theCPLRblog

Service round-up

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 § 312-a Personal service by mail
(a) Service
(b) Completion of service and time to answer

CPLR § 301 Jurisdiction over persons, property, or status

CPLR § 302 Personal Jurisdiction by acts of non-domiciliaries

CPLR § 308 Personal service upon a natural person
(4) Nail and Mail

CPLR R. 305 Summons; supplemental summons, amendment

I had less of these laying around than I thought.

JPMorgan Chase Bank, N.A. v Szajna, 2010 NY Slip Op 03286 (App. Div., 2nd, 2010)

The process server retained by the plaintiff made three attempts to serve the defendant at his dwelling. Contrary to the defendant's contention, the three attempts to serve him at his dwelling at different times and on different days, including an attempt on an early weekday morning and an attempt during midday Saturday, were sufficient to constitute "due diligence" within the meaning of CPLR 308(4) (see County of Nassau v Gallagher, 43 AD3d 972, 973-974; Johnson v Waters, 291 AD2d 481; Matos v Knibbs, 186 AD2d 725; Mitchell v Mendez, 107 AD2d 737, 738). Since there was no indication that the defendant worked Saturdays or that his workplace was readily ascertainable, the plaintiff was not required to attempt to serve the defendant at his workplace (see Johnson v Waters, 291 AD2d 481; Matos v Knibbs, 186 AD2d 725; Mitchell v Mendez, 107 AD2d at 738; cf. Pizzolo v Monaco, 186 AD2d 727). Accordingly, the process server properly resorted to service of process pursuant to CPLR 308(4), and the defendant's motion to vacate the default judgment for lack of jurisdiction was properly denied.

Klein v Educational Loan Servicing, LLC, 2010 NY Slip Op 02519 (App. Div., 2nd, 2010)

Here, the defendants did not seek dismissal of the complaint insofar as asserted against the corporate defendants on the ground of lack of jurisdiction under either CPLR 301 or 302. Rather, the defendants contended that the complaint should be dismissed insofar as asserted against the corporate defendants based on improper service of process. By failing to contend that there was no jurisdiction under either CPLR 301 or 302 over the corporate defendants in their cross motion, the defendants waived their challenge to whether the corporate defendants were subject to personal jurisdiction (see Weisener v Avis Rent-A-Car, 182 AD2d 372, 373; Hatch v Tu Thi Tran, 170 AD2d 649, 650; Boswell v Jiminy Peak, 94 AD2d 782, 783).

Nevertheless, the plaintiff's motion for leave to enter a default judgment should have been denied and the complaint dismissed as against all defendants since the plaintiff failed to present proof of valid service of the summons and complaint as required by CPLR 312-a(a) and (b). The plaintiff submitted evidence that he served the defendants by certified mail, return receipt requested. However, he presented no evidence that copies of the summons and complaint were sent to the defendants, by first-class mail, together with, inter alia, two copies of a statement of service by mail and acknowledgment of receipt, and that the signed acknowledgment of receipts were mailed or delivered to the plaintiff (see CPLR 312-a[a], [b]). In the absence of proper service, no personal jurisdiction was acquired over the defendants (see Bennett v Acosta, 68 AD3d 910; Horseman Antiques, Inc. v Huch, 50 AD3d 963, 964; Dominguez v Stimpson Mfg. Corp., 207 AD2d 375, 375).

Serve it right (OSC)

CPLR § 308 Personal service upon a natural person

CPLR R. 2103 Service of papers

City of New York v Miller, 2010 NY Slip Op 03059 (App. Div., 2nd, 2010)

The Supreme Court properly denied, without a hearing, the defendants' motion to dismiss the complaint pursuant to CPLR 3211(a)(8) for lack of personal jurisdiction. The affidavits of the process servers constituted prima facie evidence of proper service pursuant to CPLR 308(4) (see Scarano v Scarano, 63 AD3d 716, 716; Mortgage Elec. Registration Sys., Inc. v Schotter, 50 AD3d 983, 983; 425 E. 26th St. Owners Corp. v Beaton, 50 AD3d 845, 846; Simonds v Grobman, 277 AD2d 369, 370). Although a defendant's sworn denial of receipt of service generally rebuts the presumption of proper service established by a process server's affidavit and necessitates an evidentiary hearing, no hearing is required where the defendant fails to swear to specific facts to rebut the statements in the process server's affidavits (see Scarano v Scarano, 63 AD3d at 716; Simonds v Grobman, 277 AD2d at 370). Here, the defendants' bare denial of service was insufficient to rebut the prima facie proof of proper service pursuant to CPLR 308(4) created by the process servers' affidavits and to necessitate a traverse hearing (see Scarano v Scarano, 63 AD3d at 716; Mortgage Elec. Registration Sys., Inc. v Schotter, 50 AD3d at 983; 425 E. 26th St. Owners Corp. v Beaton, 50 AD3d at 846; Simonds v Grobman, 277 AD2d at 370).

The Supreme Court also properly denied the defendants' motion, inter alia, to vacate a temporary restraining order and preliminary injunction based on lack of proper service of the order to show cause. "The method of service provided for in an order to show cause is jurisdictional in nature and must be strictly complied with" (Matter of El Greco Socy. of Visual Arts, Inc. v Diamantidis, 47 AD3d 929, 929; see Matter of Del Villar v Vekiarelis, 59 AD3d 642, 643; Matter [*2]of Master v Pohanka, 43 AD3d 478, 480, affd 10 NY3d 620; Matter of Hennessey v DiCarlo, 21 AD3d 505, 505). Here, the express terms of the order to show cause required the plaintiffs to serve the order to show cause and other papers on the defendants as well as their attorneys. However, while it is undisputed that attorney Vincent M. Gerardi represented the defendants in a related but separate and independent action, and that the plaintiffs were aware of that action, it is also undisputed that, in the instant action, as of the time the plaintiffs were required to serve the order to show cause, no attorney had appeared on behalf of the defendants (see generally CPLR 320[a], 321[a]). CPLR 2103(c) expressly provides that, if a party has not appeared by an attorney, service shall be upon the party. Thus, notwithstanding the language directing service in the order to show cause, the plaintiffs were not required to serve Gerardi with the order to show cause merely because he represented the defendants in a separate and independent, if not entirely unrelated, action, where neither he nor any other attorney had appeared on behalf of the defendants in this action (see Long v Long, 196 Misc 982, 984).

I'm adding another case (5/31/10) because it doesn't deserve it's own post, but is nonetheless relevant to the blog.

Lobo v Soto, 2010 NY Slip Op 04553 (App. Div., 2nd, 2010)

"The method of service provided for in an order to show cause is jurisdictional in nature and must be strictly complied with'" (City of New York v Miller, 72 AD3d 726, *1, quoting Matter of El Greco Socy. of Visual Arts, Inc. v Diamantidis, 47 AD3d 929, 929; see Matter of Del Villar v Vekiarelis, 59 AD3d 642, 643; Matter of Master v Pohanka, 43 AD3d 478, 480, affd 10 NY3d 620; Matter of Hennessey v DiCarlo, 21 AD3d 505, 505). Here, the Supreme Court correctly determined that the plaintiffs failed to strictly comply with the method of service set forth in the order to show cause in connection with service of the motion on the referee.

The CPLR R. 3211 Roundup: It's going to be loooong.

Because I can't let all of these decisions keep on piling up, I'm doing a 3211 dump.  This will probably be followed by a 300's dump, and maybe a 3212 dump.

There is a lot here, but it's worth skimming.  Most of the cases related to improper service or conversion (3211-->3212).

Garner v China Natural Gas, Inc., 2010 NY Slip Op 02095 (App. Div., 2nd, 2010)

Although the defendants' motion was made pursuant to CPLR 3211, the Supreme Court, in effect, converted that branch of the motion which was to dismiss the cause of action alleging breach of contract into a motion for summary judgment pursuant to CPLR 3212. This was error (see Mihlovan v Grozavu, 72 NY2d 506; Bowes v Healy, 40 AD3d 566). Thus, this Court will apply to the entire complaint the standards applicable to a motion to dismiss pursuant to CPLR 3211 (see Neurological Serv. of Queens, P.C. v Farmingville Family Med. Care, PLLC, 63 AD3d 703, 704).

In assessing a motion to dismiss made pursuant to CPLR 3211(a)(7), the facts pleaded are presumed to be true and are accorded every favorable inference (see Riback v Margulis, 43 AD3d 1023). However, bare legal conclusions, as well as factual claims flatly contradicted by the record, are not entitled to any such consideration (id.).

He-Duan Zheng v American Friends of the Mar Thoma Syrian Church of Malabar, Inc., 67 AD3d 639 (App. Div., 2nd, 2009)

The defendant Mar Thoma Church (hereinafter the Church) alleged that the plaintiff failed to obtain leave of court prior to serving a supplemental summons and amended complaint naming it as a defendant in this action (see CPLR 1003). However, the failure to obtain prior leave of court is a waivable defect, and is not fatal in all instances (see Gross v BFH Co., 151 AD2d 452 [1989]; see also Tarallo v Gottesman, 204 AD2d 303 [1994]; Santopolo v Turner Constr. Co., 181 AD2d 429 [1992]; cf. Public Adm'r of Kings County v McBride, 15 AD3d 558 [2005]).

