

CPLR 2221 - Failure to present new facts on motions for leave to renew

Matter of Doman, 150 A.D.3d 994, 55 N.Y.S.3d 322 (2d Dep’t 2017) (“A court of original

jurisdiction may entertain a motion for leave to renew or to vacate a prior order or judgment on

the ground of newly discovered evidence even after an appellate court has affirmed the original

order or judgment. Nonetheless, in order to imbue the appellate decision with a degree of certainty,

Page 151: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

on a post-appeal motion for leave to renew or to vacate, the movant bears a heavy burden of

showing due diligence in presenting the new evidence to the court of original jurisdiction (citations

omitted). Here, the objectant failed to present ‘new facts not offered on the prior motion that would

change the prior determination’ warranting renewal (CPLR 2221[e][2]).”).

CPLR 2221 - Motion for leave to renew based on deposition completed after prior motion

had been decided

Donovan v. Rizzo, 149 A.D.3d 1038, 53 N.Y.S.3d 193 (2d Dep’t 2017) (“The new evidence

included a transcript of the plaintiff’s deposition testimony, which had not been submitted to the

court on the prior motion, as her deposition had not been completed until after the prior motion

had been decided. Therefore, the motion was correctly denominated by the defendant as one for

leave to renew his opposition to the plaintiff’s motion for summary judgment.”).

CPLR 2221 - Motions to reargue or renew -motion could be decided by another justice

Matter of Pettus v. Board of Directors, 155 A.D.3d 485, 65 N.Y.S.3d 21 (1st Dep’t 2017)

(“Petitioners’ motion denominated as one for leave to renew and reargue was not based on new

facts unavailable at the time of the original motion, and thus was actually a motion for leave to

reargue, the denial of which is not appealable (citations omitted). That the motion was decided by

a Justice other than the Justice who signed the underlying order of dismissal does not compel a

different result, given that the CPLR permits sua sponte recusals and reassignments of such

motions (citations omitted).”).

CPLR 2221 – Motion to renew- new facts?

Atlas v. Smily, 156 A.D.3d 562, 68 N.Y.S.3d 65 (1st Dep’t 2017) (“The motion court properly

denied the wife’s motion to renew since it was not based on new facts that would change the prior

determination (citations omitted). The ‘new facts’ presented by the wife, concerning the husband’s

failure to timely file a satisfaction of judgment pursuant to the 2015 stipulation, were wholly

unrelated to the court’s prior determination that the stipulation was not the product of duress

(citation omitted). The wife, under the guise of renewal, actually advances a new legal theory

(breach of the stipulation) rather than grounds for renewal of her original motion (invalidity of the

stipulation on grounds of duress), and the court properly recognized her efforts to do so were not

within the scope of CPLR 2221 (citations omitted).”).

CPLR 2221 / 2214(c) - Failure to include copy of original motion did not violate CPLR 2214©,

because original motion had been filed electronically

Leary v. Bendow, 161 A.D.3d 420 (1st Dep’t 2018) (“Although plaintiffs failed to include a copy

of defendants’ original motion to strike with the renewal motion, this did not violate CPLR 2214(c)

because the original motion had been electronically filed and therefore was available to the parties

and the court (citation omitted). There is no evidence that the record was not sufficiently complete

to allow the court to render a decision on the renewal motion and to exercise its discretion in

considering any improperly submitted document (citations omitted).”).

Page 152: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

CPLR 2221 / 5015 - Proper vehicle to challenge order on default is motion to vacate under

CPLR 5015(a)(1), and not CPLR 2221 motion to renew or reargue

Hutchinson Burger, Inc. v. Bradshaw, 149 A.D.3d 545, 50 N.Y.S.3d 267 (1st Dep’t 2017) (“The

proper vehicle for defendant to challenge the October 2012 order, which was granted on her

default, was a motion to vacate a default order under CPLR 5015(a)(1), and not a motion for

renewal or reargument under CPLR 2221(d) and (e) (citations omitted). Accordingly, the motion

court should have denied defendant’s motion to renew or reargue.”).

ARTICLE 23 - SUBPOENAS, OATHS AND AFFIRMATIONS

CPLR 2303-a - Service of a trial subpoena

CPLR 2303-a / 2103(b) - Trial subpoena properly served upon defendant’s attorneys

Chicoine v. Koch, 161 A.D.3d 1139 (2d Dep’t 2018) (“A court of record generally has the power

‘to issue a subpoena requiring the attendance of a person found in the state to testify in a cause

pending in that court’ (Judiciary Law § 2-b[1]). ‘Where the attendance at trial of a party or person

within the party’s control can be compelled by a trial subpoena, that subpoena may be served by

delivery in accordance with [CPLR 2103(b)] to the party’s attorney of record’ (citation omitted).

Here, the trial subpoena was properly served upon the defendant’s attorneys pursuant to CPLR

2303-a and 2103(b)(2). Contrary to the defendant’s contention, because he is a party to this action,

over whom personal jurisdiction had been obtained, he is ‘found in the state’ within the meaning

of Judiciary Law § 2-b(1) (citations omitted).”).

CPLR 2304 - Motions to quash

CPLR 2304 / 4503 - A claim of privilege with respect to testifying witness cannot be made

until question is propounded implicating the privilege

Matter of Empire Wine & Spirits LLC v. Colon, 145 A.D.3d 1157, 43 N.Y.S.3d 542 (3d Dep’t

2016) (citing Weinstein, Korn & Miller) (“Turning first to the subpoena directed to Flug,

respondents claim that, given her role as SLA’s general counsel, petitioner’s questions will

necessarily elicit information protected by the attorney-client privilege, which applies to

‘confidential communication[s] made to [an] attorney for the purpose of obtaining legal advice or

services’ (citations omitted). However, although a subpoena duces tecum can be vacated in

advance on the basis of privilege, a different analysis applies to a subpoena that seeks testimony

rather than documents (citation omitted). Where, as here, a witness has been served with a

subpoena ad testificandum, ‘a claim of privilege cannot be asserted until the witness appears before

the requisite tribunal and is presented with a question that implicates protected information’

(Matter of Holmes v. Winter, 22 NY3d 300, 319 [2013], cert denied ___ US ___, ___ , 134 S Ct

2664 [2014]; see Matter of Beach v. Shanley, 62 NY2d at 248; 4-2304 Weinstein-Korn-Miller,

Page 153: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

NY Civ Prac ¶ 2304.13). Flug is entitled to invoke the attorney-client privilege if and when

petitioner propounds questions that implicate protected information, but we agree with Supreme

Court that she must first comply with the subpoena by appearing at the administrative hearing.

‘Only in this context can an intelligent appraisal be made as to the legitimacy of the claim of

privilege’ (citations omitted).”).

CPLR 2308 - Disobedience of subpoena

CPLR 2308(a) - Court refused to issue of warrant of arrest

Cadlerock Joint Venture, L.P. v. Forde, 152 A.D.3d 483, 54 N.Y.S.3d 878 (2d Dep’t 2017)

(“Contrary to the plaintiff’s contention, the Supreme Court providently exercised its discretion in

denying the plaintiff’s motion pursuant to CPLR 2308(a), in effect, for the issuance of a warrant

of arrest to bring the defendant before the Supreme Court, upon his alleged failure to comply with

a postjudgment judicial subpoena duces tecum dated October 23, 2013, and an order of contempt

of that court dated March 6, 2014 (citation omitted). CPLR 2308(a) sets forth the penalties

applicable to the disobedience of a judicial subpoena. The available penalties include the issuance

of ‘a warrant directing a sheriff to bring the witness into court’ (citation omitted). Here, the court

declined to issue such a warrant, finding that the plaintiff could avail itself of ‘all other remedies

pursuant to the CPLR to collect’ a judgment in favor of the plaintiff and against the defendant. We

find no basis in the record to disturb that determination.”).

ARTICLE 30 – REMEDIES AND PLEADINGS

CPLR 3001- Declaratory judgment

CPLR 3001 / 5520 - Mootness

Matter of Truscott v. City of Albany Bd. of Zoning Appeals, 152 A.D.3d 1038, 55 N.Y.S.3d 919

(3d Dep’t 2017 (“[T]he power of a court to declare the law only arises out of, and is limited to,

determining the rights of persons which are actually controverted in a particular case pending

before the tribunal’ (citations omitted). ‘In general[,] an appeal will be considered moot unless the

rights of the parties will be directly affected by the determination of the appeal and the interest of

the parties is an immediate consequence of the judgment’ (citations omitted). If, as here, ‘a change

in circumstances prevents a court from rendering a decision that would effectively determine an

actual controversy, [then] the claim must be dismissed’ (citations omitted). Inasmuch as

petitioners’ rights are no longer ‘actually controverted’ and a determination of their appeal would

not affect the rights of the parties, the appeal must be dismissed as moot (citations omitted).

Petitioners’ contention that a live controversy remains because a related code enforcement

proceeding still remains pending against them is unavailing. Simply put, that separate and distinct

proceeding is not before us on this appeal and does not affect our mootness finding.”).

Page 154: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

CPLR 3011 - Kinds of pleadings

CPLR 3011 / 3211 / 3211(a)(1) - The assertion of affirmative causes of action in a reply to a

counterclaim is procedurally improper.

MLB Constr. Servs., LLC v. Lake Ave. Plaza, LLC, 156 A.D.3d 983, 66 N.Y.S.3d 568 (3d Dep’t

2017).

CPLR 3012- Service of pleadings and demand for complaint

CPLR 3012(b) / 320 - Cannot demand complaint before service of summons with notice but

can demand where service is made under CPLR 308(2) but before proof of service is filed

A defendant cannot demand a complaint before being served with a summons with notice. See

Micro-Spy, Inc. v. Small, 9 A.D.3d 122, 778 N.Y.S.2d 86 (2d Dep’t 2004) (service of demand for

complaint after filing of summons but before service was premature). However, a defendant can

serve a demand after the plaintiff serves the defendant pursuant to CPLR 308(2), but before service

is complete, that is, before the plaintiff has filed the proof of service. See Wimbledon Fin. Master

Fund, Ltd. v. Weston Capital Mgt. LLC, 150 A.D.3d 427, 55 N.Y.S.3d 1 (1st Dep’t 2017)

(“Plaintiff commenced this securities fraud action against 26 defendants by filing a summons with

notice on October 16, 2015, and served defendant Manley pursuant to CPLR 308(2) twelve days

later. On November 3, 2015, before plaintiff had filed proof of service, defendant served a demand

for a complaint pursuant to CPLR 3012(b). Plaintiff, taking the position that the demand was a

nullity, asked defendant to agree to accept a complaint served by the end of December. Defendant

refused, and instead moved to dismiss the action on November 24, the 21st day after service of its

demand. Plaintiff served a complaint on December 24, 2015. We agree with the motion court that

under CPLR 3012(b), defendant was permitted to serve a demand for a complaint after being

served, notwithstanding that service was not technically ‘complete.’ The time frames applicable

to defendants set forth in CPLR 3012(b) are deadlines, not mandatory start dates (citations

omitted). In the cases relied on by plaintiff, the defendants’ demands were ineffective to trigger

plaintiff’s time to serve a complaint pursuant to CPLR 3012(b) because the defendants had not yet

been served with a summons with notice, and the CPLR makes no provision for an appearance or

a demand for a complaint before the summons is served (citations omitted).”).

CPLR 3012(d) - Majority and dissent disagree as to whether lower court properly denied

motion for extension of time under CPLR 3012(d),

Emigrant Bank v. Rosabianca, 156 A.D.3d 468, 67 N.Y.S.3d 175 (1st Dep’t 2017) (Majority and

dissent disagree as to whether lower court properly denied motion for relief under CPLR 3012(d),

in applying the factors adopted in the First Department, that is, the length of the delay, the excuse

offered, the extent to which the delay was willful, the possibility of prejudice to adverse parties,

and the potential merits of any defense. In affirming, the majority noted that: “Of these five factors,

three — the lack of a potential meritorious defense, which is the most notable, the length of the

delay, and the willfulness of the default — weigh against granting the motion. The remaining

Page 155: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

factors, whether the delay was excusable and whether there was any possibility of prejudice to an

adverse party, are arguably neutral. Therefore, considering and weighing the five Artcorp/Guzzetti

factors, we conclude that Supreme Court properly denied the Rosabiancas’ motion”; The dissent

disagreed: “The record before us supports a finding that defendants Carmelo and Vivian

Rosabianca should have been granted permission to interpose a late answer, upon consideration of

every applicable factor. Most notably, the motion court failed to consider ‘the strong public policy

in favor of resolving cases on the merits,’ which we have held normally weighs in favor of granting

such motions (citation omitted). That is particularly appropriate here, where the movants

demonstrated, although ‘not essential’ on this pre-judgment request to file a late answer, that they

have at least two meritorious defenses to this foreclosure proceeding (citations omitted). First, in

accepting the mortgage executed by Luigi Rosabianca on his parents’ home, plaintiff’s predecessor

improperly relied on powers of attorney that did not give Luigi Rosabianca actual authority, or

necessarily apparent authority, to mortgage his parents’ home. In addition, plaintiff fails to state a

cause of action to foreclose the mortgage signed in the names of Carmelo and Vivian Rosabianca,

because the mortgage states that it secures a note signed by them, but plaintiff bases its foreclosure

action only on a note signed by their son, and no note signed by the senior Rosabiancas has been

produced.”).

CPLR 3012(d) / 2005 - Brief delay in answering

Naber Elec. v. Triton Structural Concrete, Inc., 160 A.D.3d 507, 75 N.Y.S.3d 152 (1st Dep’t 2018)

(“The motion court providently exercised its discretion in denying plaintiffs' motion and granting

defendants' cross motion to compel plaintiffs to accept their answer (citation omitted), which was

served two weeks late. Defendants' attorney explained that the brief delay in answering resulted

from his mistake in calendaring the date the response was due, after he mistakenly requested an

extension of time to April 7, rather than May 7. Since defendants' time to answer, without any

extension, was April 17th, his mistake should have been apparent to plaintiffs' attorney, who

agreed to the requested extension. Defense counsel's inadvertent mistake in calendaring his

deadline provided a reasonable excuse for the minimal delay in answering (citations omitted).”).

CPLR 3012-a - Certificate of merit in medical, dental and podiatric malpractice actions

CPLR 3012-a - Certificate of merit and delay in serving complaint – proffered excuse

insufficient

Marcello v. Flecher, 150 A.D.3d 1457, 55 N.Y.S.3d 488 (3d Dep’t 2017) (“Here, plaintiff’s

proffered excuse for the delay in serving the complaint was that he was awaiting review of his

medical records by certain unnamed physicians as required by CPLR 3012-a. The flaw in

plaintiff’s analysis on this point is that the cited statutory provision pertains to the requirement that

a certificate of merit accompany any complaint sounding in medical, dental or podiatric

malpractice. Inasmuch as plaintiff filed the required certificate of merit with his summons with

notice in June 2015, we are hard pressed to ascertain how the need for such certificate impacted

his ability to serve the complaint in a timely manner. To the extent that counsel for plaintiff further

argues that the delay was occasioned due to counsel’s decision to consult with another attorney,

Page 156: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

who, in turn, suggested that further medical review of plaintiff’s claim was warranted prior to

service of the complaint, we again find the proffered excuse to be insufficient. In any event, even

assuming that plaintiff provided a reasonable excuse for the 41-day delay at issue here, there is no

question that he failed to demonstrate the existence of a potentially meritorious cause of action.”).

CPLR 3013 - Particularity of statements, generally

CPLR 3013 / 3211 - Majority and dissent disagree as to whether or not legal malpractice

claim was properly pleaded

Mid-Hudson Val. Fed. Credit Union v. Quartararo & Lois, LLC, 155 A.D.3d 1218, 64 N.Y.S.3d

389 (3d Dep’t 2017) (Compare majority - “Absent from the amended complaint is any mention

of an instance of deficient representation or any example of erroneous advice by defendants.

Merely alleging the elements of a legal malpractice claim in a general fashion, without more, does

not satisfy the liberal pleading standard of CPLR 3211. … The statements in the amended

complaint fail … in that they do not allege a single transaction where defendants were retained to

provide legal services or a single occurrence of negligent legal representation forming the basis of

the legal malpractice claim, let alone the specific underlying foreclosure action or actions in which

defendants allegedly committed legal malpractice. Other than stating that defendants represented

plaintiff in foreclosure actions, the amended complaint does not allege, and, more critically, it

cannot reasonably be inferred from such pleading, what defendants allegedly did or did not do in

a negligent fashion. The amended complaint is not just sparse on factual details — rather, it is

wholly devoid of them. Given the absence of detailed facts, the legal malpractice cause of action

should have been dismissed (citations omitted).”; and dissent - “Here, the allegations of legal

malpractice in plaintiff’s complaint — although lacking detail — state factual allegations that

provide the degree of notice necessary to satisfy this generous standard. We therefore respectfully

dissent from the majority as to that cause of action. … The majority objects to the lack of specific

details as to the particular foreclosure and debt collection actions that defendants allegedly handled

inadequately. However, that analysis focuses incorrectly on whether plaintiff has properly stated

a claim, rather than on whether it has one (citation omitted). The CPLR provides remedies for such

a lack of detail, much less drastic than dismissal. When the complaint ‘is so vague or ambiguous

that [the defendant] cannot reasonably be required to frame a response,’ the defendant may move

for a more definite statement (citation omitted). Where, as here, the issue is lack of detail, so that

‘what [a defendant] really wants is an amplification of the allegations rather than their

clarification,’ the ready remedy is to demand a bill of particulars (citations omitted). The majority

rejects the remedy provided by the CPLR on the ground that defendants chose not to avail

themselves of it. However, our determination of this appeal does not turn on defendants’ choice of

procedure, but upon the governing law. We are charged with determining whether Supreme Court

acted properly in denying defendants’ motion to dismiss plaintiff’s cause of action for legal

malpractice. That court applied the standards of the CPLR and many years of precedent in finding

that, when treated as true and granted the benefit of every favorable inference, the factual

allegations in this complaint are sufficient to make out a cognizable case of legal malpractice. We

cannot find any error of law in this determination.”).

Page 157: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

CPLR 3016 - particularity in specific actions

CPLR 3016 / 3211 - Failure to plead properly

Rssm CPA LLP v. Bell, 2018 NY Slip Op 04645 (1st Dep’t 2018) (“The parts of the breach of

fiduciary duty and breach of the duty of loyalty causes of action based on allegations that defendant

used plaintiff's confidential information to solicit clients and personnel away from plaintiff and

that defendant improperly wrote off billable hours for clients and/or capped their bills are

insufficiently particularized to raise an issue of fact, since they do not identify any of the clients or

personnel referred to (citations omitted). The parts of the cause of action for tortious interference

with contract not based on the other individual defendants' contracts do not identify the contracts

that were interfered with and therefore fail to raise an issue of fact as to their existence (citation

omitted). The parts of the cause of action for tortious interference with prospective economic

relationships based on relationships with potential clients or unidentified former personnel of

plaintiff are insufficient to show that plaintiff would have obtained those contracts but for

defendant's tortious interference (citation omitted).”).

Golia v. Vieira, 2018 NY Slip Op 04538 (2d Dep’t 2018) (“However, we agree with the Supreme

Court's determination to grant that branch of LICH's motion which was pursuant to CPLR

3211(a)(7) to dismiss the fourth cause of action insofar as asserted against it. The allegations in

the fourth cause of action did not satisfy the special pleading requirements of CPLR 3016(a), as

they did not set forth the actual words complained of, and they also failed to specify the particular

persons to whom LICH allegedly published the alleged defamatory statements (citations

omitted).”).

Carlyle, LLC v. Quik Park 1633 Garage LLC, 160 A.D.3d 476, 75 N.Y.S.3d 139 (1st Dep’t 2018)

(“The actual fraudulent conveyance claims, under the common law and Debtor and Creditor Law

(DCL) § 276, should be dismissed because plaintiff failed to allege fraudulent intent with the

particularity required by CPLR 3016(b) (citations omitted). The key allegations were made ‘[u]pon

information and belief,’ without identifying the source of the information (citation omitted).

Moreover, the timing of the allegedly fraudulent transfers - beginning two years before the

judgment debtors incurred the subject debts - undermines the claim of fraudulent intent (citations

omitted). The constructive fraudulent conveyance claims pursuant to DCL 273, 274, and 275

should be dismissed because plaintiff failed to sufficiently allege that the transfers were made

without fair consideration, as the relevant allegations were all made ‘[u]pon information and

belief’ (citation omitted). Because the viability of the claims under DCL 276-a, 278, and 279

depends on the viability of the other fraudulent conveyance claims, these claims should likewise

be dismissed. The tortious interference claim should be dismissed because plaintiff failed to

sufficiently allege that the contract ‘would not have been breached but for' the defendant's conduct’

(citations omitted). The relevant allegations were vague and conclusory and supported by ‘mere

speculation’ (citations omitted). In light of the dismissal of all of plaintiff's substantive claims, its

claims for piercing the corporate veil and a permanent injunction must likewise be dismissed, as

they do not constitute independent causes of action (citations omitted).”).

Page 158: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

CPLR 3016(b) - Fraud claim not pleaded with requisite particularity

MP Cool Invs. Ltd. v. Forkosh, 142 A.D.3d 286, 40 N.Y.S.3d 1 (1st Dep’t 2016) (“We affirm the

motion court’s dismissal of plaintiff’s fraud claims because they were not pleaded with the

requisite particularity (citation omitted). Moreover, plaintiff’s allegations do not establish

justifiable reliance as required to prove fraud because plaintiff is a sophisticated investor that had

the means available to it to learn the true nature and real quality of the investment it made (citation

omitted). Nor do the allegations support the element of scienter necessary for fraud.”).

CPLR 3016(b) - Failure to allege material misrepresentation

Weinberg v. Sultan, 142 A.D.3d 767, 37 N.Y.S.3d 13 (1st Dep’t 2016) (“Nonetheless, the amended

complaint is barebones. It fails to allege any ‘material misrepresentation,’ which is a required

element of a fraud claim (citations omitted). Further, plaintiff does not allege how defendant

purchaser Linda Salamon and her company, defendant 22 West 30th St. Properties, LLC (together

Salamon), exerted any undue influence over plaintiff (citation omitted) or coerced her into a

transaction that she alleges made no economic sense. The amended complaint also failed to plead

the fraud and undue influence claims with sufficient particularity, as required by CPLR 3016(b)

(citation omitted).”).

CPLR 3018- Responsive pleadings

CPLR 3018 - Non jurisdictional defenses can be raised in answer amended via motion in

the absence of prejudice

Charles v. William Penn Life Ins. Co. of N.Y., 75 N.Y.S.3d 36 (1st Dep’t 2018) (“Plaintiff's

argument that defendant waived the proposed affirmative defenses, is unavailing because the

defenses are not jurisdictional defenses and can be raised in an amended answer in the absence of

prejudice (citations omitted), and here, all three defenses were based on the decedent's medical

records, which plaintiff had prior to the commencement of the action (citations omitted).”).

CPLR 3018 - Defense is not waived on ground that it was too conclusory

Matter of Part 60 RMBS Put-Back Litig., 155 A.D.3d 482, 65 N.Y.S.3d 133 (1st Dep’t 2017)

(“Nor should the affirmative defense be deemed waived on the ground that it is too conclusory

(citation omitted). It ‘would be an excessively severe result’ to ‘treat[] the defense as waived’

(citation omitted), especially since plaintiff has known since at least April 29, 2016 that defendant

was disputing the effectiveness of Computershare’s appointment. Moreover, ‘[i]f the [capacity]

defense is meritorious, a determination of that issue would result in a speedy and less expensive

conclusion to otherwise protracted litigation’ (citation omitted).”).

Page 159: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

CPLR 3018 / 3211(e) - Preserving affirmative defenses in pre-answer motion or in responsive

pleading

Outdoors Clothing Corp. v. Schneider, 153 A.D.3d 717, 60 N.Y.S.3d 302 (2d Dep’t 2017)

(“Initially, we reject the plaintiffs’ contention that the defendants waived the affirmative defense

of release. As with the other defenses and objections listed in CPLR 3211(a)(5), the affirmative

defense of release is waived unless it is raised in a pre-answer motion to dismiss or in a responsive

pleading (citations omitted). Here, the defendants avoided waiving the affirmative defense of

release by raising it in their pre-answer motion to dismiss, and they were thereafter entitled to seek

summary judgment based on that defense despite its absence from the answer (citations omitted).”)

(citing Weinstein, Korn & Miller).

CPLR 3019 - Counterclaims and cross-claims

CPLR 3019 - Cannot later assert in state court, “compulsory counterclaim” in prior federal

action. See below discussion, CPLR 3211, of Paramount Pictures Corp. v. Allianz Risk

Transfer AG, 31 N.Y.3d 64, 73 N.Y.S.3d 472, 96 N.E.3d 737 (2018).

CPLR 3019 - Counterclaims survive despite dismissal of petition

Matter of Eshaghian, 144 A.D.3d 1163, 43 N.Y.S.3d 393 (2d Dep’t Nov. 30, 2016) (“Despite the

dismissal of the petition itself by the Surrogate’s Court, the coexecutrices’ counterclaims remained

viable (citations omitted). ‘A counterclaim is in essence a complaint by a defendant against the

plaintiff and alleges a present viable cause of action upon which the defendant seeks judgment’

(citations omitted). In properly asserting their counterclaims (citations omitted), the coexecutrices

were, in substance, petitioners. Further, since the court had already directed the dismissal of David

Eshaghian’s petition, the coexecutrices were the only remaining ‘petitioners’ in the proceeding. In

denominating themselves as ‘petitioners’ in their proposed amended pleading, the executrices were

merely recognizing this circumstance. Moreover, there is no indication that the coexecutrices’

proposed amended pleading was palpably insufficient or patently devoid of merit, or that David

Eshaghian would be unfairly surprised or prejudiced as a result of the coexecutrices’ delay in

seeking to serve an amended pleading (citation omitted). Accordingly, the court improvidently

exercised its discretion in denying that branch of the coexecutrices’ motion which was for leave to

serve an amended pleading.”).

CPLR 3019 - Counterclaims need to be appended to answer; cannot be “standalone”

Rubin v. Napoli Bern Ripka Shkolnik, LLP, 151 A.D.3d 603, 58 N.Y.S.3d 320 (1st Dep’t 2017)

(“As to the proposed defamation counterclaims, defendant initially sought to assert them as

standalone counterclaims within the one-year limitations period. However, the counterclaims were

dismissed as procedurally improper, since they were not appended to an answer (citations omitted).

Because the motion for leave to amend was made less than six months later, the proposed

counterclaims could be saved by CPLR 205(a)’s six-month grace period (citations omitted).”).

Page 160: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

CPLR 3022 – Remedy for defective verification

CPLR 3022 - Waiver of objection to lack of verification

Larke v. Moore, 150 A.D.3d 1620, 54 N.Y.S.3d 239 (4th Dep’t 2017) (“Plaintiffs nevertheless

contend that, because they rejected Moore’s answer and treated it as a nullity (citation omitted),

they were entitled to a default judgment against Moore and Moore’s motion to dismiss pursuant to

CPLR 3211 (a) (5) was precluded by CPLR 3211 (e). We reject that contention. Moore timely

served an answer and counterclaim in which she raised the affirmative defense that plaintiffs did

not commence their action within the applicable statute of limitations. Although Moore’s answer

did not contain the requisite verification (citation omitted), plaintiffs in this case ‘proceeded on the

theory that [they] had to prove [their] claim[s] as if [they] stood controverted. [They] did not seek

to proceed as if upon a default’ (citation omitted). Furthermore, plaintiffs waived any objection to

the lack of verification by waiting nearly two months to reject the answer (citations omitted). We

therefore conclude that plaintiffs failed to act with ‘due diligence’ as required by CPLR 3022.”).

CPLR 3025 – Amended and supplemental pleadings

CPLR 3025

David L. Ferstendig, Further Appellate Division Conflicts, and One Resolved, 689 N.Y.S.L.D. 4

(2018)

Agreement on Standard to Apply On a Motion to Amend

Fortunately, I can report that the Departments are now in agreement as to the standard a court is to

apply when considering a party’s motion to amend its pleadings pursuant to CPLR 3025(b). The

issue was whether a proponent of such a motion is required to make an evidentiary showing that

the proposed amendment has merit. Three of the four Departments had held that no such showing

was required.

Instead, the standard to apply is that "[i]n the absence of prejudice or surprise resulting directly

from the delay in seeking leave, such applications are to be freely granted unless the proposed

amendment is palpably insufficient or patently devoid of merit." Lucido v. Mancuso, 49 A.D.3d

220, 222 (2d Dep’t 2008). See also Cruz v. Brown, 129 A.D.3d 455, 456 (1st Dep’t 2015); Holst

v. Liberatore, 105 A.D.3d 1374, 1374–75 (4th Dep’t 2013).

The Third Department had bucked the trend, and continued to require an evidentiary showing of

merit, until its recent decision in NYAHSA Servs., Inc. Self-Insurance Trust v. People Care Inc.,

156 A.D.3d 99 (3d Dep’t 2017). There, in establishing unanimity among the Departments, the

Third Department noted that

Page 161: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

[t]he rationale for adopting this rule is that the liberal standard for leave to amend

that was adopted by the drafters of the CPLR is inconsistent with requiring an

evidentiary showing of merit on such a motion. "If the opposing party [on a motion

to amend] wishes to test the merits of the proposed added cause of action or defense,

that party may later move for summary judgment [or to dismiss] upon a proper

showing" (citation omitted).

Id. at 102.

CPLR 3025 - Amendment contradicting allegation in original complaint does not render

proposed amendment patently without merit

Brannigan v. Christie Overhead Door, 149 A.D.3d 892, 53 N.Y.S.3d 106 (2d Dep’t 2017) (“Here,

the plaintiff’s proposed amendment contradicted an allegation in the original complaint, but that

inconsistency simply raises an issue of credibility that may be addressed later in the action; it does

not, contrary to the third-party defendants’ contention, render the proposed amendment patently

without merit.”).

CPLR 3025 - No complaint to amend because court granted motion to dismiss

Panagoulopoulos v. Carlos Ortiz Jr MD, P.C., 143 A.D.3d 792, 38 N.Y.S.3d 807 (2d Dep’t 2016)

(“The Supreme Court properly denied the plaintiffs’ motion for leave to amend the complaint.

Prior to this motion, the court granted the defendants’ motion to dismiss the complaint (citation

omitted). Thus, there was no complaint before the court to amend (citations omitted). In any event,

the proposed amendments were palpably insufficient or patently devoid of merit (citation omitted).

Moreover, we note that the proposed amended complaint did not clearly show the changes or

additions to be made to the pleading (see CPLR 3025[b]).”).

CPLR 3025 / 3211 - Original complaint no longer viable, as amended complaint takes the

place of original pleading

Golia v. Vieira, 2018 NY Slip Op 04537 (2d Dep’t 2018) (“The original complaint was superseded

by the amended complaint. ‘The original complaint is no longer viable, inasmuch as the amended

complaint takes the place of the original pleading’ (citations omitted). Thus, the appeal from the

order entered August 20, 2015, which granted LICH's motion pursuant to CPLR 3211(a) to dismiss

the original complaint, has been rendered academic (citation omitted).”).

CPLR 3025 - Proposed amendment patently devoid of merit

Cahill v. Jordan Home Servs., LLC, 145 A.D.3d 847, 44 N.Y.S.3D 133 (2d Dep’t 2016) (“‘In

general, Workers’ Compensation benefits are the sole and exclusive remedy of an employee

against an employer for any damages sustained from injury or death arising out of and in the course

of employment’ (citations omitted). ‘This precludes suits against an employer for injuries in the

Page 162: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

course of employment’ (citations omitted). Here, the proposed amendment was patently devoid of

merit, as the Workers’ Compensation defense was available only to the injured plaintiff’s

employer, and the appellant failed to allege facts demonstrating that he was the injured plaintiff’s

employer or that the Workers’ Compensation Law otherwise bars this action against the appellant.

Accordingly, the Supreme Court providently exercised its discretion in denying the appellant’s

motion for leave to amend his answer.”).

CPLR 3025 - Motion denied; proposed amendment is palpably insufficient

762 Park Place Realty, LLC v. Levin, 161 A.D.3d 1135 (2d Dep’t 2018) (“While leave to amend

the pleadings shall be freely given (citation omitted), leave should not be granted when the

proposed amendment is palpably insufficient or devoid of merit (citation omitted). Here, the

proposed breach of contract cause of action must fail on the ground that the purported transfer

provision of the 2008 agreement allegedly breached is unenforceable for lack of consideration.

The proposed cause of action for dissolution of the LLC also must fail because an application for

dissolution of an LLC must be made by or for a member of the LLC (citation omitted). Ayala

failed to demonstrate that she was a member of the LLC and she did not interpose the intervenor

complaint on behalf of a member of the LLC. Accordingly, that branch of the cross motion which

was for leave to amend the intervenor complaint should have been denied.”).

J.W. Mays, Inc. v. Liberty Mut. Ins. Co., 153 A.D.3d 1386, 61 N.Y.S.3d 144 (2d Dep’t 2017) (“The

Supreme Court also properly denied the plaintiff’s cross motion for leave to amend the complaint.

Although leave to amend should be freely given in the absence of prejudice or surprise to the

opposing party (citation omitted), the motion should be denied where the proposed amendment is

palpably insufficient or patently devoid of merit (citations omitted). ‘Whether to grant such leave

is within the motion court’s discretion, the exercise of which will not be lightly disturbed’ (citation

omitted). Here, the proposed amendments were palpably insufficient, since none of the additional

facts alleged in the proposed amended complaint in the Owens action established the plaintiff’s

potential liability for bodily injury, property damage, or personal and advertising injury.”).

CPLR 3025 - Standard- defendants failed to demonstrate that proposed amendment resulted

in prejudice or surprise, and the proposed cause of action was neither palpably insufficient

nor patently devoid of merit

Katz v. Beil, 142 A.D.3d 957, 39 N.Y.S.3d 157 (2d Dep’t 2016) (“The Supreme Court also should

have granted leave to amend the amended complaint to assert a cause of action for declaratory and

injunctive relief against the individual defendants, as set forth in the proposed tenth cause of action

in the proposed second amended complaint. The individual defendants failed to demonstrate that

the proposed amendment resulted in prejudice or surprise, and the proposed cause of action was

neither palpably insufficient nor patently devoid of merit (see generally id.).”).

CPLR 3025 - Motion to amend granted; prejudice not established

Page 163: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

Central Amusement Intl. LLC v. Lexington Ins. Co., 75 N.Y.S.3d 35 (1st Dep’t 2018) (“The motion

court did not abuse its discretion in granting defendant's motion to amend its answer (citations

omitted). Plaintiff's argument that it was prejudiced at the time of the amendment because it was

time-barred from pursuing a professional malpractice claim against its engineer, is unavailing. The

motion court correctly observed that plaintiff had the opportunity and duty to perform its own

investigation to uncover potential culpable conduct by its contractors, engineers, or any other party

that may have contributed to the loss, but it chose not to do so. Plaintiff has also not established

the validity of its prejudice claim, as it never attempted to sue its engineer (or other third party)

following the disclosure of defendant's expert report. The claim that defendant's production of the

expert report was delayed finds no support since it was timely produced during expert discovery.”).

CPLR 3025 - Motion granted; there was delay, but no prejudice

Wojtalewski v. Central Sq. Cent. Sch. Dist., 161 A.D.3d 1560 (4th Dep’t 2018) (“Defendants

argued in opposition to the cross motion that plaintiff failed to proffer any excuse for her delay in

seeking leave to amend the complaint, but ‘[m]ere lateness is not a barrier to the amendment. It

must be lateness coupled with significant prejudice to the other side’ (citations omitted). Therefore,

although plaintiff provided no excuse for her delay in seeking leave to amend, that is of no moment

because, as noted above, defendants have not shown that they were prejudiced by the delay

(citation omitted). We further reject defendants' contention that the proposed amendment was

patently insufficient on its face (citations omitted). To the extent that defendants raise on appeal

an alternative ground for affirmance (citation omitted), we conclude that it lacks merit.”).

CPLR 3025 - When amending personal injury complaint to add cause of action for wrongful

death, plaintiff is required to submit competent medical proof of the causal connection

between the alleged malpractice and the death of the original plaintiff

Frangiadakis v. 51 W. 81st St. Corp., 161 A.D.3d 478, 73 N.Y.S.3d 420 (1st Dep’t 2018) (“[A]s

we have stated, to support amending a personal injury complaint to add a cause of action for

wrongful death, plaintiffs were required to submit ‘competent medical proof of the causal

connection between the alleged malpractice and the death of the original plaintiff’ (citation

omitted). The affirmation of plaintiffs’ expert, which stated that to a reasonable degree of medical

certainty the decedent’s injury led to his death, was sufficient, for the purposes of CPLR 3025(b),

to establish a causal connection between the decedent’s death and the originally alleged negligence

by defendants (citations omitted). Plaintiff’s submission of the expert’s affirmation on reply is not

fatal to the motion, because defendant was permitted to submit a surreply.”).

CPLR 3025 - Prejudice is not merely alleged exposure to increased liability; instead, there

must be some indication that the party has been hindered in the preparation of his or her

case or has been prevented from taking some measure in support of his or her position’

NYAHSA Servs., Inc., Self-Insurance Trust v. People Care Inc., 156 A.D.3d 99, 64 N.Y.S.3d 730

(3d Dep’t 2017) (“Defendants have not demonstrated that they will be prejudiced by, or suffer

undue surprise attributable to, the delay in requesting that the trustees be permitted to join the

identical claims raised by plaintiff, which would not subject defendants to new liability or new

Page 164: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

theories of recovery (citation omitted). Likewise, defendants cannot credibly claim surprise or

prejudice from plaintiff’s request to supplement its claims to include the unpaid adjustment bills

that accrued subsequent to the filing of the amended complaints. The added claims are premised

upon the same legal theories and a common factual basis. Initially, defendants did not dispute that

they had not paid the adjustment bills that accrued and were sent by plaintiff during the pendency

of these actions. Defendants’ argument that they would be prejudiced because the proposed

amendments would subject them to increased liability is unavailing, as ‘[p]rejudice is more than

the mere exposure of the [opposing parties] to greater liability’ (citation omitted). In this context,

a party’s burden of showing prejudice requires ‘some indication that the party has been hindered

in the preparation of the party’s case or has been prevented from taking some measure in support

of its position’ (citations omitted). Defendants made no such showing and, indeed, they did not

argue that they were hindered by the delay or prevented from taking measures to support their

positions.”).

Matter of Bynum v. Camp Bisco, LLC, 155 A.D.3d 1503 (3d Dep’t 2017) (“Supreme Court

providently exercised its discretion in granting plaintiff’s motion to amend the complaint to add a

cause of action for wrongful death following the death of decedent. In support of her motion,

plaintiff submitted an affirmation alleging that decedent died as a result of injuries suffered due to

defendants’ negligence, which defendants opposed by challenging the adequacy of proof of

causation. In reply, plaintiff submitted decedent’s death certificate, which lists as the primary cause

of death acute respiratory failure due to sepsis and anoxic brain injury that occurred years earlier.

Secondarily, it indicated that decedent had a seizure disorder that contributed to her death, but was

not related to the primary cause of death. Decedent’s dire condition and prognosis were known

from the outset, discovery has been ongoing, the proposed amendment does not change the theory

of recovery and, given its nature, obviously could not have been added prior to decedent’s death

(citation omitted). In this procedural context, ‘[p]rejudice is more than the mere exposure of the

[party] to greater liability,’ as ‘there must be some indication that the [party] has been hindered in

the preparation of [the party’s] case or has been prevented from taking some measure in support

of [its] position’ (citations omitted). As Supreme Court correctly found, defendants failed to meet

their burden of demonstrating either prejudice or hindrance and, on these facts, they cannot

credibly claim surprise from the proposed amendment (citations omitted).”).

CPLR 3025 - Motion denied; proposed counterclaim insufficient to state claim

Y.A. v. Conair Corp., 154 A.D.3d 611, 62 N.Y.S.3d 116 (1st Dep’t 2017) (“Motions for leave to

amend pleadings should be freely granted, absent prejudice or surprise resulting therefrom, unless

the proposed amendment is palpably insufficient or patently devoid of merit (citation omitted).

Here the proposed counterclaims, as pleaded, state nothing other than a claim that plaintiff

negligently supervised her own children with respect to a ‘common, daily household hazard[]’

(citation omitted), which, as the Second Department has held in very similar circumstances, does

not implicate any duty owed to the public at large, and is insufficient to state a cognizable claim

under Holodook (citations omitted).”).

CPLR 3025 / 3211(e) - Affidavit of merit

Page 165: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

Hickey v. Steven E. Kaufman, P.C., 156 A.D.3d 436, 66 N.Y.S.3d 474 (1st Dep’t 2017) (“Given

the Legislature’s 2005 amendment of CPLR 3211(e) (citations omitted), plaintiff was not required

to support his motion to amend the complaint with an affidavit of merit (citation omitted).

However, even viewed in the light of older precedent requiring an affidavit of merit on a motion

to amend (citation omitted), the court providently exercised its discretion in finding that plaintiff’s

verification of the proposed amended complaint and his affidavit in opposition to defendants’

motions to dismiss the original complaint, which affidavit was annexed as an exhibit to the

proposed amended complaint, satisfied the requirement of an affidavit of merit. Plaintiff was not

required to explain his approximately six-month delay in moving to amend the complaint (citations

omitted). The fact that defendants expended time and expense in briefing their replies on their

motions to dismiss the original complaint and preparing for oral argument is not the kind of

prejudice required to defeat an amendment (citation omitted).”).

CPLR 3025(b) - Proposed amendments were palpably insufficient

J.W. Mays, Inc. v. Liberty Mut. Ins. Co., 153 A.D.3d 1386, 61 N.Y.S.3d 144 (2d Dep’t 2017) (“The

Supreme Court also properly denied the plaintiff’s cross motion for leave to amend the complaint.

Although leave to amend should be freely given in the absence of prejudice or surprise to the

opposing party (citation omitted), the motion should be denied where the proposed amendment is

palpably insufficient or patently devoid of merit (citations omitted). ‘Whether to grant such leave

is within the motion court’s discretion, the exercise of which will not be lightly disturbed’ (citation

omitted). Here, the proposed amendments were palpably insufficient, since none of the additional

facts alleged in the proposed amended complaint in the Owens action established the plaintiff’s

potential liability for bodily injury, property damage, or personal and advertising injury.”).

CPLR 3043 - Bill of particulars in personal injury actions

CPLR 3043(b) - Supplemental Bill of Particulars – Continuing consequences of injuries

Khosrova v. Hampton Bays Union Free Sch. Dist., 151 A.D.3d 953, 54 N.Y.S.3d 164 (2d Dep’t

2017) (“Here, the plaintiffs sought to allege continuing consequences of the injuries suffered and

described in the original bill of particulars, rather than new and unrelated injuries (citations

omitted). Since the contested bill of particulars is a supplemental bill of particulars, rather than an

amended bill of particulars, and was served more than 30 days prior to trial, leave of court was not

required (citations omitted). Accordingly, that branch of the defendant’s motion which was to

strike the supplemental bill of particulars should have been denied and that branch of the plaintiffs’

cross motion which was to compel the defendant to accept their supplemental bill of particulars

should have been granted.

Page 166: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

ARTICLE 31 - DISCLOSURE

CPLR 3101- Scope of disclosure

CPLR 3101

David L. Ferstendig, Disputes Over Scope of Social Media Discovery Are Governed by Well-

Established Discovery Rules, 688 N.Y.S.L.D. 1 (2018)

Disputes Over Scope of Social Media Discovery Are Governed by Well-Established

Discovery Rules

Court of Appeals Rejects Appellate Division’s Heightened Standard

In Forman v. Henkin, 2018 N.Y. Slip Op. 01015 (February 13, 2018), the plaintiff alleged that she

sustained physical and cognitive injuries limiting her ability to participate in recreational and social

activities as a result of her fall from a horse owned by the defendant. The plaintiff testified at her

deposition that prior to the accident she had posted to a Facebook account numerous photographs

depicting her active lifestyle, but deactivated the account some six months after the accident.

The defendant sought an unlimited authorization to obtain the plaintiff’s Facebook account,

including her private postings. The defendant argued that these materials were relevant to

plaintiff’s injuries, her credibility, and her claims that she could no longer perform certain

activities. The plaintiff failed to provide the authorization.

The trial court granted the defendant’s motion to compel, but only to the extent of directing the

plaintiff to produce all privately posted photographs prior to the accident that she intended to

introduce at trial, all photographs of herself privately posted after the accident that did not show

nudity or romantic encounters, and an authorization for Facebook records showing every time after

the accident that the plaintiff posted a private message and the number of characters or words in

the messages.

Only the plaintiff appealed to the Appellate Division, which modified the trial court’s order. It

limited disclosure to posted photos (whether before or after the accident) that the plaintiff intended

to introduce at trial and eliminated the authorization to obtain post-accident message information.

The Court of Appeals reversed. It stated that disclosure in all civil actions is governed by the

"material and necessary" standard enunciated by CPLR 3101(a), which requires that the discovery

sought be relevant to the prosecution or defense of an action. Significantly, "[w]hile Facebook —

and sites like it — offer relatively new means of sharing information with others, there is nothing

so novel about Facebook materials that precludes application of New York’s long-standing

disclosure rules to resolve this dispute." Id. at ∗3. The Court rejected the Appellate Division’s

heightened standard for the production of social media, which required the defendant to establish

"‘a factual predicate for their request by identifying relevant information in plaintiff’s Facebook

account — that is, information that contradicts or conflicts with plaintiff’s alleged restrictions,

Page 167: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

disabilities, and losses, and other claims’ (citation omitted)." Id. In fact, some courts had only

permitted discovery of information in the private portion of a Facebook account where the party

seeking discovery first established that material in the "public" portion contradicted the plaintiff’s

allegations.

The Court found that such a threshold rule would permit the account holder to obstruct discovery

"by manipulating ‘privacy’ settings or curating the materials on the public portion of the account."

Id. The Court stressed that New York law does not condition the receipt of discovery on a showing

that the items sought actually existed.

[R]ather, the request need only be appropriately tailored and reasonably calculated

to yield relevant information. Indeed, as the name suggests, the purpose of

discovery is to determine if material relevant to a claim or defense exists. In many

if not most instances, a party seeking disclosure will not be able to demonstrate that

items it has not yet obtained contain material evidence. Thus, we reject the notion

that the account holder’s so-called "privacy" settings govern the scope of disclosure

of social media materials.

Id. at ∗4.

The Court acknowledged that the mere commencement of a personal injury action does not

automatically render a party’s entire Facebook account discoverable. In fact, discovery in the

social media context is governed by "well-established" rules, that is, first to determine whether

relevant information is likely to be found on Facebook. Then, the Court should tailor the order

to the particular controversy that identifies the types of materials that must be

disclosed while avoiding disclosure of nonrelevant materials. In a personal injury

case such as this it is appropriate to consider the nature of the underlying incident

and the injuries claimed and to craft a rule for discovering information specific to

each. Temporal limitations may also be appropriate — for example, the court

should consider whether photographs or messages posted years before an accident

are likely to be germane to the litigation. Moreover, to the extent the account may

contain sensitive or embarrassing materials of marginal relevance, the account

holder can seek protection from the court (see CPLR 3103[a]).

Id.

In this action, the Court held that the defendant "more than met" his burden:

At her deposition, plaintiff indicated that, during the period prior to the accident,

she posted "a lot" of photographs showing her active lifestyle. Likewise, given

plaintiff’s acknowledged tendency to post photographs representative of her

activities on Facebook, there was a basis to infer that photographs she posted after

the accident might be reflective of her post-accident activities and/or limitations.

The request for these photographs was reasonably calculated to yield evidence

Page 168: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

relevant to plaintiff’s assertion that she could no longer engage in the activities she

enjoyed before the accident and that she had become reclusive….

In addition, it was reasonably likely that the data revealing the timing and number

of characters in posted messages would be relevant to plaintiffs’ claim that she

suffered cognitive injuries that caused her to have difficulty writing and using the

computer, particularly her claim that she is painstakingly slow in crafting messages.

Id. at ∗5.

Thus, the Court reversed the Appellate Division order and reinstated the trial court’s order.

CPLR 3101

David L. Ferstendig, Freedom of Information Law Exempts From Disclosure Records Relating to

Municipalities’ Plans for Auditing Special Education Preschool Provider Costs, 685 N.Y.S.L.D.

2-3 (2017)

Freedom of Information Law Exempts From Disclosure Records Relating to Municipalities’

Plans for Auditing Special Education Preschool Provider Costs

Court Finds Records Were Compiled for “Law Enforcement” Purposes, Which Includes

Civil Enforcement

New York State’s Freedom of Information Law (FOIL) generally requires government agencies

to provide access to public documents and records, subject to certain exemptions. In Matter of

Madeiros v. New York State Educ. Dep’t, 30 N.Y.3d 67 (2017), the relevant exemptions were

contained in Public Officers Law § 87(2)(e) (POL), denying public access to records “compiled

for law enforcement purposes and which, if disclosed,” would: (i) “interfere with law enforcement

investigations or judicial proceedings” or (iv) “reveal criminal investigative techniques or

procedures, except routine techniques and procedures.” Id. at 73. School district boards are

required to provide disabled preschool-age children with special education services and programs.

Many times, these programs are offered by approved private providers, and the tuition charged is

set by the New York State Education Department (Department). Municipalities are then

reimbursed by the State for a statutory percentage of the costs paid to the providers. The State

Comptroller had carried out a series of audits of approved special education programs, which

uncovered widespread fraud and abuse in the reporting of allowed costs. Several criminal

prosecutions and professional disciplinary investigations ensued. As a result, Education Law §

4410 was amended to try to increase fiscal oversight. Petitioner then made a FOIL request seeking

any and all [Education Law § 4410(11)(c) and 8 NYCRR 200.18] audit standards

in [the Department’s] possession, including any audit program and audit plan

submitted by a municipality or school district . . . , whether approved, not approved,

disapproved, pending or such other status.

Page 169: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

Id. at 72.

The Department denied the request in its entirety, relying on the exemption under POL § 87(2)(e),

and arguing that disclosure “‘would interfere with investigations of compliance with the provisions

of the reimbursable cost manual and the preschool special education rate setting system.’” Id.

Petitioner then brought this Article 78 proceeding, seeking to vacate the denial, and directing the

Department to provide the records and requesting attorneys’ fees under POL § 89(4)(c). Before it

answered the petition, the Department released 55 responsive, partially redacted pages. The

Department then answered and sought dismissal of the petition. The trial court granted the petition

only to the extent of requiring the Department to produce two previously redacted pages. The

Appellate Division affirmed.

The Court of Appeals rejected the Department’s reliance on POL § 87(2)(e)(iv), concerning non-

routine criminal investigative techniques, because in its denial of the FOIL request the Department

did not refer to that particular exemption. Thus, the Court focused on the exemption in POL §

87(2)(e)(i), which requires that the records be compiled for law enforcement purposes and

disclosure would interfere with law enforcement investigations or judicial proceedings.

With respect to the first requirement, the Court concluded that the records were compiled for law

enforcement purposes. It found that the phrase “law enforcement purposes” is not limited to

criminal enforcement, and includes civil enforcement. While the phrase is not defined in FOIL,

for support the Court referred to Black’s Law Dictionary, which provides that the phrase “law

enforcement” is “not limited to the enforcement of criminal laws”; two subdivisions of POL §

87(2)(e), expressly applying the exemptions to criminal matters only, which limitation would be

unnecessary if “law enforcement” was limited to criminal matters; and the federal counterpart of

FOIL, the Freedom of Information Act, where case law has interpreted the law enforcement

exemption to include both civil and criminal law enforcement matters.

The Court stressed that while all audits do not necessarily serve “law enforcement purposes,” the

audits here were not “routine”:

The statutory scheme of Education Law § 4410, as amended in 2013, and the

Department’s regulations pertaining to municipal audit plans and audit programs,

indicate that these audits are specifically targeted at ferreting out the improper and

potentially illegal or fraudulent reporting of costs by preschool special education

providers. The goal of the statutory and regulatory scheme and, in particular the

2013 amendments, is not only to ensure the establishment of an accurate tuition

rate, but also to encourage compliance with the applicable reporting rules and curb

existing fraud and abuse. Thus, the obvious inference arising from the statutory

requirement that the Department issue guidelines for municipalities in conducting

these audits, is that the legislature sought to increase the efficacy of audit

procedures in an effort to strengthen enforcement measures. Under these

circumstances, we conclude that the records sought by petitioner were compiled for

law enforcement purposes (citation omitted).

Page 170: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

Id. at 76–77.

With respect to the second requirement, the Court agreed with the courts below that the Department

redactions were necessary to prevent interference with a law enforcement investigation.

Specifically, releasing the information concerning the auditor’s specific methods and procedures

in particular counties would permit violators to “evade detection by deliberately tailoring their

conduct in anticipation of avenues of inquiry to be pursued by agency personnel.” Id. at 77.

