theCPLRblog

REVERSED: CPLR R. 5513; CPLR R. 5515; CPLR R. 2103; Failure to put the papers in a mailbox in NY = no jurisdiction

The Appellate Division, First Department was reversed by the Court of Appeals.  Norman Olch posted about it on his blog, Full Court Pass.  Here is the decision. M Entertainment, Inc. v Leydier, 2009 NY Slip Op 07671 (Ct. App. 2009)

The order of the Appellate Division should be reversed, with costs, and the matter remitted to that court for further proceedings in accordance with this memorandum.

The Appellate Division erred in concluding that plaintiffs' non-compliance with [*2]the requirement that mail service be accomplished by mailing "within the state" (see CPLR 2103 [b] [2], [f] [1]) constituted a "fatal jurisdictional defect" requiring the dismissal of plaintiffs' appeal against Lawrence Leydier. CPLR 5520(a) provides:

"If an appellant either serves or files a timely notice of appeal or notice of motion for permission to appeal, but neglects through mistake or excusable neglect to do another required act within the time limited, the court from or to which the appeal is taken or the court of original instance may grant an extension of time for curing the omission."

Plaintiffs here timely filed their notice of appeal with the New York County Clerk's office, thus authorizing the Appellate Division to determine whether to exercise its discretion pursuant to CPLR 5520(a). By contrast, the movants in Cipriani v Green (lv dismissed 96 NY2d 821 [2001], rearg denied 97 NY2d 639) and National Org. for Women v Metropolitan Life Ins. Co. (lv dismissed 70 NY2d 939 [1988], rearg denied 71 NY2d 890) not only failed to timely serve their notices of motion for leave to appeal, but they also failed to timely file those papers with this Court. Thus, in those cases, the Court could not invoke its discretionary authority under CPLR 5520(a).

CPLR R. 5513 Time to take appeal, cross-appeal or move for permission to appeal

CPLR R. 5515 Taking an appeal; notice of appeal

CPLR R. 2103 Service of papers

M Entertainment, Inc. v Leydier, 2009 NY Slip Op 04169 (App. Div., 1st, 2009)

An appeal as of right must be taken within 30 days after service by a party upon the appellant of a copy of the judgment or order appealed from, with notice of entry (CPLR 5513[a]). An appellant takes such an appeal by serving upon adverse parties a notice of appeal, and filing same with the clerk of the court in which the judgment or order has been entered (CPLR 5515[1]). Where applicable, CPLR 2103(b)(2) provides for service of papers upon an attorney by mailing to the address designated for that purpose. "Mailing," under the statute, requires the deposit of those papers "in a post office or official depository under the exclusive care and custody of the United States Postal Service within the state (CPLR 2103[f][1], [emphasis added]). It is undisputed that plaintiffs, who opted for service by mail, did not place the notice of appeal to be served upon Leydier in a post office or depository within this State. Accordingly, the notice of appeal is of no effect with respect to Leydier because service was not completed within the meaning of CPLR 2103 (see Cipriani v Green, 96 NY2d 821 [2001]; National Org. for Women v Metropolitan Life Ins. Co., 70 NY2d 939 [1988]). We note that the Third Department has excused late service of a notice of appeal upon a showing of mistake or excusable neglect (Peck v Ernst Bros., 81 AD2d 940 [1981]), but the Court of Appeals has [*2]categorically held that the power of an appellate court to review a judgment is subject to an appeal being timely taken" (Hecht v City of New York, 60 NY2d 57, 61 [1983]). We thus find plaintiffs' improper service of their notice of appeal upon Leydier to be a fatal jurisdictional defect.

The dissent makes an excellent point.

Leydier's sole objection to the service of the notice of appeal is that it was deposited in the wrong mailbox, i.e., one located in the State of New Jersey rather than New York. While, historically, the point of mailing has been a requirement for the completion of service of papers upon an attorney, it has not been accorded the universal jurisdictional significance Leydier and the majority ascribe to it.

I'm putting the entire dissent in after the break.  It would take too much space otherwise.

The bold is mine

Standing Waived; CPLR R. 3211(e) and other issues (CPLR § 3020(d)(3) & CPLR § 105(u))

CPLR R. 3211(e) Number, time and waiver of objections; motion to plead over

CPLR § 3020 Verification

CPLR § 105 Definitions

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

Deutsche Bank Natl. Trust Co. v Young, 2009 NY Slip Op 07578 (App. Div., 2nd, 2009)

Contrary to the appellants' contention, the Supreme Court did not err in determining that they waived the issue of standing by failing to timely appear or answer (see CPLR 3211[a][3], [e]; HSBC Bank, USA v Dammond, 59 AD3d 679; Wells Fargo Bank Minn., N.A. v Mastropaolo, 42 AD3d 239).

Simple enough.

