New York Civil Practice & Procedure Update

New York Civil Practice & Procedure Update Bridging the Gap | August 2016 New York State Bar Association Continuing Legal Education ______

Speaker: David L. Ferstendig, Esq. Law Offices of David L. Ferstendig, LLC. New York City Date: Wednesday, August 10, 2016 Time: 9;00 to 10:15 AM Where: The Graduate Center | CUNY Auditorium 365 Fifth Avenue (between 34th & 35th) New York, NY 10016

DAVID L. FERSTENDIG BIO

David L. Ferstendig, currently a member of Law Offices of David L. Ferstendig, LLC, New York, was a founding officer of the law firm Breindel & Ferstendig, P.C. He litigates a spectrum of civil and commercial matters, including breach of contract, products liability, toxic tort, insurance and reinsurance coverage, jewelers’ block, political risk, environmental liability, trade secret, and professional indemnity. Mr. Ferstendig is also an adjunct law professor at Brooklyn Law School and New York Law School, where he teaches New York Practice. He is the General Editor of Weinstein, Korn & Miller New York Civil Practice: CPLR (LexisNexis), the premier 15-volume litigation treatise cited regularly as authoritative by New York State and Federal courts; author of Ferstendig, Chase New York CPLR Manual (LexisNexis) and LexisNexis AnswerGuide New York Civil Litigation; and General Editor of CPLR Practice Insights, published in New York Consolidated Laws Service (LexisNexis). He has written articles for the New York Law Journal, authored a law review article entitled: “A Practitioner's Continued Uncertainty: Disclosure from Nonparties,” 74 ALB. L. REV. 731 (2010/2011) and was a panelist at New York University School of Law in March 2013 for the symposium entitled “The CPLR at Fifty: Its Past, Present, and Future” which resulted in the publication of his remarks, “The CPLR: A Practitioner’s Perspective.” Recently, Mr. Ferstendig co-authored a law review article with Professor Oscar Chase entitled: Should Counsel for a Non-Party Deponent be a “Potted Plant”?, 2014 N.Y.U. J. Legis. Pub. Pol'y Quorum 52. Mr. Ferstendig has provided expert testimony interpreting the meaning and application of New York law. He was a 2015 and 2011 recipient of New York Law School’s Otto L. Walter Distinguished Writing Award. A graduate of New York University School of Law, Mr. Ferstendig has lectured on civil practice issues for bar associations, the New York State Judicial Institute and LexisNexis. He is a member and past Chair of the CPLR Committee for the New York State Bar Association. Effective with the May, 2015 edition, Mr. Ferstendig became the Editor of the New York State Law Digest. He was selected by the New York State Board of Law Examiners to be a faculty member presenting Civil Practice and Procedure to 2016 bar examination candidates as part of the New York law course.

Portions of the text reprinted from the following with permission:

• Weinstein, Korn & Miller: New York Civil Practice: CPLR, Rel 157-161 (David L. Ferstendig ed., LexisNexis Matthew Bender 2d Ed.). Copyright 2015 Matthew Bender & Company, Inc., a LexisNexis company. All rights reserved.

LAW OFFICES OF DAVID L. FERSTENDIG, LLC ATTORNEYS AT LAW 280 MADISON AVENUE, NEW YORK, NY 10016 TELEPHONE: 212-213-1233 FAX: 212-213-1221 EMAIL: [email protected] WWW.FERSTLAW.COM

NEW YORK CIVIL PRACTICE & PROCEDURE UPDATE By: David L. Ferstendig

CPLR 103 – Convert proceeding to action for declaratory judgment People ex rel. Green v. Superintendent of Sullivan Corr. Facility, 137 A.D.3d 56, 25 N.Y.S.3d 375 (3d Dep’t 2016) (“Because petitioner no longer requires relief pursuant to CPLR article 70, we will convert the proceeding to an action for declaratory judgment (citations omitted).”).

CPLR 103 – Convert proceeding into action for injunctive relief Matter of Chase v. Wells Fargo Bank, N.A., 135 A.D.3d 751, 24 N.Y.S.3d 673 (2d Dep’t 2016) (“We note that although Chase commenced this matter as a special proceeding pursuant to CPLR article 4, the relief that she seeks is cognizable only in an action at law (citations omitted). Accordingly, we exercise our authority pursuant to CPLR 103(c) to convert the proceeding into an action for injunctive relief, and we deem, inter alia, the petition to be a complaint and a motion for summary judgment on the complaint, and the opposition papers to be a cross motion for summary judgment dismissing the complaint (citations omitted).”).

CPLR 103 – Convert proceeding into breach of contract action Pirro & Sons, Inc. v. Pirro, 137 A.D.3d 1609, 26 N.Y.S.3d 898 (4th Dep’t 2016) (“We note at the outset that Pirro & Sons, Inc. correctly concedes that it improperly commenced a proceeding rather than an action, and we exercise our discretion under CPLR 103 (c) to convert this matter to an action for breach of contract (citation omitted). We thus deem the petition to be a complaint, and we note that Pirro & Sons, Inc. is properly denominated as a plaintiff, while Thomas J. Pirro, Jr. Funeral Home and Thomas J. Pirro, Jr. are properly denominated as defendants.”).

CPLR 202 – Borrowing Statute – Borrow All of Foreign Statute, Including Tolls and Discovery Provisions Grynberg v. Giffen, 119 A.D.3d 526, 989 N.Y.S.2d 103 (2d Dep’t 2014): “In this case, the alleged unlawful bribery scheme occurred in the 1990s. Even assuming that the cause of action did not accrue until the plaintiffs ‘knew or should have known about the violation’ of their rights, as provided by article 180 (1) of the Civil Code of Kazakhstan, the defendants demonstrated that the plaintiffs knew or should have known of the alleged violation and harm in 2003, when the United States Government commenced a criminal action against the defendants based on their alleged involvement in the bribery scheme. Moreover, even if the indictment filed

2 in the federal criminal proceeding was insufficient to put the plaintiffs on notice, the latest possible date that the plaintiffs were put on notice of the defendants' unlawful activities, based on the clear allegations advanced in the complaint, was July 31, 2007.”

CPLR 203 – Relation back doctrine – Insufficient notice Calamari v. Panos, 131 A.D.3d 1088, 16 N.Y.S.3d 824 (2d Dep’t 2015): “The causes of action alleging medical malpractice and lack of informed consent are distinct not only as to the conduct alleged, but also as to the dates on which the conduct occurred and who engaged in it (citations omitted). The mere reference to ‘negligence’ in the original complaint did not give Mid Hudson notice of the transactions, occurrences, or series of transactions or occurrences, to be proved with respect to the proposed causes of action alleging negligent hiring and negligent supervision. Thus, those proposed causes of action could not be deemed to relate back to the interposition of the causes of action in the original complaint (citation omitted).”

CPLR 203 – Relation back doctrine – Parties not united in interest Montalvo v. Madjek, Inc., 131 A.D.3d 678, 15 N.Y.S.3d 471 (2d Dep’t 2015): “While it is undisputed that the first prong of the test has been satisfied here, the plaintiffs failed to establish that the Madjek defendants are united in interest. Defendants are united in interest only when their interest ‘in the subject-matter [of the action] is such that [the defendants] stand or fall together and that judgment against one will similarly affect the other’ (citation omitted). Defendants are not united in interest if there is a possibility that the new party could have a different defense than the original party (citations omitted). Here, the only fact that the plaintiffs established in support of their contention that the Madjek defendants were united in interest was that the president of Madjek, Inc., was a member of Madjek, LLC. This fact, standing alone, is insufficient to establish that the Madjek defendants are vicariously liable for the acts of each other and, thus, is insufficient to establish that the Madjek defendants are united in interest (citations omitted).”

CPLR 203 – Three Prong Test Applied to “Parties United in Interest” Toll Roseman v. Baranowski, 120 A.D.3d 482, 990 N.Y.S.2d 621 (2d Dep’t 2014): “However, we disagree with the Supreme Court's conclusion that the plaintiff failed to satisfy the third prong of the test, which focuses, inter alia, on ‘whether the defendant could have reasonably concluded that the failure to sue within the limitations period meant that there was no intent to sue that person at all and that the matter has been laid to rest as far as he [or she] is concerned’ (citation omitted). The decedent's medical records include several notes signed by Persky, and clearly reference him as the physician who discharged the decedent from the hospital on March 15, 2008. Given such facts, it was not reasonable for Persky to conclude that the plaintiff intended to proceed only against the defendants named in the original summons and complaint, especially since the decedent died soon after she was discharged from the hospital, and the complaint asserted specific allegations of negligence relating to the decedent's premature hospital discharge (citation omitted). In addition, contrary to the conclusion of the Supreme Court, the plaintiff demonstrated that the failure to originally name Persky as a defendant was the result of a mistake, and there was no need to show that such mistake was excusable (citation omitted).”

CPLR 203 – Failure to exercise due diligence to discover identity of John Doe

Holmes v. City of New York, 132 A.D.3d 952, 18 N.Y.S.3d 676 (2d Dep’t 2015): “Here, the plaintiffs failed to establish that they exercised due diligence to discover the identity of the John Doe defendants prior to the expiration of the statute of limitations. There is no indication in the record that the plaintiffs engaged in any pre-action disclosure or made any Freedom of Information Law requests (citations omitted). Moreover, there is no indication that the plaintiffs sought assistance from either the Criminal Court or the Supreme Court to learn the identities of the individual officers before the statute of limitations had run (citations omitted). Although the plaintiffs maintain that, due to a pending investigation by the NYPD's Internal Affairs Bureau, they did not learn the identities of the subject officers until the injured plaintiff's criminal trial, the plaintiffs' submissions failed to show that they diligently sought to gain access to the records contained in the file for the criminal proceeding prior to the expiration of the statute of limitations.”

CPLR 203(c) – Parties united in interest – relation back cannot be applied Mileski v. MSC Indus. Direct Co., Inc., 138 A.D.3d 797, 30 N.Y.S.3d 159 (2d Dep’t 2016) (“Here, the plaintiff cannot rely on the relation-back doctrine to save her untimely claims against the appellants. Even if the appellants are united in interest with Deer Park, the decedent's employer, and can be held vicariously liable for Deer Park's acts, then the immunity from the plaintiff's claims afforded to Deer Park by the Workers' Compensation Law is extended to them (citation omitted). Sharing the exact same jural relationship with Deer Park would render the appellants immune from the plaintiff's claims. Thus, the relation-back doctrine cannot be applied to the claims against the appellants, and those claims are time-barred. Accordingly, the Supreme Court should have denied that branch of the plaintiff's motion which was for leave to amend the complaint to add the appellants as additional defendants.”).

CPLR 203(c) – Parties united in interest – relation back doctrine Berkeley v. 89th Jamaica Realty Co., L.P., 138 A.D.3d 656, 29 N.Y.S.3d 470 (2d Dep’t 2016) (“Here, the fact that Sung Yu Corp. and Hong Yu Corp. shared resources, such as business space and officers, or that Hong Yu Corp. had an informal sublease agreement with Sung Yu Corp., is not dispositive (citations omitted). The plaintiff failed to demonstrate that Sung Yu Corp. was vicariously liable for the acts of Hong Yu Corp., or that the interests of Hong Yu Corp. and Sung Yu Corp. stood and fell together such that a judgment against one would similarly affect the other. In addition, the plaintiff failed to satisfy the third condition, which requires proof that the new party knew or should have known that, but for an excusable mistake by the plaintiff as to the identity of the proper parties, the action would have been brought against it as well (citation omitted). Given the plaintiff's knowledge of the existence of Hong Yu Corp. and its involvement in the case long before the applicable limitations period had expired, and the plaintiff's failure to join Hong Yu Corp. as a defendant during that period, the plaintiff did not establish that Hong Yu Corp. knew or should have known that, but for a mistake as to the identity of the proper parties, the action would have been commenced against it as well (citations omitted).”).

CPLR 203(d) – Relation back doctrine – relation back of cross-claim It has been held that this section applies to cross claims. See Mitchell v. Olar, 138 A.D.3d 1490, 30 N.Y.S.3d 470 (4th Dep’t 2016) (“Plaintiff commenced the underlying action on September 20, 2013 by filing the complaint (see CPLR 203 [c]), which was before the three-year

4 statute of limitations for Crisafulli's property damage claim expired on October 6, 2013 (see CPLR 214 [4]). CPLR 203 (d) provides that ‘[a] defense or counterclaim is not barred if it was not barred at the time the claims asserted in the complaint were interposed.’ That section applies to cross claims as well as to counterclaims (citation omitted). Thus, although Crisafulli did not answer the complaint until after the limitations period had expired, we conclude that ‘[t]he cross claim was not barred by the [s]tatute of [l]imitations as that claim was viable at the time the underlying action was commenced’ (citations omitted). Moreover, because Crisafulli's cross claim was viable at the time the underlying action was commenced, there is no need to consider whether the cross claim arose out of the same transaction or occurrence as the claim asserted in the complaint (citations oitted). Indeed, the cross claim is ‘recoverable in full . . . regardless of whether it is related to the transaction or occurrence underlying plaintiff's claim’ (citations omitted).”).

CPLR 203(d) – Untimely counterclaim arising out of same transactions or occurrence asserted in complaint may be asserted as offset, but not for affirmative relief Balanoff v. Doscher, 2016 NY Slip Op 04896 (2d Dep’t 2016) (“The Supreme Court erred in granting that branch of the plaintiff's motion which was to dismiss the counterclaim alleging legal malpractice, to the extent that counterclaim seeks to offset any award of legal fees to the plaintiff. Pursuant to CPLR 214(6), the statute of limitations for a cause of action to recover damages for legal malpractice is three years. The statute of limitations begins to run when the cause of action accrues (see CPLR 203[a]). The defendant did not assert his counterclaim alleging legal malpractice until after the statute of limitations had expired. However, pursuant to CPLR 203(d), the defendant is entitled to seek equitable recoupment in a counterclaim. That statute provides, ‘[a] defense or counterclaim is interposed when a pleading containing it is served. A defense or counterclaim is not barred if it was not barred at the time the claims asserted in the complaint were interposed, except that if the defense or counterclaim arose from the transactions, occurrences, or series of transactions or occurrences, upon which a claim asserted in the complaint depends, it is not barred to the extent of the demand in the complaint notwithstanding that it was barred at the time the claims asserted in the complaint were interposed’ (CPLR 203[d] [emphasis added]). Under CPLR 203(d), claims and defenses that arise out of the same transaction as a claim asserted in the complaint are not barred by the statute of limitations, even though an independent action by the defendant might have been time-barred at the time the action was commenced. This provision allows a defendant to assert an otherwise untimely claim which arose out of the same transactions alleged in the complaint, but only as a shield for recoupment purposes, and does not permit the defendant to obtain affirmative relief (citations omitted). The defendant's counterclaim alleging legal malpractice relates to the plaintiff's performance under the same retainer agreement pursuant to which the plaintiff would recover, and therefore this counterclaim falls within the permissive ambit of CPLR 203(d) (citations omitted). However, the counterclaim is permitted only to the extent that it seeks to offset any award of legal fees to the plaintiff and not to the extent that it seeks affirmative relief.”).

CPLR 205 – Termination of action extension--Dismissal was not on the merits but because of the lack of proper letters of administration Barahona v. Long Is. Ambulatory Surgery Ctr., L.L.C., 137 A.D.3d 679, 27 N.Y.S.3d 374 (1st Dep’t 2016) (“Plaintiff timely commenced this action, providing notice of the claim to

5 defendants before the statute of limitations ran, and the dismissal was not on the merits but because of the lack of proper letters of administration, which plaintiff was in the process of obtaining (citation omitted).”).

CPLR 205 – Termination of action extension – First action untimely Santiago v. New York City Dept. of Educ., 130 A.D.3d 428, 10 N.Y.S.3d 873 (1st Dep’t 2015): “Plaintiff's claim against the union was not brought within the applicable four-month statute of limitations (see CPLR 217[2][a]). The statute of limitations was not tolled under CPLR 205(a), because the initial federal action, which was dismissed for lack of subject matter jurisdiction, was itself untimely.”

CPLR 205 – Termination – Motion for Reconsideration Does Not Toll Statute Arty v. New York City Health & Hosps. Corp., 2015 NY Slip Op 30609(U), 2015 N.Y. Misc. LEXIS 1279 (Sup. Ct. N.Y. Co. 2015): “Contrary to the assertions made by plaintiff, he has failed to cite any authority precluding its application. Therefore this Court finds that the motion for reconsideration was a discretionary motion which did not toll the CPLR 205(a), six month time limit to commence a new action, and as such, the clock started to run from the date on which judgment was entered December 4, 2013, not from August 8, 2014 which was the date of the Order granting plaintiff's motion for reconsideration.” (Citing Weinstein Korn & Miller)

CPLR 205(a) - Matter of Westchester Joint Water Works v. Assessor of City of Rye, 2016 NY Slip Op 04438 (Digest – July 2016) CPLR 205(a) Unavailable Where First Action Dismissed For Failure to Comply with RPTL 708(3) Mailing Requirement Because RPTL Comprehensively Addresses Issue, Resort to CPLR Remedy Unavailable

CPLR 205(a), designed to extend the statutory limitation period, provides that if an action is timely commenced and is terminated in a manner other than that prescribed by the statute, the plaintiff can commence a second action upon the same transactions or occurrences or series of transactions or occurrences within six months after termination of the first action. The exclusions under the section include where the first action was terminated by a voluntary discontinuance, a failure to obtain personal jurisdiction over the defendant, a dismissal for neglect to prosecute or a final judgment on the merits. In Westchester Joint Water Works v. Assessor of City of Rye, 2016 N.Y. Slip Op. 04438 (June 9, 2016), the issue was whether a proceeding dismissed for an unexcused failure to comply with Real Property Tax Law § 708(3)’s (RPTL) mailing requirements could be recommenced under CPLR 205(a). Here, the petitioner had brought nine separate tax certiorari proceedings challenging certain real property tax assessments. RPTL § 708(3) requires that in a tax certiorari proceeding, the petitioner must mail a copy of the notice of petition and petition to the school district’s superintendent within 10 days after service of those documents on the municipality. The purpose of the mailing requirement is to give school districts the opportunity to intervene in tax certiorari proceedings. The petitioner here failed to comply with the mailing requirement before it had reached an agreement in principle to resolve the proceedings. Prior to finalizing the tentative agreement, however, the petitioner notified the District of the error, mailed copies of the pleadings to the superintendent and sought the District’s consent to the proposed settlement.

The District moved to intervene and to dismiss for failing to comply with RPTL § 708(3)’s mailing requirements, which motions were granted by the Supreme Court. In addition, the court denied the petitioner’s cross-motion for leave pursuant to CPLR 205(a) to recommence the proceeding. On appeal, the Appellate Division ruled that “[s]ince a dismissal pursuant to RPTL § 708 (3) operates as a dismissal upon the merits, the relief afforded by CPLR 205 (a) is unavailable.” Westchester Joint Water Works v. Assessor of City of Rye, 120 A.D.3d 1352, 1354 (2d Dep’t 2014). The New York State Court of Appeals affirmed, but on a different basis. It did not focus on CPLR 205(a)’s language or its exclusions (e.g., that the first action was properly commenced or was dismissed on the merits). Instead, the Court focused on RPTL § 708(3)’s language, purpose and history. The Court noted that the language in RPTL § 708(3) addressed the precise issue here. The statute provides that a dismissal for failing to comply with the mailing provisions is to be excused only for “good cause shown.” In other words, the statute’s language “reflects an intent to permit a petitioner who has ignored the subject mailing requirements to proceed only where the error is found to be excusable.” Westchester Joint Water Works, 2016 N.Y. Slip Op. 04438 at *4. The Court stressed that where the RPTL expressly and “comprehensively” covers a particular issue – here the consequences where a proceeding is dismissed for failing to comply with the mailing requirements – “a petitioner may not reach outside of the RPTL” to apply the CPLR provisions. In addition, statutory construction rules require that “effect and meaning must, if possible, be given to [all parts of a] statute.” Id. To apply CPLR 205(a) in this case would be to render ineffective RPTL § 708(3)’s “good cause” language. Finally, the relevant statute intended to permit school districts to determine whether they wanted to avoid the cost of participating in every tax certiorari proceeding and whether to reserve monies to satisfy judgments in these proceedings. Thus, to permit recommencement would “undermine the aims of fairness and efficiency that prompted the amendments to RPTL 708(3).” Id. at *5. Parenthetically, the Court of Appeals noted that it was addressing a split in the Appellate Division on the issue of recommencement under RPTL § 708(3). The split here, however, was between two panels in the same Department (the Second)! While this does not happen frequently, it only adds to the confusion that abounds in certain areas of procedure.

CPLR 205(a) – Termination of action toll – defect in prior action Weksler v. Weksler, 2016 NY Slip Op 04661 (1st Dep’t 2016) (“The court properly found that CPLR 205(a) applied to index no. 652843/11. The first action (index no. 603288/07) was ‘timely commenced’ (id.). Because CPLR 205(a) is a remedial statute, whose ‘broad and liberal purpose is not to be frittered away by any narrow construction’ (citations omitted), the eleventh cause of action of index no. 603288/07 should be deemed ‘terminated’ within the meaning of CPLR 205(a) as of this Court's decision in Weksler v Weksler (citation omitted). Petitioner commenced index no. 652843/11 within six months after that decision (see CPLR 205[a]). Respondents' claim that CPLR 205(a) does not apply because the eleventh cause of action was a nullity is without merit. ‘[R]esolution of questions involving CPLR 205 (subd [a]) is not aided by use of the word nullity'’ (citation omitted). ‘Indeed, . . . the statute by its very nature is applicable in those instances in which the prior action was properly dismissed because of some fatal flaw; thus, to suggest that it should not be applied simply because there was a deadly defect in the prior action seems nonsensical’ (id. [internal quotation marks and brackets omitted]). Respondents complain that the 2014 order effectively gave petitioner an 11-year statute of

7 limitations. However, the Court of Appeals has ‘declined to subordinate CPLR 205(a) and the policy preference it embodies even where the effect of [the court's] declination was . . . to toll for a substantial period a designedly brief limitations period’ (citation omitted). We note that ‘at least one of the fundamental purposes of the Statute of Limitations has in fact been served, and [respondents have] been given timely notice of the claim being asserted by [petitioner]’ (citation omitted).”).

CPLR 205(a) – Termination of Action and Six Month Toll – Out of State Action is Not “Prior Action” Midwest Goldbuyers, Inc. v. Brink's Global Servs. USA, Inc., 120 A.D.3d 1150, 992 N.Y.S.2d 883 (1st Dep’t 2014): “Plaintiff's claims arising from transactions that occurred more than one year before the filing of the instant suit in New York are time-barred under the one-year contractual limitations period. The IAS court correctly held that plaintiff's prior action in Illinois was not a ‘prior action’ for purposes of the six-month toll in CPLR 205(a) (citation omitted).”

Application of CPLR 205(a) (Digest – July 2015) Application of CPLR 205(a)When Does a Prior Action Dismissed for Failure to Perfect Appeal Terminate? CPLR 205(a) permits a plaintiff to bring a second action within six months after the termination of a prior action even if the statute of limitations has run in the interim. In order to take advantage of CPLR 205(a), several requirements must be met. For example, the second action must be based on the “same transaction or occurrence or series of transactions or occurrences” as the prior action. Moreover, the first action cannot have been terminated in certain ways, including a voluntary discontinuance, failure to obtain personal jurisdiction, a dismissal for neglect to prosecute or a final judgment on the merits. And, the second action must be commenced and service effected within six months after termination of the prior action. One issue is determining when the first action terminates when an earlier dismissal order is appealed. In Lehman Bros. v. Hughes Hubbard & Reed, 92 N.Y.2d 1014, 1016–17 (1998), the N.Y. Court of Appeals held that the prior action terminates when an appeal taken as of right is exhausted. Thus, a second action brought within six months of the exhaustion of a discretionary appeal would be untimely. Lehman Bros. did not address, however, what would happen if a party pursues, but does not properly perfect, an appeal as of right, resulting in the appeal being dismissed. In Malay v. City of Syracuse, 2015 N.Y. Slip Op. 04164 (May 14, 2015), the plaintiff’s initial federal court action was terminated after her federal claims were dismissed and the court refused to exercise jurisdiction over her state law claims. After taking an appeal as of right to the Second Circuit, the plaintiff decided “strategically” not to pursue the appeal and commenced a state court action before her appeal was dismissed. The N.Y. Court of Appeals held that the prior federal action terminated, under CPLR 205(a), when the intermediate appellate court dismissed the appeal, not when the underlying order was entered. The Court reasoned that its decision comported “with the statute’s remedial purpose of allowing plaintiffs to avoid the harsh consequences of the statute of limitations and have their claims determined on the merits.” Id. at 4. The Court rejected the defendants’ argument that the Court’s interpretation would encourage plaintiffs to take frivolous appeals they do not intend to perfect. In fact, a plaintiff whose appeal was dismissed because of a failure to perfect would lose the right to appeal those same issues. The Court also rejected defendants’ argument that the plaintiff could have protected herself by

8 bringing another state court action within six months of the appeal of the underlying order while also pursuing the appeal. The Court noted that the second action would have been wasteful and subject to dismissal under CPLR 3211(a)(4) (prior action pending). Interestingly, because not preserved for review, the Court did not address whether the dismissal of the appeal for failure to perfect would be a “voluntary discontinuance” or “neglect to prosecute,” which would exclude the case from CPLR 205(a) treatment.

CPLR 208 –Hearing on Insanity Issue Feller v. Earth Leasing, LLC, 137 A.D.3d 1602, 28 N.Y.S.3d 160 (4th Dep’t 2016) (“Plaintiffs commenced this action in August 2010 to recover damages for injuries sustained by Roger D. Feller (plaintiff) when a piece of rebar was propelled into the back of his head as he operated an excavator at a demolition site in July 2006. Defendants-respondents (defendants) moved to dismiss the action against them as time-barred, and plaintiffs contended in opposition to the motion that the statute of limitations had been tolled pursuant to CPLR 208 based on plaintiff's insanity, i.e., that his injuries had left him ‘unable to protect [his] legal rights because of an [overall] inability to function in society’ for a period that would have rendered the action timely (citation omitted). After a hearing on the issue of insanity, Supreme Court granted defendants' motion, and plaintiffs appeal. We affirm. Even assuming, arguendo, that CPLR 4213 ‘applies to a hearing before the court for the resolution of factual issues incident to the disposition of a motion challenging [the timeliness of an action], as distinguished from a trial on the merits’ (citations omitted), and thus that the court erred in failing to ‘state the facts it deem[ed] essential’ in its decision (CPLR 4213 [b]), we nonetheless conclude that ‘the record is sufficient to enable us to make the requisite findings’ (citation omitted). Based on our review of the record, we conclude that the court properly determined that plaintiff's mental condition did not render him unable to function in society (citations omitted). At the hearing, a neurosurgeon who treated plaintiff on four postaccident occasions in 2006 testified for defendants that plaintiff was able to engage in a normal physician-patient relationship, and that there was ‘never any doubt in [his] mind that [plaintiff] was competent to make his own decisions at that time.’ Defendants also submitted the deposition testimony of two attorneys who performed legal work for plaintiff in 2007, wherein they testified that plaintiff was capable of making legal decisions. In addition, the neuropsychologist who testified for plaintiffs at the hearing conceded that plaintiff was lucid during their interactions, and that plaintiff ‘could answer anybody's questions.’ Affording due deference to the court's resolution of credibility issues (citations omitted), we conclude that its determination is ‘well supported in the record’ (citations omitted).”). But see Solovey v. Department of Educ. of the City of New York, 136 A.D.3d 441, 24 N.Y.S.3d 282 (1st Dep’t 2016) (“Were we not dismissing the appeal, we would find that Supreme Court did not err in forgoing a hearing on the issue of plaintiff's competency for purposes of the tolling provision of CPLR 208. The record belies plaintiff's contention that her depression and anxiety constitute ‘insanity’ for purposes of the tolling provision of CPLR 208. During a November 20, 2012 hearing, plaintiff testified coherently and effectively as to her understanding of the stipulation's terms and her willingness to forgo her right to a tenure hearing, and her counsel, who was present when she signed the challenged stipulation, did not mention competency at that time (citation omitted). Moreover, the record shows that at the time she signed the stipulation, plaintiff was able to continue caring for two elderly individuals with health problems and her teenage son, who had severe behavioral issues (citation omitted).”).

CPLR 208 – Definition of Insanity Lynch v. Carlozzi, 129 A.D.3d 1240, 11 N.Y.S.3d 309 (3d Dep’t 2015): “[T]he toll for ‘insanity’ provided by CPLR 208 is narrowly interpreted, the concept of insanity is ‘equated with unsoundness of mind’ (citation omitted) and encompasses ‘only those individuals who are unable to protect their legal rights because of an over-all inability to function in society’ (citation omitted). The mental incapacity must exist at or be caused by the accident and continue during the relevant time (citations omitted).”

CPLR 210 – Living v. Death claim Stein v. Chiera, 130 A.D.3d 912, 14 N.Y.S.3d 133 (2d Dep’t 2015): “Additionally, the statute of limitations for medical malpractice is 2½ years (see CPLR 214-a). Thus, the plaintiff had 2 years from the date of the decedent's death, November 7, 2005, to assert a wrongful death cause of action for any act of medical malpractice that occurred within 2½ years before the date of the decedent's death (citations omitted). Contrary to the plaintiff's contention and the Supreme Court's holding, the 2½-year lookback period ran not from the commencement of the 2006 action in October 2006, but from the date of the decedent's death, November 7, 2005.”

CPLR 212 Amendment-10 year SOL (L. 2015, ch 368, sec 31, eff January 19, 2016) Added new subdivision (e), providing that the statute of limitations for an action by a victim of sex trafficking, compelling prostitution, labor trafficking or aggravated labor trafficking is 10 years, and does not begin to run and is "tolled by any period in which the victim is subject to such conduct."

CPLR 213(1) – Six year statute of limitations applicable to Executive Law § 63(12) fraud claim A fraud claim under Executive Law § 63(12) is governed by CPLR 213(1), and not CPLR 214(2). Matter of People of the State of N.Y. by Eric T. Schneiderman v. Trump Entrepreneur Initiative LLC, 137 A.D.3d 409, 26 N.Y.S.3d 66 (1st Dep’t 2016) (“Turning now to the statute of limitations issue, we find, for the reasons already stated, that the fraud claim under § 63(12) is not subject to the three-year statute of limitations imposed by CPLR 214(2), but rather, is subject to the residual six-year statute of limitations in CPLR 213(1) (citation omitted). As concluded above, § 63(12) does not create any liability nonexistent at common law, at least under the court's equitable powers. As also concluded above, § 63(12) does not encompass a significantly wider range of fraudulent activities than were legally cognizable before the section's enactment (citations omitted).”).

CPLR 213 –Six year statute of limitations applicable to unjust enrichment and constructive trust claims Matter of Trombley, 137 A.D.3d 1641 (4th Dep’t 2016) (“Petitioner's claims based on unjust enrichment and constructive trust are also subject to a six-year statute of limitations and accrue upon the ‘occurrence of the wrongful act giving rise to a duty of restitution’ (citations omitted). We agree with respondent that the statute of limitations began to run for both claims when she repudiated any intention of conveying the real property to petitioner or decedent's estate in February 2006 (citations omitted).”).

CPLR 213 – Fraud essential to breach of fiduciary claim DiRaimondo v. Calhoun, 131 A.D.3d 1194, 17 N.Y.S.3d 722 (2d Dep’t 2015): “In this case, the allegations of actual fraud are essential to, not merely incidental to, the breach of fiduciary duty causes of action (citation omitted). Consequently, the limitations period set forth in CPLR 213(8) applies.”

CPLR 213 – Accrual of Contract Statute of Limitations – for Breach of Representations and Warranties (Digest – August 2015) Accrual of Statute of Limitations for Breach of Representations and Warranties Under CPLR 213 Court Finds Defendant Did Not Guarantee Future Performance Two certificate holders in a Trust timely sued DB Structural Products, Inc. (DBSP), the sponsor of a transaction involving residential mortgage-backed securities (RMBS). The plaintiffs alleged that DBSP failed to repurchase loans that allegedly did not conform to its representations and warranties in an underlying Mortgage Loan Purchase Agreement (MLPA). The loans were then transferred to the Trust pursuant to a Pooling and Servicing Agreement (PSA). The Trust sought later to substitute itself as plaintiff in the certificate holders’ place. The MLPA provided that in the event DBSP breached any representations or warranties, the sole remedy was that DBSP cure or repurchase a non-conforming loan. The primary issue we will deal with here was whether the action was timely and, more specifically, when the cause of action accrued. In ACE Sec. Corp. v. DB Structured Prods., Inc., 2015 N.Y. Slip Op. 04873 (June 11, 2015), the N.Y. Court of Appeals concluded that the cause of action accrued when the contract was executed (on March 28, 2006), rather than when DBSP failed to timely cure or repurchase a loan, and was, thus, untimely. The Court noted that the objectives of statutes of limitation – that is, fi nality, certainty, and predictability – are the same that contract law endorses. Thus, New York does not recognize a discovery rule applicable to a contract action statute of limitations. The Court rejected the Trust’s argument that the repurchase obligation was a distinct and continuing obligation that DBSP breached each time it refused to cure or repurchase a non-conforming loan. Although the Court acknowledged that parties can contractually agree to undertake separate obligations, the breach of which does not arise until a future date, that was not the case here: DBSP . . . never guaranteed the future performance of the mortgage loans. It represented and warranted certain facts about the loans’ characteristics as of March 28, 2006, when the MLPA and PSA were executed, and expressly stated that those representations and warranties did not survive the closing date. DBSP’s cure or repurchase obligation was the Trust’s remedy for a breach of those representations and warranties, not a promise of the loans’ future performance. In fact, nothing in the contract specified that the cure or repurchase obligation would continue for the life of the loans. . . . DBSP’s cure or repurchase obligation could not reasonably be viewed as a distinct promise of future performance. It was dependent on, and indeed derivative of, DBSP’s representations and warranties, which did not survive the closing and were breached, if at all, on that date. Id. at *6–7. Thus, the Court concluded that the six-year statute of limitations accrued when the contract was executed and the representations and warranties were made.

CPLR 213(4) –– Six year statute of limitations applicable to mortgage foreclosure actions Goldman Sachs Mtge. Co. v. Mares, 135 A.D.3d 1121, 23 N.Y.S.3d 444 (3d Dep’t 2016) (“As limited by their brief, defendants argue only that plaintiff's action is time-barred by the six- year statute of limitations governing mortgage foreclosure actions (see CPLR 213 [4]). Specifically, defendants argue that the mortgage's acceleration clause was automatically triggered and the statute of limitations began to run when plaintiff's predecessor in interest sent a June 2007 letter to defendants informing them that they were in default for nonpayment. We cannot agree. ‘The six-year statute of limitations in a mortgage foreclosure action begins to run from the due date for each unpaid installment unless the debt has been accelerated; once the debt has been accelerated by a demand or commencement of an action, the entire sum becomes due and the statute of limitations begins to run on the entire mortgage’ (citations omitted). Where, as here, it is alleged that the debt was accelerated by demand, that fact must be communicated to the mortgagor in a clear and unequivocal manner (citations omitted).”).

CPLR 213(8) – Discovery of Fraud Aozora Bank, Ltd. v. Deutsche Bank Sec. Inc., 137 A.D.3d 685 (1st Dep’t 2016) (“As this Court has held, ‘Where the circumstances are such as to suggest to a person of ordinary intelligence the probability that he has been defrauded, a duty of inquiry arises, and if he omits that inquiry when it would have developed the truth, and shuts his eyes to the facts which call for investigation, knowledge of the fraud will be imputed to him’ (citations omitted). Thus, public reports and lawsuits of alleged fraud are sufficient to put a plaintiff on inquiry notice of fraud (citations omitted). Similarly, losses that a plaintiff sustains may put it on notice of possible fraud (citation omitted). Accordingly, Deutsche Bank made a prima facie case that Aozora was on inquiry notice of its fraud claims before June 18, 2011 (that is, two years before it filed the summons with notice). The burden then shifted to Aozora to establish that, even if it had exercised reasonable diligence, it could not have discovered the basis for its claims before that date. But Aozora failed to carry its burden, as there was a wealth of public information that should have put it on inquiry notice of the alleged fraud. First, in 2008, Blue Edge was downgraded to junk status and plaintiff incurred substantial losses on its investment. Second, there was considerable publicity about the subprime mortgage crisis from news reports, investor lawsuits, and government investigations well before June 2011. Indeed, by April 2011, defendants had been sued multiple times in connection with RMBS and CDOs, including in connection with a Deutsche Bank CDO known as Gemstone, which plaintiff discusses in its complaint as involving wrongdoing by defendants ‘identical’ to that involved with respect to Blue Edge (citation omitted).”).

CPLR 213(8) – Forged Deed (Digest – July 2015) No Bad Deed Goes Unpunished Majority of Court Finds Claim Based on Forged Deed Not Subject to Statute of Limitations Defense In Faison v. Lewis, 25 N.Y.3d 220, 10 N.Y.S.3d 185, 32 N.E.3d 400 (2015), the plaintiff was seeking to set aside and cancel the defendant bank’s mortgage interest in real property conveyed by an allegedly forged deed. A majority of the Court noted that a forged deed is void at its inception. See Marden v. Dorthy, 160 N.Y. 39, 47 (1899). As such, it is “a legal nullity at its creation . . . never entitled to legal effect.” The Court distinguished a situation where the signature and authority for conveyance of a deed are acquired by fraudulent means, which

12 merely renders the deed voidable. In the former instance, a forged deed is void initially and cannot convey good title. In the latter, the deed containing the title holder’s actual signature is voidable and “has the effect of transferring the title to the fraudulent grantee” until set aside. Thus, the forged deed was never valid, and “a statute of limitations does not make an agreement that was void at its inception valid by the mere passage of time” (citing Riverside Syndicate, Inc. v. Munroe, 10 N.Y.3d 18, 24 (2008)). The majority rejected the defendant’s and dissent’s argument that forgery is a category of fraud, subject to CPLR 213(8)’s limitation period. Moreover, it dismissed the dissent’s concerns that, absent a statute of limitations, the mere passage of time will make it difficult to defend claims, noting that CPLR 213(8) contains a discovery provision which can result in the litigation of claims long after the relevant events. In addition, stale claims cut both ways, making them difficult to prove. Finally, the majority questioned why the desire for repose outweighed the “need to ferret out forged deeds and purge them from our real property system.” Faison, 25 N.Y.3d at 230. Attorneys who previously advised clients that their claims on a forged deed were untimely under CPLR 213(8) should contact those clients to review their rights with them.

CPLR 213(8) – Forged Deed- No SOL Mazo v. Mazo, 132 A.D.3d 1112, 18 N.Y.S.3d 454 (3d Dep’t 2015): “Nor should plaintiffs' action have been deemed time-barred by the statute of limitations. While the limitations period for a cause of action sounding in fraud is the greater of six years after the cause of action accrued or two years after it could have been discovered with reasonable diligence (see CPLR 213 [8]), the Court of Appeals has recently held that this period does not apply when the particular species of fraud alleged is the forgery of a deed. The Court found that, unlike other fraud-based causes of action, ‘a claim against a forged deed is not subject to a statute of limitations defense’ because of ‘the clarity of our law that a forged deed is void ab initio, and that it is a document without legal capacity to have any effect on ownership rights’ (citation omitted).”

CPLR 213 – Declaratory judgment action Town of Hempstead v. AJM Capital II, LLC, 130 A.D.3d 607, 13 N.Y.S.3d 199 (2d Dep’t 2015): “Nevertheless, as the Town and Water District assert, and contrary to the Supreme Court's determination, the instant actions were timely commenced. An action for a declaratory judgment is generally governed by a six-year limitations period (see CPLR 213[1]). Where a declaratory judgment action involves claims that are ‘open to resolution through a form of proceeding for which a specific limitation period is statutorily provided, then that period limits the time for commencement of the declaratory judgment action'’ (citation omitted). The instant action could not have been brought pursuant to CPLR article 78 (see CPLR 7803), or as any other form of proceeding for which a specific limitations period is provided. Therefore, the six- year limitations period is applicable (citations omitted).

CPLR 213-a –Four year statute of limitation for residential rent overcharge action Todres v. W7879, LLC, 137 A.D.3d 597, 26 N.Y.S.3d 698 (1st Dep’t 2016) (“Based on the evidence that was properly admitted, and given the deference due to the trial court (citation omitted), the court properly found that defendants did not engage in a ‘fraudulent deregulation scheme to remove an apartment from the protections of rent stabilization’ (citations omitted).

Having so found, however, the court should not have looked at ‘the rental history of the housing accommodation prior to the four-year period immediately preceding the commencement of the action’ (CPLR 213-a).”).

CPLR 213-a (Digest – June 2015) CPLR 213-a: Residential Rent Overcharge Action, When Is Too Late, Too Late? What Four-Year Period Does CPLR 213-a Cover? CPLR 213-a governs the statute of limitations for actions seeking recovery for a residential rent overcharge. On its face, the statute appears to be quite straightforward. It provides that [a]n action on a residential rent overcharge shall be commenced within four years of the first overcharge alleged and no determination of an overcharge and no award or calculation of an award of the amount of any overcharge may be based upon an overcharge having occurred more than four years before the action is commenced. This section shall preclude examination of the rental history of the housing accommodation prior to the four-year period immediately preceding the commencement of the action. This appears to say that an action must be brought within four years of the first overcharge. Nevertheless, several Court of Appeals decisions have cast doubt on this interpretation and most recently, a majority of the Court, over a rigorous dis-sent, appears to have rejected outright this reading. In Conason v. Megan Holding, LLC, 25 N.Y.3d 1, 6 N.Y.S.3d 206, 29 N.E.3d 215 (2015), the landlord argued that since the tenants’ first overcharge occurred more than four years before the claim was interposed, the claim was barred by the statute as untimely. In other words, the claim accrued when the tenants first paid an allegedly unlawful rent. The tenants countered that CPLR 213-a did not bar their claim, but merely limited their recovery to rent overcharges occurring within four years of interposing the claim, even though the alleged (first) overcharge occurred before that period. The tenants maintained that the rent stabilization base rate date was inaccurate because it resulted from fraud. The majority opinion, written by Judge Read, agreed with the tenants’ position, finding that the Court’s prior decisions in Thornton v. Baron, 5 N.Y.3d 175 (2005) and Grimm v. State of N.Y. Div. of Hous. & Cmty. Renewal Off. of Rent Admin., 15 N.Y.3d 358 (2010) “dictate[d] the resolution” of the issue in Conason. In Thornton, the Court held that a lease provision which circumvented the rent stabilization laws was void as being in violation of New York public policy, and “because the rent it purported to establish was therefore illegal, the 1996 rent registration statement listing this illegal rent was also a nullity.” Thornton, 5 N.Y.3d at 181. Significantly, the plaintiffs in Thornton did not sue the owner for more than seven years after having paid an allegedly unlawful rent. In Grimm, the Court of Appeals held that where there were sufficient allegations of fraud against the landlord, the Department of Housing and Community Renewal (DHCR) was obligated to determine whether the base date rent was lawful. The Court found that the DHCR should have examined the apartment’s rental his-tory prior to the four-year period preceding the commencement of the action to ascertain whether the base date rent itself was an overcharge. Note that the action was brought well within the four-year limitation period. The Court concluded that the DHCR had acted arbitrarily and capriciously in disregarding the plaintiff’s allegations and without ascertaining the legality of the base rent. The majority in Conason concluded that the concerns expressed by the dissent were considered and rejected by the majority opinions in Thornton and Grimm. The dissent in

Conason, written by Judge Pigott, asserted that neither the Thornton nor the Grimm decisions supported the majority’s conclusions. Significantly, the dissent pointed out that neither case actually decided the statute of limitations issue. In fact, in Grimm, the plaintiff brought the action within four years of the overcharge. Moreover, in Thornton, the majority did not decide the statute of limitations issue, limiting itself to deciding how the legal regulated rent was to be established. The dissent argued that the majority in Conason rewrote CPLR 213-a, in essence deleting the first clause of the statute and removing the statute of limitations. In other words, the majority read CPLR 213-a as merely limiting a tenant to rent overcharges occurring during the four-year period prior to asserting the claim, regardless of when the first over-charge occurred. The dissent concluded that the majority decision would have serious and troublesome ramifications: Rent records will be subject to challenge indefinitely. Property owners and buyers will have no certainty as to the value of residential rental property. Landlords will have to keep evidence of rent charges indefinitely, in order to preserve their ability to defend against fraudulent rent overcharge claims. And endless litigation will ensue concerning whether ten-ants are making “a colorable claim of fraud within the meaning of Grimm,” before any complaint challenging years-old rents can be dismissed. Conason, 25 N.Y.3d at 21.

CPLR 214 – 42 USC § 1983 claim barred by three-year statute of limitations Azor v. City of New York, 137 A.D.3d 426, 25 N.Y.S.3d 869 (1st Dep’t 2016) (“Plaintiff's claim for alleged civil rights violations during disciplinary hearing proceedings, under 42 USC § 1983, is barred by the three-year statute of limitations (citations omitted). Plaintiff's time to commence the section 1983 action began to accrue on the date of the disciplinary hearing determination, as it impliedly challenged the conditions of his confinement, namely, punitive segregation, and not the fact or duration of his confinement (citations omitted). That plaintiff was a pretrial detainee, at the time, does not bring this claim outside of the purview of Jenkins.”).