The Court rejected petitioner’s argument that POL § 87(2)(e)(i) was inapplicable because there

were no ongoing audits at the time the FOIL request was submitted:

While an agency may not rely on section 87(2)(e)(i) to refuse disclosure of records

upon a wholly speculative claim of potential interference with an unspecified future

investigation to which the documents may or may not be relevant, that is not the

case here. Rather, the municipal audits of special education preschool providers

were expressly encouraged by statute and were plainly contemplated in the near

future (citation omitted).

Id.

Petitioner Substantially Prevailed Within the Meaning of Public Officers Law § 89(4)(c)

A subsidiary issue in Madeiros was whether petitioner was entitled to recover her attorneys’ fees

under POL § 89(4) (c). That statute provides for an award of legal fees “where the petitioner ‘has

substantially prevailed’ in the FOIL proceeding and the agency either lacked a reasonable basis

for denying access to the requested records or ‘failed to respond to a request or appeal within the

statutory time.’” Id. at 78.

The Appellate Division held that the petitioner had not substantially prevailed because the majority

of the Department’s challenged redactions were appropriate. The Court of Appeals reversed on

this issue. It noted that the Department did not make any disclosures, redacted or otherwise, until

after the petitioner brought this proceeding, at which time the Department produced substantial

unredacted FOIL disclosure. In holding that the petitioner met the statutory requirements, the Court

stressed that to conclude otherwise

would be to permit agencies to circumvent section 89(4)(c) because “only a

petitioner who fully litigated a matter to a successful conclusion could ever expect

an award of counsel fees and a respondent whose position was meritless need never

be concerned about the possible imposition of such an award so long as they

ultimately settled a matter—however dilatorily.” We, therefore, must remit for

Supreme Court to exercise its discretion in relation to petitioner’s fee request

(citations omitted).

Id. at 79–80.

Page 171: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

CPLR 3101(a) / 3107 - Deposition of non-party-defendant satisfied notice requirement by

serving plaintiff’s counsel with its motion papers, which properly provided the

circumstances or reasons requiring the deposition of that nonparty

Alumil Fabrication, Inc. v. F.A. Alpine Window Mfg. Corp., 151 A.D.3d 667, 53 N.Y.S.3d 554 (2d

Dep’t 2017) (“The defendant satisfied the notice requirement by serving the plaintiff’s counsel

with its motion papers, which properly provided the circumstances or reasons requiring the

deposition of that nonparty (citation omitted). Furthermore, the defendant demonstrated that the

deposition testimony was relevant to the defense of the action and to the prosecution of its

counterclaim (citations omitted). In opposition to the defendant’s motion and in support of its cross

motion for a protective order, the plaintiff failed to establish that the deposition testimony sought

was irrelevant to this action. The plaintiff’s remaining contentions are without merit. Accordingly,

the Supreme Court providently exercised its discretion when it, in effect, granted the defendant’s

motion to compel the deposition of the nonparty witness and denied the plaintiff’s cross motion

for a protective order.”).

CPLR 3101(a) / 3107 / 3120 - A claim for privilege cannot be asserted before witness appears

to testify and is asked objectionable questions

Matter of Empire Wine & Spirits LLC v. Colon, 145 A.D.3d 1157, 43 N.Y.S.3d 542 (3d Dep’t

2016) (citing Weinstein, Korn & Miller) (“Turning first to the subpoena directed to Flug,

respondents claim that, given her role as SLA’s general counsel, petitioner’s questions will

necessarily elicit information protected by the attorney-client privilege, which applies to

‘confidential communication[s] made to [an] attorney for the purpose of obtaining legal advice or

services’ (citations omitted). However, although a subpoena duces tecum can be vacated in

advance on the basis of privilege, a different analysis applies to a subpoena that seeks testimony

rather than documents (citation omitted). Where, as here, a witness has been served with a

subpoena ad testificandum, ‘a claim of privilege cannot be asserted until the witness appears before

the requisite tribunal and is presented with a question that implicates protected information’

(Matter of Holmes v. Winter, 22 NY3d 300, 319 [2013], cert denied ___ US ___, ___ , 134 S Ct

2664 [2014]; see Matter of Beach v. Shanley, 62 NY2d at 248; 4-2304 Weinstein-Korn-Miller, NY

Civ Prac ¶ 2304.13). Flug is entitled to invoke the attorney-client privilege if and when petitioner

propounds questions that implicate protected information, but we agree with Supreme Court that

she must first comply with the subpoena by appearing at the administrative hearing. ‘Only in this

context can an intelligent appraisal be made as to the legitimacy of the claim of privilege’ (citations

omitted).”).

CPLR 3101(b) / 4503 - Report was not a confidential communication, and any privilege was

waived; thus, report was not protected by the attorney-client privilege.

NYAHSA Servs., Inc., Self-Insurance Trust v. People Care Inc., 155 A.D.3d 1208, 64 N.Y.S.3d

725 (3d Dep’t 2017) (“The record, including the report itself, reflects that WOH, defendant’s

counsel, retained Towers, an independent claims consultant, to undertake a comprehensive claims

review to include the trust’s reserve practices and Cool’s administration of claims of defendant’s

employees, in order to resolve the parties’ impasse over defendant’s unpaid assessments. Towers

Page 172: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

was given in-house access to Cool’s documents for this purpose in addition to supporting

documentation already provided by Cool. To that end, defendant’s president sent a letter to Cool’s

vice-president reflecting that the purpose of the consultant’s review of Cool’s records was to

‘facilitat[e] an intelligent conversation with [Cool’s] claims department,’ which Supreme Court

aptly characterized as a ‘typical business purpose.’ Cool’s vice-president submitted an affidavit

attesting that it was his understanding that the purpose of the consultant’s review was to verify the

accuracy of the assessments billed to defendant, and that Towers assured him that it would discuss

its findings with Cool; another Cool vice-president attested that Towers did share certain findings

with Cool, including that it did not find any problems with inappropriate payment of claims by

Cool. As Supreme Court correctly concluded, the report ‘does not include any legal advice, legal

analysis or discussion of legal issues’ nor does it disclose confidences of defendant, and we further

note that it was based almost exclusively on information provided by Cool and, as such, it is not a

communication ‘of a legal character’ (citation omitted). Further, we discern no error in the court’s

conclusion — after crediting the proof that defendant did not expect that the report would remain

confidential and that the contents of the report were not, in fact, kept confidential — that the report

was not a confidential communication, and that any privilege was waived (citation omitted). Thus,

the report was not protected by the attorney-client privilege.”).

CPLR 3101(b) - “Reports prepared by insurance investigators, adjusters, or attorneys before

the decision is made to pay or reject a claim are not privileged and are discoverable, even

when those reports are mixed/multi-purpose reports, motivated in part by the potential for

litigation with the insured.”

Advanced Chimney, Inc. v. Graziano, 153 A.D.3d 478, 60 N.Y.S.3d 210 (2d Dep’t 2017) (“‘[T]he

payment or rejection of claims is a part of the regular business of an insurance company.

Consequently, reports which aid it in the process of deciding [whether to pay or reject a claim] are

made in the regular course of its business’ (citations omitted). Reports prepared by insurance

investigators, adjusters, or attorneys before the decision is made to pay or reject a claim are not

privileged and are discoverable, even when those reports are mixed/multi-purpose reports,

motivated in part by the potential for litigation with the insured (citations omitted). Here, the

Supreme Court properly compelled disclosure, as the material sought by GNY was prepared by

KBR as part of Tudor’s investigation into the claim, and was not primarily and predominantly of

a legal character (citations omitted). Nor was the file protected as the work product of KBR

(citation omitted).”).

CPLR 3101 - Presumption of confidentiality attaching to grand jury proceedings

Williams v. City of Rochester, 151 A.D.3d 1698, 55 N.Y.S.3d 843 (4th Dep’t 2017) (“Plaintiff,

who was decedent’s wife, commenced an action in federal court against defendants, the City, the

City of Rochester Police Department, and two police officers, seeking damages based on

allegations that defendants, inter alia, violated decedent’s constitutional rights and caused his

wrongful death. Plaintiff subsequently moved in Supreme Court pursuant to CPLR 3101 (a) (4)

for an order requiring that nonparty municipality County of Monroe (County) and its District

Attorney’s Office disclose the testimony of any City employees who testified before the grand jury

that investigated the shooting. The County appeals from an order granting plaintiff’s motion and

Page 173: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

directing the County, upon being served with a judicial subpoena duces tecum issued pursuant to

CPLR 2307, to ‘supply to the Court, to examine in-camera, for review and determination as to

disclosure to counsel, the complete transcripts of each and every employee of the City of Rochester

who testified at the Grand Jury presentation.’ We reverse. We agree with the County that plaintiff

failed to ‘demonstrat[e] a compelling and particularized need for access’ ‘ to the grand jury

materials (citations omitted). Such a showing must be made in order to overcome the ‘presumption

of confidentiality [that] attaches to the record of [g]rand [j]ury proceedings’ (citations omitted),

and is a prerequisite to the court’s exercise of its discretion in ‘balanc[ing] the public interest for

disclosure against the public interest favoring secrecy’ (citations omitted). Here, plaintiff failed to

establish that the discovery proceedings in federal court would not be sufficient to ascertain the

facts and circumstances surrounding the shooting (citation omitted).”).

CPLR 3101[d] - Remanded for hearing regarding status of person, as to his role, to determine

whether documents protected from disclosure

Venture v. Preferred Mut. Ins. Co., 153 A.D.3d 1155, 61 N.Y.S.3d 210 (1st Dep’t 2017) (“‘[T]he

CPLR establishes three categories of protected materials, also supported by policy considerations

- privileged matter, absolutely immune from discovery (citation omitted); attorney’s work product,

also absolutely immune (citation omitted); and trial preparation materials, which are subject to

disclosure only on a showing of substantial need and undue hardship in obtaining the substantial

equivalent of the materials by other means CPLR 3101 [d][2]’ (citation omitted). ‘[I]n order for

attorney-client communications to be privileged, the document must be primarily or predominantly

a communication of a legal character’ (citation omitted). ‘[T]he burden of establishing any right

to protection is on the party asserting it; the protection claimed must be narrowly construed; and

its application must be consistent with the purposes underlying the immunity’ (citations omitted).

‘Reports of insurance investigators or adjusters, prepared during the processing of a claim, are

discoverable as made in the regular course of the insurance company’s business’ (citation omitted).

‘Furthermore, attorney work product applies only to documents prepared by counsel acting as

such, and to materials uniquely the product of a lawyer’s learning and professional skills, such as

those reflecting an attorney’s legal research, analysis, conclusions, legal theory or strategy’

(citation omitted). ‘Documents prepared in the ordinary course of an insurance company’s

investigation to determine whether to accept or reject coverage and to evaluate the extent of a

claimant’s loss are not privileged and are, therefore, discoverable. In addition, such documents do

not become privileged merely because an investigation was conducted by an attorney’ (citations

omitted). On appeal, plaintiffs contend that Dodge was not acting in a legal capacity and, rather,

performed the function of a claims investigator. Defendant claims that the investigation was solely

performed by McGuire, and that Dodge’s role consisted of conducting EUOs and providing legal

advice based thereon. It also states that all of the information requested by plaintiffs in their motion

to renew was already provided to the court as part of the in camera review and, in that sense, was

not new. Based on the record before us, we cannot determine Dodge’s true role in this matter.

Accordingly, this matter is remanded in accordance with the decretal paragraph.”).

CPLR 3101(d) - Material prepared in anticipation of litigation – liability insurer’s file

Page 174: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

Veltre v. Rainbow Convenience Store, Inc., 146 A.D.3d 416, 45 N.Y.S.3d 30 (1st Dep’t 2017)

(“Contrary to defendant’s contention, plaintiffs made a demand for the entire claims file from

defendant’s insurer by letter from their attorney, and obtained, over defendant’s objection, an order

to disclose the file (see CPLR 3124). Nevertheless, the file is immune from discovery, because it

was created by defendant’s liability insurer (citation omitted) and plaintiffs failed to demonstrate

either that they could not otherwise obtain ‘a substantial equivalent’ of the material without undue

hardship (citation omitted) or that defendant waived the privilege by relying upon the material in

support of a defense (citation omitted).”).

CPLR 3101(d) - Late expert disclosure

Washington v. Trustees of The M.E. Church of Livingston Manor, 2018 NY Slip Op 04622 (3d

Dep’t 2018) (“Supreme Court did not abuse its discretion in relying on plaintiff's expert affidavit.

CPLR 3212 (b) provides that, ‘[w]here an expert affidavit is submitted in support of, or opposition

to, a motion for summary judgment, the court shall not decline to consider the affidavit because

an expert exchange pursuant to [CPLR 3101 (d) (1) (i)] was not furnished prior to the submission

of the affidavit.’ Defendant contends that, regardless of this statute, the court erred in considering

the affidavit because plaintiff violated both a November 2016 order directing plaintiff to serve

expert discovery by a certain date and the Third Judicial District Expert Disclosure Rule —

requiring an opposing party to file its expert disclosure, at the latest, within 60 days after the note

of issue was filed, subject to preclusion of the expert unless the court directs otherwise. Because

the court's November 2016 order and the note of issue are not included in the record, we cannot

adequately review whether plaintiff actually violated the order or rule. In any event, Supreme Court

was vested with broad discretion in addressing this expert disclosure issue (citations omitted), and

we find no abuse of that discretion.”).

CPLR 3101(d) - In expert disclosure, plaintiff is required to differentiate and specify which

allegations of negligence apply to each defendant, and to delete any alleged act of negligence

that is not applicable to any particular defendant.

Kanaly v. DeMartino, 2018 NY Slip Op 04060 (3d Dep’t 2018) (“In any event, plaintiff's

‘undifferentiated aggregation of the claimed negligent acts and omissions of all defendants’ did

not serve the purpose of either a bill of particulars or an expert disclosure (citation omitted).

Plaintiff's expert disclosure did not serve its purpose or comply with the statute because it did not

contain reasonable detail concerning each expert's opinion, considering that the disclosure

essentially alleged the same acts of negligence as to each defendant, even though some of those

allegations could not possibly apply to every defendant. The nature of the disclosure here

‘essentially tell[s] the defendants nothing about what they are supposed to be defending’ (citation

omitted). It is unfair to require one defendant to prepare to defend against allegations that plaintiff

only intends to assert against the codefendants. Instead of a blended aggregation of claims, as

plaintiff provided, each defendant was entitled to a disclosure specific to him, her or it (citations

omitted). Thus, Supreme Court did not abuse its discretion by requiring plaintiff to revise her

expert disclosure to differentiate and specify which allegations of negligence apply to each

Page 175: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

defendant, and to delete any alleged act of negligence that is not applicable to any particular

defendant.”).

CPLR 3101(d) - Conflict as to whether responding party in medical, dental or podiatric

malpractice action can withhold expert’s qualifications for fear of revealing expert’s identity

The omission of the identity of the proposed expert in medical, dental and podiatric malpractice

actions was apparently motivated by a concern that medical experts could be discouraged by

colleagues from testifying. One of the concerns raised is that a party’s compliance with the required

disclosure, other than the identity of the expert (that is, providing the expert’s qualifications),

would permit the demanding party, with access to a computer and appropriate search engines, to

learn the identity of the expert. This has provoked parties to request that they be permitted to limit

their disclosure of the expert’s qualifications. The result has been a conflict in the Appellate

Division Departments, with respect to their responses to this dilemma. The Second Department,

joined recently by the Third Department, has ruled that

parties in medical malpractice cases “will ordinarily be entitled to full disclosure of

the qualifications of [an opponent’s] expert, [except for the expert’s name,]

notwithstanding that such disclosure may permit such expert’s identification,” but

a party may obtain a protective order under CPLR 3103 (a) by making a factual

showing that there exists a reasonable probability, “under the special circumstances

of a particular case, that a prospective expert medical witness would be subjected

to intimidation or threats if his or her name were revealed before trial” (citation

omitted). Stated otherwise, parties “in medical malpractice actions are

presumptively entitled to a statement of the [opponents’] expert’s qualifications in

‘reasonable detail’ (citation omitted), as the statute commands, and [parties

opposing disclosure] in such cases may avoid compliance with this obligation only

upon production of proof sufficient to sustain findings (a) that there is a reasonable

probability that such compliance would lead to the disclosure of the actual identity

of their expert or experts, and (b) that there is a reasonable probability that such

disclosure would cause such expert or experts to be subjected to ‘unreasonable

annoyance, expense, embarrassment, disadvantage, or other prejudice’ (citation

omitted)” (citation omitted).

Kanaly v. DeMartino, 2018 N.Y. App. Div. LEXIS 4018, 2018 NY Slip Op 04060 (3d

Dep’t June 7, 2018) (quoting Thomas v. Alleyne, 302 A.D.2d 36, 752 N.Y.S.2d 362 (2d

Dep’t 2002)) (which court originated this rule).

The Fourth Department has carved out its own rule, permitting a responding party to

withhold information concerning the expert’s medical school education and the location of his or

her internships, residencies and fellowships. Thompson v. Swiantek, 291 A.D.2d 884, 736

N.Y.S.2d 819 (4th Dep’t 2002).

CPLR 3101(d) - Late disclosure

Page 176: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

Lasher v. Albany Mem. Hosp., 161 A.D.3d 1326 (3d Dep’t 2018) (“Here, plaintiffs first notified

defendants of their intention to call a GIS expert more than three years after defendants' respective

demands for expert disclosure and during the midst of the trial. Notably, Stark's cell phone number

was provided to plaintiffs during a pretrial deposition more than a year and a half earlier and, thus,

plaintiffs possessed the essential facts necessary to investigate the matter — and, if necessary, to

retain an expert — long before trial. Plaintiffs' claim that they did not realize the significance of

the calls, and thus the need to subpoena the phone records, until shortly before trial did not, as

Supreme Court found, constitute good cause for the delay (citations omitted). Moreover, we agree

with Supreme Court that, given the complex and technical issues presented by the proposed GIS

testimony, the mid-trial disclosure of this expert would have prejudiced defendants (citations

omitted). Under these circumstances, we cannot conclude that Supreme Court abused its discretion

in precluding plaintiffs from offering the testimony of their GIS expert (citations omitted).”).

CPLR 3101(d) / 4515 - Frye and general acceptance

Dovberg v. Laubach, 154 A.D.3d 810, 63 N.Y.S.3d 417 (2d Dep’t 2017) (“‘The long-recognized

rule of Frye v. United States [293 F. 1013] is that expert testimony based on scientific principles

or procedures is admissible but only after a principle or procedure has “gained general acceptance”

in its specified field’ (citations omitted). ‘[G]eneral acceptance does not necessarily mean that a

majority of the scientists involved subscribe to the conclusion. Rather it means that those espousing

the theory or opinion have followed generally accepted scientific principles and methodology in

evaluating clinical data to reach their conclusions’ (citations omitted). General acceptance can be

demonstrated through scientific or legal writings, judicial opinions, or expert opinions other than

that of the proffered expert (citations omitted). The burden of proving general acceptance rests

upon the party offering the disputed expert testimony (citations omitted). ‘Broad statements of

general scientific acceptance, without accompanying support, are insufficient to meet the burden

of establishing such acceptance’ (citation omitted). Furthermore, even if the proffered expert

opinion is based on accepted methods, it must satisfy ‘the admissibility question applied to all

evidence—whether there is a proper foundation—to determine whether the accepted methods were

appropriately employed in a particular case’ (citation omitted). Here, the defendants did not sustain

their burden of establishing that Bowles’s opinion that the force generated by the accident could

not have caused the plaintiff’s knee injuries was based on generally accepted principles and

methodologies (citations omitted), or that there was a proper foundation for the admission of that

opinion (citation omitted). The expert disclosure notice simply stated that Bowles analyzed ‘the

medical and engineering aspects of the accident.’ While the defendants cited to three works in

opposition to the motion in limine, they did not identify the authors, years of publication, and

contents of those works, or any explanation as to their relevance in evaluating the cause of knee

injuries. Moreover, the defendants provided no description of the methodology Bowles utilized to

determine the force of the accident, and the biomechanical engineering principles he relied upon

in reaching his conclusion that the force generated by the accident could not have caused the

plaintiff’s knees to come into contact with the vehicle dashboard. Under these circumstances, the

Supreme Court should have granted the plaintiff’s motion to the extent of precluding Bowles from

offering his opinion testimony that the force generated by the accident could not have caused the

plaintiff’s knee injuries (citations omitted). Accordingly, we reverse the judgment and remit the

matter to the Supreme Court, Suffolk County, for a new trial on the issue of damages.”).

Page 177: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

CPLR 3101(d)(1) - Conflict among Appellate Division Departments as to whether treating

physician who testifies at trial as expert must provide CPLR 3101(d)(1) expert disclosure

David L. Ferstendig, Another Conflict Among Appellate Division Departments, 680 N.Y.S.L.D. 4

(2017)

One of my pet peeves has been the relative abundance of circumstances in which the Appellate

Division departments are in conflict on basic procedural issues. See, e.g., “The CPLR - A

Practitioner’s Perspective,” remarks from the New York University School of Law March 2013

Symposium entitled “The CPLR at Fifty - Its Past, Present, and Future.” Because of the nature of

the issues involved, many times discovery-related, the opportunity for the Court of Appeals “to

clear things up” is not readily available. This leaves counsel in sometimes difficult positions,

complicating practice.

Schmitt v. Oneonta City Sch. Dist., 2017 N.Y. Slip Op. 04527 (3d Dep’t June 8, 2017), involved

the issue of whether a CPLR 3101(d)(1)(i) expert disclosure is required for a treating physician

who is expected to testify as an expert at trial. The First, Second, and Fourth Departments do not

have such a requirement, concluding that the disclosure of a doctor’s records and reports pursuant

to CPLR 3121 and 22 N.Y.C.R.R. § 202.17 is sufficient. See Hamer v. City of New York, 106

A.D.3d 504, 509 (1st Dep’t 2013); Jing Xue Jiang v. Dollar Rent a Car, Inc., 91 A.D.3d 603, 604

(2d Dep’t 2012); Andrew v. Hurh, 34 A.D.3d 1331, 1331 (4th Dep’t 2006), lv. denied, 8 N.Y.3d

808 (2007). However, the Third Department does require a CPLR 3101(d)(1)(i) disclosure. In

Schmitt, the defendant served a demand for expert disclosure, and plaintiffs’ multiple responses

did not identify a medical expert. The plaintiffs noticed a deposition of the treating physician for

trial purposes. During the deposition, the plaintiffs attempted to offer the witness as an “expert in

the field of orthopedic surgery.” The defendant objected immediately because the witness was not

identified in the plaintiffs’ expert disclosure. Plaintiffs’ counsel maintained that no expert

disclosure was required and the deposition continued over defendant’s objection. The plaintiffs

then moved, seeking a determination that they had “effectively complied” with CPLR

3101(d)(1)(i), or in the alternative, that the expert disclosure they had attached to their motion was

sufficient. The trial court granted the motion “finding that a fair reading of [the expert] Cico-ria’s

testimony provided defendant with Cicoria’s qualifications, as well as the facts and opinions upon

which he could be expected to testify at trial.” Schmitt, 2017 N.Y. Slip Op. 04527 at ∗2.

On appeal, the Third Department reiterated its conflict with the other Departments requiring an

expert disclosure for a treating physician. It found that the transcript of the deposition could not

serve as a substitute for the CPLR 3101(d)(1)(i) disclosure. The majority opinion then tried to

frame a proper remedy for the non-compliance. Significantly, it noted that “[p]laintiffs’ counsel

candidly conceded that he was unaware of this Court’s interpretation of CPLR 3101(d)(1)(i) and

the corresponding need to file an expert disclosure for a treating physician” (perhaps because of

the conflict among the departments!). Id.

The court further noted that there was no showing of willfulness in the plaintiffs’ nondisclosure.

However, it conceded that the defendant suffered prejudice. Thus, the court ruled that if the

Page 178: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

plaintiffs sought to call the witness as an expert, they would need to provide a complete CPLR

3101(d)(1)(i) disclosure and produce him for an expert deposition, at their expense. If the plaintiffs

chose to use him as a fact witness only, however, then plaintiffs could either introduce the

videotape deposition at trial (CPLR 3117(a)(4)), subject to any objections under CPLR 3115(a) or

a CPLR 3103(a) protective order, or could call him as a witness at trial, in which case the prior

deposition could be used for impeachment purposes only (CPLR 3117(a)(1)).

In a concurring opinion, Judge Lynch took a different approach as to a remedy - there would be

no need for a CPLR 3101(d)(1)(i) disclosure. However, he opined that the plaintiffs should be

bound by the format they selected, that is, the videotape deposition, and should not be allowed to

call the witness at trial. Moreover, the defendant should be allowed to cross-examine the witness

via a videotape deposition, at the plaintiffs’ expense.

CPLR 3101(d)(1) - “[D]efendant’s objections to that line of questioning were properly

sustained inasmuch as defendant did not receive sufficient notice that the treating physician

relied on his engineering background to support his opinions and conclusions about

plaintiff’s injuries.”

Harris v. Campbell, 155 A.D.3d 1622 (4th Dep’t 2017) (“We address first plaintiffs’ contentions

concerning the court’s allegedly erroneous rulings at trial that contributed to the jury’s verdict that

plaintiff did not sustain a serious injury. Contrary to plaintiffs’ contention, the court properly

limited the testimony of one of plaintiff’s treating physicians. ‘CPLR 3101 (d) (1) applies only to

experts retained to give opinion testimony at trial, and not to treating physicians, other medical

providers, or other fact witnesses’ (citation omitted). ‘Where . . . a plaintiff’s intended expert

medical witness is a treating physician whose records and reports have been fully disclosed . . . , a

failure to serve a CPLR 3101 (d) notice regarding that doctor does not warrant preclusion of that

expert’s testimony on causation, since the defendant has sufficient notice of the proposed

testimony to negate any claim of surprise or prejudice’ ‘(citation omitted). Here, one of plaintiff’s

treating physicians did not provide any expert disclosure, and during trial he indicated that, in

addition to being a medical doctor, he received a Ph.D. in biomechanical engineering and he often

relies on his engineering background in his medical practice. Subsequently, that treating physician

was asked some questions pertaining to biomechanics, and specifically was asked about the

amount of force needed to cause a lumbar injury. We conclude that defendant’s objections to that

line of questioning were properly sustained inasmuch as defendant did not receive sufficient notice

that the treating physician relied on his engineering background to support his opinions and

conclusions about plaintiff’s injuries (citation omitted). Indeed, plaintiffs made no attempt in

response to defendant’s objections to point to any medical records or other documentation that

would establish that defendant had such notice.”).

CPLR 3101(d)(1) - Objecting to inadequate expert disclosure

David L. Ferstendig, Plaintiff’s Motion at Trial Seeking to Preclude Defense Expert’s Testimony

on Causation Denied as Untimely, 672 N.Y.S.L.D. 1-2 (2016).

Page 179: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

Rivera v. Montefiore Medical Center, 2016 N.Y. Slip Op. 06854 (October 20, 2016), concerned

the adequacy of a CPLR 3101(d) expert disclosure and the obligation to object timely to its content,

and specifically to the lack of specification. Rivera was an action against the defendant-hospital

arising out of the death of plaintiff’s son there. The decedent arrived at the hospital with symptoms

of pneumonia, and died early the next morning. He had been admitted to an area of the hospital

that did not have continuous monitoring of a patient’s vital signs. The autopsy report concluded

that the cause of death was bronchopneumonia complicated by diabetes.

The defendant-hospital’s CPLR 3101(d) statement revealed, among other things, that its expert

would testify “on the issue of causation” and “as to the possible causes of the decedent’s injuries

and contributing factors.” Plaintiff did not object to the general nature of the disclosure,

specifically relating to causation; instead, she objected that the statement failed to provide the dates

of the expert’s medical residency. That objection was cured by the defendant.

The defendant-hospital’s treating physician testified at trial that decedent’s death was caused in

part by pneumonia. On cross, however, he stated instead that it was caused by acute cardiac

arrhythmia. Plaintiff’s expert agreed that the death was caused in part by pneumonia, but

acknowledged that cardiac arrest was a possible cause. Plaintiff moved to preclude defendant’s

expert testimony as to the possible cause of the decedent’s death on the ground that its CPLR

3101(d) disclosure gave no detail as to the possible cause. The trial court denied the application as

untimely. The defense expert then testified that the cause of the decedent’s death was sudden,

lethal cardiac arrhythmia, disputing the autopsy report suggested cause of death. The jury found

the defendant liable for its failure to put the decedent in an area of the hospital where there was

continuous monitoring. However, although the jury awarded damages for past and future economic

losses, it rejected the conscious pain and suffering claim, suggesting that the jury believed the

decedent died suddenly, perhaps caused by a heart ailment. The plaintiff then moved pursuant to

CPLR 4404(a) to strike all testimony regarding cardiac arrhythmia as a cause of decedent’s death

and to set aside the $0 award for conscious pain and suffering on the ground that the CPLR 3101(d)

expert disclosure failed to include the theory as to cardiac arrhythmia and was thus deficient. The

trial court denied the motion as “untimely made at the time of trial.”

The Appellate Division affirmed, holding that plaintiff did not timely object to the lack of

specificity in defendant’s CPLR 3101(d) disclosure and the plaintiff could not assume that the

defense expert would agree with the autopsy report’s conclusion as to the cause of death.

The Court of Appeals affirmed. The Court noted that the trial court had the discretion to deny

plaintiff’s motion to preclude. Significantly, it rejected plaintiff’s argument that it had no reason

to object to defendant’s CPLR 3101(d) statement at the time it was served because it did not

indicate that the defendant would dispute plaintiff’s theory of the cause of decedent’s death. The

Court stated that to the extent defendant’s CPLR 3101(d) disclosure might have been

objectionable, its insufficiency was obvious. Thus, it was not misleading; it simply did not indicate

a theory or basis for the expert’s opinion. The Court held that the trial court did not abuse its

discretion in finding that the plaintiff’s time to object had passed, since “the basis of the objection

was readily apparent from the face of the disclosure statement and could have been raised – and

potentially cured – before trial.” Id. at *3.

Page 180: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

This decision is both troubling and instructive. In most cases (outside of the Commercial Part),

expert disclosure is limited to the CPLR 3101(d) written responses. The deposition of an expert is

generally not permitted or taken. Not infrequently, the written disclosures can be generalized and

lacking in detail. The Rivera decision is a cautionary tale and should provoke parties to review

closely their opponent’s expert disclosure to assure that all objections are preserved in a timely

fashion. Conversely, a party should make sure its disclosure is sufficiently detailed. The decision

also highlights the danger of a system that generally limits the inquiry of a party’s expert by not

permitting depositions and relying solely on a written response.

CPLR 3101(d)(1) - Adequacy of expert disclosure

Tate-Mitros v. MTA N.Y. City Tr., 144 A.D.3d 454, 41 N.Y.S.3d 214 (1st Dep’t 2016) (“We find

that Dr. Kurtz’s CPLR 3101(d)(1) disclosure notice was legally sufficient; it provided plaintiff

with notice that the doctor would question whether a bus would have caused the injuries sustained

by plaintiff. It is improper for a party to request the facts and opinions upon which another party’s

expert is expected to testify (citations omitted).”).

CPLR 3101(d)(1) - Adequacy of expert disclosure

Rocco v. Ahmed, 146 A.D.3d 836, 45 N.Y.S.3d 161 (2d Dep’t 2017) (“Here, Ahmed’s expert

witness disclosure only revealed expert testimony that Rocco’s stroke was not caused by his atrial

fibrillation or a blood clot, but did not inform the plaintiffs that the expert would testify that the

stroke was caused by calcification. Ahmed failed to demonstrate good cause for not disclosing the

substance of his expert’s causation theory until trial (citations omitted). The revelation of the

defendants’ causation theory at trial prejudiced the plaintiffs’ ability to prepare for trial because

they did not have adequate time to consult or retain an expert neuroradiologist (citations

omitted).”).

CPLR 3101(d)(1) - No evidence that failure to disclose experts was intentional or willful and

no showing of prejudice

Yampolskiy v. Baron, 150 A.D.3d 795, 53 N.Y.S.3d 677 (2d Dep’t 2017) (“‘[A] party’s failure to

disclose its experts pursuant to CPLR 3101(d)(1)(i) prior to the filing of a note of issue and

certificate of readiness does not divest a court of the discretion to consider an affirmation or

affidavit submitted by that party’s experts in the context of a timely motion for summary judgment’

(citation omitted). Under the circumstances of this case, the Supreme Court properly denied the

plaintiff’s cross motion to preclude the expert materials submitted by the defendants in support of

their motion for summary judgment, as there was no evidence that the failure to disclose the experts

was intentional or willful, and there was no showing of prejudice to the plaintiff (citations

omitted).”).

CPLR 3101(i) - Plaintiff failed to properly authenticate the video excerpt

Page 181: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

Torres v. Hickman, 2018 NY Slip Op 04372 (2d Dep’t 2018) (“The plaintiff moved to enter into

evidence a 30-second portion of a surveillance video recording of the accident taken by a security

camera at a business adjacent to the accident scene. A ‘tech supervisor’ employed by the business

testified that he installed and maintained the security camera, but that he did not record the original

video, nor did he copy the relevant portion of that video on to the disc that was proffered as

evidence. He similarly did not know how the master recording was edited to produce the 30-second

excerpt on the disc, and he did not testify that the excerpt was a true and accurate depiction of a

portion of the master recording or that it depicted the entire recorded event in question. He also

lacked any firsthand knowledge of who prepared the subject disc, or of how and when it was

supplied to the plaintiff's attorneys. The Supreme Court precluded the video evidence, citing

problems with its authentication and chain of custody. . . . Contrary to the plaintiff's contention,

the Supreme Court providently exercised its discretion in precluding the proffered surveillance

video excerpt. ‘Testimony from [a] videographer that he [or she] took the video, that it correctly

reflects what he [or she] saw, and that it has not been altered or edited is normally sufficient to

authenticate a videotape’ (citation omitted). Where the videographer is not called as a witness, the

video can still be authenticated with testimony that the video ‘truly and accurately represents what

was before the camera’ (citations omitted). Furthermore, ‘[e]vidence establishing the chain of

custody of the videotape may additionally buttress its authenticity and integrity, and even allow

for acceptable inferences of reasonable accuracy and freedom from tampering’ (citations omitted).

Here, given the inability of the witness to testify regarding the editing of the master recording and

the accuracy of the video excerpt, and his lack of personal knowledge as to the creation of the

proffered disc and how it came into the possession of the plaintiff's attorneys, we agree with the

court's determination that the plaintiff failed to properly authenticate the video excerpt (citation

omitted).”).

CPLR 3104 - Supervision of disclosure

CPLR 3104 - Referee does not supervise bill of particulars dispute since it is not a disclosure

device

Flores v. New York City Hous. Auth., 151 A.D.3d 695, 56 N.Y.S.3d 263 (2d Dep’t 2017) (“Since

a bill of particulars is not a disclosure device but a means of amplifying a pleading (citation

omitted), the present dispute over the contents of the plaintiff’s bill of particulars is not ‘part of

any disclosure procedure’ (citation omitted) that CPLR 3104 authorizes a referee to supervise.

Because CPLR 3104 did not authorize the J.H.O./Referee to determine the defendants’ motion to

strike stated portions of the plaintiff’s bill of particulars, and there exists no order of reference

authorizing the J.H.O./Referee to determine the motion, the J.H.O./Referee was without authority

to determine the defendants’ motion. Further, contrary to the plaintiff’s contention, the question of

whether the J.H.O./Referee lacked authority to determine the motion is properly before this Court.

Under the circumstances, the defendants’ motion pursuant to CPLR 3104(d) to review and vacate

the order dated July 6, 2015, should have been granted.”).

Page 182: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

CPLR 3116 - Signing Deposition

CPLR 3116 - Substantive changes to errata sheet without providing sufficient explanation

Carrero v. New York City Hous. Auth., 2018 NY Slip Op 04660 (1st Dep’t 2018) (“Supreme Court

correctly struck plaintiff's errata sheet purporting to correct the transcript of her General Municipal

Law § 50-h hearing testimony, because plaintiff made numerous substantive changes to the

testimony without providing a sufficient explanation for them (citations omitted).”).

CPLR 3116 / 2101(b) - Translator’s affidavit die not accompany errata sheets

Gonzalez v. Abreu, 2018 NY Slip Op 04309 (2d Dep’t 2018) (“Here, the defendant testified at her

deposition through a Spanish language interpreter. However, the errata sheets annexed to the

transcript of the defendant's deposition testimony and the defendant's affidavit, which were both

written in English, were not accompanied by a translator's affidavit executed in compliance with

CPLR 2101(b). Therefore, those evidentiary submissions were facially defective and inadmissible

(citations omitted). While the defendant submitted a translator's affidavit with her reply papers,

that affidavit was unnotarized, and thus was not in admissible form (citation omitted). The

defendant's remaining evidentiary submissions were insufficient to establish her prima facie

entitlement to judgment as a matter of law on the applicability of the homeowner's exemption

under the Labor Law (citation omitted).”).

CPLR 3116 - Signing deposition transcript; plaintiff’s unsigned admissible because certified

and because it was provided to plaintiff’s counsel more than 60 days prior to defendant’s

motion; nonparty transcript not admissible because defendant did not mail until after

motion

Tsai Chung Chao v. Chao, 161 A.D.3d 564 (1st Dep’t 2018) (“Plaintiff’s deposition transcript,

which defendant submitted with his initial motion papers, is admissible, because, although it is

unsigned, it is certified (citations omitted). In addition, defendant submitted evidence that his

lawyer mailed the transcript to plaintiff’s counsel more than 60 days before the date of defendant’s

motion. The transcript of the deposition of Hsian Fang Chao (not a party to this action) is not

admissible, because defendant did not mail it until after the date of his motion (citations

omitted).”).

CPLR 3116(a) - Admissibility of unsigned deposition transcripts

Gallway v. Muintir, LLC, 142 A.D.3d 948, 38 N.Y.S.3d 28 (2d Dep’t 2016) (“The plaintiff’s

challenges to the admissibility of the defendants’ evidence are without merit. The plaintiff’s

Page 183: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

unsigned deposition was admissible, since it was submitted by the plaintiff herself in opposition

to the defendant’s motion, thus acknowledging its accuracy (citation omitted). Additionally, the

defendants cured any defects in the admissibility of the deposition transcripts submitted in support

of their motion by submitting, in reply, the reporter’s certification of those transcripts and the fact

that the depositions were forwarded to the parties for review and signature (citations omitted).”).

Safier v. Saggio Rest. Inc., 151 A.D.3d 543, 54 N.Y.S.3d 272 (1st Dep’t 2017) (“These unsigned

transcripts were properly before the motion court, because the deponents were served with notices

to execute more than 60 days before Tri-State moved for summary judgment, every transcript was

certified by a reporter, and neither plaintiff nor co-defendants challenged the accuracy of the

testimony (citations omitted).”).

CPLR 3119 - Uniform interstate depositions and discovery

CPLR 3119 - Applies to out of state subpoena issued in connection with investigation by

California Attorney General

Matter of Harris v. Seneca Promotions, Inc., 149 A.D.3d 1508, 53 N.Y.S.3d 758 (4th Dep’t 2017)

(“Nevertheless, we agree with petitioner that CPLR 3119 applies to this out-of-state subpoena

issued in connection with an investigation undertaken by petitioner as Attorney General of the

State of California (citation omitted). Contrary to the contention of NWSC, nothing in the language

of the statue limits its scope to subpoenas issued in civil litigation, and NWSC may not rely upon

the title of the bill and statements of its sponsor to create ambiguity where the statutory language

is clear and unambiguous. ‘Where words of a statute are free from ambiguity and express plainly,

clearly and distinctly the legislative intent, resort may not be had to other means of interpretation’

. . . , and the intent of the Legislature must be discerned from the language of the statute . . . without

resort to extrinsic material such as legislative history or memoranda’ (citation omitted). The record

does not support NWSC’s contention that it was not afforded an opportunity to challenge the

subpoena, inasmuch as the court considered NWSC’s position when it entertained NWSC’s

application for a protective order pursuant to CPLR 3119 (e). We reject NWSC’s further

contention that it had no obligation to specify the information that it sought to protect from

disclosure in making that application. To the contrary, as the entity resisting compliance with the

subpoena, NWSC had the burden of demonstrating that the information sought was irrelevant to

petitioner’s investigation (citation omitted), and NWSC made no attempt to meet that burden.

CPLR 3121 - Physical or Mental Examination

CPLR 3121 - Trial court did not abuse discretion in ordering plaintiff to provide medical

authorizations for a 10-year period

Kanaly v. DeMartino, 2018 NY Slip Op 04060 (3d Dep’t 2018) (“Supreme Court did not abuse its

discretion in ordering plaintiff to provide unrestricted authorizations for defendants to obtain

decedent's medical records for 10 years preceding her death. ‘[A] litigant is deemed to have waived

Page 184: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

the physician-patient privilege when, in bringing or defending a personal injury action, that person

has affirmatively placed his or her mental or physical condition in issue’ (citation omitted).

Plaintiff alleged that defendants committed medical malpractice by prescribing decedent fentanyl

when she was opiate naive. The parties dispute the definition of that term, with a possible definition

espoused by one of the defense experts requiring knowledge of the patient's medical history for at

least a 10-year period prior to death. Defendants have noted that decedent suffered for many years

from medical conditions for which pain medication would typically be prescribed. One medical

record reveals that decedent received fentanyl — the drug alleged to have caused her death — for

a surgical procedure in 2005. Additionally, plaintiff alleged that defendant Wendy Anne

DeMartino was negligent for failing to read and use decedent's full medical history, and plaintiff's

expert witness disclosure suggested that plaintiff's experts would rely on and testify to decedent's

full medical history, but the disclosure did not delineate the extent or time period of that history.

Inasmuch as plaintiff placed at issue decedent's full medical history for an extended but unspecified

period of time, Supreme Court did not abuse its discretion in ordering plaintiff to provide medical

authorizations for a 10-year period (citations omitted).”).

CPLR 3121 - Nonlegal representative’s presence at IME

Martinez v. Pinard, 160 A.D.3d 440, 71 N.Y.S.3d 345 (1st Dep’t 2018) (“Defendants concede

that, under this Court's recent decision in Santana v Johnson (154 AD3d 452 [1st Dept 2017]), they

can no longer argue that plaintiff was required to show ‘special and unusual circumstances’ to be

permitted to have a nonlegal representative present at a physical examination conducted on their

behalf pursuant to CPLR 3121. There is no basis for finding that defendants waived their right to

conduct a physical examination of plaintiff by including unreasonable restrictions in their notice

of examination. Defendants' conduct was supported by a good faith interpretation of applicable

case law (citations omitted).”).

CPLR 3121(a) / 4504(a) - Placing medical condition in controversy waives privilege

O’Brien v. Village of Babylon, 153 A.D.3d 547, 60 N.Y.S.3d 92 (2d Dep’t 2017) (“‘While

physician-patient communications are privileged under CPLR 4504, [a] litigant will be deemed to

have waived the privilege when, in bringing or defending a personal injury action, that person has

affirmatively placed his or her mental or physical condition in issue’ (citations omitted). To this

end, ‘ a party must provide duly executed and acknowledged written authorizations for the release

of pertinent medical records under the liberal discovery provisions of the CPLR (citation omitted)

when that party has waived the physician-patient privilege by affirmatively putting his or her

physical or mental condition in issue’ (citations omitted). ‘In addition, the defense is entitled to

review records showing the nature and severity of the plaintiff’s prior medical conditions [which]

may have an impact upon the amount of damages, if any, recoverable for a claim of loss of

enjoyment of life’ (citations omitted). Here, contrary to the plaintiffs’ contention, they

affirmatively placed the entire medical condition of the plaintiff Donald O’Brien (hereinafter the

injured plaintiff) in controversy through the broad allegations in their bill of particulars (citation

omitted). Further, the plaintiffs expressed their intention to prove exacerbation of preexisting

injuries at trial and claimed damages for loss of enjoyment of life. Accordingly, the Supreme Court

Page 185: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

properly granted that branch of the defendants’ cross motion which was pursuant to CPLR 3124

to compel the injured plaintiff to provide them with authorizations for the release of medical

records relating to his treatment for acoustic neuroma and back issues (citations omitted). Under

the circumstances of this case, the Supreme Court’s directive to provide medical authorizations as

to these conditions, unrestricted as to date, was not an improvident exercise of discretion (citations

omitted).”).

CPLR 3122 - Objections to disclosure, inspection or examination

CPLR 3122(a) - Provisions apply to subpoenas issued during the discovery phase of

litigation, and are not applicable to the subpoena issued by respondents pursuant to its

authority under State Finance Law § 9

Matter of The Plastic Surgery Group, P.C. v. Comptroller of The State of New York, 155 A.D.3d

1417 (3d Dep’t 2017) (“Supreme Court’s reliance upon CPLR 3122 (a) (2) as a limitation on

respondent’s [health insurance claim] audit and subpoena authority is misplaced. CPLR 3122 (a)

(2), which requires, among other things, that a patient’s written authorization accompany any

subpoena duces tecum issued to a medical provider for that patient’s medical records, only applies,

by its terms, to subpoenas issued by a party to litigation seeking discovery under CPLR 3120 or

3121, after an action or proceeding is commenced. The plain language of CPLR 3122 (a) (1) and

(2), read together, makes clear that the provisions apply to subpoenas issued during the discovery

phase of litigation, and are not applicable to the subpoena issued by respondent here pursuant to

its authority under State Finance Law § 9 (citation omitted). Indeed, the conclusion urged by

petitioner would lead to the untenable result that, unless health care providers voluntarily cooperate

with respondent’s requests for access to patient records for audit purposes, respondent would be

unable to fulfill its statutory and constitutional obligations to audit payments to providers for health

insurance claims unless it obtained prior written authorization from all patients whose records were

requested. Since respondent’s subpoenas are issued in accordance with its constitutional and

statutory audit authority, and have no connection with discovery in an action or proceeding, the

cited provisions of CPLR 3122 are not applicable.”).

CPLR 3122-a - Certification of business records

CPLR 3122-a - Failure to comply with section does not prevent party from objecting to

document’s admissibility based on other rules of evidence

Karen E.A. v. 545 W. 146th St., Inc., 148 A.D.3d 464, 49 N.Y.S.3d 404 (1st Dep’t 2017)

(“Defendant’s failure to comply with CPLR 3122-a did not prevent it from objecting to the report’s

admissibility based on other rules of evidence (citation omitted). However, defendant’s objection

that the plastic surgeon’s report was not admissible because it was prepared for the purpose of

litigation and was not germane to diagnosis and the child’s treatment is not preserved for appellate

review (citations omitted).”).

Page 186: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

CPLR 3124 - Motion to compel disclosure

CPLR 3124 / 3126 - Ordering hearing to address conduct and determine penalty for

discovery violation

On occasion, the Court can order a hearing to address the conduct and determine the penalty.

CEMD El. Corp. v. Metrotech LLC I, 141 A.D.3d 451, 35 N.Y.S.3d 336 (1st Dep’t 2016) (“[T]he

record makes clear that the facts surrounding defendant’s failure to appear for the deposition on

March 24, 2014 are in dispute. According to affidavits submitted on defendant’s behalf, one from

an employee of defendant and one from an executive vice-president at Douglas Elliman, plaintiff

had affirmatively agreed to postpone depositions while the parties tried to discern, among other

things, who had signed which agreements. Thus, under the circumstances presented here, a hearing

is required to determine, among other things, whether defendant’s failure to attend the deposition

was willful and contumacious (citations omitted). This conclusion holds particularly true in light

of the strong preference in this state for deciding matters on the merits (citation omitted).

Accordingly, we reverse and remit the matter for an evidentiary hearing.”).

CPLR 3126- Penalties for refusal to comply with order or to disclose

CPLR 3126 - Plaintiff acted with gross negligence in destroying ESI-tailored adverse

inference charge ordered

Douglas Elliman LLC v. Tal, 156 A.D.3d 583, 65 N.Y.S.3d 697 (1st Dep’t 2017) (“The record

demonstrates that plaintiff acted with gross negligence in destroying ESI not only after

commencement of the action triggered a duty to preserve, but after defendant Tal’s deposition, in

which she referenced an email exchange in which she allegedly advised plaintiff that she had

started working at Itzhaki Properties, and requested dual licensure, which plaintiff approved

(citation omitted). Accordingly, the court properly exercised its discretion in presuming the

relevance of the email exchange and imposing spoliation sanctions (citation omitted). Further, the

court engaged in “an appropriate balancing under the circumstances” by ordering a tailored adverse

inference charge limited to the alleged contents of the email exchange regarding defendant’s Tal’s

work at Itzhaki Properties, and precluding plaintiff from presenting contrary evidence (citation

omitted).”).

CPLR 3126 - Loss of video was negligent rather than intentional, and loss did not completely

deprive plaintiff of ability to prove her case; thus, sanction was adverse inference charge

Eksarko v. Associated Supermarket, 155 A.D.3d 826, 63 N.Y.S.3d 723 (2d Dep’t 2017) (“The

plaintiff contends that Me-Me’s answer should be stricken for its spoliation of the video recording

or, in the alternative, that an adverse inference charge should be given at trial with respect to the

lost recording. Since Me-Me’s loss of the video recording was negligent rather than intentional,

and the loss of the recording does not completely deprive the plaintiff of the ability to prove her

case, the appropriate sanction is to direct that an adverse inference charge be given at trial with

respect to the unavailable recording (citations omitted).”).

Page 187: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

CPLR 3126 - Non-intentional or willful spoliation of physical evidence merits adverse

inference charge and reimbursement of costs

Smith v. Cunningham, 154 A.D.3d 681, 62 N.Y.S.3d 434 (2d Dep’t 2017) (“Here, although the

plaintiff demonstrated that the defendant hired contractors to alter and redo the plaintiff’s work,

the plaintiff failed to demonstrate that the defendant’s conduct rose to the level of being intentional

or willful (citations omitted). Nevertheless, it was undisputed that the evidence was relevant to the

plaintiff’s claim (citation omitted). Under the circumstances of this case, the appropriate sanction

was to give an adverse inference charge at trial against the defendant with respect to the spoliation

of physical evidence (citations omitted). Likewise, to the extent the defendant appeals from so

much of the order as directed him to reimburse the plaintiff the sum of $2,695, which the plaintiff

had paid his expert to inspect the premises and issue a report, we find that this sanction was

properly imposed.”).

CPLR 3126 - Willful and contumacious conduct merits striking pleadings

Rosengarten v. Born, 161 A.D.3d 515 (1st Dep’t 2018) (“The motion court’s decision to strike,

based on a finding that defendants’ conduct with respect to its discovery obligations was willful

and contumacious and without reasonable excuse, was a proper exercise of its discretion (citations

omitted). The record amply demonstrates that from the start of the discovery process defendants

engaged in a pattern of willful and contumacious conduct by, inter alia, disregarding court orders

despite being repeatedly warned of the ramifications of doing so, providing discovery responses

that were unduly burdensome and without reviewing them, and otherwise failing to meaningfully

comply with the discovery requests.”).

CPLR 3126 - Striking answer for willful and contumacious conduct

Schiller v. Sunharbor Acquisition I, LLC, 152 A.D.3d 812, 60 N.Y.S.3d 79 (2d Dep’t 2017) (“Here,

the defendants’ repeated failures, over a period of years, to respond to the plaintiff’s discovery

demands, even after being directed to do so by multiple court orders, without adequate excuses,

constitutes willful and contumacious conduct (citations omitted). Moreover, in an April 2013

response by the defendants to the plaintiff’s demand for supplemental discovery, the defendants

represented they were ‘not in possession of any electronically stored medical records,’ yet the

affidavit submitted by the defendants in opposition to the motion to strike contended that the

repeated failure to provide the complete medical record to the plaintiff arose from a malfunction

with the computer system on which such medical records were stored. The defendants failed to

provide an explanation for their initial false statement in the discovery response to the plaintiff.”).

CPLR 3126 - Striking answer and granting motion to dismiss cross-claims for willful and

contumacious conduct

Studer v. Newpointe Estates Condominium, 152 A.D.3d 555, 58 N.Y.S.3d 509 (2d Dep’t 2017)

(“Contrary to the Newpointe defendants’ contention, the willful and contumacious nature of their

Page 188: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

conduct may properly be inferred from their repeated delays in complying with the plaintiff’s

discovery demands and the Supreme Court’s discovery schedule, their failure to provide an

adequate excuse for their delays, and their inadequate discovery responses, which did not evince

a good-faith effort to address the requests meaningfully (citations omitted). Further, the court

properly considered the plaintiff’s evidence of accidents and complaints similar to hers, which she

submitted for the first time in her reply papers, as this evidence was submitted in direct response

to the Newpointe defendants’ opposition arguments (citations omitted). Contrary to the

contentions of the Newpointe defendants, Witcomb Landscape also demonstrated that they

willfully and contumaciously failed to comply with its discovery demands (citations omitted).

Accordingly, the court providently exercised its discretion in granting that branch of the plaintiff’s

motion which was to strike the Newpointe defendants’ answer and in granting Witcomb

Landscape’s motion to dismiss the Newpointe defendants’ cross claims.”).