In this case, the Church failed to raise its defense of improper joinder in a timely, pre-answer motion to dismiss the complaint, and also failed to assert such defense in its answer. Accordingly, it waived the defense (see CPLR 3211 [a] [8]; [e]). The defense that the Church did raise, that the court lacked jurisdiction over it, "by reason of the manner in which the summons was served," implicates the distinct personal jurisdictional defense of improper service of process, and was insufficiently specific to place the plaintiff on notice that the Church was complaining of improper joinder (see McDaniel v Clarkstown Cent. Dist. No. 1, 83 AD2d 624, 625 [1981]).

In any event, the Church waived its improper joinder defense by its conduct in [*2]attending and participating in a preliminary conference setting forth a schedule for discovery, and in waiting until after the applicable statute of limitations had expired prior to making its motion to dismiss (see Tarallo v Gottesman, 204 AD2d 303 [1994]; Santopolo v Turner Constr. Co., 181 AD2d 429 [1992]; Gross v BFH Co., 151 AD2d 452 [1989]). Moreover, the Church cannot claim surprise or prejudice due to the plaintiff's delay in seeking leave to add it as a defendant in light of the statements made by its Treasurer to the investigators for its insurance carrier indicating that the Church was aware of the subject accident on the very day that it occurred.

Pistolese v William Floyd Union Free Dist., 69 AD3d 825 (App. Div., 2nd, 2010)

In late June 2008, on the last day of the school year, the infant plaintiff allegedly was assaulted by other youths, as he walked home from school with friends rather than ride a school bus. The incident allegedly occurred along Montauk Highway, some 30 minutes after the infant plaintiff left the school grounds. Although this was a pre-answer motion, under the facts of this case, the Supreme Court should have treated it as one for summary judgment pursuant to CPLR 3211 (c) since the defendant not only requested such treatment, but both the defendant and the plaintiffs deliberately charted a summary judgment course (see Mihlovan v Grozavu, 72 NY2d 506, 508 [1988]; see generally McNamee Constr. Corp. v City of New Rochelle, 29 AD3d 544, 545 [2006]).

While schools are under a duty to adequately supervise the students in their charge, they are not insurers of the safety of their students (see Vernali v Harrison Cent. School Dist., 51 AD3d 782, 783 [2008]; Maldonado v Tuckahoe Union Free School Dist., 30 AD3d 567, 568 [2006]; Chalen v Glen Cove School Dist., 29 AD3d 508, 509 [2006]). "[A] school's duty is coextensive with, and concomitant with, its physical custody and control over a child" (Stagg v City of New York, 39 AD3d 533, 534 [2007]) and its "custodial duty ceases once the student has passed out of its orbit of authority and the parent is perfectly free to reassume control over the child's protection" (Vernali v Harrison Cent. School Dist., 51 AD3d at 783; see Pratt v Robinson, 39 NY2d 554, 560 [1976]). [*2]

Here, the incident occurred at a time when the injured plaintiff was no longer in the defendant's custody or under its control and was, thus, outside of the orbit of its authority. Accordingly, the defendant demonstrated its prima facie entitlement to judgment as a matter of law (see Fotiadis v City of New York, 49 AD3d 499 [2008]; Stagg v City of New York, 39 AD3d 533, 534 [2007]; Morning v Riverhead Cent. School Dist., 27 AD3d 435, 436 [2006]; Ramo v Serrano, 301 AD2d 640, 641 [2003]).

In opposition, the plaintiffs failed to raise a triable issue of fact. They also failed to articulate any nonspeculative basis to believe that discovery might yield evidence warranting a different result (see Stagg v City of New York, 39 AD3d at 534).

Frydman v Fidelity Natl. Tit. Ins. Co., 68 AD3d 622 (App. Div., 1st, 2009)

We have considered plaintiffs' argument that the court improperly converted a breach of contract action into a declaratory judgment action and, without CPLR 3211 (c) notice, converted a motion by [*2]defendant to dismiss the complaint into a motion for summary judgment, and find it to be unavailing (see CPLR 2002; Shah v Shah, 215 AD2d 287, 289 [1995]). This case contains no factual disputes, and by submitting before the Supreme Court every relevant piece of documentary evidence, along with affidavits of representatives of both parties discussing the application of such evidence, the parties have charted a course for summary judgment. Accordingly, the court properly entered a declaratory judgment in favor of defendants.

CPLR R. 5015 motion treated as motion pursuant to CPLR R. 317

CPLR R. 2221(e) Motion for Leave to Renew

CPLR § 308 Personal service upon a natural person

CPLR R. 5015 Relief from judgment or order

CPLR § 317 Defense by person to whom summons not personally delivered

Gonzalez v City of New York, 2009 NY Slip Op 06163 (App. Div., 2nd, 2009)

The defendants proffered a reasonable justification for the failure to present the affidavit of the defendant Miguel Carvajal in opposition to the plaintiff's prior motion for leave to enter a default judgment against Carvajal and in support of their prior cross motion, inter alia, to vacate Carvajal's default in appearing in the action or answering the complaint based on the Corporation Counsel's delay in obtaining an affidavit from Carvajal (see CPLR 2221[e][2], [3]; Simpson v Tommy Hilfiger U.S.A., Inc., 48 AD3d 389, 392; Miller v Duffy, 162 AD2d 438, 439-440; Matter of Mangialino v White Haven Mem. Park, 132 AD2d 970, 971).

Service upon Carvajal was made, inter alia, by delivery of the summons and complaint to a coworker at Carvajal's actual place of business and by mailing the summons to him at his actual place of business pursuant to CPLR 308(2) (see Anderson v GHI Auto Serv., Inc., 45 AD3d 512, 513). Although the defendants' cross motion was made pursuant to CPLR 5015(a)(1), under the circumstances of this case, it may also be treated as a motion made pursuant to CPLR 317 (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 142-143; Hospital for Joint Diseases v Lincoln Gen. Ins. Co., 55 AD3d 543, 544; Mann-Tell Realty Corp. v Cappadora Realty Corp., 184 AD2d 497, 498). Upon renewal, the defendants established that Carvajal did not receive [*2]actual notice of the summons in time to defend, he did not deliberately attempt to avoid service, and he has a meritorious defense to the action (see CPLR 317; Taieb v Hilton Hotels Corp., 60 NY2d 725, 727; Franklin v 172 Aububon Corp., 32 AD3d 454; Brockington v Brookfield Dev. Corp., 308 AD2d 498; Samet v Bedford Flushing Holding Corp., 299 AD2d 404, 405). Accordingly, upon renewal, the plaintiff's prior motion for leave to enter a default judgment against Carvajal was properly denied and the defendants' prior cross motion to vacate Carvajal's default and to compel the plaintiff to accept the amended answer was properly granted.

Wells Fargo Bank, NA v Chaplin, 2009 NY Slip Op 06179 (App. Div., 2nd, 2009)

The burden of proving that personal jurisdiction has been acquired over a defendant in an action rests with the plaintiff (see Bankers Trust Co. of Cal. v Tsoukas, 303 AD2d 343; Bank of Am. Nat. Trust & Sav. Assn. v Herrick, 233 AD2d 351; Frankel v Schilling, 149 AD2d 657, 659). Ordinarily, a process server's affidavit of service establishes a prima facie case as to the method of service and, therefore, gives rise to a presumption of proper service (see Household Fin. Realty Corp. of N.Y. v Brown, 13 AD3d 340; Bankers Trust Co. of Cal. v Tsoukas, 303 AD2d at 344; Frankel v Schilling, 149 AD2d 657, 659; see also New Is. Invs. v Wynne, 251 AD2d 560). However, where there is a sworn denial that a defendant was served with process, the affidavit of service is rebutted, and the plaintiff must establish jurisdiction at a hearing by a preponderance of the evidence (see Mortgage Access Corp. v Webb, 11 AD3d 592, 593; Bankers Trust Co. of Cal. v Tsoukas, 303 AD2d at 344; Kingsland Group v Pose, 296 AD2d 440; Balancio v Santorelli, 267 AD2d 189; New Is. Invs. v Wynne, 251 AD2d 560; Bank of Am. Nat. Trust & Sav. Assn. v Herrick, 233 AD2d at 352). [*2]

Here, the plaintiff allegedly effected service upon the appellant pursuant to CPLR 308(2) on April 23, 2007, by delivering the summons and complaint to a person of suitable age and discretion, who was identified as Marilyn Matheson, at the appellant's residence in Queens. In support of her motion, in effect, to vacate her default in appearing or answering the complaint, the appellant submitted an affidavit from Matheson averring that the summons and complaint had never been delivered to her, and that she was in Pawling, New York, in April 2007. Although Matheson's affidavit did not specify that she was in Pawling on April 23, 2007, when process allegedly was delivered to her in Queens, the appellant submitted additional evidence to substantiate her claim that Matheson was in Pawling that day, including a letter from a physician who treated Matheson for flu symptoms. The appellant's submissions also indicated that Matheson's physical appearance varied significantly from the description set forth in the affidavit of service. Under these circumstances, the appellant is entitled to a hearing on the issue of whether service was properly effected pursuant to CPLR 308(2) (see Zion v Peters, 50 AD3d 894; Mortgage Access Corp. v Webb, 11 AD3d at 593; Bankers Trust Co. of Cal. v Tsoukas, 303 AD2d at 344). Thus, we remit the matter to the Supreme Court, Queens County, for a hearing to determine whether the appellant was properly served and thereafter for a new determination of the motion to vacate.

