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Queens County BarQueens Association / 90-35 One Hundred Forty Eighth Street, Jamaica, Bar NY 11435 / (718) 291-4500 BulletinVol. 75 / No. 4 / January 2012 Criminal Law Cases CPLR Update BY DAVID H. ROSEN BY ILENE J. REICHMAN counsel had failed to lay a proper foundation because he had not established the quality of the Appellate Practice Siegmund Strauss, Inc. v This past year, the New York Court of Appeals community members’ associations with the East 149th Realty Corp.1 rendered a number of decisions of interest to the complainant or the reliability of his proposed illustrates the effect of the criminal practitioner. Some of the more signifi- witnesses’ testimony. Court of Appeals’ decision In its decision rejecting the trial judge’s ruling cant opinions are highlighted in this article. in Matter of Aho,2 holding In People v. Steward, 17 N.Y.3d 104 (2011), and sustaining the Appellate Division’s reversal that the right of direct the defendant was charged with multiple counts of the conviction, the Court of Appeals held in appeal from an intermedi- of first and second degree robbery and various Fernandez that for the purpose of introducing ate order terminates upon David H. Rosen counts of weapon possession. The victim of the testimony regarding a witness’ bad reputation the entry of final judgment. robbery was the prominent radio host of a show for truth and veracity, family members and fam- Ilene J. Reichman The dispute arose out of a failed business merg- on a popular New York City radio station. At the ily friends could be found to constitute a rele- er between the parties, for simplicity referred to commencement of jury selection, the trial judge advised vant community for such purpose, and that in a case where here simply as “Strauss” (plaintiffs) and “the counsel that they would only be given five minutes to ques- the complainant’s credibility was the paramount issue, the Rodriguezes” (defendants). The original agree- tion each panel of prospective jurors. After the first round of erroneous preclusion of such testimony could not be con- ment contemplated that the Rodriguezes would jury selection, defense counsel objected to the limitation sidered harmless. continue working at the premises involved in the and argued that five minutes was not enough time to ques- In People v. Gibson, 17 N.Y.3d 757 (2011), the Court of business, and the dispute reached a head when tion 16 seated panelists in a case that was both complex and Appeals clarified its prior holdings regarding the right to Strauss changed the locks and excluded the serious. In support of this argument, counsel cited several counsel and the definition of interrogation. In Gibson, the Rodriguezes from the premises. topics that he had hoped to discuss with the prospective defendant was suspected of committing a robbery but was Strauss sued for a declaratory judgment that the jurors but had been unable to do so due to the time con- taken into custody for a bench warrant in an unrelated case Rodriguezes had no interest in the premises, and straints imposed. in which his indelible right to counsel had attached. When moved for a preliminary injunction excluding In reversing Steward’s conviction, the Court of Appeals the defendant asked to speak with a detective whom he them. The motion was granted. The Rodriguezes held that while Criminal Procedure Law § 270.15 (b) does knew, the detective brought him to his office and offered served pleadings asserting claims for fraud, con- not contain guidelines regarding the duration of voir dire, him a cigarette in the hope that he could obtain a sample of version and tortious interference with contracts and leaves the scope of counsel’s examination of prospec- his DNA. While the defendant spoke to the detective about with various other entities, improper accounting tive jurors to the trial judge’s discretion, it does require that a problem he was having with his landlord, he smoked the and wrongful termination, but that denied the exis- counsel “be afforded a fair opportunity to question the cigarette and then extinguished it in an ashtray. The detec- tence of a contract and asserted no claim for prospective jurors as to any unexplored matter affecting tive then took the cigarette butt and had it tested. DNA from breach of contract. Strauss successfully moved to their qualifications”. Under the particular circumstances in the cigarette butt was found to match the DNA left on an dismiss these claims, on the grounds that the this case, the Court found that a five-minute time limit per article of clothing believed to have been worn by the perpe- Rodriguezes’ claims really sounded in breach of round was unduly restrictive and that the defendant had suf- trator of the robbery under investigation. contract, since the essence of the purported fraud fered prejudice as a result of the restriction. On appeal, Gibson argued that his custodial questioning claims was that Strauss entered into the merger In People v. Fernandez, 17 N.Y.3d 70 (2011), a case by the detective and the collection of his DNA violated his agreement with no intent of performing it. involving multiple sex offenses, the complainant, who was indelible right to counsel and should have been suppressed. Strauss filed a note of issue. The Rodriguezes 11 years old at the time of trial, testified that the defendant, But the Court of Appeals held that the detective’s offer of a then moved to amend their pleadings to assert her uncle had engaged in numerous sexual encounters with cigarette to the defendant was not reasonably likely to elicit claims for breach of contract, but the motion was her over a four-month period. Defense counsel sought to an incriminating response, and that the defendant’s volun- denied, apparently as untimely. The Rodriguezes elicit testimony from the defendant’s parents that the com- tary deposit of DNA on the cigarette was not a communica- filed a notice of appeal from this order, but neither plainant had a reputation for untruthfulness. However, the tive act that disclosed the contents of his mind. Therefore, perfected nor formally withdraw it, choosing trial judge precluded such testimony on the ground that ______instead to pursue an appeal from any adverse final Continued On Page 6 judgment. After a bench trial, the trial court held in favor of Strauss, declaring that Strauss was entitled to possession of the premises and that the Rodriguezes had no interest in it. The Rodriguezes Season of Giving now appealed from this judgment, asserting that the appeal brings up for review the prior orders dismissing their original pleadings and denying Pictured here (left to right) Hon. Bernice D. Siegal – leave to amend. President, Queens County Women’s Bar Association; Recall that CPLR 5501 (a)(1) provides that an Lawrence M. Litwack, Esq. – President, Brandeis appeal from a final judgment brings up for review Association; Sandra M. Munoz, Esq. – President, any intermediate order or judgment which “neces- Latino Lawyers Association of Queens County; sarily affects” the final judgment. Did the order Richard Michael Gutierrez, Esq. – President, Queens dismissing the Rodriguezes pleadings necessarily County Bar Association; Hon. Maureen A. Healy affect the final judgment? No, said the First –President, St. John’s Law School Alumni Association, Department. The Court adopted a suggestion made Queens Chapter; Thomas J. Principe, Esq. – President, by Professor Siegel, that a helpful question in mak- St. John’s Law School Alumni Association. ing this determination is whether or not reversal of ______Continued On Page 7 INSIDETHISISSUE Criminal Law Cases ...... 1 Editor’s Note: The Ethical Roots of CPLR Update - 2011 ...... 1 Our Profession ...... 4 The Docket ...... 2 Marital Quiz ...... 5 Mandatory E-Filing ...... 2 Poetry Corner ...... 6 President’s Message...... 3 Photo Corner: Holiday Party ...... 8-9 History Corner: Almanac Murder Trial . . 3 Overcoming Bluster and Bull ...... 10 2 THE QUEENS BAR BULLETIN – JANUARY 2012

THE DOCKET ... being the official notice of the meetings and programs listed below, which, unless otherwise noted, will be held at the Bar Association Building, 90-35 148th St., Jamaica, New York. More information and any changes will be made available to members via written notice and brochures. Questions? Please call (718) 291-4500. PLEASE NOTE: The Queens Bar Association has been certified by the NYS Continuing Legal Education Board as an Accredited Legal Education Provider in the State of New York.

CLE Seminar & Event Listing February 2012

Monday, February 13 Observation of Lincoln’s Birthday - Office Closed Monday, February 20 President’s Day - Office Closed Tuesday, February 21 Depositions-From the Plaintiff’s and Defendant’s Point of View

March 2012 Tuesday, March 6 New Image and E-Verify Systems at St. John’s Law School Tuesday, March 13 Commercial Leasing Wednesday, March 14 Basic Criminal Law - Pt 1 Monday, March 19 Stated Meeting - Social Media inYour Law Practice Wednesday, March 21 Basic Criminal Law - Pt 2 Tuesday, March 27 Article 81/Guardianship Training for the Layperson - 2:30-5:00 pm

April 2012

Friday,April6 GoodFriday-OfficeClosed Monday,April 16 Judiciary, Past Presidents & Golden Jubilarians Night Wednesday, April 18 Equitable Distribution Update Sunday,April 29 ARTtorneysArt Show at Queens College 3:00-6:00 pm 2011-2012 May 2012 Officers and Board of Managers Thursday, May 3 Annual Dinner & Installation of Officers of the Tuesday,May15 CPLRUpdateSeminar Queens County Bar Association Thursday,May17 MatrimonialLawCLE President - Richard Michael Gutierrez CLE Dates to be Announced President-Elect - Joseph John Risi, Jr. Vice President - Joseph F. DeFelice Civil Court Secretary - Paul E. Kerson Elder Law Treasurer - Joseph Carola, III Insurance Class of 2012 Class of 2013 Class of 2014 Supreme Court & Torts Section Jennifer M. Gilroy Gregory J. Brown Chanwoo Lee Richard Harris Lazarus Tracy Catapano-Fox Timothy B. Rountree Gary Francis Miret Mona Haas Zenith T. Taylor Steven S. Orlow Gregory J. Newman Lourdes M. Ventura NEW MEMBERS James R. Pieret Guy R. Vitacco, Jr. Clifford M. Welden Arthur N. Terranova . . . Executive Director Evelyn Ryan Britt Xian-Ming Lei QUEENS BAR BULLETIN Patrick Joseph Campbell Joseph Milano EDITOR - Paul E. Kerson ([email protected]) Neil B. Galfunt Nadia Munoz ASSOCIATE EDITORS Stuart Haas Morghan Leia Richardson Richard N. Golden ([email protected]) Anupama Karumanchi Chi Wang Stephen D. Fink ([email protected]) Ilana Landecker Jacob Zev Weinstein Gary C. DiLeonardo ([email protected]) Manuel Herman ([email protected]) Ilene J. Reichman ([email protected]) If you or someone you know is having a problem with alcohol, Publisher: Send letters and editorial copy to: drugs or gambling, we can help. Long Islander Newspapers, Queens Bar Bulletin, 90-35 148th Street, To learn more, contact QCBA LAC for a confidential conversation. LLC, under the auspices of Jamaica, New York 11435 Confidentiality is privileged and assured under Section 499 of the Queens County Bar Judiciary Laws as amended by Chapter 327 of the laws of 1993. Association. The Queens Editor’s Note: Articles appearing in the Queens Bar Bar Bulletin is published Bulletin represent the views of the respective authors Lawyers Assistance Committee and do not necessarily carry the endorsement of the monthly from October to Confidential Helpline 718 307-7828 Association, the Board of Managers, or the Editorial May. All rights reserved. Board of the Queens Bar Bulletin. Material in this publication may not be stored or repro- duced in any form without “Queens Bar Bulletin” (USPS Number: 252-520) is published monthly except permission. ADVERTISETO June, July, August and September by Long Islander Newspapers, LLC., 149 Main Street, Huntington, NY 11743, ©2012 THELEGALPROFESSION under the auspices of the Queens County Bar Association. The Queens County Entered as periodical postage paid at the Post Office at in Queens, New York & Suffolk Counties Bar Association. Jamaica, New York and additional mailing offices under the Advertising Offices: Act of Congress. Postmaster send address changes to the Long Islander Newspapers, Queens County Bar Association, 90-35 148th Street, Jamaica, Call 631-427-7000 149 Main Street, Huntington, NY 11435. New York (631) 427-7000 THE QUEENS BAR BULLETIN – JANUARY 2012 3 PRESIDENT’S MESSAGE

Several weeks ago, I wrote about the Returns, against court fer otherwise the referee is To militate the unfairness of this law, decision of the New York City Department appointed referees. liable for the payment of perhaps the court can add language to the of Finance to commence the enforcement Currently the law treats refer- penalties and interest. Order of Reference that would afford ref- of penalties and interest against referees ees selling properties at foreclo- Customarily, once the erees’ protection. The exact language to for late filing of Real Property Transfer sure, as grantors, subject to the deed and the transfer docu- be used is within the province of the Taxes. timely filing of the returns and ments are signed, the referee court. However, the Association is willing Recently, the Association received a let- the payment of taxes. looses any further control over to assist the court in formulating language ter mailed to the Honorable Fern Fisher, Unfortunately, the position the transaction. Reliance is that will hopefully resolve this problem. Deputy Chief Administrative Judge of the taken by the Department of placed upon the purchaser, For those referees who decide to accept State of New York, regarding the responsi- Finance concerning enforce- usually the lending institution an appointment from the court, the use of bility of referees for the late filing of the ment of penalties and interest, or its agents to timely file the a hold harmless agreement might also be RPTT. against referees places them in a RPTT. helpful. All members of the Association, with an precarious financial position Rihard M. Gutierrez As an arm of the court, Although, a hold harmless agreement email address that had been given to staff, and creates a significant problem for the referees should not be put in such an unten- might protect referees somewhat, it does were sent a copy of this letter. For those court system. able position. Moreover, as of January 1, not prevent the Department of Finance members who have not received this letter Referees who receive an appointment or 2012, the Department of Finance will com- from seeking recourse against them, should and would like a copy, please contact the an Order of Reference must now decide mence enforcement of late filings and have there be a breach of the agreement. Association and a copy will be sent to you. initially, whether to accept or reject the the right to seek a judgment against refer- If any members have any suggestions on In this letter, Michael A. Cardozo, appointment. However, once an appoint- ees, even though they did nothing wrong in how to resolve this problem, please contact Corporation Counsel of the City of ment is accepted, and a sale occurs, if the causing the untimely filing of the RPTT. the Queens County Bar Association or you New York, states the position of the referee signs the deed, it will obligate him Until there is a change in the law, the can email me at [email protected]. Department of Finance with regards to or her to make sure there is compliance court should consider ways it can protect the enforcement of penalties and inter- with the law. Consequently, the RPTT must and prevent referees from being subject to Richard M. Gutierrez est on late filed Real Property Tax be filed within thirty (30) days of the trans- the harshness of this law. President