CPLR 3126 - Dismissal of cause of action for willful and contumacious conduct

Bruno v. Flip Cab Corp., 144 A.D.3d 852, 41 N.Y.S.3d 279 (2d Dep’t 2016) (“However, the

Supreme Court improvidently exercised its discretion in granting that unopposed branch of

Ingram’s motion which was pursuant to CPLR 3126 to dismiss the derivative cause of action for

loss of services insofar as asserted against him only to the extent of precluding the plaintiff Jill M.

Livoti from offering testimony at trial if she did not appear for a deposition within 30 days. ‘The

drastic remedy of striking a pleading is warranted where the party’s failure to comply with court-

ordered discovery is willful and contumacious’ (citations omitted). Here, Livoti twice failed to

appear for depositions in violation of two court orders and never responded to a demand for a bill

of particulars. Livoti’s failures to comply with court-ordered discovery coupled with her failure to

provide any excuse therefor supports an inference that her conduct was willful and contumacious

(citations omitted). Under the circumstances, Livoti’s derivative cause of action for loss of services

should have been dismissed (citations omitted).”).

CPLR 3126 - Resolving issues of liability against offending party

Rogers v. Howard Realty Estates, Inc., 145 A.D.3d 1051, 42 N.Y.S.3d 866 (2d Dep’t 2016) (“Here,

the defendant’s representative failed to appear for a court-ordered deposition on several separate

dates. Moreover, the defendant failed to demonstrate a reasonable excuse for those failures

(citations omitted). Under these circumstances, the Supreme Court providently exercised its

discretion in deeming the issue of liability insofar as asserted against the defendant resolved in

favor of the plaintiff (citations omitted).”).

CPLR 3126 - No proof that defendants intentionally or willfully destroyed evidence while

under obligation to preserve

Atiles v. Golub Corp., 141 A.D.3d 1055, 36 N.Y.S.3d 533 (3d Dep’t 2016) (In personal injury slip

and fall case, defendants produced video surveillance, including footage prior to, during, and after

the accident but not for the full 24-hour period after the accident, as plaintiffs had requested. Court

found that plaintiffs failed to prove defendants intentionally or willfully destroyed evidence while

Page 189: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

under an obligation to preserve. Thus, plaintiff retained the burden to prove the relevancy of the

missing video, which they could not do.).

CPLR 3126 - Conditional order of preclusion – opportunity to “cure”

Vaca v. Village View Hous. Corp., 145 A.D.3d 504, 43 N.Y.S.3d 42 (1st Dep’t 2016) (“The motion

court providently exercised its discretion in issuing a conditional order striking the answer after

defendants failed to comply with numerous orders directing them to provide discovery or an

affidavit stating that a search had been conducted and the documents did not exist (citation

omitted). An order striking the answer without giving defendants another opportunity to ‘cure’

their discovery deficiencies would have been inappropriate in light of plaintiff’s own discovery

deficiencies and failure to provide a proper good-faith affirmation in compliance with 22 NYCRR

202.7 (citations omitted). However, the conditional order should provide that the motion is granted

‘unless”within a specified time the resisting party submits to the disclosure,”‘ and we modify

solely to that effect (citations omitted).”).

CPLR 3126 - Conditional order and law office failure

Scholem v. Acadia Realty L.P., 144 A.D.3d 1012, 42 N.Y.S.3d 214 (2d Dep’t 2016) (“The plaintiff

commenced this action against the defendant to recover damages for breach of contract. In an order

dated January 9, 2013 (hereinafter the conditional order), the Supreme Court granted that branch

of the plaintiff’s motion which was pursuant to CPLR 3126 to strike the defendant’s answer for,

among other things, failing to produce witnesses for deposition “unless the defendant produces its

witnesses for depositions, which shall be scheduled and conducted within 45 days after service of

a copy of this order with notice of entry or any later date to which the parties agree in writing.”

Pursuant to a so-ordered stipulation dated March 21, 2013 (hereinafter the so-ordered stipulation),

the parties agreed that the defendant would produce certain witnesses for deposition on April 1, 2,

and 3, 2013. It is undisputed that the defendant did not produce the witnesses on those dates. As a

result, the conditional order became absolute (citations omitted). In order to be relieved of the

adverse impact of the conditional order, the defendant was required to demonstrate a reasonable

excuse for its failure to produce the witnesses for deposition and a potentially meritorious defense

(citations omitted). The court has discretion to accept law office failure as a reasonable excuse (see

CPLR 2005) where that claim is supported by a detailed and credible explanation of the default at

issue (citations omitted). Here, in opposition to the plaintiff’s motion, inter alia, to enforce the

conditional order and strike the defendant’s answer, the defendant submitted affidavits which,

taken together, set forth a detailed and credible explanation for the failure to produce the witnesses

for deposition (citation omitted), based on acts of misconduct and deception on the part of the

associate attorney handling the matter for the defendant’s attorneys (citations omitted). Moreover,

the defendant demonstrated the existence of a potentially meritorious defense.”).

CPLR 3126 - Dismissal of action is too harsh a penalty; conditional order is appropriate

Viruet v. Mount Sinai Med. Ctr. Inc., 143 A.D.3d 558, 38 N.Y.S.3d 896 (1st Dep’t 2016)

(“Nevertheless, ‘[s]triking a party’s pleadings is a drastic sanction, and will generally be made

only upon a clear showing that the party’s conduct was willful and contumacious’ (citations

Page 190: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

omitted). The record shows that the 77-year-old plaintiff responded to many of defendants’

discovery demands, which were extensive, spanning 10 years of medical records and other

documents. Under the circumstances of this medical malpractice case, dismissal of the action is

too harsh a sanction at this point for plaintiff’s partial failure to comply with discovery orders

(citation omitted). We, therefore, modify to reinstate the complaint, direct plaintiff within 45 days

of this order to pay a monetary sanction in the amount of $1,500, and afford plaintiff a final

opportunity to supplement her bill of particulars and to provide complete HIPAA authorizations

(citation omitted).”).

CPLR 3126 - Spoliation – complaining party had ample opportunity to inspect and

photograph subject elevator on day of the accident, never made request in the several months

after accident to conduct further inspection, and has not identified any evidence it sought to

obtain from such further inspection

Fajardo v. Mainco El. & Elec. Corp., 143 A.D.3d 759, 40 N.Y.S.3d 121 (2d Dep’t 2016) (“In

cross-moving pursuant to CPLR 3126 to strike Bronx Center’s answer based upon spoliation of

evidence, Mainco argued that Bronx Center did not permit it to complete its inspection of the

elevator. ‘Under the common-law doctrine of spoliation, when a party negligently loses or

intentionally destroys key evidence, the responsible party may be sanctioned under CPLR 3126’

(citations omitted). Here, the Supreme Court did not improvidently exercise its discretion in

granting Mainco’s cross motion only to the extent of directing that the Bronx Center produce its

expert for a deposition, since Mainco had ample opportunity to inspect and photograph the subject

elevator on the day of the accident, never made a request in the several months after the accident

to conduct a further inspection, and has not identified any evidence it sought to obtain from such

further inspection (citation omitted).”).

CPLR 3126 - Trial court improvidently struck answer; adverse inference appropriate;

ability to prove case not fatally compromised

Peters v. Hernandez, 142 A.D.3d 980, 37 N.Y.S.3d 443 (2d Dep’t 2016) (“Here, the Supreme

Court improvidently exercised its discretion in imposing the sanction of striking the answer of the

defendants MDC Tavern Corp., doing business as Carousel, Mark E. Carney, Dennis Charette, and

Gregory Robert Walsh (hereinafter collectively the appellants). Although the plaintiff

demonstrated that the appellants negligently disposed of the video recording of the underlying

incident, his ability to prove his case without that recording was not fatally compromised (citations

omitted). Under the circumstances of this case, the appropriate sanction is to direct that an adverse

inference charge be issued at trial against the appellants with respect to the unavailable recording

(citations omitted).”).

CPLR 3126 - Negligent destruction of electronic data results in negative inference sanction

Cioffi v. S.M. Foods, Inc., 142 A.D.3d 520, 36 N.Y.S.3d 475 (2d Dep’t 2016) (“Here, the record

supports the Supreme Court’s conclusion that, at the time the Atlanta defendants destroyed the

Page 191: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

electronic data at issue, they were parties to this litigation and knew or should have known of the

potential relevance of the data to the plaintiffs’ claims. Nevertheless, the plaintiffs have not

demonstrated that the Atlanta defendants’ destruction of the data was willful rather than merely

negligent. In addition, the plaintiffs have not demonstrated that the destruction of the data has

significantly affected their ability to prove their claims. Accordingly, the Supreme Court

providently exercised its discretion in declining to strike the Atlanta defendants’ answer or

preclude them from presenting evidence (citation omitted). However, contrary to the Atlanta

defendants’ contention, since they knew or should have known that the data should have been

preserved, the imposition of the lesser sanction of a negative inference was appropriate. Therefore,

the court properly granted that branch of the plaintiffs’ motion which was to impose a sanction

against the Atlanta defendants to the extent of directing that a negative inference charge be given

against them at trial.”).

CPLR 3126 - Trial court abused its discretion in dismissing the complaint due to plaintiff's

belated disclosure of a video

Fox v. Grand Slam Banquet Hall, 142 A.D.3d 473, 36 N.Y.S.3d 653 (1st Dep’t 2016) (“There was

no court order directing plaintiff to produce the video, and Grand Slam’s discovery demands only

requested that she produce photographs. Furthermore, plaintiff, who claimed to have misplaced

the video, did not seek to introduce the edited video, which did not show her fall, into evidence at

trial, and was willing to consent to its preclusion, the striking of her testimony concerning its

existence, and a curative instruction, even though she believed the video to be favorable to her

because it showed a cord across the floor and one of Grand Slam’s principals standing in the

vicinity. To mitigate any potential prejudice to Grand Slam resulting from the belated production

or the potential use of the video at retrial, we direct that Grand Slam be given 60 days from the

date of this order to conduct additional discovery of the videographer and plaintiff with respect to

the video, as it deems appropriate. Because we are reversing the dismissal of the complaint, the

high-low agreement should be enforced upon the retrial.”).

CPLR 3126 - The trial court abused its discretion in striking defendants’ answer and

granting plaintiff partial summary judgment on liability based on defendants’ destruction

of stairway. Instead, appropriate sanction is adverse inference charge

Burke v. Queen of Heaven R.C. Elementary Sch., 151 A.D.3d 1608, 58 N.Y.S.3d 757 (4th Dep’t

2017) (“Defendants concede that the original condition of the stairway was relevant. Furthermore,

an obligation to preserve the condition of the stairs existed because litigation had begun at the time

the stairs were replaced (citations omitted). We agree with plaintiff that she met her burden of

establishing that defendants destroyed the stairs with a culpable state of mind. As Supreme Court

properly concluded, defendants’ culpable state of mind was evidenced by their destruction of the

stairs during the parties’ ongoing debate about whether plaintiff had to disclose the name of her

expert to defendants before defendants would agree to the inspection (citations omitted). We thus

agree with plaintiff that the imposition of a sanction against defendant for spoliation of evidence

was warranted here (citation omitted). Nevertheless, we conclude that the court abused its

discretion in striking defendants’ answer and granting plaintiff partial summary judgment on

Page 192: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

liability based on defendants’ destruction of the stairway (citation omitted)…Here, the record does

not demonstrate that plaintiff has been left ‘prejudicially bereft’ ‘of the means of prosecuting her

action (citations omitted), given that plaintiff has in her possession, among other evidence of the

condition of the stairs, photographs of the stairs taken after the commencement of this action. Thus,

we conclude that an appropriate sanction is that an adverse inference charge be given at trial with

respect to any now unavailable evidence of the condition of the stairs (citations omitted), and we

modify the order accordingly.”).

CPLR 3126 - Adverse inference charge

Lilavois v. JP Morgan Chase & Co., 151 A.D.3d 711, 54 N.Y.S.3d 664 (2d Dep’t 2017) (“Here,

contrary to the plaintiffs’ contention, the Supreme Court properly determined that the affidavit of

Chase’s employee raised a triable issue of fact as to whether spoliation of the surveillance video

occurred (citations omitted). Accordingly, the court providently exercised its discretion in granting

that branch of the plaintiffs’ cross motion which was to strike Chase’s answer on the ground of

spoliation of evidence only to the extent of directing that an adverse inference charge be given

against Chase at trial with respect to surveillance video of the underlying incident if the jury does

not credit testimony of Chase’s witness that no surveillance video existed for the subject location

(citations omitted).”).

CPLR 3126 - Order of preclusion of testimony or evidence at trial concerning the injured

plaintiff’s mental health

Patino v. Carlyle Three, LLC, 148 A.D.3d 1177, 50 N.Y.S.3d 481 (2d Dep’t 2017) (“A conditional

order of preclusion requires a party to provide stated discovery by a date certain, or face the

sanctions specified in the order (citations omitted). As a result of the plaintiffs’ failure to comply

with the conditional order of preclusion dated July 10, 2014, that conditional order became

absolute (citations omitted). To avoid the adverse impact of the conditional order of preclusion,

the plaintiffs were required to demonstrate a reasonable excuse for their failure to comply with the

order and a potentially meritorious cause of action (citations omitted). Here, the plaintiffs failed to

proffer any excuse for their noncompliance and failed to demonstrate a potentially meritorious

cause of action (citations omitted). Accordingly, the Supreme Court providently exercised its

discretion in granting that branch of the defendants’ motion which was pursuant to CPLR 3126 to

preclude the plaintiffs from offering testimony or evidence at trial concerning the injured plaintiff’s

mental health.”).

CPLR 3126 - Order of preclusion of financial evidence

Douek v. Douek, 148 A.D.3d 866, 48 N.Y.S.3d 614 (2d Dep’t 2017) (“Contrary to the defendant’s

contention, the Supreme Court did not improvidently exercise its discretion in granting that branch

of the plaintiff’s motion which was pursuant to CPLR 3126 to preclude the defendant from offering

financial evidence at trial due to her willful violation of discovery orders and her failure to comply

with the plaintiff’s discovery requests (citations omitted).”).

CPLR 3126 - Penalty of striking pleading versus monetary sanction

Page 193: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

Lucas v. Stam, 147 A.D.3d 921, 48 N.Y.S.3d 150 (2d Dep’t 2017) (Majority of court finds trial

court improvidently exercised its discretion by imposing monetary sanctions on the

defendants as opposed to striking their answers. “The Supreme Court properly inferred the

willful and contumacious character of the defendants’ conduct from their repeated failures over an

extended period of time, without an adequate excuse, to comply with the plaintiff’s discovery

demands and the court’s discovery orders (citations omitted). This conduct included - (1)

misrepresenting that the surgical booker Marcia Barnaby was no longer employed by the Hospital;

(2) failing to disclose Anthony Pastor as a surgical booker; and (3) failing to timely and fully

comply with the court’s order to produce an affidavit from Schiff in the form required by the court.

‘[P]arties, where necessary, will be held responsible for the failure of their lawyers to meet court-

ordered deadlines and provide meaningful responses to discovery demands’ (citations omitted). …

The striking of a pleading is a drastic remedy that may only be warranted upon a clear showing

that the failure to comply with discovery demands or court-ordered discovery was willful and

contumacious (citations omitted). Although not expressly set forth as a sanction under CPLR 3126,

we have held that the imposition of a monetary sanction under CPLR 3126 may be appropriate to

compensate counsel or a party for the time expended and costs incurred in connection with an

offending party’s failure to fully and timely comply with court-ordered disclosure (citations

omitted). Here, contrary to the Supreme Court’s determination, we find that the imposition of

monetary sanctions was insufficient to punish the defendants and their counsel for their willful and

contumacious conduct in failing to timely and fully respond to discovery demands and court

orders. Accordingly, the court should have granted that branch of the plaintiff’s motion which was

to strike the defendants’ answers.” The dissent, citing Weinstein, Korn & Miller, 3126.23, stated

that dismissal is a harsh penalty to impose on a client as a result of an attorney’s failures. “and in

certain cases, it may be appropriate to impose a penalty upon the attorney for his or her conduct

while saving the action for the client (citations omitted).”).

CPLR 3126 - Striking justification defense

Crooke v. Bonofacio, 147 A.D.3d 510, 47 N.Y.S.3d 28 (1st Dep’t 2017) (“The court properly

exercised its discretion under CPLR 3126 by striking St. Luke’s affirmative defense of justification

because plaintiff demonstrated that the failure to produce defendant Michael Bonofacio, who was

accused by plaintiff of misconduct, for his deposition, was willful, deliberate, contumacious, and

done in bad faith (citation omitted). Moreover, St. Luke’s failed to provide a reasonable excuse for

its failure to comply (citation omitted). The record shows that St. Luke’s repeatedly failed to

respond to plaintiff’s inquiries about producing Bonofacio for deposition, and neglected to disclose

— until well after the instant motion was filed — that it had terminated his employment causing

him to refuse to appear. Furthermore, it is noted that the court made efforts to limit its order by

striking only the affirmative defense that would require Bonofacio’s testimony. It did not strike

the entire answer, thereby providing St. Luke’s with other avenues of defending against plaintiff’s

claims. We note that courts are vested with broad discretion in fashioning remedies that are

precisely tailored to the discovery abuse at issue (citation omitted), and find that the court herein

crafted an appropriate remedy.”).

Page 194: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

CPLR 3126 - Willful and contumacious conduct; but striking answer improvident exercise

of discretion when trial court already precluded offending party from offering any evidence

Chowdhury v. Hudson Val. Limousine Serv., LLC, 2018 NY Slip Op 04526 (2d Dep’t 2018) (“In

light of Koonin's failure to comply with multiple court orders and so-ordered stipulations directing

him to appear for the EBT, the Supreme Court properly concluded that Koonin engaged in willful

and contumacious conduct (citations omitted). However, under the circumstances, it was an

improvident exercise of discretion to grant those branches of the motion and cross motion which

were to strike Koonin's answer in light of the fact that the court also granted those branches of the

motion and cross motion which were to preclude Koonin from offering any evidence at the time

of trial (citations omitted).”).

CPLR 3126 - Failure to preserve surveillance footage merits negative inference charge

SM v. Plainedge Union Free Sch. Dist., 2018 NY Slip Op 04370 (2d Dep’t 2018) (“Here, the

plaintiffs demonstrated that the defendant had an obligation to preserve surveillance footage of the

moments leading up to the infant plaintiff's accident at the time of its destruction, but negligently

failed to do so. Given the nature of the infant plaintiff's injuries and the immediate documentation

and investigation into the cause of the accident by the defendant's employees, the defendant was

clearly on notice of possible litigation and, thus, under an obligation to preserve any evidence that

might be needed for future litigation (citations omitted). The defendant failed to meet this

obligation. The defendant acted negligently in unilaterally deciding to preserve only 24 seconds of

footage and passively permitting the destruction of the remaining footage, portions of which were

undisputedly relevant to the plaintiffs' case. Under the circumstances of this case, the Supreme

Court providently exercised its discretion in imposing a sanction of a negative inference charge

against the defendant at trial with respect to the unavailable surveillance footage (citations

omitted).”).

CPLR 3126 - Spoliation- Plaintiff failed to establish that defendant intentionally or

negligently failed to preserve video after being placed on notice that the evidence might be

needed for future litigation

Tanner v. Bethpage Union Free Sch. Dist., 161 A.D.3d 1210 (2d Dep’t 2018) (“‘Under the

common-law doctrine of spoliation, when a party negligently loses or intentionally destroys key

evidence, the responsible party may be sanctioned under CPLR 3126’ (citation omitted). ‘A party

that seeks sanctions for spoliation of evidence must show that the party having control over the

evidence possessed an obligation to preserve it at the time of its destruction, that the evidence was

destroyed with a culpable state of mind, and that the destroyed evidence was relevant to the party’s

claim or defense such that the trier of fact could find that the evidence would support that claim or

defense’ (citations omitted). ‘[I]n the absence of pending litigation or notice of a specific claim, a

defendant should not be sanctioned for discarding items in good faith and pursuant to its normal

business practices’ (citations omitted). Here, the plaintiff failed to establish that the defendant

intentionally or negligently failed to preserve the video after being placed on notice that the

evidence might be needed for future litigation (citation omitted).”).

Page 195: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

CPLR 3126 - Significant award of attorneys’ fees for willful and contumacious conduct

Jackson v. OpenCommunications Omnimedia, LLC, 147 A.D.3d 709, 49 N.Y.S.3d 389 (1st Dep’t

2017) (Affirming order awarding $40,994.80 in attorneys’ fees and costs associated with forensic

examination of plaintiff’s laptop computer. “The court’s grant of relief under CPLR § 3126 was

proper. Contrary to the court’s conclusion, we find that plaintiff’s pattern of noncompliance with

discovery demands and a court-ordered stipulation supports an inference of willful and

contumacious conduct, which further justifies imposition of sanctions (citations omitted). Here, a

forensic examination of plaintiff’s laptop, which was conducted pursuant to a court-ordered

stipulation entered into after plaintiff’s repeated refusals to produce all requested discovery,

revealed numerous pages of documents that should have been turned over to defendants, as well

as privileged attorney-client communications improperly accessed through defendant John Morris’

email account (citation omitted). Further, plaintiff failed to produce a flash drive, which he himself

admitted existed at the time of his deposition, now claiming that the transcript of his testimony

was inaccurate. We decline to reduce the amount of the award. Any challenge by plaintiff to the

amount awarded has been waived, as he never objected to the proposed order and bill of costs

submitted by defendants. His order to show cause sought only to reargue the order granting CPLR

§ 3126 relief, and did not dispute the specific amount of fees and costs sought by defendants. In

any event, even if the order to show cause were deemed an objection, it was untimely, as plaintiff

filed it less then two days prior to the notice date of defendants’ notice of settlement (citation

omitted).”).

CPLR 3126 - Appellate court modifies trial court order striking answer and imposes costs

instead

Woloszuk v. Logan-Young, 2018 NY Slip Op 04176 (4th Dep’t 2018) (“On the merits of the

motion, although we agree with the court that plaintiff established that a discovery violation

occurred, we conclude that the sanction of striking the answer of the Clinic was too severe under

the circumstances of this case (citation omitted). This case is not similar to a spoliation case

because the CAD structured reports were never destroyed but, rather, were not generated and

produced in a timely manner (citation omitted). We conclude that the Clinic should be sanctioned

by imposing costs upon it for any additional expenses plaintiff incurred as a result of the delay in

disclosure (citation omitted). We therefore modify the order in appeal No. 3 by vacating that part

of the first ordering paragraph striking the answer of the Clinic, and we modify the order in appeal

No. 4 by vacating the third ordering paragraph and substituting therefor a provision directing the

Clinic to reimburse plaintiff for expenses incurred as a result of the delayed disclosure of the CAD

structured reports.”).

CPLR 3126 - Monetary sanctions

Vizcaino v. Western Beef, Inc., 161 A.D.3d 632 (1st Dep’t 2018) (“We see no reason to disturb the

motion court’s exercise of discretion in declining to strike defendants’ answer (citation omitted).

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

Page 196: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

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.”).

CPLR 3126 - Monetary sanction

Maxim, Inc. v. Feifer, 161 A.D.3d 551 (1st Dep’t 2018) (Compare Majority: “Here, a monetary

sanction of $10,000 is warranted because plaintiffs, without seeking a protective order,

intentionally did not produce documents and did not properly respond to a notice to admit based

on an unfounded assertion that they feared defendants would make the documents public (citations

omitted).”; and Dissent: “I dissent solely on the issue of the imposition of sanctions and would

affirm the portion of the motion court’s order that denied defendant’s request, pursuant to CPLR

3126, for attorneys’ fees and expenses, ‘at this juncture of the litigation.’ ‘Although the

determination of an appropriate sanction pursuant to CPLR 3126 lies in the trial court’s discretion

and should not be set aside absent a clear abuse of discretion’ (citation omitted), I acknowledge

that this Court is ‘vested with its own discretion and corresponding power to substitute its own

discretion for that of the [motion] court’ (citation omitted). However, I do not believe that in this

instance and on this record we should do so.”).

ARTICLE 32- ACCELERATED JUDGMENT

CPLR 3211- Motion to Dismiss

CPLR 3211 - Failure to timely serve claim deprived Court of Claims of subject matter

jurisdiction

Steele v. State of New York, 145 A.D.3d 1363, 42 N.Y.S.3d 876 (3rd Dep’t 2016) (“This Court has

determined that a claim for wrongful confinement accrues upon a claimant’s release from the SHU

(citations omitted). On that measure, the claim was clearly untimely as the 90-day period in which

to serve a claim expired on August 27, 2012. A failure to comply with the time provisions of Court

of Claims Act § 10 divests the Court of Claims of subject matter jurisdiction (citations omitted).

Statutorily, such a failure may be waived where the defense is neither raised in a pre-answer motion

to dismiss or in the responsive pleading (see Court of Claims Act § 11 [c]). Here, as indicated,

defendant duly preserved the defense in its answer (citation omitted). Since defendant has not

otherwise waived its sovereign immunity, the court lacked authority to impose a pretrial motion

deadline precluding this defense (citations omitted). As such, claimant’s failure to timely serve the

Page 197: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

claim deprived the Court of Claims of subject matter jurisdiction, and the claim must be

dismissed.).

CPLR 3211 - Subject matter jurisdiction, forum selection clause and waiver of sovereign

immunity

See Aron Sec., Inc. v. Unkechaug Indian Nation, 151 A.D.3d 674, 54 N.Y.S.3d 668 (2d Dep’t

2017) (Court grants motion to dismiss in subject matter jurisdiction grounds finding that forum

selection provision did not express an unequivocal waiver of sovereign immunity by defendant

Indian tribe.)

CPLR 3211 / 3212 - Single motion rule does not apply

Mew Equity, LLC v. Sutton Land Servs., LLC, 144 A.D.3d 874, 879, 42 N.Y.S.3d 175, 179 (2d

Dep’t 2016) (“The court also failed to take into account that Marcy Tower and Chase moved for

the alternative relief of having their motions treated as motions for summary judgment pursuant to

CPLR 3211(c). The single motion rule did not preclude their requests for summary judgment

(citations omitted).”).

CPLR 3211(a)(1) - Documentary evidence establishes a defense to plaintiff's claims as a

matter of law

REEC W. 11th St. LLC v. 246 W. 11th St. Realty Corp., 75 N.Y.S.3d 32 (1st Dep’t 2018) (“The

documentary evidence establishes a defense to plaintiff's claims as a matter of law (citations

omitted). The complaint alleges that plaintiff worked diligently and in good faith to close title to

the property that was the subject of the parties' contract of sale and that defendant breached the

contract and the covenant of good faith and fair dealing by its unreasonable conduct. These

allegations are utterly refuted by the contract of sale, the amendment to the contract, defendant's

‘Time Is of the Essence’ letter, and plaintiff's conduct in failing to close by any of the time of the

essence dates.”).

CPLR 3211(a)(1) - What is “documentary evidence”?

Feldshteyn v. Brighton Beach 2012, LLC, 153 A.D.3d 670, 61 N.Y.S.3d 60 (2d Dep’t 2017)

(“‘[J]udicial records, as well as documents reflecting out-of-court transactions such as mortgages,

deeds, contracts, and any other papers, the contents of which are essentially undeniable, would

qualify as documentary evidence in the proper case’ (citations omitted). ‘At the same time,

[n]either affidavits, deposition testimony, nor letters are considered documentary evidence within

the intendment of CPLR 3211(a)’ (citations omitted). Here, the letters submitted by the defendant

did not constitute documentary evidence within the meaning of CPLR 3211(a)(1), and should not

have been relied upon by the Supreme Court as a basis for granting the defendant’s motion to

dismiss the complaint. The only documentary evidence submitted in support of the defendant’s

motion was the purchase agreement, which did not ‘utterly refute’ the plaintiffs’ allegations or

conclusively establish a defense as a matter of law. Contrary to the defendant’s contention, the

issue of whether the letters constitute documentary evidence within the intendment of CPLR

Page 198: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

3211(a)(1) can be raised for the first time on appeal because it is one of law which appears on the

face of the record and could not have been avoided if it had been raised at the proper juncture

(citations omitted).”).

CPLR 3211(a)(1) - Documentary evidence conclusively established defense

413 Throop, LLC v. Triumph, the Church of the New Age, 153 A.D.3d 1306, 61 N.Y.S.3d 307 (2d

Dep’t 2017) (“To prevail on a motion to dismiss a complaint pursuant to CPLR 3211(a)(1), a

defendant must demonstrate that the proffered documentary evidence ‘utterly refutes plaintiff’s

factual allegations, conclusively establishing a defense as a matter of law’ (citations omitted). An

unambiguous contract provision may qualify as documentary evidence under CPLR 3211(a)(1)

(citations omitted). Here, the Supreme Court properly determined that the defendant had

conclusively established as a matter of law that the disputed provision in the contract clearly and

unambiguously limited the purchaser’s remedy in the event of the defendant’s breach of the

contract to the return of the down payment, and thus precluded specific performance or an award

of damages. Accordingly, the court properly granted that branch of the defendant’s motion which

was to dismiss the complaint pursuant to CPLR 3211(a)(1), and thereupon, properly directed

cancellation of the notice of pendency (citations omitted).”).

CPLR 3211(a)(1) - Dismissal sought based on documentary evidence

Jenkins v. Jenkins, 145 A.D.3d 1231, 44 N.Y.S.3d 223 (3rd Dep’t 2016) (“[D]ismissal of a

complaint under CPLR 3211 (a) (1) — the sole ground upon which Supreme Court granted

defendant the requested relief here — ‘is appropriate where the documentary evidence utterly

refutes the plaintiff’s . . . allegations, conclusively establishing a defense as a matter of law’

(citations omitted). In this regard, ‘it is clear that judicial records, as well as . . . any other papers,

the contents of which are essentially undeniable, would qualify as documentary evidence in the

proper case’ (citations omitted).”).

CPLR 3211(a)(1) - Documentary evidence established a defense to plaintiff's claims as a

matter of law

REEC W. 11th St. LLC v. 246 W. 11th St. Realty Corp., 75 N.Y.S.3d 32 (1st Dep’t 2018) (“The

documentary evidence establishes a defense to plaintiff's claims as a matter of law (citations

omitted). The complaint alleges that plaintiff worked diligently and in good faith to close title to

the property that was the subject of the parties' contract of sale and that defendant breached the

contract and the covenant of good faith and fair dealing by its unreasonable conduct. These

allegations are utterly refuted by the contract of sale, the amendment to the contract, defendant's

‘Time Is of the Essence’ letter, and plaintiff's conduct in failing to close by any of the time of the

essence dates.”).

CPLR 3211(a)(1)/(a)(7) - Dismissal on grounds that defense is founded upon documentary

evidence; the pleading fails to state a cause of action

Page 199: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

Gorbatov v. Tsirelman, 155 A.D.3d 836, 65 N.Y.S.3d 71 (2d Dep’t 2017) (“The Supreme Court

further should have granted those branches of the Kucherovsky defendants’ motion which were to

dismiss the complaint insofar as asserted against the ‘Law Office of Leon Kucherovsky, P.C.,’ as

they demonstrated that that entity does not exist (citation omitted) and insofar as asserted against

Kucherovsky by Gorbatov individually. ‘Absent fraud, collusion, malicious acts, or other special

circumstances, an attorney is not liable to third parties not in privity or near-privity for harm caused

by professional negligence’ (citations omitted). Further, a Judiciary Law § 487 cause of action

requires that the alleged deceit occurred during a judicial proceeding in which the plaintiff was a

party (citations omitted). Here, the retainer agreements submitted by the Kucherovsky defendants

conclusively established that Kucherovsky did not represent Gorbatov individually (citations

omitted). Further, although the complaint alleges fraud and collusion, the damages alleged were

incurred only by the clients represented by the defendants (citations omitted). Although Tsirelman

submitted an affirmation stating that he only represented some of the plaintiffs, he did not submit

any documentary evidence conclusively establishing that fact (citation omitted), and thus, the court

properly declined to dismiss, at this juncture, the complaint against him insofar as asserted by any

of the plaintiffs.”).

CPLR 3211(a)(3) / 3211(e) - Waiving standing objection

HSBC Bank USA, N.A.. v. Szoffer, 149 A.D.3d 1400, 52 N.Y.S.3d 721 (3rd Dep’t 2017) (“In

opposition, defendants submitted an attorney’s affidavit, together with case law and proof of

mortgage assignments that were unrelated to the property at issue, and argued that plaintiff lacked

standing. However, the record makes clear — and defendants readily concede — that they failed

to raise lack of standing in their answer or in the context of a timely pre-answer motion to dismiss,

thereby waiving this defense (citations omitted). To the extent that defendants argue that Supreme

Court could — and should — have raised this issue sua sponte and dismissed the underlying

complaint, courts have been consistent in holding that ‘a party’s lack of standing does not

constitute a jurisdictional defect and does not warrant a sua sponte dismissal of the complaint by

the [trial] court’ (citations omitted). Finally, while defendants assert that, consistent with the

provisions of CPLR 3025 (b), they could have sought leave to amend their answer to raise lack of

standing as an affirmative defense, nothing in the record suggests that they attempted to do so.

Indeed, it does not appear that defendants made any effort to raise this issue until confronted with

plaintiff’s motion for summary judgment — some 5½ years after this action was commenced.

Under these circumstances, defendants waived the affirmative defense of standing.”).

Perine Intl. Inc. v. Bedford Clothiers, Inc., 143 A.D.3d 491, 40 N.Y.S.3d 27 (1st Dep’t 2016)

(“Defendants waived any defense based on a lack of capacity or standing to sue by failing to assert

it in the answer or a pre-answer motion to dismiss (citations omitted). Even if the defense had not

been waived, it would be unavailing because defendants admitted in their amended answer to

having a contractual relationship with plaintiff (citations omitted).”).

Nationstar Mtge., LLC v. Avella, 142 A.D.3d 594, 36 N.Y.S.3d 679 (2d Dep’t 2016) (“Since the

defendant did not timely answer the complaint or timely make a pre-answer motion to dismiss the

complaint, she waived the defense of lack of standing (citations omitted). Prior to cross-moving,

inter alia, to dismiss the complaint on the ground that the plaintiff lacked standing, the defendant

Page 200: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

did not seek an extension of time to answer (see CPLR 3012[d]), or request an extension of time

within which to serve and file a pre-answer motion pursuant to CPLR 3211 to dismiss the

complaint.”).

CPLR 3211(a)(3) - Lack of capacity – dismissal under BCL § 1312(a)

G.P. Exports v. Tribeca Design, 147 A.D.3d 655, 46 N.Y.S.3d 881 (1st Dep’t 2017) (“Order,

Supreme Court, New York County (Eileen A. Rakower, J.), entered March 28, 2016, which,

insofar as appealed from as limited by the brief, denied, without prejudice, that portion of

defendants Tribeca Design Ltd. and Tribeca Design Showroom LLC’s motion seeking to dismiss

the complaint pursuant to Business Corporation Law § 1312(a) and CPLR 3211(a)(3) based upon

lack of capacity to maintain the action, and directed plaintiff to comply with Business Corporation

Law § 1312(a), unanimously reversed, on the law, without costs, and defendants’ motion denied

in its entirety. Defendants failed to meet their burden of demonstrating that plaintiff was a foreign

corporation and that its ‘activities [were] so systematic and regular as to manifest continuity of

activity in New York’ that it was required to comply with Business Corporation law § 1312(a)

(citations omitted). Evidence of a single business transaction is insufficient to establish that a

foreign corporation is doing business in the State within the meaning of the statute (citation

omitted). In addition, plaintiff alleges in its complaint that it is an Indian partnership, not a

corporation. Defendant failed to prove otherwise.”).

CPLR 3211(a)(3)

David L. Ferstendig, Court Holds ELANY Lacks Capacity to Sue for Unpaid Stamping Fees, 684

N.Y.S.L.D. 1,2 (2017).

Court Holds ELANY Lacks Capacity to Sue for Unpaid Stamping Fees

The Statutory Structure, Legislative History, and ELANY’s Plan of Operation Suggest It Is

a Record Keeper and Reporter, Not a Regulator

When a New York-licensed insurer will not insure a particular risk, an insured may resort to

foreign insurers not authorized to do business in the state. Excess line brokers place this type of

excess line or surplus line insurance and are required to pay to the Department of Financial

Services (DFS) any taxes due on excess line insurance premiums. In addition, they are to submit

to the Excess Line Association of New York (ELANY) a document setting forth basic information

for each brokered excess line policy and to pay it a “stamping fee” based on the policy’s premium.

ELANY is an “advisory” association created under Insurance Law § 2130(a), whose purpose is to

facilitate compliance with excess line brokers’ filing and record-keeping requirements. All excess

line licensees are deemed to be members of ELANY. ELANY is supervised by DFS and it is

empowered to receive, record and stamp all excess line insurance documents filed by the brokers.

The stamping fees are ELANY’s sole source of funding, and its plan of operation specifies that a

member who is 30 days late in paying those fees may be reported to DFS, while a delinquency of

more than 60 days shall be reported to DFS.

Page 201: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

In Excess Line Assn. of N.Y. (ELANY) v. Waldorf & Assoc., 2017 N.Y. Slip Op. 07301 (October

19, 2017), the issue was whether ELANY could sue its members to recover stamping fees and to

compel an examination and an accounting. The trial court granted defendants’ motion to dismiss,

finding that ELANY lacked the capacity to sue. The Appellate Division affirmed, concluding that

“[c]ontrary to ELANY’s contention, none of the provisions of the [ELANY enabling] statute

confers upon it by necessary implication the capacity to sue to enforce the provisions of the

Insurance Law.” Id. at ∗2 (citing to 130 A.D.3d 563, 565). A unanimous Court of Appeals

affirmed. The Court initially noted that

“[c]apacity to sue is a threshold question involving the authority of a litigant to

present a grievance for judicial review.” Capacity is examined with a view towards

the relief sought, and is often at issue where, as here, governmental entities seek to

bring suit. “Being artificial creatures of statute, such entities have neither an

inherent nor a common-law right to sue. Rather, their right to sue, if it exists at all,

must be derived from the relevant enabling legislation or some other concrete

statutory predicate.” However, while the right must be derived from statute, “[a]n

express grant of authority is not always necessary,” and “capacity may be inferred

as a necessary implication from the powers and responsibilities of a governmental

entity, ‘provided, of course, that there is no clear legislative intent negating

review’” (citations omitted).

Id.

Here, the Court found that the relevant enabling statute did not expressly authorize ELANY to sue

for the relief sought. Moreover, the legislative history did not reveal any “affirmative suggestion”

that the legislature intended to give ELANY the capacity to sue. In fact, the statutory scheme

supported the conclusion that the legislature intended that DFS be the “primary enforcer” of the

Insurance Law and applicable regulations. Thus, DFS is empowered to suspend or revoke licenses

and can impose statutory monetary penalties which, if unpaid, can be enforced in a civil action.

Conversely, ELANY’s “principal role is to act as a record keeper for excess line transactions.” Id.

at ∗3. The Court rejected ELANY’s argument that since it was empowered to receive the stamping

fees, its right to sue for their recovery was a “necessary implication” from its responsibilities -

Critically, ELANY is both supervised by DFS and required to “perform its

functions” pursuant to a plan of operation approved by DFS (Insurance Law §

2130). That plan expressly establishes a method of enforcing the payment of

stamping fees — the relief that ELA-NY seeks here — by providing that, when

such fees go unpaid, ELANY’s remedy is to report the matter to DFS. In other

words, DFS has not authorized ELANY to seek recovery of unpaid stamping fees

through a plenary action. Instead, the plan of operation — which governs the scope

of ELANY’s authorized activities — limits ELANY’s remedy to reporting

violations to DFS, further supporting the conclusion that ELANY does not have

implied capacity to sue for the relief sought.

Page 202: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

Id. at ∗3–4.

Finally, the legislative history for the enabling statute (creating ELANY) characterized ELANY

not as a regulator but as an “advisory association” -

In short, the authority that ELANY urges this Court to recognize is negated by the nature of the

responsibilities conferred upon ELANY, as established by the statutory structure, legislative

history, and ELANY’s plan of operation. Therefore, the courts below correctly concluded that

capacity to sue cannot be inferred here.

Id. at ∗4.

CPLR 3211(a)(4) - Another action pending

Cooper v. Thao, 2018 NY Slip Op 04697 (2d Dep’t 2018) (“‘Pursuant to CPLR 3211(a)(4), a court

has broad discretion in determining whether an action should be dismissed based upon another

pending action where there is a substantial identity of the parties, the two actions are sufficiently

similar, and the relief sought is substantially the same’ (citations omitted). ‘The critical element is

that both suits arise out of the same subject matter or series of alleged wrongs’ (citation omitted).

Here, at the time the plaintiff commenced this action, there was a mortgage foreclosure action

pending between the plaintiff and HSBC in the Supreme Court, Queens County. The relief sought

in that action implicated the same issues raised by the plaintiff in this action. Thus, the Supreme

Court providently exercised its discretion in granting that branch of the defendants' motion which

was to dismiss the complaint insofar as asserted against HSBC.”).

Stewart Tit. Ins. Co. v. Wingate, Kearney & Cullen, 145 A.D.3d 462, 41 N.Y.S.3d 712 (1st Dep’t

2016) (“Two of the causes of action in the instant action are identical to the two causes of action

asserted in the Kings County action, which has been reinstated on appeal (citations omitted). The

third, brought pursuant to RPAPL 1501(4), arises out of the same facts as the other claims and

asserts a closely related theory. Since in determining a motion to dismiss pursuant to CPLR

3211(a)(4), “it is inconsequential that different legal theories or claims were set forth in the two

actions” (citation omitted), the motion court properly exercised its discretion in dismissing the

instant action.”).

Seneca Specialty Ins. Co. v. T.B.D. Capital, LLC, 143 A.D.3d 971, 40 N.Y.S.3d 450 (2d Dep’t

2016) (“Here, there is substantial identity of the parties and the causes of action alleged in the

Indiana action and this action (citations omitted). Further, the Indiana action was filed ‘first-in-

time.’ In the context of a motion to dismiss pursuant to CPLR 3211(a)(4) on the ground of another

action pending, generally the courts of this state follow the first-in-time rule, meaning that ‘the

court which has first taken jurisdiction is the one in which the matter should be determined and it

is a violation of the rules of comity to interfere’ (citations omitted). While certain special

circumstances may warrant deviation from this rule (citation omitted), consideration of the relevant

circumstances herein does not warrant reversal of the Supreme Court’s discretionary determination

to apply the first-in-time rule (citations omitted)”).

Page 203: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

CPLR 3211(a)(5) / 3019/ 5011 - The Court of Appeals holds that subsequent assertion in a

state court action of a claim that constituted a compulsory counterclaim in an earlier federal

action between the same parties was barred by the doctrine of res judicata

Paramount Pictures Corp. v. Allianz Risk Transfer AG, 31 N.Y.3d 64, 73 N.Y.S.3d 472, 96 N.E.3d

737 (2018) (Majority of Court holds claim not asserted in prior federal court action as

(compulsory) counterclaim was barred in subsequent state action under doctrine of res judicata.

Court finds that plaintiff’s claim in state court action based on covenant not to sue was sufficiently

related to investors’ claim in the federal action. “Indeed, in its ruling, the district court reached

issues that would likely prove dispositive to Paramount’s instant claim: the court noted that the

waiver provision of the Subscription Agreement also contained ‘an agreement by the plaintiffs in

no event to bring any claim’ — i.e., a covenant not to sue — and held that those provisions were

‘binding’ on the investors. This overlap of essential facts is exemplified most poignantly by

Paramount’s offensive assertion of collateral estoppel in the instant case with respect to the district

court’s factual and legal findings concerning the Subscription Agreement. At bottom, Paramount’s

covenant not to sue claim is based on the ‘same transaction’ as the federal action (the Melrose

investment); it involves much of the ‘same evidence’ (the Subscription Agreement and

surrounding negotiations); and its essential facts (the scope and validity of the Subscription

Agreement’s provisions) were present in the first action (citation omitted).”).

CPLR 3211(a)(5) - Res judicata

Corle v. Allstate Ins. Co., 2018 NY Slip Op 04135 (4th Dep’t 2018) (“Nevertheless, we conclude

that defendant was not entitled to dismissal of the complaint under CPLR 3211 (a) (5) based on

res judicata. Contrary to defendant's contention, we conclude that the failure of James to litigate

the bad faith claim in the earlier Insurance Law § 3420 (a) (2) action does not bar litigation of that

claim in the instant action. ‘Under the doctrine of res judicata, a party may not litigate a claim

where a judgment on the merits exists from a prior action between the same parties involving the

same subject matter. The rule applies not only to claims actually litigated but also to claims that

could have been raised in the prior litigation . . . Additionally, under New York's transactional

analysis approach to res judicata, 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 if seeking a different remedy’ (citations omitted). . . . We recognize that the First

Department held otherwise on similar facts in Cirone v Tower Ins. Co. of N.Y. (citations omitted).

To the extent that the First Department in Cirone concluded that an injured person/judgment

creditor who commenced an action against the insurer pursuant to Insurance Law § 3420 (a) (2)

had standing to assert a bad faith settlement practices claim in that action in the absence of an

assignment from the insured, we disagree with that conclusion and decline to follow Cirone.”).

CPLR 3211(a)(5) / 5011 - Where a litigant's individual interests are affected by prior

litigation in which he or she participated in a representative capacity, res judicata will apply

to a subsequent action commenced in the individual's personal capacity

Seidenfeld v. Zaltz, 2018 NY Slip Op 04585 (2d Dep’t 2018) (“The doctrine of res judicata, or

claim preclusion, provides that ‘a valid final judgment bars future actions between the same parties

Page 204: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

on the same cause of action’ (citations omitted). In general, a judgment for or against a person in

his or her representative capacity is not res judicata against that person in his or her personal

capacity (citations omitted). However, where a litigant's individual interests are affected by prior

litigation in which he or she participated in a representative capacity, res judicata will apply to a

subsequent action commenced in the individual's personal capacity (citations omitted).”).

CPLR 3211(a)(5) / 5011 - Collateral estoppel

Li v. Peng, 161 A.D.3d 823, 76 N.Y.S.3d 230 (2d Dep’t 2018) (“‘As a matter of full faith and

credit, review by the courts of this State is limited to determining whether the rendering court had

jurisdiction, an inquiry which includes due process considerations’ (citation omitted). Here,

however, Feng Li previously challenged the jurisdiction of the New Jersey court, and the New

Jersey court found that it had jurisdiction over the fee dispute. As a result, the plaintiffs are barred

from relitigating that issue in the Supreme Court (citations omitted). The Supreme Court properly

determined that the judgment entered in the New Jersey action had conclusively disposed of all of

the plaintiffs' claims and, therefore, the plaintiffs are collaterally estopped from maintaining the

instant action(citation omitted).”).

Siemsen v. Mevorach, 160 A.D.3d 1004, 72 N.Y.S.3d 478 (2d Dep’t 2018) (“Moreover, we agree

with the Supreme Court that the cause of action alleging breach of fiduciary duty was barred by

the doctrine of collateral estoppel (citation omitted). The defendant established that the decisive

issues in this action regarding her failure to exercise the right of election were necessarily decided

in the prior guardianship proceeding, and the plaintiff failed to demonstrate that she did not have

a full and fair opportunity to contest the prior determination (citations omitted).”).

CPLR 3211(a)(5) / 5011 - Election of Remedies

Luckie v. Northern Adult Day Health Care Ctr., 161 A.D.3d 845, 73 N.Y.S.3d 454 (2d Dep’t 2018)

(“‘Pursuant to the election of remedies doctrine, the filing of a complaint with [the Division]

precludes the commencement of an action in the Supreme Court asserting the same discriminatory

acts’ (citations omitted). The election of remedies doctrine does not implicate the subject matter

jurisdiction of the court, but rather deprives a plaintiff of a cause of action (citation omitted). Here,

the plaintiff’s causes of action are based on the same allegedly discriminatory conduct asserted in

the proceedings before the Division. Therefore, the plaintiff is barred from asserting those claims

under the NYCHRL in this action (citations omitted).”).

CPLR 3211(a)(7)

David L. Ferstendig, Complaint Dismissed for Failure to Allege Damages for Out-of-Pocket

Expenses, 679 N.Y.S.L.D. 3, 4 (2017).

The CPLR 3211(a)(7) motion to dismiss for failure to state a cause of action can address the

sufficiency of the complaint or, in limited circumstances, can establish “conclusively” that the

plaintiff has no cause of action.

Page 205: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

The recent decision in Connaughton v. Chipotle Mexican Grill, Inc., , 2017 N.Y. Slip Op. 03445

(May 2, 2017), dealt with the more traditional use of a CPLR 3211(a)(7) motion – that is, whether

the pleading stated a cause of action and asserted all of the material elements of the claim. Here,

the plaintiff, a well-known chef, sued the defendants Chipotle Mexican Grill and its Chief

Executive Officer, Steven Ells. Plaintiff developed a business plan for a concept for a ramen

restaurant chain, and approached Chipotle to tailor the ideas specifically for the Chipotle platform.

Ells offered to purchase the concept, and the plaintiff, through counsel, negotiated an at-will

contract to work as Culinary Director for Chipotle in New York to develop the restaurant design.

Apparently, a significant amount of work was done over the next year and a half, and the plaintiff

received the agreed-upon compensation and benefits. However, the plaintiff then learned that Ells

had years before entered into a confidentiality agreement with another well-known chef, David

Chang, to develop a similar ramen restaurant concept. That agreement fell apart, however, when

the parties were unable to agree on financial terms. Yet, the non-disclosure provisions remained

in effect, and a Chipotle executive stated that Chang would sue if Chipotle opened a ramen

restaurant. Nevertheless, Ells told the plaintiff to continue with his work. When plaintiff refused,

he was fired.

Plaintiff sued the defendants for, inter alia, fraudulent inducement, alleging that the defendants

fraudulently induced him to work for them by failing to advise him of the earlier agreement with

Chang and the nondisclosure agreement. Plaintiff asserted that he would never have accepted

employment with the defendants had he known about the prior agreement; that the Chipotle staff

communicated concepts that originally came from the prior chef, whose design ultimately became

the defendants’ flagship ramen restaurant in Washington, D.C.; and that going forward would

subject plaintiff to legal action. Plaintiff claimed damages for “the value of his Chipotle equity and

lost business opportunities in connection with his ramen concept,” compensatory and punitive

damages, and attorneys’ fees and disbursements. Id. at *3.

Defendants moved for dismissal under CPLR 3211(a)(1) and 3211(a)(7). As is relevant here,

defendants argued that a fraudulent inducement claim can be pursued only where a party has

suffered “out of pocket” pecuniary loss, not alleged here. The trial court granted the motion, and a

divided Appellate Division affirmed.

The Court of Appeals also affirmed. It noted at the outset the fairly obvious, that if “the fraud

causes no loss, then the plaintiff has suffered no damages.” Id. at *4. The question presented here

related to the measure of damages. The Court stated that in New York, like many other states,

[t]he true measure of damage is indemnity for the actual pecuniary loss sustained

as the direct result of the wrong or what is known as the “out-of-pocket” rule. Under

that rule, “[d]amages are to be calculated to compensate plaintiffs for what they lost

because of the fraud, not to compensate them for what they might have gained ….

[T]here can be no recovery of profits which would have been realized in the absence

of fraud.” Moreover, this Court has “consistent[ly] refus[ed] to allow damages for

fraud based on the loss of a contractual bargain, the extent, and indeed … the very

existence of which is completely undeterminable and speculative” (citations

omitted).

Page 206: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

Id.

Here, the complaint did not allege compensable damages resulting from the alleged fraud. While

the complaint claimed that the plaintiff stopped soliciting potential buyers in reliance on

defendants’ “fraudulent omissions,” nowhere did it allege that

he rejected another prospective buyer’s offer to purchase the concept. Instead,

plaintiff avers that once Ells showed an interest in his ramen restaurant idea,

plaintiff turned to selling the concept to Chipotle. These are factual assertions of

the quintessential lost opportunity, which are not a recoverable out-of-pocket loss.

As this Court has repeatedly stated, such damage is “disallowed as too speculative

a recovery” (citations omitted).

Id. at *5.

Similarly speculative was plaintiff’s assertion that if he were to be sued by the prior chef, he could

incur litigation expenses and loss of reputation. Furthermore, the complaint failed to provide

factual support for its claim of reputational harm. Finally, the Court held that the plaintiff was not

entitled to nominal damages, because they are unavailable when actual harm is an element of the

tort, as is the case with a fraudulent inducement claim.

