CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association...
Transcript of CPLR Update 2018 CLE...CPLR Update Bridging the Gap | August 2018 New York State Bar Association...
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
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.
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
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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
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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
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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
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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
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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
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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
Copyright © 2018 David L. Ferstendig, All Rights Reserved, Permission Required from Author
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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.
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
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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.
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LAW OFFICES OF DAVID L. FERSTENDIG, LLC ATTORNEYS AT LAW
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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
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(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,
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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
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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
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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
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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:
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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.
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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
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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
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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.”).
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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.”).
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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).”).
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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).”).
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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.”).
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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.).
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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.
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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
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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
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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
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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
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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).”).
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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
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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.”).
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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).”).
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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
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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
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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.”).
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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.”).
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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
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(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.”).
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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
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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
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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
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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,
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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
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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
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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
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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
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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
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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
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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
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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.
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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
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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
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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
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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).”).
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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
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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)
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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:
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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
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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
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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
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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
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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.
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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
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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
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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
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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
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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.”).
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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
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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
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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
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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
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(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.’”
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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
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(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).”).
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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
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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
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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).
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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
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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.
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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
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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.).
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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.”
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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).
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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).”).
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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
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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
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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).”).
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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).”).
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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
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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
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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
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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.”).
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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
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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).”).\
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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.”).
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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.”).
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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.
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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
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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).”).
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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.
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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.
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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).”).
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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
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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).”).
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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
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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
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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
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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
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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.)”).
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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
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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).”).
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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
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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
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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
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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).”).
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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
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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
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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).”).
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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
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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
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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).
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‘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
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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).”).
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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
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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
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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
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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).”).
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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.”).
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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
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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
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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).”).
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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
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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
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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,
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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).”).
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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,
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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.”).
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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
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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,
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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.”).
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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).”).
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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).”).
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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).”).
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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
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[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
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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
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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
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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
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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.
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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,
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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
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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.
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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).
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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.
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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
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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
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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
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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
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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
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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.”).
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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
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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).
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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.
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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
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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.”).
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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
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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
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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
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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).”).
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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).”).
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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
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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
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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
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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
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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
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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
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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.”).
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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).”).
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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
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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
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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
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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
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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
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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.
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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.
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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)”).
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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
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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.
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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).
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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).”).
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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).”).
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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
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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,
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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.
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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.
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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.
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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
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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).”).
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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).
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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).”).
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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).”).
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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
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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
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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
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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
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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).”).
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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
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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
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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
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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.”).
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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).”).
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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
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& 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).”).
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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).”).
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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
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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).”).
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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.
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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).”).
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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).”).
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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
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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.
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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.
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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
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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
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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).”).
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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.”
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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
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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.”).
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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
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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
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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.
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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
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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).
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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
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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
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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
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(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).”).
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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
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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
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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,
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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
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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.“).
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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
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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).”).
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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.”).
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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
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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
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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
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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.”).
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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
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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).”).
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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
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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).”).
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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
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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).
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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
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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).”).
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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.”).
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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).”).
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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.
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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.
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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
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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)
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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
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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
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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
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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.
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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
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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
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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
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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.
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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 -
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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
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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).”).
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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
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• 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.
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• 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.