HISTORY CORNER THE ALMANAC MURDER TRIAL AND JUDICIAL NOTICE By: STEPHEN DAVID FINK, ESQ. case even though he knew Armstrong to only matter that Lincoln managed to it has been held that a trial judge may take be guilty. Regardless, Lincoln put aside raise during the trial. In fact the trial judicial notice of facts within her personal A lawyer without history or literature is a any of his misgivings and prepared the judge later stated that he felt it was actu- knowledge which were derived from an mechanic, a mere working mason; if he case for trial. ally the other issues that led to the jury to unrelated case that came before her. See, possesses some knowledge of these, he acquit. Specifically, before recalling Sam & Mary Housing Corp. v. Jo/Sal may venture to call himself an architect. The Trial Allen to discredit him, Lincoln had Market Corp. 100 A.D. 2d 901, 474 —Sir Walter Scott The trial was held on May 8, 1858 in the called a witness who testified that the N.Y.S. 2d 786 (2d Dept. 1984). However, local Courthouse in Beardstown, Illinois. weapon was his and did not belong to a Court may not take judicial notice, sua Lincoln the Lawyer You can still see the actual Courtroom Duff Armstrong. Lincoln had also used a sponte of the applicability of a Statute of By 1858 Abraham Lincoln was well where the trial was held. The town is doctor as an expert witness to testify that Limitations if that defense has not been known as one of the best lawyers in about 45 miles northwest of Springfield in the blow to the back of Metzger’s head raised. See, Paladino v. Time Warner Illinois. He had tried many cases but his the heart of Illinois farm country. The could not have caused the wound at the Cable of New York City, 16 A.D. 3d 646, criminal experience was somewhat limit- famous Courtroom is on the second floor. front of the victim’s head. 973 N.Y.S. 2d 63 (2d Dept. 2005). Judicial ed. His trials included a number of murder In fact, the reader may want to see the Finally, Lincoln delivered his closing notice is applicable in trial Courts as well cases but he had lost the majority of them. Henry Fonda movie Young Lincoln which argument (in shirt sleeves) basically per- as in the Appellate Division. See, Khatibi As an attorney Lincoln was also known generally depicts the trial. sonally vouching for Duff Armstrong. v. Weill, 8 A.D. 3d 485, 778 N.Y.S. 2d 511 for only taking cases in which he believed The prosecution’s case rested upon the This probably could not be done in a crim- (2d Dept. 2004). in the innocence of his client. However, testimony of its key witness, Charles inal trial today. Lincoln was well known in As a general matter scientific tracts are the defense of William “Duff” Armstrong Allen. He testified that on the night of the this section of Illinois and his word carried excluded as books of inductive science. may have been an exception. murder he saw Duff Armstrong strike great weight. They are not admissible at trial as affirma- Metzger under the light of a full moon. tive evidence. See, Foggett v. Fischer, 23 Lincoln Takes the Case During this testimony, eyewitnesses in the Later Events App. Div. 207, 48 N.Y. Supp. 741 (2d As a young man in the early 1830’s and Courtroom state that Lincoln seemed obliv- After securing the acquittal of Dept. 1897). However, books or publica- before he was a lawyer, Lincoln had lived ious as to what was happening all about him. Armstrong, Lincoln went on to bigger and tions that contain ascertained facts rather in the frontier town of New Salem, Illinois. He seemed bored and his gaze was fixed better things. The trial was followed by his than opinions, or which by long use are One day a local bully by the name of Jack upon one spot on the blank ceiling. unsuccessful run for the Senate against accepted as standard and unvarying Armstrong challenged him to a wrestling However, when it was his turn to cross Stephen A. Douglas. In fact, one of the authority may be utilized. An almanac match. Lincoln won the match and earned examine, Lincoln asked Allen several issues in that campaign was whether falls within this exception. It is simply an Armstrong’s respect. He became close questions to establish the precise details of Lincoln had altered the almanac that was aid from which judicial notice can be friends of Armstrong and his wife Hannah. the night in question. Allen testified that used at the trial. This charge was certainly taken. He would pay visits to the family and there was a full moon and that from a dis- unfounded. Just as in the famous Lincoln trial, knew their son William (“Duff”). tance of about 150 feet he saw Armstrong The reader is referred to Moonlight: Courts today can take judicial notice of Years later, when Duff Armstrong was kill Metzger. Abraham Lincoln and the Almanac the rising or setting of the sun or moon on accused of murder, Lincoln wrote Hannah Trial, by John Evangelist Walsh. While any particular day. See, e.g., Brown v. Armstrong (Jack had passed away) offer- Judicial Notice the book is certainly a helpful resource, it McCullough, 240 App. Div. 381, 270 N.Y. ing to take the case for free. Once the direct testimony was complet- has been criticized for being overly nega- Supp. 37, 39 (1st Dept. 1934). It is error ed Lincoln seemed to drop his bored tive as toward Lincoln. not to allow reference to an almanac to The Charges veneer. He asked the Judge permission to establish these times. See, e.g., Auerbach The facts of the case are well docu- enter an 1857 almanac into evidence. Judicial Notice and New York law v. Stein, 162 Misc. 102, 293 N.Y. Supp. mented. On the evening of August 29, Permission was granted. Allen was So more than 150 years later, what does 545 (App. Term, 1st Dept. 1936). Also, 1857, Armstrong and Jack Norris savage- recalled and Lincoln had him read the NewYork say about judicial notice and the see, Affronti v. Crosson, 95 N.Y. 2d 713, ly beat James Metzger while all three were almanac entry for August 29, 1857, the use of an almanac. 723 N.Y.S. 2d 757, 761 (2001) [Census quite drunk. Metzger was a large brawny date of the assault. The almanac estab- Judicial notice has a long history in data from statistical yearbooks can be man and during the fight both Norris and lished that in fact even if there had been a New York. See e.g., Swinnerton v. The relied upon for purposes of taking judicial Armstrong allegedly struck him with a moon, based upon its position, by 11 Columbian Insurance Company , 37 N.Y. notice]. club and a make shift blackjack - type o’clock it would have been unlikely that 174, 10 Tiffany 174 (1867) [the Courts To the practitioner, under New York weapon called a “slung-shot.” Metzger Allen could see anything from 150 feet are bound to take judicial notice of the Law the result should be the same since suffered severe head injuries and died two away. During their deliberations the actual existence of a Civil War in 1861]. Lincoln presented the evidence more than days later. Armstrong and Norris were jurors were allowed to look at the The Courts “. . . will generally take 150 years ago. The almanac has long been arrested and charged with murder. Norris almanac to confirm their opinion that the notice of whatever ought to be generally a “tool” that the New York lawyer can was quickly convicted of manslaughter witness had lied. known within the limits of their jurisdic- refer to for various purposes. See, based upon eyewitness testimony. tion.... Id. at 189. Montenes v. Metropolitan Street Railway Enter Lincoln. There is some historical Other Issues During Trial Even today, the principles of judicial Co., 77 A.D. 493, 78 N.Y. Supp.1059 (2d controversy whether Lincoln defended the The use of the almanac was not the notice are liberally followed. For example, Dept. 1902). 4 THE QUEENS BAR BULLETIN – JANUARY 2012 EDITOR’S NOTE The Ethical Roots of Our Profession By Paul E. Kerson wide. One of its stanzas is Or of thine friend’s were. inspired respect for the personality of often reprinted as a poem, Each man’s death diminishes others and their inalienable rights; even We are a profession, not a business. “For Whom the Bell Tolls.” me, as injustice is the most flagrant manifes- While we must collect legal fees to But much of the rest of this For I am involved in mankind. tation of disrespect for the personality of remain open and support ourselves and poem, actually a book chap- Therefore, send not to know others.” (Hertz, p. 821) (emphasis in our families, the collection of legal fees is ter, is worth reading and sav- For whom the bell tolls, original). not the goal. ing, especially when a client, It tolls for thee.” It is 2012. Many readers have given up Legal fees are like gasoline for your car. adversary or judge has given on Organized Religion. Then we must turn You bought the car to take you and your you an especially hard time: (Henry Alford, “The Works of to the thoughts of the (“G-dless”) five- passengers all over the map. You did not “Perchance he for whom John Donne,” Vol. III, London, time Socialist Party candidate for buy the car for the sole and exclusive pur- this bell tolls may be so ill as John W. Parker Co. 1839, p. President, Eugene Victor Debs (1855- pose of putting gasoline in it. You must that he knows not it tolls for 574-5) 1926). Debs was President of the Paul E. Kerson have gasoline to go anywhere, but the him… American Railway Union in 1893, and gasoline itself is not the goal. The church is catholic, universal, A short 312 years later, in 1936, Rabbi was imprisoned in a Federal Penitentiary So it is with law. The most thoughtful so are all her actions; all that she J.H. Hertz, the Chief Rabbi of the British from 1918-21 for publicly opposing among us was John Donne. He prepared for does, belongs to all. When she bap- Empire, wrote his widely distributed American involvement in World War I. his legal career at both Oxford and tizes a child, that action oncerns me; Biblical Commentary, “Pentateuch and Debs wrote his philosophy, which match- Cambridge Universities, and at Thavie’s Inn for that child is thereby connected to Haftorahs,” the leading book used in es John Donne’s and Rabbi Hertz’s and Lincoln’s Inn, both leading British Law thatheadwhich is my head American synagogues for generations. thought for thought: Schools. Donne did not receive degrees too, and ingraffed into that body, Rabbi Hertz’s interpretation of from Oxford and Cambridge because these whereof I am a member. Deuteronomy 16:20 (“Justice, justice, “While there is a lower class, were Anglican institutions, and he was of And when she buries a man, that action thou shalt follow”) matches John Donne’s I am in it, the Catholic faith. Before separation of concerns me; all mankind is of one author, “For Whom the Bell Tolls” idea for idea: While there is a criminal element Church and State, Universities were and is one volume; when one man dies, “To understand the idea of justice in I am of it; allowed to pull this kind of thing. one chapter is not torn out of the book, Israel we must bear in mind the Biblical While there is a soul in prison, I am Donne was elected to Parliament twice, but translated into a better language; and teaching that man is created in the image not free.” in 1601 and 1614. He joined the Anglican every chapter must be so translated… of G-d; that in every human being there is Church, and was appointed Dean of St. a Divine spark; and that each human life is 17th century, 20th century, 19th century, Paul’s Cathedral in London in 1615. But No man is an island, entire of itself, sacred, and of infinite worth. Catholic, Anglican, Jewish, Socialist – the Donne’s most important contribution Every man is a piece of the continent, In consequence, a human being cannot idea is just the same – we are all in this came from his writings. One of the chap- a part of the main; be treated as a chattel, or a thing, but together. All people we come in contact ters of his 1624 book, “Devotions Upon If a clod be washed away by the sea, must be treated as a personality; and, as a with – clients, adversaries, office staff, Emergent Occasions” became one of the Europe is the less. personality, every human being is the judges and court personnel – are worthy of best statements of the philosophy behind As well as if a promontory were. possessor of the right to life, honour, and our respect, our attention and our best the legal profession, and famous world- As well as if a manor of thine own the fruits of his labor. Justice is the awe- efforts to put more justice in the world.