CPLR 214(3) –Three year statute of limitations applicable to conversion and replevin claims Swain v. Brown, 135 A.D.3d 629, 24 N.Y.S.3d 598 (1st Dep’t 2016) (“Under CPLR 214(3), the statutory period of limitations for conversion and replevin claims is three years from the date of accrual. The date of accrual depends on whether the current possessor is a good faith purchaser or bad faith possessor. An action against a good faith purchaser accrues once the true owner makes a demand and is refused (citation omitted). This is ‘because a good-faith purchaser of stolen property commits no wrong, as a matter of substantive law, until he has first been advised of the plaintiff's claim to possession and given an opportunity to return the chattel’ (citation omitted). By contrast, an action against a bad faith possessor begins to run immediately from the time of wrongful possession, and does not require a demand and refusal (citations omitted). Thus, ‘[w]here replevin is sought against the party who converted the property, the action accrues on the date of conversion’ (citation omitted).”).

CPLR 214[6] – Professional malpractice – Continuous Representation Doctrine Bronstein v. Omega Constr. Group, Inc., 138 A.D.3d 906, 30 N.Y.S.3d 653 (2d Dep’t 2016) (“Regardless of whether they are framed as claims sounding in contract or tort, allegations

15 of professional malpractice, other than medical malpractice, are governed by a three-year statute of limitations (citations omitted). Accrual of a claim to recover for professional malpractice occurs upon the completion of performance and the resulting termination of the professional relationship (citations omitted). Where dismissal of a malpractice claim is sought pursuant to CPLR 3211(a) on the ground that it is time-barred, the defendant bears the initial burden of establishing, prima facie, that the time within which to sue has expired, whereupon the burden shifts to the plaintiff to raise a question of fact as to whether the limitations period has been tolled or should not apply (citations omitted). Contrary to Cetera's contentions, in response to his prima facie showing that the action was commenced against him more than three years after his withdrawal, the plaintiffs succeeded in raising a question of fact as to whether the continuous representation doctrine is applicable so as to toll the running of the three-year statute of limitations. Under the circumstances, the evidence of continuing communications between the parties, and of efforts by Cetera to remedy the alleged errors or deficiencies in the filed plans, supported the denial of Cetera's motion to dismiss the amended complaint insofar as asserted against him (citations omitted).”).

CPLR 214(6)–Continuous representation doctrine and “mutual understanding” Stokoe v. Marcum & Kliegman LLP, 135 A.D.3d 645, 24 N.Y.S.3d 267 (1st Dep’t 2016) (“Nor was the complaint untimely, whether based on the three year limitations period of CPLR 214(6) or the similar contractual limitations period in the engagement letters. Plaintiffs carried their burden of demonstrating evidentiary facts showing that the continuous representation toll applied (citation omitted), based on the ‘mutual understanding’ set forth in the engagement letters that defendants could be called upon in a government investigation to justify their audit findings.”).

CPLR 214(6) –Continuous representation doctrine did not apply because there was no continuity of services Mahran v. Berger, 37 A.D.3d 1643, 28 N.Y.S.3d 187 (4th Dep’t 2016) (“‘The burden then shifted to plaintiffs to raise a triable issue of fact whether the statute of limitations was tolled by the continuous representation doctrine’ (id.), and plaintiffs ‘failed to meet that burden inasmuch as [they] failed to present the requisite clear indicia of an ongoing, continuous, developing, and dependent relationship between the client and the attorney to toll the statute of limitations’ (citation omitted). The continuous representation doctrine does not apply here inasmuch as there was no continuity of services provided by defendant to plaintiffs in conjunction with the application for the doctor's immigration documents, and no mutual understanding that plaintiffs required further legal work in that regard (citation omitted). Indeed, despite Mahran's assertions, his unilateral belief that defendant continued to represent plaintiffs after the immigration application process was completed is insufficient to establish the existence of a continuing relationship (citation omitted). Although the completion of that process provided the prerequisite conditions for the doctor's employment, the dispute that arose between Mahran and the doctor with respect to the employment agreement constituted a separate contractual matter concerning those parties only, and we conclude that any evidence of subsequent contact between defendant and Mahran with respect to that dispute is not indicative of a continuing attorney-client relationship, and thus is insufficient to raise an issue of fact (citation omitted). To the extent that plaintiffs contend that the statute of limitations should be tolled during the period

16 of defendant's continuing representation of the doctor, that contention is without merit (citations omitted).”).

CPLR 214(6) Professional Malpractice – Continuous Representation Doctrine – Separate and Distinct Legal Proceeding? Town of Amherst v. Weiss, 120 A.D.3d 1550, 993 N.Y.S.2d 396 (4th Dep’t 2014): “Although defendants contended that their representation was not continuous, as evidenced by the fact that there were three separate and distinct actions by the Town to retain them and numerous gaps in their representation of the Town, we conclude that the Town nevertheless raised triable issues of fact concerning continuous representation. …Here, while there were three separate and distinct retainer agreements, we conclude that there are triable issues of fact whether defendants were retained for separate and distinct legal proceedings or, rather, ‘ongoing and developing phases of the [same] litigation’ (citation omitted). We cannot say as a matter of law that all of defendants' acts ‘were not interrelated so that representation on [the second Section 75 hearing and the subsequent CPLR article 78 proceeding were] not part of a continuing, interconnected representation’ to perform the specific task of terminating a Town employee (citation omitted). Inasmuch as ‘[a] question of fact exists on this issue, . . . summary judgment is inappropriate’ (id.).”

CPLR 214(6) – Professional Malpractice – Continuous Representation Doctrine – Representation can be terminated prior to execution and filing of consent to change attorney. Farage v. Ehrenberg, 124 A.D.3d 159, 996 N.Y.S.2d 646 (2d Dep’t 2014): “Where a party discharges his or her counsel, the continuous representation toll can terminate prior to the execution and filing of a consent to change attorney. “This appeal presents the question of whether the attorney-client relationship, for purposes of measuring the continuing representation toll of the statute of limitations, should run to the filing of the Consent to Change Attorney form or from earlier factual events involving the attorney and the client. We hold that courts must examine the unique circumstances of each case and that where, as here, facts establish a client's discharge of counsel on a date preceding execution and filing of the Consent to Change Attorney form, the continuing representation toll of the statute of limitations for legal malpractice runs only to the date of the actual discharge and not to the date of the later Consent to Change Attorney.”

CPLR 214(6) – Professional Malpractice – Three year limitation period Farage v. Ehrenberg, 996 N.Y.S.2d 646 (2d Dep’t 2014): “In addition, the complaint alleges causes of action sounding in deceit and collusion. While a recent case decided by the Court of Appeals holds that causes of action to recover damages for attorney deceit under common law or under Judiciary Law § 487 are governed by a six-year statute of limitations (see Melcher v Greenberg Traurig, LLP, 23 NY3d 10, 15), it does not affect the result here. The Melcher case involved an attorney plaintiff's claims of deceit and collusion under Judiciary Law § 487 against fellow attorneys of the same law firm, to which the Court of Appeals applied the six-year statute of limitations of CPLR 213(1). What distinguishes Melcher from the instant action is that Melcher did not involve any claim of legal malpractice. The Court of Appeals held in 1992 that in actions alleging professional malpractice (other than the medical, dental or podiatric varieties), where additional theories of recovery were asserted such as breach of

17 contract, plaintiffs could prosecute cases governed by longer statutes of limitations based on the nature of the remedies sought (citations omitted). However, Santulli was abrogated by the legislature's 1996 amendment to CPLR 214(6) to provide, as it does today, that such professional malpractice actions are governed by a three-year statute of limitations ‘regardless of whether the underlying theory is based in contract or tort’ (citations omitted). It is for this reason that post- 1996 legal malpractice actions that also allege breach of contract, fraud, and other causes of action governed by lengthier statutes of limitations are dismissed as time-barred if not brought within three years of accrual, if the additional claims involve facts duplicating the legal malpractice claims and do not allege distinct damages (citations omitted). We see no reason not to apply those holdings to the plaintiff's remaining causes of action, including those sounding specifically in deceit. We do not construe Melcher as calling for any contrary result or interpreting CPLR 214(6) in any manner other than its plain language where a claim of legal malpractice has been asserted.”

CPLR 214(6) – Professional Malpractice – Professional v. Nonprofessional Services 797 Broadway Group, LLC v. Stracher Roth Gilmore Architects, 1232 A.D.3d 1250, 999 N.Y.S.2d 561 (3d Dep’t 2014): “Moreover, a review of the scope of services in the parties' agreement indicates that plaintiff contracted with defendant solely for professional services relating to the design of the renovations to be performed on plaintiff's building. Indeed, plaintiff does not dispute that the duties set forth in the agreement were ‘[]consistent with an architect's ordinary professional obligations’ (citation omitted), and the complaint characterizes the parties' agreement as one for ‘professional services.’ In contrast, the complaint describes plaintiff's separate agreement with BCI as one for nonprofessional construction administration and management services, including the provision of all labor, materials, equipment and services necessary to perform the redevelopment work. In light of the foregoing, we conclude that plaintiff's fourth and fifth causes of action -- alleging that defendant was negligent and breached the parties' contract by failing to use reasonable care in rendering its professional services -- essentially allege professional malpractice (citations omitted). Such claims ‘“come[] within the purview of CPLR 214 (6),’’ which sets forth a three-year statute of limitations for nonmedical malpractice, ‘‘regardless of whether the theory is based in tort or breach of contract”’ (citations omitted).”

CPLR 214-a, 208– Infancy or continuous treatment tolls do not apply to derivative claims Baer v. Law Offs. of Moran & Gottlieb, 139 A.D.3d 1232, 32 N.Y.S.3d 359 (3d Dep’t 2016) (“However, ‘neither the infancy toll nor the continuous treatment toll applies to derivative claims’ (citations omitted)…. It is uncontested that plaintiffs' potential claims against defendants in their son's medical malpractice case were purely derivative in nature. Hence, plaintiffs could not take advantage of either the continuous treatment or infancy toll (citations omitted), and the statute of limitations with respect to their derivative claims expired, at the latest, in October 2006 — well before Clegg is alleged to have first become involved with plaintiffs' medical malpractice case in 2008.”).

CPLR 214-a – Medical Malpractice-Continuous Treatment Doctrine Lohnas v Luzi, 2016 NY Slip Op 04819 (4th Dep’t 2016) (“We respectfully disagree with our dissenting colleague's view that ‘because the parties only contemplated treatment after September 5, 2003 on an as needed basis,' the continuous treatment doctrine does not apply.’ The

18 determination whether continuous treatment exists ‘must focus on the patient’ (citation omitted) and, ‘[i]n determining whether plaintiff[] raised an issue of fact concerning the applicability of the continuous treatment doctrine, [her] version of the facts must be accepted as true’ (citation omitted). Based on plaintiff's version of the facts, there is support in the record for a finding that plaintiff ‘intended uninterrupted reliance’ upon defendant's observation, directions, concern, and responsibility for overseeing her progress. Notably, during approximately 7 years of treatment with defendant, plaintiff underwent two surgeries, saw no other physician regarding her shoulder, and returned to him for further treatment, i.e., a potential third surgery, but was told that he did not treat or operate on shoulders anymore. Defendant referred plaintiff to another physician in his practice, and plaintiff went to that appointment, but was told that the second physician would not treat her. Furthermore, the fact that plaintiff left the September 5, 2003 appointment with a direction to see defendant ‘as needed’ is not dispositive inasmuch as defendant conceded that ‘[o]bviously [plaintiff's] problem is long standing and chronic. She most likely will need further surgery in the future due to her young age and need for revision shoulder replacement vs fusions.’ While plaintiff's subsequent visit to defendant on April 28, 2006 ‘might not have been scheduled at the conclusion of the visit on [September 5, 2003], we recognize that, as a practical matter, it is not always possible to know at the conclusion of one visit with a physician whether a further visit with the physician may become indicated for the same condition within a reasonable time thereafter’ (citations omitted). Although plaintiff certainly admitted to being discouraged with defendant after the September 5, 2003 visit, we cannot conclude that such discouragement renders the continuous treatment doctrine inapplicable as a matter of law (citation omitted).”).

CPLR 214-a – Medical malpractice- a fixation device cannot be transformed into a foreign object merely because the continued presence of the fixation device is inadvertent Knox v. St. Luke's Hosp., 32 N.Y.S.3d 488 (1st Dep’t 2016) (“Plaintiff acknowledges that the catheter cuff, which was inserted into his chest to facilitate hemodialysis, was a fixation device, but argues that when it was inadvertently left in his chest after the catheter tube was removed, it became a ‘foreign object’ (CPLR 214-a). Plaintiff's contention that the foreign-object toll applies is raised for the first time on appeal, and therefore is unpreserved for appellate review (citation omitted). In any event, the argument is unavailing because only objects temporarily used in the course of surgery qualify as foreign objects (citation omitted). ‘A fixation device cannot be transformed into a foreign object merely because the continued presence of the fixation device is inadvertent’ (citations omitted).”).

CPLR 214-a – Continuous treatment doctrine applies; also states negligence claim Muscat v. Mid-Hudson Med. Group, P.C., 135 A.D.3d 915, 24 N.Y.S.3d 368 (2d Dep’t 2016) (“Contrary to Mid-Hudson's contention, the plaintiff raised a question of fact as to whether the statute of limitations on the medical malpractice causes of action was tolled by the continuous treatment doctrine. The plaintiff submitted medical records evincing that he underwent a continuous course of treatment with Panos for the same condition underlying the medical malpractice causes of action that remained ongoing until September 2009, which was within 2 years and 6 months of the commencement of this action (citations omitted). We note that ‘[i]ncluded within the scope of continuous treatment' is a timely return visit instigated by the patient to complain about and seek treatment for a matter related to the initial treatment’ (citation omitted). We also note that to the extent the complaint includes viable causes of action against

Mid-Hudson sounding in ordinary negligence, the continuous treatment doctrine is not applicable to those claims (citations omitted). However, those causes of action would nevertheless be timely in that they would be subject to a 3-year limitations period (see CPLR 214[5]), and less than 3 years elapsed between the date of the surgery and the commencement of this action. Therefore, the Supreme Court properly denied Mid-Hudson's motion to dismiss the complaint insofar as asserted against it as time-barred.”).

CPLR 214-a –Continuous treatment doctrine-no continuous course of treatment Nisanov v. Khulpateea, 37 A.D.3d 1091, 27 N.Y.S.3d 663 (2d Dep’t 2016) (“Here, the plaintiff failed to show that there was a continuous course of treatment. The diagnostic services performed by Khulpateea were discrete and complete, and not part of a course of treatment (citations omitted). Moreover, the plaintiff failed to submit evidence showing that the decedent and Khulpateea contemplated further treatment after the follow-up visit on September 24, 2004. The decedent did not schedule another appointment with Khulpateea until she returned to see him in 2005, and she only did so then because Lopatinsky referred her to him (citations omitted).”).

CPLR 214/214-a – Ordinary Negligence v. Medical Malpractice Piccoli v. Panos, 130 A.D.3d 704, 13 N.Y.S.3d 478 (2d Dep’t 2015): “Contrary to Vassar's contention, however, the Supreme Court properly concluded that, in addition to the medical malpractice allegations, the complaint also set forth allegations of ordinary negligence against Vassar, which were not time-barred. For the reasons stated in the companion appeal (citation omitted), the allegations in the complaint pertaining to the number of surgeries Panos was scheduling for any given day, the allegations that Vassar failed to establish procedures regarding the number of surgeries that could be scheduled for a given day, and the allegations that Vassar failed to investigate or respond to warnings and complaints from its employees regarding Panos's practices generally, all sound in ordinary negligence rather than medical malpractice (citations omitted). Accordingly, the Supreme Court properly denied that branch of Vassar's motion which was to dismiss, as time barred, the causes of action alleging ordinary negligence.”); Tracy v. Vassar Bros. Hosp., 130 A.D.3d 713, 13 N.Y.S.3d 226 (2d Dep’t 2015) (“Here, the allegations in the complaint pertaining to the number of surgeries Panos was scheduling for any given day, the allegations that Vassar failed to establish procedures regarding the number of surgeries that could be scheduled for a given day, and the allegations that Vassar failed to investigate or respond to warnings and complaints from its employees regarding Panos's practices generally, all sound in ordinary negligence rather than medical malpractice (citations omitted). In this respect, none of these allegations ‘implicate questions of medical competence or judgment linked to the treatment of [the plaintiff]’ or ‘depend on an analysis of the medical treatment furnished to [the plaintiff]’ (citation omitted). Accordingly, the Supreme Court properly denied that branch of Vassar's motion which was to dismiss, as time-barred, the causes of action alleging ordinary negligence.”

CPLR 214-a – Claim Against Lab for Services Performed at Doctor’s Direction is One for Medical Malpractice Annunziata v. Quest Diagnostics Inc., 127 A.D.3d 630, 8 N.Y.S.3d 168 (1st Dep’t 2015): “The issue before us is whether any claim by plaintiffs against defendant Quest Diagnostics Incorporated is subject to the three-year limitations period governing ordinary

20 negligence actions (CPLR 214) as opposed to the two and one-half year limitations period governing medical malpractice actions (CPLR 214-a). Plaintiffs' claims against Quest, a provider of clinical laboratory services, stem from its alleged misreading of a Pap smear tissue sample. The complaint alleges that Quest was negligent in misreading the tissue sample. It is settled that a negligent act or omission ‘that constitutes medical treatment or bears a substantial relationship to the rendition of medical treatment by a licensed physician constitutes malpractice’ (citation omitted). Laboratory services, such as Quest's, performed at the direction of a physician are an integral part of the process of rendering medical treatment (citations omitted). Accordingly, a claim stemming from the rendition of such services is a medical malpractice claim (id.).”

CPLR 214-a – But Claim Arising Out of Chiropractic Services is Not Andrews v. Renaissance Chiropractic, P.C., 128 A.D.3d 1517, 8 N.Y.S.3d 835 (4th Dep’t 2015): “Contrary to defendants' contention, they are not entitled to invoke the benefit of the shortened limitations period applicable to medical, dental and podiatric malpractice, and they are subject to the three-year statute of limitations of CPLR 214 (6) (citations omitted). Here, plaintiff was not referred to Dr. Insinna by a licensed physician, and Dr. Insinna's chiropractic treatment was not an integral part of the process of rendering medical treatment to a patient or substantially related to any medical treatment provided by a physician (citations omitted). We thus conclude that plaintiff's chiropractic malpractice action is governed by the three-year limitations period of CPLR 214 (6).”

CPLR 214-a – Continuous treatment doctrine; Monitoring condition sufficient Flint v. Zielinski, 130 A.D.3d 1460, 12 N.Y.S.3d 744 (4th Dep’t 2015): “The medical records establish that, after decedent was diagnosed with breast cancer in April 2005 and underwent a modified radical mastectomy, she was referred to defendant, an oncologist, for ‘consultation.’ Defendant first saw decedent on May 20, 2005, at which time they discussed various treatment options, including chemotherapy. Based on decedent's age and ‘significant co-morbidities,’ they ‘opted against pursuing chemotherapy.’ Instead, defendant agreed to ‘monitor’ decedent for a recurrence, i.e., metastasis, of the disease. Decedent had numerous appointments with defendant from May 2005 through December 2007, and at each appointment defendant would monitor decedent for a recurrence or metastasis of the cancer. In his deposition, which was submitted in support of his motion, defendant testified that the most common places for breast cancer to metastasize are ‘[t]he remaining regional lymph nodes, the bone, the lung, the liver, [and the] brain’ (emphasis added). Decedent developed cancer in her lung, and we agree with plaintiff that there is a triable issue of fact whether defendant was continuously treating decedent for the same illness, injury or condition giving rise to the action.’; court distinguishes Ceglio v. BAB Nuclear Radiology, P.C., 120 A.D.3d 1376, 992 N.Y.S.2d 580 (2d Dep’t 2014), see below, because the court there found no connection between the colloid cyst, and the pituitary changes that were being monitored. “Here, as opposed to Ceglio, the evidence established that defendant was monitoring decedent for the appearance of cancer in her chest area. Decedent developed cancer in her chest area, a cancer that was allegedly identifiable on a CT scan ordered by defendant to rule out the presence of cancer in decedent's chest. We thus conclude that there is an issue of fact whether defendant's monitoring of decedent's chest area for cancer and his relationship with her from May 2005 until December 2007 "amounted to continuous treatment of the same original condition or complaint," regardless of whether the cancer that developed in decedent's lungs was a primary lung cancer or a metastasis of the breast cancer (citations omitted).”

CPLR 214-a – Continuous Treatment Doctrine in Medical Malpractice Actions – Is it the same condition?  Ceglio v. BAB Nuclear Radiology, P.C., 120 A.D.3d 1376, 992 N.Y.S.2d 580 (2d Dep’t 2014) (“It is undisputed that the radiology defendants were monitoring the plaintiff Robert Ceglio (hereinafter Robert) for postsurgical changes after he had a pituitary tumor removed. The plaintiffs allege that Robert suffered injuries as a result of a colloid cyst, which the radiology defendants failed to notice on his MRI scans when they were monitoring him for postsurgical changes. However, the plaintiffs presented no evidence to suggest that the colloid cyst, which allegedly caused the injuries complained of, was in any way connected to the pituitary changes for which the radiology defendants were monitoring Robert. Consequently, the plaintiffs failed to raise a question of fact as to whether Robert received continuous treatment for the same condition underlying the claim of malpractice (citations omitted)”).  Devadas v. Niksarli, 120 A.D.3d 1000, 992 N.Y.S.2d 197 (1st Dep’t 2014) (“Defendant claims that the continuous treatment doctrine did not toll the statute of limitations because plaintiff's treatment with defendant concerning the Lasik surgery came to an end, at the latest, on May 19, 2004, and plaintiff's next visit, nearly three years later, was for an unrelated condition. Specifically, he argues that the reason for the surgery was garden- variety myopia, and the visits after the surgery, up to and including the May 2004 visit, were for routine follow-up exams that every Lasik patient has. Further, defendant asserts that the February 2007 visit arose not out of the myopia condition, but rather out of the keratoconus that plaintiff alleges was brought on by the surgery. Thus, he contends that the conditions were not the ‘same’ for purposes of CPLR 214-a. Defendant further notes that, after the May 2004 visit, plaintiff never scheduled another follow-up appointment and never even communicated with defendant, until he reappeared in 2007. Thus, he concludes, the original treatment had come to an end. Plaintiff, on the other hand, asserts that the 2007 visit satisfied CPLR 214-a, because it was for the ‘same’ condition as the 2004 visits, which was blurry vision in his left eye. He further argues that whether he and defendant agreed that he would seek further treatment after the May 2004 visit is irrelevant, because defendant ‘guaranteed’ that the Lasik procedure would correct the blurry condition, and stated that he was plaintiff's ‘doctor for life’ for that purpose. Although the CPLR defines ‘continuous’ treatment as treatment ‘for the same illness, injury or condition’ out of which the malpractice arose (CPLR 214-a [emphasis added]), the controlling case law holds only that the subsequent medical visits must ‘relate’ to the original condition (citations omitted). Here, plaintiff initially engaged defendant to correct his blurry vision, and the 2007 visit was motivated by continued blurriness in plaintiff's eye, thus making the two visits ‘related’ (id.)”).

CPLR 214-a – Continuous Treatment Doctrine in Medical Malpractice Actions – Gaps in Treatment Devadas v. Niksarli, 120 A.D.3d 1000, 992 N.Y.S.2d 197 (1st Dep’t 2014): “We must also address defendant's argument that because plaintiff pursued no treatment for over 30 months after May 2004, he is not entitled to a tolling based on his single visit in February 2007. This, again, ignores plaintiff's belief that he was under the active treatment of defendant at all times, so long as the Lasik surgery did not result in an appreciable improvement in his vision. In

22 determining whether continuous treatment exists, the focus is on whether the patient believed that further treatment was necessary, and whether he sought such treatment (citation omitted). Further, this Court has suggested that a key to a finding of continuous treatment is whether there is ‘an ongoing relationship of trust and confidence between’ the patient and physician (citation omitted). Plaintiff's testimony that he considered defendant to be his ‘[doctor] for life,’ and that the efficacy of the Lasik was guaranteed, was a sufficient basis for the jury to conclude that such a relationship existed. … ‘Assessed from plaintiff's point of view, the temporal gap between visits was not excessive. In her opposing affidavit, plaintiff averred that she continued to place her trust and confidence in [the defendant's] care, that she did not consult any other dentist, that her September 10, 1978 letter was not intended to terminate her relationship with [the defendant] and that she finally returned for treatment when the problem with my implant get [sic] progressively worse.' Given the history of dental treatment in this case, we find, at the very least, that a question of fact exists as to whether plaintiff's December 1980 return was timely' for purposes of establishing the required continuity’ (citation omitted). Plaintiff's vision problems here are analogous to the plaintiff's ‘denture problems’ in Edmonds, and the jury did not act irrationally in finding that plaintiff continued to place trust and confidence in defendant's ability to correct his blurry vision. Further, even if we were to accept the proposition advanced by defendant, that the keratoconus was unrelated to the Lasik surgery, plaintiff had no reason to believe that to be the case when he returned to defendant in February 2007. Thus, in reasonably believing that his continued, and worsening, blurry vision was attributable to the Lasik surgery that defendant had guaranteed, plaintiff was genuinely ‘confronted with the dilemma that led to the judicial adoption of the continuous treatment doctrine’ (citation omitted).”

CPLR 214-a – Foreign Object Rule Applies to Catheter Intentionally Left in Body for Monitoring Purposes for a Few Days (Digest – August 2015) CPLR 214-a Foreign Object Rule Focuses on Purpose of Surgical Equipment Rule Applies to Catheter Intentionally Left in Body for a Few Days After Surgery CPLR 214-a establishes a two-and-a-half-year statute of limitation for medical, dental or podiatric malpractice actions. The period runs from the “act, omission or failure complained of.” The statute also contains two extending provisions: the continuous treatment doctrine and the foreign object rule. The latter provides for a one year limitation period after discovery of the foreign object. The statute itself expressly states that a foreign object does not include a chemical compound, fixation device, or prosthetic aid or device. In Walton v. Strong Mem’l Hosp., 2015 N.Y. Slip Op. 04786 (June 10, 2015), the N.Y. Court of Appeals provides a valuable history and discussion of the origins and basis for the foreign object rule. In Walton, a catheter was intentionally placed in the plaintiff’s heart during surgery when he was three years old in 1986. A few days later, the catheter was removed, but a fragment was inadvertently left behind. More than 20 years later, following the insertion of a pacemaker, replacement of a damaged heart valve, and the plaintiff suffering an embolic stroke and a transient ischemic attack, the catheter fragment was discovered during a procedure to replace the battery in the plaintiff’s pacemaker. The plaintiff filed this action for medical malpractice arising out of the alleged negligence in leaving the catheter fragment as a foreign body in his heart. The defendants moved to dismiss, contending that the limitation period expired in 1996, 10 years – the cap on commencement of an infant’s medical malpractice claim – after the defendants allegedly failed to remove the catheter. In addition, the defendants argued that the catheter was not a foreign object.

The critical issue was whether the catheter was a foreign object or a fi xation device. Traditionally, a foreign object has been defined as one “negligently ‘left’ in the patient’s body without any intended continuing treatment purpose.” See Rockefeller v. Moront, 81 N.Y.2d 560, 566 (1993). The lower court granted the defendants’ motion. Although the court found that the catheter was not a fixation device, it also concluded that, based on the Court of Appeals’ decision in LaBarbera v. N.Y. Eye & Ear Infirmary, 91 N.Y.2d 207 (1998), the catheter was not a foreign object because it was initially left in the plaintiff’s body intentionally with a continuing medical purpose. The Appellate Division affirmed, but on the ground that the catheter was a fixation device, expressly excluded by CPLR 214-a, since it was deliberately inserted into the plaintiff’s heart for the purpose of monitoring atrial pressure. The Court of Appeals reversed, finding that although the catheter was intentionally left in the plaintiff’s body for a few days after surgery and a fragment remained after it was removed, the catheter was not inserted for “postsurgery healing purposes” and, therefore, was not a fixation device. “Instead, the catheter served a monitoring function. . . . [T]he fragment, of course, served no purpose whatsoever; it certainly was not a fixation device, however defined. Fundamentally, if the facts are as alleged, plaintiff . . . left the hospital after an operation with therapeutically useless and potentially dangerous surgical paraphernalia lodged in his body.” Walton, 2015 N.Y. Slip Op. 04786 at *12. The Court acknowledged that a doctor’s deliberate implantation of a fixation device in the wrong place is negligent medical treatment, not covered by the foreign object rule. In that circumstance, the fixation device is not transformed into a foreign object. However, in this case, the catheter was analogous to clamps that are placed into the body purely to carry out or facilitate surgery. And, leaving the catheter in the plaintiff’s body “did not convert a surgical device into a fixation device.”

CPLR 214-a – Wrongful Birth Claim Accrues Upon Infant’s Birth (Digest – February 2016) First Department Joins Second Department in Holding That Wrongful Birth Claim Accrues Upon Infant’s Birth Court Affirms Denial of Defendants’ Motion to Dismiss In B.F. v. Reprod. Med. Assocs. of N.Y., LLP, 2015 N.Y. Slip Op. 09370 (1st Dep’t 2015), a medical malpractice action, it was alleged that the defendants failed to do adequate genetic screening of an egg donor in connection with an in vitro fertilization. The parents were unaware that the egg donor was a carrier of Fragile X, a chromosomal abnormality which can produce, particularly in males, intellectual disabilities and other deficits. Consequently, the child was born impaired. The plaintiffs advanced two types of claims. With respect to the “wrongful life” cause of action asserted on behalf of the infant arising out of his conception and birth, the court noted that New York does not recognize such a claim because “parents may not bring a claim on behalf of an impaired child on the theory that the child himself or herself (as opposed to the parents) would have been better off had the child never come into being.” Id. at *2–3. See Becker v. Schwartz, 46 N.Y.2d 401 (1978). Nevertheless, the court confirmed that New York permits a “wrongful birth” claim where the parents can seek recovery of

their past and future “extraordinary financial obligations relating to the care” of that child during his or her minority (citation omitted). To recover such damages on a wrongful birth cause of action, “the parents must establish that malpractice by a defendant physician deprived them of the opportunity to terminate the pregnancy within the legally permissible time period, or [as alleged here] that the child would not have been conceived but for the defendant’s malpractice” (citation omitted). Id. at *3. The court found that the plaintiffs had properly pleaded the claim. The primary issue, however, was whether the claim was timely, which depended on the date the “wrongful birth” cause of action accrued: when the infant was born or when the defendants last treated the plaintiff mother. The plaintiffs referred to the Court of Appeals decision in LaBello v. Albany Med. Ctr. Hosp., 85 N.Y.2d 701 (1995), where it was held that “an infant plaintiff’s medical malpractice cause of action, premised on alleged injurious acts or omissions occurring prior to birth, accrues on the earliest date the injured infant plaintiff could juridically assert the claim and sue for relief, that is, the date of being born alive.” Id. at 703. The court here noted, however, that LaBello dealt with an infant plaintiff’s right of action, while the question here related to the accrual of a cause of action on behalf of the parents, who were able to bring an action at any time. The Second Department has previously held that a wrongful birth claim accrues at the time of birth, rather than when the earlier malpractice occurred. See Ciceron v. Jamaica Hosp., 264 A.D.2d 497 (2d Dep’t 1999). In concurring with the Second Department, the First Department focused on when there is a legally cognizable injury: Whether this legally cognizable injury will befall potential parents as the result of the gestation of an impaired fetus cannot be known until the pregnancy ends. Only if there is a live birth will the injury be suffered. Thus, until there is a live birth, the existence of a cognizable legal injury that will support a wrongful birth cause of action cannot even be alleged. Without legally cognizable damages, there is no legal right to relief, and “the Statute of Limitations cannot run until there is a legal right to relief” (citation omitted). B.F. v. Reproductive Medicine Assoc. of N.Y., LLP, 2015 N.Y. Slip Op. 09370 at*4–5. Thus, since the plaintiffs’ wrongful birth claim accrued at the later date when their son was born, the claim was timely. Note that in a partial concurrence and dissent, J. Manzanet-Daniels agreed with the majority on the issue of the timeliness of plaintiffs’ medical malpractice claims. She disagreed, however, on the subsidiary issue as to whether plaintiffs’ remaining causes of action for negligence, breach of contract, fraudulent concealment, common law fraud and negligent misrepresentations were adequately pleaded or were duplicative of the medical malpractice claim. The majority dismissed those causes of action, while J. Manzanet-Daniels maintained that they were sufficiently pleaded and were not duplicative.

CPLR 214-c –Bedbugs are not a “substance” Via v. New York City Hous. Auth., 137 A.D.3d 465, 26 N.Y.S.3d 282 (1st Dep’t 2016) (“Plaintiff alleges that she suffered hundreds of bedbug bites over a period of months as the result of an infestation in an apartment owned by NYCHA. On or about November 16, 2012, she served a notice of claim on NYCHA, and thereafter NYCHA moved to dismiss her claims for failure to serve a timely notice of claim. Plaintiff's bedbug claims are not governed by CPLR 214-c(3), because her injuries were not caused by a ‘substance’ (citations omitted).”).

CPLR 214-c – Three Year Statute of Limitation Generally in Toxic Tort Actions- Discovery Statute Suffolk County Water Auth. v. Dow Chem. Co., 121 A.D.3d 50, 991 N.Y.S.2d 613 (2d Dep’t 2014): “In the instant case, the SCWA alleged damages of the same nature in wells where contamination was previously discovered, prior to July 12, 2007. The movants established, prima facie, that the damages sustained were an outgrowth, maturation, or complication of the original contamination, not a separate and distinct injury (citation omitted). Therefore, in the absence of any evidence raising an issue of fact was to whether the damages sustained during the period of limitations were separate and distinct, and ‘qualitatively different from that sustained earlier’ (citations omitted), the two-injury rule was not applicable. The Supreme Court considered not only whether there was an issue of fact as to multiple injuries, but also whether there was an issue of fact as to multiple distinct acts of tortious conduct (citation omitted). While the two- injury rule is based upon allegations of a second injury resulting from ‘the continuing effects of earlier unlawful conduct’ (citation omitted), additional wrongful conduct could give rise to additional wrongful releases of contamination, resulting in new wrongs and the accrual of new causes of action (citation omitted). However, it was incumbent upon the SCWA to come forward with evidence in admissible form that there was new wrongful conduct, giving rise to new causes of action not barred by CPLR 214-c (citation omitted). The SCWA did not offer any evidence of any specific release of PCE by a dry cleaner. Further, its expert did not render an opinion with respect to whether the levels of contamination in those specific wells in fact fluctuated or whether such fluctuations were attributed to multiple releases of contaminants. Accordingly, the SWCA failed to raise a triable issue of fact on this issue.”

CPLR 214-c (2) – Discovery statute of limitations- symptoms too intermittent and inconsequential to trigger limitation period Malone v. Court W. Developers, Inc., 139 A.D.3d 1154, 30 N.Y.S.3d 760 (3d Dep’t 2016) (“Turning to the allegedly injurious exposure taking place more than three years prior to the commencement of the action, we find that defendant did not prove as a matter of law that plaintiff should have discovered his allergy and asthma conditions at a time that is barred by CPLR 214-c (2). Although plaintiff exhibited some symptoms, including skin and eye irritation and tightness in the throat, in the spring and summer of 2002, plaintiff also explained that such symptoms ceased when he would leave the building at the end of his shifts. Further, plaintiff averred that he did not seek medical treatment for these symptoms, miss work as a result of the symptoms or file a workers' compensation claim until late October 2002. Viewing the evidence in the light most favorable to plaintiff, the symptoms that plaintiff exhibited more than three years prior to the commencement of the action were too intermittent and inconsequential to trigger the running of the statute of limitations pursuant to CPLR 214-c (2) (citations omitted). Accordingly, defendant's motion for summary judgment dismissing the complaint should have been denied.”).

CPLR 215(3) – False arrest and false imprisonment causes of action accrue upon individual’s release from confinement Coleman v. Worster, 2016 NY Slip Op 04901 (2d Dep’t 2016) (“Furthermore, contrary to the plaintiff's contention, the Supreme Court properly granted that branch of the defendant's motion which was for summary judgment dismissing the complaint as time-barred. ‘Causes of

26 action based on false arrest and false imprisonment . . . are governed by a one-year statute of limitations’ (citations omitted). Such causes of action accrue upon the individual's ‘release[ ] from confinement’ (citations omitted). Here, the defendant established her prima facie entitlement to judgment as a matter of law by demonstrating that the action accrued on July 4, 2009, when the plaintiff was released from custody, and that this action was not commenced within one year of that date. In opposition, the plaintiff failed to raise a triable issue of fact. Accordingly, the Supreme Court properly granted that branch of the defendant's motion which was for summary judgment dismissing the complaint as time-barred (citations omitted), and denied, as academic, the plaintiff's motion for leave to enter a default judgment.”).

CPLR 215(8) – Criminal action toll- underlying criminal action does not have to be prosecuted in New York Walker v. Estate of Lorch, 24 N.Y.S.3d 720 (2d Dep’t 2016) (“In the order appealed from, the Supreme Court granted those branches of the defendant's motion which were to dismiss the causes of action alleging intentional infliction of emotional distress and breach of fiduciary duty, concluding that they were time-barred. The court denied that branch of the defendant's motion which was to dismiss so much of the cause of action alleging assault and battery as sought to recover damages for actions allegedly occurring between March 1977, and April 1978, and gave rise to the Massachusetts indictment against Lorch, concluding that this claim was tolled by CPLR 215(8)(a). The defendant appeals, arguing that the court erred in determining that the subject portion of the assault and battery cause of action was tolled by CPLR 215(8)(a). The plaintiff cross-appeals, contending that the court erred in determining that the causes of action alleging intentional infliction of emotional distress and breach of fiduciary duty were not tolled by CPLR 215(8)(a). CPLR 215(8)(a) states that ‘[w]henever it is shown that a criminal action against the same defendant has been commenced with respect to the event or occurrence from which a claim governed by [CPLR 215] arises, the plaintiff shall have at least one year from the termination of the criminal action as defined in [CPL 1.20] in which to commence the civil action, notwithstanding that the time in which to commence such action has already expired or has less than a year remaining.’ Here, contrary to the defendant's contentions, the Supreme Court properly determined that the assault and battery cause of action was tolled by CPLR 215(8)(a) to the extent that it sought to recover damages for actions which took place between March 1977, and April 1978, as the statute does not require that the underlying ‘criminal action’ be one that was prosecuted in New York (citations omitted).”).

CPLR 217 – Four month statute of limitations- final and binding determination Matter of Romeo v. Long Is. R.R. Co., 136 A.D.3d 926; 25 N.Y.S.3d 301 (2d Dep’t 2016) (“A party seeking to assert the statute of limitations as a defense has the burden of establishing that the petitioner was provided notice of the determination more than four months before the proceeding was commenced (citations omitted). Here, after a hearing had been held regarding the petitioner's termination, the petitioner was verbally notified that his employment was terminated on November 27, 2012. Further administrative review of that determination was not available, and the notice given to the petitioner left no doubt that the LIRR had reached a definitive position regarding the petitioner's termination. Since the petitioner was notified of a final and binding determination on November 27, 2012, and the proceeding was not commenced until March 12, 2014, the Supreme Court properly granted that branch of the LIRR's motion

27 which was to dismiss the proceeding on the ground that it was barred by the statute of limitations (citations omitted).”). CPLR 217 –Four Month statute of limitations- FOIL request did not extend or toll petitioner's time to bring proceeding Matter of Walker v. Roque, 137 A.D.3d 643, 26 N.Y.S.3d 857 (1st Dep’t 2016) (“Petitioner's 2012 FOIL request was duplicative of his 1992 FOIL request seeking essentially the same materials pertaining to the same criminal case, notwithstanding that the prior request was more detailed than the instant request (citation omitted). The four-month statute of limitations to commence an article 78 proceeding (see CPLR 217[1]) expired long before petitioner commenced this proceeding in 2012, since the instant FOIL request did not extend or toll petitioner's time to bring this proceeding challenging the 1993 denial of his administrative appeal from the denial of his 1992 request (citations omitted).”).

CPLR 217- Request for reconsideration of an administrative determination does not toll the statute of limitations See Matter of Shields v. Prack, 131 A.D.3d 748, 13 N.Y.S.3d 916 (3d Dep’t 2015).

CPLR 217 – Final and binding determination; Letter did not create ambiguity

Matter of AJM Capital II, LLC v. Long Is. R.R. Co., 131 A.D.3d 474, 13 N.Y.S.3d 906 (2d Dep’t 2015): “Here, the petitioner commenced the instant proceeding pursuant to CPLR article 78 more than four months after the LIRR rendered its determination that the LIRR is exempt from paying the tax liens, as set forth in the letter dated August 24, 2012. Contrary to the petitioner's contention, that letter did not create an ambiguity as to whether the LIRR had rendered a final and binding determination (citations omitted). Since the letter dated August 24, 2012, was a final and binding determination, the proceeding was time-barred (citations omitted).”

CPLR 217 – Four Month Statute of Limitation – Notice Matter of Benjamin v. New York City Dept. of Educ., 119 A.D.3d 440, 988 N.Y.S.2d 492 (1st Dep’t 2014): “Supreme Court properly found that the proceeding is time-barred, since it was commenced more than four months after petitioner received notice of the DOE's determination (citations omitted). Petitioner is deemed to be on notice of the DOE Chancellor regulation regarding automatic ineligibility for reemployment upon termination (citation omitted), and therefore she was ‘aggrieved’ for the purposes of the running of the statute of limitations upon notice of her termination in April 2011 (citations omitted). Accordingly, her commencement of this CPLR article 78 proceeding on or about October 23, 2012 was untimely.”

CPLR 217-a – Wally G. v New York City Health & Hosps. Corp. (Metropolitan Hosp.), 2016 NY Slip Op 04443 (Digest – July 2016) In Split Decision, Court of Appeals Affirms Denial of Motion for Leave to Serve Late Notice of Claim Did City Hospital Acquire Actual Knowledge of Essential Facts Within Limitation Period? When suing a municipality in a personal injury action (among other types of tort actions), a claimant must carefully follow the statutory requirements that include the service of a timely notice of claim within 90 days after the claim arises. See General Municipal Law § 50-e(1)(a)

(GML). In addition, the action must be brought within one year and 90 days from the date of the occurrence giving rise to the claim. A party may apply to the court to file a late notice of claim and the application must be made within the underlying limitation period. The section delineates the factors the court is to consider on such an application. GML § 50-e(5). Wally G. v. New York City Health & Hosps. Corp. (Metropolitan Hosp.), 2016 N.Y. Slip Op. 04443 (June 9, 2016), concerned the first factor mentioned in the statute, that is, “whether the public corporation or its attorney or its insurance carrier acquired actual knowledge of the essential facts constituting the claim within the time specified in subdivision one or within a reasonable time thereafter.” GML § 50-e(5). This factor is singled out by the section as being the one factor to consider “in particular.” See Williams v. Nassau County Med. Ctr., 6 N.Y.3d 531, 535 (2006). In this medical malpractice action, arising out of the plaintiff’s premature birth by emergency cesarean section, the plaintiff alleged various injuries, including brain damage, cognitive defects, developmental, speech and psychomotor delays, fetal and respiratory distress and seizure disorder. The plaintiff served a notice of claim after the 90-day period without first seeking leave of court. A year and a half later, the plaintiff brought suit but waited another two years, now five years after the claim arose, to move for permission to file a late notice of claim. On the motion, the plaintiff submitted medical records and medical expert affidavits opining that the defendant hospital’s deviation from the medical standard of care caused plaintiff’s injuries. The lower court denied the plaintiff’s motion and granted the defendant’s cross-motion to dismiss and a divided Appellate Division affirmed. A majority of the New York State Court of Appeals affirmed, finding that the plaintiff’s affidavits did not establish that the defendant had actual knowledge, but simply interpreted the medical records and posited that HHC could have engaged in alternative courses of treatment which, in their view, would have produced different results, and that plaintiff’s health complications could have been avoided had HHC taken a different approach. However, mere assertions that a different course of treatment could have been followed does not address whether HHC had actual knowledge of the essential facts necessary to properly defend itself in the underlying action. Wally G. at *3–4. The majority stressed that a “medical provider’s mere possession or creation of medical records does not ipso facto establish that it had ‘actual knowledge of a potential injury where the records do not evince that the medical staff, by its acts or omissions, inflicted any injury on plaintiff during the birth process’ (id. [emphasis supplied]).” Significantly, the Court rejected the plaintiff’s and dissent’s position that the “actual knowledge” factor can be satisfied if the medical records merely “suggest” that an injury occurred as a result of malpractice: That argument implies that so long as medical experts reasonably disagree as to whether, based on their respective interpretations of the medical records, the medical staff deviated from the standard of care, a factual question is present and an application for service of late notice must be granted as a matter of law. While we stated in Williams that there was “little to suggest injury attributable to malpractice” in that particular case, our use of the word “suggest” was not intended to deviate from our holding in that case that the medical records must “evince that the medical staff, by its acts or omissions, inflicted an[] injury on plaintiff . . .” in order for the medical provider to have actual knowledge of the essential facts (citation omitted). Id. at *4.

