theCPLRblog

Welcome to theCPLRblog

This is a side project. It's really a side project to my other side project, www.nofaultparadise.org. For some inexplicable reason, I like the procedural stuff. Worse yet, I like to compile caselaw. Don't ask.

Until I can find a better place for the disclaimer, I'm putting it here.

This blog is published by and reflects the personal views of the blogger, in his individual capacity. It does not necessarily represent the views of his employer or its clients, and is not sponsored or endorsed by them. The purpose of this blog site is to assist in dissemination of information about relevant and irrelevant law , but no representation is made about the accuracy of the information. The information contained in this blog site is provided only as general information for education purposes, and blog topics may or may not be updated subsequent to their initial posting. By using this blog site you understand that this information is not provided in the course of an attorney-client relationship and is not intended to constitute legal advice. This blog site should not be used as a substitute for competent legal advice from a licensed attorney in your state.  Always make sure that  any cases discussed or cited remain good law.  Don't rely on me.  Finally, I'm not your friend.  Never will be. 

Directed Verdict

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

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

Interesting Collateral Estoppel Decision

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

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

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

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

Found another.

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

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

The bold is mine.

The Short Walk

Joinder, Nonjoinder, Intervention, and Forum Non Con

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

CPLR § 1003 Nonjoinder and misjoinder of parties

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

CPLR R. 327 Inconvenient forum

EVERYTHING BUT FORUM NON CON

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

FORUM NON CON

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

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

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

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

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

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

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

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

The bold is mine.

My Favorite Kind of Niceties

Over at Full Court Pass, Norman Olch has a post: Improper Dismissal of Civil Claims: The Procedural Niceties.  There he discusses a recent Second Circuit decision addressing CPLR § 1003 (Nonjoinder and misjoinder of parties) and a really interesting case from the Appellate Division, Second Department, Beshay v Eberhart L.P. #1, 2010 NY Slip Op 00461 (2010).  In Beshay, the complaint was dismissed after plaintiff's opening statement; something you don't see all to often.  Beshay explains what circumstances will warrant such a dismissal, which is nice.  You can find a description of those circumstances by clicking on the link or heading over to Mr. Olch's post.  I'd go to the post, but that's just me.  The other decision, the one from the Second Circuit, provides a "procedural warning."  That too can be found in Mr. Olch's post.

And in the New York State Bar Association Journal, David Horowitz has a great article on the growing beast that is the CPLR.  Right after the introduction he explains the difference between a section and rule.  That was the coolest thing ever.  I thought that I was the only person who was interested that esoteric stuff.  Hell, I posted on it. While I noted that CPLR § 101 allows you to cite to a section or a rule without writing "R." or "§" he points out that CPLR § 102 was what stripped the Judiciary of its ability to make changes to the CPLR, but, as an end around, it can create "uniform rules."  Cool stuff, right?  He goes on to discuss how changes to the CPLR have often confused rather that clarified the rules.  And worse yet, the uniform rules cannot be inconsistent with the CPLR provisions, so their ability to help is limited.  Though, I 'm not quite sure how helpful those uniform rules are, when they keep growing and growing. Even worse, the Commercial Division has rules that aren't actually rules.  At the end he suggests a complete overhaul of the CPLR, which he admits is all but impossible. There is a lot of good stuff there.  If you don't get the magazine, borrow it from someone.

CPLR R. 3212(a) Timing: Piggy-back Motions

CPLR R. 3212 Motion for summary judgment
(a) Time; kind of action

CPLR § 2211 Application for order; when motion made

Lennard v Khan, 2010 NY Slip Op 00482 (App. Div., 2nd, 2010)

The plaintiff's independent medical examination occurred on December 4, 2008, thus requiring submission of any summary judgment motions by January 27, 2009, the earliest of the possible deadlines.

By notice of motion dated January 22, 2009, the defendants Fazal Khan and Ace Towing, LLC (hereinafter the respondents), moved for summary judgment dismissing the complaint insofar as asserted against them on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d). The respondents served the plaintiff's counsel with the summary judgment motion on January 23, 2009, and filed the motion with the court on February 11, 2009.

The defendants Keith O. Prescod, Jr., and Desiree Klass separately moved for the same relief. They served the plaintiff's counsel with their motion papers on January 30, 2009, and filed them with the court on March 2, 2009.