Urban Justice Ctr. v Silver, 2009 NY Slip Op 07506 (App. DIv., 1st, 2009)

Plaintiff Urban Justice Center (UJC) lacks standing to bring this action. While it alleges vaguely that the prohibitions on communication contained in the Assembly and Senate rules as to what constitutes "official mail" for purposes of Legislative Law § 16 interfere with its ability and that of its clients to receive the communications necessary to enable them to measure the responsiveness and efficacy of their elected representatives while determining the best use of their limited advocacy resources, this is not an infringement unique and distinct to UJC and its clients. All citizens have the right to open access to their elected representatives, and are deprived of that right when communications from their legislators are censored. UJC has failed to allege a personally concrete and demonstrable injury distinct from that suffered by the public at large (see Matter of Transactive Corp. v New York State Dept. of Social Servs., 92 NY2d 579, 587 [1998]). For the same reason, UJC also lacks third-party standing to raise a First Amendment claim on behalf of its clients (see Matter of MFY Legal Servs. v Dudley, 67 NY2d 706, 708-709 [1986]). Because it has not alleged that the rules and practices at issue have caused it "injury by way of an added burden on [its] resources," or that its need to litigate this action on behalf of its clients is such a "central concern of our society" as to justify giving it standing without otherwise meeting the requirement of showing injury-in-fact, there is no basis for conferring organizational standing upon UJC under Grant v Cuomo (130 AD2d 154, 159 [1987], affd 73 NY2d 820 [1988]).

A little more complicated.

Wells Fargo Bank, N.A. v Marchione, 2009 NY Slip Op 07624 (App. Div., 2nd, 2009)

Wells Fargo also contends that the assignment is valid, as it is retroactive to October 28, 2007, a date prior to the commencement of the action. Wells Fargo again relies on Hoovis, where the retroactive assignment was effective on May 1, 1997, prior to the commencement of the action on June 19, 1997 (see Bankers Trust Co. v Hoovis, 263 AD2d at 938). In Hoovis, however, the defendant was unable to contradict the plaintiff's documentation demonstrating that delivery of the note and mortgage occurred prior to the initiation of the action. Here, it is clear that the date of the execution of the assignment was after the commencement of the action. If an assignment is in writing, "the execution date is generally controlling and a written assignment claiming an earlier effective date is deficient unless it is accompanied by proof that the physical delivery of the note and mortgage was, in fact, previously effectuated" (LaSalle Bank Natl. Assn., 59 AD3d at 912). While recognizing that in some circumstances parties to an agreement may bind themselves retroactively, "the fiction of retroactivity . . . should not be applied to affect adversely the rights of third persons" (Debreceni v Outlet Co., 784 F2d 13, 20; see also 2 Lord, Williston on Contracts § 6:61, at 893 [4th ed]). Thus, a retroactive assignment cannot be used to confer standing upon the assignee in a foreclosure action commenced prior to the execution of the assignment (see LaSalle Bank Natl. Assn., 59 AD3d 912). We disagree with the contention of Wells Fargo that public policy favors permitting less than strict compliance with the requirement that, in order to commence a foreclosure action, a plaintiff must have a legal or equitable interest in the subject mortgage.

Wells Fargo also argues that if the action were to be dismissed, the result would be a waste of judicial resources, as it would simply commence another action as soon as the original action was dismissed. Wells Fargo might have reached this conclusion earlier in its calculus to commence the lawsuit prior to the execution of the assignment.

Significantly, Wells Fargo's attorney submitted a verification pursuant to CPLR 3020(d)(3), which allows an attorney to verify the complaint if the party is not in the county where the attorney maintains [*4]an office. "A verification is a statement under oath that the pleading is true to the knowledge of the deponent, except as to matters alleged on information and belief, and as to those matters, he believes it to be true" (CPLR 3020[a]). "Since the verification makes the pleading, or those parts of the pleading that are verified, sworn data, a verified pleading is the equivalent of an affidavit, CPLR 105, and may be used for the same purposes" (Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3020:2). When an attorney verifies, he or she affirms under the penalties of perjury (see Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3020:9).

In the verification, Wells Fargo's attorney affirmed the complaint to be true to the best of his knowledge, and his belief as to matters stated to be alleged on information and belief was based upon "correspondence, memoranda and statements of account in affirmant's possession." The complaint included a paragraph that stated Wells Fargo was "now the sole, true and lawful owner of record of the bond(s), note(s) and mortgage(s) securing the Mortgaged Premises." This averment was not based on information and belief and could not have been true on the date of the verification, November 29, 2007, since the actual execution of the assignment did not take place until December 4, 2007. Thus, the complaint contained a misstatement of a material fact which is not excused simply because the attorney was the one who verified the complaint.

Note the Court's comment on the verification.  Rough.

Maldonado v Altemburger, 2009 NY Slip Op 07507 (App. Div. 1st, 2009)

This is the second action brought by plaintiff to recover damages for injuries he allegedly sustained in a car accident. The first action was dismissed as a nullity, because the person who was named as the sole defendant had died before the action was commenced (see Maldonado v Law Off. of Mary A. Bjork, 64 AD3d 425 [2009]). This action must be dismissed because the named defendant is not the personal representative of the decedent's estate (see id.; Marte v Graber, 58 AD3d 1, 3 [2008]).