Thus, the Court held that the Appellate Division did not abuse its discretion in denying the plaintiff’s application to serve a late notice of claim. The dissent, written by J. Abdus-Salaam, maintained that the Appellate Division did abuse its discretion. It conceded the majority’s point that the Court’s prior holding in Williams required that the records evince actual knowledge that the medical staff’s actions or omissions caused injury to the plaintiff. It found, however, that the medical records did exactly that: Wally’s medical records establish that mother experienced a difficult pregnancy and was at risk of premature delivery. Mother was repeatedly discharged from the hospital despite the recurrence of vaginal bleeding. Although a placental abruption had been ruled out, it was ultimately determined that mother did in fact have a placental abruption which contributed to the vaginal bleeding she experienced. The records show that mother had chorioamnionitis and Wally experienced fetal tachycardia and hypoxia, which his experts affirm was a result of the hospital’s negligence in failing to timely deliver him by cesarean section and the failure to immediately intubate him following his birth. One of Wally’s experts claims that this failure likely caused his severe IVH. Id. at *7. The dissent found “most compelling” the discussion between the child’s parents and the medical staff “concerning the risk of brain damage after Wally suffered the IVH. This clearly indicates that the hospital was aware that the conditions under which Wally was born could have lasting effects.” Id. As an aside, effective June 15, 2013, the Uniform Notice of Claim Act was enacted into law in New York. In addition to the adoption of CPLR 217-a, other sections were added or amended with the expressed goal of achieving uniformity and simplifying the process of filing notices of claim.

CPLR 217-a – Notice of claim need not state precise cause of action Se Dae Yang v. New York City Health & Hosps. Corp., 2016 NY Slip Op 04929 (2d Dep’t 2016) (“‘The Legislature did not intend that the claimant have the additional burden of pleading causes of action and legal theories, proper for the pleadings, in the notice of claim. . . General Municipal Law § 50-e was not meant as a sword to cut down honest claims, but merely as a shield to protect municipalities against spurious ones’ (citations omitted). Accordingly, a claimant need not state ‘a precise cause of action in haec verba in a notice of claim’ (citations omitted).”)

CPLR 217-a- Failure to establish that defendant had timely actual knowledge of essential facts constituting claim Horn v. Bellmore Union Free Sch. Dist., 139 A.D.3d 1006, 32 N.Y.S.3d 289 (2d Dep’t 2016) (“Here, the plaintiffs failed to establish that the defendant had ‘acquired actual knowledge of the essential facts constituting the claim’ within 90 days of the accident or a reasonable time thereafter (General Municipal Law § 50-e[5]). The school's principal prepared an accident claim form on the day of the accident, and the infant plaintiff's parents completed the medical claim portion of that form a couple of weeks after the accident. Contrary to the plaintiffs' contention, this form, which merely indicated that the infant plaintiff lost his left front tooth and part of his right front tooth when he hit his mouth on the gymnasium floor in an attempt to ‘duck from a ball’ during physical education class, did not establish that the defendant had timely, actual knowledge of the essential facts underlying the claims that it was negligent in supervising the

30 students, in failing to provide a safe play area, and in allowing the infant plaintiff to engage in an inappropriate activity (citations omitted). Accordingly, the defendant had no reason to conduct a prompt investigation into the purported negligent supervision and alleged unsafe condition of the gymnasium floor (citations omitted).”).

CPLR 217-a Uniform Notice of Claim Act (Digest – May 2015) Beware of Conditions Precedent But General Municipal Law § 50-e Notice of Claim Requirements Do Not Apply to Human Rights Law Cause of Action Practitioners engaged in tort practice or in actions against municipalities are well aware of notices of claim, a pre-action condition precedent. The classic notice of claim statute is General Municipal Law § 50-e, which deals with tort actions against a public corporation. With the enactment of the Uniform Notice of Claim Act and CPLR 217-a (eff. June 15, 2013), the GML § 50-e requirements for filing notices of claim prior to commencing an action against a municipality, public authority, or public benefit corporation, became the standard. For example, in a personal injury action, a notice of claim must be served within 90 days of the incident causing the injury and an action must be commenced within one year and 90 days of the incident. Moreover, as a condition precedent, compliance with the requirements of GML § 50-e must be pled and proven by the plaintiff. See GML § 50-i. In Margerum v. City of Buffalo, 24 N.Y.3d 721 (2015), the N.Y. Court of Appeals was asked whether GML § 50-e applied to a Human Rights Law cause of action. The issue there was alleged discrimination as to civil service lists for Buffalo firefighters. The Court agreed with the Appellate Division Departments that have addressed the issue, holding that GML § 50-e did not apply. Thus, there is no requirement that plaintiff serve a notice of claim prior to commencement of such an action. The Court pointed out that claims under the Human Rights Law are not akin to tort actions or personal injury, wrongful death or property damage claims. A concurring opinion by Judge Read noted an apparent inconsistency with the Court’s earlier decision in Mills v. Cnty. of Monroe, 59 N.Y.2d 307, 309 (1988), holding that a Human Rights Law employment discrimination claim against a county is subject to the notice of claim requirements of County Law § 52(1). Noting that the County Law provision was similar, but not identical, to GML § 50-i, Judge Read questioned whether the Legislature intended such a distinction and invited the Legislature to address the inconsistency: There are certainly reasons why the legislature might nonetheless choose to treat civil rights actions differently, as this opinion suggests; however, it is hard to believe that the Legislature ever intended to create a situation where an action brought against the County of Erie alleging violations of the Human Rights Law would require a notice of claim as a condition precedent to suit, while the same type of action brought against the City of Buffalo would not.

CPLR 301 – Subject Matter Jurisdiction (Digest – May 2015) BY THE WAY Subject Matter Jurisdiction: Not Just for Federal Courts Since our law school days, where that first-year course in Civ Pro frightened so many of us, we associated subject matter jurisdiction issues primarily with federal court. We knew that to get into federal court you needed to have a federal question or diversity of citizenship and a minimum amount in controversy. We also learned, however, that, at the end of the day, we could

31 always turn to state court. In fact, when we expressed confusion by the title of our trial courts, the Supreme Court of the State of New York, we were told that it signified that the court was the supreme court of original, unlimited jurisdiction over all cases that could be brought in any New York state court. Sure, suits against the State of New York had to be brought in the Court of Claims. Additionally, an administrative agency can have exclusive original jurisdiction; however, we could still resort to state court in a subsequent Article 78 proceeding, where review of the underlying determination was limited. But it is important to recognize that there are subject matter jurisdiction impediments to state court practice, in which any resort to state court is prohibited. One such bar is contained in a not-so-well-known provision, Business Corporation Law § 1314(b). Briefly, BCL § 1314(b) limits the subject matter jurisdiction of New York state courts to hear actions between foreign corporations or by a nonresident against a foreign corporation. It provides certain exceptions, including, among others, establishing that defendant is “doing business” in the state (an iffy proposition after Daimler A.G. v. Bauman, 134 S. Ct. 746 (2014)), is authorized to do business in New York, or that there is long-arm jurisdiction under CPLR 302. Generally, BCL § 1314(b) will not present an obstacle where defendant is subject to personal jurisdiction in New York. What happens, however, when the jurisdictional predicate is weak and the parties are relying only on a New York forum selection clause? It is fundamental that parties cannot confer subject matter jurisdiction on a court by agreement. Thus, a typical New York forum selection clause will generally not save the subject matter jurisdiction infirmity (unless the contract containing the clause satisfies General Obligations Law § 5-1402, that is, that it also has a New York choice of law provision and involves a transaction of not less than $1 million). See Techno-TM, LLC v. Fireaway, 123 A.D.3d 610 (1st Dep’t 2014). See also Calzaturificio Giuseppe Garbuio S. A. S. v. Dartmouth Outdoor Sports, Inc., 435 F. Supp. 1209 (S.D.N.Y. 1977) (providing that a contract, which was in fact made out of state, containing provision that it “shall be deemed to have been made in” New York does not satisfy the exception that the contract was made or was to be performed in New York. “Were we to give effect to the deemed made in New York provision, we would allow the parties by agreement to bring within the statute, and hence within our jurisdiction, a contract claim which would not otherwise be cognizable in this court.”). Back to law school: a subject matter jurisdiction objection cannot be waived. And a judgment obtained in an action lacking subject matter jurisdiction is void. So, do not be lulled into a false sense of security if you have a New York forum selection clause. It may not be all it is cracked up to be.

CPLR 301 – Subject Matter Jurisdiction – Does Not Include Failure with Respect to Element of Cause of Action Maspeth Fed. Sav. & Loan Assn. v. Sloup, 123 A.D.3d 672, 998 N.Y.S.2d 409 (2d Dep’t 2014): “She claimed that that judgment should be vacated pursuant to CPLR 5015(a)(4), for lack of subject matter jurisdiction on the ground that the plaintiff failed to file a valid notice of pendency with respect to one of the lots at least 20 days before the judgment of foreclosure and sale was rendered (see RPAPL 1331). However, the notice of pendency requirement pursuant RPAPL 1331 was an ‘element’ of the plaintiff's cause of action, not a jurisdictional defect (citations omitted).” See also Lacks v. Lacks, 41 N.Y.2d 71, 390 N.Y.S.2d 875, 359 N.E.2d 384

(1976) (requirements of DRL § 230 go to substance of divorce cause of action, not to jurisdictional issues).

CPLR 301 – Daimler/“Doing Business”/ Other Types of General Jurisdiction - Tagging The United States Supreme Court 2014 decision in Daimler AG v. Bauman, 134 S. Ct. 746, 187 L. Ed. 2d 624 (2014), significantly changed the standards under which general jurisdiction could be upheld. Note that the decision concerned the “doing business” concept as applied to corporations, and the majority opinion did not cite to Burnham or discuss “tagging” jurisdiction. However, the concurring opinion of J. Sotomayor opined that the Court’s decision in Burnham, permitting jurisdiction by tagging an individual in “a one time visit” appeared to be incongruous with the majority’s approach in Daimler. Thus, while Daimler did not limit Burnham, the Court appears to be trending towards limiting general jurisdiction bases in favor of specific jurisdiction.

CPLR 301 – Individual Doing Business – Conflict between Departments Pichardo v. Zayas, 122 A.D.3d 699, 996 N.Y.S.2d 176 (2d Dep’t 2014): “In contrast to the common-law approach to corporations, the common law, as developed through case law predating the enactment of CPLR 301, did not include any recognition of general jurisdiction over an individual based upon that individual's cumulative business activities within the State (citations omitted). Since the enactment of CPLR 301 did not expand the scope of the existing jurisdictional authority of the courts of the State of New York, that section does not permit the application of the ‘doing business’ test to individual defendants (citations omitted).” But see ABKCO Industries, Inc. v. Lennon, 52 A.D.2d 435, 440, 384 N.Y.S.2d 781, 784 (1st Dep’t 1976). See also Twine v. Levy, 746 F. Supp. 1202 (E.D.N.Y. 1990) (noting conflict in law in New York).

CPLR 301 – Forum Selection Clause “Unreasonable” U.S. Mdse., Inc. v. L&R Distribs., Inc., 122 A.D.3d 613, 996 N.Y.S.2d 83 (2d Dep’t 2014): “Here, the plaintiff has made the requisite strong showing that the forum selection clause in the nondisclosure agreement was ‘unreasonable.’ Specifically, the plaintiff has contended, without contradiction, that neither the parties nor the agreement has any connection to the State of Delaware: none of the parties is located in Delaware, the nondisclosure agreement was not executed in Delaware, and performance of the agreement was not to take place in Delaware (citations omitted). Accordingly, the prima facie enforceability and validity of the forum selection clause has been rebutted and, therefore, that clause does not ‘conclusively establish[ ] a defense to the asserted claims as a matter of law’ (citations omitted). Thus, the Supreme Court should have denied that branch of the defendants' motion which was to dismiss the amended complaint pursuant to CPLR 3211(a)(1).”

CPLR 301 – Consent and Forum Selection Clause Professional Merchant Advance Capital, LLC v. Your Trading Room, LLC, 123 A.D.3d 1101 (2d Dep’t 2014) (where someone assumes the obligations of a party to an agreement containing a New York forum selection clause, he or she also consents to New York jurisdiction.).

CPLR 301 – Doing Business – Consent The United States Supreme Court 2014 decision in Daimler AG v. Bauman, 134 S. Ct. 746, 187 L. Ed. 2d 624 (2014) significantly changed the standards under which general jurisdiction could be upheld. In significantly limiting the instances where the doing business bases for jurisdiction applies, the Court identified a domestic corporation or one whose principal place of business is in the forum state as being “at home,” for “doing business” purpose. Thus, a foreign corporation which registers to do business in New York would appear not to be “doing business” post Daimler. However, it also appears that consent jurisdiction based on the designation of the Secretary of State as agent for service of process required by such registration survives Daimler. See e.g., Bailen v. Air & Liquid Sys. Corp., 2014 N.Y. Misc. LEXIS 3554, 2014 NY Slip Op 32079(U) (Sup. Ct. N.Y. Co., J Heitler August 5, 2014) (“Although Daimler clearly narrows the reach of New York courts in terms of its exercise of general jurisdiction over foreign entities, it does not change the law with respect to personal jurisdiction based on consent”); Beach v. Citigroup Alternative Invs. LLC, 12-CV-7717 (PKC), 2014 US Dist. LEXIS 30032, at *17-18 (SDNY Mar. 7, 2014) (“A nondomiciliary corporate defendant will only be deemed to be ‘doing business’ in a forum when its ‘affiliations with the State are so “continuous and systematic” as to render [it] essentially at home in the forum State.’ Goodyear Dunlop Tires Operations, S.A. v Brown, 131 S. Ct. 2846, 2851, 180 L. Ed. 2d 796 (2011). The locations where a corporation is ‘at home’ are, absent exceptional circumstances, limited to its principal place of business and place of incorporation. Daimler AG v. Bauman, 134 S. Ct. 746, 761, 187 L. Ed. 2d 624 & n.19 (2014). The ultimate determination as to where a corporation is ‘at home’ ‘calls for an appraisal of a corporation's activities in their entirety, nationwide and worldwide.’ Id. at 762 n.20. Notwithstanding these limitations, a corporation may consent to jurisdiction in New York under CPLR § 301 by registering as a foreign corporation and designating a local agent (citations omitted).”). Similarly, it has been held that nothing in the Daimler decision questions the continued validity of contractual forum selection provisions. See e.g., Putnam Leasing Co., Inc. v. Pappas, 46 Misc. 3d 195, 995 N.Y.S.2d 457 (Dist. Ct. Nassau Co., J Ciaffa September 25, 2014) (“[T]his court sees nothing in Daimler which questions the general validity of contractual forum selection provisions, such as the one involved in this case.”).

Note also Bill # S7078 seeking to amend BCL §1301 “to reinforce the continuing viability of consent as a basis for general (all-purpose) personal jurisdiction over foreign corporations authorized to do business in New York.” (Sponsor’s memorandum)

CPLR 301 – Forum selection clause in consumer agreement Considered In Venue Context While the Second Department has ruled that a forum selection clause contained in an agreement presented to a consumer at registration at a resort does not render it unenforceable, a recent concurring opinion in a Second Department case raised concerns about whether such a consumer was in a position to review and reject the forum selection clause. Compare Molino v. Sagamore, 105 A.D.3d 922, 923, 963 N.Y.S.2d 355 (2d Dep’t 2013) and Karlsberg v. Hunter Mtn. Ski Bowl, Inc., 131 A.D.3d 1121, 1122, 16 N.Y.S.3d 746 (2d Dep’t 2015). See David L. Ferstendig, Motion to Change Venue Based on Forum Selection Clause in Consumer Agreement, 660 NYSLD 2, 3 (2015).

See extensive discussion below regarding Karlsberg.

CPLR 302 – Lack of substantial relationship between activities and cause of action Shatara v. Ephraim, 137 A.D.3d 1244 (2d Dep’t 2016) (“Here, the plaintiff argues that New York may exercise jurisdiction over Ephraim pursuant to the long-arm statute (see CPLR 302). Accepting as true the allegation that Ephraim transacted business in New York, the plaintiff failed to make a prima facie showing that there was a ‘substantial relationship’ between the causes of action asserted in the complaint and Ephraim's activities in New York warranting New York to exercise personal jurisdiction over him (citations omitted). Additionally, the plaintiff failed to show that Ephraim committed a tort within New York State (citations omitted).”).

CPLR 302 – Situs of commercial injury McBride v KPMG Intl., 135 A.D.3d 576, 24 N.Y.S.3d 257 (1st Dep’t 2016) (“The motion court correctly found that New York lacks personal jurisdiction over KPMG UK pursuant to CPLR 302(a)(3)(ii). While plaintiffs allege that KPMG UK committed a tort outside the state (negligently auditing nonparty Madoff Securities International, Ltd. [MSIL] in the United Kingdom), and their causes of action arise out of that tort, KPMG UK's act did not cause injury to a person or property within the state. ‘[T]he situs of commercial injury is where the original critical events associated with the action or dispute took place, not where any financial loss or damages occurred’ (citation omitted).”). CPLR 302(a)(1) – Websites - Passive Website Alone is Not Enough Paterno v. Laser Spine Institute, 24 N.Y.3d 370, 998 N.Y.S.2d 720, 23 N.E.3d 988 (2014): “Court finds website to be passive and defendants’ other contacts did not constitute purposeful activity. “Plaintiff argues, however, that LSI did more than just post an online advertisement. He alleges that over months, there were several telephone calls and e-mail communications between plaintiff and LSI representatives, that he sent MRIs and blood work to LSI, and that LSI sent prescriptions to his New York-based pharmacies. To the extent plaintiff argues that by sheer volume of contacts, defendants are subject to personal jurisdiction in New York, we disagree. As we have stated it is not the quantity but the quality of the contacts that matters under our long-arm jurisdiction analysis (citations omitted). …Turning to the content and ‘quality’ of defendants' contacts with plaintiff, it is apparent that they were responsive in nature, and not the type of interactions that demonstrate the purposeful availment necessary to confer personal jurisdiction over these out-of-state defendants. After plaintiff initially sought out LSI, LSI responded with information designed to assist plaintiff in deciding whether to arrange for LSI medical services in Florida. For example, after plaintiff sent his MRI for evaluation, LSI sent him a letter setting forth a preliminary evaluation and treatment recommendations.”

CPLR 302(a)(1) – Arising out of requirement not met Stern v. Four Points by Sheraton Ann Arbor Hotel, 133 A.D.3d 514, 19 N.Y.S.3d 289 (1st Dep’t 2015): “Although ZLC's participation in the interactive website for Sheraton hotels may demonstrate that it transacted business in New York, the relationship between ZLC's website activities and plaintiff's negligence action arising from an allegedly defective condition of premises in Michigan is too remote to support the exercise of long-arm or specific jurisdiction under CPLR 302(a)(1) (citations omitted). Long-arm jurisdiction also cannot be asserted under

CPLR 302(a)(3), which applies when a tortious act committed outside the state causes injury within the state, because plaintiff's injury occurred in Michigan (citations omitted).”

CPLR 302(a)(1) – Arising out of requirement not met Thackurdeen v. Duke Univ., 2015 U.S. Dist. LEXIS 116952 (S.D.N.Y. 2015): “While it is true that the contracts signed in New York were a factual precursor to Thackurdeen's tragic death, the gravamen of the complaint focuses squarely on events occurring in Costa Rica. Plaintiffs do not allege breach of contract, fraud, or any kind of commercial tort stemming from the contracts. (Citations omitted.) Not a single element of the parties' claims for negligence and intentional infliction of emotional distress relates to or concerns the New York contracts. (Citations omitted.) Accordingly, Plaintiffs' claims do not arise from the contracts they signed in New York for purposes of the long-arm statute. Section 302(a)(l) does not provide a basis for personal jurisdiction over the Defendants in this case.” (Citing Weinstein Korn & Miller)

CPLR 302(a)(3) – Tort did not occur in New York Thackurdeen v. Duke Univ., 2015 U.S. Dist. LEXIS 116952 (S.D.N.Y. 2015): “Riley was located in either North Carolina or Costa Rica when making the allegedly tortious phone call. She therefore both accessed the telephone and telephone lines outside of New York and gave voice to her allegedly tortious remarks outside of the state. Accordingly, Plaintiffs' intentional infliction of emotional distress claim cannot satisfy either interpretation of section 302(a)(2).” (Citing Weinstein Korn & Miller)

CPLR 302 – Injury occurred outside of New York Thackurdeen v. Duke Univ., 2015 U.S. Dist. LEXIS 116952 (S.D.N.Y. 2015): “[A]lthough Plaintiffs surely experienced grief from their loss of consortium with Ravi in New York, their injury, for purposes of their negligence claims, occurred in Costa Rica.” (Citing Weinstein Korn & Miller)

CPLR 302(a)(1) – Transaction of Business and “Unrelated” Tort Where the underlying cause of action arises out of an out of state tort claim, but the jurisdictional predicate is a transaction of business in the state, there may be a problem in establishing a sufficient relationship between the cause of action and the transaction of business. See Pichardo v. Zayas, 122 A.D.3d 699, 996 N.Y.S.2d 176 (2d Dep’t 2014): “Here, the relationship between the causes of action asserted in the complaint and the Zayases' activities within New York were too insubstantial to warrant a New York court's exercise of personal jurisdiction over them pursuant to CPLR 302(a)(1). Although the plaintiff established that the agreement to perform the subject work on the Zayases' property was reached in New York, the causes of action do not pertain to a breach of that agreement (citation omitted). Rather, the plaintiff asserts tort claims grounded in the Zayases' duty to maintain their New Jersey property in a reasonably safe condition. This duty was allegedly breached by the Zayases' provision of a defective saw, which caused the plaintiff to cut himself while at their New Jersey premises. Accordingly, the alleged duty owed by the Zayases to the plaintiff, the alleged breach of that duty, and the plaintiff's injury all arose or occurred in New Jersey (citation omitted). Since the plaintiff failed to demonstrate a sufficient relationship between the Zayases' activities in New York and the causes of action asserted in the complaint, the Supreme Court was not authorized to exercise personal jurisdiction over the Zayases pursuant to CPLR 302(a)(1) (citations omitted).”

CPLR 304 – Failure to serve notice of commencement of mandatory electronic filing does not warrant dismissal Matter of 44 Lexington Assoc., LLC v. Supreme Sec. Sys., Ltd., 139 A.D.3d 517, 32 N.Y.S.3d 100 (1st Dep’t 2016) (“Finally, we perceive no basis to dismiss the petition. Petitioner filed the petition within the required 20 days after service of the notice of demand for arbitration, and served the petition and order to show cause by the deadline the court directed in the order to show cause, which the court deemed ‘good and sufficient service’ (see CPLR 306-b, 7503[c]). Petitioner's mere failure to serve a Notice of Commencement of Action Subject to Mandatory Electronic Filing (22 NYCRR § 202.5-bb[a]) along with its petition and supporting papers does not warrant dismissal here, as respondent had notice of the electronic filing, electronically filed its cross motion to dismiss, and did not cite any prejudice resulting from this omission.”).

CPLR 304- Failure to comply with Court of Claims filing requirements is fatal Hargrove v. State of New York, 138 A.D.3d 777, 29 N.Y.S.3d 495 (2d Dep’t 2016) (“Here, in support of its motion, the State demonstrated that the claim was commenced more than 90 days after the date when the claim accrued (citation omitted). In addition, the State demonstrated that the claimant failed to timely serve a notice of intention to file a claim that included ‘the time when’ the claim arose and the ‘place where’ it arose (citations omitted). The claimant's failure to comply with the filing requirements of the Court of Claims Act deprived the Court of Claims of subject matter jurisdiction (citations omitted). Contrary to the conclusion of the Court of Claims, ‘the State is not required to go beyond a claim or notice of intention in order to investigate an occurrence or ascertain information which should be provided pursuant to Court of Claims Act § 11’ (citations omitted). Accordingly, the Court of Claims should have granted that branch of the State's motion which was pursuant to CPLR 3211(a)(2) to dismiss the claim for lack of subject matter jurisdiction.”).

CPLR 304 – New Rule, 22 NYCRR 202.5(e), Filing and Omission of Confidential Personal Information A 2014 amendment added subsection (e) to Uniform Rule 202.5, 22 NYCRR § 202.5, entitled “Omission or redaction of confidential personal information.” It provides that regardless of whether a sealing order was sought, parties are required to omit or redact “confidential personal information” (CPI) in any papers submitted for filing with the court. CPI is defined as including: 1. An individual’s or an entity’s taxpayer identification number, including social security number, employer identification number, and individual tax identification number, except the last four digits. 2. An individual’s birth date, except the year. 3. The full name of a minor, except his or her initials. 4. A financial account number, including credit or debit card, bank account, investment account or insurance account number, except the last four digits or letters. On motion by any person or the court sua sponte can order a party to remove or redact CPI from papers; resubmit papers with the information redacted; order the clerk to seal papers or portions of papers containing CPI in accordance with the 22 NYCRR § 216.1 requirement that the sealing is not to be broader than what is necessary to protect the CPI; permit inclusion of CPI for good cause; order a party to file for in camera review an unredacted copy under seal; or

37 determine that certain information in an action is not confidential. The court is to consider the pro se status of a party in granting such relief. (e)(2) When a person believes in good faith that full CPI is “material and necessary” to the adjudication of the action, “he or she may apply to the court for leave to serve and file together with a paper in which such information has been set forth in abbreviated form a confidential affidavit or affirmation setting forth the same information in unabbreviated form, appropriately referenced to the page or pages of the paper at which the abbreviated form appears.” (e)(3) In a consumer credit action, the redaction requirement does not apply to the last four digits of the relevant account numbers. If the defendant denies responsibility for the account, the plaintiff can amend the filing without court leave to include the full account or CPI by either submitting the amended paper to the court in camera with written notice to the defendant or filing the full account or CPI under seal. (e)(4) The amended rule expressly excludes matrimonial actions, surrogate’s court proceedings, Mental Hygiene Law Article 81 proceedings, “or as otherwise provided by rule or law or court order.” The amendment was effective from January 1, 2015 but compliance was voluntary from January 1 to February 28, 2015.

Reprinted from Ferstendig, LexisNexis AnswerGuide New York Civil Litigation (2015 ed. Matthew Bender) with permission. Copyright 2015 Matthew Bender & Company, Inc., a LexisNexis company. All rights reserved.

CPLR 304 – Failure to file necessary papers is non-waivable jurisdictional defect Wesco Ins. Co. v. Vinson, 137 A.D.3d 1114, 26 N.Y.S.3d 870 (2d Dep’t 2016) (“In the Supreme Court, pursuant to CPLR 304, an action is ordinarily commenced ‘by filing a summons and complaint or summons with notice,’ and a special proceeding is ordinarily commenced ‘by filing a petition’ (CPLR 304[a]). The failure to file the papers necessary to institute an action or a proceeding constitutes a nonwaivable, jurisdictional defect, rendering the action or proceeding a nullity (citations omitted). Although Wesco obtained an index number and moved to fix the amount of its workers' compensation lien pursuant to Workers' Compensation Law § 29, Wesco did not file or serve a summons, a complaint, or a petition. In light of this failure to file, the jurisdiction of the Supreme Court was never invoked and the purported action or proceeding was a nullity (citations omitted).”).

CPLR 304 – Service of bare summons was nullity Heath v. Normile, 131 A.D.3d 754, 755, 15 N.Y.S.3d 509 (3d Dep’t 2015): “We agree with Supreme Court that while plaintiff filed an adequate summons with notice prior to the expiration of the statute of limitations (see CPLR 304 [a]), his service of a bare summons was ‘a nullity’ (citations omitted). In the absence of service, defendant's demand for a complaint was premature and did not invoke the time limits of CPLR 3012 (b) (citations omitted). Accordingly, we find no error with respect to Supreme Court's denial of the motion to dismiss.”

CPLR 304/305 – Failure to include document designated as “petition” not fatal Matter of Clavin v. Mitchell, 131 A.D.3d 612, 15 N.Y.S.3d 211 (2d Dep’t 2015): “The Supreme Court properly denied the appellants' motion to dismiss. Contrary to the appellants' contention, the court did not lack jurisdiction to entertain this proceeding. Although the order to

38 show cause served by Robert Clavin, doing business as Rob's Plumbing and Heating, Inc. (hereinafter Clavin), was not accompanied by a document designated a ‘petition’ (see CPLR 304[a]; 7804[d]), the appellants were not prejudiced thereby since the papers annexed to and in support of Clavin's order to show cause apprised them of the facts upon which his claim was based and the relief requested. Thus, Clavin's failure to include a document designated as a petition may be disregarded as an irregularity (citations omitted). Contrary to the appellants' further contention, the Supreme Court properly determined that the exhaustion of remedies doctrine did not bar judicial review of Clavin's claims, since he established that resort to an administrative remedy would be futile (citations omitted).”

CPLR 304/2001 – Complete Failure to File not Excusable Under CPLR 2001 Fox v. City of Utica, 133 A.D.3d 1229, 18 N.Y.S.3d 918 (4th Dep’t 2015): “Plaintiff filed a verified claim in this action and, before answering, defendant filed a CPLR 3211 motion to dismiss, contending that plaintiff had ‘yet to file a Summons or a Complaint’ and that ‘a complete failure to file is a jurisdictional defect.’ Relying upon CPLR 2001, Supreme Court deemed the claim to be a complaint and excused the failure to file a summons as ‘an irregularity that shall be disregarded in this case.’ That was error. We agree with defendant that CPLR 2001 does not permit a court to disregard the complete failure to file a summons, i.e., an initial paper necessary to commence an action (citations omitted). As recognized by the Court of Appeals in quoting from the Senate Introducer's Memorandum in support of the bill that amended CPLR 2001, the statute may be invoked as a basis to correct or clarify ‘ a mistake in the method of filing, AS OPPOSED TO A MISTAKE IN WHAT IS FILED'’ (citation omitted).”

CPLR 304/2001– Ministerial Filing Error Overlooked Under CPLR 2001 Matter of Conti v. Clyne, 120 A.D.3d 884, 991 N.Y.S.2d 663 (3d Dep’t 2014): “Dealing first with the issue of subject matter jurisdiction, the record reflects that petitioner Christopher T. Higgins personally delivered the orders to show cause, petitions, and filing fees to the office of the Albany County Clerk. After paying the fees, Higgins took the papers to the Clerk of the Supreme and County Courts in order to have a judge assigned, to whom the papers were transmitted directly. While the papers were not physically placed in the County Clerk's case file, they were nevertheless deemed filed when Higgins delivered them to the County Clerk in the first instance, and Supreme Court correctly found petitioners to have complied with the filing requirements of CPLR 304 and 2102 (citations omitted). The County Clerk should have retained the papers and provided a date-stamped copy of them to Higgins when they were delivered (see CPLR 304 [c]), but the failure to do so constituted nothing more than a ministerial error in the method of filing that may be overlooked pursuant to CPLR 2001 (citation omitted).”

CPLR 304 – E- Filing Error Overlooked Under CPLR 2001 McCord v. Ghazal, 43 Misc. 3d 767, 984 N.Y.S.2d 572 (Sup. Ct. Kings County 2014): Plaintiffs commenced this action, by inadvertently e-filing as a “summons with notice,” a summons and verified complaint drafted for a related, different action in the same court (Douek action), before the same judge (J. Demarest). Plaintiffs then effected service of the proper summons with notice on the defendant on November 12, 2013. The proper summons with notice was then filed thereafter on December 10, 2013. The court held that this was an e-filing error which could be corrected under CPLR 2001. “The only error in commencing this action was the selection of the wrong file on plaintiffs' counsel's computer when prompted by the e-filing

39 system to select the file to be uploaded. Accordingly, the plaintiffs' counsel's uploading of the Summons With Notice was performed in a mistaken manner and method and, pursuant to CPLR 2001, the court may correct the mistake (see Grskovic, 111 AD3d at 242).”

CPLR 305[c] – Amending summons CPLR 305(c) provides that a summons, or proof of service of a summons, can be amended, “if a substantial right of a party against whom the summons issued is not prejudiced.” See New Found., LLC v. Ademi, 2016 NY Slip Op 04922 (2d Dep’t 2016) (“CPLR 305(c) authorizes the court, in its discretion, to ‘allow any summons or proof of service of a summons to be amended, if a substantial right of a party against whom the summons issued is not prejudiced’ (CPLR 305[c]). Where the motion is to cure ‘a misnomer in the description of a party,’ it should be granted even if the statute of limitations has run where ‘(1) there is evidence that the correct defendant (misnamed in the original process) has in fact been properly served, and (2) the correct defendant would not be prejudiced by granting the amendment sought’ (citations omitted). Here, the Supreme Court erred in granting the plaintiff's motion, as the plaintiff failed to offer any evidence that the proposed defendant was properly served with process (citations omitted). Having failed to establish that the proposed defendant was properly served, the plaintiff was not entitled to relief pursuant to CPLR 305(c) (citations omitted).”).

CPLR 305(c) – Cannot be used after expiration of statute of limitation to add entirely new defendant Tokhmakhova v. H.S. Bros. II Corp., 132 A.D.3d 662, 18 N.Y.S.3d 85 (2d Dep’t 2015): “CPLR 305(c) authorizes the court, in its discretion, to ‘allow any summons or proof of service of a summons to be amended, if a substantial right of a party against whom the summons issued is not prejudiced’ (CPLR 305[c]). Where the motion is to cure ‘a misnomer in the description of a party defendant,’ it should be granted even after the statute of limitations has run where ‘(1) there is evidence that the correct defendant (misnamed in the original process) has in fact been properly served, and (2) the correct defendant would not be prejudiced by granting the amendment sought’ (citations omitted). While CPLR 305(c) may be used to cure a misnomer in the description of a party defendant, it cannot be used after the expiration of the statute of limitations as a device to add or substitute an entirely new defendant who was not properly served (citations omitted). It is undisputed that the named defendant, H.S. Brothers II Corp., and the intended defendant, H.S. Brothers Corporation, are two separate and distinct corporate entities. Furthermore, the plaintiff failed to offer any evidence or proof of service in this case or to establish that the Supreme Court obtained jurisdiction over H.S. Brothers Corporation (citations omitted). Accordingly, the plaintiff's renewed motion for leave to amend the caption was properly denied.”

CPLR 306-b/308(2)- Election Law Case Matter of Angletti v. Morreale, 25 NY3d 794, 37 N.E.3d 1144 (2015). In Election Law case, New York State Court of Appeals finds nail and mail service timely, even though mailing was done on last day of which the proceeding could be commenced, assuring delivery after that date. (“Here, there is no dispute that petitioner complied with the terms of the order to show cause by nailing the papers to the door of Morreale's residence on July 22, 2015 and mailing the papers to that residence by express mail on July 23. Morreale maintains that mailing on the last day of the statutory period was jurisdictionally defective since delivery inevitably would occur

40 outside of the statutory period. However, where the instrument of notice has been delivered by another prescribed method within the statutory period, we have rejected such contentions concerning mailing (citations omitted)”.). See David L. Ferstendig, Faster Than a Speeding Bullet!, 659 NYSLD 1, 2 (2015).

CPLR 306-b – Failure to file formal notice of cross motion to extend time not fatal Heath v. Normile, 131 A.D.3d 754, 756, 15 N.Y.S.3d 509 (3d Dep’t 2015): “Further, under the circumstances here, plaintiff's failure to file a formal notice of cross motion is not fatal to his request for an extension of time to permit service (citations omitted).”

CPLR 306-b – Interest of Justice Extension Pennington v. Da Nico Rest., 123 A.D.3d 627 (1st Dep’t 2014): Appellate Division reverses lower court, finding that: “Plaintiff's cross motion for an extension of time to serve Da Nico with the summons and complaint, pursuant to CPLR 306—b, should be granted in the interest of justice (citation omitted). The absence of due diligence on plaintiff's part is mitigated by the facts that Da Nico had timely notice of the claim; Da Nico had been timely, albeit defectively, served; plaintiff had communicated with Da Nico's insurer and provided the insurer with copies of relevant medical records; there was no prejudice to Da Nico; and the statute of limitations had expired since the commencement of the action (citations omitted).”

CPLR 308 – Actual place of business includes advertised location McCord v. Larsen, 132 A.D.3d 1115, 18 N.Y.S.3d 458 (3d Dep’t 2015): “Here, the summons and complaint was personally served upon defendant's former spouse at a residence on Woodcock Mountain Road in the hamlet of Salisbury, Town of Blooming Grove, Orange County, and, within a few days, the summons and complaint was mailed to defendant at such address. Defendant contended that he had moved his landscaping business and personal residence from that location prior to service. Nonetheless, plaintiff produced proof that, among other things, at the time of the deliver and mail service, defendant still advertised the Woodcock Mountain Road location as his business address and he had not changed his address from such location with either the post office or the Department of Motor Vehicles. The record supports finding that Supreme Court had personal jurisdiction (citations omitted).”

CPLR 308- Email and Mail Delivery Ineffective Macon v. Corr. Med. Care, Inc., 2015 U.S. Dist. LEXIS 99808 (W.D.N.Y. 2015): “In any event, even if this Court determined that Kraus was authorized to accept service, Rule 4 of the Federal Rules of Civil Procedure and Section 308 of the N.Y. C.P.L.R. still require personal delivery, as opposed to mail delivery. (Citations omitted). In this case, the facts suggest that Macon provided the motion papers to Kraus via email and mail delivery, rather than personally. Having concluded that service of the motion to substitute upon Kraus was not effective service upon the Estate representative, the motion to substitute is denied without prejudice1 because Macon failed to serve the representative of the Estate in accordance with Rules 4 and 25 of the Federal Rules of Civil Procedure.” (Citing Weinstein Korn & Miller).

CPLR 308(1), 5015(a)(4) – Defect in service not cured by defendant’s receipt of actual notice FV-1, Inc. v. Reid, 138 A.D.3d 922, 31 N.Y.S.3d 119 (2d Dep’t 2016) (“Service of process upon a natural person must be made in strict compliance with the statutory methods of service set forth in CPLR 308 (citations omitted). ‘A defendant's eventual awareness of pending litigation will not affect the absence of jurisdiction over him or her where service of process is not effectuated in compliance with CPLR 308’ (citation omitted). Thus, ‘[a] defect in service is not cured by the defendant's subsequent receipt of actual notice of the commencement of the action’ (citation omitted).”).

CPLR 308(1) – Resisting Service – Leaving Copy in Vicinity Where the defendant resists service, it can be effected by leaving a copy of the summons in the defendant’s general vicinity, as long as defendant is advised accordingly. See Hall v. Wong, 119 A.D.3d 897, 990 N.Y.S.2d 579 (2d Dep’t 2014). “If a defendant resists service of process, service may be effected pursuant to CPLR 308(1) by leaving a copy of the summons in the defendant's general vicinity, provided that the defendant is made aware that this is being done (citations omitted). Here, the plaintiffs' process server testified that after the defendant came to the front door and he explained that he wanted to give her legal papers, the defendant, speaking through the closed door, refused to open the door and told him to come back another time. The process server then placed the summons and complaint between the storm door and the interior brown door, and told the defendant what he was doing. The plaintiffs satisfied their burden of demonstrating that the defendant was properly served.”

CPLR 308(2) – Security Guard as Person of Suitable Age and Discretion Matter of MBNA Am. Bank, N.A. v. Novins, 123 A.D.3d 832 (2d Dep’t 2014): “The appellant moved pursuant to CPLR 5015(a)(4) to vacate a judgment entered upon his failure to appear or answer, claiming that service of process upon him pursuant to CPLR 308(2) was defective because a copy of the notice of petition and petition was not delivered to his dwelling place when it was left with a security guard at a security booth in the townhouse complex where he lived. In view of the conflicting affidavits submitted with respect to this issue, the Supreme Court should have conducted a hearing to determine whether the security guard was a person of suitable age and discretion within the contemplation of CPLR 308(2), and if the outer bounds of the appellant's dwelling place extended to the security booth (citations omitted). Accordingly, we remit the matter to the Supreme Court, Suffolk County, for a hearing on the issue of whether the appellant was properly served with process (citations omitted), and a new determination of the motion thereafter.”

CPLR 308(2), (4) – Failure to File Proof of Service is Not Jurisdictional Deficit It has been held that the failure to file the proof of service is not a jurisdictional defect, but a procedural irregularity that can be cured on motion on by the court sua sponte. However, the court cannot grant retroactive relief to defendant’s prejudice by placing that defendant in default as of a date prior to the order. See Khan v. Hernandez, 122 A.D.3d 802, 996 N.Y.S.2d 667 (2d Dep’t 2014): “Here, in light of the plaintiff's prompt action in moving to correct the irregularity following the denial of his motion for leave to enter a default judgment and the lack of prejudice to Hernandez, the Supreme Court improvidently exercised its discretion in denying that branch of the plaintiff's motion which was to deem the filing of proof of service on

Hernandez timely nunc pro tunc (citation omitted). However, contrary to the plaintiff's contention, a court may not grant such relief retroactive to Hernandez's prejudice by placing him in default as of a date prior to the order (citation omitted). In other words, service will not be deemed complete as of October 23, 2012, as the plaintiff argues (see CPLR 308[4]). Rather, Hernandez must be afforded an additional 30 days after service upon him of a copy of this decision and order to appear and answer (see CPLR 320[a]; Pipinias v J. Sackaris & Sons, Inc., 116 AD3d at 753).”

CPLR 308(4), 5015(a)(4) – Due diligence requirement satisfied Lasalle Bank N.A. v. Hudson, 139 A.D.3d 811, 31 N.Y.S.3d 188 (2d Dep’t 2016) (“Here, the affidavits of the process server demonstrated that three visits were made to the homeowner's residence on three different occasions and at different times of the day. The process server also described in detail his unsuccessful attempt to obtain an employment address for the homeowner. Contrary to the homeowner's contention, under these circumstances, the due diligence requirement was satisfied (citations omitted).”).

CPLR 308(4) – Nail and mail service and satisfying the due diligence requirement Matter of Krodel v. Amalgamated Dwellings, Inc., 139 A.D.3d 572, 32 N.Y.S.3d 139 (1st Dep’t 2016) (“On November 11, the video demonstrates that the process server approached the building, rang the doorbell multiple times, and left after five minutes. Bragin did not argue at the traverse hearing that the door was unlocked or that the process server failed to check it on that date. While the server's attempt may be characterized as minimal diligence, we find that it was sufficient to warrant substituted service pursuant to CPLR 308(4), especially when considered in conjunction with his attempts on November 10 and 13 (citation omitted).”).

CPLR 308(4) – Due diligence requirement met Wells Fargo Bank, NA v. Besemer, 131 A.D.3d 1047, 16 N.Y.S.3d 819 (2d Dep’t 2015) (“Here, the affidavit of the process server demonstrated that three visits were made to the homeowner's residence on three different occasions and at different times, when the homeowner could reasonably have been expected to be found at that location (citations omitted). The process server also described in detail his unsuccessful attempt to obtain an employment address for the homeowner (citations omitted). Contrary to the homeowner's contention, under these circumstances, the due diligence requirement was satisfied (citations omitted). Accordingly, the Supreme Court properly denied that branch of the homeowner's motion which was to vacate the judgment of foreclosure and sale pursuant to CPLR 5015(a)(4).”).

CPLR 308(4) – “Due Diligence” Standard Under CPLR 308(4) – Genuine Inquiries To establish “due diligence,” it must be shown “that the process server made genuine inquiries about the defendant’s whereabouts and place of employment.” Estate of Waterman v. Junes, 46 A.D.3d 63, 66, 843 N.Y.S.2d 462, 465 (2d Dep’t 2007). See Cadlerock Joint Venture, L.P. v. Kierstedt, 119 A.D.3d 627, 990 N.Y.S.2d 522 (2d Dep’t 2014): “The process server's testimony that he inquired as to the defendant's whereabouts from a neighbor was not credible, since he was unable to provide any description of the neighbor—even a description of the neighbor's sex. The affidavit of service referred to the ‘person spoken to,’ but provided no further description, although spaces were provided to insert the person's sex, skin color, hair color, approximate age, height, and weight.”

CPLR 308(5) – Service on defendant’s attorney permitted Born To Build, LLC v. Saleh, 139 A.D.3d 654, 31 N.Y.S.3d 545 (2d Dep’t 2016) (“As the defendant argues, ‘[a]n attorney is not automatically considered the agent of his [or her] client for the purposes of the service of process’ and, absent proof that a defendant has designated his or her attorney as an agent for the acceptance of process, an attorney lacks the authority to accept service on the defendant's behalf (citations omitted). Here, however, the plaintiff demonstrated that it had been unable to serve the defendant at the addresses available to it. The defendant stated that she lived and worked in China, but did not disclose either her business or residence address in that country, thereby preventing the plaintiff from attempting international service pursuant to the Hague convention (citation omitted). Furthermore, the extensive motion practice in this case demonstrates that service of process on her attorney will be adequate to apprise her of the action. Accordingly, the Supreme Court providently exercised its discretion both in permitting the plaintiff to serve process on the defendant's attorney as a form of expedient service pursuant to CPLR 308(5) in its order dated April 1, 2013, and in renewing that permission in the order appealed from (citations omitted). Likewise, under the circumstances of this case, the court's determination to grant the plaintiff additional time to serve the defendant was a provident exercise of discretion.”).