CPLR 3211(a)(7) - Defendants’ submissions did not conclusively establish that plaintiff had

no cause of action

Phillips v. Taco Bell Corp., 152 A.D.3d 806, 60 N.Y.S.3d 67 (2d Dep’t 2017) (“On a motion

pursuant to CPLR 3211(a)(7) to dismiss for failure to state a cause of action, the court must afford

the pleading a liberal construction, accept all facts as alleged in the pleading to be true, accord the

plaintiff the benefit of every possible favorable inference, and determine only whether the facts as

alleged fit within any cognizable legal theory (citations omitted). Thus, ‘a motion to dismiss made

pursuant to CPLR 3211 (a) (7) will fail if, taking all facts alleged as true and according them every

possible inference favorable to the plaintiff, the complaint states in some recognizable form any

cause of action known to our law’ (citation omitted). While a court is permitted to consider

evidentiary material submitted by a defendant in support of a motion to dismiss pursuant to CPLR

3211(a)(7) (citation omitted), ‘affidavits submitted by a defendant will almost never warrant

dismissal under CPLR 3211 unless they establish conclusively that [the plaintiff] has no cause of

action’ (citations omitted). Here, the complaint stated a cause of action, and the defendants’

submissions did not conclusively establish that the plaintiff has no cause of action (citation

omitted). Accordingly, the Supreme Court also properly denied that branch of the defendants’

motion which was pursuant to CPLR 3211(a)(7).”).

Page 207: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

CPLR 3211(a)(7) - Pleading adequately alleged that the defendant acted with “actual malice”

with respect to a defamation claim

Greenberg v. Spitzer, 2017 NY Slip Op 06432 (2d Dep’t 2017) (“Finally, viewing the allegations

of the amended complaint as true, and according Greenberg the benefit of every favorable

inference, the Supreme Court properly determined that the amended complaint adequately stated

that Spitzer acted with actual malice (citations omitted). Specifically, the amended complaint

alleged, inter alia, that the defamatory statements were made with malice, that Spitzer continued

to publish them notwithstanding their falsity, and that he did so solely to discredit Greenberg and

damage his reputation and career, while attempting to bolster Spitzer’s own reputation and career.

Contrary to Spitzer’s contention, ‘the burden does not shift to the nonmoving party on a motion

made pursuant to CPLR 3211(a)(7),’ and therefore, ‘a plaintiff has no obligation to show

evidentiary facts to support [his or her] allegations of malice on a motion to dismiss pursuant to

CPLR 3211(a)(7)’ (citations omitted).”).

CPLR 3211(a)(7) - Failure to state a cause of action- Facts essential to cause of action negated

beyond substantial question by the evidentiary material submitted

Matter of Jonmark Corp. v. New York State Liq. Auth., 161 A.D.3d 1518, 73 N.Y.S.3d 920 (4th

Dep’t 2018) (“We add only that, contrary to the contention of petitioner, the court did not err in

granting Addys' pre-answer CPLR 3211 (a) (7) motion to dismiss the petition against it. Where

‘evidentiary material outside the pleading's four corners is considered, and the motion is not

converted into one for summary judgment, the question becomes whether the pleader has a cause

of action, not whether the pleader has stated one’ (citations omitted). Here, the facts essential to

petitioner's causes of action have ‘been negated beyond substantial question by the [evidentiary

material] submitted [with the petition] so that it might be ruled that [petitioner] does not have [a]

cause[] of action’ (citation omitted).”).

CPLR 3211(a)(7) - Failure to conclusively establish that plaintiff had no cause of action

XXXX, L.P. v. 363 Prospect Place, LLC, 153 A.D.3d 588, 60 N.Y.S.3d 84 (2d Dep’t 2017) (“The

Supreme Court also properly denied that branch of the defendants’ cross motion which was

pursuant to CPLR 3211(a)(7) to dismiss the complaint. In considering a motion to dismiss pursuant

to CPLR 3211(a)(7), the court must ‘accept the facts as alleged in the complaint as true, accord

the plaintiffs the benefit of every possible favorable inference, and determine only whether the

facts as alleged fit within any cognizable legal theory’ (citations omitted). ‘Where evidentiary

material is submitted and considered on a motion to dismiss a complaint pursuant to CPLR 3211

(a)(7), and the motion is not converted into one for summary judgment, the question becomes

whether the plaintiff has a cause of action, not whether the plaintiff has stated one and, unless it

has been shown that a material fact as claimed by the plaintiff to be one is not a fact at all and

unless it can be said that no significant dispute exists regarding it, dismissal should not eventuate’

(citations omitted). Here, the proffered evidence failed to conclusively establish that the plaintiff

did not have a cause of action for an easement by necessity (citations omitted), an easement by

preexisting use (citations omitted), or an easement by prescription (citations omitted).”).

Page 208: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

CPLR 3211(c) / 3212 - Court did not provide adequate notice of its intention to convert the

motions

Island Intellectual Prop. LLC v. Reich & Tang Deposit Solutions, LLC, 155 A.D.3d 542, 65

N.Y.S.3d 188 (1st Dep’t 2017) (“The motion court should not have entertained plaintiffs’ cross

motion for summary judgment, as the parties did not chart a course for summary judgment (citation

omitted). Defendants objected to the court entertaining the motion as one for summary judgment

and the court did not provide adequate notice of its intention to convert the motions pursuant to

CPLR 3211(c) (citation omitted).”).

CPLR 3211(e) - Waiver of service defense

Clermont v. Abdelrehim, 151 A.D.3d 495, 53 N.Y.S.3d 537 (1st Dep’t 2017) (“Le waived his lack

of service defense by failing to timely move to dismiss, as required by CPLR 3211(e). If Le had

never filed an answer, CPLR 3211(e) would not have been implicated and the failure to serve him

would have rendered all subsequent proceedings null and void (citations omitted). Because he did,

thereby appearing in the action, at least on a limited basis (citation omitted), he was bound to move

to dismiss on the ground of lack of service within sixty days of asserting that defense in his answer

(citations omitted).”).

CPLR 3211(e) - Waiver of service defense in failing to move within 60 days of serving answer;

Jurisdiction defense also waived by asserting unrelated counterclaim; defendant cannot

challenge court granting of extension to plaintiff to serve beyond 120 day period

JP Morgan Chase Bank, Natl. Assn. v. Venture, 148 A.D.3d 1269, 48 N.Y.S.3d 824 (3d Dep’t

2017) (“Supreme Court also properly denied defendant’s cross motion insofar as it sought

dismissal of the complaint. Defendant waived his affirmative defense of lack of personal

jurisdiction on the basis of improper service of process, as he failed to move to dismiss the

complaint on that ground within 60 days after serving his answer (citations omitted). This defense

was likewise waived by defendant’s assertion of a counterclaim unrelated to this action (citations

omitted). In light of the foregoing, defendant also cannot challenge Supreme Court’s grant of

plaintiff’s motion for an extension of time to serve defendant with process beyond the 120-day

period provided for in CPLR 306-b, nunc pro tunc (citation omitted).”).

CPLR 3211(e) - Failure to move to dismiss on improper service grounds within 60 days after

serving answer

Doe v. D’Angelo, 154 A.D.3d 1300, 62 N.Y.S.3d 680 (4th Dep’t 2017) (“We agree with plaintiff

that Supreme Court properly denied defendant’s motion inasmuch as defendant waived his defense

of lack of personal jurisdiction based on improper service of process by failing to move to dismiss

the complaint on that ground within 60 days of serving his answer (citations omitted). Defendant’s

contention that his motion was based on the statute of limitations, as opposed to improper service,

is belied by the record and, in any event, is without merit because plaintiff filed the summons with

notice prior to the expiration of the limitations period (citations omitted). We likewise conclude

that, inasmuch as defendant failed to move to dismiss the complaint based on improper service

Page 209: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

within 60 days of serving his answer, he cannot challenge the court’s determination to grant that

part of plaintiff’s cross motion seeking an extension of time for service of the summons and

complaint pursuant to CPLR 306-b (citation omitted). In any event, upon consideration of the

relevant factors, including the expiration of the statute of limitations, the meritorious nature of

plaintiff’s cause of action against defendant, and defendant’s failure to show any prejudice, we

conclude that the court did not abuse its discretion in granting that part of plaintiff’s cross motion

(citations omitted).”).

Matter of Figueroa v. New York State Div. of Human Rights & Buffalo City School Dist., 142

A.D.3d 1316, 38 N.Y.S.3d 857 (4th Dep’t 2016) (“At the outset, we conclude that the District

waived its contention that the petitions should be dismissed for lack of jurisdiction based upon the

alleged failure of petitioners to serve the District in accordance with CPLR 311 (a) (7). Those

objections to service were raised in the District’s answers, and the District failed to move to dismiss

the petitions on that ground within 60 days after serving its answers (citations omitted). We also

reject the District’s contention that the proceedings were not timely commenced, inasmuch as the

limitations period commenced on the date of service of the Division’s order and the record does

not establish the date of such service (citation omitted).”).

CPLR 3211(e) / 3018 - Can amend to add statute of limitations defense

Woloszuk v. Logan-Young, 2018 NY Slip Op 04176 (4th Dep’t 2018) (“With respect to appeal No.

1, we reject defendants' contention that Supreme Court abused its discretion in denying their

motion seeking leave to amend their answers to add the statute of limitations as an affirmative

defense. It is well settled that, ‘[i]n the absence of prejudice or surprise, leave to amend a pleading

should be freely granted’ (citations omitted). Here, plaintiff established in opposition to the motion

that he would be prejudiced by the late amendment of the answer (citations omitted).”).

CPLR 3211(e) -Waiver of personal jurisdiction defense

U.S. Bank N.A. v. Pepe, 161 A.D.3d 811 (2d Dep’t 2018) (“The filing of a notice of appearance in

an action by a party’s counsel serves as a waiver of any objection to personal jurisdiction in the

absence of either the service of an answer which raises a jurisdictional objection, or a motion to

dismiss pursuant to CPLR 3211(a)(8) for lack of personal jurisdiction (citations omitted). Here,

the defendant’s counsel filed a notice of appearance dated September 4, 2012. The record does not

show that the defendant asserted lack of personal jurisdiction in a responsive pleading. Moreover,

the defendant did not move to dismiss the complaint for lack of personal jurisdiction until almost

three years after appearing in the action, after the judgment of foreclosure and sale had been issued.

Under those circumstances, the defendant waived any claim that the court lacked personal

jurisdiction over him in this action (citation omitted).”).

CPLR 3211(e) - Waiver of res judicata and arbitration defenses

Country-Wide Ins. Co. v Gotham Med., P.C., 154 A.D.3d 608, 63 N.Y.S.3d 349 (1st Dep’t 2017)

(“Defendant waived the defenses of res judicata and award and arbitration (citations omitted).

While the arbitral awards in its favor were not issued until after it had filed its answer in this action,

Page 210: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

there is no indication on the record before us that defendant ever moved to amend its answer to

assert either of those defenses.”).

CPLR 3212 - Summary judgment motion

CPLR 3212

David L. Ferstendig, Court of Appeals Splits on Whether Defendant Carried Burden on Summary

Judgment Motion, 673 N.Y.S.L.D. 1, 2 (2016).

In Pullman v. Silverman, 2016 N.Y. Slip Op. 07107 (November 1, 2016), the issue was whether

the medical expert affidavit submitted in support of defendant’s summary judgment motion

adequately addressed plaintiff’s claims of liability. In this medical malpractice action, plaintiff

alleged that he developed a cardiac arrhythmia, which progressed into an AV heart block, because

of the defendant’s negligent administration of Lipitor and the combination of Lipitor and

Azithromycin.

The defendant moved for summary judgment on the issue of causation only. The motion papers

included a medical expert affidavit which characterized the plaintiff’s malpractice allegations as

focusing on “an alleged contraindicated prescription by Dr. Silverman to plaintiff of Lipitor

separately and/or in conjunction with Azithromycin.” Id. at *1. The plaintiff argued in opposition

that the defendant’s expert failed to “address the concurrent azithromycin prescription and did not

cite to any medical research in support of his conclusions about the combined effect.” Id.

The trial court granted the defendant’s summary judgment motion and the Appellate Division

affirmed. Both courts found that the defendant had carried his burden and that the plaintiff’s expert

submissions on causation were inadequate and did not raise an issue of fact.

A majority of the Court of Appeals reversed. The Court found that the defendant did not initially

carry his burden since the defendant’s expert’s affidavit

proffered only conclusory assertions unsupported by any medical research that

defendant’s actions in prescribing both drugs concurrently did not proximately

cause plaintiff’s AV heart block. These conclusory statements did not adequately

address plaintiff’s allegations that the concurrent Lipitor and azithromycin

prescriptions caused plaintiff’s injuries. By ignoring the possible effect of the

azithromycin prescription, defendant’s expert failed to “tender[] sufficient evidence

to demonstrate the absence of any material issues of fact” (citation omitted) as to

proximate causation and, as a result, defendant was not entitled to summary

judgment.

Id. at *2.

Page 211: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

The dissent, however, looked at the same affidavit and found that it had adequately addressed all

of the relevant issues -

The affidavit of defendant’s expert explains that no epidemiological studies even

link Lipitor or other statins to plaintiff’s injury and that an isolated case report—

which, as the expert noted, cannot demonstrate causation (citation omitted)—

showing that Lipitor, in combination with drugs other than Azithromycin, caused a

type of myopathy was not relevant because plaintiff’s medical records revealed that

he did not have myopathy. The expert affidavit sufficiently demonstrated, for

purposes of making a prima facie case, that plaintiff had no pertinent adverse

reaction to Lipitor that could have been exacerbated by the prescription of

Azithromycin, which was the basis of plaintiff’s claim that the combination of

drugs injured him. Contrary to the majority’s conclusion, the expert was not

required to further “address the effect of [A]zithromycin administration alone or in

conjunction with Lipitor” (citation omitted), which is the converse of plaintiff’s

claim, as opposed to his actual claim.

Id. at *5.

CPLR 3212

David L. Ferstendig, Court Holds Defendant Failed to Meet its Burden on Summary Judgment

Motion on Proximate Cause Issue, 674 N.Y.S.L.D. 3 (2017).

In Hain v. Jamison, 2016 N.Y. Slip Op. 08583 (December 22, 2016), late one evening, the

decedent, the plaintiff’s wife, was struck and killed by a vehicle driven by one of the Jamison

defendants (the other was the owner of the vehicle), as she walked in the northbound lane of a rural

road. She had exited her vehicle and entered the road to help a wandering calf that had escaped a

nearby enclosure owned by the defendant Drumm Family Farm Inc. (“Farm”). The complaint

alleged, among other things, that Farm was negligent in failing to properly maintain its fence and

restrain the calf and keep it off of the roadway. Farm and the Jamison defendants answered and

asserted cross claims for contribution and indemnification.

Farm moved for summary judgment, asserting that its alleged negligence was not a proximate

cause of decedent’s death. Instead, the decedent’s intervening and unforeseeable act of leaving her

vehicle and entering the road and the other defendant driver’s negligence were the proximate

causes of the incident.

The trial court denied the motion, holding that it could not determine as a matter of law “that

decedent’s conduct in exiting her vehicle was sufficiently extraordinary and unforeseeable to break

the chain of causation.” Id. at *2. The Appellate Division reversed, however, with a majority of

the court holding that Farm had established that its negligence was not a proximate cause of

decedent’s death because “Farm’s negligence merely furnished the occasion for, but did not cause,

decedent to enter the roadway, where she was struck.” Id.

Page 212: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

The Court of Appeals reversed, noting that the proximate cause element is satisfied when it is

established that defendant’s negligence is a substantial cause of the events resulting in the

plaintiff’s injuries. Where there is an allegation of an intervening act, the question then becomes

whether that “act is a normal or foreseeable consequence of the situation created by the defendant’s

negligence.” Id. at *3. The Court acknowledged that the line between intervening acts severing the

causation chain and those that do not is not precise, and that proximate cause is a fact-specific

determination. Cases holding that intervening acts break the causation chain either involve a

situation where the acts were unforeseeable, or where the defendant’s acts of negligence “had

ceased, and merely fortuitously placed the plaintiff in a location or position in which a secondary

and separate instance of negligence acted independently upon the plaintiff to produce harm.” Id.

at *5.

Farm claimed that the decedent’s decision to leave the safety of her vehicle to retrieve the calf

severed the causal link between its alleged negligence and decedent’s death. Rather, its negligence

merely furnished the occasion for the decedent to be walking in the roadway. In opposition, it was

argued that decedent’s action in exiting the vehicle was reasonably foreseeable. The Court of

Appeals held that neither of the two circumstances discussed above applied here to break the

causation chain. The Court concluded that

[t]he very same risk that rendered negligent the Farm’s alleged failure to restrain or

retrieve its farm animal – namely, that the wandering calf would enter a roadway

and cause a collision – was, in fact, the risk that came to fruition. That the Farm

could not predict the exact manner in which the calf would cause injury to a

motorist does not preclude liability because the general risk and character of

injuries was foreseeable. Furthermore, although decedent had apparently stopped

her vehicle without striking the calf, the animal was still loose in the roadway and,

under the circumstances, the danger and risk of an accident had not yet passed. The

Farm’s alleged negligence – i.e., its failure to securely restrain and/or retrieve its

wandering calf – was not a completed occurrence that merely fortuitously placed

decedent in a relatively safe position or location where an independent and

unrelated act of negligence operated to bring about her death. Thus, we cannot say,

as a matter of law, that the Farm’s negligence merely furnished the occasion for the

collision or that the accident resulting in decedent’s death did not flow from the

Farm’s negligent conduct in permitting its calf to stray (citations omitted).

Id. at *6.

The Court stated that the factfinder could find that the decedent’s action in leaving her vehicle and

entering the road to remove the calf was a “normal or foreseeable consequence of the situation

created by defendant’s negligence” -

[A] wandering farm animal may be large enough to obstruct a roadway and,

regardless of size, may impede traffic to a significant degree. Such an animal may

cause substantial harm if struck by a vehicle or when a driver acts to avoid impact.

Page 213: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

In addition, a factfinder may determine that a person, under the particular

circumstances of a case, may reasonably consider it safe to approach the wandering

animal.

Id. at *7.

CPLR 3212 - Trial court properly denied motion for summary judgment as untimely

Chmielowiec v. Blackwood, 144 A.D.3d 425, 40 N.Y.S.3d 107 (1st Dep’t 2016) (“Appellants’

assertion that they were unaware that the case had been assigned to Justice Guzman’s part before

they moved for summary judgment is unsupported by the record and therefore cannot be

considered (citation omitted). The assertion is also belied by their notice of motion, which is in the

record, and which identifies the IAS Part and judge to which the motion should be referred. Since

appellants provided no explanation for filing their motion for summary judgment outside the time

period set by the rules of the assigned IAS judge, the motion court did not improvidently exercise

its discretion in denying the motion as untimely (citations omitted).”).

CPLR 3212 - Motion for summary judgment should have been denied as untimely

Cullity v. Posner, 143 A.D.3d 513, 38 N.Y.S.3d 796 (1st Dep’t 2016) (“The motion should have

been denied as untimely. The motion court’s rules required dispositive motions to be filed within

60 days of the filing of a note of issue. Defendant filed the motion papers nine days after the time

to do so had expired, rendering the motion untimely (citations omitted). Defendants’ failure to

address the missed filing deadline or offer, let alone show, good cause for the delay in filing, is

fatal to their motion (citation omitted).”).

CPLR 3212 - Trial court should have denied summary judgment motion on timeliness

grounds

Nationstar Mtge., LLC v. Weisblum, 143 A.D.3d 866, 39 N.Y.S.3d 491 (2d Dep’t 2016) (“Here,

the plaintiff’s motion was made 128 days after filing of the note of issue, or 8 days after the 120-

day deadline imposed by the Supreme Court in a notice to resume prosecution dated December

17, 2013. The plaintiff failed to demonstrate, in its moving papers, good cause for not filing the

motion in a timely manner, as directed by the court citation omitted). The court improvidently

exercised its discretion in considering that branch of the plaintiff’s motion which was for summary

judgment on the complaint and in considering the good cause arguments raised for the first time

in the plaintiff’s reply papers (citations omitted). Accordingly, the Supreme Court should have

denied that branch of the plaintiff’s motion which was for summary judgment on the complaint.”).

CPLR 3212(a) - Counsel’s excuse that attorney handling the matter had been on trial for

two weeks does not constitute good cause for late summary judgment motion

Kenny v. Turner Constr. Co., 155 A.D.3d 479, 65 N.Y.S.3d 17 (1st Dep’t 2017) (“The court

providently exercised its discretion in denying as untimely Corporate Source’s motion for

summary judgment dismissing the complaint as against it (citation omitted). Counsel’s excuse that

Page 214: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

the attorney handling the matter had been on trial for two weeks does not constitute good cause,

i.e., ‘a satisfactory explanation for the untimeliness’ (citation omitted). Nor does the fact that the

case is complicated and voluminous constitute good cause. We note that 14 other parties to the

case made timely motions.”).

CPLR 3212(a) - Prior court orders and stipulations between the parties show that the parties,

with the court's consent, charted a procedural course that deviated from the path established

by the CPLR and allowed for defendants' filing of this round of summary judgment motions

more than 120 days after the filing of the note of issue (citation omitted).

Reeps v. BMW of N. Am., LLC, 160 A.D.3d 603, 72 N.Y.S.3d 451 (1st Dep’t 2018).

CPLR 3212 - Admissibility of unsigned deposition transcripts

Gallway v. Muintir, LLC, 142 A.D.3d 948, 38 N.Y.S.3d 28 (2d Dep’t 2016) (“The plaintiff’s

challenges to the admissibility of the defendants’ evidence are without merit. The plaintiff’s

unsigned deposition was admissible, since it was submitted by the plaintiff herself in opposition

to the defendant’s motion, thus acknowledging its accuracy (citation omitted). Additionally, the

defendants cured any defects in the admissibility of the deposition transcripts submitted in support

of their motion by submitting, in reply, the reporter’s certification of those transcripts and the fact

that the depositions were forwarded to the parties for review and signature (citations omitted).”).

CPLR 3212 - Plaintiffs established prima facie entitlement to judgment as a matter of law

Estate of Hansraj v. Sukhu, 145 A.D.3d 755, 43 N.Y.S.3d 127 (2d Dep’t 2016) (“Here, the

plaintiffs established their prima facie entitlement to judgment as a matter of law by submitting,

among other things, the five promissory notes, which each contained an unequivocal and

unconditional obligation to pay, and proof of the defendants’ failure to make payments on the notes

in accordance with their terms (citations omitted). In opposition, the defendants failed to raise a

triable issue of fact. Their conclusory and unsubstantiated assertions that the decedent, Augustus

Hansraj, and the defendant Ragobar D. Sukhu had entered into a joint venture to invest in real

estate were insufficient to defeat the plaintiffs’ entitlement to summary judgment (citations

omitted).”).

CPLR 3212 - Inadmissible documents alone cannot be sole basis of opposition

Erkan v. McDonald’s Corp., 146 A.D.3d 466, 468, 44 N.Y.S.3d 429, 431 (1st Dep’t 2017)

(“Records without proper certification may be considered in opposition to a motion for summary

judgment, but only when they are not the sole basis for the court’s determination (citations

omitted). Here, the unverified documents and unsworn statement are the only evidence to

challenge details of plaintiff’s version of the accident and therefore should not be considered. ‘The

mere hope that evidence sufficient to defeat a motion for summary judgment may be uncovered

during the discovery process is insufficient to deny such a motion’ (citation omitted).”).

Page 215: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

CPLR 3212(a) - “Where, as here, a defendant has served a notice of appearance, but has not

served ‘a responsive pleading,’ in this case, an answer (see CPLR 3011), issue has not been

joined, and the plaintiff is barred from seeking summary judgment”

Jbbny, LLC v. Begum, 156 A.D.3d 769, 67 N.Y.S.3d 284 (2d Dep’t 2017) (“Contrary to the

plaintiff’s contention, the Supreme Court properly denied those branches of its motion which were

for summary judgment on the complaint and for an order of reference. ‘A motion for summary

judgment may not be made before issue is joined (citation omitted and the requirement is strictly

adhered to’ (citations omitted). Where, as here, a defendant has served a notice of appearance, but

has not served ‘a responsive pleading,’ in this case, an answer (citation omitted), issue has not been

joined, and the plaintiff is barred from seeking summary judgment (citations omitted).

Accordingly, the court was powerless to grant summary judgment (citation omitted).”).

CPLR 3212(b) - Failure to attach petition is forgiven

Matter of Bordell, 2018 NY Slip Op 04404 (3d Dep’t 2018) (“For the first time on appeal, Basic

contends that petitioner's motion was procedurally defective because it did not include a copy of

the petition (citation omitted). Even had this contention been preserved for our review (citations

omitted), we would find that the omission was not fatal given that the petition was submitted in

connection with the earlier summary judgment motion and was before Surrogate's Court (citations

omitted). Moreover, inasmuch as we may take judicial notice of the record in the prior appeal,

which includes the petition (citations omitted), the record before us is ‘sufficiently complete to

address the merits’ (citations omitted).”).

CPLR 3212(b) - Court cannot search record and award relief based on claim or defense not

related to subject of motion

Board of Mgrs. of W. Amherst Off. Park Condominium v. RMFSG, LLC, 153 A.D.3d 1611, 61

N.Y.S.3d 401 (4th Dep’t 2017) (“[A]part from the affirmative defense of payment, which is

discussed above, we do not address plaintiff’s contentions with respect to the affirmative defenses

raised in the answers. In its motions for summary judgment, plaintiff did not expressly challenge

those affirmative defenses and, in opposition to the motions, defendant did not rely upon them.

We may not search the record and award relief based upon a claim or defense that is not related to

the subject of the motion (citations omitted).”).

CPLR 3212(b) - Searching the record and granting summary judgment

City of New York v. Wausau Underwriters Ins. Co., 145 A.D.3d 614, 45 N.Y.S.3d 3 (1st Dep’t

2016) (“With respect to the fifth action, upon searching the record (CPLR 3212[b]), we grant

summary judgment and declare that Wausau has no duty to defend the City or reimburse its defense

costs in that underlying action.”).

CPLR 3212(b)

David L. Ferstendig, New York Court of Appeals Cannot Search Record, 684 N.Y.S.L.D. 3 (2017).

Page 216: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

In Princes Point LLC v Muss Dev. L.L.C., 2017 NY Slip Op 07298 (October 19, 2017), the plaintiff

requested a “reverse” summary judgment, or more accurately, that the Court of Appeals “search

the record” and grant it summary judgment. CPLR 3212(b) provides that “[i]f it shall appear that

any party other than the moving party is entitled to a summary judgment, the court may grant such

judgment without the necessity of a cross-motion (emphasis added).” However, as the Court here

noted, although the trial court and Appellate Division can search the record and grant summary

judgment to a nonmoving party under CPLR 3212(b), the Court of Appeals cannot. See Merritt

Hill Vineyards, Inc. v. Windy Heights Vineyard, Inc., 61 N.Y.2d 106, 110-11 (1984). Nevertheless,

movants need to be aware of this “danger” at the trial court and Appellate Division level. Thus,

when speaking with a client about the benefits, costs and risks of moving for summary judgment,

it may be necessary to advise that the “worst case scenario” may not be just the denial of the

motion, even where the opposing party has not made its own motion (or appealed).

CPLR 3212(b) / 3101(d)(1)(i) - Failure to provide timely expert witness disclosure under

CPLR 3101(d)(1)(i) does not preclude consideration of expert afidavits on subsequent

summary judgment motion- AS PER 2015 AMENDMENT

Moreland v. Huck, 156 A.D.3d 1396, 65 N.Y.S.3d 861 (4th Dep’t 2017) (“We affirm the order for

reasons stated in the decision at Supreme Court. We write only to address plaintiff’s contention

that the court should have granted her cross motion to strike the affidavits of the three subject

witnesses because defendants failed to provide timely expert witness disclosure for those witnesses

pursuant to CPLR 3101 (d) (1) (i). We reject that contention. Even assuming, arguendo, that each

of the three witnesses provided expert testimony in his affidavit, we note that CPLR 3212 (b)

provides in relevant part that, “[w]here an expert affidavit is submitted in support of, or opposition

to, a motion for summary judgment, the court shall not decline to consider the affidavit because

an expert exchange pursuant to [CPLR 3101 (d) (1) (i)] was not furnished prior to the submission

of the affidavit.”).

CPLR 3212(f) - the Supreme Court properly denied, as premature, summary judgment

motiot, with leave to renew upon the completion of discovery.

Salameh v. Yarkovski, 156 A.D.3d 659, 64 N.Y.S.3d 569 (2d Dep’t 2017) (“Here, the defendant

Cab East, LLC (hereinafter Cab), moved for summary judgment dismissing the complaint insofar

as asserted against it less than two months after the plaintiffs commenced this action, prior to the

exchange of any discovery. Furthermore, in this action to recover damages for personal injuries

arising from a motor vehicle accident, the submissions in opposition to Cab’s motion sufficiently

established that facts may exist that would demonstrate that Cab owned one of the vehicles

involved in the accident. Thus, an opportunity should be provided for the parties to conduct

discovery which may result in disclosure of relevant information. Accordingly, the Supreme Court

properly denied, as premature, Cab’s motion for summary judgment dismissing the complaint

insofar as asserted against it, with leave to renew upon the completion of discovery (citations

omitted).”).

Page 217: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

CPLR 3212(f) - Motion was premature; made before anyone had been deposed

Brielmeier v. Leal, 145 A.D.3d 753, 43 N.Y.S.3d 134 (2d Dep’t 2016) (“‘CPLR 3212 (f) permits

a court to deny a motion for summary judgment where it appears that the facts essential to oppose

the motion exist but cannot then be stated’ (citations omitted). ‘This is especially so where the

opposing party has not had a reasonable opportunity for disclosure prior to the making of the

motion’ (citations omitted). Here, Publishers moved for summary judgment prematurely, shortly

after the plaintiffs commenced their action against it and before anyone had been deposed. The

plaintiffs demonstrated that discovery, including the depositions of Leal and someone from

Publishers who had dealings with Leal, may result in disclosure of evidence relevant to the issue

of whether Leal, the defendant driver, was Publishers’s employee or an independent contractor

(citations omitted).”).

CPLR 3212(f) - Facts unavailable to opposing party – mere hope or speculation is not enough

HSBC Bank USA, N.A. v. Armijos, 151 A.D.3d 943, 57 N.Y.S.3d 205 (2d Dep’t 2017) (“In

opposition, the appellant failed to raise a triable issue of fact. ‘[A] grant of summary judgment is

not premature merely because discovery has not been completed’ (citations omitted). Here, the

appellant failed to establish what additional information he hoped to glean from the entire

mortgage file in its original form that could not be gleaned from the original note and mortgage

and the portions of the mortgage file that the plaintiff had provided (citations omitted). ‘The mere

hope or speculation that evidence sufficient to defeat a motion for summary judgment may be

uncovered during the discovery process is insufficient to deny the motion’ (citations omitted).

Moreover, the appellant’s bald assertion of forgery in his affidavit in opposition, in the absence of

factual assertions to support such a claim, was inadequate to raise a triable issue of fact (citations

omitted).”).

CPLR 3213 - Summary judgment in lieu of complaint

CPLR 3213 - Unequivocal and unconditional obligation to pay

Estate of Hansraj v. Sukhu, 145 A.D.3d 755, 43 N.Y.S.3d 127 (2d Dep’t 2016) (“Here, the

plaintiffs established their prima facie entitlement to judgment as a matter of law by submitting,

among other things, the five promissory notes, which each contained an unequivocal and

unconditional obligation to pay, and proof of the defendants’ failure to make payments on the notes

in accordance with their terms (citations omitted). In opposition, the defendants failed to raise a

triable issue of fact. Their conclusory and unsubstantiated assertions that the decedent, Augustus

Hansraj, and the defendant Ragobar D. Sukhu had entered into a joint venture to invest in real

estate were insufficient to defeat the plaintiffs’ entitlement to summary judgment (citations

omitted).”).

Page 218: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

CPLR 3213 - Unopposed motion for summary judgment in lieu of complaint- plaintiff still

bore the burden of establishing that the defendants were properly served with the summons

and motion, but not to furnish proof of the Florida court’s personal jurisdiction over them

TCA Global Credit Master Fund, L.P. v. Puresafe Water Sys., Inc., 151 A.D.3d 1098, 58 N.Y.S.3d

444 (2d Dep’t 2017) (“The plaintiff commenced this action by motion for summary judgment in

lieu of complaint pursuant to CPLR 3213 to enforce a default judgment of the Circuit Court of the

17th Judicial Circuit in and for Broward County, Florida (hereinafter the Florida court). Service of

process on the defendants was made by delivery to the Secretary of State pursuant to Business

Corporation Law § 306(b). The defendants failed to appear or oppose the motion. However, in the

order appealed from, the Supreme Court determined that the plaintiff failed to demonstrate that the

Florida court had personal jurisdiction over the defendants, and expressed concern over the

effectiveness of the service of process in that action and in this action. The court denied the

plaintiff’s motion without prejudice to renewal upon proper proof of the Florida court’s personal

jurisdiction over the defendants in the Florida action and proof of service of the order appealed

from upon each defendant by any method available pursuant to CPLR § 311, except by delivery

to the Secretary of State… Here, there was no jurisdictional challenge by the defendants.

Accordingly, although the Supreme Court properly denied the plaintiff’s motion without prejudice

to renewal upon proper proof, it erred in requiring the plaintiff to furnish proof of the Florida

court’s personal jurisdiction over them. Instead, the Supreme Court should have required only

proof of additional service in compliance with CPLR 3215(g)(4) (citations omitted). As the

proponent of an unopposed motion for summary judgment in lieu of complaint, the plaintiff still

bore the burden of establishing, inter alia, that the defendants were properly served with the

summons and motion (citations omitted).”).

CPLR 3213 - Documents did not contain unconditional promise to pay sum certain

Oak Rock Fin., LLC v. Rodriguez, 148 A.D.3d 1036, 50 N.Y.S.3d 108 (2d Dep’t 2017) (“Although

an unconditional guarantee may qualify as an instrument for the payment of money only (citations

omitted), here, neither the guaranty nor the underlying agreement relied upon by the plaintiff in

support of its motion contains an unconditional promise to pay a sum certain, signed by the maker

and due on demand or at a definite future time (citation omitted). Since proof outside of the

guaranty and underlying agreement is required to establish the amount of Platinum’s obligation to

the plaintiff pursuant to the agreement, the plaintiff’s motion for summary judgment in lieu of

complaint should have been denied, with the motion and answering papers deemed to be the

complaint and answer, respectively (citations omitted).”).

CPLR 3213 - Motion denied because reference to extrinsic evidence was required

PDL Biopharma, Inc. v. Wohlstadter, 147 A.D.3d 494, 47 N.Y.S.3d 25 (1st Dep’t 2017) (“It is

true that generally, an unconditional guaranty qualifies as an instrument amenable to CPLR 3213

treatment (citation omitted). However, here, it is unclear whether that is the case. For one thing,

the documents guarantee not only ‘payment’ but also ‘performance’ of the borrower’s

‘obligations.’ …This extent of reference to extrinsic evidence exceeds any permissible limited

reference to outside sources allowable under CPLR 3213. Given the foregoing necessity of

Page 219: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

considering the parties’ complex arrangements, agreements and circumstances, and the inability

to determine by simple reference to the guaranties whether defendants remained liable by their

terms to pay a sum certain, plaintiff’s motion must be denied.”).

CPLR 3213 - Proof outside of the agreements requires denial of motion

Oak Rock Fin., LLC v. Rodriguez, 148 A.D.3d 1036, 50 N.Y.S.3d 108 (2d Dep’t 2017) (“Although

an unconditional guarantee may qualify as an instrument for the payment of money only (citations

omitted), here, neither the guaranty nor the underlying agreement relied upon by the plaintiff in

support of its motion contains an unconditional promise to pay a sum certain, signed by the maker

and due on demand or at a definite future time (citation omitted). Since proof outside of the

guaranty and underlying agreement is required to establish the amount of Platinum’s obligation to

the plaintiff pursuant to the agreement, the plaintiff’s motion for summary judgment in lieu of

complaint should have been denied, with the motion and answering papers deemed to be the

complaint and answer, respectively (citations omitted).”).

CPLR 3213 - Extent of reference to extrinsic evidence exceeds permissible limited reference

to outside sources allowable under CPLR 3213.

PDL Biopharma, Inc. v. Wohlstadter, 147 A.D.3d 494, 47 N.Y.S.3d 25 (1st Dep’t 2017) (“It is

true that generally, an unconditional guaranty qualifies as an instrument amenable to CPLR 3213

treatment (citation omitted). However, here, it is unclear whether that is the case. For one thing,

the documents guarantee not only ‘payment’ but also ‘performance’ of the borrower’s

‘obligations.’ …This extent of reference to extrinsic evidence exceeds any permissible limited

reference to outside sources allowable under CPLR 3213. Given the foregoing necessity of

considering the parties’ complex arrangements, agreements and circumstances, and the inability

to determine by simple reference to the guaranties whether defendants remained liable by their

terms to pay a sum certain, plaintiff’s motion must be denied.”).

CPLR 3213 - Used to enforce a default judgment

TCA Global Credit Master Fund, L.P. v. Puresafe Water Sys., Inc., 151 A.D.3d 1098, 58 N.Y.S.3d

444 (2d Dep’t 2017) (“The plaintiff commenced this action by motion for summary judgment in

lieu of complaint pursuant to CPLR 3213 to enforce a default judgment of the Circuit Court of the

17th Judicial Circuit in and for Broward County, Florida (hereinafter the Florida court). Service of

process on the defendants was made by delivery to the Secretary of State pursuant to Business

Corporation Law § 306(b). The defendants failed to appear or oppose the motion. However, in the

order appealed from, the Supreme Court determined that the plaintiff failed to demonstrate that the

Florida court had personal jurisdiction over the defendants, and expressed concern over the

effectiveness of the service of process in that action and in this action. The court denied the

plaintiff’s motion without prejudice to renewal upon proper proof of the Florida court’s personal

jurisdiction over the defendants in the Florida action and proof of service of the order appealed

from upon each defendant by any method available pursuant to CPLR § 311, except by delivery

to the Secretary of State… Here, there was no jurisdictional challenge by the defendants.

Accordingly, although the Supreme Court properly denied the plaintiff’s motion without prejudice

Page 220: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

to renewal upon proper proof, it erred in requiring the plaintiff to furnish proof of the Florida

court’s personal jurisdiction over them. Instead, the Supreme Court should have required only

proof of additional service in compliance with CPLR 3215(g)(4) (citations omitted). As the

proponent of an unopposed motion for summary judgment in lieu of complaint, the plaintiff still

bore the burden of establishing, inter alia, that the defendants were properly served with the

summons and motion (citations omitted).”).

CPLR 3215 - Default judgment

CPLR 3215(c) - How to waive right to seek dismissal of action as abandoned

A defendant can waive its right to obtain a dismissal of an action as abandoned under CPLR

3215(c) by his or her conduct, such as “serving an answer or taking any other steps which may be

viewed as a formal or informal appearance.” US Bank N.A. v. Gustavia Home, LLC, 156 A.D.3d

843, 67 N.Y.S.3d 242 (2d Dep’t 2017) (“Here, National City Bank, Gustavia’s predecessor in

interest, waived its right to seek a dismissal pursuant to CPLR 3215(c) by serving a notice of

appearance and waiver, which constituted a formal appearance in the action, and by its stipulation

dated October 23, 2015 (citations omitted).”). See Bank of Am., N.A. v. Rice, 155 A.D.3d 593,

63 N.Y.S.3d 486 (2d Dep’t 2017) (“Here, the defendant Gustavia Home, LLC, waived its right to

seek dismissal of the complaint insofar as asserted against it pursuant to CPLR 3215(c) by filing a

notice of appearance (citations omitted). Accordingly, the Supreme Court properly denied that

branch of its motion which was pursuant to CPLR 3215(c) to dismiss the complaint insofar as

asserted against it as abandoned.”).

CPLR 3215(c) - Defendant’s belated service of answer after original motion, inter alia,

pursuant to CPLR 3215(c) to dismiss the complaint as abandoned had been denied, did not

constitute a waiver of his right to seek dismissal of the complaint pursuant to CPLR 3215(c)

Kim v. Wilson, 150 A.D.3d 1019, 55 N.Y.S.3d 334 (2d Dep’t 2017) (“Here, the plaintiff failed to

offer a reasonable excuse as to why she did not seek leave to enter a default judgment. The death

of the plaintiff’s former attorney and the automatic stay of the proceeding (citation omitted) did

not constitute a reasonable excuse, as the plaintiff’s former attorney died in May 2015, almost 3½

years after the one-year statutory time period had expired (citations omitted). Contrary to the

plaintiff’s contention, the defendant’s belated service of an answer after his original motion, inter

alia, pursuant to CPLR 3215(c) to dismiss the complaint as abandoned had been denied, did not

constitute a waiver of his right to seek dismissal of the complaint pursuant to CPLR 3215(c)

(citations omitted). Accordingly, upon reargument and renewal, the Supreme Court should have

granted that branch of the defendant’s motion which was pursuant to CPLR 3215(c) to dismiss the

complaint as abandoned.”).

CPLR 3215(c) - Abandoned action- examples

Checksfield v. Berg, 148 A.D.3d 1376, 49 N.Y.S.3d 205 (3d Dep’t 2017) (“Assuming without

deciding that plaintiff articulated a potentially meritorious claim against defendant, he did not

Page 221: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

provide a reasonable excuse for his delay in pursuing it. Plaintiff stated his legally unsupported

belief that the case was ‘on indefinite extension’ after the attorney who prepared the complaint

withdrew from representation. Plaintiff then explained that, after defendant ‘wouldn’t talk’ to

another attorney he consulted, he embarked upon ill-defined efforts to ‘check into [defendant’s]

financials’ out of court. Even had these assertions been backed by any competent proof, however,

they in no way justify over a decade of procedural inaction on plaintiff’s part (citations omitted).

Thus, in the absence of a reasonable excuse for the delay, Supreme Court properly dismissed the

action as abandoned citations omitted).”).

Wells Fargo Bank, N.A. v. Bonanno, 146 A.D.3d 844, 45 N.Y.S.3d 173 (2d Dep’t 2017) (“Here,

although it is undisputed that the appellant defaulted in September 2011, the plaintiff did not

initiate proceedings for the entry of a default judgment until March 2014. Thus, the plaintiff was

required to establish ‘sufficient cause’ why the complaint should not be dismissed, which requires

a showing that it had a reasonable excuse for the delay in taking proceedings for the entry of a

default judgment, and that it has a potentially meritorious cause of action (citations omitted). Here,

while the plaintiff and the appellant were engaged in mandatory foreclosure settlement conferences

for a period of approximately three months in 2012, at the conclusion of the second settlement

conference on May 9, 2012, the plaintiff was authorized to proceed with the prosecution of this

action. However, the plaintiff took no steps to initiate proceedings for entry of a default judgment

until nearly two years later, and it failed to demonstrate a reasonable excuse for this delay (citations

omitted). Accordingly, the Supreme Court should have denied that branch of the plaintiff’s motion

which was for an order of reference insofar as asserted against the appellant, and granted that

branch of the appellant’s cross motion which was pursuant to CPLR 3215(c) to dismiss the

complaint insofar as asserted against her as abandoned.”).

HSBC Bank USA, N.A. v. Grella, 145 A.D.3d 669, 44 N.Y.S.3d 56 (2d Dep’t 2016) (“‘The

language of CPLR 3215(c) is not, in the first instance, discretionary, but mandatory, inasmuch as

courts shall’ dismiss claims (CPLR 3215[c]) for which default judgments are not sought within

the requisite one-year period, as those claims are then deemed abandoned’ (citations omitted). The

failure to timely seek a default may be excused if ‘sufficient cause is shown why the complaint

should not be dismissed’ (CPLR 3215[c]), which requires the plaintiff to proffer a reasonable

excuse for the delay in timely moving for a default judgment and to demonstrate that the cause of

action is potentially meritorious (citations omitted). Here, the defendant was personally served

with process on May 19, 2011, and she defaulted by failing to serve an answer within 20 days (see

CPLR 3012[a]). However, the plaintiff took no steps to initiate proceedings for the entry of a

default judgment at any point before the defendant moved in May 2014 to dismiss the complaint

insofar as asserted against her as abandoned. The fact that the case was in the mandatory settlement

conference part (see 22 NYCRR 202.12-a[c][7]) from January 2012 until December 19, 2012, did

not constitute a reasonable excuse for the plaintiff’s protracted delay, since the case was released

from that part more than a year before the defendant’s May 2014 motion (citations omitted).

Although the Supreme Court issued a stay of all proceedings in the action on April 15, 2014, that

stay did not constitute a reasonable excuse because it was issued nearly two years after the

defendant defaulted, and more than one year after mandatory settlement conferences had ended.

The plaintiff’s vague and unsubstantiated assertions that it withheld prosecution until such time as

it could assess whether the mortgaged premises had been damaged by Hurricane Sandy, and that

Page 222: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

it spent a year reviewing and processing unspecified documentation, were also insufficient to

establish a reasonable excuse for its failure to initiate proceedings for over three years after the

defendant’s default. Since the plaintiff failed to meet its burden to show sufficient cause why the

complaint should not be dismissed, the court should have granted the defendant’s motion to

dismiss the complaint insofar as asserted against her (citations omitted).”).

CPLR 3215(c) - Plaintiff’s motion for reference evidenced intent to continue prosecution of

action

US Bank N.A. v. Brown, 147 A.D.3d 428, 46 N.Y.S.3d 107 (1st Dep’t 2017) (“The court correctly

found that plaintiff took ‘proceedings for the entry of judgment within one year after the

defendant’s default’ (see CPLR 3215[c]). Plaintiff made its first application for an order of

reference within the statutory time limitation. The fact that this application was denied because

plaintiff attempted to withdraw it without prejudice is of no moment, since the statute merely

requires that the party needs only to initiate proceedings, ‘and these proceedings manifest an intent

not to abandon the case’ (citations omitted). Plaintiff clearly and unequivocally indicated that it

intended to continue the prosecution of this case at the time it made its motion for a reference.

Such a timely application ‘even if unsuccessful’ will not result in the dismissal of the complaint

‘as abandoned pursuant to CPLR 3215(c)’ (citations omitted).”) (citing Weinstein, Korn &

Miller).

CPLR 3215(c) - Plaintiff initiated proceedings for entry of default judgement

Wells Fargo Bank, N.A. v. Daskal, 142 A.D.3d 1071, 37 N.Y.S.3d 353 (2d Dep’t 2016) (“Here, in

July 2008, the plaintiff took the preliminary step toward obtaining a default judgment of

foreclosure and sale by moving, inter alia, for an order of reference within two months after

Daskal’s default in appearing or answering. Thus, the plaintiff initiated proceedings for entry of

the default judgment of foreclosure and sale within one year of Daskal’s default (citations omitted)

and demonstrated that it did not abandon the action (citations omitted).”) (citing Weinstein, Korn,

and Miller).

CPLR 3215(c) - Sufficient excuse

HSBC Bank USA, N.A. v. Hasis, 154 A.D.3d 832, 62 N.Y.S.3d 467 (2d Dep’t 2017) (“However,

‘[f]ailure to take proceedings for entry of judgment may be excused . . . upon a showing of

sufficient cause,’ which requires the plaintiff to ‘demonstrate that it had a reasonable excuse for

the delay in taking proceedings for entry of a default judgment and that it has a potentially

meritorious action’ (citations omitted). Under the circumstances present here, including the closure

of the law firm that previously represented the plaintiff and a Chapter 7 bankruptcy filing by the

defendant, we agree with the Supreme Court that the plaintiff showed a reasonable excuse for its

delay in proceeding toward a default judgment (citations omitted).”).

Page 223: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

CPLR 3215(c) - Failure to demonstrate a reasonable excuse for her delay in moving for a

default judgment

Ibrahim v. Nablus Sweets Corp., 161 A.D.3d 961 (2d Dep’t 2018) (“The Supreme Court

providently exercised its discretion in rejecting the plaintiff’s excuse of law office failure and

properly, in effect, directed dismissal of the complaint insofar as asserted against the defendants

as abandoned pursuant to CPLR 3215(c). The plaintiff’s excuse of law office failure did not rise

to the level of a reasonable excuse, as it was vague, conclusory, and unsubstantiated (citations

omitted). The excuse was contained in a brief paragraph in the supporting affirmation of an

associate who stated, in sum and substance, that the attorney who commenced the action left the

employ of the law firm of record, and the plaintiff’s file was only discovered in May 2016 when

the firm was relocating its offices. There was no affirmation from a principal of the law firm and

no indication in the associate’s affirmation that he had any personal knowledge of the purported

law office failure or that he was even employed by the firm at the time it allegedly occurred. The

one-year period to move for the entry of a default judgment lapsed in August 2015, and there is no

indication that the attorney had left prior thereto. Since the plaintiff failed to demonstrate a

reasonable excuse for her delay in moving for a default judgment, the Supreme Court providently

exercised its discretion in denying that branch of the plaintiff’s motion which was pursuant to

CPLR 2004 for an extension of time to move for a default judgment (citation omitted).”).

CPLR 3215(c) - Plaintiff’s ex parte motion for an order of reference, the preliminary step

toward obtaining a default judgment of foreclosure and sale was initiated, and therefore,

the action was not abandoned

Bank of N.Y. Mellon v. Shterenberg, 153 A.D.3d 1310, 61 N.Y.S.3d 304 (2d Dep’t 2017) (“In July

2008, the plaintiff commenced this mortgage foreclosure action and, by order dated November 26,

2010, the Supreme Court granted the plaintiff’s ex parte motion for an order of reference. By order

dated October 8, 2013, following further proceedings, the court, sua sponte, directed dismissal of

the complaint as abandoned pursuant to CPLR 3215(c). In March 2015, the plaintiff moved to

vacate the order dated October 8, 2013, and to restore the action to the trial calendar, arguing, inter

alia, that the issuance of new mortgage review requirements by the Office of Court Administration

had caused extensive and unforeseen delays in the foreclosure proceedings. The Supreme Court

denied the motion. We reverse. The Supreme Court erred in, sua sponte, directing dismissal of the

complaint pursuant to CPLR 3215(c). ‘A court’s power to dismiss a complaint, sua sponte, is to

be used sparingly and only when extraordinary circumstances exist to warrant dismissal’ (citations

omitted). There were no extraordinary circumstances warranting dismissal of the complaint

(citation omitted). In November 2010, when the Supreme Court granted the plaintiff’s ex parte

motion for an order of reference (see RPAPL 1321[1]), the preliminary step toward obtaining a

default judgment of foreclosure and sale was initiated, and therefore, the action was not abandoned

(citation omitted).”).

CPLR 3215(f) - Failure to comply does not render judgment a nullity

NYCTL 1998-2 Trust v. Ocean Gate Estate Homeowners Assn., Inc., 143 A.D.3d 683, 38 N.Y.S.3d

599 (2d Dep’t 2016) (“Contrary to the defendant’s contention, the plaintiff’s alleged failure to

Page 224: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

comply with CPLR 3215(f) does not render the judgment a nullity (citations omitted). Moreover,

the plaintiff was not required to serve an additional copy of the summons and complaint pursuant

to CPLR 3215(g)(4) before obtaining a default judgment against the defendant, since this is an

action affecting title to real property (citation omitted).”).

CPLR 3215(g)(1) - Conflict in Appellate Division Departments as to whether the failure to

provide the requisite five-day notice to a defendant who has appeared in the action is a

jurisdictional defect

There is a dispute among the Appellate Division Departments as to whether the failure to provide

the requisite five-day notice to a defendant who has appeared in the action is a jurisdictional defect

depriving the defendant of a substantial right and the court of the authority to hear the motion. The

First Department has held that the failure to give the notice required a new inquest. See Walker v.

Foreman, 104 A.D.3d 460, 963 N.Y.S.2d 625 (1st Dep’t 2013). The Second Department recently

held that the failure to give notice “is a jurisdictional defect that deprives the court of the authority

to entertain a motion for leave to enter a default judgment.” Paulus v. Christopher Vacirca, Inc.,

128 A.D.3d 116, 6 N.Y.S.3d 572 (2d Dep’t 2015). The Third Department found that the failure

to provide notice standing alone did not warrant vacatur of the default judgment. See Fleet Fin. v.

Nielsen, 234 A.D.2d 728, 650 N.Y.S.2d 904 (3d Dep’t 1996). The Fourth Department, while being

a bit inconsistent in its holdings, has recently settled in on finding the failure to be a jurisdictional

defect meriting vacatur of the default judgment. See Curto v. Diehl, 87 A.D.3d 1374, 929 N.Y.S.2d

901 (4th Dep’t 2011). See also Weinstein, Korn & Miller, New York Civil Practice: CPLR P

3215.37.

Citimortgage, Inc. v. Reese, 2018 NY Slip Op 04527 (2d Dep’t 2018) (“The defendant was entitled

to notice of the plaintiff's motions for an order of reference and for a judgment of foreclosure and

sale pursuant to CPLR 3215(g)(1), which provides, in relevant part, that such notice to a defendant

who has not appeared is required ‘if more than one year has elapsed since the default.’ Here, the

defendant defaulted in November 2009, and the plaintiff moved for an order of reference in March

2013, more than three years later. Contrary to the plaintiff's contention, the issue of its failure to

comply with CPLR 3215(g)(1) may be raised for the first time on appeal (citations omitted). The

failure to give a party proper notice of a motion deprives the court of jurisdiction to entertain the

motion and renders the resulting order void (citations omitted). Accordingly, since the Supreme

Court lacked jurisdiction to entertain the plaintiff's motions, it should have granted those branches

of the defendant's motion which were to vacate the order of reference and the judgment of

foreclosure and sale (citation omitted).”).