It does not avail plaintiff that defendant did not cooperate with him in his efforts to obtain the necessary documentation for a SCPA 1002(1) petition for the appointment of an administrator. Plaintiff apparently failed to timely seek a court order to obtain the documentation.

Not quite a standing issue.  More of a there-isn't-anyone-to-sue issue.  Not even that.  More of a who-is-in-charge-of-this-thing issue.

The Court of Appeals has been busy

I've been sick for the past week.  But I'm feeling much better now.  Thanks for asking.  Jerks.

In the past few weeks, the New York Court of Appeals has deluged us with decisions; covering all sorts of procedural niceties.

You know what, since I've been out so long, I'm going to cover all of the decisions, even the substantive ones.  Of course, by "cover" I mean that I'll write two or three words describing the issues, forcing you to read the decisions yourselves.  I'll get into the procedural ones though.

People v Hardy, 2009 NY Slip Op 07329 (Ct. App. 2009)--Guy walks out of court in handcuffs, he wasn't supposed to, it's escape.  Matter of Joan Hansen & Co., Inc. v Everlast World's Boxing Headquarters Corp., 2009 NY Slip Op 07328 (Ct. App. 2009)-- "arbitrator may not reconsider an award — regardless of whether the request is couched as a clarification or modification — if the matter was not previously raised in arbitration."  Matter of Gomez v Stout, 2009 NY Slip Op 07327 (Ct. App. 2009)--"Pursuant to CPLR 7804 (g), Supreme Court transferred the matter to the Appellate Division."  Check out the first sentence from Smith's concurring opinion "I join the Court's unanimous opinion, but write separately to express my unhappiness with the result we are forced to reach."  Matter of Transitional Servs. of N.Y. for Long Is., Inc. v New York State Off. of Mental Health, 2009 NY Slip Op 07326 (Ct. App. 2009)--"It is well settled that when an agency acts within its area of expertise in interpreting statutes it is responsible for administering, its construction of those statutes is to be upheld if its decision is not irrational or unreasonable." Matter of Buffalo Professional Firefighters Assn., Inc. v Masiello, 2009 NY Slip Op 07324 (Ct. App. 2009).  Trust for Certificate Holders of Merrill Lynch Mtge. Invs., Inc. Mtge. Pass-Through Certificates, Series 1999-C1, by & through Orix Capital Mkts., LLC v Love Funding Corp., 2009 NY Slip Op 07323 (Ct. App., 2009)--Second Circuit punted some questions to the Court of Appeals; involves "champerty" (Judiciary Law § 489).  St. Lawrence Factory Stores v Ogdensburg Bridge & Port Auth., 2009 NY Slip Op 07454 (Ct. App., 2009)--"In land transactions, as in other contracts, the rule is the one stated in the Restatement (Second) of Contracts § 349...The principle expressed in the Restatement has long been part of New York law).  Matter of Crucible Materials Corp. v New York Power Auth., 2009 NY Slip Op 07451 (Ct. App. 2009)--statutory construction.  Matter of 47 Ave. B. E. Inc. v New York State Liq. Auth., 2009 NY Slip Op 07484 (Ct. App., 2009)--it's interesting because of what isn't there.  People v McNair, 2009 NY Slip Op 07483 (Ct. App. 2009)--recital cast doubt on guilt, court had to conduct further inquiry, it did, defendant didn't withdraw, waived everything else.  People v Arafet, 2009 NY Slip Op 07482 (Ct. App. 2009)--Mostly Mollineux (sort of Mollineux) and a dissent.    Roberts v Tishman Speyer Props., L.P., 2009 NY Slip Op 07480 (Ct. App. 2009)--Taxes.  Not touching this one. 

Salm v Moses, 2009 NY Slip Op 07479 (Ct. App. 2009)

Here, we perceive no abuse of discretion in Supreme Court's evidentiary ruling. Such evidence may be excluded if the trial court finds that the risk of confusion or prejudice [*3]outweighs the advantage in receiving it (see Kish v Board of Educ. of City of N.Y., 76 NY2d 379, 384-385 [1990]). In this case, plaintiff speculated during the colloquy that a verdict in defendant's favor could result in a $100 benefit — at the time of the expert's death, disability or retirement — based on the expert's shareholder status in OMSNIC. The trial court's finding that any such financial interest was likely "illusory" and that the possibility of bias was attenuated was reasonable on this record. Absent a more substantial connection to the insurance company — or at least something greater than a de minimis monetary interest in the carrier's exposure — the court did not engage in an abuse of discretion in precluding the testimony. We note that a voir dire of an expert outside the presence of the jury can better aid the court in exploring the potential for bias.

Matter of Garth v Board of Assessment Review for Town of Richmond, 2009 NY Slip Op 07325 (Ct. App. 2009)

Supreme Court denied the Board's motion to dismiss. A unanimous panel of the Appellate Division reversed, granted the Board's motion, and dismissed the petition, concluding that "the filing and service of a notice of petition in a tax certiorari proceeding lacking a return date is jurisdictionally defective" (52 AD3d 1261 [internal quotation marks, citations and brackets omitted]). We granted petitioner's motion for leave to appeal and now reverse.

