theCPLRblog

CPLR R. 3211 No time limitation for 3211(e) motion for leave to replead (I don't get it either)

This decision is worth reading a few times over.  CPLR 3211(e) had this language in it (I took this quote from the decision):

"Where a motion is made on the ground set forth in paragraph seven of subdivision (a), or on the ground that a defense is not stated, if the opposing party desires leave to plead again in the event the motion is granted, he shall so state in his opposing papers and may set forth evidence that could properly be considered on a motion for summary judgment in support of a new pleading; leave to plead again shall not be granted unless the court is satisfied that the opposing party has good ground to support his cause of action or defense; the court may require the party seeking leave to plead again to submit evidence to justify the granting of such leave."

In 2005, it was amended, taking out that provision, but leaving the motion to replead intact, confusing everybody.  This decision attempts to make sense of the change and implores the legislature to do something about the confusion.

CPLR R. 3211 Motion to dismiss

Janssen v Incorporated Vil. of Rockville Ctr., 2008 NY Slip Op 09962 (App. Div., 2nd)

On the instant appeal, we consider, inter alia, the issue of whether a motion for leave to replead, pursuant to the current version of CPLR 3211(e), is subject to any time limitation. In 2005, the Legislature amended CPLR 3211(e). Although this amendment did not prescribe any time limitation within which a party may move for leave to replead, the defendants invite this Court to "fill the temporal gap" and impose a 30-day limitation, akin to a motion for leave to reargue pursuant to CPLR 2221(d)(3). For the reasons that follow, we decline the defendants' invitation. We will not partake in judicial legislation by creating a time limitation where none is present in the statute.

...

In 2005, the Chief Administrative Judge, upon the recommendation of his Advisory Committee on Civil Practice, introduced a bill to amend CPLR 3211(e) with regard to motions for leave to replead to remedy the conflict between the statute and Rovello. As additional explanation, the drafters stated:

"Further, the requirement of [the former] rule 3211(e) that a pleader request leave to replead in the opposing papers, if enforced literally, creates a trap for the unwary. This requirement, which has no analogue in Federal practice and is buried deep in one of the longest paragraphs in the CPLR, has been overlooked in a substantial number of cases, and has recently caused courts to struggle to read into an apparent absolute provision an ability to relieve pleaders of their omission of the request for leave to replead. (See, e.g. Sanders v Schiffer, 39 NY2d 727, 729, and compare Bardere v Zafir, 63 NY2d 850, 853).

"Our Advisory Committee believes that the present wording of [the former] rule 3211(e) causes unnecessary litigation expense and complexity without any countervailing benefit, and invites the inadvertent jeopardizing of a litigant's rights if counsel is unaware of the requirement to request leave to replead. In the case of a pro se pleader, he or she is almost certain to be unaware of this requirement. Thus, we urge that it be repealed. Moreover, we recommend that rule 3211(e) be [*8]conformed to the Rovello doctrine."

(2005 NY Legis Ann, ch 616, at 358).

Consistent therewith, CPLR 3211(e) was amended (see L 2005, ch 616). This amendment is applicable to actions, such as the instant matter, commenced after January 1, 2006. Simply stated, the amended version of CPLR 3211(e) eliminated the three requirements previously noted.

The amended version was intended and served to remedy problems inherent in the prior version. However, as noted by several commentators, the amendment left "a number of questions unanswered" (Weinstein-Korn- Miller, NY Civ Prac, ¶ 3211.32 [2d ed]; see 56 Syracuse L Rev. 527, 538).

...

First, did the Legislature, in amending the subject statute, in effect, eliminate a motion for leave to replead? A reading of the amended version of CPLR 3211(e) reveals that the language pertaining to a motion for leave to replead was removed from the body of that statute. The only mention of a motion for leave to replead appears in the statutory heading or title which expressly references "motions to plead over." Inasmuch as there is no indication in the legislative history to suggest that the Legislature intended to abrogate or do away altogether with a motion for leave to replead, this Court will not presume such an intent. Accordingly, for the present time, a motion for leave to replead remains a useful and necessary component of a practioners' arsenal in the context of civil litigation.

Second, what standard should now be applied on a motion for leave to replead? With regard to this question, we hold that the standard to be applied on a motion for leave to replead pursuant to CPLR 3211(e) is consistent with the standard governing motions for leave to amend pursuant to CPLR 3025. Namely, motions for leave to amend pleadings should be freely granted absent prejudice or surprise to the opposing party, unless the proposed amendment is devoid of merit or palpably insufficient (see Smith-Hoy v AMC Prop. Evaluations, Inc., 52 AD3d 809; Bennett v Long Is. Jewish Med. Ctr., 51 AD3d 959; Shovak v Long Is. Commercial Bank, 50 AD3d 1118, 1120; Thomsen v Suffolk County Police Dept., 50 AD3d 1015, 1017; Lucido v Mancuso, 49 AD3d 220, 229; RCLA, LLC v 50-09 Realty, LLC, 48 AD3d 538; Pellegrini v Richmond County Ambulance Serv., Inc., 48 AD3d 436, 437; Trataros Constr., Inc. v New York Hous. Auth., 34 AD3d 451, 452-453; Glaser v County of Orange, 20 AD3d 506).