CPLR 3215(g)(3)- Additional notice requirement under CPLR 3215(g)(3)

Bank of Am., N.A. v. Diaz, 160 A.D.3d 457, 75 N.Y.S.3d 147 (1st Dep’t 2018) (“Because the

RPAPL provisions cited by both plaintiff and defendant were enacted after CPLR 3215(g)(3), the

clearest indicator of whether a non-owner-occupied home is a ‘residential mortgage’ for the

purpose of the additional notice requirement is the statute itself. CPLR 3215(g)(3) provides that

when a default judgment ‘based upon nonappearance is sought against a natural person in an action

based upon nonpayment of a contractual obligation,’ that person is entitled to additional notice of

Page 225: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

the action, which is provided by mailing the summons to his or her place of residence. The

provision was enacted out of concern for ‘unsophisticated homeowners’ who ‘do not receive

sufficient notice that they are about to lose their homes through foreclosure’ (citation omitted). As

defendant does not reside at the mortgaged property, this foreclosure proceeding does not place

his home at risk. Accordingly, we find that plaintiff was not required to serve a 3215(g)(3) notice

on defendant. Given the factual issues as to the validity of service of the summons and complaint,

the threshold issue of personal service should have been resolved with a traverse hearing (citations

omitted). We reverse and remand for such a hearing.”).

CPLR 3216 - Want of prosecution- neglect to proceed

CPLR 3216 - Dismissal order did not meet statutory preconditions

US Bank, N.A. v. Mizrahi, 156 A.D.3d 661, 64 N.Y.S.3d 565 (2d Dep’t 2017) (“‘A court may not

dismiss an action based on neglect to prosecute unless the statutory preconditions to dismissal, as

articulated in CPLR 3216, are met’ (citation omitted). The September order could not be deemed

a 90-day demand pursuant to CPLR 3216 because it gave US Bank only 60 days within which to

file a motion for summary judgment (citation omitted). Since the dismissal order dated

November 29, 2012, merely effectuated the September order, which did not meet the statutory

preconditions set forth in CPLR 3216, there was a failure of a condition precedent, and the

Supreme Court was not authorized to dismiss the action on its own motion (citation omitted). In

any event, there was no evidence that the plaintiff intended to abandon the action, that the default

was willful, or that the defendants were prejudiced (citations omitted).”).

CPLR 3216 - Compliance conference order fails to set forth any specific conduct constituting

neglect by the plaintiff; thus, court could not dismiss

Goetz v. Public Serv. Truck Renting, Inc., 2018 NY Slip Op 04534 (2d Dep’t 2018) (“‘A court

may not dismiss an action based on neglect to prosecute unless the statutory preconditions to

dismissal, as articulated in CPLR 3216, are met’ (citation omitted). ‘Effective January 1, 2015, the

Legislature amended, in several significant respects, the statutory preconditions to dismissal under

CPLR 3216’ (citation omitted). One such precondition is that where a written demand to resume

prosecution of the action is made by the court, as here, ‘the demand shall set forth the specific

conduct constituting the neglect, which conduct shall demonstrate a general pattern of delay in

proceeding with the litigation’ (citation omitted). Here, the compliance conference order did not

set forth any specific conduct constituting neglect by the plaintiff. Accordingly, since one of the

statutory preconditions to dismissal was not met, the court should not have directed dismissal of

the complaint pursuant to CPLR 3216 (citation omitted).”).

CPLR 3216 - Not proper 90-day demand

Atmara, Inc. v. Panoramic Ace Props., Inc., 151 A.D.3d 922, 58 N.Y.S.3d 414 (2d Dep’t 2017)

(“Contrary to the defendants’ contentions, the so-ordered stipulation dated November 3, 2014,

which extended the plaintiffs’ time to file the note of issue until January 8, 2015, superseded the

Page 226: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

compliance conference order dated July 11, 2012. As the so-ordered stipulation dated November

3, 2014, did not advise the plaintiffs that the failure to comply with that deadline would serve as a

basis for a motion to dismiss the action, it cannot be deemed a 90-day demand (citations omitted).

Furthermore, the complaint could not have properly been dismissed pursuant to CPLR 3126 based

upon the plaintiffs’ failure to comply with court-ordered discovery since there was no motion

requesting that relief (citations omitted). Accordingly, the plaintiffs’ motion to vacate the dismissal

of the complaint and restore the action to the court’s calendar should have been granted. Moreover,

the Supreme Court erred in, sua sponte, directing the dismissal of the defendants’ counterclaims

(citations omitted).”).

CPLR 3216 - Court’s so-ordered demand has same effect as 90-day demand

Stroll v. Long Is. Jewish Med. Ctr., 151 A.D.3d 789, 56 N.Y.S.3d 349 (2d Dep’t 2017) (“It is

undisputed that the plaintiff subsequently failed to comply with the terms of the demand and, as a

result, the action was administratively dismissed. The plaintiff then moved, inter alia, in effect, to

vacate the dismissal of the action pursuant to CPLR 3216 and to restore the action to the active

calendar, on the ground that the administrative dismissal was a legal nullity. The Supreme Court

denied the motion, and the plaintiff appeals. Initially, we note that although CPLR 3216 was

amended, effective January 1, 2015, to require that a 90-day demand served by the court set forth

the specific conduct constituting the neglect and that notice be given to the parties prior to dismissal

of the action for unreasonable neglect to proceed (citation omitted), the Supreme Court’s so-

ordered demand pursuant to CPLR 3216 and the administrative dismissal of the action predated

the amendments. Thus, we do not consider the amendments on this appeal. Contrary to the

plaintiff’s contention, the Supreme Court’s so-ordered demand pursuant to CPLR 3216 had the

same effect as a 90-day notice pursuant to CPLR 3216 (citations omitted). Nor can there be any

doubt that the plaintiff’s counsel, who signed the demand, actually received a copy of it (citations

omitted). Therefore, the plaintiff was required either to timely file a note of issue or move, before

the default date, for an extension of time pursuant to CPLR 2004. Since the plaintiff did neither,

the action was properly dismissed pursuant to CPLR 3216 on the Supreme Court’s own initiative

(citations omitted).”).

CPLR 3216 - Court failed to give notice to parties

Rhodehouse v. CVS Pharmacy, Inc., 151 A.D.3d 771, 56 N.Y.S.3d 228 (2d Dep’t 2017) (“Here,

the certification order did not set forth any specific conduct constituting neglect by the plaintiff.

Another precondition to dismissal is that where the court, on its own initiative, seeks to dismiss an

action pursuant to CPLR 3216, it must first give the parties notice of its intention to do so (citation

omitted). Such notice is meant to provide the parties with an opportunity to be heard prior to the

issuance of an order dismissing the action (citation omitted). Here, the Supreme Court failed to

give the parties notice and an opportunity to be heard prior to considering whether to dismiss the

action pursuant to CPLR 3216. Since the statutory preconditions to dismissal were not met, the

court erred in directing the dismissal of the action pursuant to CPLR 3216.”).

Page 227: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

CPLR 3216 - Court erred in administratively dismissing action without further notice

Deutsche Bank Natl. Trust Co. v. Cotton, 147 A.D.3d 1020, 46 N.Y.S.3d 913 (2d Dep’t 2017)

(“On February 11, 2014, the Supreme Court, sua sponte, entered an order pursuant to CPLR 3216

dismissing the instant action and directing the County Clerk to vacate the notice of pendency

‘unless plaintiff files a note of issue or otherwise proceeds by motion for entry of judgment within

90 days from the date hereof.’ It appears that the action was thereafter administratively dismissed

on June 5, 2014, without further notice to the parties. On December 11, 2014, the plaintiff moved

to vacate the dismissal and to restore this action to the active calendar. The Supreme Court denied

the motion, which was unopposed. An action cannot be dismissed pursuant to CPLR 3216(a)

‘unless a written demand is served upon the party against whom such relief is sought’ in

accordance with the statutory requirement, along with a statement that the default by the party

upon whom such notice is served in complying with such demand within said ninety day period

will serve as a basis for a motion by the party serving said demand for dismissal as against him for

unreasonably neglecting to proceed’ (citation omitted). Here, the order dated February 11, 2014,

which purported to serve as a 90-day notice pursuant to CPLR 3216, was defective in that it failed

to state that the plaintiff’s failure to comply with the notice ‘will serve as a basis for a motion’ by

the court to dismiss the action for failure to prosecute (CPLR 3216[b][3]). The Supreme Court

thereafter erred in administratively dismissing the action without further notice to the parties

(citations omitted). Accordingly, the Supreme Court should have granted the plaintiff’s motion to

vacate the order dated February 11, 2014, and to restore the action to the active calendar.”).

CPLR 3216 - Ministerial dismissal without notice was improper

US Bank N.A. v. Saraceno, 147 A.D.3d 1005, 48 N.Y.S.3d 163 (2d Dep’t 2017) (“As the plaintiff

correctly observes, the ministerial dismissal of the action was improper. Although the Supreme

Court appears to have relied upon CPLR 3216(b) as authority for its actions, the order dated March

28, 2013, failed to constitute a valid 90-day demand under that statute, since it did not recite that

noncompliance with its terms ‘will serve as a basis for a motion . . . for dismissal . . . for

unreasonably neglecting to proceed’ (citations omitted). Moreover, the court never directed the

parties to show cause as to why the action should not be dismissed, and did not enter a formal

order of dismissal on notice to the parties as required by CPLR 3216(a) (citations omitted).

Accordingly, the ministerial dismissal, made without notice and without benefit of further judicial

review, was erroneous (citation omitted).”).

CPLR 3216 - Relief not authorized where issue not joined

U.S. Bank N.A. v. Ricketts, 153 A.D.3d 1298, 61 N.Y.S.3d 571 (2d Dep’t 2017) (“CPLR 3216

authorizes the dismissal of a complaint for neglect to prosecute provided that certain statutory

conditions precedent are met, such as issue having been joined in the action (citations omitted).

Here, dismissal of the action pursuant to the March 2014 conditional order was improper, as issue

was never joined inasmuch as none of the defendants served an answer to the complaint (citations

omitted). Since at least one precondition set forth in CPLR 3216 was not met here, the Supreme

Court was without power to dismiss the action pursuant to that statute (citations omitted).”).

Page 228: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

Downey Sav. & Loan Assn., F.A. v. Aribisala, 147 A.D.3d 911, 47 N.Y.S.3d 413 (2d Dep’t 2017)

(“CPLR 3216 permits dismissal of a party’s pleading where certain conditions precedent have been

complied with. Here, however, where issue was not joined, at least one precondition set forth in

CPLR 3216 was not met, and the court was therefore without power to dismiss the action pursuant

to CPLR 3216 (citations omitted).”).

CPLR 3216 - Motion granted; plaintiff took no action…

Deutsche Bank Natl. Trust Co. v. Inga, 156 A.D.3d 760, 67 N.Y.S.3d 264 (2d Dep’t 2017) (“Under

the circumstances of this case, the Supreme Court providently exercised its discretion in granting

the defendant’s motion pursuant to CPLR 3216 to dismiss the action insofar as asserted against

him. The plaintiff took no action whatsoever in the five years from the time the case was released

from the foreclosure settlement part on October 15, 2009, until the defendant served his 90-day

demand on October 10, 2014. Moreover, after failing to comply with the 90-day deadline, the

plaintiff took no action for five months before belatedly filing a note of issue. The plaintiff failed

to provide a justifiable excuse for its delay in filing a note of issue and failed to demonstrate a

potentially meritorious cause of action. The plaintiff’s further contention that dismissal was too

harsh a sanction, and that a lesser sanction was more appropriate under the circumstances, is

unavailing, given the plaintiff’s ‘pattern[ ] of persistent neglect, a history of extensive delay,

evidence of an intent to abandon prosecution and lack of any tenable excuse for such delay’

(citation omitted).”).

CPLR 3217- Voluntary discontinuance

CPLR 3217(a)(1) - Conflict as to whether a motion to dismiss is a responsive pleading within

meaning of CPLR 3217(a)(1) (providing for service of notice of discontinuance)

There is a conflict in the Appellate Division as to whether a motion to dismiss is a “responsive

pleading” within the meaning of CPLR 3217(a)(1). The First Department concludes that it is

because otherwise, “a plaintiff would be able to freely discontinue its action without prejudice

solely to avoid a potentially adverse decision on a pending dismissal motion.” See BDO USA, LLP

v. Phoenix Four, Inc., 113 A.D.3d 507, 979 N.Y.S.2d 45 (1st Dep’t 2014) (“Thus, BDO’s notice

was ineffective and a nullity, and the motion court should not have deemed defendants’ motions

withdrawn (citations omitted). That BDO served its notice of discontinuance in an attempt to

circumvent the Administrative Judge’s order denying its request to have its action assigned to the

Commercial Division may be a valid basis for granting a discontinuance with prejudice (citations

omitted). However, given the unusual procedural history that led to the commencement of this

action, we decline to discontinue the action with prejudice. Specifically, this action arose from

defendant SRC’s failure to properly notify this Court of the settlement the parties had reached in

the contribution action before the mediator. Indeed, although the parties had reached a settlement,

and the mediator specifically directed the parties to inform this Court of the settlement, SRC

unilaterally took the position that the settlement was not effective and that the appeal should

continue. As a result, this Court dismissed the contribution action before the parties finalized a

written agreement, thus precluding BDO from enforcing the oral agreement (citations omitted).”).

The Fourth Department has come to a contrary conclusion. See Harris v. Ward Greenberg Heller

Page 229: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

& Reidy LLP, 151 A.D.3d 1808, 58 N.Y.S.3d 769 (4th Dep’t 2017) (“Based on the statute’s

language and the legislative history, we conclude that a determination that a motion to dismiss is

a responsive pleading is contrary to the statute. Moreover, if the Legislature intended for a motion

to dismiss to defeat a plaintiff’s absolute right to serve a notice of discontinuance, it could easily

have said so. Thus, in appeal No. 1, we conclude that plaintiff’s notices of discontinuance were

timely, and we therefore reverse the order therein.”).

CPLR 3217(a)(1) - Right to discontinue by service of notice

A.K. v. T.K., 150 A.D.3d 1091, 56 N.Y.S.3d 168 (2d Dep’t 2017) (“Here, neither a complaint nor

a responsive pleading was ever served in the third action, thereby preserving the absolute and

unconditional right to discontinue by serving notice (citation omitted).”).

CPLR 3217(b) - No evidence that the defendant would be prejudiced by a discontinuance

without prejudice

Kondaur Capital Corp. v. Reilly, 2018 NY Slip Op 04707 (2d Dep’t 2018) (“CPLR 3217(b)

permits a voluntary discontinuance of a claim by court order ‘upon terms and conditions, as the

court deems proper’ (citations omitted). In general, absent a showing of special circumstances,

including prejudice to a substantial right of the defendant or other improper consequences, a

motion for a voluntary discontinuance should be granted without prejudice (citations omitted).

Here, there was no evidence that the defendant would be prejudiced by a discontinuance without

prejudice (citation omitted). The defendant failed to establish as a matter of law that a second

action would be time-barred and failed to show that he was prejudiced by the length of the

litigation. Therefore, the Supreme Court should have granted that branch of the plaintiff's motion

which was to discontinue the action without prejudice, and denied the defendant's cross motion to

discontinue the action with prejudice. Moreover, under the circumstances of this case, there was

no basis for the court, sua sponte, to direct a hearing on the amount of counsel fees to be awarded

to the defendant.”).

CPLR 3217(c) - Effect of discontinuance

US Bank Natl. Assn. v. Cockfield, 143 A.D.3d 889, 40 N.Y.S.3d 145 (2d Dep’t 2016) (“Here,

contrary to the Supreme Court’s determination and the defendant’s assertions, the plaintiff did not

seek to discontinue this action by means of notice pursuant to CPLR 3217(c). To the contrary, the

plaintiff moved for an order of discontinuance, pursuant to CPLR 3217(b). Thus, the court

erroneously concluded that discontinuance of the third action ‘must be with prejudice’ under CPLR

3217(c) (citations omitted).”).

Page 230: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

CPLR 3218 – Judgment by confession

CPLR 3218 - Motion to vacate confession of judgment on grounds that it was limited to use

in foreclosure action denied

Scialo v. Sheridan Elec., Ltd., 153 A.D.3d 1294, 61 N.Y.S.3d 127 (2d Dep’t 2017) (“Contrary to

the defendants’ contention, the language of the contract of sale, an escrow agreement, and the

affidavits of confession of judgment did not condition the use of the affidavits only in the context

of a foreclosure action. Furthermore, the defendants failed to submit clear, positive, and

satisfactory evidence of any fraud, misconduct, or other circumstances that would require the

confession of judgment in question to be set aside (citations omitted).”).

CPLR 3218 - Affidavit of confession of judgment – Defendants lack standing to challenge

affidavit

Cash & Carry Filing Serv., LLC v. Perveez, 149 A.D.3d 578, 50 N.Y.S.3d 277 (1st Dep’t 2017)

(“Defendants may challenge the judgment by confession only by trial in a plenary action, and not

by motion (citation omitted). Moreover, defendants lack standing to challenge the affidavit of

confession of judgment. An affidavit of confession of judgment pursuant to CPLR 3218 ‘is

intended to protect creditors of a defendant,’ not the defendant itself (citations omitted). In any

event, the affidavit in this case is sufficient (citation omitted). Defendants’ assertions of duress in

executing the June 10, 2014 agreement leading to the judgment by confession are unavailing. In

order to claim duress defendants had to show that plaintiff used a ‘wrongful threat’ to force

defendants to enter into the agreement, and defendants failed to make that showing (citations

omitted). ‘Financial pressures, even in the context of unequal bargaining power, do not constitute

economic duress’ (citations omitted).”).

ARTICLE 34 - CALENDAR PRACTICE

CPLR 3402 - Note of issue

CPLR 3402 - Uniform Rules – Striking note of issue where discovery incomplete

Place v. Chaffee-Sardinia Volunteer Fire Co., 143 A.D.3d 1271, 39 N.Y.S.3d 568 (4th Dep’t 2016)

(“In appeal No. 2, we agree with defendants that the court erred in holding in abeyance that part

of their motion seeking to strike the note of issue and certificate of readiness and instead should

have granted that part of their motion. It is well established that a note of issue should be vacated

when it is based upon a certificate of readiness that contains an erroneous material fact (citation

omitted) Here, defendants established that discovery was incomplete when the note of issue and

certificate of readiness were filed, and they therefore established that ‘a material fact in the

certificate of readiness [was] incorrect’ (citations omitted).”).

Page 231: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

CPLR 3402 - Post note of issue discovery

Kanaly v. DeMartino, 2018 NY Slip Op 04060 (3d Dep’t 2018) (“To the extent that plaintiff argues

that Supreme Court's order was improper because defendants did not establish their entitlement to

post-note of issue discovery (citations omitted), the parties' disputes over the scope of the medical

authorizations were ongoing and began long before the note of issue was filed; these were not new

discovery requests. Moreover, plaintiff's expert disclosure was not filed until more than a year after

the note of issue was filed, so any disagreement about the scope of that disclosure, or request for

additional information about the experts, could not have been addressed pre-note of issue. In any

event, Supreme Court had broad discretion to ‘permit post-note of issue discovery without vacating

the note of issue,’ as no party was prejudiced (citations omitted).”)

CPLR 3404- Dismissal of abandoned case

Bradley v. Konakanchi, 156 A.D.3d 187, 191 (4th Dep’t 2017).

David L. Ferstendig, Further Appellate Division Conflicts, and One Resolved, 689 N.Y.S.L.D. 3-

4 (2018)

Applicability of CPLR 3404 to Actions Where the Note Issued Has Been Vacated

CPLR 3404 provides that a case "marked ‘off’ or struck from the calendar or unanswered on a

clerk’s calendar call, and not restored within one year thereafter, shall be deemed abandoned and

shall be dismissed without costs for neglect to prosecute."

The First, Second, and Fourth Departments hold that CPLR 3404 does not apply to a case where

the note of issue has been vacated. See Turner v. City of New York, 147 A.D.3d 597, 597 (1st

Dep’t 2017); Liew v. Jeffrey Samel & Partners, 149 A.D.3d 1059, 1061 (2d Dep’t 2017); Bradley

v. Konokanchi, 156 A.D.3d 187, 190–91 (4th Dep’t 2014). The rationale behind the majority view

is that vacating the note of issue "returns the case to pre-note of issue status. It does not constitute

a marking ‘off’ or striking the case from the court’s calendar within the meaning of CPLR 3404."

Montalvo v. Mumpus Restorations, Inc., 110 A.D.3d 1045, 1046 (2d Dep’t 2013). The Third

Department, however, refuses to follow the majority. See Hebert v. Chaudrey, 119 A.D.3d 1170,

1171–72 (3d Dep’t 2014). See also Gray v. Jim Cuttita Agency Inc., 281 A.D.2d 785, 785–86 (3d

Dep’t 2014) ("Where, as here, a case is actually placed on the trial calendar, subsequently stricken

therefrom by an order of the court and then not restored within one year, it is deemed abandoned

and dismissed pursuant to CPLR 3404.").

The most recent inductee to the majority position, the Fourth Department, recently explained its

position and criticized the Third Department view:

To state the obvious, a note of issue does not survive its own vacatur, and it makes

no sense to apply CPLR 3404 when the statute’s operative premise—i.e., the

continuing vitality of the note of issue—no longer exists. The Third Department’s

Page 232: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

contrary rule—like the textually-based arguments in defendant’s brief—fails to

recognize the technical distinction between vacating a note of issue and marking

off/striking a properly noted case from the calendar. Indeed, "it is precisely in such

[latter] circumstances that CPLR 3404, by its express terms, applies." In other

words, while it is of course true (as defendant insists) that a case is "place[d]" on

the calendar by filing a note of issue, it does not follow—as the Third Department

consistently holds—that a case is "marked off" or "struck" from the calendar within

the meaning of CPLR 3404 whenever the note of issue is vacated pursuant to 22

NYCRR 202.21 (e) (citations omitted).

CPLR 3404 - Court improvidently exercised its discretion in, sua sponte, directing dismissal

of the complaint pursuant to 22 NYCRR 202.27(b)

Yi Jing Tan v. Liang, 160 A.D.3d 786, 75 N.Y.S.3d 68 (2d Dep’t 2018) (“Pursuant to 22 NYCRR

202.27(b), a court has the discretion to direct dismissal of a complaint where the plaintiff fails to

appear or is not ready to proceed. Here, the Supreme Court based its decision to dismiss the

complaint upon the plaintiffs' lack of readiness to proceed on November 19, 2015, a date to which

the court adjourned the matter despite its awareness that the plaintiffs' counsel would not be

available. Under the circumstances presented, the court improvidently exercised its discretion in,

sua sponte, directing dismissal of the complaint (citation omitted).”).

CPLR 3408 - Mandatory settlement conference in residential foreclosure action

CPLR 3408 - Action did not mandate settlement conference

Nationstar Mtge., LLC v. Turcotte, 161 A.D.3d 1090 (2d Dep’t 2018) (“Finally, the defendants’

contention that the plaintiff’s misconduct deprived them of a mandatory settlement conference to

which they were entitled pursuant to CPLR 3408(a) is without merit. Former CPLR 3408, which

was in effect at the time this action was commenced on June 25, 2008 (citation omitted), ‘applied

only to foreclosure actions involving high-cost home loans or subprime or nontraditional home

loans’ (citation omitted). Contrary to the defendants’ contention, their adjustable rate note did not

fall under the definition of a ‘nontraditional home loan[ ]’ so as to mandate a settlement conference

(citations omitted).”).

Page 233: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

ARTICLE 41 - TRIAL BY JURY

CPLR 4102 - Jury demand and waiver

CPLR 4102

David L. Ferstendig, Further Appellate Division Conflicts, and One Resolved, 689 N.Y.S.L.D. 3

(2018)

Asserting Equitable Counterclaims and Right to a Jury Trial

Three of the four Appellate Division Departments (the First, Second and Third Departments) hold

that a defendant waives his or her right to a jury trial on all legal claims, including the plaintiff’s

claim, when asserting an equitable counterclaim based on the same transactions. See Cannon Point

N., Inc. v. City of New York 87 A.D.3d 861, 865–66 (1st Dep’t 2011); Seneca v. Novaro, 80

A.D.2d 909, 910 (2d Dep’t 1981); Hickland v. Hickland, 100 A.D.2d 643, 644 (3d Dep’t 1984).

The Fourth Department, however, holds to the contrary. Most recently, in Pittsford Canalside

Props., LLC v. Pittsford Vill. Green, 154 A.D.3d 1303 (4th Dep’t 2017), the court explained the

reason behind its dissent from the other departments:

[C]ontrary to plaintiff’s contention on its cross appeal, we conclude that the court

properly denied plaintiff’s motion to strike defendants’ demand for a jury trial. We

have declined to apply the prevailing rule in the other Departments of the Appellate

Division that a defendant waives his or her right to a jury trial on jury-triable causes

of action in the complaint by interposing an equitable counterclaim based on the

same transaction. The plain text of CPLR 4102 (c) does not address that issue, and

the rule that prevails in the other Departments would force defendants to commence

separate actions to assert equitable counterclaims, thereby encouraging the

prosecution of inefficient and wasteful parallel actions. We conclude, however, that

"[t]he need for a full relitigation of the equitable claims and the possibility of

inconsistent results can be avoided by permitting the legal action and the equitable

claims to be tried at the same time" (citations omitted).

Id. at 1305.

Page 234: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

CPLR 4111 - General and specific verdicts and written interrogatories

CPLR 4111(c) - Trial court properly vacated jury award and ordered new trial on damages

based on clearly inconsistent verdict-High-low agreement of no moment

Flores v. 731 S. Blvd. LLC, 154 A.D.3d 518, 63 N.Y.S.3d 319 (1st Dep’t 2017) (“Defense

counsel’s contentions that the trial court was without authority to order a new trial on damages

given the parties’ high-low settlement agreement, and because neither party raised the issue of an

inconsistent verdict, are unavailing. A high-low settlement between parties is a conditional

settlement, triggered only when there is a proper verdict (citations omitted). CPLR 4111(c)

provides, inter alia, that a court “shall order a new trial” when a jury’s answers to interrogatories

“are inconsistent with each other and one or more is inconsistent with the general verdict.” Here,

Supreme Court properly vacated the jury award and ordered a new trial on damages based on the

clearly inconsistent verdict (citations omitted).”).

ARTICLE 42 - TRIAL BY THE COURT

CPLR 4201 - Powers of referees to report

CPLR 4201 - “Inasmuch as the referee's role was to hear and report, Supreme Court, as ‘the

ultimate arbiter of the dispute,’ was under no corresponding obligation to incorporate the

first report into a judgment”

Oropallo v. Bank of Am. Home Loans, LP, 2018 NY Slip Op 04799 (3d Dep’t 2018) (“It is well-

settled that a trial court maintains the discretion to cure mistakes, defects and irregularities that do

not affect a substantial right of a party (citations omitted), including the discretion to clarify a prior

order and judgment to reflect the true intent of the court's original holding (citations omitted). In

consideration of Supreme Court's April 2013 order and judgment directing any subsequently

appointed referee to ‘hear and report’ as to the value of defendants' equitable mortgage lien

(citation omitted), the inconsistent language that was subsequently incorporated into the August

2013 order of reference and plaintiffs' subsequent motion to confirm — which motion is only

required where a referee has been appointed to ‘hear and report’ (citation omitted) — it was not

inappropriate for Supreme Court to clarify in its February 2015 order that its intent was for the

appointed referee to ‘hear and report.’ Under the circumstances, therefore, neither defendants'

failure to object to the reference nor their participation in the subsequent hearing served as a waiver

of or consent to the authority of the referee as indicated in the order of reference (citation omitted).

Thus, inasmuch as the referee's role was to hear and report, Supreme Court, as ‘the ultimate arbiter

of the dispute,’ was under no corresponding obligation to incorporate the first report into a

judgment (citations omitted).”).

Page 235: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

CPLR 4201 - Referee had no jurisdiction to determine, but only to hear and report

Matter of Rose v. Simon, 2018 NY Slip Op 04736 (2d Dep’t 2018) (“A referee derives authority

from an order of reference by the court (citations omitted). Here, as correctly asserted by the

mother, the order of reference did not authorize the Court Attorney Referee to hear and report or

to hear and determine a contested family offense petition. The Court Attorney Referee therefore

lacked jurisdiction to dismiss the mother's family offense petition in this instance (citation

omitted). Accordingly, the family offense matter must be remitted to a judge of the Family Court

for a new determination. . . . Upon our review of the record, however, we find no indication that

the parties stipulated to the reference in the manner prescribed by CPLR 2104, and, absent such

stipulation, the Court Attorney Referee had the power only to hear and report her findings (citations

omitted). We further find that the mother did not consent to the reference merely by participating

in the proceeding without expressing her desire to have the matter tried before a judge (citations

omitted). The order of reference must therefore be deemed an order to hear and report. Thus, the

Court Attorney Referee had no jurisdiction to determine, but only to hear and report, with respect

to the parties' respective rights of custody and visitation (citation omitted). Accordingly, the

portion of the order dated May 19, 2017, which determined custody and visitation, is deemed a

report (see CPLR 4320[b]), and the custody matter must be remitted for further proceedings

pursuant to CPLR 4403 before a judge of the Family Court.”).

CPLR 4213 - Decision of the court

CPLR 4213(b) - Court must state facts it deems essential

Kieran v. Sinetos, 145 A.D.3d 987, 45 N.Y.S.3d 131 (2d Dep’t 2016) (“Under CPLR 4213(b), a

court must state ‘the facts it deems essential’ to a decision. The purpose of this requirement is to

facilitate meaningful appellate review (citation omitted). Here, the Supreme Court failed to state

any basis for its decision. Remittal, however, is not necessary because the evidence presented was

legally insufficient to establish the plaintiff’s entitlement to recovery (citation omitted).”).

CPLR 4213(b) - Itemized nonjury verdicts

Nunez v. Bardwil, 145 A.D.3d 909, 43 N.Y.S.3d 490 (2d Dep’t 2016) (“CPLR 4213(b) requires

that nonjury verdicts be itemized, and this rule applies to inquests (citation omitted). Here, the

Supreme Court’s failure to itemize the elements of damages, and state the facts it deemed essential

in determining the award of damages, renders appellate review of the damages award impossible

(id.). Moreover, in light of the Supreme Court’s failure to hear the testimony of the parties’ experts

or even to review their records, a new inquest is warranted. A new inquest is also warranted

because it is alleged that admissible evidence was improperly excluded (citation omitted).”).

Page 236: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

ARTICLE 43 - TRIAL BY A REFEREE

CPLR 4311 - Order of reference

CPLR 4311 - Court Attorney Referee lacked jurisdiction to issue order without parties’

consent

Matter of Kohn v. Sanders, 152 A.D.3d 597, 55 N.Y.S.3d 671 (2d Dep’t 2017) (“Appeal by the

father from an order of the Family Court, Kings County (Denise M. Valme-Lundy, Ct. Atty. Ref.),

dated May 17, 2016. The order dismissed the father’s petition for modification of an order of

custody and visitation. ORDERED that the order is reversed, on the law, without costs or

disbursements, and the matter is remitted to the Family Court, Kings County, for a new

determination of the father’s petition. A referee derives authority from an order of reference by the

court (see CPLR 4311), which can be made only upon consent of the parties, except in limited

circumstances not applicable here (citations omitted). Here, the parties did not have an order of

reference with respect to this proceeding. Thus, the Court Attorney Referee lacked jurisdiction to

issue the order dated May 17, 2016 (citations omitted), and we remit the matter to the Family

Court, Kings County, for a new determination of the father’s petition.”).

CPLR 4313 - Notice

CPLR 4313 - Referee’s failure to give notice of proceedings not fatal

Wells Fargo Bank N.A. v. Javier, 153 A.D.3d 1199, 60 N.Y.S.3d 675 (1st Dep’t 2017) (“The

referee’s failure to give notice of the proceedings (see CPLR 4313) to ascertain the amount due on

the mortgage does not require reversal of the judgment of foreclosure and sale. Both parties

submitted evidence to the court — the ultimate arbiter of the issue — in their motions to confirm

or vacate the referee’s report, and the court correctly found that defendant’s evidence failed to

rebut plaintiff’s evidence (citation omitted).”).

CPLR 4319 - Decision

CPLR 4319 - Referee’s determination of default rate of interest under note and mortgage

was plainly within scope of issues delineated in the order of reference

MMAL Corp. v. Edrich, 156 A.D.3d 780, 67 N.Y.S.3d 261 (2d Dep’t 2017) (“Where a referee is

appointed to hear and determine, rather than to hear and report (see CPLR 4201), the referee

possesses ‘all the powers of a court in performing a like function’ (CPLR 4301), and his or her

‘decision shall stand as the decision of a court’ (CPLR 4319). ‘Since the actions of referees when

Page 237: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

they are assigned to determine an issue are tantamount to those of any sitting Supreme Court

Justice, the Supreme Court may only review whether the referee exceeded the scope of the issues

delineated in the order of reference’ (citation omitted). Here, the order of reference specifically

gave the Referee, in relevant part, the power ‘to determine the issue of the default rate of interest.’

Since the Referee’s determination of the default rate of interest under the note and mortgage was

plainly within the scope of the issues delineated in the order of reference, the Supreme Court

properly denied that branch of the plaintiff’s cross motion which was to reject that portion of the

Referee’s decision.”).

ARTICLE 44 - TRIAL MOTIONS

CPLR 4401 - Motion for judgment during trial

CPLR 4401 / 3212 - Prior denial of defendants’ summary judgment motion does not preclude

dismissal at conclusion of the plaintiff’s case at trial

Zebzda v. Hudson St., LLC, 156 A.D.3D 851, 65 N.Y.S.3d 727 (2d Dep’t 2017) (“The plaintiff’s

contention that the Supreme Court’s prior denial of the defendants’ motion for summary judgment

dismissing the complaint precluded dismissal at the conclusion of the plaintiff’s case at trial is

without merit (citations omitted).”).

CPLR 4404 - Post trial motions

CPLR 4404

David L. Ferstendig, Appellate Division Applies Wrong Test in Setting Aside Jury Verdict, 673

N.Y.S.L.D. 2 (2016).

Killon v. Parrotta, 2016 N.Y. Slip Op. 07048 (October 27, 2016), was a personal injury action

arising out of a fight between the plaintiff and defendant. It was a he-said, he-said situation, but it

did involve a she. The plaintiff had been a longtime friend of the defendant’s wife. While drunk,

the plaintiff made a threatening call to the defendant about his treatment of his wife. The defendant

then drove 20 miles in the middle of the night to the plaintiff’s home. What happened next is the

subject of dispute. Defendant says that when the plaintiff saw him, plaintiff left his home with a

maul hammer handle, prompting the defendant to go back to his truck to retrieve a bat. The plaintiff

then encouraged his dog to attack the defendant and swung the maul handle at him, grazing the

back of the defendant’s head. Defendant alleged that he could not retreat because of “bad knees”

and so he swung his bat at the plaintiff. Defendant then “fled the scene.” Plaintiff tells the story a

bit differently. The plaintiff told the defendant to repeatedly leave. When the plaintiff stepped off

the porch he threw the maul handle on the ground, not at the defendant, and then the defendant

swung his bat at the plaintiff, causing extensive injuries to his jaw. A witness present for the

incident stated that the defendant, upon his arrival, came out of his truck carrying his bat.

Page 238: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

Nice story, but why did I just take away a minute of your life! Ah, because the issue here surrounds

whether the defendant was the “initial aggressor” and whether the Appellate Division used the

proper standard in evaluating the jury determination.

At trial, the court instructed the jury that the “initial aggressor” is “the person who first attacks or

threatens to attack … [t]he actual striking of the first blow or inflicting the first wound is not in

and of itself determinative of the question of who was the initial aggressor.” Id. at *2. Significantly,

if the defendant was found to be the “initial aggressor,” the jury was required to find that he did

not act in self-defense.

The jury unanimously found that defendant battered the plaintiff by striking him with a bat, but

also found that the defendant acted in self-defense. The trial court denied plaintiff’s motion to set

aside the verdict. In 2012, the Appellate Division reversed and ordered a new trial, finding that

“‘no fair interpretation of the evidence’ supported ‘the verdict finding that defendant acted in self-

defense’ inasmuch as it was predicated upon ‘a conclusion that defendant was not the initial

aggressor in the encounter’.” Id.

At the retrial, the trial court stated that it was constrained by the 2012 Appellate Division holding,

as a matter of law, that the defendant was the initial aggressor, and thus denied defendant’s request

for a self-defense jury charge. The second jury then found that the defendant had committed a

battery and awarded damages. In 2015, the Appellate Division affirmed. The appeal of the 2015

Appellate Division order to the Court of Appeals brought up for review the earlier non-final 2012

order. The Court stressed that where the Appellate Division finds a verdict to be against the weight

of the evidence, the remedy is to remit for a new trial. Conversely, “where the Appellate Division

intends to hold that a jury verdict is insufficient as a matter of law, it must first determine that the

verdict is ‘utterly irrational’.” Id. at *3.

In the 2012 Order, the Appellate Division found, in essence, that the verdict was against the weight

of the evidence but the effect was to hold, as a matter of law, that the defendant was the initial

aggressor and thus the justification defense was unavailable. Such a holding could only be reached

by concluding that the verdict was utterly irrational, but the Appellate Division did not use that

test.

The Court stated that whether a verdict is utterly irrational is a question of law, in which case the

Court could look at the trial evidence and then make its own determination. The Court held that,

based on the jury charge given, the first jury’s conclusion that the defendant was not the initial

aggressor and acted in self-defense was not utterly irrational based on the conflicting versions of

the events and remitted the case to the Supreme Court for yet a third trial. It noted that normally it

would have remitted to the Appellate Division to determine whether the self-defense verdict was

against the weight of the evidence. However, “under these unusual circumstances where the

Appellate Division already performed that analysis and decided the case should be retried,” the

Court felt it was “most appropriate” to remit the case directly to the Supreme Court for a new trial.

Id. at *4 n.2.

Page 239: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

CPLR 4404 - Court can consider an unpreserved error in a jury charge which is fundamental

Vallone v. Saratoga Hosp., 141 A.D.3d 886, 35 N.Y.S.3d 544 (3d Dep’t 2016) (“At trial, plaintiff

made a general objection to the comparative negligence instruction on the ground that there was

no evidentiary basis for the charge, but neither requested that the jury be charged to exclude

comparative negligence from its consideration of the malpractice claims nor objected to the

proposed special verdict sheet. Thus, plaintiff failed to preserve this challenge to the instruction

((citations omitted). However, this Court may exercise its discretion to order a new trial when an

unpreserved error in a jury charge is fundamental — that is, ‘so significant that the jury was

prevented from fairly considering the issues at trial’ ((citations omitted). Here, the jury was neither

instructed to limit its consideration of plaintiff’s comparative negligence, nor that defendant’s

liability extended only to that portion of plaintiff’s injuries attributable to its malpractice. The jury

was thus prevented from fairly considering the central issue of damages. The errors were further

compounded by the failure to instruct the jury ‘to determine the total amount of damages sustained

by plaintiff, undiminished by any percentage of fault’ ((citation omitted). PJI 2 -36 sets forth three

essential steps to be followed by the jury in apportioning liability and calculating damages, and

the third step — which instructs the jury to determine the total damage award without reference to

any percentage of fault — is essential to avoid juror confusion and the risk of a double reduction

of the plaintiff’s recovery ((citations omitted). Here, it is impossible to determine whether the jury

intended the amount that it awarded to represent the total damage award or plaintiff’s 10% share

following the erroneous apportionment of fault. Accordingly, we find that the combined errors in

the charge are fundamental, and that a new trial on the issue of plaintiff’s damages is warranted in

the interest of justice (citations omitted).”).

CPLR 4404 - Setting aside verdict against weight of evidence

Matter of Eighth Jud. Dist. Asbestos Litig., 141 A.D.3d 1127, 35 N.Y.S.3d 615 (4th Dep’t 2016)

(“We reject defendant’s further contention that the apportionment of 35% liability to defendant is

against the weight of the evidence, and thus that the court erred in denying that part of its

postverdict motion to set aside the verdict on that ground. It is axiomatic that a verdict may be set

aside as against the weight of the evidence only if “the evidence so preponderate[d] in favor of the

[defendant] that [the verdict] could not have been reached on any fair interpretation of the

evidence” (Lolik v Big V Supermarkets, 86 NY2d 744, 746 [internal quotation marks omitted]),

and that is not the case here. Indeed, the court properly determined that defendant did not meet its

burden of establishing the equitable shares of fault attributable to other tortfeasors in order to

reduce its own liability for damages (citations omitted).”).

CPLR 4404

David L. Ferstendig, Majority of Court of Appeals Reverses Order Granting Defendant’s Motion

to Set Aside Verdict, 678 N.Y.S.L.D. 2,3 (2017).

For a trial court to determine as a matter of law that a jury verdict is unsupported by sufficient

evidence, it must conclude “that there is simply no valid line of reasoning and permissible

inferences which could possibly lead rational men to the conclusion reached by the jury on the

Page 240: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

basis of the evidence presented at trial.” Cohen v. Hallmark Cards, Inc.. 45 N.Y.2d 493, 499

(1978).

In Obey v. City of New York, 2017 N.Y. Slip Op. 02590 (April 4, 2017), the plaintiff, a heroin

addict, was traveling from a methadone clinic when he slipped off of a subway platform and was

injured by a train. He told a treating psychologist that he was high on Xanax and Klonopin,

psychoactive drugs that can cause dizziness and falling, if abused. The plaintiff could not

remember anything from the time he slipped until he was tended to by medical personnel. At trial,

he claimed his memory loss was caused when he slipped and hit his head, not from taking illegal

drugs.

During the approximately 45 minute period covering the time that the plaintiff entered the subway

station until he was discovered on the tracks, at least three trains passed through the station. The

plaintiff claimed that the second train contacted him. While none of the train operators saw the

plaintiff before the incident, a large pool of blood was found on the tracks; what appeared to be

blood stains were on four cars of the first train; the operator of the second train reported seeing

white sneakers on the train tracks; and the third train was alerted to the incident, permitting the

train operator to stop the train.

The jury returned a verdict in plaintiff’s favor, apportioning 60 percent fault to the plaintiff and 40

percent to the New York City Transit Authority (NYCTA), and awarding nearly $2 million in

damages. The trial court granted the defendant’s post-trial motion to set aside the verdict on the

issue of liability, finding that the plaintiff had failed to establish that the operator of the second

train (Lopez) was negligent or caused plaintiff’s injuries. In a 3–2 decision, the Appellate Division

affirmed, finding that plaintiff failed to satisfy his burden to show that the second train caused his

injuries. The court pointed to the bloodstains on the first train, which were lacking on the second

train. Moreover, the fact that Lopez observed sneakers on the tracks did not establish which train

injured the plaintiff. Finally, the Appellate Division concluded that the plaintiff failed to establish

prima facie that, had Lopez activated the train’s emergency brake when he saw the sneakers, the

incident could have been avoided (assuming the train caused the injury).

In a very brief decision, a majority of the Court of Appeals reversed, holding that,

[l]egally sufficient evidence supported the jury’s finding that defendant New York

City Transit Authority was negligent and that its negligence was a proximate cause

of plaintiff’s injury.

Id. at *1.

In a dissent, Judge Garcia found that the plaintiff had failed to sustain his burden of proving that

the second train caused his injuries, concluding that the physical evidence pointed solely to the

first train.

[W]hat appeared to be bloodstains were discovered on four cars of the first train,

while no such stains were discovered on the second train. In an attempt to refute

Page 241: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

the physical evidence, plaintiff’s expert claimed that the apparent bloodstains may

actually have been “grape juice,” “pop/soda,” or rat blood, and that the weight and

heat of the train may have cauterized plaintiff’s wound. Not only are these claims

incredible on their face, but they are undermined by plaintiff’s own evidence. For

instance, plaintiff contends that his wound may have instantly cauterized — to

explain the absence of any blood on the second train — while simultaneously

pointing to a “large pool of blood” on the tracks for purposes of determining the

accident location.

Id. at *2.

Moreover, Judge Garcia also found that the plaintiff did not make a prima facie showing that the

train operator of the second train was negligent. He rejected plaintiff’s expert’s claim that because

Lopez stated that he saw plaintiff’s sneakers when entering the station, he had enough time to stop

the train in time, by engaging the emergency brake.

However, plaintiff’s expert implicitly rejected the proposition that the operator

observed the sneakers immediately upon entering the station — a 400 foot distance

— by testifying that the train’s headlights would not have illuminated the sneakers

until, at the earliest, “151.5 feet from the front of the train.” Although the expert

opined that 151.5 feet would have been a sufficient distance to stop the train, there

is no record evidence to support the expert’s assumption that the operator actually

observed the sneakers from a distance of 151.5 feet. Rather, according to the

operator’s trial testimony as well as his written report from the day of the accident,

the operator did not see the sneakers until the train was almost fully stopped near

the end of the station. In the absence of any credible evidence that the operator had

adequate time to stop the train, the jury’s verdict relied on unsubstantiated

speculation regarding the operator’s negligence (citation omitted).

Id. at *2-3.

CPLR 4404 - Jury verdict set aside as contrary to the weight of the evidence because it was

not supported by any fair interpretation of the evidence

Robinson v. Brooklyn Union Gas Co., 160 A.D.3d 999, 72 N.Y.S.3d 454 (2d Dep’t 2018) (“‘A

jury verdict should not be set aside as contrary to the weight of the evidence unless the jury could

not have reached the verdict by any fair interpretation of the evidence’ (citation omitted). This

principle also applies to a jury's apportionment of fault (citation omitted). Here, the jury's

determination that the plaintiff was 80% at fault was not supported by a fair interpretation of the

evidence in light of the undisputed evidence regarding the condition of the street (citation omitted).

An apportionment of 55% of the fault to the plaintiff and 45% of the fault to the defendant City of

New York better reflects a fair interpretation of the evidence (citation omitted).”).

Page 242: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

CPLR 4404 - Court’s errors in failing to properly charge the jury and add the interrogatory

requested by the plaintiffs prejudiced a substantial right and warrants a new trial

Duran v. Temple Beth Sholom, Inc., 155 A.D.3d 690, 64 N.Y.S.3d 278 (2d Dep’t 2017) (“‘A

motion pursuant to CPLR 4404(a) to set aside a verdict and for a new trial in the interest of justice

encompasses errors in the trial court’s rulings on the admissibility of evidence, mistakes in the

charge, misconduct, newly discovered evidence, and surprise’ (citations omitted). In considering

such a motion, ‘[t]he Trial Judge must decide whether substantial justice has been done, whether

it is likely that the verdict has been affected . . . and must look to his [or her] own common sense,

experience, and sense of fairness rather than to precedents in arriving at a decision’ (Micallef v

Miehle Co., Div. of Miehle-Goss Dexter, 39 NY2d 376, 381 [citation omitted], quoting Weinstein-

Korn-Miller, NY Civ Prac ¶ 4404.11; see Morency v Horizon Transp. Servs., Inc., 139 AD3d at

1023). Here, the Supreme Court erred in denying the plaintiffs’ request to ask the jury to determine

not only whether the temple violated Labor Law § 240(1), but also to determine whether Duran

fell off the beam (citations omitted). Under the particular circumstances of this case, this

constituted a fundamental error warranting a new trial because the court’s instructions failed to

explain to the jury that, in light of arguably inconsistent accounts of how the accident occurred,

the jury was entitled to find that Duran did not fall from the beam or, alternatively, that he did fall

from the beam but no safety device was required under Labor Law § 240(1). Further, there was

sufficient evidence of juror confusion with respect to this issue (citations omitted). Notably, the

jury requested a readback of Labor Law § 240(1). The court’s errors in failing to properly charge

the jury and add the interrogatory requested by the plaintiffs prejudiced a substantial right and

warrants a new trial (citations omitted).For that reason, the Supreme Court should have granted

that branch of the plaintiffs’ motion which was pursuant to CPLR 4404(a) to set aside the verdict

in the interest of justice and for a new trial on the cause of action alleging a violation of Labor Law

§ 240(1) insofar as asserted against the temple (citation omitted).”) (citing Weinstein-Korn-

Miller).

ARTICLE 45 - EVIDENCE

CPLR 4503 - Attorney

CPLR 4503 - Common-Interest privilege

David L. Ferstendig, Divided Court of Appeals Imposes Litigation Requirement on Common-

Interest Privilege, 668 N.Y.S.L.D. 1, 2 (2016).

Generally, the presence of a third party to a communication between counsel and client waives the

attorney-client privilege. The common-interest privilege, however, is an exception. Under this

doctrine, the privilege will not be destroyed by the third party’s presence “if the communication is

for the purpose of furthering a nearly identical legal interest shared by the client and the third

party.” Ambac Assur. Corp. v. Countrywide Home Loans, Inc., 124 A.D.3d 129 (1st Dep’t 2014).

There was a conflict among the Appellate Division Departments as to whether the communication

has to be made in connection with a pending action or “in reasonable anticipation of litigation.”

Page 243: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

The Second Department had taken this narrower view, while the First Department in Ambac ruled

that the communication need not be tied to litigation. That was until a divided New York State

Court of Appeals stepped in and held there to be a litigation requirement.

Ambac concerned a discovery dispute arising out of an action brought by Ambac, a financial

guaranty insurer, that guaranteed payments on residential mortgage-backed securities (RMBS)

issued by Countrywide and related entities. Ambac claimed that Countrywide fraudulently induced

it to insure the RMBS transactions and breached contractual representations. Ambac also sued

Bank of America Corporation (BOA) based on its merger with Countrywide. The crux of the

discovery dispute was BOA’s withholding of some 400 communications that occurred between

BOA and Countrywide after the merger plan was signed but before the merger closed. BOA argued

that the communications were protected from disclosure by the attorney-client privilege because

they related to legal issues that both companies had to resolve jointly to successfully complete the

merger. BOA claimed that the merger agreement “evidenced the parties’ shared legal interest in

the merger’s ‘successful 2016completion’ as well as their commitment to confidentiality, and

therefore shielded the relevant communications from discovery.” Ambac Assur. Corp. v.

Countrywide Home Loans, Inc., 2016 N.Y. Slip Op. 04439 (June 9, 2016) at ∗2–3.

Ambac moved to compel, arguing that because both BOA and Countrywide had shared voluntarily

confidential material before the merger closed, they had waived the attorney-client privilege. An

appointed special referee granted Ambac’s motion, noting that generally the exchange of

privileged communications constitutes a waiver of the attorney-client privilege. The referee added

that the “common interest” doctrine is an exception to the waiver rule, but found that for the

exception to apply there must be a common legal interest in a pending or reasonably anticipated

litigation, which was not the case here.

BOA moved to vacate the special referee’s decision and order, arguing that its communications

with Countrywide were protected even in the absence of pending anticipated litigation. The

Supreme Court denied the motion, finding that there had to be a reasonable anticipation of

litigation for the common interest doctrine to apply. The Appellate Division reversed, concluding

that the better policy would be not to require that the communication be tied to litigation.

A majority of the New York State Court of Appeals reversed the Appellate Division order, holding

that the litigation requirement “that has historically existed in New York” applied and that the

common-interest doctrine should not be expanded “to protect shared communications in

furtherance of any common legal interest.” Id. at ∗6. It found that the benefits in extending the

doctrine to communications made in the absence of pending or anticipated litigation were

outweighed by the substantial loss of relevant evidence and the potential for abuse. The Court

noted that in a non-litigation setting, there may be parties asserting common legal interests, who

are really protecting non-legal or exclusively business interests. It rejected BOA’s argument that

the common-interest doctrine should be coextensive with the attorney-client privilege, which is

not tied to the contemplation of litigation

because the doctrine itself is not an evidentiary privilege or an independent basis

for the attorney client privilege (citation omitted). Rather, it limits the

Page 244: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

circumstances under which attorneys and clients can disseminate their

communications to third parties without waiving the privilege, which our courts

have reasonably construed to extend no further than communications related to

pending or reasonably anticipated litigation.

Id. at *8.

The dissent pointed out that

[g]iven that the attorney-client privilege has no litigation requirement and the

reality that clients often seek legal advice specifically to comply with legal and

regulatory mandates and avoid litigation or liability, the privilege should apply to

private client-attorney communications exchanged during the course of a

transformative business enterprise, in which the parties commit to collaboration and

exchange of client information to obtain legal advice aimed at compliance with

transaction-related statutory and regulatory mandates.

Id. at *9.

The dissent emphasized that a majority of federal courts and a significant number of state courts

that have addressed the issue have held that the privilege applied even if litigation is not pending

or reasonably anticipated.