CPLR 308(5) – Showing of impracticability to obtain court ordered service Oglesby v. Barragan, 135 A.D.3d 1215, 24 N.Y.S.3d 770 (3d Dep’t 2016) (“The record reveals that plaintiffs made merely one respective attempt to serve defendants via certified mail at the addresses listed on the police report related to the accident. When plaintiffs relied on that police report for such addresses, the report was approximately three years old. Plaintiffs offer no explanation as to any further attempts to ascertain defendants' current addresses other than the conclusory assertion that they have investigated the whereabouts of Bryan Cuff and Kathi Cuff and concluded that they did not live in New York. Such conclusory statements and proof of a single failed attempt to locate defendants based upon three-year outdated records does not establish that service pursuant to CPLR 308 (1), (2) or (4) was impracticable (citations omitted).”).

CPLR 308(5) (Digest – July 2015) Be Careful the Next Time You Say: Facebook Me! Service by Facebook – I’m Not a Friend CPLR 308(5) provides that where personal delivery, leave and mail and “nail and mail” service on a natural person are impracticable, a plaintiff can move for an alternate type of service. With the rapid expansion of communication through electronic means, particularly email, we are seeing more cases permitting email service, although usually with a second backup means of service. See, e.g., Hollow v. Hollow, 193 Misc. 2d 691 (Sup. Ct., Oswego Co. 2002) (email plus international registered air mail and international mail standard service on defendant employed by American engineering company in Saudi Arabia compound). Recently, a Supreme Court Justice went further, permitting service exclusively by Facebook and without any additional service in a divorce action. In Baidoo v. Blood-Dzraku, 5 N.Y.S.3d 709 (Sup. Ct., N.Y. Co. 2015), Justice Matthew Cooper noted that the plaintiff easily demonstrated that she was unable to serve the defendant via personal service. Moreover, she established that Facebook service was reasonably calculated to apprise the defendant that he was

44 being sued for divorce. The court acknowledged that “Facebook service” represented a radical departure from traditional notions of service of process. It pointed out that the few decisions addressing service via social media, mostly from federal district courts, were split on its propriety. Nevertheless, the court concluded that although Facebook service was novel and nontraditional, it should not be rejected for that reason alone. The determining factor was whether the service comported with the fundamentals of due process by being reasonably calculated to provide the defendant with notice of the divorce. In finding that the plaintiff had met that burden, the court noted that she had established that the Facebook account she identified actually belonged to the defendant; the defendant regularly logged onto his account; and the plaintiff had no other means of contacting or serving the defendant, thereby obviating the need for a second backup or supplemental service. In this case, publication service was simply not reliable and “almost guaranteed not to provide a defendant with notice.” Id. at 715. Thus, although publication is the method most used in divorce actions where the defendant cannot be served by other means, the court refused to sanction it even as supplemental service, noting the substantial cost and that the chances of it being seen by the defendant were “infinitesimal.” See id. at 716. To assure the best opportunity at notice, the court specified the precise procedure to be followed, including a follow-up call and text message: [P]laintiff’s attorney shall log into plaintiff’s Facebook account and message the defendant by first identifying himself, and then including either a web address of the summons or attaching an image of the summons. This transmittal shall be repeated by plaintiff’s attorney to defendant once a week for three consecutive weeks or until acknowledged by the defendant. Additionally, after the initial transmittal, plaintiff and her attorney are to call and text message defendant to inform him that the summons for divorce has been sent to him via Facebook. Id.

CPLR 311(a)(1) – Service on Corporations Matter of Jiggetts v. MTA Metro-N. R.R., 121 A.D.3d 414, 993 N.Y.S.2d 699 (1st Dep’t 2014): “The proceeding was properly dismissed on the basis that no personal jurisdiction was acquired over respondents. Petitioner failed to comply with CPLR 311(a)(1), which requires that the process server tender process directly to an authorized corporate representative, rather than an unauthorized person who later hands the process to an officer or other qualified representative (citation omitted). Petitioner also failed to properly effectuate service of process by mail. Although he mailed the summons and petition to respondents, he did not include two copies of a ‘statement of service by mail’ and an ‘acknowledgement of receipt’ as required by CPLR 312-a (citation omitted). Petitioner's status as a pro se litigant does not excuse the defective service (citation omitted), and the fact that respondents received actual notice does not confer jurisdiction upon the court (id.).”

CPLR 311(a)(1) – Service of One Copy of Pleading on Person with Two Capacities Matter of Stony Cr. Preserve, Inc., 995 N.Y.S.2d 346 (3d Dep’t 2014): “We are also unpersuaded by respondents' contention that petitioner failed to obtain jurisdiction over the corporation. Under the circumstances here, personal service of a copy of the order to show cause upon Place was sufficient to effect service on both the corporation and Place, individually (citations omitted). Considering that petitioner and Place were apparently the only two officers of

45 the corporation at the time, we find that service upon Place constituted ‘notice “reasonably calculated, under all the circumstances, to apprise [Place and the corporation] of the pendency of the [proceeding] and afford them an opportunity to present their objections”’ (citations omitted). No purpose would have been served by delivery of a separate copy of the order to show cause to Place for the corporation. Thus, service upon the corporation was effectuated pursuant to CPLR 311 (a) (1) and Business Corporation Law § 1106 and, inasmuch as jurisdiction was obtained over the corporation, the motion to dismiss was properly denied (citations omitted).”

CPLR 313 – Service by mail under Hague Convention – now permitted in all Departments The First Department recently joined the other Departments in permitting service by mail. See Mutual Benefits Offshore Fund v. Zeltser, 2016 NY Slip Op 04344 (1st Dep’t 2016) (“The motion court correctly denied defendants/counterclaim plaintiffs' request, made in their reply brief on their cross motion, for leave to use alternative forms of service under CPLR 311(b). To the extent this Court held otherwise in Sardanis v Sumitomo Corp. (citation omitted), we now join our sister Departments and hold that service of process by mail ‘directly to persons abroad’ is authorized by article 10(a) of the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (20 UST 361, TIAS No. 5568 [1969] [Hague Convention]), so long as the destination state does not object to such service (citations omitted). Because the destination states of counterclaim defendants Triangle, Meridian, and Amicorp do not object to such service, there is no need for alternate service under CPLR 311(b). Switzerland, the destination state (or state of incorporation) for counterclaim defendants Investarit and Mutual Trust, has objected to article 10(a) of the Hague Convention. Therefore, the only way to serve those parties is through the ‘central authority’ that Switzerland has established pursuant to the Convention (citation omitted). It would not be proper to serve third- party claims on Mutual Trust and Investarit pursuant to Business Corporation Law § 307, because that would violate the Convention (citation omitted). Nor have defendants/counterclaim plaintiffs shown that service through Switzerland's central authority would be too costly or otherwise ‘impracticable’ (CPLR 311[b]).”).

CPLR 317 – Denial of receipt does not establish lack of actual notice Xiao Lou Li v. China Cheung Gee Realty, LLC, 139 A.D.3d 724, 32 N.Y.S.3d 198 (2d Dep’t 2016) (“In opposition, the plaintiff proffered evidence that, as of January 2015, the Secretary of State and the New York City Department of Finance listed the address in Brooklyn as China Cheung Gee Realty's address, and that none of the plaintiff's counsel's mailings to the defendants, including additional copies of the summons and complaint, were returned to the plaintiff's counsel (citation omitted). The defendants did not rebut the plaintiff's evidence (citation omitted). Accordingly, Xiao Hong Zhu's affidavit, which was submitted on behalf of herself and the defendant China Cheung Gee Realty, amounted to nothing more than a denial of receipt of the summons and complaint, which is not sufficient to establish lack of actual notice of the action in time to defend for the purpose of CPLR 317 (citations omitted).”).

CPLR 317 – Defendant failed to receive actual notice Dalton v. Noah Constr. & Bldrs., Inc., 136 A.D.3d 730, 24 N.Y.S.3d 739 (2d Dep’t 2016) (“CPLR 317 permits a defaulting defendant who was served with a summons other than by personal delivery to defend the action upon a finding by the court that the defendant did not personally receive notice of the summons in time to defend and has a potentially meritorious

46 defense (citations omitted). A defendant seeking to vacate a default pursuant to CPLR 5015(a)(1) must demonstrate both a reasonable excuse for the default and a potentially meritorious defense (citations omitted). Here, there was no evidence that the defendant or its agent received actual notice of the summons, which was delivered to the Secretary of State, in time to defend this action (citations omitted). The defendant demonstrated through its submission of the affidavit of its president, Peter Cacopedro, and additional documentation, that in 2011, it filed the necessary paperwork to keep its current address on file with the Secretary of State, but the Secretary of State did not reflect the change of address in their records. Furthermore, there is no basis in the record to conclude that the defendant deliberately attempted to avoid service, especially since the plaintiffs had knowledge of the defendant's actual business address (citations omitted). Based on the specific facts and circumstances of this case, the defendant's failure to receive actual notice of the summons in time to defend the action constituted a reasonable excuse for his default. In addition, the defendant met its burden of demonstrating the existence of a potentially meritorious defense (citation omitted).”).

CPLR 317/5015: Vacating Default – Service Issue Professional Offshore Opportunity Fund, Ltd. v. Braider, 121 A.D.3d 766, 994 N.Y.S.2d 619 (2d Dep’t 2014): “Subsequently, the appellant moved, inter alia, in effect, pursuant to CPLR 317 and CPLR 5015 (a) (1) and (4) to vacate both the order dated September 14, 2011, and the judgment of foreclosure and sale insofar as against her. The appellant submitted an affidavit in which she stated that her signature on the waiver of service acknowledgment form was forged, that she never received either the waiver of service acknowledgment form or a copy of the summons and complaint and that, therefore, the Supreme Court did not have jurisdiction to enter either the order or the judgment against her. Although ‘[s]omething more than a bald assertion of forgery is required to create an issue of fact contesting the authenticity of a signature’ (citation omitted), here, the appellant raised a question of fact as to whether she signed the waiver of service acknowledgment form by establishing that she was not involved with the husband's business, she had not participated in negotiations with either PROOF's attorneys or her husband's attorneys concerning the waiver of service upon her, her signature on the waiver of service acknowledgment form was not notarized, and she had never previously received correspondence at the husband's business email address. Under these circumstances, we cannot conclude that service upon the appellant by email was proper (citations omitted). Since the appellant rebutted the presumption of proper service, a hearing to determine the validity of service of process upon the appellant must be conducted (citation omitted), and, thereafter, a new determination must be made of that branch of her motion which was, in effect, pursuant to CPLR 5015 (a) (4).”

CPLR 320 – No Requirement to File Notice of Appearance/ Demand for Complaint Tsionis v. Eriora Corp., 123 A.D.3d 694 (2d Dep’t 2014): “Contrary to the plaintiffs' further contention, the appellant was not required to file his notice of appearance with the Supreme Court. There is no statutory or other requirement that a notice of appearance, timely served upon a plaintiff, must also be filed with the clerk of the relevant court in order for a defendant to appear in the action (citation omitted). Moreover, since the appellant did not have proper notice that this action was e-filed, it was appropriate for the appellant to serve the notice of appearance on the plaintiffs without e-filing it (citation omitted).”

CPLR 320/3012 – Impact of Serving Notice of Appearance A defendant who has been served with a summons and complaint, or summons and CPLR 305(b) notice, may wish to waive the right to defend but retain other rights such as the right to receive notice of subsequent proceedings. Such a defendant can do so by making an appearance by a notice of appearance alone. Moreover, where the complaint does not set forth any allegations against the defendant, that defendant can serve a notice of appearance to be kept apprised of developments in the action. See Tsionis v. Eriora Corp., 123 A.D.3d 694 (2d Dep’t 2014): “Contrary to the plaintiffs' contention, the appellant was not required to serve an answer where the complaint did not set forth any allegations that the appellant was required to defend against (citations omitted). ‘A defendant who has no defense, and therefore serves no pleading, might nevertheless serve a notice of appearance so as to be kept apprised of the progress of the proceeding’ (citation omitted). Such was the situation here. The complaint contained no allegations about the appellant, except to state that he had a second mortgage on the property. Thus, the appellant properly proceeded by serving a notice of appearance only and was entitled to be kept apprised of the proceedings.”

CPLR 321[c] – Suspension of counsel results in automatic stay Duandre Corp. v. Golden Krust Caribbean Bakery & Grill, 31 N.Y.S.3d 884 (1st Dep’t 2016) (“The suspension of defendant's counsel during the pendency of this action resulted in an automatic stay of the proceedings against defendant until thirty days after notice to appoint another attorney was served upon him, or until the court granted leave to resume proceedings (citations omitted). Because there was no compliance with the leave or notice requirements of CPLR 321(c), and the record demonstrates that defendant did not retain new counsel until February 2014, the automatic stay was in place when the November 22, 2013 judgment was entered based upon defendant's default. Accordingly, the judgment must be vacated. Defendant's failure to invoke CPLR 321(c) until submission of his reply papers on his motion does not result in a waiver of his argument (citation omitted). Nor was he required to submit an affidavit of merit (citation omitted).”).

CPLR 327 – Forum Non Conveniens – No Substantial Nexus with New York Bluewaters Communications Holdings, LLC v. Ecclestone, 122 A.D.3d 426, 996 N.Y.S.2d 232 (1st Dep’t 2014): “The motion court properly dismissed this action on the ground of forum non conveniens (citation omitted). As indicated, this case stems from the failure of a Jersey company (with offices in Jersey and London) to acquire the shares of another Jersey company from a German bank, allegedly because an Englishman bribed a German. The cause of action ‘lack[s] a substantial nexus with New York’ (citation omitted). All the defendants are foreign (citations omitted). Germany has already tried and convicted Gribkowsky. Germany has an interest in how BLB — a German bank — was run (citations omitted). By contrast, New York's interest is minimal (citation omitted). Germany, England, and Jersey are all available alternative fora (citations omitted).”

CPLR 327(a) – “Adventitious circumstance” of accident’s occurrence does not warrant retention of action in New York’ Ortalano v. Yu He, 138 A.D.3d 520, 28 N.Y.S.3d 315 (1st Dep’t 2016) (“Plaintiffs, Pennsylvania residents, commenced this action in Bronx County against defendants, New Jersey residents, for alleged injuries arising out of a motor vehicle accident in Orange County, New

York. Supreme Court providently exercised its discretion in dismissing the complaint based upon the doctrine of forum non conveniens (citation omitted). Defendants established that the only link between plaintiffs' lawsuit and New York State was the accident's occurrence here. This ‘adventitious circumstance’ (citation omitted), does not suffice to provide the substantial nexus required to warrant the retention of jurisdiction in New York State (citations omitted).”).

CPLR 408 – Discovery by order only Matter of Harris v. Department of Educ. of the City of N.Y., 2014 N.Y. Misc. LEXIS 5994, 2014 NY Slip Op 33580(U) (Sup. Ct. N.Y. Co. 2014): “The branch of petitioner's cross motion seeking leave to conduct discovery is denied. In an Article 78 proceeding, ‘a petitioner is not entitled to discovery as of right’ and courts have permitted such discovery only in very limited circumstances. (Citations Omitted.) Here, petitioner has not demonstrated that discovery is warranted with respect to the Article 78 petition.” ) (citing Weinstein Korn & Miller)

CPLR 501 – Forum Selection Clauses (Digest – November 2015) Motion to Change Venue Based on Forum Selection Clause in Consumer Agreement Should Enforceability Be Based on When the Consumer First Saw the Agreement?

Forum selection clauses are commonplace and generally enforceable in agreements among individuals and companies. This is true even though, in most circumstances, the more powerful party dictates the forum choice. Thus, such provisions are enforced unless to do so would be unreasonable or unjust, would contravene public policy, or the clause is held to be invalid because of fraud or overreaching.

This is also typically true even where the agreement is entered into with a consumer who would not ordinarily be in a position to “negotiate.” In Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585 (1991), the U.S. Supreme Court upheld a clause printed on the back of a cruise ticket purchased by the plaintiff, requiring that any action be brought in Florida.

Recently, in Karlsberg v. Hunter Mtn. Ski Bowl, Inc., 131 A.D.3d 1121, 1121 (2d Dep’t 2015), the plaintiff signed an “Equipment Rental Form and Release of Liability,” which set forth the following forum selection clause: [A]ll disputes arising under this contract and/or the use of this equipment and/or the use of the facilities at Hunter Mountain Ski Bowl, shall be litigated exclusively in the Supreme Court of the State of New York, County of Greene, or in the United States District Court for the Northern District of New York.

The plaintiff was injured while snowboarding at the facility and brought this Suffolk County action alleging that the defendant failed to provide proper instruction. The defendant moved to change venue to Greene County based on the forum selection clause. The lower court granted the defendant’s motion and upon reargument adhered to its original determination. On appeal, the Appellate Division affirmed, with the majority finding that “[c]ontrary to the plaintiff’s contentions, the ‘Equipment Rental Form and Release of Liability’ was not an unenforceable contract of adhesion, and enforcement of the forum selection clause contained therein does not contravene public policy.” Id. at 1121–22 (citations omitted).

In a concurring opinion, however, Judge Dickerson expressed his concern over whether the consumer had a sufficient opportunity to read, consider and reject the forum selection clause. In this case, the plaintiff was shown the clause for the first time when he arrived at the defendant’s facility. Judge Dickerson pointed to several federal court decisions that held as unenforceable forum selection clauses contained in reservation forms which were not shown to consumers until they arrived at a resort. He stated that he believed this to be the better rule.

However, in the end, Judge Dickerson could not follow his instincts because the court was constrained by the doctrine of stare decisis as a result of its prior holding in Molino v. Sagamore, 105 A.D.3d 922, 923 (2d Dep’t 2013). There, the court upheld a forum selection clause in a resort’s “Rental Agreement” presented to the plaintiff upon arrival at a resort while registering.

Thus, while passengers and consumers may be looking forward to spending a wonderful, relaxing time at a beautiful resort, if injured, they might find themselves unable to resort to a venue of their choice for their lawsuit!

CPLR 503 – Yaniveth v. Ltd. Realty Co., 27 N.Y.3d 186 (2016) (Digest – May 2016) Where Does Child “Reside” for Purposes of the Application of Lead Paint Law? Apartment Where Child Spent 50 Hours Per Week With Non-Custodial Caregiver Is Not Her Residence New York City requires landlords to remove lead-based paint in a dwelling unit where a child six years and younger “resides.” The question in Yaniveth R. v. LTD Realty Co., 2016 N.Y. Slip Op. 02550 (April 5, 2016), was whether an apartment where the plaintiff stayed with her grandmother daily from 9:30 a.m. to 6:30/7:00 p.m. while her parents worked, constituted her “residence” for the purpose of the lead paint law. A majority of the New York State Court of Appeals found that it did not. The Court noted that because there was no definition of the word “reside” in the applicable law, it would resort to its usual and commonly understood meanings. The Court reasoned that, generally, residence implies more than mere physical presence but something less than domicile. The critical test for the majority appeared to be that the stay had to be for some length of time and that the person has to “have the bona fide intent to retain the place as a residence with at least some degree of permanency.” Id. at *2. The majority concluded that, in this action, the plaintiff did not “reside” in her grandmother’s apartment and, thus, the landlord had no obligation to abate that apartment: Both Ramona and Yaniveth’s grandmother testified that Yaniveth did not live at the apartment, and there is no evidence in the record that they intended for her to live there or to retain the apartment as a residence. Yaniveth visited her grandmother’s apartment during the day solely for the purpose of child care, while her parents were at work. Although a person may reside at more than one location, spending 50 hours per week in an apartment with a non-custodial caregiver is insufficient to impose liability on a landlord under Local Law 1. Id. at *3. The dissent disagreed with the majority’s narrow interpretation of the term “resides.” It noted that there were differing interpretations of the word “reside,” including “remain” or “stay.” The dissent maintained that the majority had removed the distinction between “residence” and

“domicile” and that, in essence, the majority’s interpretation limited a child to only one residence. The basis for the dissent’s position was prior precedent which stated clearly that while a person can have more than one residence, he or she can only have one domicile. The critical distinction is that while both require bodily presence, domicile also requires a showing of an intention to make it one’s “domicile.” The majority disputed that it had eliminated the distinction between “domicile” and “residence.” While it acknowledged that a person can reside in more than one place, a person does not necessarily reside in any place in which he or she spends time. The majority stated that it is a fact-driven analysis, guided by the totality of the circumstances, and pointed to a joint custody arrangement, as an example of a situation in which a child might have multiple residences. The dissent stressed, however, that the intent of the law was to protect young children who could be exposed to lead-based paint in multiple locations and saw far-reaching negative consequences in the majority’s decision that cry out for legislative action: The impact of today’s decision transcends this case. It threatens the ability of those young children who are covered by Local Law 1 and who were subject to either a joint custody agreement or a comparable shared living arrangement at the time of their exposure to lead-based paint to recover damages for their resultant injuries. It threatens the ability of children who are covered by the successor to Local Law 1 (citation omitted) and who are subject to similar living arrangements to recover damages for the same harm. It also beseeches a legislative response. Id. at *5.

CPLR 503 – Residence of domestic corporation for venue purposes is county designated in certificate of incorporation: check secretary of state site Matoszko v. Kielmanowicz, 136 A.D.3d 762, 25 N.Y.S.3d 294 (2d Dep’t 2016) (“‘[T]o prevail on a motion pursuant to CPLR 510(1) to change venue, a defendant must show that the plaintiff's choice of venue is improper, and also that the defendant's choice of venue is proper’ (citations omitted). The venue of an action is proper in the county in which any of the parties resided at the time of commencement (citations omitted). ‘[T]he sole residence of a domestic corporation for venue purposes is the county designated in its certificate of incorporation, despite its maintenance of an office or facility in another county’ (citations omitted).”).

CPLR 503 – Residence of limited liability company is principal office designated in articles of organization – can be different than where business activities conducted Pinos v. Clinton Cafe & Deli, Inc., 139 A.D.3d 1034 (2d Dep’t 2016) (“‘Pursuant to CPLR 503(a), the venue of an action is properly placed in the county in which any of the parties resides at the time of commencement’ (citation omitted). ‘The sole residence of a limited liability company for venue purposes is the county where its principal office is located as designated in its articles of organization’ (citations omitted ). ‘Such office need not be a place where business activities are conducted by the limited liability company’ (citations omitted).”).

CPLR 503 – Transitory action is one that does not affect or involve chattel or real estate O'Brien v. Vassar Bros. Hosp., 207 A.D.2d 169, 173, 622 N.Y.S.2d 284, 187 (2d Dep’t 2015).

CPLR 503 – Residency in Transitory Action for Venue Purposes Deas v. Ahmed, 120 A.D.3d 750, 991 N.Y.S.2d 661 (2d Dep’t 2014): While a plaintiff can base his or her choice of venue solely on a defendant’s address contained in a police report, that report alone is insufficient evidence to establish that a plaintiff did not reside in another county where plaintiff elected to place venue at the time the action was commenced

CPLR 503(a) – License showing Westchester County address at time of accident and registration of cars in Westchester insufficient for venue change on improper county grounds Madia v. CBS Corp., 139 A.D.3d 475, 29 N.Y.S.3d 800 (1st Dep’t 2016) (“Even if the additional evidence and supplemental affirmation submitted by defendants in support of their motion to renew are considered, defendants failed to establish that plaintiffs did not reside in Bronx County at the time the action was commenced (see CPLR 503[a]). Although defendants showed that plaintiff Quirino Madia presented a license showing a Westchester County address at the time of the accident, and apparently registered other cars in Westchester County, in opposition, plaintiffs presented an affidavit and substantial documentary evidence showing that he lived in a home that he owned in Bronx County, with his wife, plaintiff Theresa Madia, at the time the action was commenced (citation omitted). Accordingly, defendants failed to establish that venue was improperly placed in Bronx County.”).

CPLR 503(a) – Venue determined by where plaintiff resided at time action was commenced Mejia v. J. Crew Operating Corp., 32 N.Y.S.3d 491 (1st Dep’t 2016) (“Unless otherwise prescribed, venue is properly laid in the county where one of the parties resides when the action is commenced (CPLR 503[a]). In making the motion under CPLR 510(1), defendants, as movants, assumed the burden to establish that plaintiff improperly designated Bronx County as the venue (citation omitted). Defendants' proof indicates that when seeking treatment at Lincoln Hospital on April 10, 2014, plaintiff gave a Richmond County address. However, that evidence does not demonstrate where plaintiff resided when this action was commenced five months later, in September 2014 (citation omitted).”).

CPLR 503(c)– Foreign corporation’s designation of county with Secretary of State controlling for venue purposes – do not need office in that county Crucen v. Pepsi-Cola Bottling Co. of N.Y., Inc., 139 A.D.3d 538, 30 N.Y.S.3d 554 (1st Dep’t 2016) (“In support of its motion, defendant, a foreign corporation, submitted a certified copy of its application for authority to do business filed with the Secretary of State in which it stated that its principal place of business ‘is to be located’ in New York County. Defendant's designation of New York County as its principal place of business in the application for authority is controlling for venue purposes (citations omitted). Contrary to plaintiff's arguments, even if defendant does not actually have an office in New York County, and although it has notified the Department of State to forward process to an address in Bronx County, the designation made by defendant in its application for authority still controls for venue purposes (citations omitted). Defendant's choice of Westchester County, where plaintiff resides and where the accident took place, as the place for trial is proper.”).

CPLR 503(d) – Venue for Action v. Unincorporated Association, Partnership, or Individually - Owned Business Young Sun Chung v. Kwah, 122 A.D.3d 729, 996 N.Y.S.2d 153 (2d Dep’t 2014): “‘In the context of determining the proper venue of an action, a party may have more than one residence’ (citations omitted). Under CPLR 503(d), the county of an individual's principal office is a proper venue for claims arising out of that business (citations omitted). Here, the plaintiff seeks to recover damages for medical malpractice allegedly committed by, among others, the defendant Jung Lack Lee in his capacity as a medical doctor. Accordingly, the county in which that defendant maintains his principal office is a proper venue in this case.”

CPLR 504(3) – Venue for Action Against New York City Ortiz v. Codella, 123 A.D.3d 453, 998 N.Y.S.2d 338 (1st Dep’t 2014): “Plaintiff seeks to recover damages for malicious prosecution and violation of his civil rights under 42 USC § 1983, alleging that he was wrongfully convicted of a murder he did not commit based on serious misconduct by the individual defendants, then employed by the New York City Housing Authority and New York City Police Department. Plaintiff's conviction was vacated based on a showing of prosecutorial misconduct (citation omitted), after he had served nearly 20 years in prison. Since plaintiff's federal and state tort claims against the City all arose in New York County, where the alleged misconduct occurred and where he was arrested and prosecuted, the motion for a change of venue pursuant to CPLR 504(3) was properly granted, notwithstanding that he was held in Rikers Island in Bronx County for 20 months prior to and during the criminal trial (citations omitted).”

CPLR 506(b)(1) – Venue for Action Against Justices of the Supreme Court, Judges of the County Court Matter of Tonawanda Seneca Nation v. Noonan, 122 A.D.3d 1334, 996 N.Y.S.2d 446 (4th Dep’t 2014): “Petitioner commenced this CPLR article 78 proceeding in this Court purportedly pursuant to CPLR 506 (b) (1) seeking, inter alia, to prohibit respondent Hon. Robert C. Noonan (respondent) from exercising jurisdiction over any real property situated within the territory of the Tonawanda Seneca Nation. We conclude that the proceeding was improperly commenced in this Court and that, therefore, the amended petition must be dismissed. It is well settled that ‘[a] CPLR article 78 proceeding against a Judge of the Surrogate's Court should be commenced in Supreme Court and is not properly commenced in this Court’ (citations omitted). CPLR 506 (b) (1) ‘has been narrowly construed [as] depriving appellate jurisdiction to all such [CPLR article 78] proceedings [commenced in the Appellate Division] unless one of the specifically delineated Judges is a named respondent’ (citations omitted). To the extent that CPLR 506 (b) concerns subject matter jurisdiction, its provisions cannot be waived (see Nolan, 61 NY2d at 790). Contrary to petitioner's contention, respondent is the duly elected Surrogate for Genesee County, a position not specifically delineated in CPLR 506 (b) (1) and, therefore, a proceeding against him must be commenced in Supreme Court. Even if we assume, arguendo, that respondent was elected as a County Court Judge and was thereafter assigned to ‘be and serve as’ a Surrogate (Judiciary Law § 184 [2]), petitioner is seeking to prohibit respondent from acting in the role of Surrogate. We thus conclude that jurisdiction remains in Supreme Court (citations omitted).”

CPLR 507 – Would judgment in action affect title to, or the possession, use or enjoyment of real property? Not here. Gleitman v. Silver Gate Owners Corp., 139 A.D.3d 671, 29 N.Y.S.3d 195 (2d Dep’t 2016) (“Contrary to the defendants' contention, the judgment in this action would not affect title to, or the possession, use, or enjoyment of, real property, inasmuch as the plaintiffs seek only damages and a judgment declaring that the current board of directors of the defendant Silver Gate Owners Corp. is not legally constituted (citations omitted).”).

CPLR 510 – Impartial trial; retired justice Lisa v. Parikh, 131 A.D.3d 1135, 16 N.Y.S.3d 752 (2d Dep’t 2015) (“Under the circumstances of this case, the Supreme Court improvidently denied the defendants' motion to change venue. Although he is now retired, the plaintiff's tenure as a Justice of the Supreme Court, Queens County, supports a change of venue of the action from Queens County to Nassau County to ‘protect[ ] the court from even a possible appearance of impropriety’ (citations omitted).”).

CPLR 510 – Venue Change and Improper Venue – Proper Venue for Motion to Change Venue King v. CSC Holdings, LLC, 123 A.D.3d 888 (2d Dep’t 2014): “Here, in response to the defendants' demand to change venue, the plaintiff timely served an affidavit of her attorney containing factual averments that were prima facie sufficient to show that the county designated by her was proper (citations omitted). Accordingly, the defendants' motion pursuant to CPLR 510(1) should have been made in the Supreme Court, Kings County, where the action was pending, and the Supreme Court, Nassau County, erred in granting the motion (citation omitted). We do not reach the defendants' challenge to the form of the plaintiff's affidavit of proper county, as it is improperly raised for the first time on appeal (citation omitted).”

CPLR 510/511– Venue Change and Convenience of Witnesses (Digest – May 2015) Properly Support Your Venue Motions Mental Hygiene Law Article 10 Venue Requirements Found to Apply but Petitioner Fails to Establish Good Cause for Venue Change While Tyrone D. v. State of New York, 24 N.Y.3d 661, 3 N.Y.S.3d 291, 26 N.E.3d 1146 (2015) involved the applicability of the Mental Hygiene Law, it highlights the importance of properly supporting any motion to change venue. Petitioner, an adjudicated dangerous sex offender in need of confinement, was committed to a psychiatric center in 2010. The Office of Mental Health (OMH) subsequently notified petitioner of his MHL § 10.09(a) annual right to petition for discharge. Petitioner indicated, on the form provided, his intent not to waive his right and brought an action in Oneida County seeking the discharge. Petitioner then moved pursuant to MHL § 10.08(e) and CPLR 510 to change venue for the annual review hearing to New York County. Petitioner’s counsel submitted an affirmation alleging it would be “extremely inconvenient, burdensome and impossible” for petitioner’s family to appear in Oneida County, citing limited resources and physical health issues; the fact that most of the potential witnesses resided in New York City; and that a New York County judge would be better suited to determine the petitioner’s status. The State responded that MHL Article 10 did not permit a change of venue of the annual review hearing and, regardless, petitioner had not satisfied MHL § 10.08(e)’s good cause requirement. The lower court found that MHL § 10.08(e) did apply but

54 counsel’s conclusory affirmation did not establish good cause for the change of venue. On appeal, the Appellate Division ruled that MHL § 10.08 permitted a venue change only for trials, not hearings. The Court of Appeals disagreed, finding MHL Article 10 applied both to hearings and trials, as long as the petitioner demonstrated good cause. However, the Court affirmed the Appellate Division order, ruling that petitioner failed to meet the good cause requirement. The affidavit submitted in support of the motion spoke only generally of the inconvenience and burdens to family members and witnesses, and did not identify a single witness who would actually testify or provide a description of the proposed testimony or its relevance. In any motion to change venue based on the convenience of witnesses, it is important to provide in detail the names, addresses and occupations of all witnesses, their expected testimony, the need for and relevance of their testimony and to affirmatively state that the witnesses actually would be inconvenienced. Some cases suggest that, if possible, affidavits from the actual witnesses are preferred. When this is not feasible, another option may be to have an investigator interview the witnesses and submit an affidavit recounting the witnesses’ statements. If an attorney’s affirmation is the only reasonable alternative, make sure it is as detailed as possible. Generalized statements will not suffice.

CPLR 510/511 – Venue Change and Convenience of Witnesses Liere v. State of New York, 123 A.D.3d 1323 (3d Dep’t 2014): “Beyond providing the names and addresses of certain nonparty witnesses, claimant provided no explanation as to how these individuals would be inconvenienced beyond stating that the witnesses, who reside and/or work in Suffolk County, would have to travel a distance to Albany County. Further, claimant's assertion that changing venue would serve the ends of justice in that he would not have to reimburse witnesses for their travel and lodging expenses or lost wages is unavailing. Finally, the timing of claimant's motion, made four years after commencement of the proceeding, was not reasonable (citations omitted). As such the Court of Claims did not abuse its discretion in denying claimant's motion.”

CPLR 510/511 – Venue Change and Convenience of Witnesses Ryan-Avizienis v. JBEW Bar Corp., 121 A.D.3d 579, 993 N.Y.S.2d 912 (1st Dep’t 2014): “JBEW Bar met its initial burden in support of the motion by submitting the affirmation of its counsel, who had contacted two nonparty witnesses — a former employee who was working on the night of the accident and a Village of Patchogue inspector — and averred that they were both willing to testify, the nature of their proposed testimony, and the manner in which they would be inconvenienced if they were required to travel from Suffolk County, where they live and work, to Bronx County (citations omitted). The fact that plaintiff received medical treatment in Suffolk County after the accident also favors transfer of venue (citation omitted).”

CPLR 903/ 904 – Jiannaras v. Elfant, 2016 N.Y. Slip Op. 03548 (2016) (Digest – June 2016) Court Affirms Disapproval of Class Action Settlement Because of Lack of Opt-Out Option Out-of-State Class Members Would Be Deprived of Cognizable Property Interests In Jiannaras v. Alfant, 2016 N.Y. Slip Op. 03548 (May 5, 2016), a proposed settlement of a class action arising out of a merger of Google, Inc. and On2 Technologies, released all damage claims in connection with the merger. It did not provide class members with an opportunity to opt out of the settlement (that is, not to participate in it). Over 200 shareholders objected, arguing, among other things, that the unavailability of an opt-out right improperly

55 prevented out of state shareholders from pursuing individual damages claims related to the merger. Although the lower court found that the settlement was fair, adequate, reasonable and in the class members’ best interests, it would not approve the settlement because of the omission of opt-out rights. The Appellate Division affirmed with one dissent. Relying on its precedent in In re Colt Indus. Shareholder Litig., 77 N.Y.2d 185 (1991), the Court of Appeals noted that where the complaint seeks predominately equitable relief, there is no due process right to provide opt- out rights to class members. However where, as here, the proposed settlement of the class action would extinguish the rights of non-resident class members to pursue damage claims in another jurisdiction, the court must disapprove of that settlement. Stated differently, while opt-out rights were not required when the complaint demanded predominately equitable relief, once the settlement implicated the class members’ rights to seek damages “the nature of the adjudication changed dramatically,” and non-resident class members could not be deprived of their right to pursue their damage claims in another jurisdiction. The Court emphasized the differences between federal and state law, with respect to opt- out rights, noting that Federal Rule 23 requires notice and opt-out rights as to one of three types of class actions while CPLR Article 9 “contemplates… that a Judge may choose to exercise discretion to permit a class member to opt out of a class.” Jiannaras, 2016 N.Y. Slip Op. 03548 at *3.

CPLR 908 – Notice required of impending dismissal even though class not certified – difference between state and federal law Vasquez v. National Sec. Corp., 139 A.D.3d 503, 29 N.Y.S.3d 809 (1st Dep’t 2016) (“The motion court correctly required notice of the impending dismissal of the putative class action even though the class had not been certified. The court correctly relied on our decision in Avena v Ford Motor Co. (citation omitted), the subsequent amendment of Federal Rule of Civil Procedure 23(e) to restrict the notice requirement to dismissals, discontinuances and compromises of ‘certified class’ actions notwithstanding. The legislature, presumably aware of the law as stated in Avena, has not amended CPLR 908 to conform to the federal statute. Although defendant-appellant raises policy arguments in support of its position, its remedy lies with the legislature and not with this Court (citation omitted).”).

CPLR 908 – Notice and tolling of statute of limitation by commencement of class action Desrosiers v. Perry Ellis Menswear, LLC, 139 A.D.3d 473, 30 N.Y.S.3d 630 (1st Dep’t 2016) (“Although the time in which to seek class certification had expired pursuant to CPLR 902 by the time defendants sought discontinuance of this case based on the settlement, the court improperly denied plaintiff's application to send CPLR 908 notice to the putative class members. CPLR 908 reads as follows: ‘A class action shall not be dismissed, discontinued, or compromised without the approval of the court. Notice of the proposed dismissal, discontinuance, or compromise shall be given to all members of the class in such manner as the court directs.’ ‘In American Pipe & Constr. Co. v Utah (414 U.S. 538, 553, 94 S. Ct. 756, 38 L. Ed. 2d 713), the United States Supreme Court held that, under the federal class action rule, commencement of a class action suit tolls the running of the statute of limitations for all purported members of the class who make timely motions to intervene after the court has found the suit inappropriate for class action status. New York courts have adopted this rule’ (citations omitted). Thus, the putative class retains an interest in the action, and CPLR 908 is not rendered

56 inoperable simply because the time for the individual plaintiff to move for class certification has expired. Notice to the putative class members of the compromise in the instant case is particularly important under the present circumstances, where the limitations period could run on the putative class members' cases following discontinuance of the individual plaintiff's action.”).

CPLR 1001(a) – Dismissal for failure to join necessary parties “who might be inequitably affected by a judgment” in this action Schulz v. State of New York Exec., 138 A.D.3d 1197, 30 N.Y.S.3d 721 (3d Dep’t 2016), appeal dismissed, 2016 N.Y. LEXIS 1755 (June 23, 2016) (“Finally, we cannot say that Supreme Court abused its discretion in dismissing plaintiff's remaining causes of action for failure to join necessary parties — despite being given the opportunity to do so. As signatories to the very agreements challenged by plaintiff in this action, the Indian Nations, as well as Oneida County and Madison County, plainly qualify as parties ‘who might be inequitably affected by a judgment in [this] action’ (citations omitted). As such, Supreme Court properly concluded that these entities should be joined as necessary parties and directed plaintiff to do so within 30 days of the date of the amended judgment (April 28, 2014). Plaintiff, by his own admission, did not serve the Indian Nations or the affected counties within the specified time frame. Although plaintiff now argues that dismissal is too severe a sanction for his noncompliance, we discern no abuse of Supreme Court's considerable discretion in this regard. Plaintiff's remaining arguments, to the extent not specifically addressed, have been examined and found to be lacking in merit.”).

CPLR 1007- Court converts third-party claims to cross-claims Boss v. Bridgeport & Port Jefferson Steamboat Co., 48 Misc. 3d 1207(A), 17 N.Y.S.3d 381 (Sup. Ct. Suffolk Co. 2015): Court converts third-party claims to cross-claims in main action and amends caption by deleting reference to the third-party action. (Citing Weinstein, Korn & Miller)

CPLR 1015 – Appointment of personal representative – Surrogate’s Court or Supreme Court Kastrataj v. Blades, 136 A.D.3d 756 (2d Dep’t 2016) (“If a party dies and the claim against her ‘is not thereby extinguished the court shall order substitution of the proper parties’ (CPLR 1015[a]). A motion seeking substitution ‘may be made by the successors or representatives of a party or by any party’ (CPLR 1021). While in most instances the personal representative of the decedent's estate will be substituted in the action, in the event no such representative exists, an appropriate appointment should be made and that individual should be substituted in place of the decedent (citations omitted). ‘The Supreme Court is a court of general jurisdiction with the power to appoint a temporary administrator, and may do so to avoid delay and prejudice in a pending action’ (citation omitted). ‘The determination of whether to exercise its authority to appoint a temporary administrator is committed to the sound discretion of the Supreme Court’ (citation omitted). Here, the plaintiff failed to demonstrate the steps she had taken to secure the appointment of a personal representative in the appropriate Surrogate's Court or that resort to the appropriate Surrogate's Court was otherwise unfeasible (citation omitted). Indeed, the very death certificate that the plaintiff submitted to the Supreme Court identifies the name and address of the decedent's son, yet the plaintiff failed to indicate whether any attempt was made to contact him, much less request his cooperation. In any event, the instant action is not trial ready, and the plaintiff failed to adequately demonstrate why the appointment of a

57 temporary administrator was needed to avoid undue delay and prejudice (citation omitted). Accordingly, under the circumstances presented here, the Supreme Court did not improvidently exercise its discretion in denying the plaintiff's motion.”).

CPLR 1015 – Death renders determination void Schnapp v. Miller's Launch, Inc., 135 A.D.3d 655, 24 N.Y.S.3d 606 (1st Dep’t 2016) (“If plaintiff's wife's death occurred before the motion court decided the motion, the court's determination is void. Whether she died before or after this appeal was filed, this court lacks jurisdiction to review the motion court's decision because to date there has been no proper substitution (citations omitted). Since we do not address the merits of the underlying appeal, this dismissal is without prejudice.”).

CPLR 1021 – Death renders determination void Aurora Bank FSB v. Albright, 137 A.D.3d 1177 (2d Dep’t 2016) (“Here, the deceased defendant died before the plaintiff's motion was made and before the order appealed from was issued. The attorney who had represented the deceased defendant prior to his death purportedly took this appeal on behalf of, among others, the deceased defendant. However, since a substitution of parties had not been effected prior to the filing of the notice of appeal, counsel lacked the authority to act for the deceased defendant, and the purported appeal taken on behalf of the deceased defendant must be dismissed (citations omitted). Furthermore, since no substitution was made prior to the entry of the order appealed from, the order appealed from is a nullity to the extent that it pertains to the deceased defendant, and we vacate so much of the order as granted that branch of the plaintiff's motion which was for summary judgment on the complaint insofar as asserted against the deceased defendant (citations omitted). Similarly, in this case, since a proper substitution had not been made, the Supreme Court should not have determined the merits of the plaintiff's motion, even to the extent that the plaintiff sought relief against the other defendants (citations omitted). Although this Court has recognized, under certain limited circumstances, that ‘where a party's demise does not affect the merits of a case, there is no need for strict adherence to the requirement that the proceedings be stayed pending substitution’ (citation omitted), those circumstances are not present here.”).

CPLR 1021 - Substitution Riedel v. Kapoor, 123 A.D.3d 996 (2d Dep’t 2014): “The Supreme Court providently exercised its discretion in, upon renewal, granting those branches of the separate motions of the defendants Deepak A. Kapoor and Robert Fuentes (hereinafter together the respondents) which were pursuant to CPLR 1021 to dismiss the complaint insofar as asserted against each of them. Those interested in the estate of Benedict Riedel (hereinafter the decedent) clearly were on notice of the need to substitute a legal representative for the decedent's estate, as the respondents had previously moved on at least two prior occasions pursuant to CPLR 1021 to dismiss the complaint. Yet, no reasonable excuse was proffered for the failure to substitute a legal representative for the estate of Benedict Riedel during the four-year period between the death of Catherine Riedel, executor of the decedent's estate, and the respondents' motion for leave to renew, which was filed in October 2012. Further, although the plaintiff's counsel was directed to apply for the appointment of a legal representative within 30 days, counsel failed to provide a reasonable excuse for his failure to file such an application. Additionally, in the absence of any affidavit of merit and the prejudice to the respondents, it was appropriate to grant dismissal of

58 this action insofar as asserted against them (citations omitted).”

CPLR 1403 – Contribution claim is premature O.K. Petroleum Distrib. Corp. v. West Hempstead Water Dist., 131 A.D.3d 1143, 16 N.Y.S.3d 762 (2d Dep’t 2015): “The Supreme Court properly granted those branches of the respondents' separate motions which were pursuant to CPLR 3211(a) to dismiss the cause of action for contribution for liability the plaintiffs in this action might incur in connection with an action entitled State of New York v O.K. Petroleum Distribution Corp., pending in the Supreme Court, Albany County, under Index No. L-00063-12, insofar as asserted against each of them. While CPLR 1403 permits a separate cause of action for contribution, in this case, the plaintiffs have not sustained any damages as the result of the alleged negligence of the respondents, as there has been no judgment or settlement in the underlying action (citations omitted). Accordingly, the cause of action for contribution at issue here is premature, as the resolution of the underlying action is beyond the control of the parties and might not result in an award of damages (citations omitted).”

CPLR 1403, Article 16 – Dangers associated with inability to sue state in Supreme Court Dissent in Artibee v. Home Place Corp, 14 N.Y.S.3d 817, 821 (3d Dep’t 2015): “This case illustrates an archaic aspect of our state court system and is fodder for those who advocate for a single, Supreme Court level trial court. Here, plaintiffs claim that two negligent parties are responsible for their injuries. But, because one of those parties is the State, plaintiffs are forced to sue one alleged wrongdoer, i.e, defendant, in Supreme Court and the other alleged wrongdoer, i.e., the State, in the Court of Claims. It is bad enough that plaintiffs will have to try their case twice, but defendant also is placed at a disadvantage by virtue of (presumably) wishing to point the finger of blame at a party who is not — and cannot — be present in the courtroom.” See David L. Ferstendig, CPLR Article 16 Exception to Joint and Several Liability, 659 NYSLD 2, 3 (2015), discussed below.