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BY GEORGE J. NASHAK JR.* joint tenants with right of survivorship, The New York Center for does their marriage transform the joint Question #1 - Did tenancy into tenants by the entirety? Neuropsychology the Supreme Court improvidently exer- Your Answer - & Forensic Behavioral Science cise its discretion in, ______sua sponte, enjoining ______a party from bring- ______ing any further ______Dr. N.G. Berrill, Director motions without the ______permission of the ______George J. Nashak, Jr. court? ______Your answer - ______Question #7 - Can the rights of the parties [ Over 25 Years \ ______in Question 6 be resolved in a matrimoni- ______al action or is a partition and recoupment ______action necessary? ______Your answer - Providing Consultation to Attorneys ______Question #2 - May the court properly ______& the Courts on Psycho-legal Matters appoint a parenting coordinator to mediate ______between parties and oversee the imple- ______mentation of their court-ordered parenting ______plan? ______• Criminal Cases: Competency Issues, Criminal ______Your answer - ______Responsibility, Extreme Emotional Disturbance, Risk ______Questions #8 - If a so-ordered stipulation Assessment, Sex Offender Workups & Dispositional ______of settlement does not contain the specific ______recitals mandated by CSSA, are the provi- Planning ______sions, concerning basic child support pay- ______ments. “add-ons” for child care and unre- ______imbursed health care expenses enforce- ______able? • Matrimonial & Family Court Cases:

Question #3 - May a court delegate to a Your answer - Custody/Visitation, Neglect/Abuse, Termination, parent coordinator the authority to resolve ______issues affecting the best interests of the ______Delinquency, Family Violence, & Adoptions children? ______Your answer - ______• Civil Cases: Competency Issues, Head Trauma, ______Sexual Harassment, Discrimination, Immigration, ______Question #9 - Does an appeal lie from an & Post-Traumatic Stress Disorders ______order entered upon the consent of the ______appealing party? ______Your answer - Question #4 - In a visitation proceeding, ______may a court order a parent to undergo ______Comprehensive Diagnostic & counseling or treatment? ______Your answer - ______Treatment Services ______Question #10 - Is it necessary to have a MAIN OFFICE ______pension valued, if the party seeking part of 26 Court Street, Suite 1711, Brooklyn, NY 11242 ______the pension is not asking for an immediate ______payout? 718-237-2127

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He is ______a member of the firm of Ramo Nashak WWW.NYFORENSIC.COM Brown & Garibaldi LLP Question # 6 - If parties acquired title to [email protected] real property prior to their marriage as ANSWERS APPEAR ON PAGE 11 6 THE QUEENS BAR BULLETIN – JANUARY 2012 weapon focus, lineup fairness, lineup POETRY CORNER Criminal Law instructions, forgetting curve, post-event information, wording of questions, unconscious transference, simultaneous Cases versus sequential lineups, eyewitness con- Continued From Page 1 ______fidence issues and confidence malleabili- the Court agreed with the hearing court ty. Without a hearing, the trial court Coping that the detective had simply “capitalized denied the defense motion but invited on the situation that manifested itself counsel to “suggest ways to address, dur- One thing they failed through defendant’s own actions.” ing jury selection and in the final instruc- To teach in law school In People v. Santiago, 17 N.Y.3d 661 tions, the topic of a witness’s confidence”. Is how to stay calm (2011), the Court of Appeals reviewed a After reviewing its recent decisions And keep your cool trial judge’s preclusion of expert testimo- regarding the admission of expert testi- ny regarding eyewitness identification. In mony on eyewitness identification, the When dealing with people, Santiago, the defendant was charged with Court of Appeals reversed Santiago’s con- and there are all sorts - first degree assault for brutally attacking a viction and ordered a new trial. The Court Some frustrated and angry woman, who was a stranger, on a subway rejected the prosecution’s argument that And occasional good sports Robert E. Sparrow station. The victim described the perpe- the denial of such expert testimony was trator as a Hispanic male, 5’8” to 5’9” appropriate because the victim’s identifi- The client who arrives tall, with a mustache and goatee, wearing cation of the defendant was corroborated With a chip on his shoulder a cap that concealed his face “from the by the two eyewitnesses who also identi- Or one who brings middle of his top lip, down, and from the fied him at trial. Specifically, the Court His own inch thick folder top of his eyebrows up”. Two eyewitness- held that it was an abuse of discretion to es to the attack provided similar descrip- deny expert testimony regarding eyewit- The flirt who thinks tions to the police. Twelve days later, one ness confidence, confidence malleability, By her charm and wile of those eyewitnesses was shown a photo post-event information and unconscious She’ll successfully evade array containing the defendant’s photo but transference and that under the circum- An evidentiary pile did not make an identification. However, stances presented, the error could not be two days after that viewing, the victim deemed harmless. Of course, there’s many viewed the same photo array and identi- In People v. Ventura, 17 N.Y.3d 675 A “jailhouse lawyer” fied the defendant as the perpetrator of the (2011) , the defendant filed a timely notice Who knows more than you - attack. Two days after that identification, of appeal from his trial conviction but was What an annoyer! the victim identified the defendant in a deported from the United States by the lineup. That same day, the eyewitness Department of Homeland Security’s Occasionally, one is who had failed to make a photographic Immigration and Customs Enforcement Most gratified identification viewed the lineup as well. Bureau prior to the disposition of his When greeted by one Though he did not identify the defendant appeal. The Appellate Division then grant- Who is most satisfied at that time, he later asserted that he was ed the prosecution’s motion to dismiss the eighty percent sure that the defendant was appeal, reasoning that the defendant had And compliments you the perpetrator but that he had not identi- effectively forfeited his right to challenge On a job well done, fied him because he was concerned about his conviction because he was no longer making practice of law his immigration status. The next day, that under the control of the court. Almost fun. eyewitness was reading a Spanish-lan- The Court of Appeals reversed the guage newspaper in which he saw a pho- Appellate Division’s decision dismissing So, advice to clients - tograph of the defendant in handcuffs, Ventura’s appeal, holding that the “invari- you can yell and cuss, accompanied by police officers. able importance of the fundamental right But, for crying out loud Prior to trial, defense counsel filed a to an appeal ... makes access to interme- leave the lawyering to us! motion seeking to introduce expert testi- diate appellate courts imperative” and mony on the psychological factors affect- that “[a]s a matter of fundamental fair- Robert E. Sparrow, Esq. ing the accuracy of eyewitness identifica- ness, all criminal defendants shall be per- tion. Counsel informed the court that his mitted to avail themselves of intermedi- expert was prepared to testify on a variety ate appellate courts as ‘the State has pro- of topics including exposure time, cross- vided an absolute right to seek review in Laws Decline and racial and cross-ethnic inaccuracy, criminal proceedings’”.

Exhortation Need help with a case?

Political corporate contributions once limited and Involved with a matter in which you are unfamiliar? remiss Need some hearing/trial experience? Buttressed from legal restrictions, recalled from dubious mist Is lucre potential the current rule of law? Call us at: The Q.C.B.A. Mentor Committee’s Have we succumbed to avaricious wealth? Arnold H. Ragano Mentor Volunteer Program Young aspirants with ambitions earning yearning for free assistance!! No love for law, jingoistic fiery burning Desiring lucre in repressive stealth 718-291-4500 or Is this not a lecherous unremitting flaw? email us at: [email protected] Esoteric theories in legal dress abound Unrelenting to unashamedly expound We answer questions for free...... Projected audaciously although patently unsound. We offer assistance in practice and procedures......

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United we breach this exculpatory deceive To regenerate ideals we will ingeniously conceive. Who are we??? The QCBA Mentor Committee’s Mentor Volunteer Program. Arnold H. Ragano, Esq. Contact us at 718-291-4500 or [email protected]. THE QUEENS BAR BULLETIN – JANUARY 2012 7 arbitrator’s failure to consider an issue he b, the award should still not be vacated since the retaliation issue before the arbitrator, CPLR Update was statutorily required to consider. The the error was one of law. Supreme Court also regardless of the terms of the CBA. Where Court of Appeals held that the resulting ______found that § 75-b prohibited only those disci- the disciplinary action is taken as retaliation, Continued From Page 1 determination, even though supported by plinary actions taken solely as retaliation for it must be dismissed. Therefore, in ignoring the intermediate order would require reversal substantial evidence, nevertheless exceeded the whistle-blowing, and not those where, as the defense the arbitrator acted in excess of of the judgment. If it would, then it “neces- a specific limitation on his power, and so was here, there was evidence providing an inde- his powers and the award had to be vacated. sarily affects” the judgment, if not, not. subject to vacatur. pendent basis for the discipline. The Court noted the possibility that discipli- Applying this test, the First Department Petitioner was a Corrections Officer, who The Appellate Division majority agreed nary proceedings could be retaliatory even noted that while reversal of the intermediate was terminated for certain offenses related to that the arbitrator committed an error of where the employee is in fact guilty. The orders would give the Rodriguezes an avenue her conduct regarding other officers and law in deeming the retaliation claim issue under § 75-b is the existence of the of redress for their contract claims, the rever- employees. She claimed that the charges beyond his jurisdiction, but found that this retaliatory motive, and a separate inquiry sal would not reverse the judgment as to pos- were brought in retaliation for an earlier inci- was a mere error of law. There was a two- into the issue is required to fulfill the statu- session of the premises. dent in which she had reported a fellow-offi- judge dissent, which would have reversed tory purpose. Could they get around this by reviving the cer’s misconduct. She filed a grievance and on the ground that petitioner was entitled to long-inactive appeal from the order denying the matter went to arbitration. an explicit determination of whether the Calendar Practice: 90-Day Notices leave to amend? No, and here is where At the arbitration, petitioner argued that charges were in fact in retaliation for her Dismissals for failure to file a note of issue Matter of Aho comes in. They never perfect- the arbitrator was required to consider the past whistle-blowing. pursuant to CPLR 3216, cannot be automat- ed the appeal, and so would need an enlarge- retaliation defense, pursuant to Civil Service The Court of Appeals agreed with the dis- ic or had by mere ministerial entry in the ment of time in which to do so. Pursuant to Law § 75-b, which prohibits public employ- sent and reversed. Civil Service Law § 75-b records, held the Court of Appeals in Matter of Aho, however, once the final judg- ers from retaliating against whistle-blowers. prohibits retaliation against whistle-blowers, ______ment was entered they no longer had a right The arbitrator held that the terms of the and specifically allows the employee to raise Continued On Page 10 to appeal from the intermediate order. Collective Bargaining Agreement limited his Where, as here, the intermediate order does determination to the question of whether or not necessarily affect the final judgment, the not petitioner was in fact guilty of the offens- right to appeal terminates on entry of final es charged, and so precluded his considera- judgment whether or not they have substan- tion of the retaliation defense. He did indi- tial rights at stake and even if they have dili- cate that he would consider the question of gently pursued the appeal. The only way retaliation to the extent that it bore on credi- they can protect themselves is by obtaining bility of witnesses and, more vaguely, as it an order staying entry of the final judgment. bore on the overall question of petitioner’s The Appellate Division noted that the rule guilt or innocence. sometimes acts adversely to judicial econo- At the hearing, the respondent produced my, where the appellate court has expended substantial evidence that the petitioner had in resources considering the appeal, only to fact committed two of the offenses charged, have it terminated by a final judgment. The and that the penalty of termination was court recommended legislative attention to appropriate. The arbitrator found that the the issue. Leave to appeal to the Court of CBA allowed discipline only for “just Appeals has been granted, at least to the cause,” and only where the employer had extent of the affirmance of the judgment and made a “fair and objective investigation,” not otherwise. Whether enough of the appeal and where the action was “non-discriminato- remains to allow a reconsideration of Matter ry.” The agency action was therefore upheld. of Aho remains to be seen. This CPLR Article 75 proceeding fol- lowed, and Supreme Court concluded that Arbitration while the arbitrator had exceeded his powers In Matter of Kowaleski3 the issue was the by failing to consider Civil Service Law § 75- 8 THE QUEENS BAR BULLETIN – JANUARY 2012

PHOTO CORNER Holiday Party 2011

Arthur Terranova, Seymour James and David Adler Attendees at the Holiday Party

Caren Samplin, Hilary Gingold and Diana Gianturco Ilene Kass, Susan Borko and Annamarie Brown

Joseph Levin, Tom Principe and Joe DeFelice

Photos by Walter Karling THE QUEENS BAR BULLETIN – JANUARY 2012 9

PHOTO CORNER December 15, 2011

Margaret Crowley, Hon. George Heymann and Briana Heymann Richard Spivack, Sue Borko, Yvette and Richard Gutierrez

Sadatu Salami-Oyakhilome and Elvis Oyakhilome Sandy Munoz, Larry Litwack, Hon. Bernice Siegal and Bernard Vishnick