Pursuant to RPTL 704 (1), a real property owner may commence a special proceeding to challenge a tax assessment by filing a petition along with a notice of petition returnable not less than 20 nor more than 90 days after the service of the petition and notice of petition. CPLR 403 (a) provides that a "notice of petition shall specify the time and place of the hearing on the petition." In practice, it is sometimes difficult for a litigant to set a proper return date prior to service of the petition and notice of petition because the judge — whose calendar preferences normally dictate the choice of the return date — may not yet have been assigned to the case (see Siegel, NY Prac § 553, at 952 [4th ed]). Adding to this practical difficulty is the short, 30-day statute of limitations in RPTL article 7 proceedings (see RPTL 702 [2]). Thus, a petitioner attempting to commence a tax certiorari proceeding may face a procedural dilemma — timely file the petition and notice of petition without knowledge of an actual return date, or wait until <br>the assignment of a judge and return date and risk the expiration of the limitations period. 

***

It is settled that personal jurisdiction may be absent where a party improperly commences a proceeding or action (Matter of Fry v Village of Tarrytown, 89 NY2d 714 [1997]; see Ballard, 6 NY3d at 664). Not all defects in the commencement process, however, result in a loss of personal jurisdiction. Our decision in Matter of Great E. Mall v Con-don (36 NY2d 544 [1975]) is instructive.

***

Similar to the respondents in Great E. Mall, the Board here has failed to allege any prejudice that resulted from the failure to include a return date in the notice of petition. The return date undoubtedly serves a necessary purpose in special proceedings — to put the respondent on notice as to the date before which the responsive papers should be served. This concern, however, is not so compelling in RPTL article 7 proceedings where the allegations contained in the petition are deemed denied if the respondent fails to timely serve an answer (see RPTL 712 [1]), thereby precluding entry of a judgment against the respondent in the case of a default. Thus, in the context of a tax certiorari proceeding, we are hard-pressed to see how the assessing authority will suffer any prejudice as a result of the failure to include a return date. Indeed, the notice of petition in National Gypsum, which contained an admittedly fabricated but plausible return date, failed to advise the respondent of the time and place of the hearing. In that regard, it was no more useful or informative than the notice of petition here, which omitted a return date. It would be incongruous for us to approve of a fictitious return date yet condemn an absent one.

We therefore conclude that personal jurisdiction is not lacking in an RPTL article 7 proceeding where the petitioner omits the return date from the notice of petition. This conclusion is entirely consistent with the view in Great E. Mall that mere technical irregularities in the commencement process should be disregarded if a substantial right of a party is not prejudiced. Further, it is a natural extension of National Gypsum, which, in recognition of the practical difficulties that arise when commencing these types of proceedings, forgave the pleading infirmity. To require strict compliance with CPLR 403 (a) in this context would mean that, under certain circumstances, petitioners would be foreclosed from judicial review of their tax assessments through no fault of their own. We find that approach unduly harsh and contrary [*5]to our historically liberal construction of pleading and procedure in tax certiorari proceedings ^[FN2]. While our conclusion applies in RPTL article 7 proceedings where petitioner is unable to designate a return date, we have no occasion to address the rules applicable to other types of special proceedings.

IDT Corp. v Tyco Group, S.A.R.L., 2009 NY Slip Op 07481 (Ct. App. 2009)

At the outset, we agree with IDT that the parties entered into a valid settlement agreement. "[S]tipulations of settlement are judicially favored and may not be lightly set aside" (Will of Kanter, 209 AD2d 365 [1st Dept 1994] [internal citations omitted]). As we said in Hallock v State of New York (64 NY2d 224, 230 [1984]), "strict enforcement [of settlement agreements] not only serves the interest of efficient dispute resolution but is also essential to the management of court calendars and integrity of the litigation process." Although there was a valid settlement agreement in this case, Tyco's obligation to furnish capacity never became enforceable because agreed-upon conditions, were not met.

"[A] contract is to be construed in accordance with the parties' intent, which is generally discerned from the four corners of the document itself. Consequently, 'a written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms' (MHR Capital Partners LP v Presstek, Inc., 12 NY3d 640, 645 [2009], [*4]quoting Greenfield v Philles Records, 98 NY2d 562, 569 [2002])." Further,

"a condition precedent is 'an act or event, other than a lapse of time, which, unless the condition is excused, must occur before a duty to perform a promise in the agreement arises' (Calamari and Perillo, Contracts § 11-2, at 438 [3d ed]; see Restatement [Second] of Contracts § 224; see also Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106, 112-113). Most conditions precedent describe acts or events which must occur before a party is obliged to perform a promise made pursuant to an existing contract, a situation to be distinguished conceptually from a condition precedent to the formation or existence of the contract itself (see M.K. Metals v Container Recovery Corp., 645 F2d 583)"

(Oppenheimer & Co. v Oppenheim, Appel, Dixon & Co., 86 NY2d 685, 690 [1995]).

Here, the settlement agreement contemplated the occurrence of numerous conditions, i.e., the negotiation and execution of four additional agreements, most importantly, the IRU. Regarding the IRU, the clear intent of the parties was that it had to be executed before any handover of capacity. As such, it cannot be said that defendants breached the settlement agreement by merely proposing an IRU which allegedly contained terms inconsistent with settlement.