***The plaintiff opposed both motions on the ground that they were untimely, but did not address the movants' arguments that he did not sustain a serious injury within the meaning of Insurance Law § 5102(d). In reply, the respondents argued that their motion was timely under CPLR 2211 because it had been served on the plaintiff's counsel within the time period allotted. In an order dated April 2, 2009, the Supreme Court granted the respondents' motion as timely and since it was unopposed on the merits. The court also denied the separate motion of Prescod and Klass as untimely. These appeals ensued.

"A motion on notice is made when a notice of the motion or an order to show cause is served" (CPLR 2211; see Rivera v Glen Oaks Vil. Owners, Inc., 29 AD3d 560, 561). Given that the respondents' motion was served on the plaintiff's counsel by mail on January 23, 2009, four days before the January 27, 2009, deadline, the Supreme Court correctly concluded that the respondents' motion was timely.

Where one party makes a timely summary judgment motion, the court may properly consider an untimely summary judgment motion, provided the late motion is based on "nearly identical" grounds as the timely motion (Perfito v Einhorn, 62 AD3d 846, 847 [internal quotation marks omitted]; see Step-Murphy, LLC v B & B Bros. Real Estate Corp., 60 AD3d 841, 844-845; Ianello v O'Connor, 58 AD3d 684; Grande v Peteroy, 39 AD3d 590, 591-592; Miranda v Devlin, 260 AD2d 451, 452). In effect, the "nearly identical" nature of the grounds supporting both motions serves as good cause sufficient to permit review on the merits of the untimely motion (Grande v Peteroy, 39 AD3d at 592). "Notably, the court, in the course of deciding the timely motion, is, in any event, empowered to search the record and award summary judgment to a nonmoving party" (see CPLR 3212[b]; Grande v Peteroy, 39 AD3d at 592).

Since the respondents' motion was already properly before the court, it improvidently exercised its discretion in refusing to consider the separate motion of Prescod and Klass, made on identical grounds, on the ground that the separate motion was untimely made (see Joyner-Pack v Sykes, 54 AD3d 727; Grande v Peteroy, 39 AD3d at 591; Miranda v Devlin, 260 AD2d 451). Further, since the plaintiff did not challenge the movants' contentions regarding serious injury, the separate motion should have been granted.

Here, the order required that a summary judgment motion be made by a certain date.  Watch out for orders or stipulations that require a motion to be filed by a certain date.

Further food for thought( h/t Damin Toell): Piquette v. City of New York, 4 A.D.3d 402 (App. Div., 2nd, 2004):

Although the municipal defendants' motion to set aside the jury verdict was made on insufficient notice (see CPLR 2214 [b]), the plaintiffs were not prejudiced by this procedural irregularity, and waived their objection to it by opposing the motion on the merits (see Henry v Gutenplan, 197 AD2d 608 [1993]; Adler v Gordon, 243 AD2d 365 [1997]; Matter of Venner, 235 AD2d 805 [1997]; Todd v Gull Contr. Co., 22 AD2d 904 [1964]). Accordingly, the Supreme Court erred in refusing to determine the motion on its merits.

 

CPLR R. 2102(c); 22 NYCRR 202.5(d)(1) Bronx Clerks Agree to Follow Rules: Attorneys' Minds Blown

CPLR R. 2102 Filing of papers
(c) A clerk shall not refuse to accept for filing any paper presented for that purpose except where specifically directed to do so by statute or rules promulgated by the chief administrator of the courts, or order of the court.

22 NYCRR 202.5 Papers filed in court

(d)
(1)
[editor's note: for the life of me I can't find this thing.  Westlaw hasn't updated itself yet and I can't find it anywhere else.

The New York Law Journal (New Rule Specifies When Court Clerks Can Reject Lawsuit Documents) introduced us to a new rule (22 NYCRR 202.5(d)(1) detailing when and how a court clerk can reject a document.  The rule comes out of an Article 78 proceeding by Tilem & Campbell, whose papers were getting bounced by Bronx clerks unnecessarily.  After the Bronx clerks agreed to follow the law, the lawsuit was dismissed with prejudice.  Crazy right, only after the clerks agreed to follow the law...  The new rule, allows the clerks to reject papers for only four reasons: (1) papers do not have an index number; (2) documents commencing or concluding a lawsuit that do not list the names of all parties; (3) filings offered in the wrong county; (4) documents not signed as required by court rules authorizing sanctions for frivolous contentions.

That's it.  If (1)-(4) isn't there, the clerk can't reject it.  Period. 