Sasha displaying the gifts that our generous members donated

Photos by Walter Karling 10 THE QUEENS BAR BULLETIN – JANUARY 2012 Overcoming Bluster and Bull in the Courtroom BY: THOMAS F. LIOTTI* Rule 7 - Remember these laws - Rule 12 - Do the Stations of the ing an ass of themselves. Tell the media that Cross on your knees at St. your adversary plans to moon the judge. You’ve seen it. You have heard it. You Murphy’s Law - Whatever Patrick’s Cathedral the day before cannot believe that it was said, but it was. can go wrong will, unless the the start of your trial. It worked Rule 22 - Ask the judge to appoint a psychi- You have had to dig your way out of it or court grants your application for Imelda Marcos. atrist to examine your adversary. Tell the wear waders to get through it. Your meter to adjourn. Failing that, ask court that it should be done in-patient. has gone off. You want to give your adver- for an early lunch or recess. Rule 13 - Have your family priest sary a lie detector exam or sodium Failing that, ask for a bath- or rabbi sit in the front row behind Rule 23 - Tell the judge that your adversary Pentothal, “the truth serum.” He really room break. you together with your father, needs a guardian appointed. should star in the sequel to Liar, Liar. He mother, spouse and infant children. shoots from the hip. He gives new meaning The Peter Principle of Law Rule 24 - Tell the court that you have been to the phrase “loose cannon” or “loose lips - Everyone reaches their high- Rule 14 - Get paid first. bitten by a Tse Tse fly and that is why you sink ships.” est level of incompetency. Thomas F. Liotti cannot stay awake during your adversary’s Rule 15 - Get paid second. legal argument. Rule 1 - Count to ten, slowly, before letting Newton’s Third Law - For every action your blood pressure rise to unacceptable lev- there is an opposite and equal reaction or Rule 16 - If strong on the law, pound the law. Rule 25 - Tell the judge that your adversary els. Breathe out, breathe in. it’s payback time. If strong on the facts, pound the facts. If suffers from a fatal disease - foot in mouth. weak on both, pound your feet. Rule 2 - Try to keep smiling. It’s the only Parkinson’s Law - Work expands Rule 26 - Ask the judge whether she has way you will get through it. according to the amount of time in which Rule 17 - Wait for Mr. Green. heard enough and whether you really need to you have to complete it. Therefore, bill by say anything? Try: “Your Honor, thank you Rule 3 - Say good morning, Your Honor. the nano second. Rule 18 - Avoid ad hominem comments. very much, we’ll rest on our papers.” Instead, point with the middle finger. Rule 4 - While smoke is coming out of your Rule 8 - Since contempt means the willful Rule 27 - Instead of oral argument say: ears, listen to your adversary, take notes and disobedience of a lawful court order, keep Rule 19 - Wear a crash helmet, riot shield and “Have a great weekend, Your Honor.” order the minutes. Decide whether to turn saying that you did not know that it was an flak jacket to court. Bring masking tape and your hearing aids up, down or to leave them order, that you did not understand it or hear it. a straitjacket for your adversary. Rule 28 - Put your adversary’s name plate at home. where the judge’s should be and vice versa. Rule 9 - If ever asked to describe your adver- Rule 20 - Report to security that your adver- Rule 5 - Check the docket number to make sary simply say: res ipsa loquitur. sary is a crazy person and they should have Rule 29 - When your adversary is not look- sure that your adversary is talking about your extra personnel in the courtroom and alert ing, put crazy glue under his legal pads, case. Rule 10 - If your adversary is speaking in the judge. Inform them that they may need books, pens and on his seat. tongues or quoting foreign law, read from the nets and poles to subdue him. You have Rule 6 - Try to remember why you are there. Bible. heard that he is on medication but not taking Rule 30 - Give your adversary a present of Clue - If your case is not on the calendar, it. They’ll need extra handcuffs, shackles Kaopectate on the record. leave even if your adversary is speaking of Rule 11 - As your adversary argues with the and guns drawn. you. judge, practice bowing, scraping and groveling. *Thomas F. Liotti is an attorney with offices Rule 21 - The media will cover anyone mak- in Garden City, New York.

by the court, or whether or not the court dismissal. The Court of Appeals has held, in The plaintiffs will, however, at least have the CPLR Update issues its notice in an order. Baczkowski v Collins Const. Co.,9 and Di opportunity to be heard, and to try to show The Court of Appeals noted that “a minis- Simone v Good Samaritan Hosp.,10 that ______that dismissals should not have resulted. Continued From Page 7 terial dismissal of the action without benefit CPLR 3216 is “extremely forgiving” of liti- Last year, the First Department decided Cadichon v Facelle.4 of further judicial review” would be at vari- gation delay. The courts are authorized to Umeze v Fidelis Care N.Y.,11 one of those Last year, this Update reported an earlier ance with the language of CPLR 3216. The dismiss under that provision, but are never decisions which is interesting only for the decision of the Court of Appeals in this statute allows the trial court, on its own required to do so. Where the plaintiff can dissent it provoked. Defendants had moved to case.5 Supreme Court had served a CPLR motion, to dismiss the action. Where there is show a reasonable excuse for delay and a dismiss the action, pursuant to CPLR 3216, 3216 demand upon plaintiff’s counsel, and only a ministerial entry of a dismissal, how- meritorious claim, the courts are prohibited for failure to file a note of issue after being the time to file a note of issue had expired ever, there has been no motion. Likewise from dismissing the action. If the court- served with a 90-day notice. Plaintiff pro se with no note being filed. The problem was CPLR 3216 (b)(3), in setting forth the con- issued 90-day notice is regarded as setting an was able to show sufficient merit and justifi- that there was no actual order dismissing the tent of the 90-day notice, requires a warning automatic dismissal in motion, the plaintiff is cation for the delay, as well as lack of intent complaint. Supreme Court apparently that the failure to file the note of issue will be deprived of his opportunity to show why dis- to abandon the action, to satisfy the trial court viewed the dismissal as automatic. From the “basis for a motion. . .for dismissal”. A missal should not result until the action is and the Appellate Division majority. what, then, could the plaintiff appeal? ministerial dismissal is not the same thing as already dismissed. The two-judge dissent, by Justice Plaintiff of course moved to vacate the a motion, or a dismissal by order.8 Judge Graffeo, writing for himself and Catterson, would have required the plaintiff dismissal, which Supreme Court denied, and Moreover, the 2008 amendment to CPLR Judges Read and Smith, dissented on the to show justifiable excuse for the general the First Department affirmed, 3 - 2. 205(a) requires that a dismissal for neglect to grounds that the plaintiff never raised the five-year delay in the entire action. In sup- Normally, orders denying vacatur of dis- prosecute must be accompanied by a state- issue of there not having been a motion prior port of this, he cited to Sortino v. Fisher,12 a missals are not appealable, as not being final, ment by the judge, on the record, setting forth to dismissal. The dissent stressed that the test 1963 decision in which the First Department the final determination is the dismissal itself. the specific conduct resulting in the dismissal, on the motion to vacate the dismissal was the held that an action could be dismissed for The Court of Appeals initially dismissed the which must demonstrate a general pattern of same as would have been applied to the “general delay.” Sortino set off a tug-of-war appeal6 from the affirmance, on its own delay. While that statute was inapplicable motion to dismiss itself. Since plaintiff failed between the courts and the Legislature, in motion, for non-finality. Upon plaintiff’s here, since it became effective only after the to justify the vacatur, he could not have suc- which the Legislature enacted successively motion for reconsideration, the Court recog- events at issue, the necessity of “judicial cessfully opposed dismissal. The dissent blunter versions of CPLR 3216 to forestall nized that Supreme Court’s order was involvement” in the dismissal is emphasized. would have sustained what it described as “general delay” dismissals.13 ambiguous as to whether the dismissal The Court once again stated its insistence on “sua sponte” dismissals. This is apparently The Court of Appeals has now reversed would be automatic or not. The Court held adherence to judicial deadlines. “But where, meant to encompass ministerial entries of the Appellate Division and dismissed the that where it is unclear whether or not the as here, the case proceeds to the point where dismissal as well as ex parte orders. action.14 It did not, however, revive the “gen- dismissal was by automatic operation of a it is subject to dismissal, it should be the trial Going forward, there are two sets of issues eral delay” issue. Rather, in a brief review- statute, rule or court order, the order denying court, with notice to the parties, that should to be worked out. Where 90-day notices of-submissions memorandum, it relied on a motion to vacate is to be deemed the final make the decision concerning the fate of the reach their deadlines, courts will have to the current attitude towards CPLR 3216 appealable paper. Since here the affirmance case, not the clerk’s office.” determine the mode of notice to the parties, motions, requiring (1) a justifiable excuse for of the denial of vacatur had a two-judge dis- That last point should not be overlooked. and how they will be heard, before an actual the specific delay in failing to file a note of sent, the appeal lay as of right, and the Court The Court here goes beyond merely holding dismissal can be entered. issue pursuant to the 90-day notice, and (2) retained jurisdiction of the appeal. that an order is required for a 3216 dismissal. More importantly in the short run is the proof of a meritorious cause of action. The We noted last year that the appeal might It holds that the order can only be entered status of cases like this one, where the courts Appellate Division majority had found good serve as a vehicle for consideration of after “notice to the parties.” This implies that have employed the shortcut of a ministerial cause for the delay in the efforts by the pro whether CPLR 3216 dismissals were auto- the parties will have an opportunity to be dismissal instead of an actual order. In the se plaintiff to find counsel, which indicated a matic or not. There have been Appellate heard and, presumably, the opportunity to absence of an order, this case teaches that lack of intent to abandon the action. Clearly, Division opinions which approved the notion develop a record prior to dismissal. without an actual order there has been no this was not enough for the Court of that an automatic dismissal pursuant to Where it is the defendants who serve the actual dismissal, no matter what the clerk Appeals. CPLR 3216 results when a court issues a 90- 90-day notice, the action is not to be dis- may have entered in the records. In all such day notice and the plaintiff fails to comply.7 missed unless the defendants move for the cases, motions to reinstate the complaints Collateral Estoppel - Res Judicata It was submitted here that the CPLR says dismissal and the plaintiff has an opportuni- must be granted. That is not to say that a In Roddy v. Nederlander Producing Co. of nothing which should make a CPLR 3216 ty to show why dismissal is unwarranted. proper dismissal motion will not lie at that America, Inc.,15 the issue before the Court of dismissal “automatic,” whether the requisite That the notice has been served by the court point. Of course it will, and in the majority Appeals was whether a prior motion had 90-day notice is served by the defendants or should result in a lesser opportunity to avoid of cases will probably be properly granted. ______Continued On Page 11 THE QUEENS BAR BULLETIN – JANUARY 2012 11 Answers to Marital Quiz ANSWERS TO MARITAL QUIZ ON Question #3 - May a court delegate to a Question # 6 - If parties acquired title to the provisions, concerning basic child PAGE 5 parent coordinator the authority to resolve real property prior to their marriage as support payments, “add-ons” for child issues affecting the best interests of the joint tenants with right of survivorship, care and unreimbursed health care Question #1 - Did the Supreme Court children? does their marriage transform the joint ten- expenses enforceable? improvidently exercise its discretion in, ancy into tenants by the entirety? sua sponte, enjoining a party from bring- Answer: No, Silbowitz v. Silbowitz 2011 Answer: No, Bushlow v. Bushlow 2011 ing any further motions without the per- NY Slip Op 7026 (2nd Dept.). Answer: No, L.L. v. B.H. 2011 NY Slip NY Slip Op 7795 (2nd Dept.) mission of the court? Op 21316 (Sup. Ct. Nassau County Question #4 - In a visitation proceeding, Falanga J.) Question #9 - Does an appeal lie from an Answer: No, “While public policy gen- may a court order a parent to undergo order entered upon the consent of the erally mandates free access to the courts, counseling or treatment? Question #7 - Can the rights of the parties appealing party? (citations omitted) the record reflects in Question 6 be resolved in a matrimonial that the father forfeited that right by Answer: Yes, Matter of Smith v. Dawn action or is a partition and recoupment Answer: No, Matter of Polche v. Polche abusing the judicial process through vex- F.B. 2011 NY Slip Op 7062 (2nd Dept.). action necessary? 2011 NY Slip Op 8158 (2nd Dept.) atious litigation. (citation omitted) Scholar v. Timinisky 2011 NY Slip Op Question #5 - In a visitation proceeding, Answer: A partition and recoupment Question #10 - Is it necessary to have a 6226 (2nd Dept.) may a court order a parent to undergo action is unwarranted as the rights and pension valued, if the party seeking part of counseling or treatment as a condition of remedies can be decided in a matrimonial the pension is not asking for an immediate Question #2 - May the court properly future visitation or re-application for visi- action. L.L. v. B.H. 2011 NY Slip Op 21316 payout? appoint a parenting coordinator to mediate tation rights? (Sup. Ct. Nassau County Falanga J.) between parties and oversee the implemen- Answer: No, Felix v. Felix 2011 NY Slip tation of their court-ordered parenting plan? Answer: No, Matter of Smith v. Dawn F.B. Questions #8 - If a so-ordered stipula- Op 6821 (2nd Dept.) Answer: Yes, Silbowitz v. Silbowitz 2011 2011 NY Slip Op 7062 (2nd Dept.). tion of settlement does not contain the NY Slip Op 7026 (2nd Dept.). specific recitals mandated by CSSA, are