CPLR 4503 - Common-interest privilege – In camera review to determine whether

communications were made in reasonable anticipation of litigation

Kenyon & Kenyon LLP v. SightSound Tech., LLC, 151 A.D.3d 530, 58 N.Y.S.3d 298 (1st Dep’t

2017) (“Since the court issued the order deciding plaintiff’s motion to compel, the Court of

Appeals has clarified that the common interest doctrine preserves the privileged status of an

attorney-client communication disclosed to a third party only if the communication was shared ‘in

furtherance of a common legal interest in pending or reasonably anticipated litigation’ (citation

omitted). Therefore, we reverse the denial of plaintiff’s motion to compel the production of an

unredacted copy of the minutes of the indicated SST board meeting, at which an attorney provided

legal advice to the SST board in the presence of two persons (Sohn and Giordano) identified in the

minutes as representatives of DMT, and direct that the court conduct an in camera review of the

unredacted minutes to determine whether the redacted material comprises attorney-client

communications made in reasonable anticipation of litigation in which SST and DMT would have

a common interest. We note, however, that, because plaintiff did not challenge the status of Sohn

and Giordano as representatives of DMT in its motion to compel, that matter, which plaintiff raises

for the first time on appeal, need not be considered upon the in camera review.”).

Page 245: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

CPLR 4503 - Common interest privilege -further proceedings are necessary to determine

whether the common-interest privilege applies

21st Century Diamond, LLC v. Allfield Trading, LLC, 142 A.D.3d 913, 38 N.Y.S.3d 151 (1st Dep’t

2016) (“Since any otherwise applicable common-interest privilege has not been waived, in light

of the recent Court of Appeals decision clarifying the scope of the common-interest privilege

(Ambac Assur. Corp. v Countrywide Home Loans, Inc., 27 NY3d 616 [2016]) (which was issued

after Supreme Court rendered its order), further proceedings are necessary to determine whether

the common-interest privilege applies in the first instance to the documents as to which Sterling

asserts privilege. In deciding the motion to compel, Supreme Court noted that a question of fact

exists as to whether Sterling entered into the common-interest agreement with Exelco to protect

its business relationship with Exelco (in which case the common-interest privilege would not apply

under Ambac) or out of a reasonable concern that plaintiffs might decide to add Sterling as a

defendant (in which case the common-interest privilege would apply under Ambac).”).

CPLR 4504- Doctor, dentist, podiatrist, chiropractor and nurse

CPLR 4504 / 3101 - Disclosure of photographs constituting breach of fiduciary duty

Skokan v. Peredo, 151 A.D.3d 1096, 58 N.Y.S.3d 110 (2d Dep’t 2017) (“The defendant failed to

demonstrate, prima facie, that the disclosure of the plaintiff’s photographs did not constitute a

breach of fiduciary duty, as her submissions failed to eliminate triable issues of fact as to whether

the plaintiff consented to that disclosure (citations omitted). The defendant failed to establish,

prima facie, that the disclosure was permitted under the consent forms signed by the plaintiff, and

in particular, that the photographs were limited to the plaintiff’s ‘treated sites’ or that the

photographs were disclosed for ‘teaching purposes.’ Nor did the defendant establish, prima facie,

that a verbal consent to the disclosure would have been valid under the circumstances of this case,

or, if a verbal consent would have been valid, whether the plaintiff provided such verbal consent.

Since the defendant failed to establish her prima facie entitlement to judgment as a matter of law

dismissing the third cause of action, alleging breach of fiduciary duty, the Supreme Court correctly

denied that branch of the motion, regardless of the sufficiency of the plaintiff’s opposition papers

(citation omitted).”).

CPLR 4515 - Form of expert opinion

CPLR 4515 - Expert opinion on specific causation in toxic tort case

Dominick v. Charles Millar & Son Co., 149 A.D.3d 1554, 54 N.Y.S.3d 233 (4th Dep’t 2017)

(“Plaintiff testified that he was exposed to asbestos dust from asbestos boards and cement supplied

by the Millar defendants that were used in the heat treat area of a pneumatic-tool making plant.

The hypothetical question that plaintiff asked his expert was based on plaintiff’s testimony or was

otherwise ‘fairly inferable from the evidence’ (citations omitted). With respect to specific

causation, the Court of Appeals held in Parker v. Mobil Oil Corp. (citation omitted) that the expert

Page 246: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

opinion must set forth that the plaintiff ‘was exposed to sufficient levels of the toxin to cause the

[injuries]’ (citation omitted). However, as the Court of Appeals later wrote, ‘Parker explains that

precise quantification’ or a dose-response relationship’ or an exact numerical value’ is not required

to make a showing of specific causation’ (citation omitted). There simply ‘ must be evidence from

which the factfinder can conclude that the plaintiff was exposed to levels of [the] agent that are

known to cause the kind of harm that the plaintiff claims to have suffered’ ‘ (citation omitted).

Here, plaintiff’s expert opined that, if a worker sees asbestos dust, that is a ‘massive exposure . . .

capable of causing disease.’ Contrary to the Millar defendants’ contention, the expert’s opinion,

considered along with the rest of her testimony, was sufficient to establish specific causation

(citations omitted).”).

CPLR 4515 - Foundation for expert opinion

David L. Ferstendig, Plaintiff’s Experts Fail to Establish That Decedent Was Exposed to Sufficient

Levels of Toxins, 677 N.Y.S.L.D. 2, 3 (2017).

The Court of Appeals decisions in Parker v. Mobil Oil Corp., 7 N.Y.3d 434 (2006) and Cornell v.

360 W. 51st St. Realty, LLC, 22 N.Y.3d 762 (2014) are the seminal cases detailing the general

requirements for the admission of an expert’s scientific opinions in toxic tort cases. Thus, “it is not

always necessary for a plaintiff to quantify exposure levels precisely or use the dose-response

relationship, provided that whatever methods an expert uses to establish causation are generally

accepted in the scientific community.” Parker, 7 N.Y.3d at 448. More recently, in Sean R. v. BMW

of N. Am., LLC, 26 N.Y.3d 801 (2016), discussed in detail in the May 2016 edition of the Law

Digest, the Court reiterated that “we have never ‘dispensed with a plaintiff’s burden to establish

sufficient exposure to a substance to cause the claimed adverse health effect.’” Id. at 808.

Matter of New York City Asbestos Litig., 48 N.Y.S.3d 365 (1st Dep’t 2017) (“Juni”) is an asbestos-

related case dealing with the admission of expert testimony. In Juni, plaintiff claimed that the

decedent contracted mesothelioma from his alleged exposure as an auto mechanic to various

asbestos-containing products. In this decision, the claims related to exposure to asbestos dust from

brakes, clutches, and manifold gaskets in defendant Ford Motor Company vehicles. While the jury

found for the plaintiff, the trial court granted Ford’s motion to set aside the verdict, pursuant to

CPLR 4404(a).

What was really at issue here was whether asbestos cases should be treated like other toxic tort

cases. You may ask (with Passover approaching), what makes this type of case different from all

other toxic tort cases? The question stems at least in part from the fact that it is basically accepted

by the courts that mesothelioma is (only) caused by exposure to asbestos. Moreover, in practice,

in New York state courts, allegations of any alleged exposure to a product containing any amount

of asbestos have generally sufficed.

A majority of the First Department in Juni stated unequivocally, however, that the Parker and

Cornell requirements apply to asbestos-exposure cases, rejecting the dissent’s suggestion

Page 247: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

that applying the same criteria would set an insurmountable standard for asbestos

claims. However, there is no valid distinction to be made between the difficulty of

establishing exposure to, say, benzene in gasoline and exposure to asbestos. In each

type of matter, a foundation must be made to support an expert’s conclusion

regarding causation.

48 N.Y.S.3d 365 at ∗2.

It also rejected plaintiff’s claim that the court’s earlier decision in Lustenring v. AC&S, Inc., 13

A.D.3d 69 (1st Dep’t 2004), lv. denied, 4 N.Y.3d 708 (2005), or other asbestos cases have

somehow altered the Court of Appeals’ standards. In fact, each of those cases was decided based

on its discrete set of facts and the expert testimony there established that the extent and quantity

of asbestos dust exposure was sufficient to cause mesothelioma. Thus,

the fact that asbestos, or chrysotile, has been linked to mesothelioma, is not enough

for a determination of liability against a particular defendant; a causation expert

must still establish that the plaintiff was exposed to sufficient levels of the toxin

from the defendant’s products to have caused his disease (citation omitted). Even

if it is not possible to quantify a plaintiff’s exposure, causation from exposure to

toxins in a defendant’s product must be established through some scientific method,

such as mathematical modeling based on a plaintiff’s work history, or comparing

the plaintiff’s exposure with that of subjects of reported studies (citation omitted).

Juni, 48 N.Y.S.3d 365 at ∗2.

The court found that the plaintiff’s experts here did not “quantify the decedent’s exposure levels

or otherwise provide any scientific expression of his exposure level with respect to Ford’s

products.” Id. It agreed with the trial court’s decision not to accept plaintiff’s single exposure or

cumulative exposure theories -

Neither of plaintiff’s experts stated a basis for their assertion that even a single

exposure to asbestos can be treated as contributing to causing an asbestos-related

disease. Moreover, reliance on the theory of cumulative exposure, at least in the

manner proposed by plaintiffs, is irreconcilable with the rule requiring at least some

quantification or means of assessing the amount, duration, and frequency of

exposure to determine whether exposure was sufficient to be found a contributing

cause of the disease (citation omitted).

Id.

The majority disagreed with the dissent that an alleged consensus in the scientific community that

low dose asbestos exposure is sufficient to cause mesothelioma “entitles a particular plaintiff to be

awarded judgment against a particular defendant by merely establishing some exposure to a

product containing any amount of asbestos.” Id.

Page 248: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

CPLR 4515 - Frye inquiry and other admissibility questions

Likos v. Niagara Frontier Tr. Metro Sys., Inc., 149 A.D.3d 1474, 53 N.Y.S.3d 739 (4th Dep’t

2017) (“We thus conclude that a Frye hearing was not warranted here, inasmuch as plaintiff failed

even to contend that the theory espoused by defendant’s expert was based on novel scientific

principles (citations omitted). We further conclude that the court did not abuse its discretion in

refusing to preclude the testimony of defendant’s expert toxicologist. ‘ The Frye inquiry is separate

and distinct from the admissibility question applied to all evidence—whether there is a proper

foundation—to determine whether the accepted methods were appropriately employed in a

particular case’ ‘ (citation omitted). On this point, plaintiff contends that ‘a study involving no

more than twenty subjects is not an adequate foundation for [the expert’s] opinion that [decedent]

had smoked mari[h]uana 15 minutes before the subject accident.’ The fact that a particular study

may be inadequate is relevant to the weight to be given to the testimony concerning the study, but

it does not preclude its admissibility (citation omitted). Furthermore, this was not the only study

or test addressed in the expert disclosure, and we therefore cannot conclude that the court abused

its discretion in denying the preclusion motion based on, inter alia, an apparent lack of foundation

for the opinion or relevancy to the issues of causation and decedent’s negligence (citations

omitted).”).

CPLR 4515 - Expert opinion- “The professional reliability exception to the hearsay rule

enables an expert witness to provide opinion evidence based on otherwise inadmissible

hearsay, provided it is demonstrated to be the type of material commonly relied on in the

profession”

Tornatore v. Cohen, 2018 NY Slip Op 04145 (4th Dep’t 2018) (“We reject defendant's further

contention that the court erred in denying her motion to strike the testimony of the life care

planning expert on the ground that her opinion was principally based upon inadmissable hearsay

statements of plaintiff's treating physician. It is well settled that ‘opinion evidence must be based

on facts in the record or personally known to the witness’ (citation omitted). It is equally well

settled, however, that an expert is permitted to offer opinion testimony based upon facts not in

evidence where the material is ‘of a kind accepted in the profession as reliable in forming a

professional opinion’ (citations omitted). ‘The professional reliability exception to the hearsay rule

enables an expert witness to provide opinion evidence based on otherwise inadmissible hearsay,

provided it is demonstrated to be the type of material commonly relied on in the profession’

(citations omitted), and ‘provided that it does not constitute the sole or principal basis for the

expert's opinion’ (citations omitted).”).

CPLR 4518 - Business records

CPLR 4518 - Failure to lay a proper foundation for admission of records

Deutsche Bank Natl. Trust Co. v. Carlin, 152 A.D.3d 491, 61 N.Y.S.3d 16; (2d Dep’t 2017) (“The

plaintiff failed to demonstrate the admissibility of the records relied upon by Rhodes under the

business records exception to the hearsay rule (citation omitted). Rhodes, an employee of the

Page 249: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

current loan servicer, did not aver that he was personally familiar with the record keeping practices

and procedures of BOA, the prior loan servicer. Thus, Rhodes failed to lay a proper foundation for

admission of records concerning service of the required notices, and his assertions based on these

records were inadmissible (citations omitted).”).

Cadlerock Joint Venture, L.P. v. Trombley, 150 A.D.3d 957, 54 N.Y.S.3d 127 (2d Dep’t 2017)

(“Contrary to the Supreme Court’s determination, the plaintiff failed to demonstrate the

admissibility of the records relied upon by its account officer under the business records exception

to the hearsay rule (citation omitted), and thus, failed to establish a default in payment under the

note. ‘A proper foundation for the admission of a business record must be provided by someone

with personal knowledge of the maker’s business practices and procedures’ (citation omitted).

Here, the plaintiff’s account officer did not allege that she was personally familiar with HSBC’s

record keeping practices and procedures, and thus failed to lay a proper foundation for the

admission of records concerning the payment history under the note (citations omitted). Inasmuch

as the plaintiff’s motion was based on evidence that was not in admissible form, the plaintiff failed

to establish its prima facie entitlement to judgment as a matter of law (citations omitted).”).

HSBC Mtge. Servs., Inc. v. Royal, 142 A.D.3d 952, 37 N.Y.S.3d 321 (2d Dep’t 2016) (“The

plaintiff failed to demonstrate the admissibility of the records relied upon by Roesner under the

business records exception to the hearsay rule (see CPLR 4518[a]), and, thus, failed to establish

the appellant’s default in payment under the note. ‘A proper foundation for the admission of a

business record must be provided by someone with personal knowledge of the maker’s business

practices and procedures’ (citations omitted). Roesner, who was employed by the loan servicer to

U.S. Bank, did not allege that he was personally familiar with the plaintiff’s record keeping

practices and procedures. Thus, Roesner failed to lay a proper foundation for the admission of

records concerning the appellant’s payment history (citations omitted), and his assertions based on

these records were inadmissible (citation omitted). Inasmuch as the plaintiff’s motion was based

on evidence that was not in admissible form, the plaintiff failed to establish its prima facie

entitlement to judgment as a matter of law (citation omitted).”).

Deutsche Bank Natl. Trust Co. v Brewton, 142 A.D.3d 683, 37 N.Y.S.3d 25 (2d Dep’t 2016) (“The

plaintiff failed to demonstrate that the records relied upon by Frye were admissible under the

business records exception to the hearsay rule (see CPLR 4518[a]) because Frye, an employee of

Wells Fargo, did not attest that she was personally familiar with the plaintiff’s record-keeping

practices and procedures (citations omitted).).

CPLR 4518 - “The business records exception to the hearsay rule does not permit the

receipt into evidence of entries based upon voluntary hearsay statements made by third

parties not engaged in the business or under a duty in relation thereto (citation omitted).”

76th & Broadway Owner LLC v. Consolidated Edison Co. of N.Y. Inc., 160 A.D.3d 447, 74

N.Y.S.3d 527 (1st Dep’t 2018).

Page 250: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

CPLR 4518(a) - Portion of records germane to diagnosis and treatment

Matter of Jonathan E. (John E.), 149 A.D.3d 1197, 51 N.Y.S.3d 252 (3rd Dep’t 2017) (“Here,

while Family Court admitted the entirety of the father’s hospital records into evidence without any

testimony as to which portions of the records were germane to the father’s diagnosis and treatment,

it relied on only those portions of the hospital records that recorded the father’s admissions

regarding his drug use. Under the circumstances of this case, it is beyond question that the father’s

admissions of drug use, including the particular drugs used, the amount used and the frequency

with which he used them, were relevant to a diagnosis of drug addiction and detoxification

treatment and, thus, it was in the regular course of the hospital’s business to record such statements.

Accordingly, inasmuch as the portions of the medical records relied on by Family Court were

admissible under Family Ct Act § 1046 (a) (iv), any error in admitting any inadmissible portions

of the hospital records was inconsequential (citations omitted).”).

CPLR 4518(d) - Rebuttal of presumption of paternity

Matter of Cayra M. v. Fotis B., 147 A.D.3d 479, 47 N.Y.S.3d 276 (1st Dep’t 2017) (“Respondent

also presented evidence of a meritorious defense. Although the DNA test showed that there was a

99.9% probability that respondent was the child’s father, respondent stated that his identical twin

brother, who was in the courtroom and was prepared to testify, had sexual relations with petitioner

mother during the conception period. The brother’s testimony may have rebutted the presumption

of paternity provided in Family Court Act § 532(a) and CPLR 4518(d) (citation omitted), if

respondent was also able to demonstrate that he and his brother have identical DNA. Further, the

best interests of the subject child are not furthered by a possibly erroneous paternity finding.”).

CPLR 4545 - Admissibility of collateral source of payment

CPLR 4545

David L. Ferstendig, Court of Appeals Splits on Application of CPLR 4545, 692 N.Y.S.L.D. 2-3

(2018).

Court Of Appeals Splits on Application of CPLR 4545

Do Accident Disability Retirement Benefits Act as an Offset Against Both Future Earnings

and Pension Benefits?

Andino v. Mills, 2018 N.Y. Slip Op. 04273 (June 12, 2018), concerns the application of CPLR

4545, commonly referred to as the collateral source rule. The relevant portion (prior to an

amendment which does not impact the analysis) provides that

[i]n any action brought to recover damages for personal injury … where the plaintiff

seeks to recover for the cost of medical care, … loss of earnings or other economic

loss, evidence shall be admissible for consideration by the court to establish that

Page 251: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

any such past or future cost or expense was or will, with reasonable certainty, be

replaced or indemnified, in whole or in part, from any collateral source [with some

exceptions] …. If the court finds that any such cost or expense was or will, with

reasonable certainty, be replaced or indemnified from any such collateral source, it

shall reduce the amount of the award by such finding, minus an amount equal to

the premiums paid by the plaintiff for such benefits for the two-year period

immediately preceding the accrual of such action and minus an amount equal to the

projected future cost to the plaintiff of maintaining such benefits.

CPLR 4545(a).

It is significant to note that the law in this area has changed dramatically. Under the common law,

an injured person could recover the full amount of losses from a tortfeasor even if the injured

person also recovered payments from employers or through his or her medical or other insurance

policies. CPLR 4545, enacted in 1984, changed the law significantly, flipping the equation. Now

reimbursed medical expenses or lost earnings, for example, can be an offset against damages

awarded in a third-party tort action.

In Andino, the plaintiff, a retired police officer injured while on duty, brought this action and the

jury awarded her a set amount for past and future lost earnings, past and future pain and suffering,

future medical expenses, and future loss of pension.

Pursuant to CPLR 4545, defendant argued that the plaintiff’s accident disability retirement benefits

(ADR) were a collateral source that the court should offset against the jury award for future lost

earnings and pension benefits. Following a hearing, the trial court denied the motion, finding that

the defendants had failed to show a connection between the projected ADR benefits and the lost

earnings and pension. The Appellate Division modified the order, granting the motion to offset the

award for future pension benefits (bringing these damages to zero), but otherwise affirming the

denial of an offset for future lost earnings.

A majority of the Court of Appeals modified the Appellate Division order. It concluded that "ADR

benefits operate sequentially as payment for future lost earnings and pension benefits." Andino,

2018 N.Y. Slip Op. 04273 at ∗2. The Court noted that police officers who suffer an accidental on-

the-job injury causing them to stop working do not receive Workers’ Compensation Law benefits.

Instead, they receive ADR benefits. While those benefits are lifetime payments, the Medical Board

of the Police Pension Fund (Board) can require annual medical examinations. If the Board

concludes that the recipient can engage in "a gainful occupation," the recipient can be placed on

an eligible preferred list of candidates available to work. If the recipient then is employed or is

offered City service, ADR benefits can be reduced. As a result, ADR benefits that are paid for a

period prior to when the recipient would have been eligible for a service retirement can be reduced

by amounts earned or earning capacity, over a statutory maximum of permissible income. This,

the majority stated, means that these ADR benefits replace future lost earnings.

However, once the recipient reaches eligibility for a regular service pension, if not for the injury,

ADR benefits are not reduced. In addition, the recipient can work at that point without having his

Page 252: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

or her ADR benefits reduced (since they are now operating as a pension). Thus, the majority

concluded that because "ADR replaces earnings and pension, it is a collateral source within the

meaning of CPLR 4545 that a court must set off against both, representing the category of

economic loss in which ADR is allocated sequentially." Id. at ∗3.

The majority noted that the ultimate goal of CPLR 4545 is to eliminate duplicative recovery by

the plaintiff. It pointed to a letter from the New York City Mayor at the time of the enactment of

CPLR 4545, contained in the Bill Jacket, evidencing that New York City believed that CPLR 4545

would lead to a full offset of ADR benefits against tort damage awards. Thus, the Court ruled that

the projected ADR benefits should have been offset against the jury’s award of both categories of

economic losses. "ADR benefits replace the income Andino would have earned if she did not have

to retire early due to her work-related disability- causing injury. Then, once she reaches what

would have been her in-service retirement age, the ADR benefits replace the pension she was

entitled to at that time." Id.

Contrary to the plaintiff’s position, the majority stated that its prior decision in Oden v. Chemung

County Indus. Dev. Agency, 87 N.Y.2d 81 (1995), did not mandate that there be a direct match

between the collateral source and the jury damage award, requiring an exact dollar equivalence.

All that needs to be established is that the collateral source replaces a category of loss in the jury

award. In addition, Oden did not limit a collateral source’s offset to a single category of an award.

Thus, while in Oden there was only one category of loss actually replaced by the benefits, here,

the majority noted, the ADR benefits replaced two different categories of the award.

The dissent argued that the majority had repudiated its earlier "careful" decision in Oden by

claiming that "a particular category of loss" can mean two or more categories of losses; this

conclusion may leave plaintiffs undercompensated; "wages" or "salary" are not the same as

"benefits" and ADR benefits, like pension benefits, are received only when you no longer provide

services; and thus, ADR benefits "neatly correspond to the category of pension benefits, not to the

category of wages."

The dissent stated that Oden required that a collateral source "may only correspond to a particular

category of loss." Here, ADR benefits offset the plaintiff’s entire lost pension. Thus, any surplus

should not be used to offset any other category. Finally, the dissent opined that the pension benefits

plaintiff expects to recover are not duplicative of the future damages award, because, if the plaintiff

had not been injured, she would have been allowed to earn income after retirement without a

reduction of her pension benefits.

CPLR 4547 - Compromise and offers to compromise

CPLR 4547 - Emails constituting settlement communications

Gottbetter v. Crone Kline Rinde, LLP, 2018 NY Slip Op 04677 (1st Dep’t 2018) (“Contrary to

defendants' argument, certain emails at issue constitute settlement communications, and detailed

references to those negotiations are inadmissible and therefore must be stricken from the answer

Page 253: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

(citations omitted). In addition, the first counterclaim must be dismissed because it is predicated

upon allegations that Paul Gottbetter waived his rights under the agreement during the course of

the settlement discussions. We note that, in any event, the inadmissible communications do not

demonstrate such a waiver.”).

CPLR 4547 - No evidence that parties were engaged in settlement discussions when initial

email was sent

Matter of Geo-Group Communications, Inc. v. Jaina Sys. Network, Inc., 144 A.D.3d 598, 42

N.Y.S.3d 118 (1st Dep’t 2016) (“Here, the arbitrator’s reliance on an email in which Jaina’s CEO

acknowledged the debt did not violate New York’s public policy, or CPLR 4547, which provides

that documents reflecting settlement negotiations are inadmissible. No evidence was presented that

at the time the initial email was sent the parties were engaged in settling a dispute. Indeed, in his

affidavit, Jaina’s CEO stated that he sent the email as a courtesy to petitioner to assist its CEO in

connection with an external audit.”).

ARTICLE 50 - JUDGMENTS

CPLR 5001 - Interest to verdict, report or decision

CPLR 5001 - Prejudgment interest for award of unpaid legal fees

Davidoff Hutcher & Citron LLP v. Smirnov, 145 A.D.3d 488, 41 N.Y.S,3d 881 (1st Dep’t 2016)

(“The addition of prejudgment interest to plaintiff’s award for unpaid legal fees under quantum

meruit was mandatory (citations omitted). Moreover, where plaintiff was required to seek

permission to withdraw, it was required to continue to zealously represent defendants until the

court granted its motion to withdraw (Rules of Professional Conduct [22 NYCRR 1200.0] rule

1.16[d], [e]). Therefore, it was incorrect for the JHO to refuse to consider any value for plaintiff’s

work from the time it moved by order to show cause to withdraw. This is particularly true where

plaintiff sought, but was denied, an adjournment of the trial date, and the court took six months to

grant the application.”).

CPLR 5001 - Award of prejudgment interest in matrimonial action is discretionary

O’Donnell v. O’Donnell, 153 A.D.3d 1357, 61 N.Y.S.3d 321 (2d Dep’t 2017) (“As to prejudgment

interest, ‘[t]here is no automatic entitlement to prejudgment interest, under CPLR 5001, in

matrimonial litigation’ (citation omitted). The general rule in matrimonial actions is that the

determination of whether to award prejudgment interest is a discretionary determination with the

trial court (citations omitted).”).

Page 254: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

CPLR 5002 - Interest from verdict, report or decision to judgment

CPLR 5002 - Prejudgment interest does not run from date of stipulation of liability

Mahoney v. Brockbank, 142 A.D.3d 200, 204-205, 35 N.Y.S.3d 459 (2d Dep’t 2016) (The Second

Department has ruled that where the issue of liability was resolved by stipulation, and the trial on

damages was conducted almost 2 ½ years later, prejudgment interest ran from the date of the jury

verdict on damages, not from the earlier date of the stipulation of liability. In doing so, the court

stressed the difference between stipulations and verdicts, reports or decisions. “Stipulations are

different. They are not adjudications made by a third party, but voluntary agreements, or contracts,

by which the opposing parties themselves chart their own course in a way that makes sense for

them (citations omitted). Here, for example, the stipulation addressed not only the issue of liability,

but also the cause of action seeking punitive damages, and it provided for a cap on the plaintiff’s

recovery. Whatever reasons the parties may have had for entering into the stipulation, they resolved

those issues in a manner conceptually different from the methods that result in verdicts, reports, or

decisions. Clearly, the Legislature did not expressly include stipulations in CPLR 5002. Had the

Legislature wished to include stipulations, it easily could have done so, as it has in other statutes

(citations omitted). And, since, as discussed above, stipulations are conceptually different from

verdicts, reports, and decisions, the Legislature’s omission of stipulations from CPLR 5002 should

be regarded as significant (citations omitted).”).

CPLR 5003-a - Prompt payment following settlement

CPLR 5003-a - Monies payable by settling defendants to third-party lienholder (not monies

owed directly to settling plaintiff) do not constitute “sums due” to plaintiff within meaning

of statute

Ronkese v. Tilcon N.Y., Inc., 153 A.D.3d 259, 59 N.Y.S.3d 605 (3d Dep’t 2017) (“CPLR 5003-a

(a) provides, in relevant part, that ‘[w]hen an action to recover damages has been settled, any

settling defendant . . . shall pay all sums due to any settling plaintiff within twenty-one days of

tender, by the settling plaintiff to the settling defendant, of a duly executed release and a stipulation

discontinuing action executed on behalf of the settling plaintiff.’ In the event that such payment is

not promptly made within the prescribed time period, the statute authorizes ‘any unpaid plaintiff

[to] enter judgment . . . against such settling defendant who has not paid’ for the full amount set

forth in the release, together with interest, costs and disbursements (citation omitted). The dispute

here centers on whether monies payable by a settling defendant to a third-party lienholder pursuant

to a settlement agreement between a plaintiff and the defendant constitute a ‘sum[] due’ to the

plaintiff within the meaning of CPLR 5003-a. We hold that it does not. ‘When presented with a

question of statutory interpretation, our primary consideration is to ascertain and give effect to the

intention of the Legislature’ (citations omitted). Our analysis is guided by the principle that ‘the

text of a provision is “the clearest indicator of legislative intent and courts should construe

unambiguous language to give effect to its plain meaning”‘ (citations omitted). Where, as here, the

interpretation of a statute turns on the meaning of words not defined therein, ‘we construe words

of ordinary import with their usual and commonly understood meaning, and in that connection

Page 255: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

have regarded dictionary definitions as useful guideposts in determining the meaning of a word or

phrase’ (citations omitted). CPLR 5003-a provides that a settling plaintiff is entitled to a judgment

inclusive of interest, costs and disbursements on the amount set forth in the release in the event

that a settling defendant fails to pay, within 21 days of tender of the release and stipulation

discontinuing the action, ‘all sums due’ to the settling plaintiff. Our analysis thus hinges on the

meaning of the word ‘sum,’ a term that is not defined in the CPLR. Black’s Law Dictionary defines

‘sum’ as a ‘quantity of money’ (Black’s Law Dictionary [10th ed 2014], sum). Likewise, the term

‘sum’ is commonly defined and understood as ‘an indefinite or specified amount of money’

(citations omitted). Notably, the Court of Appeals has held that, absent a controlling definition, the

term ‘sums’ ‘logically acquires its widely used meaning of indefinite or specified amount[s] of

money’ (citation omitted). Employing this commonly understood meaning of the word ‘sum,’ we

conclude that CPLR 5003-a applies only to the nonpayment of settlement monies owed directly to

a settling plaintiff pursuant to a settlement agreement. This construction is not only in accord with

the plain language of the prompt payment mandate itself, but is also supported by the language of

the statutory enforcement mechanism set forth in subdivision (e). CPLR 5003-a (e), the teeth that

effectuate subdivision (a)’s prompt payment directive, authorizes an ‘unpaid plaintiff’ to enter

judgment inclusive of interest, costs and disbursements against the nonpaying settling defendant

(citation omitted). Simply put, plaintiff here is not ‘unpaid’ — all sums required to be paid to him

pursuant to the parties’ settlement agreement (i.e., $3.25 million) were paid by defendant within

the statutorily-prescribed 21-day time period. Had the Legislature intended to extend the reach of

CPLR 5003-a to a settling defendant’s failure to promptly pay all valuable consideration due a

settling plaintiff pursuant to the parties’ settlement agreement, it could have easily said so. It did

not, and ‘a court cannot amend a statute by inserting words that are not there’ (citations omitted).

Our interpretation of the statute finds further support in its legislative history. While the broadly

stated purpose of CPLR 5003-a is to ‘encourage the prompt payment of claims which have been

settled’ (citations omitted), the history surrounding the legislation confirms that it was enacted in

response to a perceived problem of settling defendants ‘delay[ing] substantially in forwarding the

settlement check to the plaintiff[,] thereby resulting in the plaintiff losing the interest on that money

during the delay’ (citations omitted). The statute thus seeks to provide ‘settling plaintiffs with

important protections in attempting to collect money damages,’ by relieving such plaintiffs of ‘the

burden of being forced to continually pursue defendants for money which is often essential to their

well-being’ and granting them rights ‘similar to those of plaintiffs who prevail in a litigation action

in court when a money judgment is entered in their favor and bears interest from the date of its

entry’ (citation omitted). Nothing in the legislative history of CPLR 5003-a suggests that the

Legislature intended to avail a settling plaintiff of the benefits bestowed by the statute in the event

that a settling defendant fails to promptly pay a third party pursuant to the parties’ settlement

agreement. For these reasons, we find CPLR 5003-a to be inapplicable to the circumstances

presented herein.”).

CPLR 5003-a - No interest where legislative approval was condition to proposed settlement

Azbel v. County of Nassau, 149 A.D.3d 1020, 53 N.Y.S.3d 656 (2d Dep’t 2017) (“Here, the

Supreme Court properly denied the plaintiffs’ motion pursuant to CPLR 5003-a(e) to direct entry

of a judgment awarding them interest on the amount of the parties’ settlement, plus costs and

disbursements. Contrary to the plaintiffs’ contention, legislative approval was a condition of the

Page 256: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

proposed settlement entered into between the plaintiffs and the County. The Nassau County

Administrative Code provides that the County Attorney shall not be empowered to settle any

rights, claims, demands, or causes of action against the County unless authorized by the County

Legislature (citation omitted). ‘[A] party that contracts with the State or one of its political

subdivisions is chargeable with knowledge of the statutes which regulate its contracting powers

and is bound by them’ (citations omitted). Inasmuch as the County Legislature did not approve the

bond ordinance, a condition of the parties’ settlement was not met. Therefore, the matter was not

finally settled and the 90-day period within which the County would have been required to make

payment of the settlement amount was not triggered (citation omitted).”).

CPLR 5003-a - Maximum limit of MVAIC’s liability under the Insurance Law was

$25,000, despite amount in release

Matter of Baker v. Motor Veh. Acc. Indem. Corp., 161 A.D.3d 1070 (2d Dep’t 2018) (“MVAIC

alleged that it sought, on several occasions, to tender its $25,000 statutory liability limit on the

underlying judgment, and forwarded to the petitioner’s counsel a release reflecting the proper

statutory amount. It is uncontested that MVAIC refused to tender payment until the petitioner

executed the release. However, the petitioner’s counsel demanded and forwarded a release

reflecting the sum of $30,108.46. . . . The maximum limit of MVAIC’s liability under the Insurance

Law is $25,000 (citation omitted). MVAIC’s contention that the petitioner is not entitled to interest

because the delay in payment was caused by the plaintiff’s failure to execute a release in the proper

amount is without merit. While MVAIC has the right to a release upon the settlement of a claim

(citations omitted), MVAIC is not entitled to such a release when ordered to pay on a judgment.

Here, the underlying action was not settled, but terminated with the entry of a judgment. No release

is required to be tendered before the payment of a judgment, as it is not an agreement to pay, but

an obligation to pay. While unconditional tender of a judgment amount stops the running of

postjudgment interest (citations omitted), here, MVAIC conditioned the tender of the payment

upon the execution of the release it provided. Thus, MVAIC’s contention that the petitioner caused

the delay in payment of the underlying judgment is without merit. However, contrary to the

petitioner’s contention, MVAIC’s liability for interest should have been calculated based on the

sum of $25,000, and such interest should have been computed from the date of entry of the unpaid

underlying judgment, that is, June 3, 2016, at 9% per annum (citations omitted).”).

CPLR 5011 - Definition and content of judgment

CPLR 5011 - Prior disclosure order which preceded plaintiff’s deposition, was not law of the

case, where deposition introduced additional evidence and raised new issues

Milligan v. Bifulco, 153 A.D.3d 1624 (4th Dep’t 2017) (“We agree with defendants that, based on

the broad and all-encompassing allegations of physical injury, the records sought from plaintiff’s

health insurance carriers are ‘material and necessary’ ‘to the defense of this action (CPLR 3101

[a]), inasmuch as they may contain information reasonably calculated to lead to relevant evidence’

‘ (citation omitted). We therefore modify the order by granting that part of the cross motion seeking

to compel plaintiff to provide authorizations for the disclosure of those records. We conclude,

Page 257: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

however, that disclosure should be made to Supreme Court ‘in camera so that irrelevant

information is not disclosed to defendants’ (id.). We further agree with defendants that they

established that plaintiff’s ‘special education, educational plans, IEP, [and] Section 504 records’

(special education records), as sought in demands 33 through 37, are relevant, or likely to lead to

evidence that would be relevant to plaintiff’s claims of a loss of ‘economic capacity’ (citation

omitted). For similar reasons, we conclude that defendants established that plaintiff’s records from

ITT Tech may contain information ‘reasonably calculated to lead to relevant evidence’ ‘(citation

omitted). We therefore further modify the order by granting those parts of the cross motion seeking

to compel plaintiff to provide authorizations for the disclosure of those records. We note again

that, because ‘the records may contain some privileged material, they should be reviewed in

camera by the . . . [c]ourt[,] and privileged material, if any, should be redacted before giving

[defendants] access to the records’ (citation omitted). Contrary to plaintiff’s contention, the court

was not bound by the law of the case to follow an earlier order denying disclosure of the special

education records. ‘The prior motion[s] preceded [plaintiff’s] deposition, which introduced

additional evidence and raised further issues, thereby precluding application of the law of the case

doctrine’ ‘(citations omitted). ‘In any event, the law of the case is not binding upon this Court’s

review of the order” (citation omitted).”).

CPLR 5011 - Law of the case

Delgado v. City of New York, 144 A.D.3d 46, 38 N.Y.S.3d 129 (1st Dep’t 2016) (Where an issue

is specifically decided on a summary judgment motion, that determination is the law of the case.

Thus, the trial court and the parties are bound by such determination “absent a showing of

subsequent evidence or change of law.”)

CPLR 5011 - Dismissal on statute of limitation grounds is considered to be on the merits for

res judicata purposes

Webb v. Greater N.Y. Auto. Dealers Assn., Inc., 144 A.D.3d 1134, 42 N.Y.S.3d 324 (2d Dep’t

2016) (“Here, the plaintiff’s claims in the amended complaint in this action commenced in 2013

arose out of the same set of operative facts as claims she asserted in the 2012 action, which were

dismissed on the ground that they were barred by the applicable statute of limitations (citation

omitted), and could have been raised in that prior action. Contrary to the plaintiff’s contention, a

dismissal on the ground of the statute of limitations is considered to be on the merits for res judicata

purposes (citations omitted).”).

CPLR 5011 - Res judicata and collateral estoppel

Maki v. Bassett Healthcare, 141 A.D.3d 979, 981, 35 N.Y.S.3d 587, 590 (3d Dep’t 2016) (“The

claims asserted in this action stem from the same series of transactions that gave rise to the 2010

action — i.e., the medical treatment provided to plaintiff following the 2008 accident. Indeed, the

majority of the facts alleged in the two complaints are nearly identical, with the only difference

being that the complaint commencing this action alleges continued pain and suffering, which

nonetheless relate ‘in time, space, origin [and] motivation’ to those adjudicated in the 2010 action

(citations omitted). Thus, inasmuch as all issues related to plaintiff’s claims sounding in simple

Page 258: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

negligence and fraud were fully and finally decided in the 2010 action (citation omitted), they are

barred by principles of res judicata and collateral estoppel (citation omitted). Plaintiff’s breach of

contract claim, which alleged that defendants breached their contractual obligation to provide him

with proper medical treatment, ‘could have been raised in the prior litigation’ and, consequently,

is precluded by the doctrine of res judicata (citations omitted). Accordingly, Supreme Court did

not err in dismissing the complaint.”).

CPLR 5011- Claim splitting rule

Strategic Point - The Fourth Department has ruled that the claim splitting rule “applies only when

a plaintiff commences a new action (or interposes a new counterclaim) to expand his or her

recovery from a prior action, not when the defendant in a prior action commences a new action

against the former plaintiff to vindicate his or her own affirmative claims. In the latter instance,

the defendant-turned-plaintiff did not assert any claim until the new action, and thus could not

have impermissibly ‘split’ such a claim across multiple actions.” Thus, where a tenant

“successfully defends an action commenced by his or her landlord, the tenant may commence a

new plenary action against the landlord to recover the attorneys’ fees to which he or she may be

entitled under Real Property Law § 234.” See Caracaus v. Conifer Cent. Sq. Assoc., 158 A.D.3d

63, 68 N.Y.S.3d 225 (4th Dep’t 2017) (“As a ‘narrow doctrine,’ the claim splitting rule is ‘most

frequently invoked in landlord-tenant cases [involving] attorney’s fees’ (citations omitted). …

Each of the foregoing cases are alike in one key respect - they enforced the claim splitting rule

against a landlord-plaintiff who sought attorneys’ fees expended in prosecuting a prior action

against the tenant-defendant. In other words, they each involve a landlord who successfully sued

a tenant, and who later sued the same tenant for the attorneys’ fees incurred in the prior action.

The landlords were commencing new actions (or interposing new counterclaims) to secure

additional relief that could have been obtained in their prior actions, and that, each of the foregoing

cases held, was barred by the claim splitting rule. … The claim splitting rule thus applies only

when a plaintiff commences a new action (or interposes a new counterclaim) to expand his or her

recovery from a prior action, not when the defendant in a prior action commences a new action

against the former plaintiff to vindicate his or her own affirmative claims. In the latter instance,

the defendant-turned-plaintiff did not assert any claim until the new action, and thus could not

have impermissibly “split” such a claim across multiple actions (citation omitted). After all, a party

must have asserted a claim in one action before he or she can be charged with splitting that claim

in a subsequent action. … We recognize that the First Department held otherwise in O’Connell v.

1205-15 First Ave. Assoc., LLC (28 AD3d 233 [1st Dept 2006]), but we decline to follow that case.

… Finally, we decline the landlord’s alternative invitation to treat the boilerplate, one-line requests

for attorneys’ fees in the tenant’s answers in Village Court as the equivalent of a “claim” that

triggered the claim splitting rule.”). The First Department has taken a contrary position. See

O’Connell v. 1205-15 First Ave. Assoc., LLC , 28 A.D.3d 233, 234, 813 N.Y.S.2d 378, 379 (1st

Dept 2006) (“the prohibition against the splitting of causes of action required plaintiff to seek

attorneys' fees within the action in which they were incurred, not a subsequent action.“).

Page 259: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

CPLR 5014 - Action upon judgment

CPLR 5014 - Renewal judgment

Jones Morrison, LLP v. Schloss, 155 A.D.3d 704, 65 N.Y.S.3d 52 (2d Dep’t 2017) (“The Supreme

Court properly granted the plaintiff’s motion for summary judgment and entered a renewal

judgment pursuant to CPLR 5014(1). The plaintiff established its prima facie entitlement to a

renewal judgment as a matter of law by showing - (1) the existence of the original judgment; (2)

that the defendant was the judgment debtor; (3) that the original judgment was docketed at least

nine years prior to the commencement of this action; and (4) that the original judgment remains

partially or completely unsatisfied (citations omitted). In opposition, the defendant failed to raise

a triable issue of fact. Her arguments in opposition to the motion and in support of her cross motion

were or could have been made in the prior actions, and are therefore barred by res judicata

(citations omitted).”).

C.T. Holdings, Ltd. v. Schreiber Family Charitable Found., Inc., 154 A.D.3d 433, 61 N.Y.S.3d

532 (1st Dep’t 2017) (“Plaintiff judgment creditor timely commenced this action for a renewal

judgment more than ten years after the docketing of the original judgment as a lien against

appellant’s property (citation omitted). Plaintiff made a prima facie showing of its entitlement to

a renewal judgment by demonstrating that defendants have not satisfied any part of the judgment

(citation omitted). In opposition, appellant argued that plaintiff was not entitled to a renewal

judgment because it had unreasonably delayed in enforcing the original judgment, while interest

accumulated on the judgment and tax liens were imposed. On appeal, he argues that the equitable

doctrine of laches applies since his circumstances have worsened during the ten years since the

judgment was docketed. The ‘mere delay’ in enforcement of a judgment, without actual prejudice

resulting from the delay, does not constitute laches (citations omitted). Appellant relies on facts

outside the record which, in any event, do not constitute injury or prejudice resulting from

plaintiff’s delay. The accumulation of postjudgment interest does not support a claim of laches,

since plaintiff is entitled by statute to interest on the unpaid amount of the original judgment, which

is valid for twenty years (citations omitted), regardless of whether the judgment is renewed.”).

CPLR 5015 - Relief from judgment or order

CPLR 5015 / 317 - Deliberate attempt to avoid service

John v. Arin Bainbridge Realty Corp., 147 A.D.3d 454, 46 N.Y.S.3d 589 (1st Dep’t 2017)

(“Viewing the totality of the record, we find that the court providently exercised its discretion to

deny vacatur of the default judgment under CPLR 317. Numerous anomalies in the record support

the court’s inference that Arin sought to deliberately avoid service. For example, both the address

given to the Secretary of State, 3161 Bainbridge Avenue, Bronx County (the Bainbridge address),

and on the deed registration for the subject property, 320 Nassau Blvd, Garden City, were

purportedly incorrect due to errors by Arin’s real estate counsel at the time Arin purchased the

Page 260: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

Bainbridge property, yet Arin never sought an affidavit from counsel to explain the error, and Arin

explains it only as a “mystery.” Moreover the summons and complaint, among many other notices,

were sent to these addresses, which purportedly housed defendants Samcity and Arin’s real estate

attorney’s office, and were not returned as undeliverable, but no affidavit was sought by Arin from

anyone at either address to explain why these correspondences were not forwarded to Arin.

Additionally, while Arin asserts that it used a P.O. box as its business address for a number of

years, the P.O. box recited on the lease, while similar, is not the same as the P.O. box recited by

plaintiff’s vice president in his affidavit. Arin’s secretary and shareholder, also averred that, since

2005, Arin has used the business address of 705 Rhinelander Avenue, Bronx County, however, in

reply, its vice president avers that the address used is 705 Rylander Avenue. While poor

draftsmanship or typographical errors might explain some of these anomalies, it does not explain

why Arin submitted a lease to show that it was Samcity’s out-of-possession landlord, where the

lease affirmatively refutes such an assertion, or the lack of any affirmative evidence of why those

notices sent to the Bainbridge Ave. and Nassau Blvd. addresses were never forwarded to Arin.

Under these circumstances, there were sufficient facts in the record to support the court’s inference

of deliberate avoidance of process in this case, or at least, that Arin has not demonstrated that it

did not receive notice in time to defend this action.”).

CPLR 5015(a)(1) - No reasonable excuse proffered to support vacating dismissal pursuant

to 22 NYCRR 202.27

Chase Home Fin., LLC v. Desormeau, 152 A.D.3d 1033, 59 N.Y.S.3d 812 (3d Dep’t 2017) (“Even

if plaintiff’s motion were timely, denial of the motion was proper as plaintiff failed to demonstrate

a reasonable excuse for its failure to proceed. ‘A motion to vacate a dismissal pursuant to 22

NYCRR 202.27 must be supported by a reasonable excuse for the failure to proceed and a

meritorious cause of action’ (citations omitted). Plaintiff’s counsel alleged that the delay in

proceeding with the foreclosure action was due to the transfer of the mortgage loan to a new

servicer and the need to comply with Administrative Order No. 548/10, which required that

plaintiff review all documents relied upon in the foreclosure action. To demonstrate its compliance

with the review, plaintiff relied upon the affidavit of Nathan Abeln, sworn to April 10, 2012.

Inasmuch as the Abeln affidavit was executed 14 months prior to the order of dismissal, it cannot

serve as a basis for a reasonable excuse. Plaintiff’s counsel further alleged that the delay was due

to the need to comply with Administrative Order No. 431/11, which required that plaintiff’s

counsel undertake a separate review of the loan documents and submit an affidavit of merit. The

review conducted by plaintiff’s counsel was not completed until June 27, 2013, and plaintiff has

offered no reason why its counsel could not complete review of the documents and proceed with

the foreclosure action within the 14-month period following execution of the Abeln affidavit and

prior to entry of the order dismissing the action. Therefore, even if we were to reach the merits of

plaintiff’s motion, we would find no reasonable excuse for plaintiff’s failure to proceed, which

would make it unnecessary to determine whether plaintiff had demonstrated a meritorious cause

of action (citation omitted).”).

Page 261: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

CPLR 5015(a)(1) – Trial court should not have vacated default - Conclusory and undetailed

allegation of “law office confusion” does not constitute a reasonable excuse

OneWest Bank, FSB v. Singer, 153 A.D.3d 714, 59 N.Y.S.3d 480 (2d Dep’t 2017) (“Contrary to

OneWest’s contention, it failed to provide a detailed and credible explanation of the default

(citations omitted). Rather, counsel’s affirmation in support of the motion contained only the

conclusory and undetailed allegation of ‘law office confusion’ after being substituted as counsel

for OneWest, which does not constitute a reasonable excuse (citations omitted). No other evidence

was submitted to corroborate the allegation. OneWest, therefore, failed to demonstrate a

reasonable excuse for its default (citations omitted). Accordingly, the Supreme Court

improvidently exercised its discretion in granting OneWest’s motion to vacate its default (citations

omitted).”).

CPLR 5015(a)(1) – Default not vacated- Plaintiff’s motion to vacate default made 18 months

after begin served with order and he made statement directly contrary to critical allegation

in complaint

Marston v. Cole, 147 A.D.3d 678, 48 N.Y.S.3d 116 (1st Dep’t 2017) (“The court may grant a

motion to vacate a default on grounds of excusable default and a showing of a meritorious defense,

if the motion is made within one year after service of the order entered on default, with written

notice of its entry (citations omitted). Marston did not move to vacate the order entered on default

until February 18, 2014, nearly 18 months after he was served with the order and requisite notice.

Furthermore, in support of his motion, Marston sought to demonstrate a meritorious defense by

making a statement directly contrary to a critical allegation in his complaint. Accordingly, the

motion court providently exercised its discretion not to vacate the default (citation omitted).”).

CPLR 5015(a)(1) - Failure to retain counsel prior to motion return date did not constitute

reasonable excuse for default

135 Bowery LLC v. 10717 LLC, 145 A.D.3d 1225, 43 N.Y.S.3d 207 (3d Dep’t 2016) (“Defendant’s

present assertion — that it was confused regarding or otherwise was unaware of the need to be

represented by a licensed attorney — is belied by the record….Given defendant’s repeated failures

to obtain counsel despite ample opportunity to do so, Supreme Court (Schick, J.) acted well within

its discretion in concluding that defendant indeed was aware of the pending motion ‘but was

derelict in timely acquiring counsel’ to oppose plaintiff’s motion for summary judgment. Indeed,

‘[a] corporate defendant’s failure to comply with CPLR 321 provides no basis for vacating a

judgment entered against that defendant, since the rule is not intended to penalize an adverse party

for the corporation’s improper appearance, but is rather to ensure that the corporation has a licensed

representative who is answerable to the court and other parties for his or her own conduct in the

matter’ (citations omitted). Accordingly, defendant’s failure to retain counsel prior to the return

date of the motion did not constitute a reasonable excuse for its default.”).

Page 262: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

CPLR 5015(a)(1) - Law office failure here not a reasonable excuse

Hill v. McCrae, 146 A.D.3d 1131, 45 N.Y.S.3d 273 (3d Dep’t 2017) (“In October 23, 2014, the

parties appeared for a conference before Supreme Court to discuss outstanding discovery issues.

At that conference, Supreme Court ordered that McCrae’s deposition be held on or before

December 5, 2014 and scheduled a compliance conference for January 29, 2015. McCrae

ultimately was not deposed and when neither McCrae nor Gonzalez or their counsel appeared for

the January 2015 compliance conference, both plaintiff and O’Brien orally moved for default

judgments pursuant to 22 NYCRR 202.27. … Here, the excuse of law office failure proffered by

McCrae and Gonzalez was not a reasonable excuse for their nonappearance at the January 2015

compliance conference, particularly given that their counsel had a history of ignoring

communications from the opposing parties and, at the time of the compliance conference, McCrae

had yet to be deposed, despite Supreme Court’s order that such deposition be completed on or

before December 5, 2014 (citations omitted). In the absence of a reasonable excuse, we need not

reach the question of whether McCrae and Gonzalez demonstrated a meritorious defense or cross

claim (citations omitted).”).

CPLR 5015(a) / 2005 - Vacating default- instance of excusable law office failure

Luderowski v. Sexton, 152 A.D.3d 918, 59 N.Y.S.3d 505 (3d Dep’t 2017) (“Here, defendants

attribute their failure to timely serve an answer to law office failure, namely, defense counsel’s

admittedly mistaken belief that one of his former associates had timely answered. This associate,

who had been handling the matter, left the firm around the time that plaintiffs served defendants

with the amended decision and order, thus commencing the period within which defendants had

to answer. Defense counsel incorrectly assumed that this associate had filed and served the answer

in the course of ‘wrap[ping] up’ his work for the firm and did not discover this error until after

plaintiffs served him with notice of their intention to seek default judgments. Under the

circumstances, we find that defendants’ default was attributable to an excusable instance of law

office failure (citations omitted). The record reveals that, once the error was discovered, it was

promptly cured (citations omitted). Defendants’ participation in significant motion practice before

defaulting also indicates that they had no intention of abandoning their defense (citations

omitted).”).

CPLR 5015(a)(1) - Good faith, although mistaken, belief that its legal interests were being

represented is reasonable excuse

Gage v. Village of Catskill, 144 A.D.3d 1365, 41 N.Y.S.3d 328 (3d Dep’t 2016) (“Contrary to

plaintiff’s claim, this is not a case in which the excuse offered for the default is the insurer’s delay

in responding or interposing a defense on behalf of its insured (citations omitted). Rather,

defendant’s default was based upon its good faith, albeit mistaken, belief that its legal interests

were being represented by SIC in the pending action, a belief that stemmed from SIC’s

involvement in the case from the time that the notice of claim was served and its appointment of

counsel to represent defendant in the litigation that followed (citations omitted). Under these

circumstances, Supreme Court providently exercised its discretion in finding that defendant

demonstrated a reasonable excuse for its failure to appear in the action. Furthermore, defendant

Page 263: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

put forth a meritorious defense to the action, namely, that the piece of metal over which plaintiff

tripped was a broken sign that had been erected by the state to control pedestrian traffic along a

state highway that is not maintained by defendant. In view of the foregoing, we find no reason to

disturb Supreme Court’s vacatur of the default judgment.”).