The appeal from so much of the order dated June 5, 2008, as denied that branch of the appellant's motion which was for leave to reargue must be dismissed, since no appeal lies from an order denying reargument. The appeal from so much of the order dated June 5, 2008, as denied that branch of the appellant's motion which was for leave to renew must be dismissed as academic in light of our determination on the appeal from the order dated December 4, 2007.

The bold is mine.

Bumpus (IMPORTANT): CPLR § 1024; § 306-b; § 3102; R. 3025; § 602; § 203

CPLR § 1024 Unknown parties

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 § 3102 Method of obtaining disclosure
(c) Before action commenced

CPLR R. 3025 Amended and supplemental pleadings
(b) Amendments and supplemental pleadings by leave

CPLR § 602 Consolidation
(a) Generally

CPLR § 203 Method of computing periods of limitation generally
(f) Claim in amended pleading

I'm only posting the analysis on this one.  For the facts in their entirety, read the decision.  For a brief intro to the decision, click here.

Bumpus v New York City Tr. Auth., 2009 NY Slip Op 05737 (App. Div., 2nd, 2009)

II. The Interplay of CPLR 1024 and 306-b

The New York State Legislature has recognized that there are circumstances where a party is ignorant, in whole or in part, of the identity of a person who should be made a party to an action. CPLR 1024 allows for the commencement of an action against an unknown party "by designating so much of his name and identity as is known" (see generally Orchard Park Cent. School Dist. v Orchard Park Teachers Assn., 50 AD2d 462, 467). To be effective, a summons and complaint must describe the unknown party in such a manner that the "Jane Doe" would understand that she is the intended defendant by a reading of the papers (see Olmsted v Pizza Hut of Am., Inc., 28 AD3d 855, 856; Justin v Orshan, 14 AD3d 492; Lebowitz v Fieldston Travel Bur., 181 AD2d 481, 482).

The use of CPLR 1024 presents many pitfalls. One pitfall is that parties are not to resort to the "Jane Doe" procedure unless they exercise due diligence, prior to the running of the statute of limitations, to identify the defendant by name and, despite such efforts, are unable to do so (see Hall v Rao, 26 AD3d 694, 695; Justin v Orshan, 14 AD3d 492, 492-493; Opiela v May Indus. Corp., 10 AD3d 340, 341; Tucker v Lorieo, 291 AD2d 261; Porter v Kingsbrook OB/GYN Assoc., 209 AD2d 497). Any failure to exercise due diligence to ascertain the "Jane Doe's" name subjects the complaint to dismissal as to that party (see Hall v Rao, 26 AD3d at 695; Justin v Orshan, 14 AD3d at 492-493; Opiela v May Indus. Corp., 10 AD3d at 341). A second requirement unique to CPLR 1024 is that the "Jane Doe" party be described in such form as will fairly apprise the party that she is the intended defendant (see City of Mount Vernon v Best Dev. Co., 268 NY 327, 331; Olmsted v Pizza Hut of Am., Inc., 28 AD3d at 856; Justin v Orshan, 14 AD3d at 492-493). An insufficient description subjects the "Jane Doe" complaint to dismissal for being jurisdictionally defective (see Lebowitz v Fieldston Travel Bur., 181 AD2d 481, 482-483; Reid v Niagra Mach. & Tool Co., 170 AD2d 662). A third pitfall unique to CPLR 1024 is its interplay with CPLR 306-b.

Prior to 1992, when actions in the Supreme and County Courts were commenced by the service of process rather than by filing, a party suing a "Jane Doe" defendant was under no particular time deadline for ascertaining the unknown party's identity, other than commencing an action against all defendants prior to the expiration of the relevant statute of limitations (see Luckern [*3]v Lyondale Energy Ltd. Partnership, 229 AD2d 249, 255)^[FN1]. However, the enactment of CPLR 306-a in 1992 required that actions in Supreme and County Courts be commenced by filing rather than by service (L 1992, ch 216, § 6; see generally Matter of Fry v Village of Tarrytown, 89 NY2d 714, 718-720) and upon filing, CPLR 306-b, which was enacted at the same time as 306-a (L 1992, ch 216, § 7), superimposed the requirement that service of process be effected within 120 days (see CPLR 306-b; see generally Leader v Maroney, Ponzini & Spencer, 97 NY2d 95, 100-101). The filing of the summons with notice or summons and complaint fixed the point at which an action was commenced for statute of limitations purpose (see Leader v Maroney, Ponzini & Spencer, 97 NY2d at 100; Matter of Gershel v Porr, 89 NY2d 327, 330).

The enactment of CPLR 306-b placed plaintiffs wishing to commence actions against "Jane Doe" defendants in an unenviable position that did not previously exist. By virtue of CPLR 306-b, plaintiffs were required to ascertain the identity of unknown "Jane Doe" parties, and to serve process upon them, within 120 days from filing. As a practical matter, it is not always easy or even possible for plaintiffs naming "Jane Doe" defendants to meet the service expectations of CPLR 306-b. In any given case involving two or more defendants including an unknown party, a plaintiff may serve process upon the known defendants early in the 120-day service period, and then wait 20 or 30 days for appearances and answers (see CPLR 320[a]), absent consent extensions or pre-answer motions to dismiss the complaint (see CPLR 3211). Upon the joinder of issue, the plaintiff may then serve discovery demands upon the known parties or upon non-parties for information that may identify the unknown party, and wait for responses which may or may not be fruitful, complied with, or timely. The mechanics of serving process upon known parties, joining issue, demanding discovery, and receiving meaningful responses will, as a practical matter, exhaust, in many cases, all or most of the 120-day period of CPLR 306-b for effecting service upon the newly-identified party. If a "Jane Doe" is the only named defendant in an action, the timely identification of the party's true identity for service of process is even more challenging.

The harshness of CPLR 306-b under these circumstances is ameliorated, in appropriate instances, by the "good cause" and "interest of justice" exceptions to CPLR 306-b. These exceptions have particular utility in actions where, as here, a plaintiff is delayed in effecting service of process by virtue of not knowing the identity of a target defendant.

The 120-day service provision of CPLR 306-b can be extended by a court, upon motion, "upon good cause shown or in the interest of justice" (CPLR 306-b). "Good cause" and "interest of justice" are two separate and independent statutory standards (see Leader v Maroney, Ponzini & Spencer, 97 NY2d at 104). To establish good cause, a plaintiff must demonstrate reasonable diligence in attempting service (see Leader v Maroney, Ponzini & Spencer, 97 NY2d at 105-06). Good cause will not exist where a plaintiff fails to make any effort at service (see Valentin v Zaltsman, 39 AD3d 852; Lipschitz v McCann, 13 AD3d 417), or fails to make at least a reasonably diligent effort at service (see e.g. Kazimierski v New York Univ., 18 AD3d 820; Baione v Central Suffolk Hosp., 14 AD3d 635, 636-637; Busler v Corbett, 259 AD2d 13, 15). By contrast, good cause may be found to exist where the plaintiff's failure to timely serve process is a result of circumstances beyond the plaintiff's control (see U.S. 1 Brookville Real Estate Corp. v Spallone, 13 Misc 3d 1236[A], quoting Eastern Refractories Co., Inc. v Forty-Eight Insulations, Inc., 187 FRD 503, 505; see also Greco v Renegades, Inc., 307 AD2d 711, 712 [difficulties of service associated with locating defendant enlisted in military]; Kulpa v Jackson, 3 Misc 3d 227, 235 [difficulties associated with service abroad through the Hague Convention]).

If good cause for an extension is not established, courts must consider the "interest of justice" standard of CPLR 306-b (see e.g. Busler v Corbett, 259 AD2d at 17). The interest of justice standard does not require reasonably diligent efforts at service, but courts, in making their [*4]determinations, may consider the presence or absence of diligence, along with other factors (see Leader v Maroney, Ponzini & Spencer, 97 NY2d at 105). The interest of justice standard is broader than the good cause standard (see Mead v Singleman, 24 AD3d 1142, 1144), as its factors also include the expiration of the statute of limitations, the meritorious nature of the action, the length of delay in service, the promptness of a request by the plaintiff for an extension, and prejudice to the defendant (see Leader v Maroney, Ponzini & Spencer, 97 NY2d at 105-106; Matter of Jordan v City of New York, 38 AD3d 336, 339; Estey-Dorsa v Chavez, 27 AD3d 277; Mead v Singleman, 24 AD3d at 1144; de Vries v Metropolitan Tr. Auth., 11 AD3d 312, 313; Hafkin v North Shore Univ. Hosp., 279 AD2d 86, 90-91, affd 97 NY2d 95; see also Slate v Schiavone Const. Co., 4 NY3d 816).

The practicing bar need not rely exclusively on the ameliorative provisions of CPLR 306-b for coping with the difficulties posed by pursuing actions against unknown parties. There are, in fact, at least four procedural mechanisms that may be utilized which, if applicable and successful, would render unnecessary a party's reliance upon "good cause" or the "interest of justice" for additional time to serve process upon "Jane Doe" defendants who cannot be readily identified.