Nevertheless, under the settlement agreement, the parties were required to negotiate the terms of the IRU and other agreements in good faith. Despite the fact that (1) the parties negotiated various open terms on and off for almost three years and (2) each side had a right to require conformance with Tyco's standard agreements, except to the extent that any term conflicted with the settlement agreement — i.e., the parties had an alternative mechanism for determining those terms if the negotiations were unsuccessful: the IRU was never executed. Finally, the record does not support a finding that Tyco breached any of its obligations.

Phew.   I'll add the tags and CPLR rules and sections letter.

Lack of good faith letter requires denial of cross-motion 22 NYCRR 202.7(c)

22 NYCRR 202.7 Calendaring of motions; uniform notice of motion form; affirmation of good faith

(c) The affirmation of the good faith effort to resolve the issues raised by the motion shall indicate the time, place and nature of the consultation and the issues discussed and any resolutions, or shall indicate good cause why no such conferral with counsel for opposing parties was held.

Natoli v Milazzo, 2009 NY Slip Op 06815 (App. Div., 2nd, 2009)

Further, the court should have denied the cross motion because the affirmation of good faith submitted by the plaintiffs' counsel was insufficient, as it did not refer to any communications between the parties that would evince a diligent effort by the plaintiffs to resolve the discovery dispute (see 22 NYCRR 202.7[c]; Amherst Synagogue v Schuele Paint Co., Inc., 30 AD3d 1055, 1056-1057; Cestaro v Chin, 20 AD3d 500, 501; see also Baez v Sugrue, 300 AD2d 519, 521).

Page Limits

I'm sure you have notice that I haven't been posting with my normal fury.  That didn't sound right, maybe "furiously posting?"  Nevermind.  I just haven't been posting as often as I used to.  There are a couple of reasons.  First, I have a lot of work to do.  Real work, not blogging.  Second, I have a lot of blogging to do.  Third, my computer has gone batshit crazy and I need a new one, but I can't buy one at the moment.  Unless.  Unless, one of you readers wants to donate a sweet new computer.  No garbage.  I'm picky.  Needs to be a Mac.  I'm sure one of you has an extra few thousand dollars lying around.

That said, here is a funny case about page limits.

22 NYCRR 9.1 Filing of rules and regulations required

Macias v City of Yonkers, 2009 NY Slip Op 06811 (App. Div., 2nd, 2009)

In this action to recover damages for personal injuries, the defendant moved pursuant to CPLR 3126, on the basis of the plaintiffs' failure to comply with its discovery demands and discovery orders, to dismiss the complaint or, in the alternative, to preclude the plaintiffs from offering any testimony with regard to the infant plaintiff's alleged injuries or medical treatment. The Supreme Court refused to consider those portions of the defendant's supporting affidavit that exceeded the court's page limit, and denied the motion as unsupported. The defendant then moved for leave to reargue and renew its motion pursuant to CPLR 3126. The Supreme Court denied leave to renew, granted leave to reargue, and, upon reargument, adhered to the original determination.

Courts operating under the individual assignment system are authorized to establish rules for the proceedings before them (see 22 NYCRR 9.1). Those rules, however, and the procedures by which they are enforced, must be reasonable. As the rules of this Court demonstrate, page limits on submissions are appropriate (see 22 NYCRR 670.10.3[a][3]), as is the rejection of papers that fail to comply with those limits (see 22 NYCRR 670.10.1[f]). It is not reasonable, however, for a court to accept [*2]papers that do not comply with the court's page limitation and then refuse to read the noncompliant pages, denying, as a consequence, substantive relief that may be warranted. Having accepted the defendant's supporting papers, the Supreme Court should have considered the entire affidavit submitted in support of the defendant's motion, inter alia, to dismiss the complaint. Accordingly, we remit the matter to the Supreme Court, Westchester County, for a new determination on the merits of the defendant's motion pursuant to CPLR 3126.

Reject it all or accept it all.

Post Note of Issue Discovery and Privilege, but not in that order

22 NYCRR 202.21 Note of issue and certificate of readiness

CPLR § 3101(d) Trial Preparation (2) Materials

CPLR § 3101(c)  Attorney's work product

McClier Corp. v United States Rebar, Inc., 2009 NY Slip Op 06786 (App. Div., 1st, 2009)

In response to plaintiff's discovery demands, defendants submitted privilege logs that identified each of the documents withheld and set forth a basis for the assertion of a privilege as to each. The motion court then conducted an in camera review of the withheld documents and ruled that most were protected by either the attorney-client privilege (CPLR 3101[b]) or the immunities for attorney work product (CPLR 3101[c]) and materials prepared for litigation (CPLR 3101[d][2]). No basis exists to disturb this ruling. Documents in an insurer's claim file that were prepared for litigation against its insured are immune from disclosure (Grotallio v Soft Drink Leasing Corp., 97 AD2d 383 [1983]), and, while documents prepared in an insurer's ordinary course of business in investigating whether to accept or reject coverage are discoverable (Brooklyn Union Gas Co. v American Home Assur. Co., 23 AD3d 190, 191 [2005]), there is no [*2]indication that any such documents are being protected here. We have considered plaintiff's remaining arguments and find unavailing.