CPLR 5015(a)(1) - Law office failure to regularly check email resulting in respondents being

unaware of court order that resulted in default

Matter of Rivera v. New York City Dept. of Sanitation, 142 A.D.3d 463, 36 N.Y.S.3d 464 (1st

Dep’t 2016) (“On the merits, respondents cite ‘law office failure’ as a reason for the default. Under

certain circumstances, law office failure may provide a reasonable excuse for a default (citation

omitted). At oral argument, respondents essentially conceded that, in this e-filed case, their office

failed to regularly check its email and, as a result, was unaware of the motion court’s order that

gave rise to the default. Respondents’ excuse was sufficiently particularized and there is no

evidence of wilful or contumacious conduct on their part (citation omitted.”).

CPLR 5015(a)(1) - Defendant establishes reasonable excuse for Secretary of State not having

updated address on file

Li Fen Li v. Cannon Co., Inc., 155 A.D.3d 858, 63 N.Y.S.3d 702 (2d Dep’t 2017) (“‘A defendant

seeking to vacate a default pursuant to CPLR 5015(a)(1) must demonstrate both a reasonable

excuse for the default and a potentially meritorious defense’ (citation omitted). While a corporate

defendant’s failure to update its address for service that is kept on file with the Secretary of State

generally does not constitute a reasonable excuse (citations omitted), a court is not precluded from

finding a reasonable excuse in such a case where the circumstances warrant it (citations omitted).

Here, Ekistics established a reasonable excuse by submitting evidence that it attempted to update

its address on file with the Secretary of State at the time it moved to a new location, that it was

unaware that its address had not been updated in the Secretary of State’s files, that it did not acquire

actual notice of this action until long after the order authorizing entry of a default judgment against

it had been issued, and that the plaintiff knew its actual business address but sent no notice of the

action to that address (citations omitted). Moreover, Ekistics demonstrated a potentially

meritorious defense to the action by submitting evidence that it had no control over, and no

responsibility for, a power cable on the sidewalk over which the plaintiff allegedly tripped.

Accordingly, the motion by Ekistics pursuant to CPLR 5015(a)(1) to vacate its default was

properly granted.”).

CPLR 5015(a)(1) - Vacating Default-no reasonable excuse proffered

Lee v. Latendorf, 2018 NY Slip Op 04709 (2d Dep’t 2018) (“Here, the Supreme Court providently

exercised its discretion in determining that the plaintiffs did not offer a reasonable excuse for their

default. The excuse proffered by the plaintiffs' former attorney, that he failed to appear at the May

19, 2015, conference due to a malfunctioning GPS system and that he ‘got lost,’ was unreasonable

under the circumstances, as it was not a detailed and credible explanation for the claimed law

office failure. Moreover, the plaintiffs failed to set forth any excuse, let alone a reasonable one, for

Page 264: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

their former attorney's failure to appear at the compliance conference scheduled for February 18,

2015, or why he arrived late for the adjourned conference on February 26, 2015.”).

Matter of Matthew C. v. Robin B., 2018 NY Slip Op 04078 (1st Dep’t 2018) (“Respondent failed

to demonstrate a reasonable excuse for her default (citations omitted). She presented no evidence

to substantiate her alleged lack of funds to travel to New York City to appear at the hearing

(citations omitted). She failed to timely contact the court to inform it of her unavailability, and she

failed to make herself available by telephone at the time the case was called. Instead, she went

about her day, as scheduled, including attending a physical therapy appointment, and waited until

after the case was called and adjudicated in her absence to make contact with the court (citation

omitted).”).

Hertz Vehicles, LLC v. Gejo, LLC, 161 A.D.3d 549 (1st Dep’t 2018) (“‘A defendant seeking to

vacate a default under [CPLR 5015(a)] must demonstrate a reasonable excuse for its delay in

appearing and answering the complaint and a meritorious defense to the action’ (citation omitted).

Here, while MPS’s initial excuse of law office failure for failing to timely answer may be

reasonable, MPS was dilatory in asserting its rights (citations omitted). MPS retained new counsel

about eight months prior to entry of the default judgment, yet counsel waited until the eve of the

expiration of the one-year time limit before moving to vacate. MPS provided no excuse for why

its new counsel failed to address the pending default judgment motion during the time period

before a decision was rendered, or why it waited almost another year to move to vacate the default

judgment.”).

Golf Glen Plaza Niles, Il. L.P. v. AMCOID USA, LLC, 160 A.D.3d 1375 (4th Dep’t 2018)

(“Contrary to defendant's further contention, the court properly denied as untimely the request in

his motion to vacate the default judgment and allow him to proceed on the merits on the ground

that he had a reasonable excuse for the default and has a meritorious defense (citation omitted).

Moreover, even if defendant had timely moved to vacate the default on that ground, we conclude

that defendant's assertion that he erroneously assumed that his wife's cousin and her attorney would

respond to the complaint on his behalf does not constitute a reasonable excuse (citations omitted).

Further, defendant's unsubstantiated claim that the signatures on the assignments were forged fails

to establish that he has a meritorious defense (citations omitted).”).

Ki Tae Kim v. Bishop, 147 A.D.3d 1447, 46 N.Y.S.3d 457 (2d Dep’t 2017) (“Here, the Supreme

Court providently exercised its discretion in determining that the appellant failed to present a

reasonable excuse for her defaults. The appellant’s counsel’s affirmation in support of the motion

contained conclusory and unsubstantiated allegations of law office failure after an attorney left the

firm. Counsel’s neglect in timely ascertaining whether opposition had been filed did not constitute

a reasonable excuse (citations omitted). Nor did the appellant provide a reasonable excuse for the

three-month delay in moving to vacate her defaults (citations omitted).”).

Onishenko v. Ntansah, 145 A.D.3d 910, 43 N.Y.S.3d 504 (2d Dep’t 2016) (“The plaintiff’s

attorney’s proffered excuse failed to adequately explain the default in this case. The alleged error

in not filing a change of attorney form for more than 2½ years after counsel had been substituted

and the failure to have the date of oral argument appear on counsel’s calendar cannot account for

Page 265: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

the plaintiff’s inaction for 7 months when counsel was aware of the pending motion (citation

omitted). Accordingly, the plaintiff failed to establish a reasonable excuse for her default. Since

the plaintiff failed to establish a reasonable excuse for her default, it is unnecessary to determine

whether she established a potentially meritorious opposition to the defendants’ motion (citations

omitted).”).

CPLR 5015(a)(1) - Vacating Default-reasonable excuse provided

Benchmark Farm, Inc. v. Red Horse Farm, LLC, 2018 NY Slip Op 04522 (2d Dep’t 2018) (“Here,

the defendant submitted the sworn affidavit of its principal, who stated that the defendant did not

learn of the action or the judgment until August 2016, and that approximately one month thereafter

it moved to vacate the judgment. The affidavit indicated that in 2003 the defendant's principal had

moved his residence from the address on file with the Secretary of State and that neither the

defendant nor its principal had received mail at that address since 2004. The affidavit also provided

that the defendant's address had not been updated with the Secretary of State. There is no evidence

in the record that the defendant or its agent received actual notice of the summons, which was

delivered to the Secretary of State, in time to defend this action (citations omitted). Although the

defendant did not explain why it failed to update its address with the Secretary of State, ‘there is

no necessity for a defendant moving pursuant to CPLR 317 to show a reasonable excuse for its

delay’ (citations omitted), and there is no basis in the record to conclude that the defendant

deliberately attempted to avoid service, especially since the plaintiff had knowledge of the

defendant's actual business address and had written to the defendant at that address regarding the

dispute that gave rise to the plaintiff's complaint (citations omitted).”).

Inwald Enters., LLC v. Aloha Energy, 153 A.D.3d 1008, 61 N.Y.S.3d 358 (3d Dep’t 2017) (“Here,

even applying the arguably more exacting standard set forth in CPLR 5015 (a) (1), we do not find

that Supreme Court abused its discretion in granting Inwald’s motion. While there indeed may be

instances where counsel’s inaction or dilatory conduct may be imputed to the client (citations

omitted), a review of Robin Inwald’s affidavit — together with the supporting documentation

annexed thereto — reveals that she never intended to abandon either the pursuit of action No. 1 or

the defense of action No. 2 (citation omitted) but, rather, reasonably believed that Humphrey was

actively pursuing and properly defending Inwald’s interests in the context thereof (citation

omitted). Although Robin Inwald acknowledged that Humphrey often was slow to respond to her

inquiries, she averred that he assured her that discovery was progressing and that he would keep

her apprised of further court conferences and developments. Indeed, Robin Inwald asked

Humphrey that she be included in what she believed would be a telephone conference with

Supreme Court in September 2015 and, when Humphrey failed to respond to her request, she went

down to the courthouse and inquired as to the status of the cases — only to learn that the complaint

had been dismissed in action No. 1 and that a default judgment had been entered in action No. 2.

As noted previously, new counsel then was retained and the instant motion to vacate was brought.

Under these circumstances, we cannot say that Supreme Court abused its discretion in declining

to penalize Inwald for Humphrey’s omissions and, further, in finding that Inwald demonstrated a

reasonable excuse for the default.”).

Page 266: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

CPLR 5015(a)(2) - Evidence which is matter of public record is generally not deemed new

evidence

Inman v. Scarsdale Shopping Ctr. Assoc., LLC, 149 A.D.3d 1051, 50 N.Y.S.3d 884 (2d Dep’t

2017) (“The Supreme Court providently exercised its discretion in denying that branch of the

defendants’ motion which was pursuant to CPLR 5015(a)(2) to vacate a judgment dated November

25, 2014, in favor of the plaintiffs and against them. While the defendants submitted evidence in

support of their motion that they claimed was newly discovered, ‘[e]vidence which is a matter of

public record is generally not deemed new evidence which could not have been discovered with

due diligence before trial’ (citations omitted). In any event, the defendants also failed to

demonstrate that the newly discovered evidence ‘would probably have produced a different result’

(citations omitted).”).

CPLR 5019 - Validity and correction of judgment or order

CPLR 5019 - Modifying a judgment to conform with the court’s decision after trial with

respect to equitable distribution

Shkreli v. Shkreli, 142 A.D.3d 546, 36 N.Y.S.3d 208 (2d Dep’t 2016) (“The Supreme Court

providently exercised its discretion in directing that the marital residence be sold (citation omitted).

However, the judgment of divorce should be modified to conform with the court’s decision after

trial regarding the equitable distribution of the remaining sale proceeds of the marital residence,

with 60% awarded to the plaintiff and 40% to the defendant (citations omitted).”).

CPLR 5019 - Substituting, nunc pro tunc, the newly signed affidavit of merit in place of the

affidavit of merit that had been attached to its application for an order of reference

U.S. Bank, N.A. v. Steele, 142 A.D.3d 1161, 39 N.Y.S.3d 178 (2d Dep’t 2016) (“The Supreme

Court providently exercised its discretion in granting those branches of the plaintiff’s motion

which were to substitute, nunc pro tunc, the newly signed affidavit of merit in place of the affidavit

of merit that had been attached to its application for an order of reference, and to validate the order

of reference. CPLR 2001 ‘permits a court, at any stage of an action, to disregard a party’s mistake,

omission, defect, or irregularity if a substantial right of a party is not prejudiced’ (citations

omitted). In addition, pursuant to CPLR 5019(a), a court has ‘discretion to correct an order or

judgment which contains a mistake, defect, or irregularity not affecting a substantial right of a

party’ (citation omitted). Here no substantial right of the defendant has been affected by the court’s

substitution of the new affidavit of merit ((citations omitted).”).

CPLR 5019 - Correcting name in caption

Bessa v. Anflo Indus., Inc., 148 A.D.3d 974, 51 N.Y.S.3d 102 (2d Dep’t 2017) (to permit

amendment of caption and pleadings to reflect plaintiff’s correct legal name; “Although dismissal

of the complaint was not warranted, the Supreme Court nevertheless should have taken steps to

ensure that the caption and the pleadings in this action were amended to reflect the plaintiff’s

Page 267: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

correct name. ‘[W]here the right party plaintiff is in court but under a defective name or title as

party plaintiff, . . . an amendment correcting the title is permissible’ (citations omitted). Indeed,

‘CPLR 2001 permits a court, at any stage of an action, to disregard a party’s mistake, omission,

defect, or irregularity if a substantial right of a party is not prejudiced’ (citation omitted), and

CPLR 5019(a) gives trial and appellate courts the discretion to cure mistakes, defects, and

irregularities that do not affect substantial rights of parties (citations omitted). Inasmuch as the

appellants failed to demonstrate that they would suffer any prejudice if the plaintiff’s name is

corrected, the court should have directed the amendment of the caption and the pleadings to reflect

the plaintiff’s correct legal name (citations omitted).”).

CPLR 5019 - Plaintiff’s request that the action be allowed to continue against the individual

who, it appears, assumed movant’s identity, i.e., the ‘Colin M. Smith’ who represented

himself to be an attorney with law offices at 721 Fifth Avenue, New York, NY 10022, and

purported to enter into the subject contract, should have been granted

Dobbs v. Smith, 151 A.D.3d 418, 52 N.Y.S.3d 860 (1st Dep’t 2017) (“Movant’s motion for

summary judgment dismissing the breach of contract claims against him was correctly granted

upon movant’s unrebutted showing that he was not the ‘Colin M. Smith’ with whom plaintiff had

contracted. However, since movant sought dismissal only as against himself, plaintiff’s request

that the action be allowed to continue against the individual who, it appears, assumed movant’s

identity, i.e., the ‘Colin M. Smith’ who represented himself to be an attorney with law offices at

721 Fifth Avenue, New York, NY 10022, and purported to enter into the subject contract, should

have been granted (citation omitted).”).

ARTICLE 51 - ENFORCEMENT OF JUDGMENTS AND ORDERS GENERALLY

CPLR 5104 - Enforcement of judgment or order by contempt

CPLR 5104 - Contempt of court for failure to comply with the terms of a so-ordered

stipulation of settlement

Matter of William Madenberg Irrevocable Trust, 143 A.D.3d 904, 39 N.Y.S.3d 798 (2d Dep’t

2016) (“The Surrogate’s Court properly granted that branch of the petitioners’ motion which was

pursuant to CPLR 5104 to hold the appellant in contempt of court for failure to comply with the

terms of a so-ordered stipulation of settlement. The petitioners demonstrated, by clear and

convincing evidence, that the appellant disobeyed unequivocal mandates set forth in the so-ordered

stipulation of settlement, of which he had knowledge, and that they were prejudiced by this conduct

(citations omitted). In opposition, the appellant failed to refute this showing, or to offer evidence

of a defense, such as inability to comply with the order (citations omitted).”).

Page 268: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

ARTICLE 52 - ENFORCEMET OF MONEY JUDGMENTS

CPLR 5225 - Payment or delivery of property of judgment debtor

CPLR 5225 - Membership interest in LLC is property for CPLR Article 52 purposes

Matter of Sirotkin v. Jordan, LLC, 141 A.D.3d 670, 35 N.Y.S.3d 443 (2d Dep’t 2016) (“A

membership interest in a limited liability company is ‘clearly assignable and transferrable,’ and,

therefore, such interest is ‘property’ for purposes of CPLR article 52 (citations omitted). Indeed,

Limited Liability Company Law § 603 expressly acknowledges that ‘[e]xcept as provided in the

operating agreement . . . a membership interest is assignable in whole or in part’ (Limited Liability

Company Law § 603[a][1]). In considering the remedies available to a judgment creditor such as

the petitioner under CPLR article 52, the Supreme Court was not limited to considering the

petitioner’s request for an order assigning to him Spitzer’s membership interest in the LLC. CPLR

5240, which was relied upon by the Supreme Court, provides, in pertinent part, that a court ‘may

at any time, on its own initiative or the motion of any interested person, and upon such notice as it

may require, make an order denying, limiting, conditioning, regulating, extending or modifying

the use of any enforcement procedure’ (citations omitted). This section grants the Supreme Court

broad discretionary power to alter the use of procedures set forth in CPLR article 52 (citation

omitted). Limited Liability Company Law § 607 expressly provides that, on an application by a

judgment creditor of a member of an LLC, ‘the court may charge’ the debtor’s membership interest

‘with payment of the unsatisfied amount of the judgment with interest,’ and ‘[t]o the extent so

charged, the judgment creditor has only the rights of an assignee of the membership interest.’ Thus,

CPLR 5240 and Limited Liability Company Law § 607 give the court discretion, in an appropriate

case, to issue a charging order instead of, inter alia, an order assigning or turning over the judgment

debtor’s membership interest in an LLC to the judgment creditor (citation omitted).”).

CPLR 5241 - Income execution for support enforcement

CPLR 5241 - Income execution for support enforcement-“[T]he plaintiff is not entitled to

have the income execution limited to only 10% of his disposable earnings. However, on this

record, the plaintiff demonstrated that limiting the income execution to 40% of his

disposable earnings is warranted.”

Fishler v. Fishler, 154 A.D.3d 917, 63 N.Y.S.3d 445 (2d Dep’t 2017) (“CPLR 5241, which

governs income execution for support enforcement, ‘inaugurated a broad expansion of the benefits

available to a creditor’ (citations omitted). While an ordinary income execution is limited to a

maximum of 10% of income (citation omitted), the maximum percentage available for

garnishment pursuant to CPLR 5241 is between 50% and 65%, depending upon the debtor’s other

support obligations and the extent and duration of the support arrears (citations omitted). Here, the

maximum percentage available for garnishment is 65% of the plaintiff’s disposable earnings

(citation omitted). CPLR 5231 defines ‘disposable earnings’ as ‘that part of the earnings of any

Page 269: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

individual remaining after the deduction from those earnings of any amounts required by law to

be withheld,’ such as taxes and social security. … Under all the circumstances present here, it

cannot be said that, at the time of the instant motion, the 65% income execution struck ‘a fair

balance between the needs of a creditor holding a valid money judgment and the needs of a debtor

managing competing financial obligations’ (citation omitted). To the contrary, the record reflects

that the 65% income execution created a tremendous disparity between the plaintiff’s expenses

and his actual income after garnishment and deductions, and that the defendant did not have any

particular need for the maximum garnishment percentage. The defendant’s remaining contentions

are without merit. Accordingly, the Supreme Court should have exercised its broad discretion to

modify and limit the income execution to prevent unreasonable disadvantage and undue prejudice

to the plaintiff (citations omitted). In light of his substantial arrears, we find that the plaintiff is not

entitled to have the income execution limited to only 10% of his disposable earnings. However,

on this record, the plaintiff demonstrated that limiting the income execution to 40% of his

disposable earnings is warranted.”).

CPLR 5241 - Special income execution provision is for support obligations only

Granat v. Granat, 152 A.D.3d 572, 58 N.Y.S.3d 531 (2d Dep’t 2017) (Motion sought order

pursuant to CPLR 5241 to direct income execution against plaintiff’s social security benefits.

“CPLR 5241 was enacted to aid in the enforcement of support obligations (citation omitted). While

this statute inaugurated a broad expansion of the benefits available to a creditor (citation omitted),

the special income execution provision of CPLR 5241 is for support obligations only (citations

omitted). Under the particular circumstances of this case, the defendant failed to establish

entitlement to the issuance of an income execution. Accordingly, the Supreme Court properly

denied the defendant’s motion.”).

ARTICLE 53 - RECOGNITION OF FOREIGN COUNTRY MONEY JUDGMENTS

CPLR 5302 - Applicability

CPLR 5302 - English award of costs does not constitute a penalty

Hill Dickinson LLP v. Il Sole Ltd., 149 A.D.3d 471, 49 N.Y.S.3d 888 (1st Dep’t 2017) (“Were we

to review Hirtenstein’s challenge to the recognition of the British judgment, we would find it

unavailing. It is undisputed that the foreign money judgment is ‘final, conclusive and enforceable’

(citation omitted) and the grounds for non-recognition are inapplicable (citation omitted). The

English court’s award of costs to compensate Hill Dickinson for having to defend an action by

defendants does not constitute a penalty (citation omitted).”).

Page 270: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

CPLR 5304 - Grounds for non-recognition

CPLR 5304 - Grounds set forth in CPLR 5304 for non-recognition are inapplicable

Marshall v. Fleming, 161 A.D.3d 496 (1st Dep’t 2018) (“The motion court properly recognized

the Australian judgment, which was ‘final, conclusive and enforceable where rendered’ (citation

omitted). The grounds set forth in CPLR 5304 for non-recognition are inapplicable. Contrary to

defendants’ contention, the Australian judgment is not repugnant to New York’s statute of

limitations (citation omitted). The judgment did not arise from a time-barred claim; it represents

the costs associated with defendants’ unsuccessful motion to dismiss the Australian action on the

ground of forum non conveniens. Recognition here would not be ‘the approval of a transaction

which is inherently vicious, wicked or immoral, and shocking to the prevailing moral sense’

(citation omitted).”).

ARTICLE 55 - APPEALS GENERALLY

CPLR 5501 - Scope of review

CPLR 5501 - Remittur

Matter of New York City Asbestos Litig., 143 A.D.3d 485, 39 N.Y.S.3d 130 (1st Dep’t 2016) (For

12 months of pain and suffering, after jury trial “awarding plaintiff damages against defendant

Crane Co., upon plaintiff’s stipulation to reduce the award for past pain and suffering from $10

million to $6 million, unanimously modified, on the facts, to vacate the award for past pain and

suffering, and ordering a new trial as to such damages, unless plaintiff stipulates, within 30 days

of service of a copy of this order with notice of entry, to a reduced award for past pain and suffering

of $3,000,000, and to entry of an amended judgment in accordance therewith, and otherwise

affirmed, without costs.”); Matter of New York City Asbestos Litig., 143 A.D.3d 483, 39 N.Y.S.3d

411 (1st Dep’t 2016) (Appellate Division vacates $5 million stipulated award for future pain and

suffering and orders new trial as to such damages unless plaintiff stipulates to $4.5 million award

for 1.5 years of pain and suffering); Peraica v A.O. Smith Water Prods. Co., 143 A.D.3d 448, 39

N.Y.S.3d 392 (1st Dep’t 2016) (Appellate Division vacates $9.9 million award for past pain and

suffering and orders new trial on damages unless plaintiff stipulates to $4.25 million award for 17

months of pain and suffering).

CPLR 5501 - Party Finality Doctrine

Hain v. Jamison, 28 N.Y.3d 524, footnote 2, 46 N.Y.S.3d 502, 68 N.E.3d 1233 (2016) (Although

the Appellate Division order granting summary judgment to co-defendant Farm was “non-final”

because the claims asserted by plaintiff against the Jamison co-defendants remained, the Court

nevertheless treated the order as final as to Farm under party finality doctrine (that is, an order that

Page 271: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

finally determines rights of one of multiple parties is considered final, even though unresolved

issues not impacting that party remain.)). See David L. Ferstendig, Court Holds Defendant Failed

to Meet its Burden on Summary Judgment Motion on Proximate Cause Issue, 674 N.Y.S.L.D. 3

(2017).

CPLR 5501(c) - The amounts awarded for plaintiff’s injuries deviate materially from what

is reasonable compensation

Nawrocki v. Huron St. Dev. LLC, 161 A.D.3d 697, 74 N.Y.S.3d 494 (1st Dep’t 2018) (“Order,

Supreme Court, Bronx County (Ruben Franco, J.), entered January 14, 2016, which, after an

inquest, inter alia, awarded plaintiff $25,000 for past pain and suffering and $25,000 for future

pain and suffering, unanimously modified, on the facts, to increase the awards to $250,000 for past

pain and suffering, and $250,000 for future pain and suffering, and otherwise affirmed, without

costs. Plaintiff, a 28-year-old plumber, fell from a ladder while working, and sustained two

fractures in his jaw and an impacted tooth, requiring internal fixation surgery and plastic surgery.

He could not eat without using a straw for eight weeks, then not without pain for six to eight

months, and was left with scarring. Under these circumstances, the amounts awarded for plaintiff’s

injuries deviate materially from what is reasonable compensation, and we modify to the extent

indicated (citations omitted).”).

CPLR 5511 - Permissible appellant and respondent

CPLR 5511 - Party not aggrieved

Matter of Olney v. Town of Barrington, 2018 NY Slip Op 04454 (4th Dep’t 2018) (“Thus, we

conclude that defendants are not aggrieved by the judgment, and their appeals must be dismissed

(citations omitted). The fact that the judgment ‘may remotely or contingently affect interests which

[defendants] represent[] does not give [them] a right to appeal’ (citation omitted). Likewise, the

fact that the judgment ‘may contain language or reasoning which [defendants] deem adverse to

their interests does not furnish them with a basis . . . to take an appeal’ (citations omitted).”).

Hernstat v. Anthony's Windows on the Lake, Inc., 74 N.Y.S.3d 881 (2d Dep’t 2018) (“The appeal

must be dismissed, as the plaintiff is not aggrieved by the order appealed from, which denied the

defendants' motion for summary judgment and imposed the lesser sanction of an adverse inference

charge in accordance with the plaintiff's request (citations omitted).”).

CPLR 5511 - Since plaintiff did not appeal, the Court could not reinstate the complaint

Hain v. Jamison, 28 N.Y.3d 524, footnote 3 (2016) (Following the Appellate Division decision

granting co-defendant Farm’s summary judgment motion, only the Jamison co-defendants, but not

the plaintiff, moved for leave to appeal. As a result, although Court of Appeals reversed, it could

not reinstate the complaint against Farm.). See David L. Ferstendig, Court Holds Defendant Failed

to Meet its Burden on Summary Judgment Motion on Proximate Cause Issue, 674 N.Y.S.L.D. 3

(2017).

Page 272: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

CPLR 5511 - Aggrievement – language deemed adverse to parties’ interest does not furnish

basis for standing to take appeal

NYCTL 2011-A Trust v. Master Sheet Co., Inc., 150 A.D.3d 755, 54 N.Y.S.3d 422 (2d Dep’t 2017)

(“Inasmuch as the Supreme Court granted the plaintiffs’ motion, they are not aggrieved by the

order appealed from (citation omitted). On appeal, their sole contention relates to handwritten

language on the order, which is not part of any decretal paragraph. The first part of the notation

states that ‘[t]his order of Reference does not validate the lien, it just computes the amount.’

However, ‘findings of fact and conclusions of law which do not grant or deny relief are not

independently appealable’ (citations omitted). ‘Merely because the order appealed from contains

language or reasoning that a party deems adverse to its interests does not furnish a basis for

standing to take an appeal’’ (citations omitted). The second part of the notation challenged by the

plaintiffs states that the order is ‘without prejudice to a dispute with the NYC Health Department’

as to the amount of the lien. The plaintiffs are not aggrieved by this language, since ‘any dispute

as to the amount of the lien may be resolved after a reference pursuant to RPAPL 1321’ (citation

omitted).”).

CPLR 5511 - Aggrievement -the order and judgment appealed from does not impact any

existing right of appellant

Hermitage Ins. Co. v. 186-190 Lenox Rd., LLC, 142 A.D.3d 422, 36 N.Y.S.3d 634 (1st Dep’t 2016)

(“Smith lacks standing to appeal from an order granting a default judgment against Lenox, which

failed to appear or answer the complaint and failed to oppose the motion for a default judgment

(citation omitted). Although Smith, as a named party, could have opposed Hermitage’s position

on coverage (citation omitted), she elected to seek dismissal on procedural grounds. Thus, having

been granted the relief she sought on her own behalf, and having failed to offer any substantive

opposition to Heritage’s claim of untimely notice or to oppose Heritage’s request for a default

judgment against Lenox, Smith was not aggrieved by that portion of the order that declared that

Heritage was not obligated to defend and indemnify Lenox in the underlying action (citation

omitted). Furthermore, because this action was dismissed against Smith as abandoned, whether or

not the declaration will have a preclusive effect will only become an issue if Smith obtains a

judgment against Lenox that remains unsatisfied and then seeks to enforce it in a direct action

against Hermitage under Insurance Law § 3420(a)(2). Accordingly, as the order and judgment

appealed from does not impact any existing right of Smith, she is not an “aggrieved party” under

CPLR 5511, because any effect the court’s declaration may have on her possible future interests

is too remote and contingent to give her standing in this appeal.”).

CPLR 5511 - Grandmother not aggrieved by order granting relief to father against mother

Matter of Kone v. Martin, 146 A.D.3d 781, 43 N.Y.S.3d 919 (2d Dep’t 2017) (“‘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 opposes,

and the relief is granted in whole or in part”‘ (citations omitted). The order appealed from granted

Page 273: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

relief to the father against the mother. Since the grandmother is not aggrieved by the order appealed

from, her appeal must be dismissed (citations omitted).”).

CPLR 5511 - Appeals dismissed because parties are not aggrieved

Marion v. City of New York, 153 A.D.3d 691, 60 N.Y.S.3d 289 (2d Dep’t 2017) (“The plaintiffs

and Smith are not aggrieved by that portion of the order which granted that branch of MTA’s

motion which was for summary judgment dismissing the third-party complaint (citations omitted).

The plaintiffs and Smith are also not aggrieved by the portion of the order which, in effect, denied

as ‘moot’ those branches of MTA’s motion which were for summary judgment dismissing the

amended verified complaint and all cross claims insofar as asserted against it (citation omitted).”).

CPLR 5513 - Time to take appeal

CPLR 5513 - Appeal time runs from service of order with written notice of entry. Despite

premature notice of appeal, court exercises discretion to treat it as valid.

Paternosh v. Wood, 151 A.D.3d 1733, 56 N.Y.S.3d 747 (4th Dep’t 2017) (“As an initial matter,

we reject defendant’s contention that plaintiffs’ appeal should be dismissed as untimely filed. Even

where, as here, the appellant is the party that prepares and files the judgment or order appealed

from, the 30-day period in which to file a notice of appeal is triggered only by service of a copy of

the judgment or order, together with ‘written notice of its entry,’ on the opposing party (citations

omitted). The record here does not contain a notice of entry, and it therefore does not establish that

the 30-day period ever began to run (citations omitted). Although plaintiffs’ notice of appeal thus

appears to be premature, rather than late as contended by defendant, we exercise our discretion to

treat it as valid (citation omitted).”).

CPLR 5513 - Notice of appeal untimely- 30 days runs from original order, not supplemental

order, which contained no material change

Matter of Twin Bay Vil., Inc., 2018 NY Slip Op 04405 (3d Dep’t 2018) (“Initially, we find

respondents' appeal from the May 2016 supplemental order to be untimely. In conjunction with

their original application to judicially dissolve the corporation, petitioners requested that Supreme

Court (Muller, J.) nullify a $14,000 mortgage between respondent Tamara Chomiak and the

corporation. In its March 2016 order, the court declared the purported mortgage null and void;

however, after appointment by the receiver, it was determined that the Clerk's office needed more

specific language describing the subject mortgage in order to nullify it. Accordingly, the court

issued the May 2016 supplemental order to modify its March 2016 order, specifying the recording

date and book number of the subject mortgage. As there is no material change in the supplemental

order, the notice of appeal — to be timely — must have been filed within 30 days from March 23,

2016, which is the date of service of a copy of the March 2016 order with notice of entry (citation

omitted). Accordingly, as respondents' July 2016 notice of appeal was not timely filed,

respondents' appeal from the May 2016 supplemental order is dismissed (citations omitted).”).

Page 274: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

CPLR 5513 - Appeal time does not begin to run until order or judgment is served with notice

of entry

Bruzzese v. Bruzzese, 152 A.D.3d 563, 61 N.Y.S.3d 18 (2d Dep’t 2017) (“We reject the contention

of nonparty Peter D. Barlet that the appeal from the money judgment dated March 20, 2015, must

be dismissed as untimely taken. Initially, we note that Barlet did not move to dismiss the appeal

on this ground. In any event, the record does not establish that the money judgment was ever served

upon the plaintiff with ‘written notice of its entry,’ and thus, Barlet failed to meet his burden of

establishing that the time within which to take an appeal from the money judgment ever began to

run (citations omitted).”).

CPLR 5515 - Taking an appeal

CPLR 5515 - Appeal permitted where order differs from consent

Matter of Jordan v. Horstmeyer, 152 A.D.3d 1097, 60 N.Y.S.3d 549 (3d Dep’t 2017) (“Turning

to the substance of the appeal from that order, Family Court denied the mother’s objections to the

Support Magistrate’s order upon the ground that she could not challenge an order entered upon

consent. While ‘[i]t is well settled that no appeal lies from an order issued on consent’ (citations

omitted), that rule does not apply where the order ‘differs from or exceeds the consent’ (citation

omitted). The arguments advanced by the mother fall within the exception to the rule barring

appeals from consent orders and, accordingly, Family Court’s order must be reversed.”).

CPLR 5522 - Disposition of appeal

CPLR 5522 - Moot appeal

North Geddes St. Props., LLC v. Iglesia Misionera Monte DeSion, 2018 NY Slip Op 04150 (4th

Dep’t 2018) (“Given the above described circumstances, we dismiss defendant's appeal from the

first order. Plaintiff's cause of action for specific performance is now moot because the transaction

has closed and defendant failed either to post the required bond or to appeal from the second order

(citations omitted). In addition, although defendant purports to challenge the granting of its petition

for permission to sell, we note that defendant is not aggrieved thereby (citation omitted).”).

Matter of Pelton v. Crummey, 156 A.D.3d 1305 (3d Dep’t 2017) (“Petitioner argues that this case

falls within the narrow exception to the mootness doctrine in that ‘the issue to be decided, though

moot, (1) is likely to recur, either between the parties or other members of the public, (2) is

substantial and novel, and (3) will typically evade review in the courts’ (citations omitted).

Petitioner was not ‘in custody’ following her arraignment on the felony complaint and, being “at

liberty on bail,” a preliminary hearing could provide her nothing more than the dismissal of the

felony complaint and the exoneration of her bail for the brief period between the end of the hearing

and the issuance of an indictment against her (citations omitted). The outcome of the hearing would

have no impact on her pretrial release status after she was indicted, as that issue would be addressed

Page 275: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

at her arraignment on the indictment (citations omitted). Thus, in the absence of any deprivation

of petitioner’s liberty, ‘the issue of whether [she] was denied a prompt preliminary hearing is not

a significant or important question’ so as to fall within the exception to the mootness doctrine

(citation omitted).”).

Matter of Nyjee H. (Jesse H.), 155 A.D.3d 951, 63 N.Y.S.3d 898 (2d Dep’t 2017) (“An

adjudication of neglect constitutes a permanent and significant stigma that might indirectly affect

a parent’s status in future proceedings (citations omitted). Thus, an appeal from an order of

protection that is predicated on a finding of neglect is generally not rendered academic due to the

expiration of the order of protection by its own terms (citations omitted). However, it is the finding

of neglect underlying an order of protection that has enduring consequences (citations omitted).

Accordingly, where, as here, the appellant consented to a finding of neglect without admission,

and thus may not challenge the finding of neglect on appeal (citation omitted), an appeal from an

order of protection that has expired by its own terms will be academic. Thus, the father’s appeal

from so much of the order of disposition as directed him to comply with the order of protection

that expired by its own terms must be dismissed (citation omitted).”).

Matter of DeChimay v. New York State Dept. of Corr. & Community Supervision, 152 A.D.3d

1128, 56 N.Y.S.3d 483 (3d Dep’t 2017) (“The Attorney General has advised the Court that,

subsequent to Supreme Court’s decision, respondent again considered and denied petitioner’s

application for merit termination of his sentence pursuant to Correction Law § 205, by decision

dated November 16, 2016. Respondent’s more recent denial of merit termination in November

2016 rendered moot his challenge to the earlier, December 8, 2015 decision denying merit

termination (citations omitted). The fact that Supreme Court misconstrued the petition is irrelevant

to this analysis, as the challenged 2015 decision has been superceded by the 2016 decision, which

petitioner is entitled to challenge. Petitioner does not argue that the exception to the mootness

doctrine applies, and we do not find that there is a basis upon which to invoke the exception

(citations omitted).”).

Matter of Colon v. Annucci, 151 A.D.3d 1061, 57 N.Y.S.3d 512 (2d Dep’t 2017) (“The Supreme

Court properly concluded that the subject petition had been rendered academic by the petitioner’s

release from Fishkill Correctional Facility, as the petitioner had received the ultimate relief he was

seeking and any ruling on the petition would have no immediate and practical consequences to the

petitioner. Moreover, the court did not improvidently exercise its discretion in declining to invoke

an exception to the mootness doctrine to consider the merits of the petition (citation omitted).

Significantly, as demonstrated by the petitioner’s submissions, the broader issues raised in the

petition are not evading judicial review, but are in fact being litigated in other cases at the Supreme

Court.”).

Lehman Commercial Paper, Inc. v. Point Prop. Co., LLC, 146 A.D.3d 1192, 45 N.Y.S.3d 662 (3d

Dep’t 2017) (“We conclude that the appeal is moot to the extent that defendants challenge the

order as affecting their right to redeem the subject commercial properties. In this regard, defendants

assert various errors, which, according to them, artificially inflated the redemption price and

precluded them from exercising their right to redeem the subject commercial properties. During

the pendency of the appeal, however, the subject commercial properties were sold, thereby

Page 276: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

extinguishing defendants’ right to redeem the properties (citation omitted). More critically, once

lost, the right to redeem cannot be revived, even by court order (citation omitted). While defendants

assert that the appeal is not moot to this extent because they are entitled to a vacatur of the

foreclosure sale, which, in turn, could implicate their right to restitution (see CPLR 5523), there is

no indication in the record that defendants moved either to vacate the judgment of foreclosure and

sale or to set aside the foreclosure sale before Supreme Court. Accordingly, because defendants’

redemption rights in the subject commercial properties will not be directly affected by a decision

of this Court, that aspect of defendants’ appeal concerning such redemption rights is moot (citation

omitted). Defendants’ challenge to the reasonableness of the counsel fee award, however, is not

moot (citation omitted).”).

Williams v. Annucci, 145 A.D.3d 1625, 42 N.Y.S.3d 894 (4th Dep’t 2016) (“Petitioner appeals

from a judgment dismissing his petition pursuant to CPLR article 78 seeking to annul the

determination denying him parole release. The Attorney General has advised this Court that,

subsequent to that denial, petitioner reappeared before the Board of Parole in May of 2016 and

was again denied release. Consequently, this appeal must be dismissed as moot (citation omitted).

Contrary to petitioner’s contention, this matter does not fall within the exception to the mootness

doctrine (citation omitted).”).

Matter of People of ex rel. Green v. Saunders, 145 A.D.3d 642, 42 N.Y.S.3d 812 (1st Dep’t 2016)

(“This appeal challenging the legality of petitioner’s preconviction detention is moot, since

petitioner is currently incarcerated pursuant to a judgment of conviction (citation omitted), and no

exception to the mootness doctrine applies (citations omitted).”).

CPLR 5522 - Academic appeal – Exception “where necessary in order to prevent a judgment

which is unreviewable for mootness from spawning any legal consequences or precedent”

Markowits v. Friedman, 144 A.D.3d 998, 42 N.Y.S.3d 52 (2d Dep’t 2016) (“‘While it is the general

policy of New York courts to simply dismiss an appeal which has been rendered academic, vacatur

of an order or judgment on appeal may be an appropriate exercise of discretion where necessary

in order to prevent a judgment which is unreviewable for mootness from spawning any legal

consequences or precedent’ (citations omitted). Here, the plaintiffs are correct that the Supreme

Court lacked the authority to direct Alexander Markowits to participate in the arbitration, since the

order compelling arbitration merely precludes Alexander Markowits from proceeding in the action

(citation omitted). Further, the subject portion of the order could spawn adverse legal consequences

for Markowits should the defendants seek to hold him in contempt for failing to comply with it.

Accordingly, we vacate so much of the order as granted that branch of the Friedmans’ motion

which was, in effect, to direct Alexander Markowits to notify the arbitrator, by March 19, 2015,

of dates available to appear for an arbitration during the weeks of April 16, 2015, or April 24,

2015.”).

CPLR 5522 - Academic appeal

Matter of Powell v. Mount St. Mary Coll., 142 A.D.3d 1082, 38 N.Y.S.3d 217 (2d Dep’t 2016)

(“On these appeals, the appellants seek to reinstate determinations expelling the petitioner from

Page 277: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

the nursing program at Mount Saint Mary College based on her alleged violation of the Student

Code of Conduct. The petitioner has since graduated from the college and moves to dismiss the

appeals as academic. ‘In general an appeal will be considered moot unless the rights of the parties

will be directly affected by the determination of the appeal and the interest of the parties is an

immediate consequence of the judgment’ (citations omitted). An appeal ‘is not moot if an appellate

decision will eliminate readily ascertainable and legally significant enduring consequences that

befall a party as a result of the order which the party seeks to appeal’ (citations). Here, the

appellants do not take the position that success on their appeals could impair the petitioner’s

diploma, and they have otherwise failed to identify any legally significant enduring consequence

to them resulting from the order and judgment appealed from. Consequently, the appeals must be

dismissed as academic.”).

CPLR 5526 - Content and form of record on appeal

CPLR 5526 - Insufficient record on appeal

Woodman v. Woodman, 2018 NY Slip Op 04479 (4th Dep’t 2018) (“Here, defendant contends that

plaintiff did not timely respond to his discovery requests, and failed to disclose discovery material

and to file a note of issue and certificate of readiness. The record on appeal, however, contains

only the notice of appeal, the decision and order of Supreme Court, the pleadings, and excerpts

from the transcript of a hearing, and thus the record does not contain the necessary and relevant

motion papers and exhibits with respect to the issues raised on appeal. We note that, although

defendant has attached some additional documents as exhibits to his appellant's brief, those

documents are not properly part of the record on appeal (citations omitted).”).

County of Jefferson v. Onondaga Dev., LLC, 74 N.Y.S.3d 923 (4th Dep’t 2018) (“To the extent

that the County contends that the encroachment was permissible under the doctrine of lateral

support, the County's submissions in support of its motion do not contain that contention, and thus

that contention is not properly before us (citation omitted). Although the County asserts that it

raised that contention in the memoranda of law that it submitted in support of its motion, we note

that the memoranda of law are not part of the record on appeal, and the County failed to object to

defendant's submitted appendix and failed to submit its own appendix containing those memoranda

(citations omitted).”).

CPLR 5528 - Content of briefs and appendices

CPLR 5528(a)(5) - Omission of relevant documents in appendix rendered it impossible for

appellate court to determine issues

Wells Fargo Bank, N.A. v. Oyenuga, 64 N.Y.S.3d 905 (2d Dep’t 2017) (“In this mortgage

foreclosure action, the defendant Modupe Oyenuga appeals from a judgment of foreclosure and

sale, raising issues, inter alia, regarding service of the summons and complaint and the plaintiff’s

delay in moving for a default judgment. Oyenuga perfected the appeal by using the appendix

Page 278: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

method, but he did not include in the appendix the note and mortgage, the summons and complaint,

the plaintiff’s motions for a default judgment and a judgment of foreclosure and sale, and all of

the Supreme Court’s prior orders. The omission of these documents renders it impossible to

determine any of the Oyenuga’s claims. Accordingly, the appeal must be dismissed (citation

omitted).”).

ARTICLE 57- APPEALS TO THE APPELLATE DIVISION

CPLR 5701 - Appeals to appellate division from supreme and county courts

CPLR 5701 - Order on motion to compel a witness to answer questions propounded at a

deposition is not appealable as of right

Donato v. Nutovits, 149 A.D.3d 1037, 52 N.Y.S.3d 488 (2d Dep’t 2017) (“An order denying a

motion to compel a witness to answer questions propounded at an examination before trial is akin

to a ruling made in the course of the examination itself and is not appealable as of right, even

where it was made upon a full record and on the plaintiff’s motion to compel responses (citations

omitted). Here, the plaintiff never sought leave to appeal. Under these circumstances, we decline

to grant leave to appeal on the Court’s own motion (citations omitted). Accordingly, we dismiss

the appeal.”).

CPLR 5701(a)(2) - Given extraordinary nature of sua sponte relief, the dismissal of the

complaint, Appellate Division “nostra sponte” deems notice of appeal to be motion for leave

and grants leave

All Craft Fabricators, Inc. v. ATC Assoc., Inc., 153 A.D.3d 1159, 60 N.Y.S.3d 660 (1st Dep’t

2017) (“To the extent that the order sua sponte dismissed the complaint, that portion of the order

is not appealable as of right (citations omitted). However, given the extraordinary nature of the sua

sponte relief, that is, dismissal of the complaint, we nostra sponte deem the notice of appeal from

that portion of the order to be a motion for leave to appeal, grant such leave citations omitted), and

reverse the order for the reasons stated above.”).

ARTICLE 62 - ATTACHMENT

CPLR 6201 - Grounds for attachment

CPLR 6201 - Court cannot attach real estate outside its jurisdiction; distinguishes Hotel 71

Mezz Lender LLC v. Falor, 14 N.Y.3d 303, 926 N.E.2d 1202, 900 N.Y.S.2d 698 (2010)

JSC VTB Bank v. Mavlyanov, 154 A.D.3d 560, 63 N.Y.S.3d 40 (1st Dep’t 2017) (“The court should

not have ordered attachment of real estate located in California, i.e., outside its jurisdiction

(citations omitted). Hotel 71 Mezz Lender LLC v. Falor, 14 N.Y.3d 303, 926 N.E.2d 1202, 900

N.Y.S.2d 698 (2010), is distinguishable. It involved uncertificated ownership/membership

Page 279: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

interests in limited liability companies and a corporation, which could be attached by serving the

manager of the entities in New York (citation omitted). By contrast, a sheriff levies on real property

‘by filing with the clerk of the county in which the property is located a notice of attachment’

(citation omitted). Even if a New York court could attach real estate located in California, we

would stay all claims related to the California properties, because, only about a month after

plaintiff sued here, it brought an action in that state against many of the same defendants as in the

case at bar, alleging fraudulent conveyance with respect to the California properties. The California

action ‘offers more’ than the case at bar (citations omitted), because, as plaintiff admits, a notice

of pendency against the California properties can be filed only in that state, not here. It also appears

that the California action will go to trial before the case at bar (citation omitted).”).

CPLR 6212 - Motion papers

CPLR 6212 - Wrongful attachment damages; Issuing restraining notices is not an

attachment

Benzemann v. Citibank N.A., 149 A.D.3d 586, 53 N.Y.S.3d 33 (1st Dep’t 2017) (“Plaintiff’s claim

for ‘wrongful attachment,’ which alleges that the defendants were collectively responsible for

plaintiff’s property being wrongfully restrained, also fails. Plaintiff does not plead that there was

an ‘attachment’ governed by article 62 of the CPLR, but rather that there were restraining notices

issued pursuant to CPLR 5222. ‘The mere fact that property has been subjected to some form of

restraint does not serve as a basis for the statutory claim of wrongful attachment’ (citation omitted).

We adopt the Fourth Department’s reasoning.”).

CPLR 6212 - Wrongful attachment damages; Plaintiffs strictly liable for damages

Citibank, N.A. v. Keenan Powers & Andrews PC, 149 A.D.3d 484, 49 N.Y.S.3d 895 (1st Dep’t

2017) (“A finding of fault is not required to recover damages under this provision, as plaintiffs are

‘strictly liable’ for the damages they caused (citation omitted). Under the circumstances, we find

that the full amount of defense costs incurred by Secure Title in the underlying litigation was

recoverable as damages for plaintiffs’ wrongful attachment under CPLR 6212(e) (citations

omitted).”).

ARTICLE 63 – INJUNCTION

CPLR 6301 - Grounds for preliminary injunction and temporary restraining order

CPLR 6301 - No jurisdiction to entertain injunction application because no action was

pending

Matter of Town of Cicero v. Lakeshore Estates, LLC, 152 A.D.3d 1168, 60 N.Y.S.3d 730 (4th

Dep’t 2017) (“‘[T]he valid commencement of an action is a condition precedent to [Supreme

Court’s] acquiring the jurisdiction even to entertain an application for a[n] . . . injunction’ (citations

Page 280: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

omitted). Here, however, there is no action supporting the application for an injunction. Indeed,

the order to show cause and supporting papers themselves constitute the only request for an

injunction. While ‘courts are empowered and indeed directed to convert a civil judicial proceeding

not brought in the proper form into one which would be in proper form, rather than to grant a

dismissal’ (citation omitted), more than improper form is involved here (citation omitted).

Converting the order to show cause and supporting papers into a summons and complaint in these

circumstances would effectively permit the Town to seek an injunction by motion, a result that is

at odds with the well-established principle that ‘[t]he pendency of an action is an indispensable

prerequisite to the granting of a[n] . . . injunction’ (citations omitted). We thus conclude that the

court lacked jurisdiction to entertain the Town’s request (citation omitted). Without an underlying

action the order putatively on appeal does not constitute an appealable paper (citation omitted).

The appeal must therefore be dismissed.”).

Lynn v. Sterling Natl. Bank, 151 A.D.3d 1049, 54 N.Y.S.3d 864 (2d Dep’t 2017) (“Here, the

plaintiff moved for a preliminary injunction against the defendants when there was no judicial

action pending between the parties. As a result, the Supreme Court lacked the authority to grant a

preliminary injunction pursuant to CPLR 6301 (citation omitted). Accordingly, the court properly

denied the plaintiff’s motion for a preliminary injunction.”).

CPLR 6312 - Motion papers

CPLR 6312(b) - Preliminary injunction, not TRO, was appropriate, and the former

REQUIRES an undertaking

Slifka v. Slifka, 2018 NY Slip Op 04515 (1st Dep’t 2018) (“The court erred in enjoining the sale

of property at issue pending the decision by the Surrogate pursuant to a temporary restraining

order, which does not require an undertaking (citation omitted). The TRO is merely a provisional

remedy pending a hearing on a motion for a preliminary injunction (citation omitted), and the court

did not schedule a hearing on plaintiffs' motion. However, it issued the ‘stay/TRO’ after allowing

both sides an opportunity to be heard. Thus, the relief is in fact a preliminary injunction, and

plaintiffs are required to post an undertaking (citation omitted). We remand to Supreme Court to

fix the amount of the undertaking (citations omitted).”).

CPLR 6312(b) - I’ll say it again, an undertaking is required

Vassenelli v. City of Syracuse, 160 A.D.3d 1412, 75 N.Y.S.3d 724 (4th Dep’t 2018) (“Plaintiff

contends that the court erred in denying that part of his application seeking a waiver of the

undertaking pursuant to CPLR 6312 (b). We reject that contention. CPLR 6312 (b) directs a court

to fix an undertaking in an amount that will compensate a defendant for damages incurred by

reason of the granting of a preliminary injunction in the event that it is finally determined that a

plaintiff was not entitled to the injunction. Plaintiff, as the party herein who sought a preliminary

injunction, was clearly and unequivocally required to post an undertaking (citations omitted).

Contrary to plaintiff's contention, the court had ‘no power to dispense with the undertaking

required by CPLR 6312 (b)’ (citations omitted). We reject plaintiff's further contention that the

Page 281: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

court erred in applying state law rather than federal law in considering whether to waive the

undertaking. Inasmuch as plaintiff expressly requested injunctive relief under CPLR article 63

based on the alleged failure of the City to act in accordance with the General Municipal Law, we

conclude that the court properly applied CPLR 6312 (b). We further conclude that the court did

not improvidently exercise its discretion in fixing the amount of the undertaking (citation omitted).

ARTICLE 65 - NOTICE OF PENDENCY

CPLR 6501 - Notice of pendency; constructive notice

CPLR 6501 - Need ongoing action

Piller v. Tribeca Dev. Group LLC, 156 A.D.3d 1257 (3d Dep’t 2017) (“Further, as the complaint

is reinstated against Eisner, there is an ongoing action in which ‘the judgment demanded would

affect the title to, or the possession, use or enjoyment of, real property,’ and plaintiff’s notice of

pendency must be reinstated (citations omitted).”).

CPLR 6514 - Motion for cancellation of notice of pendency

CPLR 6514(c) - Where the court invokes its inherent power to cancel the notice of pendency

and not pursuant to CPLR 6514(c), the court has no authority to award costs and

disbursements under CPLR 6514(c)

Congel v. Malfitano, 61 A.D.3d 807, 809, 877 N.Y.S.2d 443, 446 (2d Dep’t 2009). However, the

court retains the right to award costs and attorneys’ fees under 22 NYCRR 130-1.1 for frivolous

conduct. See Delidimitropoulos v. Karantinidis, 142 A.D.3d 1038, 38 N.Y.S.3d 36 (2d Dep’t 2016)

(Appellate Division modifies lower court order, granting defendants’ motion to cancel notices of

pendency and awarding defendants’ costs and attorneys’ fees pursuant to 22 NYCRR 130-1.1.