One such method is pre-action disclosure as permitted by CPLR 3102(c). The statute permits a prospective plaintiff to seek, by court order, disclosure that will aid in bringing the action (see CPLR 3102[c]). It has been recommended that a request for pre-action disclosure be sought by means of a special proceeding pursuant to CPLR article 4 (see Connors, Practice Commentary, McKinney's Cons Laws of NY, CPLR C3102:4, quoting Robinson v Government of Malaysia, 174 Misc 2d 560). While pre-action disclosure is often thought of as a device to enable the plaintiff to frame a complaint (see generally Matter of Wien & Malkin v Wichman, 255 AD2d 244; Matter of Perez v New York City Health and Hosps. Corp., 84 AD2d 789; Matter of Rosenberg v Brooklyn Union Gas Co., 80 AD2d 834; Matter of Urban v Hooker Chems. & Plastics Corp., 75 AD2d 720; Matter of Roland, 10 AD2d 263, 265) or to preserve evidence for a forthcoming lawsuit (see generally Matter of Thomas v New York City Tr. Police Dept., 91 AD2d 898; Gearing v Kelly, 15 AD2d 477; Matter of O'Grady v City of New York, 164 Misc 2d 171, 173; Matter of Spraggins v Current Cab Corp., 127 Misc 2d 774, 775), it has also been recognized as an appropriate device for ascertaining the identities of prospective defendants (see Matter of Alexander v Spanierman Gallery, LLC, 33 AD3d 411; Matter of Toal v Staten Is. Univ. Hosp., 300 AD2d 592; Matter of Stewart v New York City Tr. Auth., 112 AD2d 939, 940; Perez v New York City Health and Hosps. Corp., 84 AD2d at 789; Matter of Bergan v Sullivan Bros. Wood Prods. of Keeseville, 77 AD2d 723; Matter of Roland, 10 AD2d at 265). Plaintiffs' attorneys who are retained sufficiently in advance of the expiration of the statute of limitations may avoid the problem of identifying a "Jane Doe" defendant for service within the time limits of CPLR 306-b, where successful pre-action disclosure results in the identification of the unknown defendant prior to the filing of a summons and complaint.

A second mechanism, available when a governmental entity may know the identify of the unknown party, is the Freedom of Information Law (Public Officers Law art 8, hereinafter FOIL). In a case such as this involving a public employee, Public Officers Law § 89 would require the disclosure of the employee's name (see Matter of Faulkner v Del Giacco, 139 Misc 2d 790, 794 [disclosure of names of prison guards accused of inappropriate behavior]), but exempt from disclosure the employee's home address (see Public Officers Law §§ 87[2][b]; 89[2][b]; 89[7]; Matter of Pasik v State Bd. of Law Examiners, 114 Misc 2d 397, 407-408, mod 102 AD2d 395). Nothing in the Public Officers Law appears to prohibit the disclosure of records identifying an employee's work location and schedule, which was the information that the NYCTA ultimately agreed to provide to the plaintiff's counsel in this instance to enable service of process upon Smith. FOIL requests are designed to be acted upon by public agencies expeditiously, typically within five business days from receipt of a written request for non-exempt records (see Public Officers Law § 95[1][a]). The speed of the statute can prove useful to practitioners who, facing an approaching statute of limitations, seek to identify the "Jane Doe" party prior to the commencement of the action.

Third, if pre-action discovery or FOIL requests are not viable options, plaintiffs intending to pursue a "Jane Doe" defendant may commence their actions against any known co-defendants, who may possess information identifying the unknown party, well in advance of the statute of limitations (accord Misa v Hossain, 42 AD3d at 486). Doing so affords two distinct procedural options. If the discovery process would not lead to an identification of the unknown target in sufficient time for service of process upon that party under the limited 120-day deadline of CPLR 306-b, the subsequent disclosure of identifying information will still permit, within the wider statute of limitations, either an amended complaint by stipulation or by leave of court naming the [*5]additional party (see CPLR 3025[b]), or alternatively, the commencement of a timely separate action against the additional party with a view to its later consolidation with the original action (see CPLR 602[a]; cf. Matter of Vogel, 19 Misc 3d 853, 859). Commencing the initial action well before the expiration of the statute of limitations makes service upon the newly-identified party possible. The same result does not inure to practitioners who wait until the limitations period is close to expiring before commencing their actions against known parties.

Fourth, when an originally-named defendant and an unknown "Jane Doe" party are united in interest, i.e. employer and employee, the later-identified party may, in some instances, be added to the suit after the statute of limitations has expired pursuant to the "relation-back" doctrine of CPLR 203(f), based upon post-limitations disclosure of the unknown party's identity (see Reznick v MTA/Long Is. Bus, 7 AD3d 773, 774; Gottlieb v County of Nassau, 92 AD2d 858). The relation-back doctrine allows a party to be added to an action after the expiration of the statute of limitations, and the claim is deemed timely interposed, if (1) the claim arises out of the same conduct, transaction, or occurrence, (2) the additional party is united in interest with the original party, and (3) the additional party knew or should have known that but for a mistake by the plaintiff as to the identity of the proper parties, the action would have been brought against the additional party as well (see Buran v Coupal, 87 NY2d 173, 178). The moving party seeking to apply the relation-back doctrine to a later-identified "Jane Doe" defendant has the added burden of establishing that diligent efforts were made to ascertain the unknown party's identity prior to the expiration of the statute of limitations (see Hall v Rao, 26 AD3d at 695; Scoma v Doe, 2 AD3d at 433; Tucker v Lorieo, 291 AD2d at 262).

Furthermore, if the plaintiff is truly at the mercy of a service extension under CPLR 306-b, which is discretionary on the part of the court (compare Crystal v Lisnow, 56 AD3d 713, 714 with Cooper v New York City Bd. of Educ., 55 AD3d 526), any "Jane Doe" service problem should be proactively addressed by the filing of a motion for a CPLR 306-b extension. Indeed, the promptness of a request for an extension of time to serve a "Jane Doe" defendant is a specific factor that is to be considered by courts in determining "interest of justice" extensions (see Leader v Maroney, Ponzini & Spencer, 97 NY2d at 105-106; Matter of Anonymous v New York State Off. of Children & Family Servs., 53 AD3d 810, 810-811; Rosenzweig v 60 N. St. LLC, 35 AD3d 705; Scarabaggio v Olympia & York Estates Co., 278 AD2d 476, affd 97 NY2d 95). While CPLR 306-b is not construed to require that a motion for a service extension be filed before the expiration of the 120-day statutory period (see Leader v Maroney, Ponzini & Spencer, 97 NY2d at 106-07), prompt motions are more likely to be successful (id.; Scarabaggio v Olympia & York Estates Co., 278 AD2d at 476), as they are a sign of diligence, whereas dilatory motions are less so (see Matter of Anonymous v New York State Off. of Children & Family Services, 53 AD3d at 810-811).

The bold is mine.

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 § 3102 Method of obtaining disclosure
(c) Before action commenced

CPLR R. 3025 Amended and supplemental pleadings
(b) Amendments and supplemental pleadings by leave

CPLR § 602 Consolidation
(a) Generally

CPLR § 203 Method of computing periods of limitation generally
(f) Claim in amended pleading

I'm only posting the analysis on this one.  For the facts in their entirety, read the decision.  For a brief intro to the decision, click here.

Bumpus v New York City Tr. Auth., 2009 NY Slip Op 05737 (App. Div., 2nd, 2009)

II. The Interplay of CPLR 1024 and 306-b

The New York State Legislature has recognized that there are circumstances where a party is ignorant, in whole or in part, of the identity of a person who should be made a party to an action. CPLR 1024 allows for the commencement of an action against an unknown party "by designating so much of his name and identity as is known" (see generally Orchard Park Cent. School Dist. v Orchard Park Teachers Assn., 50 AD2d 462, 467). To be effective, a summons and complaint must describe the unknown party in such a manner that the "Jane Doe" would understand that she is the intended defendant by a reading of the papers (see Olmsted v Pizza Hut of Am., Inc., 28 AD3d 855, 856; Justin v Orshan, 14 AD3d 492; Lebowitz v Fieldston Travel Bur., 181 AD2d 481, 482).

The use of CPLR 1024 presents many pitfalls. One pitfall is that parties are not to resort to the "Jane Doe" procedure unless they exercise due diligence, prior to the running of the statute of limitations, to identify the defendant by name and, despite such efforts, are unable to do so (see Hall v Rao, 26 AD3d 694, 695; Justin v Orshan, 14 AD3d 492, 492-493; Opiela v May Indus. Corp., 10 AD3d 340, 341; Tucker v Lorieo, 291 AD2d 261; Porter v Kingsbrook OB/GYN Assoc., 209 AD2d 497). Any failure to exercise due diligence to ascertain the "Jane Doe's" name subjects the complaint to dismissal as to that party (see Hall v Rao, 26 AD3d at 695; Justin v Orshan, 14 AD3d at 492-493; Opiela v May Indus. Corp., 10 AD3d at 341). A second requirement unique to CPLR 1024 is that the "Jane Doe" party be described in such form as will fairly apprise the party that she is the intended defendant (see City of Mount Vernon v Best Dev. Co., 268 NY 327, 331; Olmsted v Pizza Hut of Am., Inc., 28 AD3d at 856; Justin v Orshan, 14 AD3d at 492-493). An insufficient description subjects the "Jane Doe" complaint to dismissal for being jurisdictionally defective (see Lebowitz v Fieldston Travel Bur., 181 AD2d 481, 482-483; Reid v Niagra Mach. & Tool Co., 170 AD2d 662). A third pitfall unique to CPLR 1024 is its interplay with CPLR 306-b.