CPLR 1601 – State’s culpable conduct can be considered even though it cannot be sued in Supreme Court (Digest – October 2015) CPLR Article 16 Exception to Joint and Several Liability Is Inability to Sue the State Tantamount to a Lack of Personal Jurisdiction? CPLR Article 16 was enacted to modify the common law theory of joint and several liability. Its primary purpose was to alleviate the inequity faced by low-fault defendants who were forced to pay shares of a judgment that greatly exceeded their apportionment of liability. Thus, Article 16 provides that where a joint tortfeasor defendant is found to be 50% or less liable, he or she is only severally liable for his or her proportion of the plaintiff’s noneconomic damages (i.e., pain and suffering). However, the defendant remains jointly liable for all economic losses. Moreover, the statute contains numerous exceptions, including, most prominently, a carveout for motor vehicle cases.

In determining the joint tortfeasor’s share, the liability of both parties and nonparties is considered. Artibee v. Home Place Corp., 2015 N.Y. Slip Op. 06556 (3d Dep’t 2015), concerned a provision in CPLR 1601 stating that

the culpable conduct of any person not a party to the action shall not be considered in determining any equitable share herein if the claimant proves that with due diligence he or she was unable to obtain jurisdiction over such person in said action. The plaintiff and her spouse derivatively brought this negligence action, alleging that a branch overhanging the highway from a tree on the defendant’s property fell and struck her car, injuring her. The plaintiffs also commenced an action against New York State in the Court of Claims, alleging that it failed to maintain the trees above the highway. In this Supreme Court action, the defendant moved in limine for a jury charge apportioning liability for the plaintiff’s injuries between the defendant and the nonparty, the State. The lower court denied the motion, but ruled that evidence regarding the State’s liability would be admissible at trial. On appeal, a majority of the Third Department found that the plaintiff’s inability to join the State was due to sovereign immunity, not a jurisdictional limitation. Noting that this was a case of first impression for the Court, it analogized this case to where a joint tortfeasor has declared bankruptcy. In In re N.Y. City Asbestos Litig., 6 A.D.3d 352 (1st Dep’t 2004), the First Department held that a tortfeasor’s bankruptcy does not prevent consideration of its culpable conduct under Article 16. See also Kharmah v. Metro. Chiropractic Ctr., 288 A.D.2d 94 (1st Dep’t 2001) (“[W]hile the bankrupt defendants will not participate in the trial, equity requires that defendants-appellants have the benefit of CPLR article 16 rights, even though there is an automatic stay by virtue of the bankruptcy.”); Moy v. St. Vincent’s Hosp. & Med. Ctr. of N.Y., 92 A.D.3d 651 (2d Dep’t 2012). The majority in Artibee noted that both case law and legislative history supported its view that apportionment against the State is appropriate: Further, the prevailing view is that apportionment against the State is an appropriate consideration in determining the fault of a joint tortfeasor in Supreme Court. Legislative history supports this view, as consideration of the State’s fault would prevent a jury from imposing full liability on a defendant in the absence of the option to apportion culpability between the two entities. Artibee, 2015 N.Y. Slip Op. 06556 at *2 (citations omitted). Moreover, the majority found that “as a policy matter, prohibiting a jury from apportioning fault would seem to penalize a defendant for failing to implead a party that, as a matter of law, it cannot implead.” Id. (citations omitted).” Thus, it concluded that the jury should be given the option to apportion liability between the State and the defendant. J. Egan concurred with the majority that evidence of the State’s liability was admissible, but dissented as to the apportionment charge. He focused on what he believed was the unfairness caused by the State’s absence from the litigation: Our adversarial, trial-by-jury system is based upon a full airing of the underlying facts and is best served by affording each litigant – represented by able counsel – an opportunity to present a spirited presentation or defense of its case. My fear here is that if we permit the requested charge and ask a jury (in the context of the Supreme Court action) to apportion fault (if any) between defendant, which will be present in the courtroom and which no doubt will present a vigorous defense, and the State, which, as the “‘constitutionally mandated empty chair”‘ in the courtroom, can neither appear nor offer any defense, an unfair – or, at the very least, skewed – result will occur. Against this backdrop, it is my sense that Supreme Court fashioned a reasonable solution to a difficult problem and, as such, I respectfully dissent as to the apportionment charge issue and would affirm Supreme Court’s order in its entirety. Id. at *2–3.

Note that the same “empty chair” problem exists in an Article 16 context with respect to private nonparty joint tortfeasors. On the other hand, it may be more difficult in some instances to prove the nonparty’s liability from an evidentiary standpoint because of that nonparty’s absence. Two additional points raised in Artibee are discussed below. Appealability: Order Merely Limiting Admissibility Versus Functional Equivalent of Partial Summary Judgment Some of you may have been asking how exactly the issue in Artibee was up on appeal in the first place. “[A]n order which merely limits the admissibility of evidence, even when made in advance of trial on motion papers, constitutes, at best, an advisory opinion which is neither appealable as of right nor by permission,” Vaughan v. St. Francis Hosp., 29 A.D.3d 1133, 1135 (3d Dep’t 2006) (internal quotation marks and citations omitted). However, the court here found that the defendant’s motion was “the functional equivalent of a motion for partial summary judgment” concerning the State’s liability in this action. Thus, the order was appealable “because the resolution thereof limited the scope of the issues to be tried.” Artibee, 2015 N.Y. Slip Op. 06556 at *1. The Inherent Difficulty in Suing a Private Party and the State While the issue in Artibee concerned Article 16, the case highlights the problems associated with claims against the State and a private party (for example, those arising out of a car accident on a state highway). As we noted in the May 2015 Digest, there are limits to the subject matter jurisdiction of the State Supreme Court. One example is that suits against the State of New York have to be brought in the Court of Claims. Therefore, two separate actions are required, which is costly and inefficient. Moreover, the private party defendant is prohibited from impleading the State into the Supreme Court. In addition, having to bring two separate actions risks inconsistent verdicts. In fact, the dissent in Artibee focused on this precise problem resulting from the State’s waiver of sovereign immunity in exchange for being sued only in the Court of Claims: This case illustrates an archaic aspect of our state court system and is fodder for those who advocate for a single, Supreme Court level trial court. Here, plaintiffs claim that two negligent parties are responsible for their injuries. But, because one of those parties is the State, plaintiffs are forced to sue one alleged wrongdoer, i.e., defendant, in Supreme Court and the other alleged wrongdoer, i.e., the State, in the Court of Claims. It is bad enough that plaintiffs will have to try their case twice, but defendant also is placed at a disadvantage by virtue of (presumably) wishing to point the finger of blame at a party who is not – and cannot – be present in the courtroom. Id. at *2.

CPLR 1602[6] – Because Article 16 limited liability provisions did not apply, trial court erred in including nonparty unidentified driver on verdict sheet Quinn v. New York City Tr. Auth., 31 N.Y.S.3d 869 (1st Dep’t 2016) (“The trial court erred in including the nonparty unidentified driver on the verdict sheet. Since article 16 did not apply to this motor vehicle accident (see CPLR 1602[6]), there was no reason for the jury to assess liability between the unknown nonparty driver and the bus driver (citations omitted). Nevertheless, the error was harmless, as there was no evidence of jury confusion or a compromise verdict (citation omitted).”).

CPLR 2001 – Alleged defects in motion papers disregarded Bank of N.Y. Mellon v. Casale, 2016 NY Slip Op 04164 (2d Dep’t 2016) (“Furthermore, the Supreme Court properly granted the plaintiff's motion for a judgment of foreclosure and sale. Contrary to the appellants' contention, they received adequate notice of the motion (citation omitted), and the alleged defects in the plaintiff's supporting papers did not, under the circumstances, warrant denial of the motion inasmuch as a substantial right of the appellants was not prejudiced thereby (citations omitted).”).

CPLR 2001- Mistake in indexing notice of pendency disregarded Beltway Capital, LLC v. Gutierrez, 2016 NY Slip Op 04898 (2d Dep’t 2016) (“The Supreme Court erred in denying the plaintiff's motion pursuant to CPLR 2001 (citation omitted). ‘CPLR 2001 permits a court, at any stage of an action, to disregard a party's mistake, omission, defect, or irregularity if a substantial right of a party is not prejudiced’ (citations omitted). Prejudice can be considered in determining whether a mistake in indexing a notice of pendency can be disregarded under CPLR 2001 (citation omitted). Here, however, given the respondents' actual knowledge of the notice of pendency and the foreclosure proceeding, they cannot claim that they would be prejudiced by disregarding the omission of lot 123 from the description of the property on the documents (citations omitted). Accordingly, the Supreme Court should have granted the plaintiff's motion to amend the notice of pendency, judgment of foreclosure and sale, and all other documents in the action, nunc pro tunc, to correct the legal description of the foreclosed property.”).

CPLR 2001/5019 – Permitting substitution nunc pro tunc of newly submitted affidavit of merit U.S. Bank N.A. v. Lomuto, 2016 NY Slip Op 04403 (2d Dep’t 2016) (“Thereafter, the plaintiff's counsel was advised by the plaintiff that there existed ‘irregularities’ in an affidavit of merit that had been submitted to the Supreme Court by the plaintiff's former counsel on the motion for summary judgment and an order of reference, and that the plaintiff was unable to confirm the accuracy of the notarization contained in that document as required by Administrative Orders 548/10 and 431/11 of the Chief Administrative Judge of the Courts. As a result, in 2013, the plaintiff moved, inter alia, to vacate the order awarding it summary judgment and an order of reference, and for issuance of a new order awarding it summary judgment and an order of reference upon a newly submitted affidavit of merit. The plaintiff also moved, in the alternative, pursuant to CPLR 2001 and 5019(a) and this Court's decision in U.S. Bank N.A. v Eaddy (109 AD3d 908, 971 N.Y.S.2d 336), to substitute, nunc pro tunc, the newly submitted affidavit of merit in place of the affidavit of merit that had been attached to the plaintiff's motion for summary judgment and an order of reference. Wilson joined in that branch of the plaintiff's motion which was to vacate the prior order, but he opposed substitution of the affidavit of merit. Wilson also cross-moved for leave to amend his answer to assert the affirmative defense of lack of standing…. The Supreme Court also providently exercised its discretion in granting that branch of the plaintiff's motion which was to substitute, nunc pro tunc, the newly submitted affidavit of merit in place of the affidavit of merit that had been attached to the plaintiff's motion for summary judgment and an order of reference. CPLR 2001 ‘permits a court, at any stage of an action, to disregard a party's mistake, omission, defect, or irregularity if a substantial right of a party is not prejudiced’ (citations omitted). In addition, pursuant to CPLR 5019(a), a court has ‘discretion to correct an order or judgment which contains a mistake, defect, or

62 irregularity not affecting a substantial right of a party’ (citation omitted). Here, no substantial right of Wilson's was affected by the substitution of the new affidavit of merit (citations omitted).”).

CPLR 2001, 304- Failure to file not subject to CPLR 2001 correction Dealy-Doe-Eyes Maddux v. Schur, 139 A.D.3d 1281, 30 N.Y.S.3d 590 (3d Dep’t 2016) (“We affirm. ‘An action is commenced by filing a summons and complaint or summons with notice in accordance with [CPLR 2102]’ (CPLR 304 [a]). The failure to file the papers required to commence an action constitutes a nonwaivable, jurisdictional defect (citations omitted), and such a defect is not subject to correction under CPLR 2001 (citations omitted). Here, although plaintiff purchased an index number and filed a complaint, she never filed a summons or summons with notice. Given plaintiff's failure, the purported action was a nullity, and Supreme Court properly dismissed it for want of subject matter jurisdiction (citations omitted). Moreover, to the extent that the complaint raised claims that were identical to those previously litigated and dismissed after a trial, such claims were barred by principles of res judicata (citations omitted). Plaintiff's remaining contentions have been examined and found to be without merit.”).

CPLR 2001 – Court “deems” cause of action as one for unpaid rent 40 Rector Owner LLC v. City of New York, 137 A.D.3d 700 (1st Dep’t 2016) (“To be sure, plaintiff is not entitled to ‘use and occupation’ for the ‘period prior to the unauthorized holdover’ (citation omitted). Defendant did not hold over in an unauthorized manner until June 1, 2011. However, while the third cause of action seeks ‘use and occupancy’ rather than unpaid rent for the month-to-month tenancy (for spaces other than the fifth, eighth, and ninth floors), instead of dismissing it with leave to replead, we deem it to be a cause of action for unpaid rent (see CPLR 2001).”).

CPLR 2001 – Permission to amend caption Ivory Dev., LLC v. Roe, 135 A.D.3d 1216, 25 N.Y.S.3d 686 (3d Dep’t 2016) (“‘At any stage of an action, . . . [a] court may permit a mistake, omission, defect or irregularity . . . to be corrected, upon such terms as may be just’ (CPLR 2001; see CPLR 1001 [b]; 3025 [b]). Here, given all the circumstances and the absence of prejudice, we find that plaintiffs should have been permitted to amend the caption to add Freeman as a defendant (citations omitted).”).

CPLR 2001 – Court should have disregarded mistake in notice of motion Matter of Ramirez v. Palacios, 136 A.D.3d 666, 25 N.Y.S.3d 242 (2d Dep’t 2016) (Lower court found notice of motion defective because it had mistakenly stated that it was made on the court’s own motion. “Under the circumstances of this case, the mother was not required to personally serve the father with the motion papers. Rather, the mother appropriately served the motion papers by mailing them to the father's last known address (see CPLR 2103[b][2]; [c]). Further, since no substantial right of any party was prejudiced by the mistake in the mother's notice of motion, the Family Court should have disregarded the mistake and determined the motion on the merits (citations omitted).”).

CPLR 2001 –Court disregards plaintiff’s failure to annex deposition errata sheets as exhibits to their initial moving papers, where plaintiff annexed them to his opposition papers and defendants annexed them to their reply affirmation. Torres v. Board of Educ. of City of N.Y., 137 A.D.3d 1256 (2d Dep’t 2016) (“The plaintiff's contention that the defendants' motion should have been denied due to their failure to annex the errata sheets as exhibits to their initial moving papers is without merit, since the plaintiff submitted a copy of the errata sheets as an exhibit to his opposition papers (citation omitted) and, in any event, the defendants annexed a copy of the errata sheets as an exhibit to the reply affirmation of their counsel (citation omitted). Since no substantial right of the plaintiff was prejudiced thereby, it would have been an improvident exercise of the Supreme Court's discretion to not consider the defendants' motion on its merits on this ground (citations omitted).”).

CPLR 2001 – Court disregards plaintiff’s failure to include an amended pleading with its CPLR 3025(b) motion. Putrelo Constr. Co. v. Town of Marcy, 137 A.D.3d 1591, 27 N.Y.S.3d 760 (4th Dep’t 2016) (“We agree with plaintiff that Supreme Court abused its discretion in denying its motion to amend the ad damnum clause from $77,585.50 to $111,331.13, and we therefore modify the order by granting the motion. It is axiomatic that ‘ [l]eave to amend a pleading should be freely granted in the absence of prejudice to the nonmoving party where the amendment is not patently lacking in merit' ’ (citations omitted). Plaintiff failed to include an amended pleading with its motion, as required by CPLR 3025 (b). Under the circumstances of this case, however, we conclude that the error was merely a technical defect that the court should have disregarded (see generally CPLR 2001), inasmuch as ‘the limited proposed amendment[ was] clearly described in the moving papers’ and did not prejudice defendant or third-party defendant (citations omitted).”).

CPLR 2001/5019 – Permits substitution of affidavits of merit HSBC Bank USA, N.A. v. Dalessio, 137 A.D.3d 860, 27 N.Y.S.3d 192 (2d Dep’t 2016) (“The plaintiff then moved pursuant to CPLR 2001 and 5019 (a) to substitute, nunc pro tunc, newly signed affidavits of merit and of the amounts due in place of the affidavits of merit and of the amounts due that had been attached to the plaintiff's motion for an order of reference and motion for a judgment of foreclosure and sale…. The Supreme Court providently exercised its discretion in granting the plaintiff's motion in its entirety (citations omitted). Under the circumstances of this case, no substantial right of Dalessio will be affected by the court's substitution of the new affidavits of merit and of the amounts due (citations omitted). Nor has Dalessio suggested any prejudice she would suffer by the court permitting the correction of the name of the plaintiff in the caption, and of the state of incorporation indicated in the complaint.”); Wells Fargo Bank, N.A. v. Watanabe, 136 A.D.3d 1413, 25 N.Y.S.3d 771 (4th Dep’t 2016) (“We further conclude that the court erred in denying that part of plaintiff's motion seeking to substitute the affidavit of merit and amount due…. Here, we conclude that the substitution of the original affidavit of merit and amount due with a new, substantively identical affidavit of merit and amount due was a ministerial amendment permitted by CPLR 2001 and CPLR 5019 (a) inasmuch as the change affected only plaintiff's ability to comply with the Administrative Order, and ‘[t]he attorney affirmation is not itself substantive evidence’ (citations omitted). We further conclude that ‘[n]o substantial right of [defendant Makoto Watanabe

64 would] be affected by the court's substitution’ (citation omitted). Indeed, that defendant did not reside in the subject property when plaintiff commenced the mortgage foreclosure action and the property was vacant at that time, and he never joined this action nor made any effort to contest the foreclosure.”).

CPLR 2001 – Court alteration of stipulation absent plenary action is not fatal Fermon v. Fermon, 135 A.D.3d 1045, 24 N.Y.S.3d 226 (3d Dep’t 2016) (“We next agree with the husband that Supreme Court erred in modifying the agreed-upon division of assets in his individual retirement account. The husband did not preserve his objection to the wife raising this issue in a motion rather than a plenary action and, in any event, ‘a court's alteration of a stipulation absent a plenary action is not fatal’ (citations omitted).”).

CPLR 2001/2103 – Conflict in Departments as to whether service by a party is jurisdictional defect Neroni v. Follender, 137 A.D.3d 1336, 26 N.Y.S.3d 621 (3d Dep’t 2016) (“Initially, and contrary to plaintiff's contention, Supreme Court was not deprived of authority to consider defendants' motion to dismiss on the ground that the notice of motion was personally served by Follender. Although CPLR 2103 (a) requires service to be made by a person who is not a party to the action, a violation of this provision ‘is a mere irregularity which does not vitiate service’ where, as here, no resulting prejudice is shown (citations omitted).”). Note that there is a conflict among the Departments of the Appellate Division as to whether service by a party is a jurisdictional defect or a mere irregularity.

CPLR 2001 – Failure to include verification required under Court of Claims Act held not to be incurable jurisdictional defect Matter of Mazur Bros. Realty, LLC v. State of New York, 130 A.D.3d 830, 12 N.Y.S.3d 566 (2d Dep’t 2015): “While the time limitations and service requirements set forth in Court of Claims Act §§ 10 and 11 have been referred to as ‘jurisdictional’ (citation omitted), the instant matter concerns a special proceeding pursuant to EDPL 304(E) for the distribution of money that had been deposited (see Court of Claims Act § 9[12]), and service of the petition without a verification did not constitute an incurable ‘jurisdictional’ defect (citations omitted). In this regard, the petitioner, upon notice from the State, cured the omission within a matter of days (citations omitted). Moreover, considering that no substantive right of the State was prejudiced by the missing verification, even if the omitted material had not been supplied, the Court of Claims, under the circumstances presented to it, should have disregarded the technical infirmity pursuant to CPLR 2001 and 3026 (citations omitted).”

CPLR 2001 – Wrong denomination of motion, mere irregularity Wan Li Situ v. MTA Bus Co., 130 A.D.3d 807, 14 N.Y.S.3d 89 (2d Dep’t 2015): “Contrary to the Supreme Court's determination, a defendant who wishes to assert the statute of limitations as a defense is not limited to asserting it by way of a pre-answer motion. The defendant may instead choose to raise that defense in its answer, and either move on that ground later in a motion for summary judgment, or wait until trial to have it determined (citations omitted). Here, the defendant did not make a pre-answer motion to dismiss the complaint, but raised the statute of limitations as an affirmative defense in its answer. Then, after the note of issue was filed, the defendant moved to dismiss the complaint on that ground. Although the

65 defendant denominated its motion as a motion pursuant to CPLR 3211(a) to dismiss the complaint, rather than as a motion pursuant to CPLR 3212 for summary judgment dismissing the complaint, that procedural irregularity should have been excused under CPLR 2001, upon proper notice to the parties (citations omitted).”

CPLR 2001 – Unsigned, uncertified transcripts are “mere irregularities” Hartman v. Milbel Enters., Inc., 130 A.D.3d 978, 15 N.Y.S.3d 125 (2d Dep’t 2015): “Under the circumstances of this case, the Supreme Court erred in denying the motion and cross motions for summary judgment on a procedural ground that the parties did not raise or litigate (citation omitted). The submission of unsigned and some uncertified deposition transcripts constituted mere irregularities and, because no substantial right of any party was prejudiced, the court should have disregarded these defects and determined the motion and cross motions for summary judgment on the merits (citations omitted). In the interest of judicial economy, we deem it appropriate to address the motion and cross motions for summary judgment on the merits, rather than remit the matter to the Supreme Court, Kings County, to do so (citation omitted).”

CPLR 2001 - Failure to designate the papers accompanying an order to show cause as a petition in a special proceeding disregarded Guarneri v. Town of Oyster Bay, 224 A.D.2d 695, 638 N.Y.S.2d 711 (2d Dep’t 1996): “The appellant's contention that the Supreme Court lacked jurisdiction to determine the petitioners' application is without merit. Since no action was pending at the time the application was made, the petitioners were required to seek leave to serve the late notice of claim by way of a special proceeding. Although the petitioners' order to show cause was not accompanied by a document designated a ‘petition’ (see, CPLR 304), the papers annexed to and in support of the order to show cause fulfilled all of the requirements of a petition and afforded the appellant adequate notice of the claim and of the relief requested. Accordingly, the appellant was not prejudiced by the failure to designate the papers a ‘petition’, and the irregularity may be disregarded (citations omitted).” See also Matter of Clavin v. Mitchell, 131 A.D.3d 612, 15 N.Y.S.3d 211 (2d Dep’t 2015): “The Supreme Court properly denied the appellants' motion to dismiss. Contrary to the appellants' contention, the court did not lack jurisdiction to entertain this proceeding. Although the order to show cause served by Robert Clavin, doing business as Rob's Plumbing and Heating, Inc. (hereinafter Clavin), was not accompanied by a document designated a ‘petition’ (see CPLR 304[a]; 7804[d]), the appellants were not prejudiced thereby since the papers annexed to and in support of Clavin's order to show cause apprised them of the facts upon which his claim was based and the relief requested. Thus, Clavin's failure to include a document designated as a petition may be disregarded as an irregularity (citations omitted). Contrary to the appellants' further contention, the Supreme Court properly determined that the exhaustion of remedies doctrine did not bar judicial review of Clavin's claims, since he established that resort to an administrative remedy would be futile (citations omitted).”

CPLR 2001 – Failure to include answer in initial summary judgment motion submission Barnaba-Hohm v. St. Joseph's Hosp. Health Ctr., 130 A.D.3d 1482, 12 N.Y.S.3d 729 (4th Dep’t 2015): “Bilal's failure to comply with CPLR 3212 (b) in his initial submission was excusable because he thereafter submitted a copy of his answer to the court (citations omitted).”

CPLR 2101 – English translation and affidavit by translator required for affidavit or exhibit in foreign language Saavedra v. 64 Annfield Ct. Corp., 137 A.D.3d 771, 26 N.Y.S.3d 346 (2d Dep’t 2016) (“In opposition, the plaintiff failed to raise a triable issue of fact. The plaintiff's affidavit submitted in opposition to the motions, which was translated from Spanish into English, did not constitute admissible evidence. CPLR 2101(b) provides that ‘[w]here an affidavit or exhibit annexed to a paper served or filed is in a foreign language, it shall be accompanied by an English translation and an affidavit by the translator stating his qualifications and that the translation is accurate’ (citation omitted). Here, the name and qualifications of the translator from Ventura Translations, Inc., were not provided (citation omitted).”).

CPLR 2101(b)- Affidavit of plaintiff without translator’s affidavit inadmissible when he testified that he did not speak, read or write English Peralta-Santos v. 350 W. 49th St. Corp., 139 A.D.3d 536, 30 N.Y.S.3d 553 (1st Dep’t 2016) (“In opposition, plaintiff failed to raise a triable issue of fact. His affidavit, where he claimed that he slipped and fell on paper restaurant menus strewn on defendants' stairs, was inadmissible, as plaintiff testified he neither spoke, read nor wrote in English, yet his affidavit was unaccompanied by a translator's affidavit attesting to its accuracy, as required by CPLR 2101(b) (citations omitted). Furthermore, even if admissible, the affidavit raised only feigned issues of fact, as it contradicted plaintiff's deposition testimony, and was tailored to avoid the consequences of such testimony (citation omitted).”).

CPLR 2103 – Service by Party – Jurisdictional Defect or a Mere Irregularity There is a conflict among the Appellate Division Departments as to whether service by a party is a jurisdictional defect or a mere irregularity. See Matter of Conti v. Clyne, 120 A.D.3d 884, 991 N.Y.S.2d 663 (3d Dep’t 2014) (noting conflict among Appellate Division Departments on this issue and that Third Department has consistently held it to be a mere irregularity that does not vitiate service).

CPLR 2103 Amendment-Ordinary Mail Service of Interlocutory Papers Outside New York Permitted (Digest- February 2016) Ordinary Mailing of Interlocutory Papers on Attorney Can Now Be Made Outside of New York but Within the United States Six Days Added to Prescribed Time The service of interlocutory papers in a pending action – as opposed to those papers commencing an action or proceeding – is governed by CPLR 2103. One of the most frequent and inexpensive methods used to serve moving papers or discovery requests is by regular mail. In such a circumstance, five days are to be added to the prescribed time for service. CPLR 2103(b)(2). Thus, for example, with respect to a 16-day motion under CPLR 2214(b), you must serve the moving papers by regular mail at least 21 days before the return date of the motion. CPLR 2103(f) defined mailing as requiring it to be made within New York State. Therefore, a practitioner could not drop those papers in the mail outside New York. See M Ent., Inc. v. Leydier, 62 A.D.3d 627 (1st Dep’t 2009), rev’d on other grounds, 13 N.Y.3d 827 (2009). Interestingly, overnight delivery service does not have the in-state requirement; that is, the statute does not require that you deliver the documents to an overnight delivery service located in New York. See CPLR 2103(b)(6).

Via an amendment effective January 1, 2016, CPLR 2103 permits service by regular mail out of state, but within the geographic boundaries of the United States. 2015 N.Y. Laws, ch. 572. The new law further provides that where the mailing is effected out of New York, six days is to be added to the prescribed period. The sponsor’s memo explains as follows: We are persuaded by our Committee’s view that the rule for mailing should correspond with that for a delivery service. The Committee also believes that allowing service by mail from outside the State will remove an artificial barrier to service and encourage litigation to be brought in New York. The act of removing this requirement recognizes the current realities of multi-state practice and the increased mobility of litigants and litigation. Many of these difficulties are being ameliorated by the expansion of electronic filing in New York State, which makes service easy and efficient and better assures that the intended recipient receives timely notice. However, not all documents are electronically filed (for example, most notably, discovery requests), and there are still many counties in the state in which electronic filing has not been implemented. Left for yet another day are the practical problems associated with the wording of the statute as interpreted, which requires additional time for the mailing of original motion papers, but not for opposition or reply papers.

CPLR 2104 – Enforceability of settlement agreement by words and actions Martin v. Harrington, 139 A.D.3d 1017, 31 N.Y.S.3d 605 (2d Dep’t 2016) (“CPLR 2104 governs the enforceability of settlement agreements (citations omitted). Pursuant to CPLR 2104, a settlement agreement is binding upon a party if it is in a writing subscribed either by the party or by his or her attorney. To be enforceable, a settlement agreement must set forth all material terms, and there must be clear mutual accord between the parties (citation omitted). Here, the material terms of the settlement agreement were set forth in a letter by the plaintiff's then attorney, who had apparent authority to settle the case on her behalf based on the plaintiff's actions (citation omitted). The exchange of correspondence between the attorneys for the parties, in conjunction with the defendants' completion of the tasks demanded in the settlement without any objection by the plaintiff, was sufficient to constitute an enforceable settlement agreement between the parties (citations omitted).”).

CPLR 2106 Amendment– Use of Affirmation in Place of Affidavit (Digest – May 2015) CPLR 2106: It Is Now Easier to Obtain the Statement of a Person Abroad Than One in New Jersey Modeled on the federal declaration procedure (28 U.S.C. § 1746), CPLR 2106 was amended (eff. Jan. 1, 2015) to permit the use of an affirmation instead of an affidavit by any person located outside of the United States, Puerto Rico, the U.S. Virgin Islands, or any territory or insular possession subject to U.S. jurisdiction. The affirmation is to be substantially in the form provided by the amended statute, that is: I affirm this ___ day of ______, ____, under the penalties of perjury under the laws of New York, which may include a fine or imprisonment, that I am physically located outside the geographic boundaries of the United States, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States, that the foregoing is true, and I understand that this document may be filed in an action or proceeding in a court of law. (Signature)

This will greatly reduce the burden on attorneys seeking to use statements from persons located out of the country and will remove the issues involved in trying to comply with the notarial requirements of an affidavit abroad. This amendment adds a bit of irony to the current practice in New York. An affirmation from a person outside the country is permissible while an out-of-state resident, perhaps in New Jersey, needs to submit an affidavit and navigate the provisions of CPLR 2309 and certificates of conformity. See Midfirst Bank v. Agho, 121 A.D.3d 343, 344–45 (2d Dep’t 2014): Our Court is observing a significant upswing in the number of appeals where the parties are contesting the admissibility of affidavits executed outside of the state, without CPLR 2309(c) certificates of conformity. The issue has arisen in varied summary judgment and default motion contexts, including motions in residential mortgage foreclosure actions reliant upon affidavits of out-of-state bank employees, motions in medical malpractice actions reliant upon out-of-state physician experts, motions in slip-and-fall actions reliant upon out-of-state witnesses, motions in actions brought pursuant to Insurance Law § 3420(a), motions in motor vehicle negligence actions reliant upon out-of-state experts, and motions in contract actions reliant upon out-of-state expert contractors. We use the instant appeal as an occasion to clarify the law relating to the conformity of out-of-state affidavits as required by CPLR 2309(c) (citations omitted).

NEW CPLR ARTICLE 21-A (CPLR 2110, 2111, 2112)-ELECTRONIC FILING Via a 2015 amendment, CPLR Article 21-A was added. It includes new CPLR sections 2110, 2111, and 2112. The same legislation also added Court of Claims Act § 11-b, Criminal Procedure Law § 460.90, Family Court Act § 1122, New York City Civil Court Act § 2103-a, and Surrogate’s Court Procedure Act § 107, and amended Judiciary Law § 212, Criminal Procedure Law § 10.40, and Family Court Act § 214. The amendment vests in the Chief Administrative Judge the authority to implement mandatory e-filing with the County Clerk’s consent. It is intended to provide the Chief Administrative Judge with more flexibility to expand e-filing without having to obtain incremental legislative authority. In addition, the amendment eliminated sunset provisions that were effective September 1, 2015. CPLR 2111 provides that the definitions contained in CPLR 2103(f) for fax and electronic transmissions apply to CPLR Article 21-A. L 2015, ch 237, effective August 21, 2015 and will “take effect immediately, except that authorization for e-filing in criminal and Family Court cases would sunset on September 1, 2019.”

CPLR 2211/3212- Motion made when served Pietrafesa v. Canestro, 130 A.D.3d 602, 13 N.Y.S.3d 204 (2d Dep’t 2015): “Contrary to the Supreme Court's determination, the defendant's motion for summary judgment was made when the motion papers were served in May 2013, which was prior to both the filing of the note of issue and the decedent's death in July 2013 (citations omitted). Therefore, the defendant's motion was timely made pursuant to CPLR 3212(a). The fact that the defendant, in effect, renewed his pending motion for summary judgment in August 2014, after a personal representative was substituted for the decedent, did not render his motion untimely. Under the circumstances presented here, the timeliness of the defendant's motion must be judged by the date of service of the original motion papers, rather than the renewed motion papers (citation

69 omitted). Accordingly, the Supreme Court should have granted that branch of the defendant's motion which was to restore the case to the motion calendar, and then determined the merits of his pending, but undecided, motion for summary judgment, taking into consideration the plaintiff's opposition, and the defendant's reply and amended reply. Further, the Supreme Court should have determined the merits of the plaintiff's cross motion, taking into consideration the defendant's opposition and the plaintiff's reply.”

CPLR 2214(b) – Late served opposition permitted JPMorgan Chase Bank, Natl. Assn. v. Hayes, 138 A.D.3d 617, 28 N.Y.S.3d 868 (1st Dep’t 2016) (“The motion court properly considered plaintiff's late-served opposition to defendant's motion, because the 15-day delay was to accommodate new counsel, and there was no showing of prejudice to defendant, who was able to submit reply papers (citations omitted).”).

CPLR 2214 – Amendment to CPLR 2214(c): Referring to Previously Filed Documents (Digest – May 2015) CPLR 2214(c): Why “Attach” the Documents Again? In Biscone v. JetBlue Airways Corp., 103 A.D.3d 158 (2d Dep’t 2012), appeal dismissed, 20 N.Y.3d 1084 (2013), the Second Department held that in an electronically filed case, a motion for leave to renew or reargue cannot refer to previously filed documents by electronic document entry numbers, but must resubmit all relevant documents. In response, CPLR 2214(c) was amended (eff. July 22, 2014) to provide that in an e-filed case, a motion can refer to previously e-filed documents by docket number (rather than “attaching” copies). This will be particularly useful in connection with motions for leave to renew or reargue under CPLR 2221, where reference to a prior motion and order is necessary. This seems to be a common-sense response to the adoption of electronically filed cases. Counsel should be aware, however, that this amendment applies only to e-filed cases. In addition, it would not impact a particular judge’s requirement that courtesy print copies be provided.

CPLR 2214 (Digest – June 2015) Adoption of Commercial Division Rule 34 and Staggered Court Appearances— Efficiency at Work! To increase efficiency, Rule 34 provides for staggered set court appearances for the oral argument of motions. Each oral argument of a motion is assigned a time slot. The length of the time slot is in the court’s discretion. All parties are to appear, even if they believe that they are not directly impacted by the motion, unless the court specifically excuses a party. This will permit the court to address all matters of concern and to avoid the appearance of holding ex parte communications. Pro se parties must attend all scheduled court appearances. Each attorney who is notified of an appearance date is required to notify all the other parties via email and parties are required to exchange and update their email addresses. Adjournment requests or requests to appear by telephone have to be e-filed and received by the court no later than 48 hours before the hearing. The Rule stresses the importance of the litigants’ cooperation. This Rule should cut down on the wait time that accompanies the typical 9:30 a.m. “calendar call.”

CPLR 2221 – No appeal from order denying reargument Forbes v. Giacomo, 130 A.D.3d 428, 11 N.Y.S.3d 485 (1st Dep’t 2015): “No appeal lies from an order denying reargument (citation omitted). The motion court did not address the merits of the motion (citation omitted).”.

CPLR 2221(e); 2106 – Reasonable justification in inadvertently including unnotarized chiropractor statement Defina v. Daniel, 2016 NY Slip Op 04381 (2d Dep’t 2016) (“The Supreme Court improvidently exercised its discretion in denying the plaintiff's motion for leave to renew. ‘CPLR 2221 (e) has not been construed so narrowly as to disqualify, as new facts not offered on the prior motion, facts contained in a document originally rejected for consideration because the document was not in admissible form’ (citation omitted). Here, the inadvertent mistake of the plaintiff's attorney in including the unnotarized statement of the chiropractor with the plaintiff's opposition papers, rather than the notarized affidavit, was tantamount to law office failure and constituted a reasonable justification for the plaintiff's failure to provide the affidavit to the court in opposing the original motion (citations omitted).”).

CPLR 2309 – Failure to include certificate of authority for affidavit executed outside of New York-conflict in authority Deutsche Bank Natl. Trust Co. v. Naughton, 137 A.D.3d 1199 (2d Dep’t 2016) (“Here, the plaintiff submitted an affidavit of James Brantley, a vice president of its loan servicer. Brantley averred that, based on his personal knowledge and his review of the books and business records maintained by the plaintiff, the loan servicer, and their agents in the ordinary course of business with respect to the mortgage loan, the note and mortgage ‘were physically transferred to’ the plaintiff on or about April 7, 2006. Through Brantley's affidavit, the plaintiff established, prima facie, that it has standing to prosecute this action because it was in possession of the note before the November 2009 commencement of this action (citations omitted). The failure of Brantley's affidavit to include a certificate of conformity pursuant to CPLR 2309(c) was not fatal (citations omitted). Since the plaintiff established its standing by physical delivery of the note, we need not address the validity of the subsequent assignment to it of the mortgage (citation omitted).”). Note that there is a conflict among the Departments of the Appellate Division as to whether failure to include a certificate of authority is fatal.

CPLR 2309(c) – Failure to provide certificate of conformity – plaintiff directed to correct defect nunc pro tunc Bank of N.Y. as Trustee for Equity One Inc. Mortgage/Pass Through Certificate Series #2006-D v. Singh, 139 A.D.3d 486 (1st Dep’t 2016) (“Order, Supreme Court, Bronx County (Alison Y. Tuitt, J.), entered January 9, 2015, which granted plaintiff's motion for a judgment of foreclosure and sale, and denied defendant Ram Singh's cross motion to vacate a judgment of foreclosure and to dismiss the action or permit him to answer the complaint, unanimously modified, on the law, to direct plaintiff to provide a corrected affidavit of merit with certificate of conformity in accordance with CPLR 2309(c), and otherwise affirmed, without costs…. Plaintiff has standing to foreclose because it established through the affidavit of its vice president that it was the holder of the note and mortgage when this action was commenced (citation omitted). However, because that affidavit, which was executed in New Jersey, did not include a certificate

71 of conformity in accordance with CPLR 2309(c), plaintiff is directed to correct the defect nunc pro tunc by providing a new conforming affidavit (citations omitted).”).

CPLR 2309(c) – Failure to provide certificate of conformity – “mere irregularity” DaSilva v. KS Realty, L.P., 138 A.D.3d 619, 30 N.Y.S.3d 85 (1st Dep’t 2016) (“Defendants' failure to provide the certificate required by CPLR 2309(c) with the expert's report was a ‘mere irregularity,’ which the court properly excused, especially since defendants provided a corrected copy (citation omitted).”).

CPLR 3001, 213(1) – Which Statute of Limitations to Apply? Bristol Homeowners Envtl. Preserv. Assocs., LLC v. Town of S. Bristol, 122 A.D.3d 1259, 996 N.Y.S.2d 813 (4th Dep't 2014): “We reject plaintiff's contention that the action was timely and properly brought as a declaratory judgment action pursuant to CPLR 3001. Although a six-year limitations period governs declaratory judgment actions (see CPLR 213 [1]), it is well settled that if such claim could have been brought in another form, then the shorter limitations period applies (citation omitted). Here, Town Law § 274-a (11) provides for a 30-day limitations period for challenging ‘a decision of the [planning] board or any officer, department, board or bureau of the town’ under CPLR article 78. Thus, plaintiff's challenge to the Town Code Enforcement Officer's determination of the meaning of ‘significant work’ under Code § 170-94 (J) could have been brought in a CPLR article 78 proceeding under Town Law § 274-a (11). Assuming arguendo, as plaintiff contends, that no administrative appeal from such determination was required or available, the action was not commenced within the 30-day limitations period set forth in section 274-a (11), and the court therefore properly granted defendants' motions to dismiss on that ground (citation omitted). Likewise, any challenge to the 2005, 2009 or 2012 Planning Board's actions could have been brought in a CPLR article 78 proceeding, and thus the instant action, even though denominated as one for a declaratory judgment, also was not timely commenced within the 30-day limitations period applicable to each such action of the Planning Board (citations omitted).”

CPLR 3012 – Demand for complaint premature in absence of service of summons with notice Heath v. Normile, 131 A.D.3d 754, 755, 15 N.Y.S.3d 509 (3d Dep’t 2015): We agree with Supreme Court that while plaintiff filed an adequate summons with notice prior to the expiration of the statute of limitations (see CPLR 304 [a]), his service of a bare summons was ‘a nullity’ (citations omitted). In the absence of service, defendant's demand for a complaint was premature and did not invoke the time limits of CPLR 3012 (b) (citations omitted). Accordingly, we find no error with respect to Supreme Court's denial of the motion to dismiss.”

CPLR 3012-a – Filing certificate of merit in medical, dental or podiatric malpractice action Monzon v. Chiaramonte, 2016 NY Slip Op 05124 (2d Dep’t 2016) (“The Supreme Court did not err in conditionally granting that branch of the hospital's motion which was to dismiss the complaint insofar as asserted against it unless the plaintiff filed and served a certificate of merit pursuant to CPLR 3012-a(a)(1) within 30 days (citation omitted). Cases such as this, which allege medical malpractice for failure to diagnose a condition or to render appropriate treatment, pertain to the level or standard of care expected of a physician in the community, and do not encompass matters within the ordinary knowledge and experience of laypersons (citation

72 omitted). The doctrine of res ipsa loquitur is therefore not applicable to this case (citation omitted). This case is not one of the narrow category of factually simple medical malpractice cases which require no expert to enable a jury to reasonably conclude that the injury would not have happened without negligence (citation omitted). The plaintiff was thus required pursuant to CPLR 3012-a(a)(1) to submit a certificate of merit declaring that her attorney had reviewed the facts of the case and consulted with at least one physician knowledgeable regarding the relevant issues in this action, and that the attorney had concluded that there was a reasonable basis for the commencement of the action.”).

CPLR 3012(d) – Denial of receipt insufficient to rebut presumption of proper service raised by affidavit Ultimate One Distrib. Corp. v. 2900 Stillwell Ave., LLC, 2016 NY Slip Op 04931 (2d Dep’t 2016) (“CPLR 3012(d) provides that ‘[u]pon the application of a party, the court may extend the time to appear or plead, or compel the acceptance of a pleading untimely served, upon such terms as may be just and upon a showing of reasonable excuse for delay or default.’ The showing of reasonable excuse that a defendant must establish to be entitled to relief under CPLR 3012(d) is the same as that which a defendant must make to be entitled to vacate a default judgment (citations omitted). Here, personal jurisdiction was obtained over the defendant 2900 Stillwell Avenue, LLC (hereinafter the defendant), by personal delivery of copies of the summons and complaint to the Secretary of State (see Limited Liability Company Law § 303). The defendant failed to establish a reasonable excuse for its delay in appearing in the action, as the mere denial by its member of receipt of a copy of the summons and complaint was insufficient to rebut the presumption of proper service on the Secretary of State raised by the affidavit of service (citations omitted). ‘If the [defendant] failed to actually receive a copy of the summons and complaint from the Secretary of State due to a change of address, it was due to its own fault as it failed to keep the Secretary of State advised [of] its current address for the forwarding of process'’ (citations omitted). Although the defendant did not cite to CPLR 317 in support of its motion, this Court may consider CPLR 317 as a basis for vacating the default (citation omitted). However, the defendant's mere denial of receipt of the summons and complaint is also insufficient to establish lack of actual notice of the action in time to defend for purposes of CPLR 317 (citations omitted). Accordingly, the Supreme Court improvidently exercised its discretion by, in effect, granting the branch of the defendant's motion which was pursuant to CPLR 3012(d) to extend the time for it to appear in the action. Since the defendant's pre-answer motion to dismiss was made after the time to appear or answer had expired, the Supreme Court should have denied the defendant's motion to dismiss as untimely (citation omitted).”).

CPLR 3012(d), 5015(a)(1) – “Misguided strategy” not an excuse Bank of N.Y. Mellon v. Colucci, 138 A.D.3d 1047, 30 N.Y.S.3d 667 (2d Dep’t 2016) (“Here, the Supreme Court providently exercised its discretion in rejecting the unsubstantiated explanation of the defendant Donald Colucci (hereinafter the defendant) that lawyers he consulted, but apparently did not retain, had advised him not to answer the complaint. A defendant's claim that his attorney ‘apparently made an erroneous assumption regarding the need to answer the complaint does not constitute a valid excuse’ (citations omitted). At most, the advice, and the defendant's decision to follow it, constituted a ‘misguided strategy,’ not law

73 office failure (citation omitted). A second excuse, based on a purported change in law, raised for the first time on appeal, is not properly before this Court (citation omitted).”).

CPLR 3014 – Overly broad and rambling allegations Matter of Barnes v. Fischer, 135 A.D.3d 1249, 23 N.Y.S.3d 594 (3d Dep’t 2016) (“We affirm. CPLR 3013 provides that ‘[s]tatements in a pleading shall be sufficiently particular to give the court and parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved and the material elements of each cause of action.’ Furthermore, a ‘pleading shall consist of plain and concise statements’ (CPLR 3014). Upon our review of the petition, we agree with Supreme Court that the petition does not meet this standard as it contains overly broad and rambling allegations challenging numerous and, at times, unspecified deprivation orders. Accordingly, the petition and complaint were properly dismissed (citations omitted).”).