complaint upon him.18 Filing first, service tion to move to dismiss within 60 days of the from the pub, with Robert, Jr. as his passen- CPLR Update after. If the summons and complaint are serving the answer, since the objection was ger, in a vehicle owned by Kathleen 23 ______never filed, no action has been commenced, not to the manner of service. D’Agostino. Both Shawn and Robert, Jr., Continued From Page 10 and the complaint is subject to dismissal. As The error could not be excused under the were killed when the vehicle crashed into a given the plaintiff a full and fair opportunity set forth by the Court of Appeals in Harris v amended CPLR 2001, since the amendment tree. Both Shawn and Robert, Jr., were intox- to litigate the issue of the defendant’s negli- Niagara Falls, the defect is waivable, and is was specifically not intended to excuse a icated at the time. gence. Plaintiff had not been directly involved in fact waived if the defendant fails to assert complete failure to file the summons and This action was commenced by Robert, in the prior motion, and did not appreciate that an objection.19 complaint. Recall that the amendment was Jr.’s mother, Susanne Giglio, together with it might determine a crucial issue. In Goldenberg v Westchester County specifically intended to ameliorate so much Robert, Sr., against Napper Tandy and Plaintiff, a theatrical dancer, had been Health Care Corp.,20 the Court of Appeals of the Harris holding as required dismissal D’Agostino. The claims against Napper injured in a fall on stage allegedly due to reaffirmed that a plaintiff who manages to in the situation where the plaintiff had in fact Tandy were that the sale of alcohol to excess moisture from a dry ice machine used serve a summons and complaint without fil- filed the summons and complaint, but had Robert, Jr., was unlawful as he was a minor, to create a fog. Defendant Gershwin Theater ing them first cannot be saved by the 2007 not bought an index number specifically to and that it continued to sell alcohol to Shawn had moved for contractual indemnification amendment to CPLR 2001, which allowed start a new action.24 The legislative memo- while he was visibly intoxicated. The claim from plaintiff’s employer, Abhann correction of minor defects in the filing. randum in support of the amendments stated against D’Agostino was that she was liable Productions, on the claim that the machine Along the way, it reaffirmed that a defen- that it was in response to the determinations for Shawn’s operation of her vehicle, since as well as the stage floor were under dant who pleads affirmative defenses of lack of the Court of Appeals in Harris, as well as he had done so with her consent. Abhann’s exclusive control. The motion was of personal jurisdiction and the statue of in the cases harmonized by Harris: Matter of Napper Tandy’s answer was served, by granted on appeal.16 limitations has effectively objected to the Gershel v Porr,25 and Matter of Fry v Village mail, on plaintiffs’ counsel on May 2, 2007. On the present motion, Gershwin moved lack of filing. of Tarrytown.26 The intent of the amend- The answer included a cross-claim against to dismiss plaintiff’s claim on the theory that Plaintiff initially commenced a special ment was to avoid dismissals for “technical, D’Agostino and a counterclaim against the earlier determination established its lack proceeding for leave to file a late notice of non-prejudicial defects.” Clearly stated in Robert, Sr., for contribution. The court pre- of control over the machine and the floor, as claim. A complaint was attached to the peti- the legislative memorandum, however, was sumed, as may we, that the claim was that being res judicata, collateral estoppel and tion as an exhibit. The petition was granted, the intent not to excuse all mistakes. A com- Robert, Sr., was negligent in allowing law of the case. The Appellate Division and plaintiff served the notice of claim. plete failure to file within the limitations Robert, Jr., to consume alcohol, and in noted that the proper theory was law of the With the notice of claim plaintiff served a period continues to be dismissable, as is the allowing him to drive away in a vehicle driv- case, since res judicata and collateral estop- summons and complaint, not bearing any failure to file the appropriate initiatory en by Shawn. No reply to the counterclaim pel deal with preclusion after judgment. It index number. Plaintiff had not, in fact, pur- papers. “The purpose of this measure is to was served. held that the issue of Gershwin’s control chased an index number for the action.21 The clarify that a mistake in the method of filing, The action as against D’Agostino and over the machine and stage floor had been affidavits of service were filed, under the AS OPPOSED TO A MISTAKE IN WHAT Shawn’s estate was settled some 11 months apparent on the first motion, that plaintiff index number for the special proceeding. IS FILED, is a mistake subject to correction later, and the parties entered into a general had been given full notice and an opportuni- The complaint as served contained a cause of in the court’s discretion.”27 release in favor of D’Agostino and ty to be heard (on the appeal as well as the action for medical malpractice due to lack of The plaintiff here, having never filed the Shawn’s estate. The settlement was motion) and had chosen to “sit on his hands.” informed consent, and an allegation of con- summons and complaint at all, was not enti- approved by the Surrogate’s Court, and the That the first motion was addressed to con- tinuous treatment for a period of seven tled to the benefit of the amended CPLR proceeds were paid. tractual indemnification against Abhann and months, neither of which was in the com- 2001. The proposed complaint filed with the On June 5, 2008, Napper Tandy served a not to the dismissal of the complaint against plaint filed in the special proceeding. special proceeding, with no summons notice of motion for a default judgment on Gershwin, or that plaintiff might not have The defendant served an answer, which attached, did not suffice. the counterclaim against Robert, Sr. Note appreciated the effect of the order did not included defenses of lack of jurisdiction and Note that the mistake here differs from the that this is over 13 months after the service deprive him of the opportunity to litigate the statute of limitations. It does not appear that mistake made in Harris, which the amend- of the answer with the counterclaim, on May issue of control. It therefore affirmed either of these defenses were framed so as to ment does allow the court to excuse. The 2, 2007. Plaintiffs cross-moved to dismiss Supreme Court in granting summary judg- specifically assert that the action had not classic Harris mistake was to file a summons the counterclaim, since the motion came ment on a law of the case basis. been properly commenced. The defendants and complaint intended to commence the more than a year after the reply was due. The Court of Appeals reversed, and rein- waited until after the statute of limitations action, but to use an index number obtained Pursuant to CPLR 3215 (c), a complaint stated the complaint in a brief memorandum had expired, and then moved to dismiss. in a prior proceeding (as a proceeding for “shall” be dismissed as abandoned if the on review of submissions. The earlier motion Defendants purchased an index number for leave to file a late notice of claim) instead of plaintiff fails to move for a default judgment concerned third-party indemnification, a the action in order to make the motion. purchasing a new one. Under the amended within a year after default. matter in which the plaintiff had no interest. Supreme Court granted the motion and CPLR 2001, such a mistake is excusable. Napper Tandy disputed that its motion was He thus had no incentive to litigate the issue dismissed. The complaint filed with the spe- untimely. It claimed that the counterclaim at that time nor any notice that the issue cial proceeding did not suffice, since no Judgments was served on plaintiff’s attorney pursuant to might be conclusively determined against summons was filed, and the complaint dif- The Appellate Division, Second CPLR 303, and that therefore the time to him. Therefore, he did not have a full and fered from the one served in material Department has issued two major opinions on reply was 30 days, extended to 35 days by fair opportunity to litigate the issue of respects. The amended CPLR 2001 did not default judgments, one concerning the failure virtue of service having been made by mail. Gershwin’s negligence, and the law of the allow the court to excuse a complete failure to serve a reply to a counterclaim, the other on By this reasoning, the last day for service of case doctrine could not be invoked to pre- to file the summons and complaint. The default judgments obtained from the clerk. the reply was June 6, 2007; the plaintiff was clude him from litigating it now. Appellate Division affirmed,22 as did the Giglio v NTIMP, Inc.,28 presented the in default as of June 7, 2007; and the motion Court of Appeals. question of default judgments on counter- deadline was Monday, June 9, 2008, since Commencement of Action The affirmative defenses of lack of per- claims. June 7, 2008, was a Saturday. It argued that An action is commenced by filing a sum- sonal jurisdiction and statute of limitations Robert Giglio, Sr., his brother Shawn its motion, made on June 5, 2008, was there- mons and complaint.17 Once the action is were sufficient to preserve the objection to Giglio, and his son Robert Giglio, Jr. had fore timely. commenced, jurisdiction over the defendant the failure to file the summons and com- been drinking at Napper Tandy’s Pub, owned The Appellate Division disagreed. CPLR is acquired by serving the summons and plaint. The defendants were under no obliga- by the defendant NTIMP. Shawn drove away ______Continued On Page 12 12 THE QUEENS BAR BULLETIN – JANUARY 2012 Division refused to look behind the language the claimed meritorious defense. same that must be made on a motion to CPLR Update of the release to the details of the payments The court then considered whether the vacate a default judgment. ______made. The administrator of Shawn’s estate judgment was properly entered by the clerk Here, where the Supreme Court had found Continued From Page 11 was therefore entitled to dismissal of the under CPLR 3215. Even though the defen- that there was neither a reasonable excuse 303 does not apply to this action. Where a third-party complaint against her. dant had not raised the issue below, the for the default or a meritorious defense, and non-domiciliary plaintiff commences an Appellate Division held that he could argue the findings had been affirmed on appeal, action in the state, CPLR 303 operates to In Stephan B. Gleich & Assoc. v that the claim was not one for the clerk, since there was nothing left to do but conduct an make its counsel its agent for the service of Gritsipis,29 the Second Department consid- the issue was one of law only, which was inquest on the claims raised in the 1993 sum- process in any separate action between the ered the claims for which a default judgment apparent on the face of the record, and which mons with notice. parties. In such a case, CPLR 320 (a) states may and may not be entered by the clerk, could not have been avoided if raised prop- The court closed by noting that a plaintiff that an appearance in the separate action and the effectiveness of a default judgment erly in the first instance. who has asserted both sum certain and non- must be made within 30 days. Since Robert, improperly entered by the clerk. As noted, CPLR 3215 (a) allows the clerk sum certain claims is not completely fore- Sr., is in fact domiciled in New York, and Recall that CPLR 3215 (a), a default judg- to enter judgment where the claim is for a closed from applying to the clerk in the event resides in Farmingdale, his attorney was not ment may be entered by the clerk, without sum certain or for a sum which can be made of a default. The plaintiff is allowed to vol- an agent for the service of process in sepa- consideration by a judge, if the claim is for a certain by computation. This means that the untarily withdraw one or more claims before rate actions. It might also be noted that the sum certain, or a sum which may be ren- remedy is allowed where there can be no the answer is served or within 20 days of counterclaim does not constitute a separate dered certain by computation, and if proper doubt as to the amount due; that is, to liqui- service of its pleading, whichever is earlier.32 action, but is part of the main action. proof is submitted to the clerk, and if the dated and indisputable claims such as money Assuming that the plaintiff makes the appli- Therefore, the time for the reply on the application is made within one year after the judgments and negotiable instruments. Here, cation within that time, it can include in his counterclaim was 20 days, as required by default.30 the claim was for legal fees which were not affidavit of facts a statement of voluntary CPLR 3012 (a). The counterclaim having Plaintiff commenced this action by filing a set forth in a retainer agreement. If anything, discontinuance of the non-sum certain been served by mail on May 2, 2007, the summons with notice in the Supreme Court the claim sounded in quantum meruit, which claims.33 The clerk could then properly enter reply was due 25 days later, on May 27, on August 17, 1993. The summons with requires proof of (1) performance of servic- judgment on the sum-certain claims. If the 2007. No reply having been served, Robert, notice described the claim as being for es in good faith, (2) acceptance of the servic- plaintiff has not acted within that time, appli- Sr., was in default on the counterclaim on unpaid legal fees and disbursements, for es; (3) expectation of compensation; and (4) cation for leave to discontinue the non-sum May 28, 2007, and the deadline for a default unjust enrichment and on an account stated. the reasonable value of the services. To the certain claims would have to be made to the judgment was a year later, or May 28, 2008. Service upon the defendant was made, extent that the summons with notice alleged court, in which case the application for The motion, not made until June 5, 2008, according to the affidavit of service, by a claim for unjust enrichment, proof was default judgment might as well be made, too. was untimely. delivery to a person of suitable age and dis- required that (1) the defendant was enriched; There has been a statutory amendment Could the lateness be excused? It is clear cretion at the defendant’s place of business, (2) at the plaintiff’s expense, and (3) the which eases the plaintiff’s burden here. As that CPLR 3215 (c) applies to counterclaims followed by mailing to the defendant’s last defendant should not be allowed in equity part of a package of technical changes, the as well as complaints. The court noted the known place of business. There were follow- and good conscience to retain the amount Legislature has amended CPLR 3217 (a)(1) mandatory language of CPLR 3215 (c): the up mailings to the defendant’s last known claimed. These are both equitable claims, to extend the plaintiff’s time in which to failure to move for the default timely residence and place of business. The mail- which depend on there being no contract make a voluntary discontinuance.34 The vol- requires the court to dismiss the pleading to ings to the place of business were in between the parties. They are not for sums untary discontinuance may now be made at be dismissed as abandoned unless sufficient envelopes were marked “personal and confi- certain, and cannot properly be entertained any time before the responsive pleading has cause is shown. This requires a showing of a dential.” The defendant failed to appear or by the clerk on an application under CPLR been served, which means for purposes of reasonable excuse for the failure to move answer. 3215 (a). The claim for an account stated, discussion of this case the plaintiff may vol- timely, as well as of a meritorious cause of On January 7, 1994, plaintiff submitted to however, is based upon the defendant’s untarily discontinue the non-sum certain action. Here, Napper Tandy made no show- the clerk an affidavit of the facts constituting retention of billing statements and failure to causes of action at any time while seeking a ing of a reasonable excuse, focusing all of his claim, setting forth the defendant’s agree- object within a reasonable time. These allow clerk’s default judgment. So much of CPLR its arguments on the timeliness issue. ment to pay fees, the hours of work per- an inference that the recipient agrees with 3217 (a)(1) as refers to a 20-day limitation is Without a reasonable excuse, the lateness is formed by the various partners and associ- the statements as to the amount owed. An now restricted to cases where a responsive inexcusable and the court “shall” dismiss ates, and disbursements, all adding up to account stated therefore does allow entry of pleading is not required. the pleading. $66,875.41. The claim on an account stated a clerk’s default judgment. The court noted that this “pitfall” does not was supported by invoices. The clerk entered The Second Department agreed with the Jurisdiction necessarily apply to cross-claims, depending judgment on February 7, 1994, for the stated First Department31 in holding that a clerk’s CPLR 306-b has been amended, to pro- on whether or not the pleading asserting the sum, plus costs and disbursements, for a total default judgment may not be entered where, vide that the time for service of initiatory cross-claim demands an answer. By virtue of judgment of $67,245.41. This amount as here, the plaintiff claims both a sum cer- papers (i.e., a summons and complaint, sum- CPLR 3011, where a cross-claim does not remained unpaid. tain and other claims which are not for sums mons with notice, third-party summons and demand an answer, and no answer is made, In 2009 plaintiff commenced a second certain. The Second Department noted that complaint, petition with notice of petition or the cross-claim is “deemed denied or avoid- action against the defendant, this time to by entering judgment in such a case the clerk order to show cause) is to run from the com- ed.” In such a case, there can be no motion renew the 1994 judgment pursuant to CPLR is either severing the non-certain causes of mencement of the action, and not necessari- for default judgment on the cross-claim. 