CPLR § 503; § 510

CPLR § 503 Venue based on residence

CPLR § 510 Grounds for change of place of trial

Margolis v United Parcel Serv., Inc., 2008 NY Slip Op 09932 (App. Div., 2nd)

In this personal injury action involving a vehicular accident in Nassau County, plaintiff properly placed venue in New York County based on the location in that county of the corporate defendant's principal office (see CPLR 503[c]). In seeking a discretionary change of venue pursuant to CPLR 510(3), defendants failed to show that material nonparty witnesses would be inconvenienced by testifying in New York County instead of Nassau (see Martinez v Dutchess Landaq, Inc., 301 AD2d 424 [2003]). There was no evidence presented that any witness would be inconvenienced by testifying in New York County. Furthermore, one witness cited by defendants was defendant Ciaccio, who is both a party and an employee of the corporate defendant, and another was an employee of the corporate defendant who was not a witness to the accident. Defendants did not identify the remaining police and medical witnesses, did not explain the materiality of their testimony, and did not set forth their willingness to testify or whether they had even been contacted.

The bold is mine, all mine.  Bwahahahaha.

CPLR § 304; §403

CPLR § 304. Method of commencing action or special proceeding

CPLR § 403. Notice of petition; service; order to show cause

(d) Order to show cause. The court may grant an order to show cause to be served, in lieu of a notice of petition at a time and in a manner specified therein.

Matter of Ruine v Hines, 2008 NY Slip Op 09928 (App. Div., 1st)

The mode of service provided for in an order to show cause is jurisdictional and must be
literally followed (see CPLR 304, 403[d]; European Am. Bank v Legum, 248 AD2d 206 [1998]). Petitioner's pro se status is not an excuse for noncompliance (see Goldmark v Keystone & Grading Corp, 226 AD2d 143 [1996]).

The bold is mine.

CPLR R. 3116

Rule 3116. Signing deposition; physical preparation; copies

(a) Signing.

Ashif v Won Ok Lee, 2008 NY Slip Op 09936 (App. Div., 2nd)

Contrary to the contention of the third-party defendants Mohmmd Chowdhury and Domenico Mancini (hereinafter the appellants), the unsigned deposition transcript of the third-party defendant Rehmat Khan, which Khan submitted in support of his motion for summary judgment, and which was relied upon by the defendant third-party plaintiff, Won Ok Lee, in opposition to the appellants' cross motion for summary judgment, was admissible under CPLR 3116(a), since that transcript was submitted by the party deponent himself and therefore was adopted as accurate by Khan, as the deponent (cf. McDonald v Mauss, 38 AD3d 727; Pina v Flik Intl. Corp., 25 AD3d 772, 773; Scotto v Marra, 23 AD3d 543). Similarly, the MV-104 accident report prepared by Khan was properly [*2]considered as a party admission (see Fox v Tedesco, 15 AD3d 538; Castellano v Citation Cab Corp., 35 AD2d 842).

The bold is mine.

CPLR § 306-b; § 207

CPLR § 306-b. Service of the summons and complaint, summons with notice, third-party summons and complaint, or petition with a notice of petition or order to show cause

CPLR § 207. Defendant's absence from state or residence under false name

Shelkowitz v Rainess, 2008 NY Slip Op 09906 (App. Div., 1st)

Dismissal of the complaint was proper where plaintiff did not effect service of the summons and complaint upon defendant within 120 days after the filing of the action (CPLR 306-b). Nor is an extension of time for service warranted in the "interest of justice" (id.). The request for an extension of time was not made until opposition to defendant's cross motion to dismiss, which was approximately 20 months after the filing of the action (see Slate v Schiavone Constr. Co., 4 NY3d 816 [2005]; Pecker Iron Works, Inc. v Namasco Corp., 37 AD3d 367 [2007]). Furthermore, contrary to plaintiff's contention, CPLR 207 is not applicable as there is no evidence that defendant was either absent from the state within the meaning of the statute, or that he was listed under a false name.