Compare with 148 Magnolia, LLC v Merrimack Mut. Fire Ins. Co., 2009 NY Slip Op 03793 (App. Div., 1st, 2009)("Here the motion court properly determined that the documents were not protected because appellant failed to demonstrate that the investigation was conducted solely in anticipation of litigation. Such reports of insurance investigators or adjusters prepared during the processing of a claim are discoverable in the regular course of the insurance company's business")

Singh v 244 W. 39th St. Realty, Inc., 2009 NY Slip Op 06826 (App. Div., 2nd, 2009)

To prevent substantial prejudice, the Supreme Court, in its discretion, may grant leave 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 requiring additional pretrial proceedings (22 NYCRR 202.21[d]; see James v New York City Tr. Auth., 294 AD2d 471, 472; Audiovox Corp. v Benyamini, 265 AD2d 135, 140). Here, approximately nine months after the filing of the note of issue, the plaintiff served a supplemental bill of particulars and an expert report with worksheets alleging that the cost of his future medical care would be approximately $8.9 million. This amount was more than three times what had been alleged earlier. Under these circumstances, the defendants demonstrated that "unusual or unanticipated circumstances" developed subsequent to the filing of the note of issue, justifying an additional deposition of the plaintiff regarding his claim for future medical care (cf. Karakostas v Avis Rent A Car Sys., 306 AD2d 381, 382). Accordingly, that branch of the defendants' motion which was for leave to conduct additional discovery of the plaintiff with respect to his claim for future medical care should have been granted.

The defendants, however, failed to demonstrate that "unusual or unanticipated circumstances" developed subsequent to the filing of the note of issue with respect to surveillance videos [*2]of the plaintiff or the plaintiff's claim for lost wages. The plaintiff's supplemental bill of particulars claiming lost wages was served approximately nine months prior to the filing of the note of issue and one year and eight months prior to the defendants' motion, and the plaintiff did not allege that the amount of his claim for lost wages, as opposed to his claim for future medical care, had changed dramatically (see Schenk v Maloney, 266 AD2d 199, 200; Frangella v Sussman, 254 AD2d 391, 392). Moreover, the defendants failed to explain why the surveillance could not have been conducted earlier in the discovery process (see Audiovox Corp. v Benyamini, 265 AD2d at 140). Accordingly, those branches of the defendants' motion which were for leave to conduct additional discovery of the plaintiff with respect to the surveillance videos and his claim for lost wages were properly denied.

Polygram Holding, Inc. v Cafaro, 2009 NY Slip Op 07165 (App. Div., 1st, 2009)

Order, Supreme Court, New York County (Eileen Bransten, J.), entered April 29, 2009, which, to the extent appealed from as limited by the briefs, limited the scope of an EBT granted to defendant and denied defendant's motion to strike the note of issue, unanimously affirmed, without costs.

The court appropriately struck a discretionary balance in granting defendant certain additional discovery consistent with our prior discovery ruling in this matter (42 AD3d 339, 340-341), while maintaining control of its trial calendar (Brooklyn Union Gas Co. v American Home Assur. Co., 23 AD3d 190 [2005]).

The bold, of course, is mine.

CPLR R. 3212 generally

CPLR R. 3212 Motion for summary judgment

Pellegrini v Brock, 2009 NY Slip Op 06721 (App. Div., 1st, 2009)

"On a motion for summary judgment, the court should accept as true the evidence submitted by the opposing party" (O'Sullivan v Presbyterian Hosp. in City of N.Y. at Columbia Presbyt. Med. Ctr., 217 AD2d 98, 101 [1995]). Here, defendant-respondent submitted evidence in admissible form which raised a triable issue of fact as to whether the money at issue was a gift or a loan, including, inter alia, an affidavit from a non-party who said that plaintiff Roberta Pellegrini had told her that plaintiffs had given defendants money to buy a house.

The bold is mine.

CPLR R. 3211(a)(7) and Exhibits

CPLR R. 3211(a)(7)  pleading fails to state a cause of action

Hashmi v Messiha, 2009 NY Slip Op 06665 (App. Div., 2nd, 2009)

"[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" (Shaya B. Pac., LLC v Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, 38 AD3d 34, 38; see AG Capital Funding Partners, L.P. v State Street Bank and Trust Co., 5 NY3d 582, 591; Leon v Martinez, 84 NY2d 83, 87-88). However, when, as here, the moving party offers evidentiary material, "the court is required to determine whether the proponent of the pleading has a cause of action, not [just] whether [they have] stated one" (Hartman v Morganstern, 28 AD3d 423, 424).

I don't think I'll ever quite understand the part in bold.