5014 (1). This time the defendant answered, action or rendering them academic, either of ly from the filing of the initiatory papers. Where, however, the pleading asserting the and moved separately to vacate the 1994 which are properly judicial functions. Ordinarily, of course, the action is com- cross-claim does demand an answer, the par- judgment, using the index number assigned Therefore, the clerk had been without menced when the initiatory papers are filed, ties responding to the cross-claim and to it. In the motion to vacate, the defendant authority to enter the default judgment, and so there would seem to be little need for asserting it are both required to act, by asserted lack of personal jurisdiction in that which was rendered void. this change. Recall, however, that where a answering pursuant to CPLR 3011, and if the summons with notice had not been prop- Finally, the court considered the position court finds that circumstances prevent the necessary moving for a default judgment erly served, and that he was unaware of the of the parties after vacatur of the judgment. immediate filing of the initiatory papers, it pursuant to CPLR 3215. judgment until the 2009 action was com- Does the vacatur leave the finding of default may make an order allowing the filing at a A second issue concerned whether or not menced. Plaintiff opposed the motion, argu- intact? In that case, the matter need only pro- time and date not more than 5 days later. Napper Tandy was precluded from claiming ing that the defendant failed to show a lack ceed to a judicial inquest. Or, does the This can happen where a party seeks a tem- contribution from Shawn’s estate by the set- of jurisdiction, sufficient to justify vacatur vacatur of the judgment also vacate the find- porary restraining order at a time when the tlement and release. Napper Tandy com- under CPLR 5015 (a)(4); or a reasonable ing of default, opening the possibility that the Clerk’s office is closed. In that case, it is the menced a third-party action against the excuse for default and a meritorious defense default might be found to be excusable and signing of the order that commences the administrator of Shawn’s estate, on or about sufficient to justify vacatur under CPLR the parties placed in pre-default status. The action. The initiatory papers may then have April 30, 2009. The administrator served an 5015(a)(1). court found numerous opinions on both sides, to be served before the filing, which might answer, which pleaded the affirmative Supreme Court denied the motion, finding which it reconciled by considering whether be interpreted as violating the terms of the defense of the release and its effect under the defendant’s denials of service to be con- there had been consideration of the issues of old 306-b (“Service. . .shall be made within General Obligations Law § 15-108. clusory, that there was no showing of either reasonable excuse and meritorious defense. 120 days after the filing. . .”). The amend- GOL § 15-108 provides that a release a reasonable excuse or a meritorious Where these issues had been considered and ment removes any ambiguity. from an injured party to a tortfeasor protects defense. it had been determined that the defendants the settling tortfeasor by relieving it from lia- On appeal, the defendant continued argu- had not made a sufficient showing, there was In Penguin Group (USA) v American bility to third persons for contribution. The ing for vacatur under CPLR 5015 (a)(1) and no basis to vacate the finding of default and Buddha36 the Court of Appeals considered settlement here clearly fell within the ambit (4). For the first time, however, defendant the matters proceeded to inquest. Where the the impact of Internet commerce on long- of GOL § 15-108. Napper Tandy attempted also argued that the plaintiff’s inclusion of an issues had not been raised or considered, or arm jurisdiction in copyright-infringement to avoid the result, by pointing to the 2007 equitable claim in the summons with notice where the default had been found excusable cases. The precise question concerned the amendment to GOL § 15-108. That amend- left the clerk without authority to enter the at the appellate level, upon vacatur of the place of injury. ment removed settlements for no or nominal judgment in the first place, regardless of the unauthorized judgment the finding of default American Buddha is a non-profit corpora- consideration from the protections of the sufficiency of jurisdiction. should also be vacated and the matter remit- tion, based in Arizona, which operates two statute, and was intended to foster the release The Appellate Division began by sustain- ted for further proceedings on that basis. That online libraries, allowing its members free of parties who turn out to be clearly free ing so much of the order as held that defen- is to say, the plaintiff would be free to move access to, and downloading of, the stored from liability. The trigger amount is a settle- dant failed to show that either CPLR 5015 for a proper judicial default judgment, and works. The servers for the libraries are in ment of greater than one dollar. (a)(1) or (4) justified vacatur of the 1994 the defendant would be equally free to move Oregon and Arizona. Penguin is a prominent Napper Tandy argued that Shawn’s estate judgment. The process server’s affidavit was for leave to answer, awaiting a determination publisher, based in New York. It alleges that was not protected from contribution by GOL sufficient to show that jurisdiction had been by the court on the merits of the respective American Buddha violated its copyrights by § 15-108, since it had not in fact contributed obtained, and the defendant failed to ade- motions. A defendant who has not answered uploading four copyrighted works to the to the settlement, which was paid entirely by quately rebut it. As to a reasonable excuse timely may still move to compel an accept- libraries. The copying and uploading was D’Agostino’s insurer. Here, the release in for the default, the only excuse tendered by ance of his answer pursuant to CPLR 3012 done in Oregon or Arizona. American favor of D’Agostino and Shawn’s estate recit- the defendant was the claimed lack of juris- (d), upon a showing of reasonable excuse. Buddha maintains that its activities are fair ed consideration of $50,000. The Appellate diction, and the court also found insufficient That showing of reasonable excuse is the ______Continued On Page 13 THE QUEENS BAR BULLETIN – JANUARY 2012 13 ally profitable.”42 drain.46 Immediately, there was a splashback third-party plaintiff.52 CPLR Update The nature of Internet commerce, there- of the solution onto his face. He sustained ______fore, takes this case out of the analytical burns and lost the sight in an eye. Settlements and Releases Continued From Page 12 framework applicable to traditional tort Plaintiff sued, claiming defective design CPLR 3217(a)(1) has been amended53 to use by a library. cases. In the traditional case, the location of and failure-to-warn product liability claims. extend the time in which a plaintiff may vol- Penguin sued in US District Court for the lost sales or customers can more readily be Defendant moved for summary judgment, untarily discontinue an action. The old pro- Southern District of New York. Jurisdiction ascertained, but in Internet copyright and its proof apparently consisted only of an vision allowed a voluntary discontinuance, was predicated on CPLR 302 (a)(3)(ii), pro- infringement cases the entire purpose of the attorney’s affirmation that the product is without order or stipulation, before the viding for long-arm jurisdiction over non- tort is to make the work accessible to anyone inherently dangerous, and that the dangers responsive pleading was served or within 20 domiciliaries committing tortious acts out of with an Internet connection, including New are well known. Supreme Court granted the days of the service of the pleading asserting the state which cause injuries in the state. York. The loss to a NewYork copyright hold- motion, as to both causes of action. The the claim, whichever was earlier. This was American Buddha moved to dismiss for lack er is more direct than the loss to a New York Appellate Division affirmed, with a two- felt to be too restrictive, and so it has been of jurisdiction, on the grounds that Penguin importer of cheese (as in Fantis Foods). The judge dissent as to the dismissal of the defec- amended to allow a voluntary discontinu- had not suffered any injury in New York. Court found that the nature of Internet com- tive design cause of action. Plaintiff appealed ance before the responsive pleading is served The District Court agreed with American merce and the particular rights accorded to as of right on the defective design issue. or 20 days after service of the pleading Buddha and dismissed. It viewed the injury copyright holders made the case closer to the The Court of Appeals reversed. The asserting the claim, whichever is later. as taking place in Oregon or Arizona, with cognizable New York injury in Sybron than essence of the defective design claim lies in any in-state injury being “purely derivative” the merely indirect injury in Fantis Foods. It a risk vs utility analysis. That is, “knowing When a party releases another from as a result of Penguin’s residence here. The therefore found that the plaintiff had indeed how dangerous lye is, was it reasonable for claims, known or unknown, in language injury took place where the copying and suffered an injury in New York, for purposes defendants to place it into the stream of com- broad enough to include unknown fraud uploading took place, in Oregon or Arizona. of long-arm jurisdiction under CPLR 302 merce as a drain cleaning product for use by claims, it is bound by that release as to the The Second Circuit asked the Court of (a)(3)(ii). a layperson?” The mere affirmation of defen- unknown fraud claims. It cannot avoid the Appeals to resolve the question of whether The Court noted that it was not holding dant’s counsel as to the nature and risks of the release thereafter by claiming that it did not the site of injury in such cases is “the loca- that jurisdiction would exist in favor of any product being common knowledge, did not understand the depth of the fraud. Rather, a tion of the infringing action or the residence. New York resident alleging copyright address this issue and so defendants failed to fraud will avoid the release only if the relea- . .of the copyright holder?” The question as infringement. There were important ele- show that they were entitled to judgment as a sor can point to a fraud separate from the originally certified was not limited to ments of jurisdiction which were not part of matter of law. Having failed to make this transactions which are the subject of the Internet cases. Interestingly, the Court of the certified question, notably whether or not showing, the burden never shifted to the release. Appeals accepted the Second Circuit’s invi- the the non-New York defendant could rea- plaintiff to establish a triable issue of fact.47 In Centro Empresarial Cempresa S.A. v tation to reformulate the question, specifying sonably expect the tortious act would have Judge Smith concurred, pointing out that América Móvil,54 the Court of Appeals that it was limiting the question to “copy- consequences in New York, and whether it at trial it is the plaintiff who will have the dealt with such a situation. The transactions right infringement cases involving the derives substantial revenue from interstate or burden of establishing a prima facie case as involved an Ecuadorian telecommunica- uploading of a copyrighted printed work international commerce. There is also the to defective design. In response to the tions company, Conecel, in which the onto the Internet”. The only element of constitutional due process questions of motion, plaintiff offered an expert affidavit, defendants held a 60% interest, and the jurisdiction before the Court was the situs of whether the non-New York defendant has which proposed alternatives to lye, but failed plaintiffs each had a minority.55 In 2002 the the injury.37 “minimum contacts” with New York, and to show that any safer alternatives would plaintiffs became convinced that the defen- The Court contrasted two of its prior deci- whether compelling it to defend its conduct have performed as well at a reasonable cost. dants were not acting in good faith, and sions. In Fantis Foods v Standard here comports with fair play and substantial The only specific alternative mentioned by were not providing them with financial Importing38 the Court had found that there justice. Those questions were retained by the the expert would concededly take longer to information concerning Conecel and TWE. was no direct injury in New York where the Second Circuit and must be determined by it. work, without any specification of how Pursuant to one of the parties’ underlying claim was for cheese intended to be shipped much longer. If this were all the plaintiff agreements56 the plaintiffs were able to sell to Standard (the third-party plaintiff) in Miscellaneous advanced at trial, the result would be direct- the defendants 50% of their holdings. Over Chicago, but which was diverted by the CPLR 2101(f) has been amended43 to ed verdict for the defendant. Why, then, was the course of 2002, plaintiffs claim that the third-party defendant either in Greece or extend the permissible time to raise objec- summary judgment denied? the defendants refused to negotiate in good while in transit at sea. The mere fact that tions to defects in form of documents, from In federal cases, where the burden at trial faith concerning the buyout of their remain- Standard was incorporated and had its two days to fifteen days, running from the is would be on the responding party, a sum- ing holdings, but that the defendants offices in New York was not sufficient to receipt of the objectionable paper. The mary judgment movant can satisfy its burden refused to negotiate, thus violating another locate the injury here. In Sybron Corp., v objecting party is still required to return the by showing the absence of evidence to sup- of their underlying agreements.57 Wetzel,39 the Court found a New York injury documents to the serving party, with a state- port the respondent’s case.48 This record in In 20023, the defendants provided where Sybron was a New York manufactur- ment of particular objections. Since the stat- federal court might then “probably” lead to Conecel’s balance sheet and made other rep- er, and the defendant had hired had hired one ed consequence of an untimely objection is granting the motion. resentations, all of which tended to show of its employees in order to obtain Sybron’s the waiver of the objection, the legislative that Conecel was not performing as antici- trade secrets. The claim there was based on memo accompanying the amendment stated Pleadings pated. Defendants then offered to buy out more than Sybron’s New York domicile, a concern that an unreasonably short period CPLR 3025(b) has been amended49 so as the plaintiffs’ remaining interest at the low- being supported by Sybron’s claim that the did not give the recipient sufficient time to to require a motion to amend a pleading to be est price allowed under their agreements, trade secrets were acquired here and that the consider its objection. The purpose of the accompanied by a copy of the proposed the “floor price.” Plaintiffs, allegedly rely- defendant was likely to use them to obtain amendment is to change the focus of any lit- amended pleading, clearly showing the pro- ing on the defendants’ representations, Sybron’s New York customers. Both Fantis igation over the objections from the time posed changes. agreed. The agreements embodying the sale Foods and Sybron had relied upon a federal limit to the merits of the objection. provided for two releases relevant here. The case, American Eutectic Welding Alloys v The same chapter amended CPLR 3217 CPLR 1008 allows a “third-party defen- first, the “Members Release,” released the Dytron Alloys,40 where the court had allowed (a)(1) to extend the time in which a plaintiff dant to assert against the plaintiff in his or defendants from the place where a plaintiff lost business as a may voluntarily discontinue a claim, by her answer any defenses which the third- “all manner of actions. . .claims and permissible situs of injury. allowing the voluntary discontinuance at any party plaintiff has to the plaintiff’s claim.” In demands, liability, whatsoever, in law or In Penguin Group (USA) v American time before a responsive pleading is served. 