The rule adds an additional twist, it requires clerks to date-stamp the rejected papers and write the reason for the rejection on the papers.  I don't think a colored sheet with check-off reasons will suffice, but I'm going on what the NYLJ reported, I haven't seen the rule myself.

Whether the clerks in other venues will agree to follow the rules remains to be seen.  The New York clerks might need a push.  They did the last time.

And, just because: The NYLJ article references 2102 as a section; it isn't, it's a rule, not that it matters.

NYCRR 202.27; 22 NYCRR 202.21

22 NYCRR 202.27 Defaults

22 NYCRR 202.21 Note of issue and certificate of readiness

Donnelly v Treeline Cos., 66 AD3d 563 (App. Div., 1st, 2009)

A motion to vacate a dismissal for failure to appear at a scheduled court conference (22 NYCRR 202.27) is governed by CPLR 5015. Such a motion must be made within one year of service of a copy of the dismissal order with notice of entry, and be supported by a showing of reasonable excuse for the failure to attend the conference and a meritorious cause of action. Where the dismissal order has never been served with notice of entry, there is no time limit on making a motion to vacate the dismissal, and any alleged prejudice caused by postdismissal delay, short of laches, is not a consideration (Acevedo v Navarro, 22 AD3d 391 [2005]).

Plaintiff demonstrates both a reasonable excuse and the existence of a meritorious cause of action. The fact that none of the parties appeared for the scheduled court conference in July 2002 indicates that plaintiff's default was reasonable and likely attributable to the court's failure [*2]to notify everyone about the conference, whose date is not found in any prior conference order. Plaintiff's former attorney averred that his office was never notified of the conference or informed of the dismissal. Lack of receipt of notice can be a valid excuse for failure to appear at a conference (see Latha Rest. Corp. v Tower Ins. Co., 285 AD2d 437 [2001]).

Plaintiff has also established a meritorious cause of action. Indeed, on a prior appeal in 2004 (13 AD3d 143 [2004]), we affirmed the existence of numerous triable issues of fact concerning the liability of defendants Treeline and Commercial, and also of third-party defendant Republic.

Defendants contend that plaintiff's delay in moving to vacate the section 202.27 dismissal amounted to laches. While defendants were not apparently prejudiced in the two years immediately after the dismissal, during which they continued actively litigating, the case did thereafter remain inactive for a three-year period until plaintiff's motion to vacate the dismissal in 2007. This delay, though lengthy, was not unreasonable. In any event, defendants have not alleged prejudice from this delay, other than in conclusory fashion.

Figueroa v Sanchez, 2009 NY Slip Op 08881 (App. Div., 1st, 2009)

Due to his incarceration, plaintiff defaulted by failing to appear at a preliminary conference (22 NYCRR 202.27). The only remedy for plaintiff's default in these circumstances is not an appeal, but rather a motion in Supreme Court to vacate the default (see Campos v New York City Health & Hosps. Corp., 307 AD2d 785, 786 [2003]). In the present posture of the case, there is no appealable order for this Court to review. Finally, we note that plaintiff claims that he made numerous attempts to communicate with the court about his appearances that were not addressed.

Gaskin v Ilowitz, 2010 NY Slip Op 00097 (App. Div., 2nd, 2010)

The plaintiff's certificate of readiness incorrectly stated that the bill of particulars, physical examinations, exchange of medical reports, and any discovery proceedings known to be necessary were waived. In addition, it falsely declared that preliminary proceedings had been completed and that the case was ready for trial. Because of these misstatements of material facts, that branch of the defendant's motion which was to vacate the note of issue was properly granted (Brown v Astoria Fed. Sav., 51 AD3d 961, 962; see 22 NYCRR 202.21[e]; Gregory v Ford Motor Credit Co., 298 AD2d 496, 497; Spilky v TRW, Inc., 225 AD2d 539, 540).

Ferraro v North Babylon Union Free School Dist., 2010 NY Slip Op 00095 (App. Div., 2nd, 2010)

A motion for vacatur of the note of issue and certificate of readiness made more than 20 days after their filing will be granted only where "a material fact in the certificate of readiness is incorrect" or upon "good cause shown" (22 NYCRR 202.21[e]). To satisfy the requirement of "good cause," the party seeking vacatur must "demonstrate that unusual or unanticipated circumstances developed subsequent to the filing of the note of issue and certificate of readiness requiring additional pretrial proceedings to prevent substantial prejudice" (White v Mazella-White, 60 AD3d 1047, 1049, quoting Utica Mut. Ins. Co. v P.M.A. Corp., 34 AD3d 793, 794). Here, the plaintiffs neither proffered an excuse for their delay (id. at 794), nor "demonstrate[d] . . . unusual or unanticipated circumstances" (White v Mazella-White, 60 AD3d at 1049). Accordingly, the court properly denied that branch of the plaintiffs' cross motion which was to vacate the note of issue and certificate of readiness.