CPLR § 510; CPLR R. 511; Forum Non Con; Venue Selection Clause

CPLR § 510 Grounds for change of place of trial

CPLR R. 511 Change of place of trial

CPLR R. 327 Inconvenient forum

Feather v Goglia, 2009 NY Slip Op 06661 (App. Div., 2nd, 2009)

The plaintiff placed the venue of this action in Queens County based upon the defendant's purported residence at the time of the commencement of the action (see CPLR 503[a]). The defendant moved to transfer the venue of the action to Nassau County, alleging that he did not reside in Queens County when the action was commenced. In support of the motion, the defendant submitted, inter alia, several mobile telephone bills and a motor vehicle lease bearing his name and a Nassau County address, and several electric bills addressed to a person named Catherine Goglia at the same Nassau County address. Thus, the defendant raised an issue of fact as to whether he resided in Nassau County when this action was commenced (see Johnson v Gioia, 38 AD3d 845; Rivera v Jensen, 307 AD2d 229, 230). Furthermore, the evidence submitted by the plaintiff in opposition, that the defendant's driver's license listed a Queens County address and that the vehicle registration listed a Nassau County address, only raised further issues of fact regarding residency (see Gonzalez v Weiss, 38 AD3d 492). Since this issue of fact could not properly have been resolved on the papers alone, the Supreme Court should have held a hearing on the issue of residency prior to determination of the motion (see Johnson v Gioia, 38 AD3d 845; Ramondi v Paramount Leasehold L.P., 37 AD3d 447).

The plaintiff's contention that the defendant is estopped from contesting venue because the defendant failed to comply with Vehicle and Traffic Law § 505(5) is without merit. The cases relied upon by the plaintiff are distinguishable, inasmuch as all of those cases address service of process (see e.g. Walker v Reyes, 59 AD3d 436, 437; Candela v Johnson, 48 AD3d 502, 503; [*2]Velasquez v Gallelli, 44 AD3d 934, 935). In contrast, the instant appeal involves a motion pursuant to CPLR 510 and 511 to transfer the venue of the action.

Goldberg v Goldberg, 2009 NY Slip Op 06800 (App. Div., 2nd, 2009)

The Supreme Court providently exercised its discretion in denying the appellant's motion pursuant to CPLR 510(3) to change the venue of this action from Kings County to Sullivan County based on the convenience of material witnesses (see Frankel v Stavsky, 40 AD3d 918, 919; O'Brien v Vassar Bros. Hosp., 207 AD2d 169, 172). In support of his motion, the appellant failed to sufficiently establish that the nonparty witnesses for whose convenience the change of venue was sought were willing to testify on his behalf and would be inconvenienced if venue were not changed (see Walsh v Mystic Tank Lines Corp., 51 AD3d 908, 909; Miszko v Leeds & Morelli, 269 AD2d 372; Cumberbatch v Gatehouse Motel & Rest., 265 AD2d 370; Rich v O'Connor, 212 AD2d 767). Moreover, the appellant failed to specify the nature and materiality of their anticipated testimony (see Shindler v Warf, 24 AD3d 429, 430; Giaimo v Hastings, 19 AD3d 365, 366; Weisemann v Davison, 162 AD2d 448).

Brown v Dawson, 2009 NY Slip Op 06734 (App. Div., 2nd, 2009)

Plaintiff properly placed venue in New York County based upon St. Vincent's Hospital and Medical Center's designation of New York County as its corporate residence on its certificate of incorporation (see CPLR 503[c]; Krochta v On Time Delivery Serv., Inc., 62 AD3d 579, 580 [2009]; Velasquez v Delaware Riv. Val. Lease Corp., 18 AD3d 359, 360 [2005]).

Nor does the record support a discretionary change of venue pursuant to CPLR 510(3), inasmuch as appellant failed to detail the identity and availability of proposed witnesses, the nature and materiality of the anticipated testimony and the manner in which they would be inconvenienced by the designated venue (see Parker v Ferraro, 61 AD3d 470 [2009]). 

Trump v Deutsche Bank Trust Co. Ams., 2009 NY Slip Op 06831 (App. Div., 2nd, 2009)

A contractual forum selection clause is prima facie valid and enforceable "unless it is shown by the challenging party to be unreasonable, unjust, in contravention of public policy, invalid due to fraud or overreaching, or it is shown that a trial in the selected forum would be so gravely difficult that the challenging party would, for all practical purposes, be deprived of its day in court" (Horton v Concerns of Police Survivors, Inc., 62 AD3d 836, lv denied NY3d, 2009 NY Slip Op 83212 [2009]; see Brook Group v JCH Syndicate 488, 87 NY2d 530, 534; Harry Casper, Inc., v Pines Assoc., L.P., 53 AD3d 764, 764-765; Best Cheese Corp. v All-Ways Forwarding Int'l., Inc., 24 AD3d 580, 581; Fleet Capital Leasing/Global Vendor Fin. v Angiuli Motors, Inc., 15 AD3d 535, 536; Premium Risk Group v Legion Ins. Co., 294 AD2d 345, 346). The plaintiffs failed to demonstrate that the subject clause contained in the Mezzanine Loan Agreement was invalid for any of these reasons. Nor is there any merit to their argument that the subject clause contained in the Mezzanine Loan Agreement was either permissive or insufficiently mandatory, or applied only to actions commenced by the lender (see e.g. Fear & Fear, Inc. v N.I.I. Brokerage, L.L.C., 50 AD3d 185). Further, and contrary to the plaintiffs' contention, the Mezzanine Loan Agreement forum selection clause is neither subordinate to, nor in conflict with, the forum selection clause in the construction loan agreement. We also reject the claim that the [*3]complaint in Action No. 1 does not seek relief from the Mezzanine defendants sufficient to trigger the forum selection clause in the Mezzanine Loan Agreement. Accordingly, the motion pursuant to CPLR 501 and 511 to change the venue of Action No. 1 from Queens County to New York County should have been granted, and the two actions should have been directed to be jointly tried in New York County.