CPLR § 5003-a "Tender"

CPLR § 5003-a. Prompt payment following settlement

DJS Med. Supplies, Inc. v American Tr. Ins. Co., 2008 NY Slip Op 52456(U) (App. Term, 2d)

CPLR 5003-a, enacted to encourage the prompt payment of damages in settled actions, authorizes a settling plaintiff to enter judgment against a settling defendant who fails to pay all sums as required by the statute (see Cunha v Shapiro, 42 AD3d 95 [2007]). Insofar as is relevant to the instant case, CPLR 5003-a (a) provides that the 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" (emphasis added). The term "tender," as used in the statute, is defined as meaning "either to personally deliver or to mail, by registered or certified mail, return receipt requested" (CPLR 5003-a [g]). Should the settling defendant fail to make prompt payment of all sums due, the unpaid plaintiff "may enter judgment, without further notice, against such settling defendant who has not paid" (CPLR 5003-a [e]). [*2]

In order to avail itself of the enforcement mechanism of CPLR 5003-a, an unpaid settling plaintiff must adhere to the requirements of the statute by tendering a general release and a stipulation of discontinuance and by waiting 21 days following such tender (see Cunha v Shapiro, 42 AD3d 95 [2007]; see also Dobler Chevrolet v Board of Assessors, 2001 NY Slip Op 50013[U] [Sup Ct, Nassau County 2002]). In the instant case, plaintiff's submissions in support of its motion were insufficient to prove its tender to defendant of the release and stipulation of discontinuance. Accordingly, the order denying plaintiff's motion is affirmed, albeit on different grounds. We pass on no other issue.

All the bold is mine.

CPLR § 5701(a)(2) "order declining to sign an order to show cause is not appealable"

CPLR § 5701(a)(2)

Driscoll v Delarosa, 2008 NY Slip Op 09834 (App. Div, 1st Dept)

Appeal from order, Supreme Court, New York County (Laura E. Drager, J.), entered on or about May 14, 2008, which declined to sign an order to show cause, unanimously dismissed, without costs, as taken from a nonappealable paper.

An order declining to sign an order to show cause is not appealable (CPLR 5701[a][2]; Heath v Wojtowicz, 48 AD3d 214 [2008], lv denied 10 NY3d 708 [2008]). We would add that to the extent plaintiff seeks damages against the State, Supreme Court lacks subject matter jurisdiction (Court of Claims Act § 8, § 9; Pollicina v Misericordia Hosp. Med. Ctr., 82 NY2d 332, 339 n 3 [1993]).

CPLR § 105(u) Use of a verified pleading as an affidavit

CPLR § 105 Definitions

(u) Verified pleading. A “verified pleading” may be utilized as an affidavit whenever the latter is required.

State Farm Mut. Auto. Ins. Co. v Gueye, 2008 NY Slip Op 52457(U) (App. Term, 2nd)

A party seeking to vacate a default judgment must demonstrate a reasonable excuse for the default and a meritorious defense to the action (see CPLR 5015 [a] [1]; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]; Jackson-Cutler v Long, 2 AD3d 590 [2003]; Titan Realty Corp. v Schlem, 283 AD2d 568 [2001]). Here, the record indicates that there are two addresses for defendant in the court's file, one in Detroit and the other in New York City. Defendant denied receiving the notices to appear, and it is not clear from the record whether the notices were sent to defendant at the Detroit or New York City address. Under the circumstances, the court below did not improvidently exercise its discretion in finding that defendant's default was not willful.

Furthermore, defendant set forth in his verified answer (see CPLR 105 [u]) a potentially meritorious defense (see Montgomery v Cranes, Inc., 50 AD3d 981 [2008]; Hodges v Sidial, 48 AD3d 633 [2008]) that the vehicle driven by plaintiff's subrogor struck his vehicle. In view of the public policy which favors resolution of cases on the merits (see Stuart v Kushner, 39 AD3d 535 [2007]; Bell v Toothsavers, Inc., 213 AD2d 199 [1995]), the court below properly granted defendant's motion to vacate the default judgment, and the order is affirmed.

The bold is mine.

CPLR R. 3124 Tax Documents

CPLR R. 3124 Failure to disclose; motion to compel disclosure

Banigan v Hill, 2008 NY Slip Op 09543 (App. Div., 2d)

In an action, inter alia, to recover damages for breach of contract and fraud, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Nassau County (Bucaria, J.), dated February 29, 2008, as granted those branches of the defendant's motion which were pursuant to CPLR 3124 to compel him to comply with Item No. 1 of the discovery demand dated October 8, 2007, and Item Nos. 1 and 10 of the discovery demand dated October 24, 2007, to the extent of directing him to produce tax documents for the tax years 2004 through 2006, Item No. 2 of the discovery demand dated October 8, 2007, and Item Nos. 2, 3, 4, 4(a), 5, 5(a), and 8 of the discovery demand dated October 24, 2007.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and those branches of the defendant's motion which were pursuant to CPLR 3124 to compel the plaintiff to comply with Item No. 1 of the discovery demand dated October 8, 2007, and Item Nos. 1 and 10 of the discovery demand dated October 24, 2007, to the extent of directing him to produce tax documents for the tax years 2004 through 2006, Item No. 2 of the discovery demand dated October 8, 2007, and Item Nos. 2, 3, 4, 4(a), 5, 5(a), and 8 of the discovery demand dated October 24, 2007, are denied.