Singh v City of New York, 2009 NY Slip Op 09646 (App. Div., 2nd, 2009)

[T]hat branch of the defendants' motion which, in effect, was to compel the plaintiffs to respond to additional discovery demands regarding the immigration status of the plaintiff Harminder Singh is denied. While the Supreme Court may, in its discretion, grant permission to conduct additional discovery after the filing of a note of issue and certificate of readiness where the moving party demonstrates that "unusual or unanticipated circumstances" developed subsequent to the filing which require additional pretrial proceedings to prevent substantial prejudice (see 22 NYCRR 202.21[d]; Audiovox Corp. v Benyamini, 265 AD2d 135, 138; Futersak v Brinen, 265 AD2d 452), here, the defendants failed to establish any such unusual or unanticipated circumstances that would warrant the additional post-note-of-issue discovery they sought (see 22 NYCRR 202.21[d]; Audiovox Corp. v Benyamini, 265 AD2d 135; Futersak v Brinen, 265 AD2d 452). The defendants also failed to establish that the denial of their request would cause them actual, substantial prejudice (see Audiovox Corp. v Benyamini, 265 AD2d at 139).

The bold is mine.

What I'm Reading

If you read my no-fault blog, you can stop here.  You've read this before.  If you don't read that blog--good for you--this is new to you, and you can keep on reading. 

I spend hours on the train each day.  And as much as I enjoy getting strangers asses bumped into my personal space, I usually like to find reasons to keep my head down and my mind occupied.  So I read.  With all that time, I get through a lot of books. 

I'm always interested in what other people read, and, figuring that most people are like me in that respect, I usually post what I've been reading on the no-fault blog.  And, like I've said before, I don't get a lot of overlap in readership.  In fact, I'm pretty sure nobody actually reads my posts here.  Everyone just searches google for a section, this blog pops up, they click the link and find that I've wasted their time, and they go back to reading Above the Law and billing .4 or whatever.  Either way, you're here.  Thanks for coming. 

On that note, I received a gift-card as gift.  That's where it begins.

I finally got around to using my Barnes and Nobles gift-card and quadrupled my reading list in the process.  I am still reading the Gulag book.  While interesting, the writing doesn't flow very well, making for a difficult read.  Around the same time I got that one, I picked up Clear and Simple as the Truth: Writing Classic Prose.  Recently, someone asked me "Do books like that really help?"  I think they do.  They won't change anything overnight, and none of the writing books I've read are mind-blowing, but I take bits and pieces of each one, sometimes unconsciously, and eventually, it seeps in.  I'm pretty sure it works that way for everyone.  So, short answer: It helps; at least for me.

The books I ordered are, Secret Lives of the Supreme Court: What Your Teachers Never Told You About America's Legendary Justices(used); The Long Walk; Intellectuals: From Marx and Tolstoy to Sartre and Chomsky; Gonzo: The Life of Hunter S. Thompson; Teacher Man: A Memoir; Small Is The New Big: And Other Rifts, Rants, and Remarkable Business Ideas;  Dear American Airlines; The Elements of Legal Style (used); and John Adams.  Almost all of them were under $8.00, which was nice.  I also picked up Sources of Power: How People Make Decisions, which I hear is similar to Blink.  And I picked up a 2010 CPLR.

Because my attention-span is pathetic, I'm already reading three of them; switching between them when I get bored. 

CPLR § 203(f)

CPLR § 203(f) Claim in amended pleading

Fisher v Giuca, 2010 NY Slip Op 00218 (App. Div., 2nd, 2010)

Furthermore, the court properly denied the plaintiffs' application for leave to serve an amended complaint. The allegations in the original complaint did not fairly apprise Cleary of "the occurrences . . . to be proved pursuant to the amended pleading" (CPLR 203[f]). Thus, the new theories in the proposed amended complaint do not relate back to the original complaint, and are time-barred (see Panaccione v Acher, 30 AD3d 989, 990; Hyacinthe v Edwards, 10 AD3d 629, 631).