Kargbo-Turay v Beam Bros. Trucking, Inc., 2009 NY Slip Op 06806 (App. Div., 2nd, 2009)

In a closely related action arising out of the same incident, we held that the motion for dismissal under the doctrine of forum non conveniens pursuant to CPLR 327(a) should have been granted, with certain conditions (see Turay v Beam Bros. Trucking Inc., 61 AD3d 964). In this case, there is nothing that supports a different result, and we find that "in the interest of substantial justice the action should be heard in another forum" (CPLR 327[a]).

To assure the availability of a forum for the action, our reversal and granting of the motion to dismiss is conditioned upon the appellant stipulating to waive jurisdictional and statute of limitations defenses as indicated (see CPLR 327[a]; see Turay v Beam Bros. Trucking Inc., 61 AD3d at 964; Cheggour v R'Kiki, 293 AD2d 507).

The bold is mine.

Contribution--CPLR § 1401 &CPLR § 1402

CPLR § 1401 Claim for contribution

CPLR § 1402 Amount of contribution

O'Gara v Alacci, 2009 NY Slip Op 06668 (App. Div., 2nd, 2009)

The rules governing contribution, as set forth in Dole v Dow Chem. Co. (30 NY2d 143, 147-153) and codified in CPLR article 14, enable a joint tortfeasor who has paid more than his or her equitable share of damages to a plaintiff to recover the excess from the other tortfeasor (see CPLR 1401, 1402; Sommer v Federal Signal Corp., 79 NY2d 540, 555-556). Ordinarily, the other tortfeasor's liability for contribution flows from a breach of a duty owed to the plaintiff (see Sommer v Federal Signal Corp., 79 NY2d at 559; Nassau Roofing & Sheet Metal Co. v Facilities Dev. Corp., 71 NY2d 599, 603; Guzman v Haven Plaza Hous. Dev. Fund Co., 69 NY2d 559, 568 n 5; Garrett v Holiday Inns, 58 NY2d 253, 258). This rule is consistent with the language of CPLR 1401, providing, in relevant part, that absent certain exceptions not applicable here, "two or more persons who are subject to liability for damages for the same personal injury . . . may claim contribution among them."

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However, the rule that a party's liability for contribution flows from a breach of a duty owed to the plaintiff is a "general" one to which there exists an "important exception" (Sutherland v Hallen Constr. Co., 183 AD2d 887, 889-890). Indeed, it has been recognized that a party's liability for contribution can also flow from a breach of an independent duty owed to the defendant, provided that the breach of this duty played a part in causing or augmenting the injury for which the defendant seeks contribution (see Raquet v Braun, 90 NY2d 177, 182-185; Sommer v Federal Signal Corp., 79 NY2d at 559; Nassau Roofing & Sheet Metal Co. v Facilities Dev. Corp., 71 NY2d at 602; Guzman v Haven Plaza Hous. Dev. Fund Co., 69 NY2d at 568 n 5; Garrett v Holiday Inns, 58 NY2d at 261; Nolechek v Gesuale, 46 NY2d 332, 337-341).

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We hold, as other courts have, that where, as is allegedly the case here, an intoxicated plaintiff is injured by a tortfeasor, and the circumstances support a finding that an accident was caused, in part, by the provision of alcohol to the plaintiff in violation of General Obligations Law § 11-100 or § 11-101, the tortfeasor may properly seek contribution from the provider of the alcohol based upon this violation (see O'Neill v Ithaca Coll., 56 AD3d 869, 870; Tratt v Washington Build. Mgt. Co., 15 Misc 3d 1136[A]; Strassner v Saleem, 156 Misc 2d at 769-772; cf. Oursler v Brennan, 2009 NY Slip Op 6357 [4th Dept 2009]). We observe that permitting contribution in such cases could result in the provider being held answerable in damages to the alleged tortfeasor — as opposed to the intoxicated person — by virtue of the provider's "wrongdoing" in providing alcohol in violation of General Obligations Law § 11-100 or § 11-101 (Adamy v Ziriakus, 92 NY2d 396, 404). Certainly, this promotes one of the important goals of the Dram Shop Act, namely, motivating sellers of alcohol to exercise greater care in their sales (see Rutledge v Rockwells of Bedford, 200 AD2d 36, 38; Bartlett v Grande, 103 AD2d 671, 672; Matalavage v Sadler, 77 AD2d at 43).

The bold is mine.

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