2008, in Charles v Long Island College equity, whether past, present or future, Buddha, the problem was that the “intangi- Hospital,50 the Second Department held that actual or contingent, arising under or in ble and ubiquitous” nature of the Internet Motion Practice a third-party defendant was entitled to dis- connection with the Agreement Among made it difficult to identify and locate the Yun Tung Chow v Reckitt & Colman44 missal of the third-party complaint on the Members.” injury. The plaintiff’s claim was that the ostensibly concerned the standards for a grounds that the summons and complaint The second relevant release, the “Master defendant had made the copyrighted materi- design-defect products liability case. It is had not been served on the defendant/third- Release,” was in similar language, but had a als available to anyone with an Internet con- mentioned here for the concurrence by Judge party plaintiff, even though the defendant proviso specifically excepting fraud claims nection, in New York or anywhere in the Smith, who pointed out that the result was itself had not raised any objection to juris- from the scope of the release. world. Unlike the situation in American actually due to New York’s view of the bur- diction. Worse, the complaint against the Plaintiffs claimed, in this action, that they Eutectic and in traditional commercial torts, den of proof on summary judgment motions, defendant/third-party plaintiff was not dis- found out that the information about there is no one place where the plaintiff may and that in a federal court the motion proba- missed. That decision can be criticized, since Conecel’s financial condition was false only be said to have lost business. The Court bly would have been granted. the defendant/third-party plaintiff was with- in 2008, when the results of an audit by the therefore found it “illogical” to extend the The product involved consisted of pure in its rights to waive the jurisdictional objec- Ecuadorian government were released. analysis of those cases here. sodium hydroxide crystals. Sodium hydrox- tion, and its service of an answer without Plaintiffs claimed $900 million in damages. The Court found a more persuasive ration- ide, commonly known as lye, is highly cor- raising it was the equivalent of proper serv- Defendants moved to dismiss, pursuant to ale by looking to the “unique bundle of rosive and dangerous to deal with.45 Yet, it ice upon it. Nevertheless, this was not the CPLR 3211 (a)(1 and 5), based on the rights” given to copyright holders under fed- was marketed to ordinary consumers as a only appellate case so holding.51 A prudent release. Supreme Court denied the motion. eral law. These rights result in the “right to to drain cleaner. The package bore warnings defendant, anticipating commencing a third- The Appellate Division reversed and granted exclude others from using his property.”41 that the user should wear eye protection and party action, would therefore be compelled the motion. The Appellate Division held that The New York resident copyright holder rubber gloves, and that the product should be to raise any jurisdictional defenses it might the “Members Release” included any poten- therefore suffers a greater injury from spooned into the clogged drain one table- otherwise waive, lest it be subjected to the tial claim that the defendants had misrepre- infringement than the indirect loss held spoonful at a time, and that the user should same double whammy. sented Conecel’s true worth. Other than the insufficient in Fantis Foods. Consider, for pour water down the drain only after waiting The Legislature has now overruled the potential fraud covered by the release itself, example, the lessening of the holder’s profit for 30 minutes. The plaintiff, who could not holding in Charles, by amending CPLR plaintiffs did not allege any fraud in the motive to publish the works, which have read English and testified that he had never 1008 to prohibit third-party defendants from inducement. Plaintiffs knew that they had already been published by the alleged pirate. read the instructions or warnings on the asserting that the summons and complaint not been given a complete account of This is especially true in the case of books label, made a solution of 3 spoonfuls of the (or summons with notice, or notice of peti- Conecel’s finances, yet did not except fraud such as those involved here, which while lye with 3 cups of water in an aluminum con- tion and petition) was not properly served or claims from the “Members Release,” or take classics surely fit the description of “margin- tainer, and poured the solution down the that jurisdiction was not obtained over the ______Continued On Page 14 14 THE QUEENS BAR BULLETIN – JANUARY 2012 court and not by an attorney.60 course, by the rights of the accused and the days, the defendant may move for a change CPLR Update The problem was an unforeseen conse- requirements of a fair trial. The Judiciary of venue within 15 days of service of the ______quence of the 2002 amendments to these and Law specifies that a juror must be able to demand. Plaintiffs did not consent to the Continued From Page 13 other sections, allowing the service of dis- understand and communicate in the English change of venue, but defendants did not other steps to protect themselves. closure subpoenas for medical records by language.63 make the motion until 20 days after service There was a two-judge dissent, which counsel, but only where the subpoenas were It was held in People v Guzman64 that a of the demand, that is, on September 9, found fraudulent inducement in the failure of accompanied by authorizations from the hearing impairment does not itself disqualify 2009. Supreme Court granted the change of the defendants, who as majority shareholders patients. The subpoenas were required to a juror. A court confronted with a hearing- venue, but the Appellate Division had a fiduciary responsibility to the plain- bear a warning in bold-face type that they impaired juror must determine the juror’s reversed.67 The Appellate Division held, tiffs, to fully reveal their tortious conduct need not be responded to unless they were ability to understand the evidence, evaluate it without discussion, that the motion was prior to obtaining the release. accompanied by the authorizations. The rationally, deliberate with other jurors effec- untimely, and that the defendants were not The unanimous Court of Appeals began intent of the amendments was to protect tively, and comprehend the legal principles entitled to the 5-day extension. It cited to by repeating the well-known principles that a medical providers, served with subpoenas as instructed by the court. If the court is Thompson v Cuadrado,68 where it had valid release is a bar to actions on claims it during disclosure, from violating the physi- aware of a reasonable accommodation that denied the extension to a defendant whose covers. As with other contracts, a release cian-patient privilege. would allow the prospective juror to perform motion to dismiss on jurisdictional grounds may be set aside for duress, illegality, fraud The problem came when a Civil Court his duties while not interfering with the was made 61 days after service of its or mutual mistake. The burden rests on the judge held, in Campos v Payne, that the defendant’s rights, the accommodation answer. CPLR 3211(e), of course, provides defendant to show the existence of the amendments applied to trial subpoenas as should be made. The determination is left to that the defense is waived unless the motion release, and once that burden is met the bur- well as disclosure subpoenas.61 The judge the trial court’s discretion. is made within 60 days. The court in den shifts to the plaintiff to show circum- held that the absence of an authorization left Here, the record supported the conclusion Thompson noted that the legislative history stances which might render it void. Releases the court, as well as the attorneys, without that the particular juror’s impairment would of the 1999 amendment to CPLR 5513 evi- may include unknown fraud claims, if that is authority to issue a subpoena duces tecum have interfered with the performance of his dences the Legislature’s understanding that what the parties intend and the release is for trial records. This allowed a recalcitrant duties. His incorrect answer to the question the 5-day extension for service by mail did “fairly and knowingly made.”58 In order to plaintiff to frustrate the production of about false confessions combined with the not apply to the party making the mailing challenge the release of a fraud claim on the records for trial. The legislative memoran- trial court’s observations of his actions dur- unless there was a specific provision provid- grounds of fraudulent inducement, the plain- dum states that the decision in Campos is ing the voir dire showed that the juror was ing that it did. 69 tiff must show a fraud separate from the sub- “widely followed.” not understanding everything going on in The Court of Appeals majority, however, ject of the release. Otherwise, no fraud claim CPLR 2302 has been amended by adding front of him. Further, the trial court was not felt that the plain meaning of CPLR could ever be validly released. a sentence providing that in the absence of asked to provide any accommodation for the 2013(b)(2) was otherwise. It provides to any Here, the “Members Release” was suffi- an authorization, a trial subpoena may be prospective juror. The record was bare of any situation where a time limit runs from the ciently broad so as to cover fraud claims issued, but only by a court. CPLR 3122 has indication that audio equipment was avail- service of a paper and service is made by unknown at the time. The release could be been amended by the addition of a new able that might have helped the juror, or mail, and not only to those situations where avoided if there had been a fraud in the paragraph (2), providing that a trial subpoe- whether he was in fact willing to use it. Thus, the party relying on the extension is respond- inducement other than those actually na issued by a court does not have to be the trial court did not err in failing to order an ing to papers served by its adversary. released, but plaintiffs did not allege one. accompanied by an authorization. Other accommodation on its own motion. Moreover, the defendants were, in effect, Rather, the fraud alleged by the plaintiffs subpoenas are still subject to the authoriza- While not finding error, however, the responding to the plaintiffs’ failure to con- was the fraud covered by the release: false tion requirement. Court did state that it would have been better sent to the change of venue. information concerning Conecel and In People v Guay,62 the Court of Appeals if the trial court had acted on its own to There was a dissent, by Judge Pigott, who TWE. Plaintiffs seek to be avoid the addressed the issue of a hearing-impaired inquire about the juror’s limitations and pos- relied on the legislative history of the 1982 release in that they were unaware of the juror. While sustaining the decision of the sible accommodations, such as an assistive amendment to CPLR 2103(b)(2), which value of the fraud claims they were releas- trial court to dismiss the juror for cause, the amplification device. The inquiry should be extended the extension to 5 days from the ing. A release should not be a starting Court also noted that the trial court should “reasonable and tactful.” original 3. That history set forth the legisla- point for new litigation. have addressed the prospective juror’s limi- tive purpose as being to allow the party The Court was unpersuaded by the argu- tations and the possible accommodations Venue receiving the mailed papers to prepare its ment based on fiduciary duty. While defen- that might have allowed him to serve despite There are many things in the CPLR so response. Here, the plaintiffs were entitled to dants, as majority shareholders, were fiduci- them. The determination, made under the basic that most of us never give them a the 5-day extension in deciding whether or aries with regard to the plaintiffs, the plain- State Constitution and the Judiciary Law, is thought, secure in our thorough under- not to consent to the change of venue, since tiffs were sophisticated principals, and the applicable to civil trials as well as this crim- standing. So, it comes as something of a the demand had been mailed to them. The relationship was no longer one of trust. inal trial. shock when a court construes one of them defendants, however, were not responding to Plaintiffs were aware that the defendants This was a criminal prosecution for first- in a way contrary to the common under- any papers, and were not entitled to any were acting in their own interest. The defen- degree rape of a child and related offenses. standing, especially when it tells us that it extension. dants, in these circumstances, were not During jury selection, one of the jurors indi- is simply applying the “plain meaning” of Note, however, that this ruling is applica- required to reveal their tortious conduct as a cated that he was having trouble hearing. It the words. That is what the Court of ble only to time periods running from the condition of obtaining their release. became apparent during questioning of the Appeals did in Simon v Usher,65 which service of a paper, not to those running Further, the plaintiffs did not allege justifi- panel by counsel that this juror was not looked at CPLR 2103(b)(2) and came away from the filing of a paper. Service is effec- able reliance on the defendants’ alleged mis- understanding the questions. He responded with a different reading than most lawyers tive upon mailing, but filing is effective representations. Where a party is able to affirmatively to a question as to whether he would have reached. only upon receipt by the clerk. So, to take ascertain the truth or falsity of the represen- knew someone who had confessed to a crime Recall that CPLR 2103 (b)(2) deals with the most prominent example, the time in tations made, it must do so. If it fails to make he did not commit, when further questioning one of the simplest, most matter-of-fact acts which to move for summary judgment runs use of ordinary means of protecting itself, it revealed that he did not know if the person in civil practice, the service of interlocutory from the filing of the note of issue, not from will not be allowed to assert that it was (his son) had confessed and in fact felt that papers by mail. Service is made by simply the service of a copy upon the moving defrauded. Plaintiffs here knew that they had he was guilty. When asked whether he would dropping them in the mailbox (properly party.70 Or, similarly, the ruling is inappli- not received adequate information as to the have problems hearing if counsel remem- addressed, sealed and stamped, of course). cable to those time periods running from a value of Conecel and TWE, yet chose to bered to speak up, the juror said that he You’ve still got that right. The problem came party’s receipt of the papers served. So, for accept the offers made by the defendants would be “pretty good” as long as he was in with the next part of 2103(b)(2), which pro- example, the time in which to object to without insisting on proper disclosure, war- the front row of the jury box. The People vides that for a five-day extension to any defects in form of a paper runs from receipt ranties or even excepting fraud from the moved to dismiss the juror for cause, on the time period running from the service of a and not service.71 Note, also, that under the scope of the release. Having been so lax, the grounds that he had trouble hearing the paper, where the service is made by mail. facts of this case the defendants’ motion plaintiffs cannot ask for the law’s protection. court. Since the matter would require child That provision was commonly understood to would have been untimely had they chosen Similarly, in Arfa v Zamir,59 decided the witnesses, and that such witnesses frequent- benefit the recipient of the service, so that if to serve the demand for a change of venue same day as Centro Empresarial, the plain- ly had trouble speaking up, the People the recipient had a specified time in which to by overnight delivery service instead of by tiffs knew that the defendant was untrust- argued that the juror could miss parts of the react to the paper being served, the time mail. That service only gets an extension of worthy, yet chose to enter into an agree- child’s testimony. The defense opposed, on would be extended to account for possible one business day.72 ment concerning their real estate manage- the grounds that the juror had indicated he delays in mailing. Thus, Professor Siegel’s ment business which contained a general would not have a problem during trial. The New York Practice, in a thorough discussion, * David H. Rosen served in the Supreme release. They later sued, based on allega- trial court noted its own observation that the observes that 2103(b)(2) includes “the provi- Court, Queens County, as Principal Law tions of fraud predating the release. Since juror was having difficulty hearing the court sions about the additional days the recipient Clerk to Justice Arthur W. Lonschein from the plaintiffs did not allege that they were and counsel, despite his answer to the con- gets for responding to a paper when it is 1980 to 2000, and as Court Attorney/Referee induced to sign the release by a fraud other trary. The court concluded that the juror’s served by mail. . . .the party required to take from 2001 to 2010. He is now in private than that which the subject of the lease, the hearing was a sufficient problem to disquali- the responsive step... The 5 days are added to practice. Any comments may be addressed to action was precluded by the release. As in fy him, and granted the challenge for cause. the stated period when any mail-served [email protected] Centro Empresarial, plaintiffs in Arfa also The defendant was convicted and paper requires a responsive step...”66 failed to show justifiable reliance, since appealed, in part due to the disqualification In Simon v Usher, it was the party making 1. Siegmund Strauss, Inc. v East 149th Realty they entered into the release without inves- of the juror. The Appellate Division affirmed the service who was subject to the time Corp., 81 A.D.3d 260, 919 N.Y.S.2d 1 [1 Dept., tigating his actions. the conviction. limit, and who needed the 5-day extension 2010]; Leave to Appeal Granted in Part, In the Court of Appeals, defendant argued in order to meet it. The action had been Dismissed in Part, 17 N.Y.3d 936 [2011] 2. Matter of Aho, 39 N.Y.2d 241, 383 Trial that the court should have inquired further commenced in Bronx County, and on N.Y.S.2d 285 [1976] August 20, 2009, the defendants served, by CPLR 2302 and 3122 have been amended into the juror’s impairment, and should have 3. Matter of Kowaleski (New York State Dept. to make clear that trial subpoenas duces accommodated the impairment rather than mail, their answer with a demand for a of Correctional Servs.), 16 N.Y.3d 85, 917 tecum for medical records can be issued to dismissing the juror. The Court began by change of venue to Westchester County. N.Y.S.2d 82 (December 21, 2010) non-party record custodians without an noting that jury service is a privilege and Pursuant to CPLR 511(b), unless the plain- 4. Cadichon v Facelle, 18 NY3d 230, ___ authorization by the patient, but only by a duty of citizenship. This is balanced, of tiff consents to the change of venue within 5 ______Continued On Page 15 THE QUEENS BAR BULLETIN – JANUARY 2012 15 SERVICE DIRECTORY TO PLACE YOUR AD CALL 631-427-7000