Prior to 1992, when actions in the Supreme and County Courts were commenced by the service of process rather than by filing, a party suing a "Jane Doe" defendant was under no particular time deadline for ascertaining the unknown party's identity, other than commencing an action against all defendants prior to the expiration of the relevant statute of limitations (see Luckern [*3]v Lyondale Energy Ltd. Partnership, 229 AD2d 249, 255)^[FN1]. However, the enactment of CPLR 306-a in 1992 required that actions in Supreme and County Courts be commenced by filing rather than by service (L 1992, ch 216, § 6; see generally Matter of Fry v Village of Tarrytown, 89 NY2d 714, 718-720) and upon filing, CPLR 306-b, which was enacted at the same time as 306-a (L 1992, ch 216, § 7), superimposed the requirement that service of process be effected within 120 days (see CPLR 306-b; see generally Leader v Maroney, Ponzini & Spencer, 97 NY2d 95, 100-101). The filing of the summons with notice or summons and complaint fixed the point at which an action was commenced for statute of limitations purpose (see Leader v Maroney, Ponzini & Spencer, 97 NY2d at 100; Matter of Gershel v Porr, 89 NY2d 327, 330).

The enactment of CPLR 306-b placed plaintiffs wishing to commence actions against "Jane Doe" defendants in an unenviable position that did not previously exist. By virtue of CPLR 306-b, plaintiffs were required to ascertain the identity of unknown "Jane Doe" parties, and to serve process upon them, within 120 days from filing. As a practical matter, it is not always easy or even possible for plaintiffs naming "Jane Doe" defendants to meet the service expectations of CPLR 306-b. In any given case involving two or more defendants including an unknown party, a plaintiff may serve process upon the known defendants early in the 120-day service period, and then wait 20 or 30 days for appearances and answers (see CPLR 320[a]), absent consent extensions or pre-answer motions to dismiss the complaint (see CPLR 3211). Upon the joinder of issue, the plaintiff may then serve discovery demands upon the known parties or upon non-parties for information that may identify the unknown party, and wait for responses which may or may not be fruitful, complied with, or timely. The mechanics of serving process upon known parties, joining issue, demanding discovery, and receiving meaningful responses will, as a practical matter, exhaust, in many cases, all or most of the 120-day period of CPLR 306-b for effecting service upon the newly-identified party. If a "Jane Doe" is the only named defendant in an action, the timely identification of the party's true identity for service of process is even more challenging.

The harshness of CPLR 306-b under these circumstances is ameliorated, in appropriate instances, by the "good cause" and "interest of justice" exceptions to CPLR 306-b. These exceptions have particular utility in actions where, as here, a plaintiff is delayed in effecting service of process by virtue of not knowing the identity of a target defendant.

The 120-day service provision of CPLR 306-b can be extended by a court, upon motion, "upon good cause shown or in the interest of justice" (CPLR 306-b). "Good cause" and "interest of justice" are two separate and independent statutory standards (see Leader v Maroney, Ponzini & Spencer, 97 NY2d at 104). To establish good cause, a plaintiff must demonstrate reasonable diligence in attempting service (see Leader v Maroney, Ponzini & Spencer, 97 NY2d at 105-06). Good cause will not exist where a plaintiff fails to make any effort at service (see Valentin v Zaltsman, 39 AD3d 852; Lipschitz v McCann, 13 AD3d 417), or fails to make at least a reasonably diligent effort at service (see e.g. Kazimierski v New York Univ., 18 AD3d 820; Baione v Central Suffolk Hosp., 14 AD3d 635, 636-637; Busler v Corbett, 259 AD2d 13, 15). By contrast, good cause may be found to exist where the plaintiff's failure to timely serve process is a result of circumstances beyond the plaintiff's control (see U.S. 1 Brookville Real Estate Corp. v Spallone, 13 Misc 3d 1236[A], quoting Eastern Refractories Co., Inc. v Forty-Eight Insulations, Inc., 187 FRD 503, 505; see also Greco v Renegades, Inc., 307 AD2d 711, 712 [difficulties of service associated with locating defendant enlisted in military]; Kulpa v Jackson, 3 Misc 3d 227, 235 [difficulties associated with service abroad through the Hague Convention]).

If good cause for an extension is not established, courts must consider the "interest of justice" standard of CPLR 306-b (see e.g. Busler v Corbett, 259 AD2d at 17). The interest of justice standard does not require reasonably diligent efforts at service, but courts, in making their [*4]determinations, may consider the presence or absence of diligence, along with other factors (see Leader v Maroney, Ponzini & Spencer, 97 NY2d at 105). The interest of justice standard is broader than the good cause standard (see Mead v Singleman, 24 AD3d 1142, 1144), as its factors also include the expiration of the statute of limitations, the meritorious nature of the action, the length of delay in service, the promptness of a request by the plaintiff for an extension, and prejudice to the defendant (see Leader v Maroney, Ponzini & Spencer, 97 NY2d at 105-106; Matter of Jordan v City of New York, 38 AD3d 336, 339; Estey-Dorsa v Chavez, 27 AD3d 277; Mead v Singleman, 24 AD3d at 1144; de Vries v Metropolitan Tr. Auth., 11 AD3d 312, 313; Hafkin v North Shore Univ. Hosp., 279 AD2d 86, 90-91, affd 97 NY2d 95; see also Slate v Schiavone Const. Co., 4 NY3d 816).

The practicing bar need not rely exclusively on the ameliorative provisions of CPLR 306-b for coping with the difficulties posed by pursuing actions against unknown parties. There are, in fact, at least four procedural mechanisms that may be utilized which, if applicable and successful, would render unnecessary a party's reliance upon "good cause" or the "interest of justice" for additional time to serve process upon "Jane Doe" defendants who cannot be readily identified.

One such method is pre-action disclosure as permitted by CPLR 3102(c). The statute permits a prospective plaintiff to seek, by court order, disclosure that will aid in bringing the action (see CPLR 3102[c]). It has been recommended that a request for pre-action disclosure be sought by means of a special proceeding pursuant to CPLR article 4 (see Connors, Practice Commentary, McKinney's Cons Laws of NY, CPLR C3102:4, quoting Robinson v Government of Malaysia, 174 Misc 2d 560). While pre-action disclosure is often thought of as a device to enable the plaintiff to frame a complaint (see generally Matter of Wien & Malkin v Wichman, 255 AD2d 244; Matter of Perez v New York City Health and Hosps. Corp., 84 AD2d 789; Matter of Rosenberg v Brooklyn Union Gas Co., 80 AD2d 834; Matter of Urban v Hooker Chems. & Plastics Corp., 75 AD2d 720; Matter of Roland, 10 AD2d 263, 265) or to preserve evidence for a forthcoming lawsuit (see generally Matter of Thomas v New York City Tr. Police Dept., 91 AD2d 898; Gearing v Kelly, 15 AD2d 477; Matter of O'Grady v City of New York, 164 Misc 2d 171, 173; Matter of Spraggins v Current Cab Corp., 127 Misc 2d 774, 775), it has also been recognized as an appropriate device for ascertaining the identities of prospective defendants (see Matter of Alexander v Spanierman Gallery, LLC, 33 AD3d 411; Matter of Toal v Staten Is. Univ. Hosp., 300 AD2d 592; Matter of Stewart v New York City Tr. Auth., 112 AD2d 939, 940; Perez v New York City Health and Hosps. Corp., 84 AD2d at 789; Matter of Bergan v Sullivan Bros. Wood Prods. of Keeseville, 77 AD2d 723; Matter of Roland, 10 AD2d at 265). Plaintiffs' attorneys who are retained sufficiently in advance of the expiration of the statute of limitations may avoid the problem of identifying a "Jane Doe" defendant for service within the time limits of CPLR 306-b, where successful pre-action disclosure results in the identification of the unknown defendant prior to the filing of a summons and complaint.

A second mechanism, available when a governmental entity may know the identify of the unknown party, is the Freedom of Information Law (Public Officers Law art 8, hereinafter FOIL). In a case such as this involving a public employee, Public Officers Law § 89 would require the disclosure of the employee's name (see Matter of Faulkner v Del Giacco, 139 Misc 2d 790, 794 [disclosure of names of prison guards accused of inappropriate behavior]), but exempt from disclosure the employee's home address (see Public Officers Law §§ 87[2][b]; 89[2][b]; 89[7]; Matter of Pasik v State Bd. of Law Examiners, 114 Misc 2d 397, 407-408, mod 102 AD2d 395). Nothing in the Public Officers Law appears to prohibit the disclosure of records identifying an employee's work location and schedule, which was the information that the NYCTA ultimately agreed to provide to the plaintiff's counsel in this instance to enable service of process upon Smith. FOIL requests are designed to be acted upon by public agencies expeditiously, typically within five business days from receipt of a written request for non-exempt records (see Public Officers Law § 95[1][a]). The speed of the statute can prove useful to practitioners who, facing an approaching statute of limitations, seek to identify the "Jane Doe" party prior to the commencement of the action.

Third, if pre-action discovery or FOIL requests are not viable options, plaintiffs intending to pursue a "Jane Doe" defendant may commence their actions against any known co-defendants, who may possess information identifying the unknown party, well in advance of the statute of limitations (accord Misa v Hossain, 42 AD3d at 486). Doing so affords two distinct procedural options. If the discovery process would not lead to an identification of the unknown target in sufficient time for service of process upon that party under the limited 120-day deadline of CPLR 306-b, the subsequent disclosure of identifying information will still permit, within the wider statute of limitations, either an amended complaint by stipulation or by leave of court naming the [*5]additional party (see CPLR 3025[b]), or alternatively, the commencement of a timely separate action against the additional party with a view to its later consolidation with the original action (see CPLR 602[a]; cf. Matter of Vogel, 19 Misc 3d 853, 859). Commencing the initial action well before the expiration of the statute of limitations makes service upon the newly-identified party possible. The same result does not inure to practitioners who wait until the limitations period is close to expiring before commencing their actions against known parties.