The Supreme Court improperly granted that branch of the defendant's motion which sought to produce the plaintiff's tax returns and related tax documents for the tax years 2004 through 2006. The defendant failed to meet his burden of showing that the relevant information possibly contained in the plaintiff's tax documents for the tax years 2004 through 2006 cannot be obtained from any alternative source, such as other financial or business records (see Corporate Interiors v Pappas, 293 AD2d 640, 641; Abbene v Griffin, 208 AD2d 483; Consentino v Schwartz, 155 AD2d 640, 641). [*2]

Furthermore, the Supreme Court improperly granted that branch of the defendant's motion which was to compel the plaintiff to produce certain documents sought in Item No. 2 of the demand dated October 8, 2007, and Item Nos. 2, 4(a), 5, and 10 of the demand dated October 24, 2007, since there was no showing that these documents were in existence at the time the motion was made (see Jonassen v A.M.F., Inc., 104 AD2d 484, 486). Moreover, that branch of the defendant's motion which sought information under Item Nos. 4 and 5(a) of the demand dated October 24, 2007, should have been denied as these requests were overly broad (see Taji Communications, Inc. v Bronxville Towers Apts. Corp., 48 AD3d 551, 552; Ritchie v Carvel Corp., 180 AD2d 786, 789). Finally, the plaintiff complied with Item Nos. 3 and 8 of the demand dated October 24, 2007.

The bold is mine.

CPLR § 313

CPLR § 313. Service without the state giving personal jurisdiction

Morgenthau v Avion Resources Ltd., 2008 NY Slip Op 09006 (Ct. App.)

In this civil forfeiture action, we are asked to determine whether service of process pursuant to CPLR 313 on defendants in a foreign country is sufficient to confer personal jurisdiction or whether one must additionally satisfy the service requirements of that foreign locale. Because compliance with CPLR 313 alone constitutes proper service upon foreign [*2]defendants where, as here, no treaties or international agreements supplant New York's service requirements, and because principles of international comity do not mandate a different result, service was sufficient. Plaintiffs were not compelled to serve defendants in accordance with the service requirements of the foreign nation, Brazil, via letters rogatory.

...

Where there exists a treaty requiring a specific form of service of process such as the Hague Service Convention, that treaty, of course, is the supreme law of the land and its service requirements are mandatory (see US Const, art VI, § 2; Volkswagenwerk v Schlunk, 486 US 694 [1988]). But the Hague Service Convention is not implicated in connection with service on the Brazilian nationals because Brazil is not a signatory to that convention.

Both the United States and Brazil are signatories to the Inter-American [*7]Convention on Letters Rogatory (28 USCA § 1781). Article II of that treaty does not mandate, however, that letters rogatory be the exclusive means of service on a party in Brazil. As stated in Kreimerman v Casa Veerkamp S.A. de C.V. (22 F3d 634, 640 [5th Cir 1994]):
"nothing in the language of the Convention expressly reflects an intention to supplant all alternative methods of service. Rather, the Convention appears solely to govern the delivery of letters rogatory among the signatory States . . . [T]he text of the Convention strongly indicates, not that the Convention preempts other conceivable methods of service, but that it merely provides a mechanism for transmitting and delivering letters rogatory when and if parties elect to use that mechanism" (id. at 640-642). Consequently, the Letters Rogatory Convention allows for service of process pursuant to a state statute (see Laino v Cuprum S.A de C.V, 235 AD2d 25, 29 [2d Dept 1977])^[FN10]. Here, that statute is CPLR 313.

Since a New York plaintiff need not comply with foreign law absent a treaty, we must lastly consider whether defendants were properly served under New York law. Individual defendants were served in Brazil under CPLR 313 and 308 (1), or they were served through their lawyers under alternative service pursuant to CPLR 308 (5). Plaintiff served corporate defendants by personal delivery to an authorized representative in Brazil under CPLR 311 (a) (1), or through their lawyers under the alternate service order pursuant to CPLR 311 (B)^[FN11]. We thus conclude that all due process requirements were met and proper service upon defendants, save the four served pursuant to CPLR 303 (2) and (4), was effected. Consequently, that portion of the Appellate Division decision that affirmed Supreme Court's dismissal of the forfeiture action should be reversed.