CPLR 3014 Statements – Pleading Statute of Limitations Defense (Digest – July 2015) And So You Thought You Knew How to Plead a Statute of Limitations Defense? First Department Casts Doubt on Common Practice When asserting many affirmative defenses, most of us learned something perhaps alien to certain attorneys: brevity is a virtue. Thus, we were taught that a bare assertion of “the statutes of limitations” with no detail, such as the applicable limitation period, was a sufficiently pleaded defense. However, a majority of the First Department has recently questioned that basic premise and asked the Court of Appeals to revisit the issue. In Scholastic Inc. v. Pace Plumbing Corp., 8 N.Y.S.3d 143 (1st Dep’t 2015), the defendant’s answer contained the following “boilerplate, catchall paragraph”: That the answering defendant not being fully advised as to all the facts and circumstances surrounding the incident complained of hereby asserts and reserves onto [sic] itself the defenses of accord and satisfaction, arbitration and award, discharge of bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, waiver, and any other matter constituting an avoidance or an affirmative defense which further investigation of this matter may prove applicable herein. The court was unanimous in finding that the defendant failed to separately state and number the statute of limitations defense, as required by CPLR 3014. In addition, there was agreement as to the remedy: not to deem the defense waived or to dismiss it but instead to permit the defendant to amend the answer to plead the defense properly and the plaintiff to conduct discovery on the statute of limitations issue. Where the majority and concurrence disagreed, however, was in the detail necessary to assert the defense. The majority found a conflict between the Court of Appeals decision in Immediate v. St. John’s Queens Hosp., 48 N.Y.2d 671 (1979), and Form 17 of the official forms promulgated by the state administrator, pursuant to CPLR 107. In Immediate, the Court permitted a conclusory statute of limitations defense. Thus, merely stating that, “this action is barred by the applicable statute of limitations” would be sufficient – precisely the type of language used by most practitioners. However, official Form 17, which according to CPLR 107, “shall be sufficient . . . and shall illustrate the simplicity and brevity of statement which the [CPLR] contemplate[s],” provides alternate language including the limitation period: “The cause

74 of action set forth in the complaint did not accrue within six years next before the commencement of this action.” While the majority acknowledged that official Form 17 provides a “ceiling, not a floor” to what is required in pleading that defense, it also questioned whether Immediate intended “to entirely obviate the Official Form 17 standard.” Apparently concerned about what it perceived as a lack of case law and “scant” secondary source analysis of this “problem,” the majority suggested there might be an instance where a plaintiff would be prejudiced by a defendant’s failure to plead the applicable limitation period. In conclusion, the majority asked the N.Y. Court of Appeals to give the issue a “second look.” The concurrence found there was no conflict between the Immediate decision and official Form 17. As the majority noted, Form 17 sets a ceiling, not a floor. Moreover, Immediate established that official Form 17 provides more information than necessary, expressly stating that there was no requirement to plead the limitation period. The concurrence did not see how requiring the defense to plead factual particulars would help the plaintiff frame discovery requests or inform the plaintiff as to when the cause of action accrued. It also noted that the “scant analysis” the majority found on this issue was instead indicative of the unity of belief that a conclusory assertion of the statute of limitations defense was sufficient. Finally, the concurrence questioned why a defendant, through its answer, is required to educate the plaintiff on the length of the limitation period or when the cause of action accrued. Most problematic are the possible repercussions caused by the majority’s opinion: [I]ts decision will inevitably lead to the proliferation of motion practice and appeals on the issue of the sufficiency of the pleading of the statute of limitations defense. In the face of the majority’s call for the Court of Appeals to “revisit” Immediate, counsel for plaintiffs may be expected routinely to move to strike the statute of limitations defense, not only for failure to plead a period of limitation, but also for arguably pleading the wrong period, in the hope of preserving the issue for the reconsideration of the Court of Appeals to which the majority looks forward. I fail to see how this development will enhance either the efficiency or the fairness of our civil justice system. Scholastic, 8 N.Y.S.3d at 160. Practitioners are left to ponder what to do next. Should defendants include the limitation period in their statute of limitations defenses? And if the plaintiff’s claims were barred by a different limitation period, not the one enumerated by the defendant, would the defense be waived? Will plaintiff’s counsel seek such information in a bill of particulars or otherwise or leave the defense as is, hoping to find a court to go one step further and find the defense waived? Could a court find that other particulars are necessary in this or other common defenses? One can only hope that the Court of Appeals will put this issue to rest. Based on the procedural status of Scholastic, however, it appears that this will not be the case to resolve the issue.

CPLR 3014 – Statements Each paragraph should be limited, as far as practicable to a single allegation. CPLR 3014. See Forty Cent. Park S., Inc. v. Anza, 117 A.D.3d 523, 985 N.Y.S.2d 543 (1st Dep’t 2014) (“Plaintiffs' failure to limit each paragraph in the complaint to a single allegation (see CPLR 3014) does not mandate dismissal since the purport of the complaint is plain, and defendant will have no difficulty answering the allegations (citation omitted).”). Prior statements may be incorporated by reference.

CPLR 3016(b) – Failure to plead with particularity Parker Waichman LLP v. Squier, Knapp & Dunn Communications, Inc., 138 A.D.3d 570, 28 N.Y.S.3d 603 (1st Dep’t 2016) (“The complaint's boilerplate allegations that defendants disclosed confidential information, thereby causing harm, are too vague and conclusory to sustain a breach of contract cause of action (citation omitted). Moreover, the complaint failed to allege how the alleged breach caused any injury (id.). Dismissal of the cause of action alleging breach of fiduciary duty was also warranted since plaintiff failed to plead it with particularity, as required by CPLR 3016(b) (citation omitted), and the claim was duplicative of the breach of contract claim (citation omitted).”).

CPLR 3016(f) – Sale and delivery of goods or performing of labor or services requires specific denials – applicable to action for legal fees Kessler v. Surgent, 139 A.D.3d 442, 29 N.Y.S.3d 179 (1st Dep’t 2016) (“Plaintiff satisfied the requirements of CPLR 3016(f) by setting forth a fully itemized list of unpaid charges. It was therefore incumbent on defendant to deny each specifically in her answer (citation omitted). Instead, defendant relied solely on her defense that the retainer agreement was actually meant to be contingent on plaintiff making a successful fee application to the court, and that this was the only source of funds to which plaintiff would look for his fees. Where a defendant raises a defense that goes to the entire transaction, she need not make specific denial to the scheduled items (citation omitted). However, the defense asserted here fails as a matter of law. The retainer agreement contained an integration clause and a clause barring modifications other than in writing. As such, defendant had to make her argument based on the text of the agreement, and she has not established an exception to that rule (citations omitted). The agreement unambiguously provides that defendant is liable to plaintiff for his hourly fees plus disbursements. Because the agreement is not ambiguous, it is not necessary to give any more favorable reading to defendant (citation omitted). Accordingly, because defendant's general denial fails and she did not offer specific denials of the itemized charges, plaintiff is entitled to summary judgment (citation omitted).”).

CPLR 3016(i) Amendment Via a 2015 amendment, CPLR 3016(i) was added in connection with comprehensive legislation aimed at the reduction of sexual assault, domestic and dating violence, and stalking of students at New York colleges and universities, and to respond strongly and comprehensively to these incidents. The legislation requires New York colleges and universities to implement uniform prevention and response policies and procedures. CPLR 3016(i) specifically seeks to maintain the confidentiality of a student’s name and biographical information in a proceeding against a college or university challenging its disciplinary findings. L 2015, Ch 76. The amendment was signed into law on July 7, 2015 and provides that: “This act shall take effect in 90 days except for provisions related to campus climate assessment and reporting of aggregate data which shall take place after a year. The appropriations added in sections 4, 5 and 6 of the bill shall take effect immediately.”

CPLR 3016 – Failing properly to plead libel cause of action Long Island Assoc. of Aids Care, Inc. v. Jacinto, 2015 NY Slip Op 30228(U), 2015 N.Y. Misc. LEXIS 440 (Sup. Ct. Suffolk Co. 2015): “Here, the complaint generally alleges that

76 sometime after October, 2013, prior fund-raising sponsors and the plaintiffs' management employees received packets that contained old and outdated information which caused the sponsors to withdraw their support for the upcoming fund-raiser to be held in November, 2013. The complaint further alleges that the packet contained, among other things, a news report stating that one of the plaintiffs was not cooperating with the Nassau County 2010 Comptroller's Audit. The court finds, upon a plain reading of the complaint, that the plaintiffs have failed to comply with the statutory requirements for pleading a libel cause of action pursuant to CPLR 3016 (a), by neglecting to state the particular words complained of (citation omitted). Therefore, the sixth cause of action is dismissed.” (Citing Weinstein Korn & Miller)

CPLR 3016 – In defamation action it is sufficient for the plaintiff to allege that the publication was written and published by the defendants of and concerning the plaintiff. Hernando Plantation Co. v. Slovak Press, Inc., 223 A.D. 286, 291, 228 N.Y.S. 194 (1st Dep’t 1928). But see Three Amigos SJL Rest., Inc. v. CBS News Inc., 15 N.Y.S.3d 36 (1st Dep’t 2015): “As the dissent acknowledges, whether a particular publication is capable of the meaning ascribed to it is a question for the court (citation omitted). Similarly, whether a plaintiff in a defamation action has demonstrated that a particular statement names or so identifies him so that the statement can be said to be ‘of and concerning’ that plaintiff may be decided as a matter of law and need not be determined by a jury (citation omitted). Where, as here, the statement does not name the plaintiffs at all and contains nothing that would cause a reader to think defendant was referring to them, the statement is not ‘of and concerning’ the plaintiffs (citations omitted). As this Court has noted, a statement made about an organization is not understood to refer to any of its individual members unless that person is distinguished from other members of the group (citation omitted)…. Footnote 1: CPLR 3016(a) makes it clear that a heightened pleading standard does not apply to ‘of and concerning’ allegations, since it mandates that ‘[i]n an action for libel or slander, the particular words complained of shall be set forth in the complaint, but their application to the plaintiff may be stated generally’ (emphasis added).”

CPLR 3019 – Where main action dismissed, counterclaim need not be dismissed Reszka v. Collins, 136 A.D.3d 1299, 25 N.Y.S.3d 457 (4th Dep’t 2016) (“Initially, we reject plaintiff's contention that the court should have dismissed the counterclaims because it lacked subject matter jurisdiction over plaintiff's action (citation omitted). The court's lack of jurisdiction over plaintiff's action is not fatal to the counterclaims, which may be severed where a complaint is dismissed or, as here, effectively dismissed (citations omitted). Contrary to plaintiff's contention, dismissal of the counterclaims is not required even where, as here, a complaint was or should be dismissed on procedural grounds rather than on the merits (citations omitted).”).

CPLR 3020 – When do pleadings have to be verified? Failure to verify where no obligation to verify Mamoon v. Dot Net Inc., 135 A.D.3d 656, 25 N.Y.S.3d 85 (1st Dep’t 2016). (“The Moss defendants' contention that the complaint was merely verified by plaintiff's attorney is a red herring, as the complaint was not required to be verified at all (citations omitted).”).

CPLR 3022 – Defectively verified complaint where verification not required Richmond v. Jones, 46 Misc. 3d 147(A), 13 N.Y.S.3d 852 (App Term 2d Dep’t 2015): “We note that, in this case, verification of the complaint was not statutorily required. As defendant was not entitled to be served with a verified complaint in the first instance, the complaint, which was defectively verified, may not, as defendant contends, be treated as a nullity….” (Citing Weinstein Korn & Miller)

CPLR 3022 – Service of petition in EDPL 304(E) special proceeding without verification does not constitute incurable “jurisdictional” defect Matter of Mazur Bros. Realty, LLC v. State of New York, 130 A.D.3d 830, 12 N.Y.S.3d 566 (2d Dep’t 2015): “While the time limitations and service requirements set forth in Court of Claims Act §§ 10 and 11 have been referred to as ‘jurisdictional’ (citation omitted), the instant matter concerns a special proceeding pursuant to EDPL 304(E) for the distribution of money that had been deposited (see Court of Claims Act § 9[12]), and service of the petition without a verification did not constitute an incurable ‘jurisdictional’ defect (citations omitted). In this regard, the petitioner, upon notice from the State, cured the omission within a matter of days (citations omitted). Moreover, considering that no substantive right of the State was prejudiced by the missing verification, even if the omitted material had not been supplied, the Court of Claims, under the circumstances presented to it, should have disregarded the technical infirmity pursuant to CPLR 2001 and 3026 (citations omitted).”

CPLR 3022 – Requirement to specify objection or reasons for rejection of unverified or defectively verified pleading Gaffey v. Shah, 131 A.D.3d 1006, 17 N.Y.S.3d 46 (2d Dep’t 2015): “‘Pursuant to CPLR 3022, when a pleading is required to be verified, the recipient of an unverified or defectively verified pleading may treat it as a nullity provided that the recipient with due diligence returns the [pleading] with notification of the reason(s) for deeming the verification defective’ (citation omitted). Here, at the outset, the plaintiffs' rejection of the defendant's answer was ineffective, as it failed to specify the reasons or objections with sufficient specificity (citations omitted). Moreover, as the Supreme Court properly found, the plaintiffs suffered no prejudice. Accordingly, the complained-of defect was properly ‘ignored’ by the Supreme Court (citations omitted).”

CPLR 3025 – Answer amended as of right to amended complaint can assert statute of limitations defense previously omitted Moezinia v. Ashkenazi, 136 A.D.3d 990, 25 N.Y.S.3d 632 (2d Dep’t 2016) (“Generally, a defense based upon the statute of limitations is waived unless raised by pre-answer motion or in the defendant's answer (see CPLR 3211[e]). A defendant, however, may assert a statute of limitations defense for the first time in an answer served in response to a plaintiff's amended complaint (citation omitted). Moreover, a party may amend its pleading once without leave of court, among other circumstances, within 20 days after service of that pleading (see CPLR 3025[a]). An amended answer, made as a matter of right pursuant to CPLR 3025(a), may include a statute of limitations defense previously omitted (citations omitted). Here, in response to the amended complaint, ABS filed an answer, which failed to assert the defense of statute of limitations. Within 20 days of the service of the amended complaint, however, ABS amended its answer to include the defense of statute of limitations. Under these circumstances, the Supreme

Court erred in determining that ABS waived the defense of the statute of limitations (citations omitted).”).

CPLR 3025 – Amendment by leave of court to interpose affirmative defense Dixon v. Chang, 137 A.D.3d 957, 27 N.Y.S.3d 239 (2d Dep’t 2016) (“However, under the circumstances of this case, the Supreme Court should have denied Kelleher's motion with leave to amend his answer to add the affirmative defense of discharge in bankruptcy. Even when a defense is waived under CPLR 3211(e), ‘it can nevertheless be interposed in an answer amended by leave of court pursuant to CPLR 3025(b), as long as the amendment does not cause the other party prejudice or surprise resulting directly from the delay, and is not palpably insufficient or patently devoid of merit’ (citations omitted). Under the circumstances of this case, we find that Kelleher's affirmative defense of discharge in bankruptcy is neither patently insufficient nor palpably devoid of merit, and there would be little or no prejudice resulting from any delay in granting leave to amend his answer to add this affirmative defense (citation omitted).”).

CPLR 3025(c) – Amending pleadings to conform to evidence DiSario v. Rynston, 138 A.D.3d 672, 30 N.Y.S.3d 129 (2d Dep’t 2016) (“Pursuant to CPLR 3025(c), a trial court may permit the amendment of pleadings before or after judgment to conform them to the evidence ‘upon such terms as may be just’ (citations omitted). Such an amendment is permissible ‘even if the amendment substantially alters the theory of recovery'’ (citations omitted). Here, although the complaint sought recovery in the form of foreclosure on his mechanic's lien, at trial, the plaintiff sought to conform the pleadings to the proof and assert a cause of action for recovery in quantum meruit. The Supreme Court granted that motion, and therefore, contrary to the defendants' contention, that theory of recovery was properly before the court. ‘The elements of a cause of action sounding in quantum merit are: (1) the performance of services in good faith, (2) the acceptance of services by the person to whom they are rendered, (3) the expectation of compensation therefor, and (4) the reasonable value of the services rendered’ (citations omitted). ‘In construction contract cases, the customary method of calculating damages on a quantum meruit basis . . . is actual job costs plus an allowance for overhead and profits minus amounts paid’ (citation omitted).”).

CPLR 3101 – Request for driver’s cellphone records permitted D'Alessandro v. Nassau Health Care Corp., 137 A.D.3d 1195 (2d Dep’t 2016) (“Here, contrary to the defendant driver's contention, the plaintiff's request for the disclosure of her cellular telephone records was not premised on ‘bare allegations of relevancy’ (citation omitted). Rather, the plaintiff's motion papers adequately demonstrated that the issue of whether the defendant driver was using her cellular telephone at the time of the accident was relevant to the plaintiff's contention that the defendant driver was negligent in the operation of her motor vehicle (citation omitted). As such, the plaintiff's request for the defendant driver's cellular telephone records was ‘reasonably calculated to lead to the discovery of information bearing on the [plaintiff's] claims’ (citation omitted), and this portion of the plaintiff's request for disclosure was ‘sufficiently related to the issues in litigation to make the effort to obtain [them] in preparation for trial reasonable'’ (citations omitted). Accordingly, under the circumstances of this case, the Supreme Court improvidently exercised its discretion in denying that branch of the plaintiff's motion which was pursuant to CPLR 3124 to compel the defendant driver to provide

79 authorizations for the complete records of her cellular phone use for the period between 8:00 p.m. and 10:00 p.m. on April 4, 2012. To the extent that the plaintiff contends that the Supreme Court improvidently exercised its discretion in denying that branch of her motion which was pursuant to CPLR 3124 to compel the defendant driver to provide authorizations for the complete records of the cellular phone use of her husband for the period between 8:00 p.m. and 10:00 p.m. on April 4, 2012, her contentions are without merit.”).

CPLR 3101 – Timing or lack of timing of expert disclosure Dedona v. DiRaimo, 137 A.D.3d 548, 27 N.Y.S.3d 42 (1st Dep’t 2016) (“The trial court improvidently exercised its discretion in granting the motion and in dismissing the complaint based on the preclusion of evidence. Defendants' argument that they had no notice of plaintiffs' theory and were unfairly surprised is unavailing. The theory concerning vascularization of decedent's left leg was adequately disclosed in plaintiff's original and supplemental bills of particulars. Further, while CPLR 3101(d)(1)(i) does not require a party to retain an expert at any particular time (citation omitted), here plaintiff served the CPLR 3101(d) expert disclosure notice about eight months before trial, which was sufficient notice (citation omitted). Furthermore, during that period, defense counsel were present at several pretrial conferences and raised no objections to the expert disclosure, nor did they reject the notice (citation omitted).”).

CPLR 3101 – Failure to identify experts during discovery warrants rejection of affidavit – amendment overrules this type of holding Abrams v. Related, L.P., 137 A.D.3d 655 (1st Dep’t 2016) (“In opposition, Abrams failed to raise an issue of fact. Absent any excuse for noncompliance, his failure to identify his experts during discovery, as required by defendants' demand, warrants rejection of the experts' affidavits (citations omitted). In any event, the experts' opinions lacked probative value since they failed to state that the toxin to which Abrams was allegedly exposed was ‘capable of causing the particular illness (general causation) and that [Abrams] was exposed to sufficient levels of the toxin to cause the illness (specific causation)’ (citation omitted).”).

CPLR 3101 – Discovery from non-party post Kapon Bianchi v. Galster Mgt. Corp., 131 A.D.3d 558, 15 N.Y.S.3d 189 (2d Dep’t 2015): “Pursuant to CPLR 3101(a)(4), a party may obtain discovery from a nonparty in possession of material and necessary evidence, so long as the nonparty is apprised of the circumstances or reasons requiring disclosure. The notice requirement of CPLR 3101(a)(4) ‘obligates the subpoenaing party to state, either on the face of the subpoena or in a notice accompanying it, the circumstances or reasons such disclosure is sought or required’ (citations omitted)…. Here, contrary to the plaintiff's contention, the Galster defendants satisfied the notice requirement. In a copy of the document entitled ‘Authorization to Permit the Interview of Treating Physician by Defense Counsel,’ which was attached to the nonparty witness subpoena, ‘the circumstances or reasons’ requiring the deposition of the nonparty were properly provided (CPLR 3101[a][4]). Since the Galster defendants met this minimal obligation, the burden shifted to the plaintiff to establish that the deposition testimony sought was irrelevant to this action, which she failed to do. Further, the Galster defendants demonstrated that it was relevant to the defense of the action (citation omitted).”

CPLR 3101 – Non-Party Disclosure Ferolito v. Arizona Beverages USA, LLC, 119 A.D.3d 642, 990 N.Y.S.2d 218 (2d Dep’t 2014): “In the instant case, the subpoena duces tecum served upon nonparty Morgan Stanley plainly satisfied the notice requirement. The subpoena duces tecum detailed the relationship between Morgan Stanley and the parties, and provided Morgan Stanley with ample information to challenge the subpoena duces tecum (citations omitted). Once Ferolito met that minimal obligation, the burden shifted to Morgan Stanley to establish that the requested documents were either ‘utterly irrelevant’ to the action, or that the ‘futility of the process to uncover anything legitimate is inevitable or obvious’ (citation omitted). Here, Morgan Stanley failed to meet that burden. The record reveals that the requested documents were highly relevant to the valuation of the subject corporation, the central issue in the underlying proceedings, and Morgan Stanley did not dispute that it possessed those documents. Accordingly, Ferolito met his burden of establishing that the information sought was material and necessary (citation omitted).”

CPLR 3101 – Disclosure of IQ Tests (Andon) Perez v. Fleischer, 122 A.D.3d 1157 (3d Dep’t 2014): “Regarding the mother's and siblings' academic records, defendants have submitted an expert affidavit, as noted above, indicating that those records are relevant and necessary to determine whether other factors caused plaintiff's injuries (citation omitted). Considering that these records are private but not privileged, Supreme Court reasonably balanced defendants' need for them and their possible relevance against the burden to these nonparties from disclosure, requiring that the siblings' records be produced to the court for an in camera review (citations omitted). The mother's academic records should similarly be submitted to the court for review and redaction of any privileged material. Defendants have submitted some proof that the mother's IQ may be relevant to plaintiff's diminished mental capacity. Defendants' need for her IQ test results, however, are not outweighed by the burden on her to undergo such a test, as well as the potential for extending this litigation by focusing on information extraneous to plaintiff's condition, such as all of the factors contributing to the mother's IQ (citation omitted). Considering the private and personal nature of the information sought and the potential delay due to myriad collateral issues, defendants should not be able to compel plaintiff's mother, a nonparty, to undergo an IQ test (citation omitted).”

CPLR 3101, 3121, 4504 – Medic considered “treating physician” for purposes of Arons authorization to interview Caminiti v. Extel W. 57th St. LLC, 139 A.D.3d 482, 31 N.Y.S.3d 66 (1st Dep’t 2016) (“The court properly granted defendants' motion to compel plaintiff to provide an authorization pursuant to Arons (citation omitted). In Arons, ‘the Court of Appeals provided the framework for conducting discovery with regard to nonparty healthcare providers, which includes the use of speaking authorizations’ (McCarter v Woods, 106 AD3d 1540, 1541, 964 N.Y.S.2d 825 [4th Dept 2013]). An authorization is required because physicians, pursuant to the Health Insurance Portability and Accountability Act of 1996 (HIPAA), ‘may not use or disclose an individual's protected health information to third parties without a valid authorization’ (citation omitted). Cannamela may be considered decedent's ‘treating physician’ or equivalent and thus a proper subject of such an authorization (citation omitted). The medic observed decedent's physical and mental condition immediately following the alleged accident. He attempted to take decedent's blood pressure and to determine his level of alertness. Based on this brief evaluation, Cannamela

81 made the decision to call an ambulance and have decedent taken to the hospital. This is sufficient to classify Cannamela as a ‘treating physician’ within the contemplation of Arons (citation omitted).”).

CPLR 3101(a) – Sibling medical records are material and necessary – expert affirmation establishes connection Kaous v. Lutheran Med. Ctr., 138 A.D.3d 1065, 30 N.Y.S.3d 663 (2d Dep’t 2016) (“In addition, the Supreme Court properly granted those branches of the defendants' motions which were for authorizations for the medical records of Sophia's siblings. CPLR 3101(a) provides for ‘full disclosure of all matter material and necessary in the prosecution or defense of an action.’ The terms ‘material’ and ‘necessary’ are liberally construed to further the disclosure ‘of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity’ (citations omitted). Here, the defendants demonstrated that the siblings' medical records are material and necessary by submitting an expert affirmation explaining that these records would ensure that Sophia is properly diagnosed and that the claimed injuries were not caused by any other genetic conditions to which she was predisposed (citation omitted). Accordingly, the court properly determined that the plaintiffs were required to provide the defendants with authorizations for the release of the medical records of Sophia's siblings and the pregnancies that resulted in their births, and to produce Sophia for genetic testing and a physical examination.”).

CPLR 3101(d) – Timing of expert disclosure Kimberlee M. v. Jaffe, 139 A.D.3d 508, 30 N.Y.S.3d 631 (1st Dep’t 2016) (“The motion court did not improvidently exercise its discretion in considering the affirmation of plaintiff's previously undisclosed expert (citation omitted). CPLR 3101(d) ‘does not require a party to retain an expert at any particular time’ (citation omitted), plaintiff promptly served the expert's affirmation within 45 days of the examination of BK (see 22 NYCRR 202.17 [c]), and the preliminary conference order only required plaintiff to serve expert disclosures at least 60 days before trial. Moreover, the trial judge cured any possible prejudice by granting defendants permission to perform an independent medical examination of BK.”).

CPLR 3101(d) – Expert Disclosure- redacting expert’s identity Rivera v. Albany Med. Ctr. Hosp., 119 A.D.3d 1135, 990 N.Y.S.2d 310 (3d Dep’t 2014): “Among other submissions, defendants provided an affidavit from a medical expert whose identity was redacted and who opined on the appropriateness of plaintiff's medical care and the adequacy of the warnings given to plaintiff. Defendants also submitted an unredacted version of the affidavit for Supreme Court's in camera review. Because defendants were the movants for summary judgment, their submission of an anonymous expert affidavit was incompetent evidence not proper for consideration upon the motion (citations omitted). While the Legislature has allowed for some protection from disclosure of the identities of medical experts during ‘[t]rial preparation’ (CPLR 3101 [d] [1] [i]), and, consistent with this intention, courts have found it appropriate to allow nonmovants in the summary judgment context to also withhold experts' identities from their adversaries upon the reasoning that such parties did not choose to abandon the disclosure protections provided during trial preparation (citations omitted), the Legislature has shown no broad intention of protecting experts from accountability at the point where their opinions are employed for the purpose of judicially resolving a case or a cause of

82 action. Further, we see no compelling reason to allow for such anonymity that would outweigh the benefit that accountability provides in promoting candor (citation omitted). Requiring a movant to reveal an expert's identity in such circumstances would allow a nonmovant to meaningfully pursue information such as whether that expert has ever espoused a contradictory opinion, whether the individual is actually a recognized expert and whether that individual has been discredited in the relevant field prior to any possible resolution of the case on the motion (citation omitted). Further, any expert who anticipates a future opportunity to espouse a contradictory opinion would be on notice that public record could be used to hold him or her to account for any unwarranted discrepancy between such opinions. For these reasons, we will not consider the incompetent affidavit of defendants' medical expert.”

CPLR 3101(i) – Videotaping IME without permission and without disclosure (Digest – January 2016) Picture This: Plaintiff’s Trial Counsel Surreptitiously Videotapes IME Without Court Order and Without Disclosing to the Defendant Before Trial Appellate Division Finds Counsel Wrong on Both Counts Bermejo v. N.Y. City Health & Hosps. Corp., 2015 N.Y. Slip Op. 08374 (2d Dep’t Nov. 18, 2015), was a personal injury action in which plaintiff’s trial counsel surreptitiously videotaped the plaintiff’s independent medical examination (IME) by the defendant’s retained orthopedist. The plaintiff’s attorney did not seek a court order before videotaping the IME and compounded his error by failing to disclose the video to defendant’s counsel pursuant to CPLR 3101(i). Plaintiff’s counsel’s actions resulted in a mistrial and the orthopedist’s refusal to testify at the new trial. The primary use of the videotape at trial was apparently to discredit the orthopedist as to his testimony about the length of the (second) IME he conducted. Exacerbating the situation was the trial judge’s continued characterization of the defense orthopedist as a liar and the fact that plaintiff’s trial counsel took the video himself. The Appellate Division stated that there is no express statutory authority permitting IMEs to be videotaped. Although a plaintiff is normally entitled to have his or her counsel present during an IME, plaintiff’s counsel must seek permission from the court to videotape the examination, which is to be granted only upon a showing of “special and unusual circumstances.” Thus, plaintiff’s counsel’s failure to seek a court order in and of itself was a sufficient reason to prohibit the use of the videotape at trial. Moreover, the Second Department pointed to the plaintiff’s failure to disclose the videotape to defense counsel as “compounding” plaintiff’s counsel’s improper conduct. CPLR 3101(i) provides for the “full disclosure” of all “films, photographs, video tapes or audio tapes.” It represents a significant departure from prior law with respect to surveillance tapes. At one time they were conditionally protected as material prepared in anticipation of litigation. Now, parties are entitled to production of such material upon demand, and requests by defense counsel, for example, to defer production until after plaintiff’s deposition were rejected by the Court of Appeals. See Tai Tran v. New Rochelle Hosp. Med. Ctr., 99 N.Y.2d 383 (2003) (the Court felt constrained by express statutory language providing for “full disclosure” without any timing limits). Thus, CPLR 3101(i) leaves no ambiguity as to the obligation without limitation to produce all films, photographs, videotapes, or audiotapes. The Bermejo court rejected the plaintiff’s argument that the video was of the nonparty doctor and did not have to be disclosed, finding that plaintiff’s counsel not only violated CPLR 3101(i) but also “the spirit of New York’s open disclosure policy.” The court further found that

83 unusual and unanticipated circumstances warranted a new IME. Those circumstances included the lower court’s accusation, repeated on more than 60 occasions, that the testifying orthopedist had lied or committed perjury, and its repeated threats to refer the orthopedist to the District Attorney’s office with a recommendation that he be prosecuted for perjury, and the court’s extraordinary efforts to end Dr. Katz’s [the orthopedist’s] career in the “medical/legal business.” The court’s efforts in this regard intensified to the point that it apparently resorted to the unorthodox measure of conditioning the vacatur of a $10,000 sanction against each of the appellants’ attorneys upon their willingness to adopt the court’s view that Dr. Katz had committed perjury. The court also represented to Dr. Katz’s counsel that at least one of the appellants’ attorneys had “agreed” with the court’s view that the doctor had lied, when, in fact, the attorney stated only that he had “no objection” to the court’s finding, and that statement was made under circumstances in which the court had been threatening that attorney with sanctions. Under these conditions, it is not surprising that Dr. Katz refuses to testify voluntarily at a retrial. Bermejo, 2015 N.Y. Slip Op. 08374 at *11. The court found that while the orthopedist was physically available to testify at the retrial, his unwillingness to testify rendered him “effectively unavailable.” Finally, the Appellate Division concluded that plaintiff’s counsel’s conduct was frivolous and remitted the case to a different Supreme Court justice to conduct a hearing to determine the costs incurred in the first trial, in making the motions at issue on the appeals and in pursuing the appeals.

CPLR 3103, 3110 – Deposition by remote electronic means Wang v. A & W Travel, Inc., 130 A.D.3d 974, 14 N.Y.S.3d 459 (2d Dep’t 2015): “The Supreme Court improvidently exercised its discretion in denying that branch of the plaintiff's cross motion which was pursuant to CPLR 3103(a) for a protective order directing that his deposition be conducted by remote electronic means. ‘Generally, when a party to the action is to be deposed, the deposition should take place within the county . . . where the action is pending’ (citation omitted). ‘An exception to this rule is where a party demonstrates that examination in that county would cause undue hardship’ (citation omitted). Here, in light of the evidence that the plaintiff's applications for a visa to return to the United States had been denied, and the evidence establishing that he presently was ineligible to be admitted to the United States, the plaintiff demonstrated that traveling from China to the United States for his deposition or independent medical examination would cause undue hardship (citation omitted).”

CPLR 3106 – New Commercial Division Rule 11-f (Digest – November 2015) New Commercial Division Rule 11-f Adopted Permits Identification of Matters for Examination at Deposition of Entity On October 8, 2015, the Chief Administrative Judge of the Courts signed into law a new Commercial Part Rule 11-f intended to streamline the process of properly deposing entities. The law becomes effective December 1, 2015. It resembles Federal Rules of Civil Procedure § 30(b)(6), but differs in several respects. Under CPLR 3106(d), a party can identify a particular officer of a corporation for a deposition, and the corporation can then designate and produce another person. This can be inefficient and wasteful in trying to determine the person or persons with the requisite

84 knowledge. There is no mechanism in the statute to force the entity to designate or produce someone with knowledge of particular matters that are identified. New Rule 11-f is concerned with depositions of “entities,” defined as “a corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, public corporation, government, or governmental subdivision, agency or instrumentality, or any other legal or commercial entity.” The Rule provides that a notice or subpoena naming an entity can enumerate, with reasonable particularity, the matters upon which the person is to be examined. If the notice or subpoena does not name a particular individual, then no later than 10 days prior to the deposition the noticed entity is to designate and identify the individual or individuals who have consented to testify (including the name and title or description). If multiple individuals are designated, the designation is to set forth the matters upon which each individual is expected to testify. In the event the notice or subpoena identifies a specific individual, the entity must produce that individual, pursuant to CPLR 3106(d), unless it notifies the requesting party no later than 10 days prior to the deposition that it will produce another individual and identifies that individual. Designated individuals must testify about information known or reasonably available to the entity. Deposition testimony given by such individuals may be used against the entity to the same extent as set forth in CPLR 3117(a)(2) and applicable evidentiary rules. The subpoena must advise the non-party entity of its obligations to make these designations. Rule 11-f does not preclude a deposition by any other procedure the CPLR permits.

CPLR 3106 – Adoption of Rule 11-d in Commercial Division Regarding Number and Length of Depositions (Digest – June 2015) Commercial Division Rule 11-d Depositions and the 10/7 Rule This Rule limits the number of depositions taken by parties to 10 with a limit of seven hours per deponent. These limitations can be varied by the court on good cause shown. A CPLR 3106(d) designee deposition is to be treated as a single deposition, even if multiple persons are designated. However, the deposition of an entity’s officer, principal or employee who is also a fact witness constitutes a separate deposition. Commercial Division Rule 11-d Amended (Digest – November 2015) In the June 2015 edition of the Digest, we discussed the adoption of Rule 11-d, which limits the number of depositions taken by parties to 10 and the number of hours to seven per deponent. An amendment, signed October 8, 2015 (effective December 1), seeks to clarify this Rule where multiple individuals have been designated by an entity. In addition to removing references to CPLR 3106(d), it provides that the deposition of those individuals is to be treated as a single deposition, subject to the seven-hour limit of Rule 11-d(a)(2). However, the “cumulative presumptive durational limit” can be enlarged where the parties agree or upon application for leave to the court, which leave is to be freely granted.

CPLR 3113(c) Amendment (Digest – May 2015) Non-Parties (and Their Lawyers) Are People Too The Fourth Department’s decision in Thompson v. Mather, 70 A.D.3d 1436, 894 N.Y.S.2d 671 (4th Dep’t 2010), reinforced in Sciara v. Surgical Assoc. of W. N.Y., P.C., 104 A.D.3d 1256, 961 N.Y.S.2d 640 (4th Dep’t 2013), appeal withdrawn, 24 N.Y.3d 1095, 2 N.Y.S.3d 61, 25 N.E.3d 975 (2015) that non-party counsel was required to act like a “potted

85 plant” at her client’s deposition provoked much consternation. Apart from the fact that it was contrary to the widespread practice throughout the state, and courts had not previously expressed a similar reservation about the existing practice, attorneys were placed in an uncomfortable position with respect to their ethical duties. There may have been differing opinions as to whether non-party’s counsel rights should be as expansive as that of a party’s counsel. However, the overwhelming consensus among attorneys appeared to be that while owning plants might be enjoyable, being a potted one was not what they signed up for, and was inconsistent with their professional and ethical duties to their clients. Responding to this conundrum, CPLR 3113(c) was amended (eff. Sept. 23, 2014) to take the most liberal position, that is, that non-party counsel can participate in his or her client’s deposition and make objections in the same manner as for a party. While horticulturalists may be dismayed, attorneys should be pleased to leave the plant world behind. See David Ferstendig & Oscar Chase, Should Counsel for a Non-Party Deponent be a “Potted Plant”?, 2014 N.Y.U. J. Legis. Pub. Pol'y Quorum 52 for background on the issues raised by Thompson and the amendment.

CPLR 3106(d) – Deposing a corporation – failure to comply with statute Citibank, N.A. v. Bravo, 2016 NY Slip Op 04763 (3d Dep’t 2016) (“With respect to plaintiff's contention that it had the right as a corporation to determine who it would initially produce for a deposition, we note that defendants specifically named in their May 2014 demand the person who had executed an affidavit regarding the note and plaintiff failed to comply with the statutory requirement to, ‘no later than [10] days prior to the scheduled deposition, notif[y] [defendants] that another individual would instead be produced and the identity, description or title of such individual’ (citations omitted). Instead of giving timely notice to defendants, seeking a protective order or even producing a person it deemed knowledgeable (citation omitted), plaintiff simply refused to produce the named individual resulting in the failure to comply with the court-ordered date for conducting the deposition. Under the entirety of the circumstances, we are unpersuaded that Supreme Court improvidently exercised its discretion.”) (citing Weinstein, Korn & Miller).

CPLR 3116 – Correction of typographical errors in deposition transcript Stephen v. City of New York, 137 A.D.3d 1003, 27 N.Y.S.3d 221 (2d Dep’t 2016) (“Contrary to the plaintiffs' contention, Dr. Nasir's correction of certain deposition testimony for purported typographical errors did not reveal an issue as to his credibility which precluded summary judgment (citations omitted).”).

CPLR 3116 – Submission of unsigned and uncertified deposition transcript Hartman v. Milbel Enters., Inc., 130 A.D.3d 978, 15 N.Y.S.3d 125 (2d Dep’t 2015): “Under the circumstances of this case, the Supreme Court erred in denying the motion and cross motions for summary judgment on a procedural ground that the parties did not raise or litigate (citation omitted). The submission of unsigned and some uncertified deposition transcripts constituted mere irregularities and, because no substantial right of any party was prejudiced, the court should have disregarded these defects and determined the motion and cross motions for summary judgment on the merits (citations omitted). In the interest of judicial economy, we deem it appropriate to address the motion and cross motions for summary judgment on the

86 merits, rather than remit the matter to the Supreme Court, Kings County, to do so (citation omitted).”

CPLR 3116(a) – Changes to deposition transcript accompanied by reasons for change Reifsnyder v. Penske Truck Leasing Corp., 2016 NY Slip Op 05022 (1st Dep’t 2016) (“In opposition, plaintiff failed to raise a triable issue of fact as to whether the brakes were negligently maintained. The Penske employee who made repairs to the truck following the accident changed his deposition testimony to clarify that a damaged part discarded and replaced at that time (the charge air cooler) was not a component of the truck's air brake system; the change was timely and was accompanied by a statement of the witness's reasons for the change (citations omitted). This correction of the testimony also refutes plaintiff's contention that Penske spoliated evidence by permitting its employee to discard brake parts.”).

CPLR 3116(a) - No explanation for changes to deposition Cataudella v. 17 John St. Assoc., LLC, 2016 NY Slip Op 04784 (1st Dep’t 2016) (“The court properly declined to consider the errata sheet even though it was timely served, because plaintiff made changes to his testimony without explaining why he was making them, as required by CPLR 3116(a) (citation omitted).”).

CPLR 3117(a)(3) – Video transcription of deposition testimony at trial Feng Wang v. A & W Travel, Inc., 130 A.D.3d 974, 14 N.Y.S.3d 459 (2d Dep’t 2015): “Further, the Supreme Court erred in, in effect, denying that branch of the plaintiff's amended cross motion which was pursuant to CPLR 3117(a)(3) for leave to employ a video transcription of his deposition testimony at trial in lieu of appearing at trial to give testimony. The plaintiff met the criteria set forth in CPLR 3117(a)(3)(ii), (iv), and (v) (citation omitted).”

CPLR 3120 – Discovery of Social Media (Digest – March 2016) Discovery of Social Media First Department Dissent Questions Prior Precedent on Threshold Requirements Forman v. Henkin, 134 A.D.3d 529 (1st Dep’t 2015), is a personal injury action in which the plaintiff alleged that she sustained physical and cognitive injuries limiting her ability to participate in recreational and social activities. The plaintiff testified at her deposition that she had posted to her Facebook page prior to the accident, only to deactivate her account at some point. The defendant moved to compel the plaintiff to provide an unlimited authorization to reach her Facebook account records, including instant messages, status updates, and photographs. The lower court ordered the plaintiff to produce all photographs of herself privately posted before the accident that she intended to use at trial, and those posted after the accident that did not show nudity or romantic encounters. In addition, the court directed the plaintiff to provide authorizations for Facebook records showing when the plaintiff posted private messages after the accident and the number of words or characters in the messages, but not the content. A majority of the Appellate Division modified the lower court order, vacating the portion of the order directing the plaintiff to produce Facebook photographs of herself after the accident that she did not intend to introduce at trial or the authorization seeking private Facebook messages. The court noted at the outset that when seeking discovery, generally, a party must show “that the method of discovery sought will result in the disclosure of relevant evidence or is

87 reasonably calculated to lead to the discovery of information bearing on the claims.” Id. at 530. In the area of private social media information, however, the First Department and other Appellate Division Departments have required a threshold showing before permitting discovery. Thus, one seeking such information must establish a factual predicate as to its relevancy. This has resulted in courts demanding more narrowly tailored requests relating to the claimed injuries or that the party seeking discovery first establish that certain social media information contradicts plaintiff’s claims. The majority here found that the defendant had not established his entitlement to plaintiff’s private Facebook photos or the Facebook message information. The mere fact that plaintiff had posted pictures or sent messages did not sustain the defendant’s burden. Moreover, the defendant’s argument that the information sought could be relevant to rebut the plaintiff’s claimed injuries was speculation and not a basis to require production, but rather was a “fishing expedition.” The dissent acknowledged that the court’s prior recent decisions supported the majority’s position. However, the dissent suggested that the court reconsider its earlier recent precedent. It took particular exception to the threshold requirement that the defendant can obtain nonpublic information posted on personal social media sites “if, and only if, the defendant can first unearth some item from the plaintiff’s publicly available social media postings that tends to conflict with or contradict the plaintiff’s claims.” Id. at 536. In addition, the further practice or requirement to conduct an in camera inspection of the content even once the threshold has been met “imposes a substantial – and unnecessary – burden on trial courts.” The dissent stressed that this burden will only increase because more and more people will maintain, post, and use social networking sites. While a party is not permitted to conduct a fishing expedition, that does not mean that there is a preliminary requirement that the party seeking discovery must be able to prove that the other side has in its possession an item or items answering to the description in the discovery demand. Rather, the “material and necessary” standard only requires a reasoned basis for asserting that the requested category of items “bear[s] on the controversy” (citation omitted), or a showing that it is likely to produce relevant evidence (citation omitted). Id. at 539.

The dissent argued that the traditional rules of discovery can apply in the context of social media discovery: There is no particular difficulty in applying our traditional approach to discovery requests for information posted on social networking sites. If a plaintiff claims to be physically unable to engage in activities due to the defendant's alleged negligence, posted information, including photographs and the various forms of communications (such as status updates and messages) that establish or illustrate the plaintiff's former or current activities or abilities will be discoverable. If a plaintiff's claims are for emotional or psychological injury, it may be more difficult to frame a discovery demand, but it can certainly be done without resorting to a blanket demand for everything posted to the account (citations omitted). Id. at 541. The dissent stated that merely categorizing a posting as private should not insulate it from discovery, if it is relevant and responsive to a proper discovery request. Moreover, the deactivation of the account by the plaintiff should not have been a factor since it could be 88 reactivated. Finally, the dissent rejected the majority’s argument that it was constrained by stare decisis from changing its prior rulings. The dissent noted that the precedent relied upon is only a few years old, not long established, and impacts social networking practices that are still developing.

CPLR 3121 – Examination of nonphysician vocational rehabilitation specialist Hayes v. Bette & Cring, LLC, 135 A.D.3d 1058, 22 N.Y.S.3d 680 (3d Dep’t 2016) (“Here, defendant sought to compel Hayes to submit to an examination before a vocational rehabilitation expert. While we previously held that there is ‘no statutory authority to compel the examination of an adverse party by a nonphysician vocational rehabilitation specialist’ (citation omitted), the Court of Appeals has since confirmed that the mandate for broad disclosure is not necessarily limited by the more specific provision of the CPLR that allows a defendant to demand that a plaintiff submit to a physical or mental examination ‘by a designated physician’ (CPLR 3121 [a]) where his or her medical condition is at issue (citation omitted). Accordingly, the circumstances of a case may allow such a demand even in the absence of express statutory authority (citations omitted). We agree with the conclusion reached by the other Departments that such circumstances are not limited to those cases where a plaintiff has retained a vocational rehabilitation expert to establish damages, although, generally, such testing ‘might well be unduly burdensome’ (citations omitted). We recognize that Supreme Court relied upon our prior decision in Mooney v Osowiecky (215 AD2d 839 [1995]) in denying the motion to compel, but the ruling in that case should no longer be followed. Hayes placed his ability to work in controversy by claiming that, as a result of his injuries, he suffered loss of future wages and reduced earning capacity and by testifying at his examination before trial that his future career opportunities were limited (citations omitted). Further, at the time of the demand, Hayes did not object or otherwise complain that he would be prejudiced or burdened by such examination and no note of issue had been filed. In our view, therefore, Hayes should be directed to appear before a vocational rehabilitation expert.”).