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plaintiff here didn’t even do that. al due process”. [citation omitted] interest in Conecel through it. There were sever- 22. Goldenberg v Westchester County Health 38. Fantis Foods v Standard Importing Co., al agreements between the parties, including a CPLR Update Care Corp., 68 A.D.3d 1056, 892 N.Y.S.2d 463 49 N.Y.2d 317, 425 N.Y.S.2d 783 [1980] “Master Agreement” governing the parties’ Continued From Page 14 ______[2d Dept., 2009] 39. Sybron Corp. v. Wetzel, 46 N.Y.2d 197, interests in TWE; a “Limited Liability Company 23. See CPLR 3211 (e) 413 N.Y.S.2d 127 [1978] Agreement,” governing the parties’ responsibili- NYS2d ___, 2011 NY Slip Op. 08447 24. L. 2007, ch. 529 40. American Eutectic Welding Alloys Sales ties in running TWE; an “Agreement Among [November 21, 2011] 25. Matter of Gershel v Porr, 89 NY2d327, Co. v. Dytron Alloys Corp., 439 F.2d 428 [2d Members,” governing the parties rights if defen- 5. Cadichon v Facelle, 15 N.Y.3d 877, 913 653 NYS2d 82 [1996] Circ., 1971] dants chose to “roll up” Conecel with its other N.Y.S.2d 121 [2010] 26. Matter of Fry v Village of Tarrytown, 80 41. Citing eBay Inc. v MercExchange, L.L.C., Latin American telecom companies for the pur- 6. Cadichon v Facelle, 15 N.Y.3d 767, 906 NY2d 714, 658 NYS2d 205 [1997] 547 US 388, 392 [2006] pose of selling securities; and a “Put N.Y.S.2d 811[July 1, 2010] 27. L. 2006, ch. 529, Legislative 42. The books were: “Oil!” by Upton Sinclair; Agreement,” giving plaintiffs the right to compel 7. Parkin v Ederer, 27 A.D.3d 633, 810 Memorandum. Emphasis in original. “It Can’t Happen Here” by Sinclair Lewis; “The defendants to buy plaintiffs’ shares in TWE at a N.Y.S.2d 901 [2d Dept., 2006]; Rezene v 28. Giglio v NTIMP, Inc., 86 A.D.3d 301, 926 Golden Ass” by Apuleius, as translated by E.J. set price during set times. Williams, 22 A.D.3d 656, 804 N.Y.S.2d 335 2d N.Y.S.2d 546 [2d Dept., 2011] Kenney; and “On the Nature of the Universe” by 56. The “Put Agreement.” Dept., 2005] 29. Stephan B. Gleich & Assoc. v Gritsipis, 87 Lucretius, as translated by R.E. Latham 57. The “Agreement Among Members.” 8. Truly automatic dismissals, that is, those A.D.3d 216, 927 N.Y.S.2d 349 [2d Dept., 2011] 43. L. 2011, ch 473, eff. 1-01-2012 58. Mangini v McClurg, 24 NY2d 556, 566- taking effect without a judge’s order, are few and 30. Also pursuant to CPLR 3215 (a), the clerk 44. Yun Tung Chow v Reckitt & Colman, Inc., 567 [1969] far between in the CPLR. CPLR 3404 is one, may enter judgment for costs where there is a 17 N.Y.3d 29, 926 N.Y.S.2d 377 [May 10, 2011] 59. Arfa v Zamir, 17 N.Y.3d 737, 929 taking effect where an action is stricken from the dismissal for neglect to proceed, and the appli- 45. Not only is it corrosive, when it dissolves N.Y.S.2d 11 [June 07, 2011] trial calendar and not restored within a year. Off cation is made within a year after the default. in water the reaction liberates a great of heat and 60. L. 2011, ch. 307, effective August 3. 2011 the top of my head, I can’t think of another 31. Geer, Du Bois & Co. v Scott & Sons Co., is consequently liable to spatter, as any high 61. Campos v Payne, 2 Misc.3d 921, 766 example. 25 A.D.2d 423, 266 N.Y.S.2d 580 [1 Dept., school chemistry student should know. But, N.Y.S.2d 535 [Civ. Ct., Richmond Cty., 2003] 9.Baczkowski v D. A. Collins Const. Co., 89 1966]; Accord, Woodward v. Eighmie Moving & many ordinary consumers never took (or 62. People v Guay, 18 NY3d 16, 935 NYS2d NY2d 499, 655 NYS2d 848 [1997] Storage, Inc., 151 A.D.2d 892, 543 N.Y.S.2d learned) high school chemistry, and many who 567 [November 15, 2011] 10.Di Simone v Good Samaritan Hosp., 100 187 [3 Dept.,1989]; White v. Weiler, 255 A.D.2d did have forgotten all about it. 63. Judiciary Law § 510(4). The Court noted NY2d 632, 768 NYS2d 735 [2003] discussed 952, 680 N.Y.S.2d 784 [4th Dept., 1998] 46. Allowing pure sodium hydroxide to come that the provision of Judiciary Law § 512 (3), above. 32. CPLR 3217 (a) into contact with aluminum is a particularly bad allowing dismissal of a juror due to mental or 11. Umeze v. Fidelis Care New York, 76 33. I confess to having been unclear how idea. Look at this video to understand physical conditions which caused the juror to be A.D.3d 873, 908 N.Y.S.2d 186 [1 Dept., 2010] that was to work in practice. Even where serv- why: http://www.youtube.com/watch?v=16dshZ incapable of performing in a reasonable manner, 12. Sortino v. Fisher, 20 A.D.2d 25, 245 ice of the summons and complaint (or, as here, 5GHZw The product label warned against using was repealed in 1995. N.Y.S.2d 186 [1963] the summons with notice) is made by personal aluminum utensils, apparently without any 64. People v Guzman, 76 NY2d 1 [1990] 13. This history is discussed in Cohn v. delivery, the defendant has 20 days in which to explanation. I don’t remember my high school 65. Simon v Usher, 17 N.Y.3d 625, 934 Borchard Affiliations, 25 N.Y.2d 237, 303 answer. The time for a voluntary discontinu- chemistry class mentioning this reaction. N.Y.S.2d 362 [October 20, 2011] N.Y.S.2d 633 [1969] ance was, at most, 20 days from the service of 47. See, Gilbert Frank Corp. v Federal Ins. 66. Siegel, New York Practice, § 202 [5th Ed] 14. Umeze v. Fidelis Care New York, 17 the summons. On what day could the plaintiff Co., 70 N.Y.2d 966, 525 N.Y.S.2d 793 [1988]; [emphases added] N.Y.3d 751, 929 N.Y.S.2d 67 [2011] have both applied for a default judgment and Alvarez v Prospect Hosp., 68 N.Y.2d 320, 508 67. Simon v Usher, 73 A.D.3d 415, 899 15. Roddy v. Nederlander Producing Co. of made a voluntary discontinuance? Now that N.Y.S.2d 923 [1986] N.Y.S.2d 601 [1st Dept., 2010] America, Inc., 15 N.Y.3d 944, 916 N.Y.S.2d the time for a voluntary discontinuance has 48. Celotex Corp. v Catrett, 477 US 317, 325 68. Thompson v Cuadrado, 277 A.D.2d 151, 578, [2010]; reversing 73 A.D.3d 583, 904 been extended by amendment, the conundrum [1986] 717 N.Y.S.2d 109 [1st Dept., 2000] N.Y.S.2d 5 [1 Dept., 2010] disappears. 49. L. 2011, ch 473, eff. 1-01-2012 69. The amendment to CPLR 5513 did make 16. Roddy v. Nederlander Producing Co. of 34. L. 2011, ch. 473, § 4, eff. January 1, 2012 50. Charles v Long Island College Hospital, a specific provision to the contrary, in the case of Am., Inc., 44 A.D.3d 556, 844 N.Y.S.2d 231 35. L. 2011, ch 473, eff. 1-01-2012 47 A.D.3d 665, 850 N.Y.S.2d 173 [2008] a party’s time to appeal being extended where [2007] 36. Penguin Group (USA) Inc. v. American 51. See, Prigent v Friedman, 264 A.D.2d 568, service of the notice of entry was made by mail, 17. Or, a summons with notice (CPLR 304). Buddha, 16 N.Y.3d 295, 921 N.Y.S.2d 171 695 N.Y.S.2d 79 [1st Dept., 1999] regardless of which party made the service. 18. This basic point used to be specified by [March 24, 2011] 52. L. 2008, ch. 264, effective August 3, 2011 70. Coty v County of Clinton, 42 A.D.3d 612, CPLR 304. An amendment left the language 37. “a plaintiff relying on [CPLR 302 53. L. 2011, ch 473, eff. 1-01-2012 839 N.Y.S.2d 825 [3rd Dept., 2007]; Mohen v. out. Fascinatingly, there is no longer any explic- (a)(3)(ii)] must show that (1) the defendant com- 54. Centro Empresarial Cempresa S.A. v Stepanov, 59 A.D.3d 502, 873 N.Y.S.2d 687 [2d it statement in the CPLR that service of the sum- mitted a tortious act outside New York; (2) the América Móvil, S.A.B. de C.V., 17 N.Y.3d 269, Dept., 2009]; Group IX, Inc. v Next Print. & mons confers jurisdiction. cause of action arose from that act; (3) the tor- 929 N.Y.S.2d 3 [June 7, 2011] Design Inc., 77 A.D.3d 530, 909 N.Y.S.2d 434 19. Harris v Niagara Falls Bd. of Ed., 6 tious act caused an injury to a person or proper- 55. The details of this deal, involving hun- [1st Dept., 2010] [overruling previous 1st N.Y.3d 155, 811 NYS2d 299 [2006] ty in New York; (4) the defendant expected or dreds of millions of dollars in international Department cases to the contrary] 20. Goldenberg v Westchester County Health should reasonably have expected the act to have finance, have been simplified for purposes of 71. CPLR 2101(f), recently amended to Care Corp., 16 N.Y.3d 323, 921 N.Y.S.2d 619 consequences in New York; and (5) the defen- discussion. The plaintiffs had originally owned a increase the time to fifteen days from receipt (L. [March 23, 2011] dant derived substantial revenue from interstate substantial portion of Conecel, and in the origi- 2011, ch 473, eff. 1-01-2012) 21. The most common mistake is to recycle or international commerce. If these five ele- nal deal the parties created a new entity, Telmex 72. CPLR 2103(b)(6) the index number of the notice-of-claim pro- ments are met, a court must then assess whether Wireless Ecuador (“TWE”). TWE held the actu- ceeding on the summons and complaint, but a finding of personal jurisdiction satisfies feder- al shares of Conecel, and the parties held their 16 THE QUEENS BAR BULLETIN – JANUARY 2012

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