Court finds that complaint does not seek relief that would affect title to, or the possession, use or

enjoyment of real property. Thus, the lower court should have granted defendants’ motion to

cancel the notice of pendency under its inherent power. Moreover, even though the court had no

authority to award costs and disbursements under CPLR 6514(c), “the Supreme Court should have

granted that branch of the defendants’ motion which was for an award of costs and attorney’s fees

pursuant to 22 NYCRR 130-1.1. A litigant’s ability to file a notice of pendency is an ‘extraordinary

privilege because of the relative ease by which it can be obtained’ (citation omitted) and because

it permits a party ‘to effectively retard the alienability of real property without any prior judicial

review’ (citation omitted). Here, the judgment demanded in the complaint clearly would not affect

the title to, or the possession, use, or enjoyment of, any real property. Five months prior to making

the instant motion, the defendants’ counsel advised the plaintiff that the notices of pendency were

improperly filed, citing applicable case authorities, and requested removal of the notices of

pendency in order to avoid motion practice. The plaintiff’s conduct in improperly filing the notices

of pendency in the first instance, and then refusing to cancel them in response to the defendants’

demand, was ‘completely without merit in law and could not be supported by a reasonable

Page 282: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

argument for an extension, modification, or reversal of existing law,’ and therefore, was ‘frivolous’

within the meaning of 22 NYCRR 130-1.1 (citation omitted).”).

ARTICLE 75 - ARBITRATION

CPLR 7501 - Effect of arbitration agreement

CPLR 7501 - Unambiguous language evinces parties’ unequivocal intent to arbitrate

Suckling v. Iu, 151 A.D.3d 664, 54 N.Y.S.3d 585 (1st Dep’t 2017) (“The dispute resolution clause

(section 14.11) of the operating agreements for defendants 56 Edison LLC and 52 Reeve LLC

provides that ‘the Members shall submit [certain] dispute[s] to an arbitration procedure’ (subd [b];

emphasis added). This unambiguous language evinces the parties’ ‘unequivocal intent to arbitrate

the relevant dispute’ (citation omitted). The arbitration clause is no mere agreement to agree; it is

‘clear, explicit and unequivocal,’ and does not depend upon ‘implication or subtlety’ (citation

omitted). Nor does the lack of a designated arbitration procedure render the clause unenforceable,

because CPLR 7504 provides an objective method for supplying that missing term (citations

omitted).”).

CPLR 7503 - Application to compel or stay arbitration

CPLR 7503 - Fee sharing agreement and Brady

Adams v. Kent Sec. of N.Y., Inc., 156 A.D.3d 588 (1st Dep’t 2017) (“Applying the foregoing

standard, we hold that plaintiff has made a preliminary showing that the fee sharing and venue

provisions in the arbitration agreement have the effect of precluding him from pursuing his

statutory wage claim in arbitration. We remand for further proceedings, consistent with Brady,

which, at a minimum, would include proof of plaintiff’s income and assets, as well as proof of the

expected costs and fees to arbitrate this dispute in Florida. Because the parties’ arbitration

agreements contains a severability clause, in the event plaintiff prevails on his claim that the

aforementioned fee sharing and venue provisions should be held unenforceable under Brady, the

matter should proceed to arbitration in New York, with defendant to bear the costs of the

arbitration.”).

CPLR 7503 - Application to stay arbitration – Initiation and participation in arbitration

precludes party from seeking stay

Matter of Mechtronics Corp. v. Kirchhoff-Consigli Constr. Mgt. LLC, 144 A.D.3d 688, 39

N.Y.S.3d 813 (2d Dep’t 2016) (“The Supreme Court properly denied the petition to permanently

stay arbitration and granted the cross motion to compel arbitration. Pursuant to CPLR 7503(b), ‘a

Page 283: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

party who has not participated in the arbitration . . . may apply to stay arbitration.’ The petitioner’s

initiation of and participation in the arbitration proceeding precludes it from seeking a stay

(citations omitted).”).

CPLR 7503 - No waiver of right to arbitrate

Sutphin Retail One, LLC v. Sutphin Airtrain Realty, LLC, 143 A.D.3d 972, 40 N.Y.S.3d 457 (2d

Dep’t 2016) (“Contrary to the plaintiff’s contention, the defendants did not waive their right to

arbitrate. Since the period of time between the service of the defendants’ answer and their motion

to compel arbitration was not lengthy, the defendants’ conduct in this regard did not serve to waive

the right to arbitrate (citation omitted).”).

CPLR 7503 - Petition to stay time- barred – agreement contained arbitration provision

Matter of Allstate Ins. Co. (Cappadonia), 143 A.D.3d 1266, 39 N.Y.S.3d 342 (4th Dep’t 2016)

(“We agree with respondent that the petition to stay arbitration is time-barred because it was not

filed within 20 days of respondent’s formal arbitration demand (citations omitted). Although the

20-day time limit of CPLR 7503 (c) does not apply if the parties never had ‘any agreement to

arbitrate’ (citation omitted), the ‘Matarasso exception is inapplicable’ because ‘the contract[] at

issue in this case contain[s] an arbitration provision’ (citations omitted). Indeed, so long as the

subject insurance policy contains some type of arbitration agreement between the parties, as it does

here, an untimely stay application which ‘conten[ds] that there is no coverage under [the] policy’s

[SUM] provisions . . . is outside the [Matarasso] exception’ (citations omitted). Because the

petition was untimely, the court had no power to entertain it (citations omitted).”).

CPLR 7503 / 7511 - Where arbitration clause stated that “[a]ny dispute arising under the

terms of this agreement shall be resolved by the parties voluntarily submitting to binding

arbitration,” and petitioner did not agree to arbitrate, the petition to vacate the award was

correctly granted

Matter of Poma v. Arici, 75 N.Y.S.3d 910 (1st Dep’t 2018) (“Respondent's notice of arbitration

did not contain the requisite language of CPLR 7503(c) and, therefore, petitioner was not

precluded from raising threshold arbitration issues before the court (citations omitted). Threshold

issues include whether the parties complied with the agreement (citations omitted). ‘Arbitration

agreements are contracts and their meaning is to be determined from the language employed by

the parties under accepted rules of contract law’ (citation omitted). By its plain language, the

subject arbitration clause states that ‘[a]ny dispute arising under the terms of this agreement shall

be resolved by the parties voluntarily submitting to binding arbitration,’ thus, where petitioner did

not agree to arbitrate, the petition to vacate the award was correctly granted.”).

Page 284: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

CPLR 7511- Vacating or modifying award

CPLR 7511 - Public policy precludes enforcement of penalty imposed by arbitrator

Matter of Bukowski (State of NY Dept. of Corr. & Community Supervision), 148 A.D.3d 1386, 50

N.Y.S.3d 588 (3d Dep’t 2017) (“Accordingly, in view of the statutory and regulatory prohibitions

against the use of unjustified physical force and the imposition of corporal punishment in all

circumstances, and given that Bukowski not only unquestionably engaged in such prohibited

conduct here, but also thereafter repeatedly lied about his actions, thus evidencing a failure to

acknowledge the magnitude of his misconduct, we conclude that public policy precludes

enforcement of the penalty imposed by the arbitrator in this matter (citations omitted). In reaching

this result, we take no position as to the penalty that ultimately should be imposed; the appropriate

penalty, which should be both effective and sufficiently address the public policy considerations

previously discussed, is a matter for the arbitrator to resolve pursuant to the terms of the collective

bargaining agreement (citations omitted). Accordingly, we affirm Supreme Court’s order remitting

the matter for the imposition of a new penalty.”).

CPLR 7511 - Arbitrator’s award was irrational and in conflict with CPLR 1209

Matter of Fast Care Med. Diagnostics, PLLC/PV v. Government Employees Ins. Co., 161 A.D.3d

1149 (2d Dep’t 2018) (“An arbitration award may be vacated if the court finds that the rights of a

party were prejudiced by (1) corruption, fraud, or misconduct in procuring the award; (2) partiality

of an arbitrator; (3) the arbitrator exceeding his or her power; or (4) the failure to follow the

procedures of CPLR article 75 (see CPLR 7511[b]). In addition, an arbitration award may be

vacated ‘if it violates strong public policy, is irrational, or clearly exceeds a specifically

enumerated limitation on the arbitrator's power’ (citations omitted). An arbitration award may also

be vacated where it is in ‘ explicit conflict' with established laws and ‘the strong and well-defined

policy considerations' embodied therein’ (citations omitted). We agree with the Supreme Court

that the arbitrator’s award was irrational and in conflict with CPLR 1209, which applies ‘only

where an infant is a party’ to an arbitration proceeding (citations omitted). The infant patient was

not a party to the arbitration; rather, Fast Care, as the infant’s assignee, was the party that brought

the arbitration (citation omitted). Therefore, we agree with the court that the arbitrator disregarded

established law in determining that the requirements of CPLR 1209 applied here (citations

omitted). Furthermore, the master arbitrator’s determination that the assignment of benefits was

not effective was not based on any requirement set forth in established law or regulations (citation

omitted).”).

Page 285: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

CPLR 7513 - Fees and expenses

CPLR 7513 - Award of attorneys’ fees did not exceed arbitrator’s power- “mutual demands

for counsel fees in an arbitration proceeding constitute, in effect, an agreement to submit the

issue to arbitration, with the resultant award being valid and enforceable”

Matter of R.F. Lafferty & Co., Inc. v. Winter, 161 A.D.3d 535 (1st Dep’t 2018) (“Respondent

argues that the award of attorneys’ fees to petitioner exceeded the arbitrator’s power because the

arbitration agreement did not expressly provide for attorneys’ fees (citations omitted). However,

both parties demanded attorneys’ fees, and ‘mutual demands for counsel fees in an arbitration

proceeding constitute, in effect, an agreement to submit the issue to arbitration, with the resultant

award being valid and enforceable’ (citations omitted).”).

ARTICLE 78 - PROCEEDING AGAINST BODY OR OFFICER

CPLR 7801 - Nature of proceeding

CPLR 7801 - No final determination, no exhaustion of administrative remedies, no actual

concrete injury

David L. Ferstendig, Once, Twice, Three Times a Maybe, 677 N.Y.S.L.D. 2 (2017).).

The issue in Matter of East Ramapo Cent. Sch. Dist. v. King, 2017 N.Y. Slip Op. 02360 (March

28, 2017), related to a challenge brought by a local educational agency, the plaintiff East Ramapo

Central School District (“the District”), to a determination of the State Education Department, a

state education agency (“the State”). The State regulates the District’s compliance with the

requirements of the Individuals with Disabilities Education Act (the “IDEA”).

To receive IDEA funding, the State must establish policies and procedures to assure that students

with disabilities receive “a free appropriate public education in the least restrictive environment

and an individualized education program tailored to their unique needs, and that these students and

their parents are afforded certain procedural safeguards.” Matter of East Ramapo Cent. Sch. Dist.

v. King, 130 A.D.3d 19, 21 (3d Dep’t 2015). The District’s receipt of IDEA funding depends on

its annual submission of a plan that assures that the District is complying with the State Education

Department’s policies and procedures. Here, in reviewing various student records, the State

determined that the District’s dispute resolution practices violated state and federal law and

directed the District to take corrective measures. The District brought this Article 78 proceeding

challenging the State’s determination on the ground that its findings were unsupported by

substantial evidence and were based on an erroneous construction of the IDEA.

Page 286: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

The trial court dismissed the petition on the merits. The Appellate Division affirmed, but on the

ground that Congress did not provide the District with a private right of action under the IDEA to

challenge the State’s determination. The court found the IDEA did not expressly confer such a

private right of action and there was no evidence that Congress intended to create such a right.

The Court of Appeals affirmed, but yet again on a different ground. The Court did not decide the

issue as to whether the District had a private right of action. Instead, it assumed it did, but found

that the State had not made a final determination, that the District had not established that it had

exhausted its administrative remedies, and that the District was “unable to articulate any actual,

concrete injury that it has suffered at this juncture.” 2017 N.Y. Slip Op. 02360 at ∗2. The Court

noted that although the State had advised the District that its failure to comply could result in

further enforcement actions, including the withholding of funds, the State had not made a final

decision to withhold funds.

So, after three unsuccessful attempts, the District is left with a ruling that it cannot bring the

proceeding at this point and with no assurances that if and when those impediments to finality are

removed, it has a private right of action under the IDEA.

CPLR 7801 - Matter not ripe for judicial review

David L. Ferstendig, In Zoning Dispute, Petitioner Seeks to Annul Positive Declaration, 666

N.Y.S.L.D. 2, 3 (2016).

In Ranco Sand & Stone Corp. v. Vecchio, 2016 N.Y. Slip Op. 02477 (March 31, 2016), Ranco

owned two pieces of contiguous property which were located in an area zoned for residential use.

However, in 1997, Ranco leased one parcel to a private bus company which used the land as a

trucking station and bus yard. Even though this was clearly a nonconforming use, the Town did

not seek to enforce the residential zoning requirements. In 2002, Ranco sought to rezone the parcel

to heavy industrial use.

In 2004, the Town Planning Board recommended approval of the application but no further action

was taken for five years, when the Town Board adopted a resolution issuing a positive declaration

pursuant to the State Environmental Quality Review Act (SEQRA) that the rezoning of the parcel

“may have a significant effect on the environment.” It required Ranco to prepare a draft

environmental impact statement (DEIS). Such a statement is to describe “significant adverse

environmental impacts” and include alternatives and mitigation measures. It provides the agency

with information to assist in assessing the possible environmental consequences.

Ranco commenced this CPLR Article 78 proceeding seeking to annul the positive declaration and

requested mandamus relief. The respondent moved to dismiss for failure to state a cause of action.

The Supreme Court granted the motion, finding that the issue was not ripe for judicial review. The

Appellate Division affirmed, holding that the positive declaration did not give rise to a justiciable

controversy.

Page 287: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

Ranco argued that the requirement that it prepare a DEIS would cause it actual and real financial

injury, and thus there was a justiciable controversy.

In order to bring an Article 78 proceeding to challenge an administrative action, it needs to be

“final and binding upon the petitioner.” The issue here was whether the positive declaration was

ripe for judicial review. The Court of Appeals noted that when challenging an action under

SEQRA, a positive declaration is ripe for review when two requirements are met -

First, “the action must ‘impose an obligation, deny a right or fix some legal

relationship as a consummation of the administrative process’” (citation omitted).

This threshold requirement consists of “‘a pragmatic evaluation . . . of whether the

decision maker has arrived at a definitive position on the issue that inflicts an actual,

concrete injury’” (id.). Second, “there must be a finding that the apparent harm

inflicted by the action ‘may not be prevented or significantly ameliorated by further

administrative action or by steps available to the complaining party’” (id.).

Id. at *4.

The Court concluded that, in this action, Ranco satisfied only the first requirement, but not the

second, and to accept Ranco’s position would, in essence, conflate the two requirements -

Indeed, Ranco’s approach would lead to convergence of the two requirements set

forth in Gordon by reducing the analysis to whether a petitioner will incur

unrecoverable costs. The inevitable result would be that every positive declaration

requiring the creation of a DEIS would be ripe for review because the preparation

of a DEIS by its nature carries financial costs that generally cannot be recouped,

regardless of the outcome of the SEQRA process and the ultimate determination on

a petitioner’s zoning application. However, courts should seek to avoid this type of

“piecemeal review of each determination made in the context of the SEQRA

process [which] would subject it to ‘unrestrained review. . . result[ing] in significant

delays in what is already a detailed and lengthy process’” (citation omitted).

Id. at *5.

The Court of Appeals noted that generally a positive declaration that requires a DEIS is not a final

agency action, but rather an initial step in the SEQRA process.

CPLR 7801 - Availability of Mandamus-does not lie to enforce the performance of a duty

that is discretionary

Matter of Mount Bldrs., LLC v. Oddo, 152 A.D.3d 694, 58 N.Y.S.3d 594 (2d Dep’t 2017)

(“‘Mandamus lies to compel the performance of a purely ministerial act where there is a clear legal

right to the relief sought’ (citations omitted). ‘Thus, mandamus does not lie to enforce the

performance of a duty that is discretionary, as opposed to ministerial’ (citations omitted). Here,

the respondent complied with the November 9, 2015, judgment. Since the naming of the new

Page 288: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

streets was within the discretion of the respondent, the petitioner has failed to show a clear legal

right to relief in the nature of mandamus. Accordingly, the Supreme Court properly denied the

motion.”).

Matter of James v. City of New York, 154 A.D.3d 424, 60 N.Y.S.3d 810 (1st Dep’t 2017) (“In any

event, petitioners are not entitled to the ‘extraordinary remedy’ of mandamus (citation omitted),

which ‘is generally not available to compel government officials to enforce laws and rules or

regulatory schemes that plaintiffs claim are not being adequately pursued’ (citation omitted). The

relief sought does not concern mere ‘acts which are mandatory but are executed through means

that are discretionary,’ but involves ‘acts the exercise of which is discretionary’ (citation omitted),

such as deciding whether to seek penalties for particular violations of Administrative Code of City

of NY § 19-605(a) by bus companies in performing their contracts with respondent Department of

Education.”).

CPLR 7803 - Questions raised

CPLR 7803 - Determination was not arbitrary and capricious

Matter of Krug v. City of Buffalo, 2018 NY Slip Op 04118 (4th Dep’t 2018) (“We reject

respondent's contention that its determination was not arbitrary and capricious. Respondent has a

duty to provide a defense to petitioner ‘if his alleged conduct occurred or allegedly occurred while

he was acting within the scope of his public employment or duties’ (citations omitted), and the

determination that petitioner was not acting within the scope of his public employment or duties

‘may be set aside only if it lacks a factual basis, and in that sense, is arbitrary and capricious’

(citation omitted). Here, it is undisputed that petitioner was on duty and working as a police officer

when the alleged conduct occurred (citation omitted).”).

CPLR 7803(4)

David L. Ferstendig, Split Opinion on Whether NYC Commission on Human Rights’

Determination Was Supported By Substantial Evidence, 691 N.Y.S.L.D. 2-3 (2018).

Split Opinion on Whether NYC Commission on Human Rights’ Determination Was

Supported By Substantial Evidence

Did Petitioners Carry Burden Of Demonstrating Undue Hardship?

As practitioners are well aware, the questions that can be raised on a CPLR Article 78 proceeding

brought to challenge a determination are limited. See CPLR 7803. One of these questions is

"[w]hether a determination made as a result of a hearing held, and at which evidence was taken,

pursuant to direction by law is, on the entire record, supported by substantial evidence." CPLR

7803(4)

Page 289: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

Here, we are also dealing with a similar provision, Administrative Code of City of New York § 8-

123(e), which provides that the findings of the New York City Commission on Human Rights

(Commission) "shall be conclusive if supported by substantial evidence on the record considered

as a whole."

In Matter of Marine Holdings, LLC v. New York City Comm. on Human Rights, 2018 N.Y. Slip

Op. 03303 (May 8, 2018), the petitioners’ tenant had filed a complaint with the Commission,

alleging that the petitioners had discriminated against the tenant – who could not enter or leave the

apartment without being carried – by refusing her request to install a handicap (wheelchair)

accessible entrance to her apartment. The petitioners brought this proceeding, challenging the

Commission’s determination, directing them to install a wheelchair-accessible entrance, which

involved converting a window into a doorway and installing a ramp.

After the Commission issued a probable cause determination, a hearing was conducted, and the

Administrative Law Judge (ALJ) found that petitioners did not discriminate unlawfully against the

tenant because providing the proposed accommodation would create an undue hardship.

However, the Commission rejected the ALJ’s findings; found that the petitioners did not carry

their burden to establish undue hardship and that they unlawfully discriminated against the tenant

and were required to make the modification; awarded the tenant $75,000 as damages for mental

anguish; and imposed a $125,000 civil penalty.

The trial court denied the petition in part, ruling that the Commission’s "determination that

[petitioners] did not establish the affirmative defense of undue hardship based upon structural

infeasibility is supported by substantial evidence in the record." Id. at ∗3. The Appellate Division

reversed, finding that "the record did not contain any substantial evidence rebutting the petitioners’

showing that it would be structurally infeasible to install a handicapped accessible entrance to [the

tenant’s] apartment." Id.

A majority of the Court of Appeals reversed, ruling that there was substantial evidence to support

the Commission’s conclusion that petitioners did not carry their burden of demonstrating undue

hardship in the conduct of their business because the requested accommodation would be

structurally infeasible. The relevant Administrative Code provision (§ 8-107(15)(a)) requires that

"reasonable accommodations," defined as an accommodation that "shall not cause undue hardship

in the conduct of the covered entity’s business" (NYC Administrative Code § 8-102(18)), be made

for persons with disabilities.

The Court focused on evidence presented at the hearing that the petitioners had done a similar

window-to-door conversion elsewhere in its residential complex:

No evidence was presented that this prior window-todoor conversion had imposed

any hardship on petitioners, and substantial evidence supports the determination

that petitioners did not prove that the proposed conversion would require alterations

significantly different from the previous one. The Commission could rationally

Page 290: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

conclude that petitioners failed to carry their burden of proving that the proposed

accommodation would cause undue hardship in the conduct of their business.

Id. at ∗1.

The dissent concluded to the contrary that the Commission’s determination was not supported by

substantial evidence and that the petitioners had met their burden of proving their undue hardship

claim. It maintained that the Commission applied an improper standard, that is, whether the

requested accommodation could be done, or was theoretically possible:

An accommodation need not be physically impossible to cause an undue hardship,

because most accommodations are theoretically possible—indeed, it is "possible"

for petitioners to construct an entirely new building to accommodate the tenant.

Instead, the reasonable accommodation standard requires an examination of

whether the accommodation will "cause undue hardship in the conduct of the

covered entity’s business" (NYC Admin Code § 8-102 [18]). That all experts

agreed that the work "could be done" is in no way dispositive. When the proper

standard is applied, it is evident that petitioners’ business, that of providing housing

to its tenants, will suffer an undue hardship from this accommodation, as there is a

possibility that neighbors will be displaced, that neighboring apartments will be

harmed, that the building may be structurally degraded, and that gas lines could be

ruptured.

Id. at ∗4.

Moreover, a modification can be "structurally feasible" and still cause undue hardship. The dissent

noted that the Commission’s improper summary dismissal of the petitioners’ structural engineer’s

observation of the differences between the accommodation requested here and the accommodation

provided in another of the petitioners’ buildings was irrational. They included "the width of the

windows, the lack of gas lines below the management office, and the length of the necessary ramp."

Id.

CPLR Article 78

David L. Ferstendig, Divided Court Holds First Responders Are Not Entitled to Accidental

Disability Retirement Benefits, 688 N.Y.S.L.D. 2-3 (2018)

Divided Court Holds First Responders Are Not Entitled to Accidental Disability Retirement

Benefits

Majority Finds That Substantial Evidence Supported Respondent’s Determinations That

Petitioners Were Not Incapacitated As A Result of an Accident

The decision in Matter of Kelly v. DiNapoli, 2018 N.Y. Slip Op. 01016 (February 13, 2018), was

the result of the appeal of two actions, both dealing with whether the petitioners, each first

Page 291: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

responders, were entitled to accidental disability retirement benefits (that are generally more

generous than performance of duty disability retirement benefits). The issue, more precisely, was

whether the petitioners were incapacitated "as the natural and proximate result of an accident …

sustained in … service." Retirement and Social Security Law § 363(a)(i) (RSSL).

James J. Kelly was a police officer on duty during Hurricane Sandy who was sent with another

officer to a home on which a tree had fallen, trapping the residents. The house appeared to be "very

unstable" and there were downed wires. Operating under the belief that the fire department

technical response unit would be delayed for several hours, Kelly entered the home in response to

"blood-curdling screams" for help. When inside, Officer Kelly saw a resident impaled. While

clearing away debris to free individuals under a pile of debris, he felt pain in his shoulder. When

a rafter that was dangling from the roof began to fall, he reached up to brace the rafter (to avoid

injury to another officer) further injuring his shoulder and neck.

When Kelly applied for accidental disability retirement benefits, the Hearing Officer found that

the injurycausing incident was "an accident" under RSSL § 363 because "[e] ntering that unstable

structure was not within [petitioner’s] regular and usual duties." Id. at ∗2. However, the respondent

Comptroller overruled the Hearing Officer, and the Appellate Division confirmed the

determination in an ensuing Article 78 proceeding.

Pat Sica was a firefighter, injured when responding to a medical emergency of an individual with

breathing difficulties at a local supermarket. Shortly after assisting two unconscious individuals,

he took ill and was taken to an emergency room. It was later revealed that he had been exposed to

toxic gases in the supermarket, leading to a disabling heart condition. When Sica applied for

accidental disability retirement benefits, the Hearing Officer found that the incident was an

"accident" and his injuries "resulted from an unexpected and unforeseeable event, which arose

during the performance of [Sica’s] routine employment duties." Id. The Comptroller overruled the

Hearing Officer’s determination. However, the Appellate Division annulled the Comptroller’s

determination, concluding "that Sica ‘was not responding to a fire that presented the inherent and

foreseeable risk of inhaling toxic gases or smoke,’ and that he ‘was neither aware that the air within

the supermarket contained toxic chemical gases, nor did he have any information that could

reasonably have led him to anticipate, expect[,] or foresee the precise hazard when responding to

the medical emergency at the supermarket’ (citation omitted)." Id. at ∗3.

The Court of Appeals was unanimous in finding that Mr. Sica was not entitled to accidental

disability retirement benefits, but was divided on the denial to Mr. Kelly. The majority noted that

its prior precedent established that an injury-causing incident is considered "accidental" when it is

"sudden, unexpected and not a risk of the work performed." Id. at ∗4. The Court emphasized that

the focus is on the "precipitating cause of injury" and not on "the petitioner’s job assignment." Id.

In evaluating the respondent’s determination, the substantial evidence standard applied. That

standard, which the Court characterized as "not an exacting one," "is less than a preponderance of

the evidence … [and] demands only that a given inference is reasonable and plausible, not

necessarily the most probable" Id. at ∗5. Based on this standard, the Court held that respondents’

determinations were rational. It concluded that there was substantial evidence that neither

Page 292: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

petitioner was injured as a result of an "accident" because there were no "precipitating accidental

event[s] … which w[ere] not a risk of the work performed." Id. at ∗4. The respondent could have

rationally concluded that the petitioners "were acting within the scope of their ‘ordinary

employment duties, considered in view of the particular employment in question,’ and that there

was no sudden, unexpected event that was not an inherent risk of petitioners’ regular duties

(emphasis added)." Id. at ∗5.

In Kelly, the respondent concluded that the officer was expected to assist injured persons and to

respond to emergencies. Significantly, while acknowledging that "a different result would not have

been unreasonable," the Court concluded that there was substantial evidence to support the

determination. In Sica, the majority similarly found that substantial evidence supported the

respondent’s conclusion that Sica was performing his regular duties as a firefighter; that he had

been trained for the risk of exposure to toxic substances; that he had responded to a gas leak in the

past; and that his job duties specifically required him to work "with exposure to … fumes,

explosives, toxic materials, chemicals and corrosives.”

The dissent, written by Judge Wilson, agreed that the Comptroller’s determination in Sica should

be reinstated because, "[a]s a firefighter, job-related exposure to toxic fumes is to be expected, and

firefighters receive relevant training (Mr. Sica testified as much) and are provided protective gear

to don when appropriate." Id.

However, he disagreed with the majority on Police Officer Kelly. The dissent noted that the rescue

here was a job for firefighters, not the police, but because of the unavailability of the fire

department, the officers attempted the rescue, during which the rafter gave way. The Comptroller’s

rationale rested on the proposition that because emergency response is part of police officers’ jobs,

anything that happens is not an accident. The dissent insisted that the proper analysis should begin

with determining whether the nature of the hazard was a part of the bargained-for risks of the job;

and if it was outside the bargainedfor risks, to then assess whether it was "sufficiently out of the

ordinary risks of everyday life to constitute an accident." Id. at ∗6. It concluded that entering a

collapsing building and confronting falling rafters during a hurricane when fire and EMS workers

were unavailable is a hazard outside the bargained-for risks of the job. Moreover, the hazard was

"out of the ordinary":

In the ordinary course of our lives, we bend over; we rise from chairs; we walk

down steps, some of which were previously visited by dogs; but we do not save

lives by deflecting burning beams in collapsing homes during a hurricane — we

imagine that for superheroes.

Id. at ∗7.

Page 293: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

ARTICLE 83 - DISBURSEMENTS AND ADDITIONAL ALLOWANCES

CPLR 8303-a - Frivolous claims

CPLR 8303-a; 22 NYCRR 130- Plaintiff’s conduct was frivolous, meriting award of costs

and attorneys’ fees

Divito v. Fiandach, 160 A.D.3d 1404 (4th Dep’t 2018) (“We also reject plaintiff's various

procedural challenges. The record belies his contention that the court erred in making the award

sua sponte without affording him an opportunity to be heard (citation omitted). Defendant's motion

explicitly sought an award of costs and attorney's fees resulting from plaintiff's frivolous conduct,

and plaintiff had an opportunity to respond to that motion. Furthermore, contrary to plaintiff's

contention, the court issued a written decision explicitly ‘setting forth the conduct on which the

award . . . [was] based, [and] the reasons why the court found the conduct to be frivolous’ (citation

omitted). The decision also adequately explained why the amount of the award was appropriate

(citation omitted). We conclude that it is self-evident that the cost of vacating an income execution

based upon false representations concerning a nonexistent default judgment should be shouldered

by the party responsible for preparing and serving it.”).

CPLR 8303-a; 22 NYCRR 130 - Sanctions awarded

ATS-1 Corp. v. Rodriguez, 156 A.D.3d 674, 67 N.Y.S.3d 60 (2d Dep’t 2017) (“Under the

circumstances of this case, including, but not limited to, the appellants’ attempt to vacate the

stipulation of settlement based upon their purported mistake, we find that much of the conduct of

the appellant Cirilo Rodriguez and attorney George W. Echevarria, including their prosecution of

this appeal, which is based upon the same meritless arguments advanced on the cross motion to

vacate the stipulation of settlement, has been “undertaken primarily to delay or prolong the

resolution of the litigation” (citation omitted). We find that this conduct warrants sanctions in the

amount of $500 each on the appellant Cirilo Rodriguez and attorney George W. Echevarria.”).

Liang v. Wei Ji, 155 A.D.3d 1018, 66 N.Y.S.3d 321 (2d Dep’t 2017) (“Moreover, we reject the

plaintiff’s contention that the order directing the imposition of a sanction against him failed to

comply with 22 NYCRR 130-1.2. That rule provides that ‘[t]he court may award costs or impose

sanctions or both only upon a written decision setting forth the conduct on which the award or

imposition is based, the reasons why the court found the conduct to be frivolous, and the reasons

why the court found the amount awarded or imposed to be appropriate.’ Courts have not held that

the procedural dictates of 22 NYCRR 130-1.2 must be followed ‘in any rigid fashion’ (citations

omitted). Here, in the order appealed from, the Supreme Court discussed the reasons why it was

directing dismissal of the complaint. It then cited 22 NYCRR 130-1.1(a), and stated that the branch

of the motion which was for the imposition of a sanction in the amount of $160 was granted. It is

clear from the context of the order that the court found the plaintiff’s conduct to be frivolous for

Page 294: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

the same reasons it gave for directing dismissal of the complaint. Accordingly, the order did not

fail to comply with the requirements of 22 NYCRR 130-1.2.”).

CPLR 8303-a; 22 NYCRR 130 – Plaintiff’s counsel acted frivolously

Retained Realty, Inc. v. 1828 51, LLC, 153 A.D.3d 1438, 61 N.Y.S.3d 611 (2d Dep’t 2017) (“Here,

the record demonstrates that the Supreme Court providently exercised its discretion in finding that

the plaintiff’s counsel acted frivolously in renewing the motion for an order of reference premised

upon the defendants’ default in answering or appearing despite being on notice, based upon prior

motion practice, that an answer had been interposed on behalf of the defendants. In addition,

counsel’s misrepresentation to the court of the nature of the relief sought in its renewed motion

warranted the award of an attorney’s fee to the defendants pursuant to 22 NYCRR 130-1.1

(citations omitted). Thus, the court properly stated the basis of its determination that the plaintiff’s

counsel engaged in frivolous conduct in accordance with 22 NYCRR 130-1.2.”).

CPLR 8303-a; 22 NYCRR 130 - Frivolous appeal – knowingly false claim

Boye v. Rubin & Bailin, LLP, 152 A.D.3d 1, 56 N.Y.S.3d 57 (1st Dep’t 2017) (“Here, counsel was

ethically obligated to withdraw any baseless and false claims, if not upon his own review of the

record, certainly by the time Supreme Court advised him of this fact. Instead, counsel continued

to repeat a knowingly false claim in what could only be described as a purposeful attempt to

mislead this Court, and pursued claims which were completely without merit in law or fact. The

appropriate remedy for maintaining a frivolous appeal is the award of sanctions in the amount of

the reasonable expenses and costs including attorneys’ fees incurred in defending the appeal

(citation omitted).”).

CPLR 8303-a; 22 NYCRR 130 - Plaintiff’s conduct clearly frivolous

Place v. Chaffee-Sardinia Volunteer Fire Co., 143 A.D.3d 1271, 39 N.Y.S.3d 568 (4th Dep’t 2016)

(“Here, plaintiff’s conduct was clearly frivolous inasmuch as she submitted an affidavit that

disregarded a court order and, in response to a second order, she submitted a second affidavit that

contained a material falsehood. When that conduct is viewed along with plaintiff’s failure to

comply with discovery demands and other orders, we conclude that it was an abuse of discretion

for the court to refuse to sanction plaintiff. We therefore modify the order in appeal No. 1 by

granting that part of defendants’ cross motion seeking sanctions pursuant to 22 NYCRR 130-1.1,

and we remit the matter to Supreme Court for the determination of an appropriate sanction

(citations omitted).”).

CPLR 8303-a; 22 NYCRR 130 - Significant award of attorneys’ fees

Board of Mgrs. of Foundry at Wash. Park Condominium v. Foundry Dev. Co., In, 142 A.D.3d

1124, 38 N.Y.S.3d 60 (2d Dep’t 2016). (“Here, contrary to the appellant’s contention, the award

of an attorney’s fee to BSRB for McDonough’s services in preparation of BSRB’s motion to

dismiss was not improper, notwithstanding that McDonough’s fee was actually paid by BSRB’s

malpractice insurance carrier, and without regard to the nature of the fee arrangement between

Page 295: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

BSRB and McDonough. While compensatory sanctions should correspond at least to some degree

to the amount of damages, the aggrieved party is not always required to show ‘actual pecuniary

loss’ (citations omitted). Contrary to the appellant’s further contention, the fact that BSRB was the

client, not the counsel of record, in Action No. 3, did not preclude the portion of the fee award

which was for the work performed by its partner, Gardiner S. Barone, in assisting McDonough

with preparation of the motion to dismiss the action. An attorney such as Mr. Barone, who

represents himself, may recover fees for ‘the professional time, knowledge and experience . . .

which he would otherwise have to pay an attorney for rendering’ (citations omitted). Under the

circumstances, the Supreme Court providently exercised its discretion in awarding BSRB an

attorney’s fee and disbursements in the total sum of $29,968.70. The appellant’s remaining

contentions are either not properly before this Court, improperly raised for the first time on appeal,

or without merit.”).

CPLR 8303-a; 22 NYCRR 130 - Improper filing of notice of pendency in first instance and

then refusal to cancel in response to defendant’s demand was frivolous conduct

Delidimitropoulos v. Karantinidis, 142 A.D.3d 1038, 38 N.Y.S.3d 36 (2d Dep’t 2016) (Appellate

Division modifies lower court order, granting defendants’ motion to cancel notices of pendency

and awarding defendants’ costs and attorneys’ fees pursuant to 22 NYCRR 130-1.1. Court finds

that complaint does not seek relief that would affect title to, or the possession, use or enjoyment

of real property. Thus, the lower court should have granted defendants’ motion to cancel the notice

of pendency under its inherent power. Moreover, even though the court had no authority to award

costs and disbursements under CPLR 6514(c), “the Supreme Court should have granted that

branch of the defendants’ motion which was for an award of costs and attorney’s fees pursuant to

22 NYCRR 130-1.1. A litigant’s ability to file a notice of pendency is an “extraordinary privilege

because of the relative ease by which it can be obtained” (citation omitted) and because it permits

a party “to effectively retard the alienability of real property without any prior judicial review”

(citation omitted). Here, the judgment demanded in the complaint clearly would not affect the title

to, or the possession, use, or enjoyment of, any real property. Five months prior to making the

instant motion, the defendants’ counsel advised the plaintiff that the notices of pendency were

improperly filed, citing applicable case authorities, and requested removal of the notices of

pendency in order to avoid motion practice. The plaintiff’s conduct in improperly filing the notices

of pendency in the first instance, and then refusing to cancel them in response to the defendants’

demand, was “completely without merit in law and could not be supported by a reasonable

argument for an extension, modification, or reversal of existing law,” and therefore, was

“frivolous” within the meaning of 22 NYCRR 130-1.1 (citation omitted).”).

CPLR 8303-a; 22 NYCRR 130 - Absence of hearing not fatal to award

He v. Realty USA, 150 A.D.3d 1418, 55 N.Y.S.3d 477 (3d Dep’t 2017) (“This Court had already

found that plaintiff had engaged in frivolous conduct by commencing and pursuing this action

against defendants (citation omitted), leaving to Supreme Court the limited issue of how much in

costs and reasonable counsel fees to award. Plaintiff was entitled to be heard on that issue, but

‘[t]he form of the hearing . . . depend[ed] upon the nature of the conduct and the circumstances of

the case’ (citations omitted). Supreme Court stated its intention to resolve the issue on papers

Page 296: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

unless the need for a hearing was shown. Counsel for defendants submitted an affirmation in which

he stated that he had been retained by them in 2012 and, referencing an attached interim bill

detailing the legal work performed and expenses incurred as a result of this action, opined that the

amount sought was reasonable and necessary. Plaintiff failed to offer any criticism of the requested

costs and counsel fees beyond complaining in conclusory fashion that they were ‘illegal and

excessive.’ There was no request for a hearing by the parties and, given the state of the papers, no

reason to hold one. Accordingly, in the absence of any substantive factual dispute, Supreme Court

did not abuse its discretion in determining the amount of costs and reasonable counsel fees on

papers (citations omitted). Supreme Court made that determination in a written order finding that

the requested costs and counsel fees were appropriate and, suffice it to say, its decision to do so

finds ample support in the record (citations omitted).”).

ARTICLE 86 - COUNSEL FEES AND EXPENSES IN CERTAIN ACTIONS AGAINST

THE STATE

CPLR 8601 / 8602

David L. Ferstendig, Split Court of Appeals Tackles Reach of New York’s Equal Access to Justice

Act, 679 N.Y.S.L.D. 1,2 (2017).

CPLR Article 86, better known as the New York State Equal Access in Justice Act (EAJA), is

based on the Federal Equal Access to Justice Act, 28 U.S.C. § 2412(d). New York’s EAJA

provides in pertinent part that

except as otherwise specifically provided by statute, a court shall award to a prevailing party,

other than the state, fees and other expenses incurred by such party in any civil action brought

against the state, unless the court finds that the position of the state was substantially justified

or that special circumstances make an award unjust.

CPLR 8601(a).

The statute is intended to assist litigants with limited means to be able to retain counsel to litigate

wrongful actions of the State.

In Kimmel v. State of New York, 2017 N.Y. Slip Op. 03689 (May 9, 2017), the Court of Appeals

was confronted with the question of whether the EAJA applies to a prevailing plaintiff in a Human

Rights Law (HRL) sex discrimination employment case against the State. The plaintiff here was a

New York State Trooper who alleged sexual harassment, retaliation based on her sex, and exposure

to a hostile work environment. She was often the first woman to serve in a particular police station.

Over a ten-year period following the 1995 commencement of this litigation, the State engaged in

“obstructionist and delaying tactics,” resulting in the Appellate Division striking the State

defendants’ answers. Ultimately, the jury awarded over $700,000, and the plaintiff’s counsel (both

current and former) sought attorneys’ fees and costs under the EAJA.

Page 297: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

The trial court held that attorneys’ fees and costs could not be awarded. A divided Appellate

Division reversed. In another split decision, the Court of Appeals affirmed. The plurality noted

that the plain meaning of the statute covered this situation and provided only two exceptions - if

another statute specifically provides for attorneys’ fees (which the HRL did not at the time this

action was commenced); or to an action in the Court of Claims (this action was brought in the

Supreme Court under Executive Law § 297(9)). The Court stressed that where a statute includes

specific exceptions, generally unmentioned exceptions do not apply.

The crux of the difference between the plurality and dissent focused on the EAJA’s definition of

the word “action” used in CPLR 8601(a). CPLR 8602(a) defines “action” as “any civil action or

proceeding brought to seek judicial review of an action of the state.” The plurality interpreted that

phrase to include two different possibilities. One is any civil action regardless of the relief sought.

The second is a proceeding brought to seek judicial review. Under this interpretation, the

requirement that the relief sought be for the “judicial review of an action of the state” did not apply

to a civil action. The State and the dissent asserted that the term “judicial review” modified and

placed an express limitation on “‘any civil action,’ thereby excluding cases, like this one, that seek

compensatory damages.” Id. at *4. In other words,

the term judicial review modifies both “any civil action” and “proceeding” and,

therefore, restricts EAJA awards to prevailing parties in article 78 proceedings, as

well as a limited subset of civil actions seeking review of a state agency’s

administrative actions.

Id.

The plurality opinion rejected this analysis, arguing that when interpreting a statute, one should

avoid making any of its provisions superfluous. The Court pointed out that CPLR Article 78

proceedings and declaratory judgment actions cannot be brought in the Court of Claims (and must

be brought in the Supreme Court), rendering the exclusion already in the statute concerning actions

in the Court of Claims superfluous. “Under the state defendants’ interpretation, therefore, the

statutory exclusion for ‘an action brought in the court of claims’ would have no meaning.” Id. at

*4-5.

Moreover, prior to the enactment of the EAJA, the Court had held that HRL claims against the

State seeking monetary relief could be brought in the Supreme Court. Since the legislature “is

presumed to have known” of the Court’s decision when it enacted EAJA years later, “the Court of

Claims exclusion was not intended to exclude Human Rights Law claims from eligibility for an

EAJA award.” Id. at *5.. The Court emphasized that the legislative history and remedial nature of

the statute supported its interpretation.

The plurality opinion also pointed to a 2015 amendment to the Human Rights Law for further

support -

Page 298: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

Finally, attorneys’ fees and costs are now specifically provided for under the

Human Rights Law in cases of housing discrimination and in cases of sex

discrimination in credit or employment (L 2015, ch 364, § 1). The 2015 amendment

reflects the legislature’s acknowledgment that feeshifting provisions are

appropriate in the area of Human Rights Law violations. The amendment also

means that attorneys’ fees in certain civil actions and proceedings brought under

the Human Rights Law alleging sex discrimination will no longer be subject to the

EAJA’s limiting requirements but to the separate requirements set forth in the

Human Rights Law itself.

Id. at *10.

In his dissent, Justice Garcia characterized the EAJA as a “fee shifting” statute in derogation of

the common law, rather than a “remedial” one, and, as such, it should be construed strictly. He

concluded that the plurality opinion, applying CPLR Article 86 to an action seeking predominantly

compensatory damages, was contrary to the legislative history and the case law interpreting the

statute -

The meaning of article 86 has been plain to courts in this State for the past 28 years.

New York courts have applied article 86 only in the context of article 78

proceedings, declaratory judgment actions, and actions for injunctive relief. In

more than 70 published cases contemplating article 86, courts have considered it

exclusively in the context of actions seeking judicial review of agency

administrative actions…. During the same period, in more than 10 annual reports

made of fee awards under the EAJA, there is no record of a single case in which

plaintiff attempted to obtain attorneys’ fees under article 86 in a suit seeking

predominantly compensatory damages – until now.

Id. at *18-19.

CPLR 8601 / 8602 - Petitioner was not a prevailing party

Matter of Gonzalez v. New York State Dept. of Corr. & Community Supervision, 152 A.D.3d 680,

59 N.Y.S.3d 393 (2d Dep’t 2017) (“Under the State EAJA, ‘a court shall award to a prevailing

party, other than the state, fees and other expenses incurred by such party in any civil action

brought against the state, unless the court finds that the position of the state was substantially

justified or that special circumstances make an award unjust’ (CPLR 8601[a]). CPLR 8601(b)

provides that ‘[a] party seeking an award of fees and other expenses shall, within thirty days of

final judgment in the action, submit to the court an application which sets forth (1) the facts

supporting the claim that the party is a prevailing party and is eligible to receive an award under

this section, (2) the amount sought, and (3) an itemized statement from every attorney or expert

witness for whom fees or expenses are sought stating the actual time expended and the rate at

which such fees and other expenses are claimed.’ ‘CPLR article 86 is in derogation of the common

law and therefore should be strictly construed’ (citation omitted). The State EAJA was enacted to

‘improv[e] access to justice for individuals and businesses who may not have the resources to

Page 299: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

sustain a long legal battle against an agency that is acting without justification,’ and was intended

to ‘provid[e] recompense for the cost of correcting official error . . . as long as it is limited to

helping those who need assistance, it does not deter State agencies from pursuing legitimate goals

and it contains adequate restraints on the amount of fees awarded’ (citations omitted). ‘The State

EAJA was modeled on the Federal Equal Access to Justice Act and the significant body of case

law that has evolved thereunder’ (citations omitted). We conclude that the Supreme Court properly

determined that the petitioner was not a ‘prevailing party’ under CPLR 8601(a) and 8602(f), albeit

for a different reason. Contrary to the petitioner’s contention, the stipulation entered into between

the parties on January 30, 2015, which was so-ordered by the court, did not reflect a material

change in the legal relationship between the parties because the petitioner’s claims had already

been rendered moot by Kaplan’s voluntary decision on December 30, 2014, to vacate her earlier

decision removing the petitioner from the Nursery Program (citations omitted). Furthermore, the

petitioner did not achieve prevailing party status by obtaining a temporary restraining order and a

preliminary injunction from the court directing the respondents to admit the petitioner to the

Nursery Program pending the outcome of the proceeding (citations omitted).”).

Page 300: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

RECENT COMMERCIAL DIVISION RULES

David L. Ferstendig, New Commercial Division Rules, 682 N.Y.S.L.D. 3, 4 (2017)

The Commercial Division of the Supreme Court continues to adopt rules designed to

streamline and improve the litigation process.

Movant Must Provide Copy of Supporting Motion Papers to Opposing Party When Seeking

a Temporary Restraining Order

CPLR 6313 provides that a temporary restraining order may be granted without notice and

historically the practice was to issue the restraint ex parte. However, long ago, judges expressed

discomfort with issuing a TRO based on the movant’s (biased) word alone, resulting in an

adversary’s first knowledge of a pending action when it was served with the TRO. As a result,

years ago, Rule 20 of the Rules of the Commercial Division (22 NYCRR § 202.70(g), Rule 20)

was adopted, which required the movant to give notice to “the opposing parties to permit them an

opportunity to appear and contest the application,” unless the movant can establish that “there will

be significant prejudice” if notice is given. What was missing was a requirement that the movant

also provide copies of the supporting motion papers to his or her adversary, so that he or she is on

notice of the action, can get a real understanding of the issues and provide a meaningful response

(opposition) at oral argument of the TRO. Effective July 1, 2017, that gap has been filled.

If Requested, Parties Are to Provide Details as to Length of Trial

Rule 26 of the Commercial Division Rules (22 NYCRR § 202.70(g), Rule 26), requires that the

parties give the court a “realistic estimate” of the trial length. Effective July 1, 2017, the Rule was

amended to provide that at the request of the court, the parties must now include an estimate of the

number of hours each party believes it will use for direct examination, cross examination, redirect

examination, and argument. The trial court is empowered to rule on the potential number of hours

each party will be entitled to, and it can increase the total number of hours “as justice may require.”

The trial judge will have the discretion to employ this new procedure.

Sample Choice of Forum Provisions Adopted

Forum selection clauses can provide certainty and clarity to parties to commercial agreements, as

to where and how a commercial dispute will be resolved. These clauses have been held to be

presumptively valid by New York courts. See Brooke Group v. JCH Syndicate 488, 87 N.Y.2d

530, 534 (1996). Effective July 1, 2017, a new section § 202.70(d)(2) has been adopted, to aid

contracting parties in drafting an appropriate party-specific provision. The amendment provides

two alternatives -

• a provision in which the parties consent to the exclusive jurisdiction of the Commercial

Division, subject to meeting the procedural and monetary or other threshold jurisdictional

requirements; or

Page 301: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

• one in which the parties consent to the exclusive jurisdiction of the New York federal courts

or the Commercial Division, subject to meeting the jurisdictional and procedural

requirements of the courts.

The amendment supplies the actual language of such provisions, which are intended to be of a

“mandatory” nature, as opposed to “permissive” forum selection clauses, which courts may not

strictly enforce. See Brooke Group, above. The use of these well-drafted, sample mandatory forum

selection clauses enhances their enforceability.

As the supporting memorandum notes, contracting parties may wish to provide an alternative

venue, in the event the jurisdictional requirements are not met.

Parties’ Consultation Prior to Pre-Trial Conference Regarding Expert Testimony

A continuing source of tension in New York State courts outside of the Commercial Division is

the limited expert disclosure permitted under CPLR 3101(d). Significantly, with limited exception,

depositions of experts are not permitted.

Back in 2013, Commercial Division Rule 13 was adopted expressly providing for the exchange of

experts’ reports and the deposition of testifying experts. This type of disclosure is essential in

commercial matters and is similar to practice in the federal courts and most state courts in the

country.

Effective May 1, 2017, Rule 30(c) was adopted to narrow disagreement among competing experts

-

The court may direct that prior to the pre-trial conference, counsel for the parties consult in good

faith to identify those aspects of their respective experts’ anticipated testimony that are not in

dispute. The court may further direct that any agreements reached in this regard shall be reduced

to a written stipulation.

The rule provides discretion to the trial judge to use this provision as a tool to streamline the trial.

The sponsors memorandum notes that by “attempting to narrow disagreement,” this “could well

reduce the volume of technical testimony through which the fact finder will be forced to sift,

thereby reducing trial time and enhancing efficiencies.” Moreover, by reviewing the experts’

deposition testimony and reports and consulting in good faith “counsel would endeavor to reach

agreement with regard to one or more of the opinions being offered. Any agreement reached, which

could be memorialized in an appropriate stipulation, would necessarily reduce the amount of

expert testimony necessary at trial.”

Additional Commercial Division Rules

• § 202.70(d)(2) was further amended (eff. 1/1/2018) to add a sample choice-of-law provision.

See attached.

• A revised New Model Compliance Conference Stipulation and Order Form was issued for

“optional use” (eff. 1/1/2018). A form is attached.

Page 302: CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association Committee Continuing Legal Education _____ Speaker: David L. Ferstendig, Esq.

Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author

for electronic or hard copy distribution.

• Certification at Preliminary Conference relating to Alternative Dispute Resolution (eff.

1/1/2018):

Rule 10. Submission of Information; Certification Relating to Alternative Dispute

Resolution

At the preliminary conference, counsel shall be prepared to furnish the court with the

following: (i) a complete caption, including the index number; (ii) the name, address,

telephone number, e-mail address and fax number of all counsel; (iii) the dates the action

was commences and issue joined; (iv) a statement as to what motions, if any, are

anticipated; and (v) copies of any decisions previously rendered in the case. Counsel for

each part shall also submit to the court at the preliminary conference and each subsequent

compliance or status conference, and separately serve and file, a statement, in a form

prescribed by the Office of Court Administration, certifying that counsel has discussed

with the party the availability of alternative dispute resolution mechanisms provided by the

Commercial Division and/or private ADR providers, and stating whether the party is

presently willing to pursue mediation at some point during litigation.

Rule 11. Discovery

(a) The preliminary conference will result in the issuance by the court of a preliminary

conference order. Where appropriate, the order will contain specific provisions for means

of early disposition of the case, such as (i) directions for submission to the alternative

dispute resolution program, including, in all cases in which the parties certify their

willingness to pursue mediation pursuant to Rule 10, provision of a specific date by which

a mediator shall be identified by the parties for assistance with resolution of the action; (ii)

a schedule of limited-issue discovery in aid of early dispositive motions or settlement;

and/or (iii) a schedule for dispositive motions before disclosure or after limited-issue

disclosure.

• Amendment of Rule 11-e of the Rules of the Commercial Division (22 NYCRR §202.70[g],

Rule 11-e), to Address Technology-Assisted Review in Discovery (eff. 10/1/2018):

(f) The parties are encourages to sue the most efficient means to review documents,

including electronically stored information (“ESL”), that is consistent with the parties’

disclosure obligations under Article 31 of the CPLR and proportional to the needs of the

case. Such means may include technology-assisted review, including predictive coding, in

appropriate cases/ the parties are encouraged to confer, at the outset of discovery and as

needed throughout the discovery period, about technology-assisted review mechanisms

they intend to use in document review and production.