Fourth, when an originally-named defendant and an unknown "Jane Doe" party are united in interest, i.e. employer and employee, the later-identified party may, in some instances, be added to the suit after the statute of limitations has expired pursuant to the "relation-back" doctrine of CPLR 203(f), based upon post-limitations disclosure of the unknown party's identity (see Reznick v MTA/Long Is. Bus, 7 AD3d 773, 774; Gottlieb v County of Nassau, 92 AD2d 858). The relation-back doctrine allows a party to be added to an action after the expiration of the statute of limitations, and the claim is deemed timely interposed, if (1) the claim arises out of the same conduct, transaction, or occurrence, (2) the additional party is united in interest with the original party, and (3) the additional party knew or should have known that but for a mistake by the plaintiff as to the identity of the proper parties, the action would have been brought against the additional party as well (see Buran v Coupal, 87 NY2d 173, 178). The moving party seeking to apply the relation-back doctrine to a later-identified "Jane Doe" defendant has the added burden of establishing that diligent efforts were made to ascertain the unknown party's identity prior to the expiration of the statute of limitations (see Hall v Rao, 26 AD3d at 695; Scoma v Doe, 2 AD3d at 433; Tucker v Lorieo, 291 AD2d at 262).

Furthermore, if the plaintiff is truly at the mercy of a service extension under CPLR 306-b, which is discretionary on the part of the court (compare Crystal v Lisnow, 56 AD3d 713, 714 with Cooper v New York City Bd. of Educ., 55 AD3d 526), any "Jane Doe" service problem should be proactively addressed by the filing of a motion for a CPLR 306-b extension. Indeed, the promptness of a request for an extension of time to serve a "Jane Doe" defendant is a specific factor that is to be considered by courts in determining "interest of justice" extensions (see Leader v Maroney, Ponzini & Spencer, 97 NY2d at 105-106; Matter of Anonymous v New York State Off. of Children & Family Servs., 53 AD3d 810, 810-811; Rosenzweig v 60 N. St. LLC, 35 AD3d 705; Scarabaggio v Olympia & York Estates Co., 278 AD2d 476, affd 97 NY2d 95). While CPLR 306-b is not construed to require that a motion for a service extension be filed before the expiration of the 120-day statutory period (see Leader v Maroney, Ponzini & Spencer, 97 NY2d at 106-07), prompt motions are more likely to be successful (id.; Scarabaggio v Olympia & York Estates Co., 278 AD2d at 476), as they are a sign of diligence, whereas dilatory motions are less so (see Matter of Anonymous v New York State Off. of Children & Family Services, 53 AD3d at 810-811).

The bold is mine.

CPLR § 602 Consolidation
(a) Generally

CPLR § 203 Method of computing periods of limitation generally
(f) Claim in amended pleading

CPLR R.3211 Roundup with a smattering of CPLR § 308. CPLR § 205(a) too.

These are some of the more interesting CPLR R. 3211 decision's I've found in the past few weeks.  At least two revolve around CPLR § 308 ( Personal service upon a natural person). Another discussed CPLR § 306-b.  One decision discussed the preclusive effect of a CPLR R. 3211(a)(7) dismissal (in that case none), adding that it received the tolling benefit of CPLR § 205(a)

CPLR R. 3211

(a)(1) defense is founded upon documentary evidence

(a)(5) the cause of action may not be maintained because of arbitration and award, collateral estoppel, discharge in bankruptcy, infancy or other disability of the moving party, payment, release, res judicata, statute of limitations, or statute of frauds

(a)(7)  pleading fails to state a cause of action

Fitzgerald v Federal Signal Corp., 2009 NY Slip Op 05288 (App. Div., 2nd, 2009)

"Upon a motion to dismiss for failure to state a cause of action under CPLR 3211(a)(7), the court must determine whether from the four corners of the pleading factual allegations are discerned which taken together manifest any cause of action cognizable at law'" (Salvatore v Kumar, 45 AD3d 560, 563, quoting Morad v Morad, 27 AD3d 626, 627; see Arnav Indus., Inc. Retirement Trust v Brown, Raysman, Millstein, Felder & Steiner, 96 NY2d 300, 303; Leon v MartÍnez, 84 NY2d 83, 87-88). "In determining such a motion, the court may freely consider additional facts contained in affidavits submitted by the plaintiff to remedy any defects in the complaint" (Sheridan v Carter, 48 AD3d 444, 445; see International Oil Field Supply Servs. Corp. v Fadeyi, 35 AD3d 372, 375).

Viewing the allegations in the complaint as true, and according the plaintiffs the benefit of every reasonable inference, the Supreme Court properly determined that the plaintiffs failed to state a cause of action to recover damages for strict products liability based on Federal's alleged duty and failure to warn them, as the risk alleged is "open and obvious" and "readily apparent as a matter of common sense" (Liriano v Hobart Corp., 92 NY2d 232, 241-242; see Warlikowski v Burger King Corp., 9 AD3d 360, 362; Schiller v National Presto Indus., 225 AD2d 1053, 1054). "There is no duty to warn of an open and obvious danger of which the product user is actually aware or should be aware as a result of ordinary observation or as a matter of common sense" (O'Boy v Motor Coach Indus., Inc., 39 AD3d 512, 514; see Jones v W + M Automation, Inc., 31 AD3d 1099, 1101-1102; Vail v KMart Corp., 25 AD3d 549, 551).

Stubbolo v City of New York, 2009 NY Slip Op 04971 (App. Div., 1st, 2009)

The motion court erred in denying dismissal of plaintiffs' 42 USC § 1983 claim based on the theory of fabrication of evidence prior to the initiation of the grand jury proceedings and prosecutions against plaintiff Frank J. Stubbolo under Indictment Nos. 724/02 and 4133/03. The complaint fails to sufficiently allege such prosecutorial misconduct and, as a result, the claim is barred by absolute prosecutorial immunity (see Buckley v Fitzsimmons, 509 US 259, 269-270 [1993]; Imbler v Pachtman, 424 US 409, 430-31 [1970]; Hill v City of New York, 45 F3d 653, 661 [2d Cir 1995]).

Contrary to plaintiffs' contentions on appeal, the motion court properly dismissed [*2]plaintiffs' remaining federal and state law claims as time-barred or for failure to state a cause of action (CPLR 3211[a][1], [7]).

HNH Intl., Ltd. v Pryor Cashman Sherman & Flynn LLP, 2009 NY Slip Op 04964 (App. Div., 1st, 2009)

The court dismissed the legal malpractice complaint, pursuant to CPLR 3211(a)(1), based on documentary evidence from which it concluded that the state of the law at the time the advice was given was unsettled and defendants therefore had not " failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession'" at that time (quoting Darby & Darby v VSI Intl., 95 NY2d 308, 313 [2000]).

We conclude, however, that the state of the law was not so unsettled at the time the advice was given as to bar as a matter of law plaintiffs' claim that a reasonably skilled attorney would have advised that the CDs were or might be entitled to common-law copyright protection and would not have advised that the release of the CDs would not result in any copyright liability. Although defendant maintains that it did advise plaintiffs of the possibility of common-law liability and did not advise plaintiffs that the release of the CDs would not result in any copyright liability, we must accept the facts alleged in the complaint as true and accord plaintiffs the benefit of every possible favorable inference (Arnav Indus., Inc. Retirement Trust v Brown, Raysman, Millstein, Felder & [*2]Steiner, 96 NY2d 300, 303 [2001]). The determination whether defendant exercised the requisite level of skill and care must await expert testimony (compare Merlin Biomed Asset Mgt., LLC v Wolf Block Schorr & Solis-Cohen LLP, 23 AD3d 243 [2005] [expert testimony required], with Darby & Darby, supra [legal malpractice counterclaim dismissed on summary judgment]).

CPLR R. 5015(a)(1)&(4); CPLR § 308(2)&(4); CPLR § 317

CPLR R. 5015 Relief from judgment or order
(a) On motion
(1) excusable default...
(2) newly-discovered evidence...
(3) fraud, misrepresentation, or other misconduct of an adverse party
(4) lack of jurisdiction to render the judgment or order
(5) reversal, modification or vacatur of a prior judgment or order upon which it is based

CPLR § 308 Personal service upon a natural person
(2)  by delivering the summons within the state to a person of suitable age and discretion...
(4) where service under paragraphs one and two cannot be made with due diligence, by affixing the summons to the door

CPLR § 317 Defense by person to whom summons not personally delivered

CPLR R. 320 Defendant's appearance
(a) Requirement of appearance

Caba v Rai, 2009 NY Slip Op 05252 (App. Div., 1st, 2009)

CPLR 317 and 5015(a)(1) allow a defendant against whom a default judgment has been rendered to move to vacate that default. CPLR 317 provides that

"[a] person served with a summons other than by personal delivery to him or to his agent for service designated under rule 318 . . . who does not appear may be allowed to defend the action within one year after he obtains knowledge of entry of the judgment, but in no event more than five years after such entry, upon a finding of the court that he did not personally receive notice of the summons in time to defend and has a meritorious defense."