CPLR 3122 (Digest – June 2015) Adoption of Commercial Division Rule 11-b and Privilege Logs If a responding party withholds documents based on an assertion of privilege, counsel should provide a log of those documents with the information required under CPLR 3122(b). Recognizing an era of significant email and electronic transmissions, Rule 11-b expresses a preference for parties to use “categorical designations” in privilege logs. The use of categories serves to reduce the overwhelming labor of a document-by-document logging process. The parties are required to meet and confer at the beginning of the action and from time to time thereafter, to discuss the scope of the privilege review, the amount of information to be set out in the privilege log, the use of categories to reduce document-by- document logging, whether any categories of information may be excluded from the logging requirement, and any other issues . . . including the entry of an appropriate non-waiver order. To the extent that the collection process and parameters are disclosed to the other parties and those parties do not object, that fact may be relevant to the Court when addressing later discovery disputes. The log must include a certification, pursuant to 22 N.Y.C.R.R. § 130-1.1a, identifying the facts supporting each claim of privilege. If a party chooses a “document-by-document”

89 description, each uninterrupted email chain is to be considered a single entry. The producing party can then apply for an allocation of fees and costs, upon good cause shown. The parties are encouraged to retain a Special Master in complex matters. The attorney responsible for supervising the privilege review is to be actively involved to ensure that responsive, non- privileged documents are provided in a timely fashion. The parties should memorialize all agreements and protocols in a court order. CPLR 3122 (Digest – June 2015) Adoption of Commercial Division Rule 11-c and Guidelines for Discovery of Electronically Stored Information From Nonparties The stated purposes of the Commercial Division’s Guidelines for Discovery of Electronically Stored Information (ESI) from Nonparties are to provide for efficient non-party ESI disclosure, to encourage the early assessment of the non-party’s potential costs and burdens, to identify the ESI discovery costs that the requesting party will have to defray, and to encourage informal dispute resolution. The Guidelines are to be construed to be consistent with governing case law and applicable statutes, rules, and regulations. The party and nonparty should engage in discussions “as early as permissible” with respect to ESI, including any request that the nonparty implement a litigation hold. A party seeking non-party ESI discovery is to limit its requests, taking into consideration certain proportionality factors, including the importance of the issues at stake and the requested ESI, whether the ESI is available through other sources, the ESI’s “accessibility” (as defined by case law) and the nonparty’s expected burden and costs. The requesting party and the nonparty should “meet and confer” to expedite the process and should discuss the proportionality factors. Discovery disputes should be resolved informally; motion practice is discouraged and only to be used as a last resort. The requesting party should defray the nonparty’s reasonable production expenses.

CPLR 3122 (Digest – June 2015) Adoption of Commercial Division Rule 11-e and Document Responses With respect to each document request, a CPLR 3122 response must state either that production will be made or the grounds for any objection, with reasonable particularity. To the extent such an objection is made, the response must state whether the objection is limited to only part of or to the entire request, whether documents will be withheld and the basis for the applicable objection, and the manner in which the document production will be limited. Document production should be completed by a date no later than the commencement of depositions or at a date set by the court. Moreover, no later than a month before the end of fact discovery, or at a date set by the court, the responding party must confirm with respect to each request that document production is complete or that there are no responsive documents in its possession, custody or control. The Rule is not intended to conflict with a party’s obligations to supplement its discovery under CPLR 3101(h).

CPLR 3122-a Amendment (Digest – May 2015) CPLR 3122-a(d): A Non-Party Can Certify Business Records Produced Without Subpoena CPLR 3122-a was added by 2002 N.Y. Laws ch. 575 (eff. Sept. 1, 2003). Its purpose was to provide a process by which documents produced pursuant to a CPLR 3120 request could be certified as business records, thereby simplifying admissibility issues under CPLR 4518(c). What it did not seem to cover were documents voluntarily produced by a non-party without having been served with a subpoena. Thus, via an amendment effective August 11, 2014, subdivision (d)

90 was added to CPLR 3122-a permitting such a certification, provided that the custodian or other qualified witness makes the necessary attestations required under CPLR 3122-a(1), (2) and (4) (that is, that the person is an authorized custodian or qualified witness, that the documents are accurate versions of those sought, and that they are business records).

CPLR 3123 – Notice to admit-improper service and improperly seeking admission concerning legal conclusion Matter of Luthmann v. Gulino, 131 A.D.3d 636, 15 N.Y.S.3d 422 (2d Dep’t 2015): “The petitioner contends that he had standing because Gulino failed to respond to a request to admit, which asked him to admit that the petitioner had standing, and that, pursuant to CPLR 3123(a), such failure could be deemed an admission that the petitioner had standing. This contention is without merit. Although CPLR 408 permits service of a notice under CPLR 3123 without leave of court, the request to admit was not properly served in accordance with CPLR 2103(b). Contrary to the petitioner's contention, Gulino did not waive any objection on the ground of improper service (citation omitted). In any event, the request to admit that the petitioner had standing improperly sought an admission concerning a legal conclusion (citations omitted). Moreover, the respondent Board of Elections in the City of New York did not waive the defense of lack of standing (citation omitted). Accordingly, that portion of the petition was properly denied, and the proceeding was properly dismissed.”

CPLR 3123(a) – Improper notice to admit – going to heart of matter at issue Smith v. County of Nassau, 138 A.D.3d 726, 30 N.Y.S.3d 143 (2d Dep’t 2016) (“Additionally, the plaintiff's notice to admit called upon the County to admit a fact—the existence of actionable ‘conditions’ at the site of the accident—as to which the plaintiff's attorney could not reasonably have ‘believe[d] there [could] be no substantial dispute at trial’ (citations omitted), and which improperly went ‘to the heart’ of the matter at issue (citations omitted). Therefore, the County should not be bound by the notice to admit, even if it failed to properly respond to it.”).

CPLR 3124, 3126 – Commercial Division Rules (22 NYCRR §202.70 (g)) (Digest – June 2015) Commercial Division Rule 14, Discovery Disputes and the Preference for Letters and Court Conferences Over Formal Motions Rule 14 is reminiscent of the federal practice of substituting letters for formal motion practice (at least in the first instance). Rule 14 only applies if a particular judge’s part rules do not address discovery disputes. The Rule encourages the resolution of discovery disputes through court conferences. Before any dispute is presented to the court, counsel must consult in good faith to resolve the dispute, as has been required for many years under 22 N.Y.C.R.R. § 202.7. If the parties cannot resolve the dispute, the following procedure is to be followed:  The moving counsel is to submit a letter not exceeding three single-spaced pages to the court. The letter is to outline the parameters of the dispute, request a telephone conference and attest to the good faith conference or indicate good cause why there was no such conference.  Any affected opposing party or nonparty must submit a response not exceeding three single-spaced pages, no later than four business days after receiving the moving letter.  The court will then schedule a telephone or in-court conference.

The preference is for the judge, or his or her law clerks, to address the issues in a telephone conference. An attorney’s failure to comply with this Rule can result in the motion being held in abeyance. Where the parties need to make a record, they can submit a formal motion.

CPLR 3126, 3102(c), 3101(a) – Pre-action disclosure and preservation of evidence – loss of surveillance tape Sarach v. M&T Bank Corp., 2016 NY Slip Op 04820 (4th Dep’t 2016) (Prior to commencement of action, plaintiff sought CPLR 3102 (c) order for pre-action disclosure and preservation of evidence. While defendant opposed request, it represented to court that it had voluntarily undertaken preservation of certain evidence and the court ordered it to preserve, all “photographs [and] video tapes, including but not limited to security and surveillance video related to the subject accident.” During the action, plaintiff requested surveillance films relating to the subject accident, but defendant stated that they were not preserved. Plaintiff brought motion to strike defendant's answer for violating the court order. The lower court struck defendant's answer and affirmative defenses. On appeal, majority holds adverse inference sanction appropriate, while dissent believes sanction should be precluding defendant from introducing at trial evidence of video’s content in its direct case.).

CPLR 3126 – Conditional preclusion order upheld – willful and contumacious behavior Morales v. Zherka, 2016 NY Slip Op 04390 (2d Dep’t 2016) (“Contrary to the appellant's contention, the Supreme Court properly granted those branches of the plaintiff's motion which were pursuant to CPLR 3126 to conditionally preclude the defendants from disputing certain testimony by the plaintiff and from offering certain evidence at trial unless the appellant submits to further deposition. Resolution of discovery disputes and the nature and degree of the penalty to be imposed pursuant to CPLR 3126 are matters within the sound discretion of the motion court (citations omitted). ‘Absent an improvident exercise of discretion, the determination to impose sanctions for conduct that frustrates the purpose of the CPLR should not be disturbed’ (citation omitted). Here, at his deposition, the appellant refused to provide answers to several questions based upon his personal knowledge, stating merely that he agreed with the plaintiff's testimony, and refused to answer other questions, claiming that he was bound by a confidentiality agreement. The record demonstrates that the appellant's lack of cooperation was willful and contumacious, and thus, the court did not improvidently exercise its discretion (see CPLR 3126). Moreover, since the Supreme Court's order affords the appellant an opportunity to correct his deposition testimony, the appellant has an opportunity to avoid discovery sanctions (citation omitted).”).

CPLR 3126 – Evidence of willful and contumacious behavior – complaint dismissed Field v. Bao, 2016 NY Slip Op 04691 (2d Dep’t 2016) (“Here, the plaintiff's willful and contumacious conduct can be inferred from her repeated failure, over a period of more than two years, to respond to any of the defendants' discovery demands, even after being directed to do so by court order, as well as her failure to respond to the defendants' separate motions to dismiss the complaint and, consequently, the absence of any reasonable excuse for her noncompliance (citations omitted).”).

CPLR 3126 – ESI, spoliation, VOOM – Failure to institute litigation hold with respect to electronic data merits adverse inference charge and monetary sanction Arbor Realty Funding, LLC v. Herrick, Feinstein LLP, 2016 NY Slip Op 05065 (1st Dep’t 2016) (“‘Failures which support a finding of gross negligence, when the duty to preserve electronic data has been triggered, include: (1) the failure to issue a written litigation hold []; (2) the failure to identify all of the key players and to ensure that their electronic and other records are preserved; and (3) the failure to cease the deletion of e-mail’ (citation omitted). Here, the motion court correctly determined that Arbor's destruction of evidence was, at a minimum, gross negligence, since Arbor failed to institute a formal litigation hold until approximately two years after even Arbor admits it had an obligation to do so. The minutes further reveal the extent to which Arbor failed to identify all of the key players in the loan transaction, and failed to preserve their electronic records. Where, as here, the spoliation is the result of the plaintiff's intentional destruction or gross negligence, the relevance of the evidence lost or destroyed is presumed (citations omitted). Plaintiff failed to rebut this presumption. Accordingly, the motion court properly determined an appropriate sanction should be imposed on plaintiff. However, the sanction must reflect ‘an appropriate balancing under the circumstances,’ (citation omitted). Generally, dismissal of the complaint is warranted only where the spoliated evidence constitutes ‘the sole means’ by which the defendant can establish its defense (citation omitted), or where the defense was otherwise ‘fatally compromised’ (citation omitted) or defendant is rendered ‘prejudicially bereft’ of its ability to defend as a result of the spoliation (citation omitted). The record upon renewal does not support such a finding, given the massive document production and the key witnesses that are available to testify, including the eight additional persons identified in the minutes, on whom Herrick had not yet served interrogatories or deposition notices at the time it filed its renewal motion. Accordingly, an adverse inference charge is an appropriate sanction under the circumstances (citations omitted), since it will permit the jury to: (1) find that the missing emails and other electronic records would not have supported Arbor's position, and would not have contradicted evidence offered by Herrick, and (2) draw the strongest inference against Arbor on the issues of whether Arbor would have made the loans regardless of any potential zoning issues, and the measure of Arbor's damages taking into account its assignment of the loans and/or failure to mitigate its damages (PJI 1:77). In addition, plaintiff shall be required to pay discovery sanctions of $10,000 to defendant Herrick, Feinstein, LLP for its failure to produce the loan committee meeting minutes until after the motion court had decided the initial spoliation motion (CPLR 3126). This court's modification of the motion court's order is without prejudice to Herrick seeking dismissal of the complaint or other spoliation sanctions in the future, should there be further revelations making such a motion appropriate.”).

CPLR 3126 – Sanctions for spoliation – adverse inference Mahiques v. County of Niagara, 137 A.D.3d 1649, 28 N.Y.S.3d 171 (4th Dep’t 2016) (“Here, we conclude that plaintiffs established that some sanction is warranted because IGT negligently failed to preserve the machine, but plaintiffs failed to show that the destruction of the machine was intentional or contumacious, to warrant the sanctions imposed by the court…. [A]lthough IGT was properly sanctioned because it was negligent in failing to ensure that the machine was preserved once it was on notice that it might be needed for litigation (citations omitted), there is no evidence that it was destroyed before plaintiffs had an opportunity to inspect it, to warrant the severe sanctions that the court imposed. We also agree with IGT that the

93 destruction of the machine did not deprive plaintiffs of the ability to establish their causes of action, and thus they did not make the requisite showing of prejudice arising from the loss of the evidence to warrant the extreme sanctions imposed by the court (citation omitted)…. Thus, the level of prejudice to plaintiffs based on the destruction of the machine was not sufficiently ‘severe'’ to warrant striking IGT's answer and granting plaintiffs partial summary judgment on liability (citation omitted). Instead, we conclude that, under the circumstances of this case, ‘the court should have considered a less severe sanction, which we now provide' . . . We conclude that an adverse inference charge against [IGT] is an appropriate sanction for the spoliation of evidence’ (citations omitted), and we therefore modify the March order accordingly.”).

CPLR 3126 – Spoliation – Failure to demonstrate that spoliation had fatally compromised plaintiffs’ ability to prove claims Doviak v. Finkelstein & Partners, LLP, 137 A.D.3d 843, 27 N.Y.S.3d 164 (2d Dep’t 2016) (“Here, the record supports the Supreme Court's conclusion that the plaintiffs failed to demonstrate that the defendants intentionally or negligently destroyed fingerprint evidence which was critical to their case. The plaintiffs failed to demonstrate that they requested that the offer document be tested for fingerprints, or that it be preserved for forensic testing prior to Mrs. Doviak's deposition, or otherwise informed the defendants of their desire to conduct fingerprint analysis. The plaintiffs' boilerplate demand during discovery that they be permitted to examine original documents on request does not satisfy this requirement, nor is it reasonable to contend that the defendants should have anticipated the plaintiffs' desire for forensic testing of the offer document (citation omitted). Thus, the plaintiffs failed to demonstrate that, in handing the original document to Mrs. Doviak at her deposition, the defendants intentionally or negligently destroyed potential forensic evidence (citations omitted). In any event, the plaintiffs failed to demonstrate that, by failing to preserve the offer document for forensic testing, the defendants had fatally compromised the plaintiffs' ability to prove their claims (citations omitted). Therefore, the court providently exercised its discretion in denying the plaintiffs' motion for sanctions for spoliation.”).

CPLR 3126 – More willful and contumacious behavior – striking pleadings Richards v. RP Stellar Riverton, LLC, 136 A.D.3d 1011, 25 N.Y.S.3d 346 (2d Dep’t 2016) (“Here, the Supreme Court providently exercised its discretion in granting the plaintiff's motion, in effect, pursuant to CPLR 3126 to strike the appellants' answer to the extent of precluding them from offering any evidence on the issue of liability at the trial of this matter unless they provided certain discovery by a specified date. The willful, deliberate, and contumacious character of the appellants' conduct may be inferred from their repeated failures, without an adequate excuse, over a period of more than four years, to comply with the plaintiff's discovery demands and five discovery orders (citations omitted).”). Ozeri v. Ozeri, 135 A.D.3d 838, 23 N.Y.S.3d 363 (2d Dep’t 2016) (“Here, the defendant's willful and contumacious conduct can be inferred from his repeated failure to appear for a continued deposition without a reasonable excuse (citations omitted). Accordingly, the Supreme Court providently exercised its discretion by, in effect, granting that branch of the plaintiff's motion which was pursuant to CPLR 3126 to strike the defendant's answer. Under the circumstances of this case, the Supreme Court properly granted that branch of the plaintiff's motion which was for summary judgment setting aside the prenuptial agreement between the parties as unenforceable.”).

CPLR 3126 – Waiving right to seek sanctions by failing to move until after trial Flanagan v. Wolff, 136 A.D.3d 739, 26 N.Y.S.3d 102 (2d Dep’t 2016) (“Contrary to the appellant's contention, by failing to move for sanctions pursuant to CPLR 3126 until after trial, the appellant waived his claim that Juvet had failed to meet his disclosure obligations (citations omitted). Thus, the Supreme Court properly denied his motion pursuant to CPLR 3126 to dismiss the second third-party complaint. In any event, the appellant neither made a clear showing of willful and contumacious conduct on the part of Juvet to warrant the drastic remedy of dismissing the second third-party complaint, nor demonstrated that he had been substantially prejudiced in his ability to defend the second third-party action (citation omitted).”).

CPLR 3126 – Conditional order becomes absolute State Farm Mut. Auto. Ins. Co. v. Anikeyeva, 130 A.D.3d 1007, 14 N.Y.S.3d 458 (2d Dep’t 2015): “As a result of the defendants' failure to comply with the plaintiff's discovery demands on or before January 7, 2013, the conditional order became absolute (citations omitted). To avoid the adverse impact resulting from the conditional order becoming absolute, the defendants were required to demonstrate a reasonable excuse for their default in complying with the terms of the conditional order and a meritorious defense to the complaint (citations omitted). The defendants did neither. Accordingly, the Supreme Court properly granted the plaintiff's motion pursuant to CPLR 3215 for leave to enter a default judgment and properly entered judgment upon the order.”

CPLR 3126 – Negative inference charge Morales v. City of New York, 130 A.D.3d 792, 13 N.Y.S.3d 548 (2d Dep’t 2015): “Here, the Supreme Court, upon renewal and reargument, improvidently exercised its discretion in imposing the sanction of striking the City defendants' answer, as the plaintiff failed to establish that the City defendants' failure to preserve the subject tranquilizer gun was willful or contumacious (citations omitted), or that their conduct deprived him of the means of proving his claim (citations omitted). The City defendants' repair of the subject gun prejudiced all parties, but does not prevent the plaintiff from proving his claim (citation omitted). Under these circumstances, the Supreme Court, upon renewal and reargument, should have sanctioned the City defendants by directing that a negative inference charge be given against them at the trial of this action with respect to the condition of the tranquilizer gun at the time of the subject accident (citations omitted).”

CPLR 3126 – Order of preclusion results in grant of summary judgment Vitolo v. Suarez, 130 A.D.3d 610, 13 N.Y.S.3d 177 (2d Dep’t 2015): “The order dated November 28, 2012, contained a directive conditionally precluding the plaintiff from offering evidence of damages at trial unless she served a bill of particulars within 30 days of the order. It is undisputed that the plaintiff failed to serve a bill of particulars by the court-imposed deadline. Therefore, the conditional order became absolute, precluding the plaintiff from offering evidence of damages at trial (citation omitted). To be relieved of the adverse impact of the conditional order of preclusion, the plaintiff was required to demonstrate a reasonable excuse for her failure to comply with the order and the existence of a potentially meritorious cause of action (citations omitted). Here, the plaintiff failed to provide a reasonable excuse for her default, as her claim of law office failure was vague, conclusory, and unsubstantiated (citation omitted). Moreover, the

95 plaintiff's pattern of failing to comply with discovery demands, the preliminary conference order, a written stipulation, and the order dated November 28, 2012, supports an inference that such conduct was willful (citations omitted). Since the plaintiff failed to demonstrate a reasonable excuse for her failure to comply with the November 28, 2012, order, it is unnecessary to consider whether she demonstrated a potentially meritorious cause of action (citation omitted). Damages are a necessary element of a negligence claim which must be pleaded and proven (citation omitted). Thus, the order dated November 28, 2012, precluding the plaintiff from offering evidence of damages at trial, prevented her from making out a prima facie case (citation omitted). Accordingly, the Supreme Court properly granted the defendant's motion for summary judgment dismissing the complaint.”.

CPLR 3126 – Striking answer for willful and contumacious conduct Parker Waichman, LLP v. Laraia, 16 N.Y.S.3d 774 (2d Dep’t 2015): “Here, the Supreme Court providently exercised its discretion in granting that branch of the plaintiff's motion which was pursuant to CPLR 3126(3) to strike the defendant's answer upon his repeated and willful failure to provide substantive responses to the discovery demands of the plaintiff, even after the court issued orders directing him to do so, including a conditional preclusion order dated July 25, 2014. The defendant's failure to comply with the disclosure requests of the plaintiff, despite court conferences and hearings about such discovery, as well as court orders directing such disclosure, together with his contradictory excuses for his failure to comply, constitute willful and contumacious conduct (citations omitted).”); Lazar, Sanders, Thaler & Assoc., LLP v. Lazar, 16 N.Y.S.3d 326 (2d Dep’t 2015) (“Here, the Supreme Court providently exercised its discretion in granting that branch of the plaintiff's motion which was pursuant to CPLR 3126 to strike the appellants' answer. The appellants' willful and contumacious conduct can be inferred from their repeated failures, without an adequate excuse, to comply with discovery demands and the court's discovery orders (citations omitted).”.

CPLR 3126 – Waiver of objection by filing note of issue K-F/X Rentals & Equip., LLC v. FC Yonkers Assoc., LLC, 15 N.Y.S.3d 891 (2d Dep’t 2015): “The appellant waived any objection to the adequacy of P.J. Herman's disclosure by filing a note of issue and certificate of readiness prior to moving pursuant to CPLR 3126 for the imposition of a discovery sanction (citations omitted).”.

CPLR 3126 – Sufficiency of Affirmation of Good Faith Grasso v. McCoy, 113 A.D.3d 1096, 977 N.Y.S.2d 648 (4th Dep’t 2014); “Plaintiff commenced this action seeking, inter alia, imposition of a constructive trust on real property owned by defendant. Supreme Court erred in granting defendant's motion to strike the amended complaint pursuant to CPLR 3126 based upon plaintiff's failure to respond to discovery demands. The affirmation submitted by defendant's attorney in support of the motion failed to demonstrate that he ‘ha[d] conferred with counsel for [plaintiff] in a good faith effort to resolve the issues raised by the motion’ (citations omitted). The conclusory assertions in the affirmation do not refer to any specific efforts or communications with plaintiff's attorney ‘that would evince a diligent effort by [defendant] to resolve the discovery dispute’ (citations omitted), nor do those assertions support defendant's contention that he is excused from complying with the rule because ‘any effort to resolve the present dispute non-judicially would have been “futile”’ (citations omitted).”

CPLR 3126 – Preamble to Commercial Division Rules Via a January 6, 2015 Administrative Order, effective April 1, 2015, a preamble to the Commercial Division Rules was adopted (22 NYCRR §202.70 (g)), advising of the Commercial Division’s intention not to “tolerate” dilatory litigation practices. The preamble cautions that Commercial Division judges will impose sanctions and “other remedies” and directs litigants and counsel to review the various rules governing sanctions that can be assessed, including:  Rule 12, regarding non- appearance at a conference;  Rule 13(a), regarding adherence to discovery schedules;  Rule 24(d), which cautions appearing counsel to be fully familiar with the case in connection with motion practice;  CPLR 3126; and  22 NYCRR Part 130.

CPLR 3126 - Spoliation – Electronically Stored Information (Digest – January 2016) Spoliation Sanction for Negligent Destruction of Evidence: Who Has the Burden to Establish Relevance? Majority of Judges Agree That Defendant’s Conduct Amounted to Ordinary Rather Than Gross Negligence Certainly courts sanctioned parties for the destruction of relevant evidence well before email and the like. The ante has been upped, however, in the age of electronic discovery. In VOOM HD Holdings LLC v. EchoStar Satellite L.L.C., 93 A.D.3d 33 (1st Dep’t 2012), the First Department adopted the federal standard enunciated in the seminal case of Zubulake v. UBS Warburg LLC, 220 F.R.D. 212 (S.D.N.Y. 2003) with respect to the preservation of electronically stored information (ESI) and when the duty to preserve arises. The First Department ruled that this duty arises once a party “reasonably anticipates litigation,” at which time the party is required to place a “litigation hold” and suspend its routine document destruction policy. The fact pattern in Pegasus Aviation I, Inc. v. Varig Logistica S.A., 2015 N.Y. Slip Op. 09187 (Dec. 15, 2015) is quite involved. Briefly, plaintiff Pegasus sued VarigLog for breach of contract and conversion, and the MatlinPatterson (MP) defendants for VarigLog’s conduct on an alter ego theory. The discovery issue concerned the plaintiff’s document request, which sought ESI concerning the plaintiff’s claims and the relationship between VarigLog and the MP defendants. Although VarigLog produced some documents, a dispute arose as to the extent of the production, particularly of the ESI, resulting in the appointment of a referee. At the first conference before the referee in 2010, it was revealed that VarigLog had no preservation system for its emails for the period of 2000 to 2008 and that only in 2008 did it establish a backup system. Thereafter, it suffered one or more computer “crashes,” which impaired its ability to produce the requested ESI; data recovery efforts were unsuccessful. Pegasus moved for an order holding VarigLog in contempt for failing to comply with court orders and striking its answer. In addition, Pegasus sought to impose a trial adverse inference against the MP defendants for failure to preserve ESI and paper records in its subsidiary VarigLog’s possession. The theory was that the MP defendants controlled VarigLog and thus had a duty to, but did not, impose a litigation hold to preserve certain documents. There are three elements necessary to support an award of sanctions for the spoliation of evidence. First, it must be established that the party who controls the evidence had an obligation to preserve at the time of the spoliation. Second, the evidence was destroyed with a “culpable

97 state of mind.” Third, the spoliated evidence was relevant to the party’s claim or defense “such that the trier of fact could find that the evidence would support that claim or defense.” VOOM HD Holdings LLC, 93 A.D.3d at 45. With respect to the final prong, there is a rebuttable presumption that the evidence is relevant if the destruction is done intentionally or willfully or is the result of gross negligence. Conversely, if the spoliation was merely negligent, the party seeking sanctions has the burden to establish relevancy. Id. The Supreme Court granted the plaintiff’s motion, finding that VarigLog’s failure to issue the litigation hold constituted gross negligence as a matter of law, that the MP defendants were “in control” of VarigLog for purposes of placing the litigation hold and that their failure to do so also amounted to gross negligence. As a result, the lower court struck VarigLog’s answer and imposed an adverse inference sanction against the MP defendants. A majority of the Appellate Division agreed with the Supreme Court’s finding as to control with respect to the MP defendants but rejected the lower court’s holding that the MP defendants’ conduct amounted to gross negligence per se, concluding that the MP defendants’ actions constituted, at most, simple negligence. In addition, the majority concluded that the plaintiff failed to prove the relevance of the ESI and thus the adverse inference sanction was not merited. Justice Andrias concurred with the majority on the issues of control, the duty to preserve and that the MP defendants’ conduct did not constitute gross negligence. However, he concluded that the lower court had the discretion to impose a spoliation sanction for the negligent destruction of evidence and believed the case should have been remanded to determine the prejudice the plaintiff suffered and which sanction, if any, should be imposed. Justice Richter dissented in full, concluding that the MP defendants were grossly negligent and that the adverse inference sanction was appropriate. On appeal, a majority of the New York State Court of Appeals reversed the Appellate Division order. Although the majority agreed that the MP defendants were not guilty of gross negligence, holding that their failure to issue a litigation hold did not constitute gross negligence per se, it found that the Appellate Division majority ignored the plaintiff’s arguments concerning the relevance of the discovery. Thus, the Court remanded the matter to the Supreme Court to determine the relevance issue. The Court’s dissent, written by Judge Stein and joined by Judge Rivera, concluded that the spoliation resulted from gross negligence, the burden should have been on the MP defendants to rebut the presumption and the case should have been remitted to the Appellate Division to determine whether the MP defendants did indeed rebut the presumption. So, while all 12 judges involved in this case agreed on the control issue, eight believed the MP defendants were guilty of ordinary negligence, and four thought their conduct rose to the level of gross negligence. Alas, reasonable people can disagree in assessing a factual scenario! The irony is that the federal standard concerning the preservation of ESI, upon which VOOM relied and which was accepted here by the Court of Appeals, has changed significantly as a result of the December 1, 2015 amendment to FRCP 37(e). Most relevant here, the amendment limits the imposition of an adverse inference instruction “only upon finding that the party acted with the intent to deprive another party of the information’s use in the litigation.”

CPLR 3126 – Spoliation Lentini v. Weschler, 120 A.D.3d 1200, 992 N.Y.S.2d 135 (2d Dep’t 2014): “Here, the Supreme Court providently exercised its discretion in striking the defendant's answer and awarding the plaintiff summary judgment on the issue of liability since the defendant paved over

98 the walkway after receiving notice that the plaintiff intended to inspect it and after his own expert was afforded an opportunity to inspect the walkway prior to it being covered in cement (citation omitted). Further, the plaintiff demonstrated that the condition of the ground which was underneath the bricks was central to the prosecution of her case and that its permanent change in character preventing inspection and analysis was prejudicial, since she would be unable to rely on other evidence to prove her claims (citations omitted).” Biniachvili v. Yeshivat Shaare Torah, Inc., 120 A.D.3d 605, 990 N.Y.S.2d 891 (2d Dep’t 2014): “Since the Supreme Court has broad discretion in determining what, if any, sanction should be imposed for spoliation of evidence (citations omitted), it may, under appropriate circumstances, impose a sanction even if the destruction occurred through negligence rather than wilfulness, and even if the evidence was destroyed before the spoliator became a party, provided the spoliator was on notice that the evidence might be needed for future litigation (citations omitted). Here, the Supreme Court providently exercised its discretion in striking the defendant's answers and thereupon awarding the plaintiffs summary judgment on the issue of liability pursuant to CPLR 3126. The record demonstrates that the defendant disposed of the grate involved in the accident after having received a written demand from one of the infant plaintiff's attorneys that the grate be preserved for inspection by the plaintiffs and their experts. Moreover, the plaintiffs demonstrated that they were unduly prejudiced by the defendant's conduct in disposing of the grate.”

CPLR 3126 – Striking Answer Stone v. Zinoukhova, 119 A.D.3d 928, 990 N.Y.S.2d 567 (2d Dep’t 2014): “Here, the plaintiff moved to strike the answer insofar as asserted by the defendant Roger Powell (hereinafter the defendant) almost three years after commencing this action. At that time, the defendant still had not appeared for a deposition, despite numerous ‘so-ordered’ extensions entered into between counsel for the parties, and in violation of a court order directing him to appear for such deposition. In opposition to the motion, defense counsel's investigator stated that he had been unable to locate the defendant. Under these circumstances, the Supreme Court providently exercised its discretion in granting that branch of the plaintiff's motion which was to strike the answer insofar as asserted by the defendant and to direct an inquest against him (citations omitted)”.

CPLR 3132 (Digest – June 2015) Adoption of Commercial Division Rule 11-a’s 25 Limited Interrogatories Unless otherwise specified in the preliminary conference order, only 25 interrogatories may be served in any action, including consolidated actions. Moreover, unless otherwise provided by court order, the interrogatories are to be limited to the identity of knowledgeable witnesses; the computation of categories of damages; the existence, custodian, location and general description of material and necessary documents, including insurance agreements; and other physical evidence. Further interrogatories can be served only upon consent of the parties or by court order, for good cause shown. Finally, contention interrogatories may be served at least 30 days before the discovery cutoff, at the conclusion of other discovery, unless the court orders otherwise.

CPLR 3211(a)(1) – Spoleta Construction, LLC v. Aspen Ins. UK Ltd., 27 N.Y.3d 933(2016) (Digest – April 2016) CPLR 3211(a)(1) Motion to Dismiss Denied in Declaratory Judgment Action Against Insurer Insurer Does Not Establish Defense of Late Notice of Occurrence as Matter of Law CPLR 3211(a)(1) provides for a motion to dismiss on the ground that “a defense is founded upon documentary evidence.” In order for such a motion to be successful, the documentary evidence must conclusively establish the defense as a matter of law. Spoleta Constr., LLC v. Aspen Ins. UK Ltd., 2016 N.Y. Slip Op. 02121 (March 24, 2016), was a declaratory judgment action in which the plaintiff, Spoleta, sought a declaration that the defendant insurer, Aspen, was obligated to defend and indemnify Spoleta in an underlying personal injury action brought by an employee of the plaintiff’s subcontractor, Hub-Langie (HL). The subcontract provided that Spoleta would be named as an additional insured on H-L’s general liability insurance policy and that H-L would defend and indemnify Spoleta for all bodily injury or property damage claims arising out of H-L’s work. Shortly after receiving notice of the underlying occurrence, Spoleta’s insurer forwarded a general demand letter to H-L concerning the claim, which sought H-L’s insurer’s contact information and insurance policy number, and requested that it place its insurer on notice. It also stated that H-L had agreed to defend and indemnify Spoleta and hold it harmless. H-L’s broker forwarded the letter to Aspen, together with a general liability notice of occurrence/claim form. After the underlying personal injury action was commenced months later, Spoleta’s counsel wrote to Aspen advising that Spoleta had not received a response to its earlier initial demand letter. This letter made specific reference to Spoleta’s status as an additional insured and expressly demanded that H-L defend and indemnify Spoleta. Aspen denied the claim on late notice grounds, arguing that the earlier initial letter from Spoleta was directed at H-L, not to Aspen as an additional insured. Aspen had denied coverage to H-L for unrelated reasons. Spoleta then brought this declaratory judgment action against Aspen, among others, and Aspen moved to dismiss pursuant to CPLR 3211(a)(1) based on documentary evidence. Although the lower court granted the motion, the Appellate Division reversed, holding that the documentary evidence submitted by Aspen did not establish its defense as a matter of law under CPLR 3211(a)(1). At the relevant time, the law in New York was that late notice vitiated a primary insurance policy without a showing of prejudice. Aspen maintained that Spoleta’s initial letter was not an acceptable “notice of an occurrence” under the policy. The New York State Court of Appeals rejected the argument that the documentary evidence proffered by Aspen established as a matter of law that Spoleta did not provide timely notice of occurrence. In fact, the Court found that the initial letter requested that H-L place its insurer on notice of the claim and provided some information about the claim, including details that the policy required in a notice of occurrence: Aspen claims that it interpreted Spoleta’s initial letter as seeking only a defense and indemnity from Hub-Langie pursuant to the indemnification provision of the subcontract because Spoleta did not expressly state that it was seeking coverage as an additional insured. However, the letter itself did not identify the indemnification provision of the subcontract as the basis for the communication – it simply requested a defense and indemnity under the contract without specifically invoking either the indemnification or additional insurance provisions. Moreover, the letter requested that Hub-Langie “place

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[its] insurance carrier on notice of this claim” (emphasis added) and provided information about the identity of the injured employee, as well as the date, location and general nature of the accident. That is, in addition to requesting that the insurer be put on notice, the letter provided the details that the policy required to be included by an insured in notice of an occurrence. Id. at *3. Thus, the Court ruled that the Appellate Division properly denied the insurer’s motion and reinstated the complaint.

CPLR 3211 – Standing to sue Brunner v. Estate of Chaim Lax, 137 A.D.3d 553, 27 N.Y.S.3d 148 (1st Dep’t 2016) (“Defendants failed to meet their burden on this pre-answer motion to dismiss pursuant to CPLR 3211(a)(3) to establish prima facie that plaintiffs have no standing to sue on the promissory note (citation omitted). Defendants contend that the note had not been validly assigned to plaintiffs prior to the commencement of this action (citation omitted). However, an assignment need not be in writing, but can be effected by physical delivery (citations omitted). The complaint alleges, ‘As of March 2014, [plaintiff] JBAM [Realty LLC] is in physical possession of the Note.’ While this allegation could have been better phrased, construed liberally and in the light of ‘every possible favorable inference’ (citation omitted), it can be read as saying, ‘Since March 2014, JBAM has been in physical possession of the Note’ — especially because plaintiffs' counsel represented at oral argument that his clients had physical possession of the note at the time they commenced their lawsuit. This action was commenced on or about March 31, 2014.”). HSBC Bank USA, NA v. Halls, 136 A.D.3d 752, 24 N.Y.S.3d 752 (2d Dep’t 2016) (“An argument that a plaintiff lacks standing, if not asserted in the answer or in a pre-answer motion to dismiss the complaint, is waived pursuant to CPLR 3211(e) (citations omitted). Defenses waived under CPLR 3211(e) can nevertheless be interposed in an answer amended by leave of court pursuant to CPLR 3025(b), as long as the amendment does not cause the other party prejudice or surprise resulting from the delay, and is not palpably insufficient or patently devoid of merit (citations omitted). A plaintiff in a mortgage foreclosure action has standing where it is the holder or assignee of the underlying note at the time the action is commenced (citations omitted). Either a written assignment of the underlying note or the physical delivery of the note prior to the commencement of the foreclosure action is sufficient to transfer the obligation (citations omitted). Contrary to MERS' contention, the Supreme Court providently exercised its discretion in denying its motion for leave to amend its answer to add the defense that the plaintiff lacked standing. As the Supreme Court properly determined, such a defense was patently devoid of merit (citations omitted).”). BAC Home Loans Servicing, LP v. Bixby, 135 A.D.3d 1009, 22 N.Y.S.3d 664 (3d Dep’t 2016) (“Defendant raised the affirmative defense of standing and, as such, plaintiff will ultimately be required to prove that it has standing in order to obtain a judgment of foreclosure (citations omitted). ‘However, on a defendant's motion [for summary judgment], the burden is on the defendant to establish, prima facie, the plaintiff's lack of standing as a matter of law’ (citations omitted). A plaintiff has standing to bring a mortgage foreclosure action if, ‘at the time the action was commenced, [it] was the holder or assignee of the mortgage and the holder or assignee of the underlying note’ (citations omitted). Defendant raised issues as to whether the formal assignment of the mortgage to plaintiff had been properly accomplished. She did not, however, provide any proof to call into question the claim of plaintiff that it was the owner and

101 holder of the note. A mortgage generally passes as an incident to the note when the latter is assigned, making ‘the note . . . the dispositive instrument that conveys standing to foreclose under New York law’ (citations omitted). Inasmuch as defendant failed to show why that general proposition would be inapplicable here, she did not satisfy her initial burden of demonstrating as a matter of law that plaintiff lacked standing to commence this action, and her motion should have been denied without regard to the sufficiency of the papers submitted in opposition (citations omitted). Finally, we decline plaintiff's invitation to search the anemic record before us and grant it summary judgment (see CPLR 3212 [b]).”).

CPLR 3211 – Not improper conversion to summary judgment motion Matter of Tarantino v. New York City Police Dept., 136 A.D.3d 598, 25 N.Y.S.3d 601 (1st Dep’t 2016) (“The court properly denied the petition and granted the cross motion to dismiss based on mootness. Respondents were not in possession of the materials sought in petitioner's FOIL request (see Public Officers Law § 89[3][a]), as respondents sufficiently established by submitting their attorney's certification to that effect (citations omitted). We have considered and rejected petitioner's contention that respondents failed to preserve that argument. The court's reliance on the certification in the attorney's affirmation in this circumstance did not constitute an improper conversion of respondents' cross motion to one for summary judgment without notice pursuant to CPLR 3211(c).”).

CPLR 3211 – Improper conversion without proper notice Fedele v. Qualified Personal Residence Trust of Doris Rosen Margett, 137 A.D.3d 965, 27 N.Y.S.3d 613 (2d Dep’t 2016) (“The plaintiffs correctly contend that the Supreme Court improperly converted that branch of the Hospital's motion which was to dismiss the amended complaint into a motion for summary judgment without adequately notifying the parties pursuant to CPLR 3211(c). The plaintiffs ‘were not put on notice of their obligation to make a complete record and to come forward with any evidence that could possibly be considered,’ or given an opportunity to do so (citation omitted). The record does not establish that the plaintiffs were laying bare their proof (citations omitted) or that either party deliberately charted a summary judgment course (citations omitted). Yet, the Supreme Court ‘effectively treated the motion as one for summary judgment, which requires disclosure of all of the evidence on the disputed issues’ (citation omitted). Since the parties have briefed the merits of the motion on appeal, in the interests of judicial economy (citation omitted), this Court will determine the motion, and in so doing, apply the standards applicable to a motion to dismiss pursuant to CPLR 3211(a)(7).”).

CPLR 3211 – CPLR 3211(d) cannot be used to remedy defects in a pleading. Naderi v. North Shore-Long Is. Jewish Health Sys., 135 A.D.3d 619, 24 N.Y.S.3d 55 (1st Dep’t 2016) (“Plaintiff's cross motion for discovery pursuant to CPLR 3211(d) was correctly denied, as "he may not use discovery . . . to remedy the defects in his pleading" (citation omitted).)”).

CPLR 3211 – Amendment by leave can preserve defense despite CPLR 3211(e) waiver provisions Notwithstanding the waiver provisions of CPLR 3211(e), a defense can be “interposed in an answer amended by leave of court pursuant to CPLR 3025(b), as long as the amendment does not cause the other party prejudice or surprise resulting directly from the delay, and is not

102 palpably insufficient or patently devoid of merit”. Bank of N.Y. Mellon v. Aquino, 131 A.D.3d 1186, 16 N.Y.S.3d 770 (2d Dep’t 2015) (finding proposed standing defense patently devoid of merit). See also Dixon v. Chang, 137 A.D.3d 957, 27 N.Y.S.3d 239 (2d Dep’t 2016) (“However, under the circumstances of this case, the Supreme Court should have denied Kelleher's motion with leave to amend his answer to add the affirmative defense of discharge in bankruptcy. Even when a defense is waived under CPLR 3211(e), ‘it can nevertheless be interposed in an answer amended by leave of court pursuant to CPLR 3025(b), as long as the amendment does not cause the other party prejudice or surprise resulting directly from the delay, and is not palpably insufficient or patently devoid of merit’ (citations omitted). Under the circumstances of this case, we find that Kelleher's affirmative defense of discharge in bankruptcy is neither patently insufficient nor palpably devoid of merit, and there would be little or no prejudice resulting from any delay in granting leave to amend his answer to add this affirmative defense (citation omitted).”).

CPLR 3211 – Statute of Frauds (Digest – September 2015) Application of Statute of Frauds Were Services Performed to Inform Defendants Whether to Negotiate or in Furtherance of the Negotiations? Early in our law school “daze,” we encountered the “statute of frauds” in our first-year contracts course. Simply stated, to be enforceable certain types of agreements cannot be oral and, thus, must be in writing. The purpose of the statute is to prevent perjury and fraud and to preserve the integrity of contracts. In JF Capital Advisors, LLC v. Lightstone Grp., LLC, 2015 N.Y. Slip Op. 05622 (July 1, 2015), the N.Y. Court of Appeals was concerned with a lesser known provision, that is, General Obligations Law § 5-701(a)(10) (GOL), relating to negotiating services for the purchase of real estate or of a business opportunity or business. Specifically, it provides, in pertinent part, that a. Every agreement, promise or undertaking is void, unless it or some note or memorandum thereof be in writing, and subscribed by the party to be charged therewith, or by his lawful agent, if such agreement, promise or undertaking: * * * 10. Is a contract to pay compensation for services rendered in negotiating a loan, or in negotiating the purchase, sale, exchange, renting or leasing of any real estate or interest therein, or of a business opportunity, business, its good will, inventory, fixtures or an interest therein, including a majority of the voting stock interest in a corporation and including the creating of a partnership interest. “Negotiating” includes procuring an introduction to a party to the transaction or assisting in the negotiation or consummation of the transaction. . . . The subject issue involved the analysis of investment opportunities in connection with certain hotel/waterpark properties. Initially, the parties entered into a written agreement in which the plaintiff supplied financial and analytical services to the defendants, for which the plaintiff was paid. Although the defendants did not purchase the properties, the holdings became the subject of an online auction, and the seller sought to sell the properties separately. As a result, the defendants again sought the plaintiff’s services, including financial and market analysis, in connection with two of the 10 hotel/waterpark properties and other projects. There was no written contract, and the defendants did not compensate the plaintiff. The plaintiff then brought

103 this lawsuit, asserting various causes of action, including those for quantum meruit and unjust enrichment. The question presented was whether the plaintiff’s compensation claim for “advisory services” ran afoul of the statute of frauds. The answer focused on whether “the services for which plaintiff seeks compensation were tasks performed so as to inform defendants whether to negotiate for the properties at issue, or whether those services were performed as part of or in furtherance of negotiation for the subject properties.” JF Capital Advisors, 2015 N.Y. Slip Op. 05622 at *5 (emphasis in original). The Court noted that GOL § 5-701(a)(10) bars oral agreements for compensation for services provided in connection with the “negotiation” of the purchase of real estate or a business opportunity or business. Thus, the Court found that the lower court had properly dismissed the portions of the complaint relating to projects where the plaintiff sought compensation for services in furtherance of the defendants’ negotiation of a business opportunity or in anticipation of a possible bid. Conversely, the lower court properly refused to dismiss claims relating to projects where the plaintiff’s services were to inform the defendants “whether to partake in certain business opportunities, that is, whether to negotiate.” Id.