Thus, this statute is available only to a defendant who (1) was served by a method other than personal delivery, (2) moves to vacate the judgment within one year of learning of it (but not more than five years after entry), and (3) demonstrates a potentially meritorious defense to the action. By contrast, CPLR 5015(a)(1) is available to any defendant against whom a default judgment was entered, provided that the defendant can demonstrate both a reasonable excuse for the default and a potentially meritorious defense. A defendant seeking relief under 5015(a)(1) must move to vacate the default judgment within one year of service on defendant of the default judgment with notice of entry. Both provisions assume personal jurisdiction exists over the defaulting defendant and provide that party with an opportunity to open the default and contest the merits of the plaintiff's claim (see Alexander, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C317:1, at 249-250 [main vol]; see also Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C5015:6, at 210). If the defaulting defendant asserts that the court lacked personal jurisdiction over him or her, the defendant should seek dismissal of the action under CPLR 5015(a)(4) (see Alexander, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C317:1, at 250 [main vol]), a motion that has no stated time limit and can be made at any time (Siegel, Practice Commentaries, McKinney's Cons Laws, Book 7B, CPLR C5015:3, at 205-206 [main vol]).

In moving to vacate the default judgment, defendant argued that she was entitled to relief under CPLR 317 or 5015(a)(1) and sought to vacate the judgment and for an extension of time to interpose an answer; she did not seek relief under 5015(a)(4) or request that the complaint be dismissed for want of personal jurisdiction. To be sure, in her notice of cross motion, defendant requested an order "vacating and setting aside the defendant's [default] pursuant to CPLR 5015 and/or CPLR 317, extending the defendant's time to answer and compelling plaintiff to accept defendant's answer pursuant to CPLR 2004." Nowhere in her motion papers, however, did defendant suggest that the action should be dismissed because the court lacked personal jurisdiction over her. Although defendant did argue that she had not received the summons and complaint (or the default judgment), that argument was asserted by defendant in an effort to establish that she had a reasonable excuse for her default. What the concurring Justice considers to be part of the "crux" of defendant's motion, "the absence of any personal jurisdiction," was never stated in the motion. Accordingly, since defendant sought to vacate the judgment and defend the action on the merits, Supreme Court erred in ordering a traverse hearing; defendant charted a specific procedural course that Supreme Court improperly altered (see Mitchell v New [*3]York Hosp., 61 NY2d 208, 214 [1984]).^[FN1]

With respect to her contention that she was entitled to relief under CPLR 317, defendant obtained knowledge of the judgment in January 2004 when she received a credit report listing the judgment, and did not move to vacate the default until August 2007. Thus, that portion of defendant's cross motion seeking relief under CPLR 317 was untimely.

Regarding that portion of the cross motion that sought relief under CPLR 5015(a)(1), there is no indication when the default judgment with notice of entry was served on defendant. Thus, assuming without deciding that defendant properly could seek relief under 5015(a)(1),^[FN2] the motion appears timely and plaintiff does not argue to the contrary. Nonetheless, defendant is not entitled to relief under 5015(a)(1). Although defendant denied receiving the summons and complaint or any other papers in this matter until she was served with plaintiff's motion to compel the sheriff to seize and sell her property, defendant learned of the judgment in January 2004. She did not move to vacate the default, however, until August 2007 and only did so in response to plaintiff's motion to seize and sell her property. Moreover, plaintiff's counsel [*4]averred that both defendant and her attorney contacted plaintiff's counsel on May 11, 2005 about vacating the judgment, an averment that is corroborated by phone message slips generated by plaintiff's counsel's secretary and which defendant does not dispute. Thus, defendant failed to proffer a reasonable excuse for her substantial delay in moving to vacate the judgment (see Bekker v Fleischman, 35 AD3d 334 [2006]; Robinson v 1068 Flatbush Realty, Inc., 10 AD3d 716 [2004]; Duran v Edderson, 259 AD2d 728 [1999]). In light of our conclusion that defendant failed to proffer a reasonable excuse, we need not determine whether she offered a potentially meritorious defense to the action.

To read the concurring opinion, click the link for the decision above.

Kalamadeen v Singh, 2009 NY Slip Op 05296 (App. Div., 2nd, 2009)

The plaintiff and the defendant allegedly were involved in an automobile accident on February 26, 2001. The police accident report lists two different addresses for the defendant, one from his driver's license and a different one from his vehicle registration. The plaintiff commenced this action in February 2004, and contends that he served the defendant pursuant to CPLR 308(4) at the defendant's address then on record at the Department of Motor Vehicles (hereinafter the DMV). This address was different from the two addresses on the police accident report. The defendant did not appear in the action and a judgment was entered against him on August 18, 2004, upon his default.

Upon discovering the judgment against him, the defendant moved to vacate it, contending that at the time service allegedly was made he did not live at the address where process was affixed and mailed, he did not receive process, and that the subject accident was the plaintiff's fault. A hearing to determine the validity of service of process was ordered. At the hearing, the process server admitted that on the fourth occasion that he attempted to personally deliver the summons and complaint to the defendant at the defendant's address then on record with the DMV, he was told by the owner of the premises that the defendant had moved from that address several months earlier. Nevertheless, the process server affixed the summons and complaint to the door at that address and mailed process to that address, [*2]purportedly in compliance with CPLR 308(4). The Civil Court of the City of New York, Queens County, granted the defendant's motion to vacate the default, and the Appellate Term for the Second, Eleventh, and Thirteenth Judicial Districts affirmed, with one Justice dissenting. We granted leave to appeal and now reverse and deny the defendant's motion to vacate the default judgment.

CPLR 308(4) requires that the summons be affixed to the door of the defendant's "actual place of business, dwelling place or usual place of abode." Although the required subsequent mailing to the defendant's last known residence will suffice for the second element of service under CPLR 308(4), affixing process to the door of the defendant's last known residence will not be sufficient to meet the first element of the statute (see Feinstein v Bergner, 48 NY2d 234). The issue here is whether there is sufficient evidence, including the defendant's failure to notify the Commissioner of the DMV of his change of address, as required by Vehicle and Traffic Law § 505(5), to estop the defendant from obtaining vacatur of the default judgment on the ground that service of process was not made in strict compliance with CPLR 308(4) (see Cruz v Narisi, 32 AD3d 981).

To the extent that the defendant's motion to vacate his default was made pursuant to CPLR 5015(a)(1), based upon excusable default, it should have been denied, as the defendant's change of address is not a reasonable excuse because he failed to comply with Vehicle and Traffic Law § 505(5) (see Candela v Johnson, 48 AD3d 502; Labozzetta v Fabbro, 22 AD3d 644; Traore v Nelson, 277 AD2d 443). Likewise, to the extent that the motion was made pursuant to CPLR 5015(a)(4), based on lack of personal jurisdiction, it should have been denied, as the defendant is estopped from challenging the propriety of service due to his failure to comply with Vehicle and Traffic Law § 505(5) (see Labozzetta v Fabbro, 22 AD3d 644; Kandov v Gondal, 11 AD3d 516).

A default judgment may be vacated pursuant to CPLR 317 where the defendant was served by a method other than personal delivery and did not actually receive notice of the summons in time to defend, provided that the defendant has a meritorious defense (see Thakurdyal v 341 Scholes St., LLC, 50 AD3d 889). However, "denial of relief under CPLR 317 might be appropriate where . . . a defendant's failure to personally receive notice of the summons was a deliberate attempt to avoid such notice" (Eugene Di Lorenzo, Inc. v A. C. Dutton Lbr. Co., 67 NY2d 138, 143). Here, considering that the defendant supplied the police officer with two different addresses at the time of the officer's investigation, and that there was yet another address on record for the defendant at the DMV, his failure to comply with Vehicle and Traffic Law § 505(5) raised an inference that the defendant deliberately attempted to avoid notice of the action (see Cruz v Narisi, 32 AD3d 981). The defendant failed to rebut that inference. Accordingly, the defendant was not entitled to relief under CPLR 317 (see Eugene Di Lorenzo, Inc. v A. C. Dutton Lbr. Co., 67 NY2d 138, 143; Paul Conte Cadillac v C.A.R.S. Purch. Serv., 126 AD2d 621, 622.

That's one harsh inference.

Weiqin Wu v Guo Dong Chen, 2009 NY Slip Op 51142(U) (App. Term, 2nd, 2009)

The decision of a fact-finding court should not be disturbed upon appeal unless it is obvious that the court's conclusions could not have been reached under any fair interpretation of the evidence (see Claridge Gardens v Menotti, 160 AD2d 544 [1990]). This standard applies with greater force to judgments rendered in the Small Claims Part of the court (see Williams v Roper, 269 AD2d 125, 126 [2000]). Furthermore, the determination of the trier of fact as to issues of credibility is given substantial deference as the court has the opportunity to observe and evaluate the testimony and demeanor of the witnesses, thereby affording the trial court a better [*2]perspective from which to evaluate the credibility of the witnesses (see Vizzari v State of New York, 184 AD2d 564 [1992]; Kincade v Kincade, 178 AD2d 510, 511 [1991]).

In its decision after trial, the Civil Court explicitly stated that it credited plaintiff's testimony, but not defendant's. The Civil Court also implicitly found that plaintiff had established that there was an agreement between plaintiff and defendant, acting in his individual capacity, and that defendant had breached that agreement. That finding is supported by the record and will not be disturbed on appeal.

The Civil Court properly denied defendant's posttrial motion, as defendant failed to establish that he had discovered any evidence that he could not have discovered prior to trial or prior to the time for making a timely CPLR 4404 motion (CPLR 5015 [a] [2]), or that plaintiff had made any misrepresentations (CPLR 5015 [a] [3]). We note that defendant also failed to establish that the agreement was void pursuant to the statute of frauds (see e.g. Taranto v Fritz, 83 AD2d 864 [1981]; 61 NY Jur 2d, Statute of Frauds § 39).

Accordingly, the Civil Court's judgment and order provided the parties with substantial justice according to the rules and principles of substantive law (CCA 1807; see Ross v Friedman, 269 AD2d 584 [2000]; Williams, 269 AD2d at 126), and we affirm.

Saxon Mtge. Servs., Inc. v Bell, 2009 NY Slip Op 05312 (App. Div., 2nd, 2009)

Where, as here, the appellant submitted a detailed affidavit stating that he was home on each of the occasions when the process server purportedly attempted to serve process pursuant to CPLR 308(2), he rebutted the allegations contained in the process server's affidavit and was entitled to a hearing to determine whether personal jurisdiction was acquired over him (see Bankers Trust Co. of Cal. v Tsoukas, 303 AD2d 343).

While the appellant eventually acquired actual notice of the action, actual notice alone will not sustain the service or subject a person to the court's jurisdiction when there has not been compliance with prescribed conditions of service (see Frankel v Schilling, 149 AD2d 657; Skyline Agency v Coppotelli, Inc., 117 AD2d 135).

The bold is mine.

CPLR R. 3211(a)(8) & (e) Jurisdiction; CPLR § 308(4) Nail and Mail

CPLR § 308 Personal service upon a natural person

CPLR R. 3211(a)(8) the court has not jurisdiction of the person of the defendant
(e) Number, time and waiver of objections; motion to plead over

Schwarz v Margie, 2009 NY Slip Op 03890 (App. Div., 2nd, 2009)

The summons with notice in the instant matter purportedly was served upon the appellant, Thomas Margie, by the "nail and mail" method pursuant to CPLR 308(4). However, the record demonstrates that the service was deficient because the plaintiff failed "to show the existence of even a factual question as to whether the process server exercised the due diligence necessary to be [*2]permitted to serve someone under CPLR 308(4)" (Leviton v Unger, 56 AD3d 731, 732). Accordingly, the Supreme Court should not have directed a hearing to determine the validity of service upon the appellant but should have found the proof of due diligence to be insufficient as a matter of law (id.). Accordingly, the appellant's motion pursuant to CPLR 308 and CPLR 3211(a)(8), in effect, to dismiss the complaint and any and all cross claims insofar as asserted against him should have been granted (id.; McSorley v Spear, 50 AD3d 652; Estate of Waterman v Jones, 46 AD3d 63, 66-67; Earle v Valente, 302 AD2d 353, 353-354; Moran v Harting, 212 AD2d 517, 518).

The plaintiff's remaining contentions are without merit, have been rendered academic in light of our determination, or involve matter that is dehors the record and not properly before this Court (see Mendoza v Plaza Homes, LLC, 55 AD3d 692, 693).

Reyes v Albertson, 2009 NY Slip Op 04043 (App. Div., 2nd, 2009)

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Orange County (Giacomo, J.), dated March 24, 2008, which granted the defendant's motion pursuant to CPLR 3211(a)(8) to dismiss the complaint for lack of personal jurisdiction, and denied his cross motion, inter alia, for an extension of time to serve the defendant and for an order authorizing expedient service.

ORDERED that the order is modified, on the law, (1) by deleting the provision thereof granting the motion and substituting therefor a provision denying the motion as untimely, and (2) by deleting the provision thereof denying the cross motion on the merits and substituting therefor a provision denying the cross motion as academic; as so modified, the order is affirmed, with costs payable to the plaintiff.

Pursuant to CPLR 3211(e), the defendant was required to move to dismiss the complaint for lack of proper service within 60 days following the service of the answer, unless an extension of time was warranted on the ground of undue hardship. Contrary to the defendant's contention, the motion to dismiss the complaint, made approximately 106 days after service of the answer, raising the defense of lack of personal jurisdiction, was untimely and was not supported by an adequate showing of undue hardship which prevented the making of the motion within the requisite statutory period (see e.g. Woleben v Sutaria, 34 AD3d 1295; B.N. Realty Assoc. v Lichtenstein, 21 AD3d 793; State Farm Fire & Cas. Co. v Firmstone, 18 AD3d 900; Worldcom, Inc. v Dialing Loving Care, 269 [*2]AD2d 159; Vandemark v Jaeger, 267 AD2d 672). Accordingly, the jurisdictional objection was waived, and the court should have denied the motion (see Dimond v Verdon, 5 AD3d 718; Thompson v Cuadrado, 277 AD2d 151; Greenpoint Bank v Schiffer, 266 AD2d 262, cert denied 531 US 896; Wade v Byung Yang Kim, 250 AD2d 323). The defendant's contention that the service of the answer was unauthorized is improperly raised for the first time on appeal (see e.g. Gallagher v Gallagher, 51 AD3d 718; Dudla v Dudla, 304 AD2d 1009; Orellano v Samples Tire Equip. & Supply Corp., 110 AD2d 757).

The bold is mine.

CPLR § 3215; CPLR § 3012; CPLR § 308

CPLR § 3215 Default judgment

CPLR § 3012 Service of pleadings and demand for complaint

(d) Extension of time to appear or plead

CPLR § 308 Personal service upon a natural person

CPLR § 308(4)

Zareef v Wong, 2009 NY Slip Op 02990 (App. Div., 2nd, 2009)

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Taylor, J.), dated August 4, 2008, which denied her motion pursuant to CPLR 3215 for leave to enter judgment against the defendants upon their default in appearing or answering, and granted the defendants' cross motion pursuant to CPLR 3012(d) to compel the plaintiff to accept their answer.

ORDERED that the order is affirmed, with costs.

The plaintiff served the defendants pursuant to CPLR 308(4) by affixing copies of the summonses and complaints to the address of the defendants' "actual place of business, dwelling place, or usual place of abode" on November 12, 2007, and by mailing copies to the same address on November 13, 2007. The proofs of service were filed on December 20, 2007, well beyond the 20-day filing period required by CPLR 308(4). In opposition to the plaintiff's motion pursuant to CPLR 3215 for leave to enter judgment against the defendants upon their default in appearing or answering, the defendants served an answer on March 4, 2008, and cross-moved to compel the plaintiff to accept their answer. The Supreme Court denied the plaintiff's motion and granted the defendants' cross motion.

While the failure to file a timely proof of service is a curable procedural irregularity, here, the plaintiff did not obtain an order permitting a late filing of proof of service (see Bank of New [*2]York v Schwab, 97 AD2d 450). Accordingly, the late filings were nullities and the defendants' time to answer never began to run (see Bank of New York v Schwab, 97 AD2d 450; Marazita v Nelbach, 91 AD2d 604). Since the defendants never defaulted, the plaintiff's motion pursuant to CPLR 3215 for leave to enter judgment against them was properly denied (see Hausknecht v Ackerman, 242 AD2d 604, 606; Paracha v County of Nassau, 228 AD2d 422; Rosato v Ricciardi, 174 AD2d 937). Moreover, the defendants' cross motion pursuant to CPLR 3012(d) to compel the plaintiff to accept their answer was properly granted.

  The bold is mine.

CPLR § 308 Personal service upon a natural person

CPLR § 308(4)

CPLR § 308 (2)

CPLR § 308 Personal service upon a natural person

Beneficial Homeowner Serv. Corp. v Girault, 2009 NY Slip Op 02552 (App. Div., 2nd, 2009)

The motion of the defendant Poucher Girault (hereinafter the defendant) to vacate the final judgment of foreclosure and sale was properly denied without a hearing. The affidavit of the process server constituted prima facie evidence of proper service pursuant to CPLR 308(2) (see Hamlet on Olde Oyster Bay Homeowners Assn., Inc. v Ellner, 57 AD3d 732; Wells Fargo Bank, N.A. v McGloster, 48 AD3d 457; Bankers Trust Co. of Cal. v Tsoukas, 303 AD2d 343, 343-344), and the defendant's bare and unsubstantiated denial of receipt was insufficient to rebut the presumption of proper service created by the affidavit of service (see 425 E. 26th St. Owners Corp. v Beaton, 50 AD3d 845, 846; Rosario v Beverly Rd. Realty Co., 38 AD3d 875; Chemical Bank v Darnley, 300 AD2d 613; Simmons First Natl. Bank v Mandracchia, 248 AD2d 375). "A court need not conduct a hearing to determine the validity of the service of process where the defendant fails to raise an issue of fact regarding service" (Hamlet on Olde Oyster Bay Homeowners Assn., Inc. v Ellner, 57 AD3d at 733).

Furthermore, the defendant failed to establish that he was entitled to vacatur of the final judgment of foreclosure and sale pursuant to CPLR 317 as the record is devoid of any evidence tending to show a meritorious defense (see Green Point Sav. Bank v 794 Utica Ave. Realty Corp., [*2]242 AD2d 602, 602-603; Halali v Gabbay, 223 AD2d 623, 623-624).