CPLR 3211 – Standing (Digest – August, 2015) Nothing Standing Between the Plaintiff and the Note Standing to Sue in a Mortgage Foreclosure Action Governed by Whether the Plaintiff Possessed the Note When the Action Was Commenced In Aurora Loan Servs., LLC v. Taylor, 2015 N.Y. Slip Op. 04872 (June 11, 2015), a mortgage foreclosure action, it was undisputed that the Taylors were obligated to make payments on an adjustable rate note secured by a mortgage executed on their property, and that they defaulted on those payments. What was at issue was whether the plaintiff had standing to sue. The loan in this case did not remain with the original bank but was made part of a residential- backed securitization trust. The note was then transferred from entity to entity until the plaintiff here, Aurora Loan Services, LLC, took physical custody of the original note on May 20, 2010, a mere four days before it commenced this action. The Taylors moved for summary judgment on the ground that the plaintiff lacked standing to bring the foreclosure action; the plaintiff cross-moved for summary judgment. Aurora’s legal liaison submitted an affidavit stating, among other things, that the original note was in Aurora’s custody on May 20, 2010. The Taylors argued that for Aurora to have standing, it had to possess the mortgage when the action was commenced. They asserted that Aurora did not possess the mortgage and had no leg to stand on. The N.Y. Court of Appeals disagreed, holding that physical delivery of the note to the plaintiff prior to commencement of a foreclosure action can be sufficient, under certain circumstances, to transfer the mortgage obligation and create standing: This conclusion follows from the fact that the note, and not the mortgage, is the dispositive instrument that conveys standing to foreclose under New York law. In the current case, the note was transferred to Aurora before the commencement of the foreclosure action – that is what matters. A transfer in full of the obligation automatically transfers the mortgage as well unless the parties agree that the transferor is to retain the mortgage. The Taylors misconstrue the legal principle that “an entity with a mortgage but no note lack[s] standing to foreclose” to also mean the opposite – that an entity with a note but no mortgage lacks standing. Once a note is transferred, however, “the mortgage

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passes as an incident to the note.” “[A]ny disparity between the holder of the note and the mortgagee of record does not stand as a bar to a foreclosure action because the mortgage is not the dispositive document of title as to the mortgage loan; the holder of the note is deemed the owner of the underlying mortgage loan with standing to foreclose.” Accordingly, the Taylors’ argument that Aurora lacked standing because it did not possess a valid and enforceable mortgage as of the commencement of this action is simply incorrect. Id. at *4 (citations omitted). Ultimately, while the Court acknowledged that Aurora’s submission on the motion could have been more complete, it found that Aurora adequately proved that it possessed the note before it commenced the action and had standing to sue. Thus, it was the Taylors who had no legs to stand on!

CPLR 3211 – Standing (Digest – December 2015) Special Injury Requirement: No Need to Stand Alone Harm to More Than One Person Does Not Defeat Standing In Soc’y of Plastics Indus. v. Cnty. of Suffolk, 77 N.Y.2d 761 (1991), the New York State Court of Appeals provided a framework for a plaintiff to establish that it has standing in land use matters generally, and under the State Environmental Quality Review Act (SEQRA) in particular. Thus, the plaintiff must show that it “would suffer direct harm, injury that is in some way different from that of the public at large.” Most recently, in Sierra Club v. Vill. of Painted Post, 2015 N.Y. Slip Op. 08452 (Nov. 19, 2015), the New York State Court of Appeals sought to “elucidate and further address the ‘special injury’ requirement of standing.” Id. at *1. The question presented here concerned a resolution adopted to enter into a bulk water sales agreement between the Village and SWEPI, LP, a subsidiary of Shell Oil Co. The agreement provided for the sale of 314 million gallons of water in one-million-gallon-a-day increments from the Village water system to SWEPI, with an option to increase that amount. The Village determined that the water sale agreement was exempt from review under SEQRA. There was a separate resolution approving a lease agreement for the construction of a water transloading facility, which was to be used as a filling station for the water to be withdrawn and transported on a rail line to Pennsylvania. The Village concluded that the lease would not result in a significant adverse impact to the environment. After construction of the water-loading facility began, petitioners brought this Article 78 proceeding seeking to annul, among other things, the water sale agreement, lease and the Village determinations. The proceeding also sought to enjoin the Village from entering into the water sale agreement or lease, or any shipments or work at the rail-loading facility site, until the Village had complied with federal and state laws. The petitioners, including various individual residents of the Village, as well as not-for-profit organizations, alleged that the Village did not comply with SEQRA’s strict procedural mandates. One of the longtime resident petitioners, John Marvin, alleged that he resided “‘less than a block from the proposed rail loading facility, which is visible from his doorstep’ and that he and his wife would be ‘adversely affected by the significant rail traffic and increased noise and air contamination caused by the project.’” Id. at *3. The respondents moved to dismiss, inter alia, on standing grounds. The petitioners opposed the motion, arguing that Marvin heard the (water) train noises frequently, “‘sometimes every night’ and that . . . ‘[t]he noise was so loud it woke [him] up and kept [him] awake

105 repeatedly.’ Marvin further stated that the ‘noise was much louder than the noise from other trains that run through the [V]illage’ and he was concerned that the ‘increased train noise will adversely impact [his] quality of life and home value.’” Id. The lower court searched the record, granted summary judgment to petitioners, issued an injunction and denied respondents’ motion to dismiss. The court found that the organizations and the individuals alleged only general harm, except Marvin whose “undifferentiated complaint of train noise, however, may be considered in the context of an industrial and rail facility which fell into disuse for a considerable period of time prior to construction of the subject project, and thus his complaint of rail noise is availing to show harm distinct from that suffered by the general public.” Id. at *4. The Appellate Division reversed, finding that Marvin did not allege complaints with respect to noise from the transloading facility itself. Thus, it concluded that [i]nasmuch as we are dealing with the noise of a train that moves throughout the entire Village, as opposed to the stationary noise of the transloading facility, we conclude that Marvin will not suffer noise impacts “different in kind or degree from the public at large.” Id. The New York State Court of Appeals reversed, finding that the Appellate Division had applied an overly restrictive analysis of the requirement to show harm “different from that of the public at large.” The Court stressed that the fact that more than one person can be harmed directly does not, in and of itself, defeat standing. In other words, the harm does not have to be unique. Instead, the alleged harm must be specific to the individuals who allege it, and must be “different in kind or degree from the public at large” (Society of Plastics at 778), but it need not be unique. Here, petitioner Marvin is not alleging an indirect, collateral effect from the increased train noise that will be experienced by the public at large, but rather a particularized harm that may also be inflicted upon others in the community who live near the tracks. Id. Thus, the key issue is whether the injuries alleged are “real and different from the injury most members of the public face.” The Court of Appeals concluded that Marvin had alleged such injuries: [H]is allegation about train noise caused by the increased train traffic keeping him awake at night, even without any express differentiation between the train noise running along the tracks and the noise from the transloading facility, would be sufficient to confer standing. Id.

CPLR 3211/301 – Absence of elements of cause of action is not a lack of subject matter jurisdiction Garcia v. Government Employees Ins. Co., 130 A.D.3d 870, 14 N.Y.S.3d 116 (2d Dep’t 2015): “The Supreme Court properly, in effect, upon reargument, adhered to its original determination denying that branch of the defendant's motion which was to dismiss the complaint pursuant to CPLR 3211(a)(2) for lack of subject matter jurisdiction. Subject matter jurisdiction ‘refers to objections that are fundamental to the power of adjudication of a court.' Lack of jurisdiction' should not be used to mean merely that elements of a cause of action are absent,' but that the matter before the court was not the kind of matter on which the court had power to rule’

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(citation omitted). The Supreme Court has subject matter jurisdiction to consider this action, brought by the plaintiff pursuant to Insurance Law § 3420(a)(2) to recover the amount of an unsatisfied judgment against the defendant's insured. Whether the subject umbrella liability insurance policy was in effect at the time of the underlying accident ‘is a substantive element of the cause of action and not a jurisdictional element’ (citation omitted).”

CPLR 3211 – Standing objection/defense Deutsche Bank Trust Co. Ams. v. Vitellas, 131 A.D.3d 52, 13 N.Y.S.3d 163 (2d Dep’t 2015): “Under New York law, in order to have standing to commence a foreclosure action, a plaintiff generally must be the holder or assignee of the note which the mortgage secures. On this appeal, we are asked to consider whether a note discharged in bankruptcy can be subsequently assigned, with the mortgage passing incident thereto, so as to convey standing to the assignee. For the reasons that follow, we answer the question in the affirmative. Although a bankruptcy discharge extinguishes a debtor's personal liability on a mortgage note, it does not impair a creditor's right to assign that note, and an assignee who holds the discharged note and mortgage has standing to bring a foreclosure action and seek payment through the sale of the mortgaged property. Accordingly, even if the note at issue in this case was assigned or delivered to the plaintiff after it was discharged in bankruptcy, a fact which is not clear from this record, the defendant homeowners failed to establish their entitlement to dismissal of the complaint on the ground that the plaintiff lacked standing.”

CPLR 3211(a)(1) – Documentary evidence conclusively established that plaintiff’s second cause of action alleging fraud had no merit Etzion v. Etzion, 138 A.D.3d 678, 29 N.Y.S.3d 422 (2d Dep’t 2016) (“The Supreme Court also properly granted that branch of the defendants' motion which was pursuant to CPLR 3211(a)(1) to dismiss the second cause of action of the second amended complaint, which alleged fraud based solely upon Rafael's alleged deliberate failure to disclose the Branford offer to the plaintiff. ‘To succeed on a motion to dismiss based upon documentary evidence pursuant to CPLR 3211(a)(1), the documentary evidence must utterly refute the plaintiff's factual allegations, conclusively establishing a defense as a matter of law’ (citations omitted). Here, the documentary evidence submitted by the defendants conclusively established that Rafael had no duty to disclose the Branford offer to the plaintiff. In the stipulation of settlement, which was dated June 8, 2005, Rafael represented that he had no active deals or pending negotiations relating to the sale or reorganization of Variety or any related entity as of the date of the memorandum agreement. The memorandum agreement was dated March 22, 2005, and Rafael did not receive the Branford offer until May 25, 2005. Therefore, neither the memorandum agreement nor the stipulation of settlement imposed a duty upon Rafael to disclose the Branford offer to the plaintiff (citations omitted).”).

CPLR 3211(a)(4) – Dismissal on ground that another action is pending – majority finds no substantial identity of parties Cellino & Barnes, P.C. v. Law Off. of Christopher J. Cassar, P.C., 2016 NY Slip Op 04823 (4th Dep’t 2016) (Majority: “‘While complete identity of parties is not a necessity for dismissal under CPLR 3211 (a) (4) . . . , there must at least be a substantial “identity of parties which generally is present when at least one plaintiff and one defendant is common in each action”’ (citations omitted). Here, in the underlying personal injury action, the parties are the client and

107 the motorist. The parties in the instant action, however, are plaintiff and defendants. There are thus no common parties to either action nor the requisite substantial identity of parties (citations omitted). Further, although we agree with the dissent that defendants were not required to commence a separate action to determine and enforce a charging lien pursuant to Judiciary Law § 475 (citation omitted), we conclude that it does not follow that the court abused its broad discretion in refusing to dismiss the action properly commenced by plaintiff in Erie County before similar relief was sought within a pending action between different parties in Suffolk County (citations omitted).”; Dissent: “Moving now to the merits, during oral argument of this appeal, both parties agreed that: (1) the relief—attorney's fees—sought in Suffolk County was the same as that sought in Erie County; and (2) it affected the same two parties, i.e., plaintiff and defendants. It was plaintiff's primary contention that there was simply no other ‘action’ pending in Suffolk County in order to trigger CPLR 3211 (a) (4). Interestingly, the majority does not address whether the relief sought in both venues is substantially the same. Instead, the majority concludes that ‘[t]here are . . . no common parties to either action nor the requisite substantial identity of parties.’ I disagree. Although the captions of the two actions do not match, there is an action pending in Suffolk County concerning the same relief that affects the same two parties, i.e., not the underlying personal injury action itself, but the proceeding brought within that action by defendants. There is no dispute that within the underlying personal injury action, defendants, by way of order to show cause and supporting petition, sought a resolution of the issue concerning the attorney's fees between plaintiff and defendants. On that same day, plaintiff commenced an action in Erie County also seeking, inter alia, a resolution of the issue concerning the attorney's fees. As conceded by the majority, the ‘defendants were not required to commence a separate action to determine and enforce a charging lien pursuant to Judiciary Law § 475.’ As I see it, defendants have been faulted for following common and accepted procedure inasmuch as defendants' attorney's fees application in Suffolk County clearly constitutes another action pending between the same parties for the same relief (see CPLR 3211 [a] [4]).”).

CPLR – 3211(a)(5); 208 – Insanity toll – overall inability to function in society Heckl v. Walsh, 130 A.D.3d 1447, 15 N.Y.S.3d 521 (4th Dep’t 2015): “Contrary to defendant's contention, Supreme Court properly directed a hearing pursuant to CPLR 208 on its motion to dismiss pursuant to CPLR 3211 (a) (5) rather than summarily deciding the motion in its favor. The record contains conflicting evidence with respect to whether Aida Corey was ‘unable to protect [her] legal rights because of an over-all inability to function in society’ during the relevant period following the accrual of the causes of action (citations omitted). Contrary to defendant's further contention, in view of the undisputed medical evidence presented at the hearing, including the diagnosis of irreversible and permanent dementia, the court properly concluded that Aida Corey continuously suffered from an ‘over-all inability to function in society’ since July 11, 2005 and thus that the statute of limitations on any causes of action are tolled under CPLR 208 (citations omitted). Finally, we reject defendant's contention that the court erred during the hearing in excluding the contents of Aida Corey's communications with her attorneys based on attorney-client privilege and thus that it is entitled to a new hearing. Contrary to defendant's contention, there was no waiver of the attorney-client privilege based on the assertion of the insanity toll under CPLR 208. Plaintiffs did not place the subject matter of the privileged communications at issue, nor can it be said that ‘ invasion of the privilege is required to determine the validity of the client's claim or defense and application of the privilege would deprive [defendant] of vital information’ (citation omitted).”

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CPLR 3211/3018 – Properly and timely asserting statute of limitations objection/defense Wan Li Situ v. MTA Bus Co., 130 A.D.3d 807, 14 N.Y.S.3d 89 (2d Dep’t 2015): “Contrary to the Supreme Court's determination, a defendant who wishes to assert the statute of limitations as a defense is not limited to asserting it by way of a pre-answer motion. The defendant may instead choose to raise that defense in its answer, and either move on that ground later in a motion for summary judgment, or wait until trial to have it determined (citations omitted ). Here, the defendant did not make a pre-answer motion to dismiss the complaint, but raised the statute of limitations as an affirmative defense in its answer. Then, after the note of issue was filed, the defendant moved to dismiss the complaint on that ground. Although the defendant denominated its motion as a motion pursuant to CPLR 3211(a) to dismiss the complaint, rather than as a motion pursuant to CPLR 3212 for summary judgment dismissing the complaint, that procedural irregularity should have been excused under CPLR 2001, upon proper notice to the parties (citations omitted).”

CPLR 3211(a)(1) Documentary Evidence Amsterdam Hospitality Group, LLC v. Marshall-Alan Assoc., Inc., 120 A.D.3d 431, 992 N.Y.S.2d 2 (1st Dep’t 2014): Emails can qualify as documentary evidence if they meet the “essentially undeniable test”; majority finds that the email at issue failed test.

CPLR 3211(a)(5) – Timing of assertion of statute of limitations defense Meredith v. Siben & Siben, LLP, 130 A.D.3d 791, 13 N.Y.S.3d 520 (2d Dep’t 2015): “Initially, contrary to the plaintiff's contention, the defendant did not waive its statute of limitations defense, asserted in its answer, by failing to make a pre-answer motion to dismiss (citation omitted). Rather, a statute of limitations defense may be asserted after joinder of issue in a motion for summary judgment pursuant to CPLR 3212 (citation omitted). Although the defendant's motion was made pursuant to 3211(a)(5), the parties clearly charted a summary judgment course by submitting extensive documentary evidence and factual affidavits laying bare their proof (citations omitted). Thus, the defendant's motion is properly treated as a motion for summary judgment dismissing the complaint as time-barred.”

CPLR 3211(a)(7)/3212 – Finerty v. Abex Corp., 2016 N.Y. Slip Op 03411 (2016) (Digest – June 2016) Liability of Non-Manufacturing Parent Company for Acts of Wholly Owned Subsidiary Manufacturer of Product Court Holds That Only Avenue of Liability Can Be Through Piercing the Corporate Veil Theory In Finerty v. Abex Corp., 2016 N.Y. Slip Op. 03411 (May 3, 2016), the plaintiff claimed that he was exposed to asbestos when he replaced various brakes, clutches, and engine parts on Ford tractors and cars in the 1970s and 1980s. The entity that actually manufactured the vehicle parts in question was Ford UK, a wholly owned subsidiary of Ford USA. Ford USA moved for summary judgment on the ground that it did not manufacture, sell, produce, or distribute the relevant parts. It also moved to dismiss under CPLR 3211(a)(7) for failure to state a cause of action, arguing that the complaint alleged nowhere that the court should “pierce the corporate veil” to hold Ford USA derivatively liable for Ford UK’s actions. The plaintiff argued in opposition that Ford USA was “actively involved” in the design, specification, production and sale of Ford products worldwide. The lower court denied Ford

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USA’s motion. While acknowledging that there was no basis to pierce the corporate veil, the court found there were issues of fact as to Ford USA’s responsibility based on its control over Ford UK and its direct involvement in placing the products in the stream of commerce. The Appellate Division affirmed. It also held that there was no basis for piercing the corporate veil. However, it found factual issues arising from Ford USA acting as “global guardian of the Ford brand” and that Ford USA was in the “best position to exert pressure for the improved safety of products.” Id. at *3. The Court of Appeals reversed. It noted that parties other than the manufacturer of a product, such as retailers and distributors, can be held strictly liable because such sellers, due to their continuing relationship with the manufacturers, are usually “in a position to exert pressure for the improved safety of products and can recover increased costs within their commercial dealings, or through contribution or indemnification in litigation . . .” (citation omitted). Sellers who engage in product sales in the ordinary course of their business are subject to strict liability because they “may be said to have assumed a special responsibility to the public, which has come to expect them to stand behind their goods” (citations omitted). Id. However, here, Ford USA was not a party in the distribution chain, nor did it place the parts into the stream of commerce. The Court held that Ford USA could not be held liable for providing guidance or exercising control over its worldwide trademark program. The Court rejected the Appellate Division’s determination that Ford USA could be held liable because it played “a substantial role in the design, development, and use of the auto parts distributed by Ford UK.” Id. at *4. Similarly, it rejected the conclusion that Ford USA could be strictly liable because it was in the best position to “exert pressure” on Ford UK for improved product safety. The Court noted that it has never applied such a theory against a parent company, as opposed to sellers and manufacturers. In sum, the Court concluded that: Ford USA, as the parent corporation of Ford UK, may not be held derivatively liable to plaintiff under a theory of strict products liability unless Ford USA disregarded the separate identity of Ford UK and involved itself directly in that entity’s affairs such that the corporate veil could be pieced (citation omitted), a conclusion that neither Supreme Court nor the Appellate Division reached in this instance. Id.

CPLR 3211(a)(7) – Post Rovello (Digest – May 2015) Does the Plaintiff Fail to State a Cause of Action or Simply Have None? CPLR 3211(a)(7) Motion to Dismiss OK, a confession. For some reason, this issue has gnawed at me for years. I have written about it repeatedly. I have never been totally satisfied that the judiciary has been consistent in interpreting the reach of a CPLR 3211(a)(7) motion to dismiss for failure to state a cause of action. The recent Fourth Department decision in Liberty Affordable Hous. Inc. v. Maple Ct. Apts., 125 A.D.3d 85, 998 N.Y.S.2d 543 (4th Dep’t 2015), the third in a series of recent cases, provides us with little comfort that we have finally turned the corner on this issue. But the confusion started many years ago. A CPLR 3211(a)(7) motion to dismiss for failure to state a cause of action is generally thought of as a motion directed to the complaint. In other words, does the complaint state a cause

110 of action? However, such a motion can conceivably be used, in very limited circumstances, to dispose of the action. In these circumstances, the motion seeks to establish that the plaintiff has no cause of action. The seminal case in this area is Rovello v. Orofino Realty Co., 40 N.Y.2d 633, 389 N.Y.S.2d 314 (1976). Unfortunately, the decision, now almost 40 years old, continues to provoke confusion and uncertainty as to what effect is to be given to affidavits submitted on such a motion, when such a motion has not been converted on notice to a summary judgment motion pursuant to CPLR 3211(c). Rovello begins by giving us a blanket statement, that affidavits received on an unconverted motion to dismiss for failure to state a cause of action are not to be examined for the purpose of determining whether there is evidentiary support for the pleading. Fair enough. A CPLR 3211(a)(7) motion should be directed to the pleadings, and consideration of the merits via affidavits should not be permitted unless the motion is converted to one for summary judgment. But the Rovello court did not stop there. It began to chip away at the rule. First, “affidavits may be used freely to preserve inartfully pleaded, but potentially meritorious, claims.” This does not seem troubling because it still seems concerned with the pleading itself. What follows in Rovello, however, is what has caused confusion: Modern pleading rules are "designed to focus attention on whether the pleader has a cause of action rather than on whether he has properly stated one" (6 Carmody-Wait, 2d, NY Prac, § 38:19; see Kelly v Bank of Buffalo, 32 AD2d 875, supra). In sum, in instances in which a motion to dismiss made under CPLR 3211 (subd [a], par 7) is not converted to a summary judgment motion, affidavits may be received for a limited purpose only, serving normally to remedy defects in the complaint, although there may be instances in which a submission by plaintiff will conclusively establish that he has no cause of action. It seems that after the amendment of 1973 affidavits submitted by the defendant will seldom if ever warrant the relief he seeks unless too the affidavits establish conclusively that plaintiff has no cause of action. A fair reading of these statements is that a court can consider affidavits on a CPLR 3211(a)(7) motion, even if it is not converted to a summary judgment motion, and dismiss the entire action if the affidavits “conclusively establish” that plaintiff has no cause of action. However, appellate decisions after Rovello have not agreed on the use of affidavits on a 3211(a)(7) motion. For example, in Henbest & Morrisey Inc. v. W. H. Ins. Agency Inc., 259 A.D.2d 829, 686 N.Y.S.2d 207 (3d Dep't 1999), the Third Department held that where there has neither been a conversion nor have the parties deliberately charted a summary judgment course, the court must “ignore the affidavits submitted by defendants.” Nevertheless, years later in La Barbera v. Town of Woodstock, 29 A.D.3d 1054, 814 N.Y.S.2d 376 (3d Dep't 2006), the Third Department appeared to switch course. It stated that when a CPLR 3211(a)(7) motion is supported by extrinsic evidence, “the inquiry becomes whether the petitioner indeed has a cause of action . . . and the petitioner no longer can rely only on the unsupported factual allegations of the pleading, but must submit evidence demonstrating the existence of a cause of action.” This brings us to the most recent issue –whether the N.Y. Court of Appeals decision in Miglino v. Bally Total Fitness of Greater N.Y., Inc., 20 N.Y.3d 342, 961 N.Y.S.2d 364 (2013) has somehow reversed Rovello. The “offending” paragraph from Miglino states: Here, the complaint asserts that Bally did not "employ or properly employ life-saving measures regarding [Miglino]" after he collapsed. Bally's motion is supported by

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affidavits that contradict this claim, by purporting to show that the minimal steps adequate to fulfill a health club's limited duty to a patron apparently suffering a coronary incident – i.e., calling 911, administering CPR and/or relying on medical professionals who are voluntarily furnishing emergency care – were, in fact, undertaken. But, as noted before, this matter comes to us on a motion to dismiss, not a motion for summary judgment. As a result, the case is not currently in a posture to be resolved as a matter of law on the basis of the parties' affidavits, and Miglino has at least pleaded a viable cause of action at common law (emphasis added). So far, the Fourth Department in Liberty Affordable Hous., Inc., 125 A.D.3d 85 and the First Department in Basis Yield Alpha Fund (Master) v. Goldman Sachs Grp., Inc., 115 A.D.3d 128, 980 N.Y.S.2d 21 (1st Dep't 2014) have concluded that Miglino did not overrule Rovello and courts are free to consider defendant’s evidentiary submissions and to dismiss an action where the submissions "conclusively establish” that there is no cause of action. Instead “given its unqualified citation to Rovello, Miglino is properly understood as a straightforward application of Rovello's longstanding framework. Miglino was ‘not currently in a posture to be resolved as a matter of law on the basis of the parties' affidavits’ (20 NY3d at 351) because the evidentiary submissions were insufficiently conclusive, not because they were categorically inadmissible in the context of a CPLR 3211 (a) (7) motion.” Liberty Affordable Hous., Inc., 125 A.D.3d at 91. See also Rosin v. Weinberg, 107 A.D.3d 682, 683–84, 966 N.Y.S.2d 209 (2d Dep't 2013) (does not address Miglino directly, but was decided after Miglino). So where does this leave us? It is disturbing that we are still debating the impact and continuing vitality of Rovello. Nevertheless, it would appear that in a proper case, a defendant on a CPLR 3211(a)(7) motion should consider submitting affidavits. The court then has several options. It can disregard the affidavits, determine that they do not establish conclusively that there is no cause of action, convert the motion to dismiss to summary judgment under CPLR 3211(c), or dismiss the entire action. A plaintiff confronted with a 3211(a)(7) motion and supporting evidentiary submissions would be wise not to rely on his or her complaint alone and submit evidentiary affidavits establishing that he or she has a cause of action. In addition, if applicable, the plaintiff should argue that facts essential to justify opposition are unavailable to him or her pursuant to CPLR 3211(d). The CPLR 3211(a)(7) motion presents a unique opportunity to a defendant to dispose of an action before discovery, saving great expense and perhaps catching a plaintiff unprepared. Conversely, plaintiffs must be cognizant of these dangers and avoid merely resting on their laurels – or their pleadings!

CPLR 3211 – Rovello issue-use of affidavit to remedy defects in pleadings Tirpack v. 125 N. 10, LLC, 130 A.D.3d 917, 918-919, 14 N.Y.S.3d 110 (2d Dep’t 2015): “Unless the motion is converted into one for summary judgment pursuant to CPLR 3211(c), affidavits may be received for a limited purpose only, usually to remedy defects in the complaint, and such affidavits are not to be examined for the purpose of determining whether there is evidentiary support for the pleading (citations omitted). ‘[A] court may freely consider affidavits submitted by the plaintiff to remedy any defects in the complaint’ (citations omitted). Applying those principles, the complaint, as amplified by the plaintiff's affidavit, sets forth a cognizable cause of action to recover damages for negligence against Jason Fixler. Specifically, the plaintiff adequately alleged that Jason Fixler assumed a duty of care to him and violated it, proximately

112 causing his injuries (citations omitted). The Supreme Court, however, properly granted that branch of the Fixlers' motion which was to dismiss the complaint insofar as asserted against Stacey Lager Fixler. Simply put, the complaint and the plaintiff's affidavit do not adequately allege that Stacey Lager Fixler assumed any duty of care to the plaintiff (citation omitted).”

CPLR 3211 – Rovello issue again Nasca v. Sgro, 130 A.D.3d 588, 13 N.Y.S.3d 188 (2d Dep’t 2015): “‘A court is, of course, permitted to consider evidentiary material . . . in support of a motion to dismiss pursuant to CPLR 3211(a)(7)’ (citation omitted), and, if it does so, ‘the criterion then becomes whether the proponent of the pleading has a cause of action, not whether he has stated one’ (citation omitted). ‘Yet, affidavits submitted by a defendant will almost never warrant dismissal under CPLR 3211 unless they establish conclusively that [the plaintiff] has no cause of action’ (citations omitted). ‘Indeed, a motion to dismiss pursuant to CPLR 3211(a)(7) must be denied unless it has been shown that a material fact as claimed by the pleader to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it’ (citations omitted)…. Since the plaintiff's complaint with attached exhibits conclusively demonstrated that the police had probable cause to arrest the plaintiff for violating the court mandate that he stay away from Sgro, the plaintiff also did not have a cause of action to recover damages for a violation of 42 USC §§ 1983 and 1985 (citations omitted). Similarly, the movants were entitled to dismissal of the abuse of process cause of action since the complaint and attached exhibits conclusively established the lack of ‘an intent to do harm without excuse or justification’ through the employment of judicial process (citations omitted) and lack of ‘use of the process in a perverted manner to obtain a collateral objective’ (citations omitted).”

CPLR 3211(a)(8) – Preserving Jurisdictional Defenses Edwards, Angell, Palmer & Dodge, LLP v. Gerschman, 116 A.D.3d 824, 984 N.Y.S.2d 392 (2d Dep’t 2014): “Further, to the extent that the Supreme Court denied the defendant's motion based on its conclusion that he waived his defense predicated on lack of personal jurisdiction, this was error. Since the defendant both asserted this affirmative defense in his answer and moved pursuant to CPLR 3211(a)(8) to dismiss the complaint on this ground, his participation in discovery did not result in the waiver of this defense (citations omitted).”

CPLR 3212- Did plaintiff establish that it had physical possession of note prior to commencement of action? – majority and dissent disagree Bank of N.Y. Mellon v. McClintock, 138 A.D.3d 1372, 31 N.Y.S.3d 252 (3d Dep’t 2016) (majority and dissent disagree as to whether the plaintiff demonstrated that it had physical possession of the note before commencing the action).

CPLR 3212 – Sherman v. New York State Thruway Auth., N.Y. Slip Op. 03546 (2016) (Digest – June 2016) Landowner’s Liability for Injuries Sustained When Claimant Slipped and Fell on Icy Sidewalk In 4-3 Decision, Majority of Court of Appeals Applies “Storm in Progress” Doctrine The “storm in progress” doctrine provides that although a landowner owes a duty of care to keep his or her property in a reasonably safe condition, he or she “will not be held liable in negligence for a plaintiff’s injuries sustained as the result of an icy condition occurring during an

113 ongoing storm or for a reasonable time thereafter.” Solazzo v. N.Y. City Transit Auth., 6 N.Y.3d 734 (2005). Recently, in Sherman v. New York State Thruway Auth., 2016 N.Y. Slip Op. 03546 (May 5, 2016), the majority and dissent of the Court of Appeals disagreed as to whether the doctrine could be applied as a matter of law to the circumstances presented in the case. The claimant was a New York State Trooper who fell on an icy sidewalk, on property owned and maintained by the New York State Thruway Authority. The claimant alleged that the Authority negligently failed to maintain the sidewalk after a winter storm by not removing ice or putting down salt. When discovery was complete, both parties moved for summary judgment. The Court of Claims denied both motions, finding a question of fact as to whether a storm was in progress when the claimant fell. The Appellate Division reversed and granted the Authority’s summary judgment motion. A majority of the Court of Appeals affirmed the Appellate Division order, finding that there was uncontroverted evidence that when the claimant fell a storm was ongoing: Claimant admitted at his deposition that “an ice storm” had taken place the night before the accident, and an “intermittent wintry mix” of snow, sleet and rain persisted the next morning until 6:50 a.m., when claimant arrived at the trooper barracks for work. Claimant testified, and a certified weather report confirmed, that it was still raining at 8:15 a.m. when he walked to his vehicle and slipped on a patch of ice. The undisputed facts that precipitation was falling at the time of claimant’s accident and had done so for a substantial time prior thereto, while temperatures remained near freezing, established that the storm was still in progress and that the Authority’s duty to abate the icy condition had not yet arisen. Id. at *2. The dissent, written by J. Rivera, found that there were triable issues of fact as to whether the storm had ended and whether a reasonable time had passed, triggering the Authority’s obligations to address the icy conditions: Although the parties agree there was an ice storm the night before the accident that is where their agreement ends. Given that the summary judgment proof in the form of Sherman’s testimony, the Authority’s employees’ statements and documentary evidence, and the climatological report, all indicate that above-freezing rain was falling in the hours before and at the time of the accident, material factual questions exist as to the nature of the weather conditions and the applicability of the storm-in-progress doctrine. Id. at *4–5. This is another example of one of those curious decisions in which there is a sharp divide among judges as to whether the facts are “uncontroverted” or not. Thus, while applying the same summary judgment standard, the judges came to polar opposite conclusions. Cold comfort to a plaintiff injured in icy conditions!

CPLR 3212 – Sangaray v. West Riv. Assocs., LLC, 26 N.Y.3d 793, 28 N.Y.S.3d 652, 48 N.E.3d 933 (2016) (Digest – March 2016) City Transfer of Tort Liability to Adjoining Property Owners Landowner’s Duty to Maintain Safe Sidewalk Cannot Be Ignored Despite Fact That Accident Did Not Occur in Front of His Property In Sangaray v. West Riv. Assocs., LLC, 2016 N.Y. Slip Op. 01002 (February 11, 2016), the plaintiff fell on a raised portion of a New York City public sidewalk. The plaintiff contacted an expansion joint that abutted property owned by the defendant Mercado family only, even

114 though the sloping and descending sidewalk flag he was crossing ran from in front of the defendant West River’s property to the Mercados’ neighboring premises. The plaintiff alleged, among other things, that the defendant West River was liable for violating § 7-210 of the Administrative Code of the City of New York, which requires landowners to maintain sidewalks abutting their property and transfers tort liability from New York City to those adjoining property owners. West River moved for summary judgment, arguing that it could not be held liable for failing to maintain its sidewalk, because the plaintiff tripped in front of the Mercados’ property, and thus the defect did not abut its property. The plaintiff countered that West River permitted its sidewalk flag to fall into disrepair, and failed to establish that it maintained the sidewalk in a reasonably safe condition. The plaintiff submitted evidence that approximately 92% to 94% of the defective flag (which apparently had settled because of subsidence of the underlying soil) was in front of the West River property. The lower court granted West River’s motion, relying on prior First Department precedent, which held that a landowner has a duty to maintain the sidewalk in front of its property only and is only responsible where the defect that the plaintiff alleges caused him or her to fall is located there. Since the defect here allegedly was located in front of the Mercados’ property, West River was entitled to summary judgment. The Appellate Division affirmed. Two concurring justices, however, expressed concern that although the relevant New York City Code provision encourages the maintenance of sidewalks in good repair, West River was able to avoid liability even though it had failed to maintain its own sidewalk. The New York State Court of Appeals granted leave and reversed. The Court stated that the First and Second Departments of the Appellate Division have incorrectly added a “location requirement” to § 7-210’s direction that landowners maintain sidewalks in front of their property in a reasonably safe condition. Instead, the Court held that even if the incident did not occur in front of the neighboring owner’s property, that owner may nevertheless be liable for failing to maintain his or her own sidewalk in a reasonably safe condition: To be sure, the location of the alleged defect and whether it abuts a particular property is significant concerning that particular property owner’s duty to maintain the sidewalk in a reasonably safe condition. That does not, however, foreclose the possibility that a neighboring property owner may also be subject to liability for failing to maintain its own abutting sidewalk in a reasonably safe condition where it appears that such failure constituted a proximate cause of the injury sustained. Thus, to the extent that Montalbano and other cases interpreting section 7-210 can be interpreted as holding that only the landowner whose property abuts the defect upon which the plaintiff trips may be held liable, they should no longer be followed for that premise. Simply put, section 7-210 (b), by its plain language, does not restrict a landowner’s liability for accidents that occur on its own abutting sidewalk where the landowner’s failure to comply with its duty to maintain its sidewalk in a reasonably safe condition constitutes a proximate cause of a plaintiff’s injuries. Furthermore, our interpretation of section 7-210 as tying liability to the breach of that duty when it is a cause of the injury is consistent with the purpose underlying the enactment of that provision, namely, to incentivize the maintenance of sidewalks by abutting landowners in order to create safer sidewalks for pedestrians and to place liability on those who are in the best situation to remedy sidewalk defects. Id. at *4–5.

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The Court found that, in its motion, West River incorrectly emphasized only that the alleged defect was located in front of another landowner’s property. It failed to address, however, whether it had fulfilled its duty to maintain in a reasonably safe condition the sidewalk abutting its property and whether that was a proximate cause of plaintiff’s injuries: Although West River did not have a duty to remedy any defects in front of the Mercado property, section 7-210 (a) imposed a duty on West River to maintain the sidewalk abutting its premises in a reasonably safe condition. Moreover, the plain language of section 7-210 (b) provides that West River may be held liable for injuries where its failure to maintain its sidewalk is a proximate cause of that injury. Here, most of the sunken sidewalk flag that plaintiff traversed abutted West River’s property, and plaintiff claims that West River’s sidewalk flag had sunk lower than the expansion joint upon which plaintiff allegedly tripped. Thus, West River failed to meet its burden of demonstrating entitlement to judgment as a matter of law, leaving factual questions as to whether West River breached its duty to maintain the sidewalk flag abutting its property and, if so, whether that breach was a proximate cause of plaintiff’s injuries. Id. at *5.

CPLR 3212 – Oral application was untimely summary judgment motion Martinez v. Premium Laundry Corp., 137 A.D.3d 419, 25 N.Y.S.3d 867 (1st Dep’t 2016) (“Contrary to defendant's contention, its oral application was not a motion to dismiss pursuant to CPLR 3211(a)(5) on the ground of release, but was, in effect, an untimely motion for summary judgment (citation omitted). The court should not have entertained the oral application, since it was not supported by any motion papers, no formal motion was made on notice to plaintiff, and the application was made after jury selection had been completed (citation omitted). The oral application, which was made more than seven months after the 120-day statutory deadline, was also made without any showing of ‘good cause’ for the delay (citation omitted).”).

CPLR 3212 – Bongiovanni v. Cavagnuolo, 138 A.D.3d 12, 24 N.Y.S.3d 689 (2d Dep’t 2016) (Digest – March 2016) Qualifications of Experts Expert in One Medical Specialty Can Proffer Opinion Involving Different Specialty on Proximate Cause Issue but Not on Whether the Defendant Deviated From Accepted Community Standards of Practice In Bongiovanni v. Cavagnuolo, 2016 N.Y. Slip Op. 00638 (2d Dep’t 2016), the plaintiff alleged that she was injured while receiving chiropractic treatment from the defendant. As a result, the plaintiff stopped going to the defendant. She complained of pain, nausea, numbness, and tingling, resulting in her being admitted into the hospital. The plaintiff claimed that the defendant’s treatment caused her to sustain disc trauma and to undergo an anterior cervical discectomy and fusion with iliac bone graft. The defendant moved for summary judgment, which included his own affidavit asserting that none of his treatments deviated from defined and accepted chiropractic care standards, and affirmations of an orthopedic surgeon and a radiologist on the proximate cause issue. The plaintiff opposed the motion, relying on her own radiologist’s expert opinion on causation. The lower court denied the motion, finding that the defendant had failed to carry his burden because his experts did not offer a foundation for establishing familiarity with chiropractic care and treatment.

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The Appellate Division affirmed, but on different grounds. In a medical malpractice action, a plaintiff is required to show that the defendant deviated from accepted community standards of practice, and that such departure was a proximate cause of his or her injury. On a summary judgment motion, the defendant can argue either that there was no departure or that there was no proximate cause, or both. When a doctor offers expert testimony outside of his or her specialty, he or she must lay a foundation tending to support the opinion’s reliability. The question here was whether the defendant’s experts’ opinions on causation were outside of their area of specialty. The court conceded that the defendant’s orthopedic and radiological experts’ opinions would be inadmissible on whether the defendant deviated from chiropractic care standards because they did not establish that they were familiar with those standards. The court noted, however, that the doctors’ opinions were not proffered on this issue, but on proximate cause. Such testimony was admissible because the court found that the experts’ opinions were based on matters within their specialty: Dr. Meyer’s opinion that the defendant’s described treatments were not a proximate cause of the alleged injuries is premised upon his expertise as an orthopedic surgeon, and concerns matters about which orthopedists and orthopedic surgeons may permissibly testify and render opinions. Specifically, Dr. Meyer was qualified to express an opinion that the injuries to the plaintiff’s C5-C6 disc were preexisting and degenerative and, therefore, not caused by the chiropractic treatments. Where, as here, the opinion as to proximate cause is based upon matters within the expert’s specialty, there is no requirement that the expert additionally possess expertise on the distinct element of the standard of care. In other words, proximate cause is proximate cause, and there is not necessarily a distinction between chiropractic proximate cause requiring opinion from a chiropractic expert versus opinion from an orthopedist on the same issue. Id. at *3–4. The court ruled that the defendant’s expert opinions should have been considered on proximate cause, and thus, the defendant met his burden of proving the absence of proximate cause. However, it also held that the plaintiff’s expert raised a triable issue of fact with respect to proximate cause. Finally, the court found that the defendant’s own affidavit on the deviation issue, while admissible, was conclusory and insufficient to establish a prima facie entitlement to judgment.

CPLR 3212 – Medical Provider’s Burden of Proof in No-Fault Insurance Case (Digest – August 2015) Medical Provider’s Burden of Proof on Summary Judgment Motion in No-Fault Insurance Action No Proof of Entitlement to Benefits Necessary The issue presented in Viviane Etienne Med. Care, P.C. v. Country-Wide Ins. Co., 2015 N.Y. Slip Op. 04787 (June 10, 2015), was the level of proof necessary for a plaintiff medical provider in a no-fault insurance case to establish a prima facie entitlement to summary judgment. A majority of the N.Y. Court of Appeals held that the plaintiff sustained its burden by merely submitting evidence that the payment of no-fault benefits was overdue and that proof of the claim, using statutory billing forms, was mailed to and received by the insurer. The majority noted that the primary aims of the no-fault law are to provide prompt reimbursement, reduce the burden on the courts and provide substantial premium savings. If an insurer fails to pay or deny a

117 claim within 30 days of receipt, it is precluded from asserting a defense to payment, other than where the insurer raises the defense of lack of coverage. Thus, the majority concluded: “The tradeoff of the no-fault reform still allows carriers to contest ill-founded, illegitimate and fraudulent claims, but within a strict, short-leashed contestable period and process designed to avoid prejudice and red-tape dilatory practices” (citations omitted). Consistent with these interests, a medical provider seeking reimbursement from a no-fault insurer demonstrates its entitlement to reimbursement of overdue benefits when it proves that it submitted a completed claim form to the insurer. A claim is overdue if it is not denied or paid within 30 days of the insurer’s receipt of proof of claim (see 11 NYCRR 65-3.8 [a] [1]; Insurance Law § 5106 [a]). Thus, it follows that a claim is not overdue when it is timely denied by the insurer. Id. at *5. The dissent, written by Judge Stein, found there to be neither statutory nor regulatory authority nor case law on the preclusion doctrine that negates a plaintiff’s burden to show its entitlement to the benefits – that is, that the loss arose from a car accident and that the expenses incurred were medically necessary. Judge Stein noted that the Appellate Division decisions referenced by the majority relied on cases that created and defined the preclusion rule. However, he maintained that the majority conflated the preclusion rule with a plaintiff’s burden on a summary judgment motion in a no-fault case. In other words, “the preclusion doctrine is not triggered until a prima facie showing has been made.” Thus, the mere fact that an insurer’s defense to a claim can be precluded does not and should not impact a plaintiff’s initial burden to make out a prima facie entitlement to benefits. The dissent warned that the majority’s holding will increase the risk that insurers will pay out fraudulent claims: [T]he majority’s rule arguably eviscerates any avenue for insurers to contest even whether a verification of treatment form contains sufficient information to constitute “proof of the fact and amount of loss sustained” – or in other words, whether the payments were actually overdue – since proof of the mailing of the prescribed form, without any regard to its contents or its completeness, will now carry a plaintiff’s burden on summary judgment. In a system that we have recognized as already plagued by widespread abuse, the majority’s rule unnecessarily increases the risk that insurers will be required to pay out fraudulent claims, which is detrimental, not only to the insurer, but also to claimants, whose entitlement to benefits (which is subject to a maximum amount) will consequently be reduced. Id. at *9–10 (citations omitted).

CPLR 3212 – Summary judgment motion cannot be made before issue is joined Blue Is. Dev., LLC v. Town of Hempstead, 131 A.D.3d 497, 15 N.Y.S.3d 807 (2d Dep’t 2015): “Turning to Blue Island's cross motion for summary judgment, the Supreme Court correctly noted that ‘[a] motion for summary judgment may not be made before issue is joined (CPLR 3212 [a]) and the requirement is strictly adhered to’ (citations omitted). Here, the Town had not yet answered the petition/complaint and, therefore, the Supreme Court properly denied the cross motion as premature (citation omitted).”

CPLR 3212 – Issues of credibility preclude summary judgment Bergmann v. Spallane, 129 A.D.3d 1193, 10 N.Y.S.3d 670 (3d Dep’t 2015): “However, because the factual issue as to whether plaintiffs used the disputed property with permission

118 cannot be resolved without resort to assessments of credibility, the court erred in granting summary judgment to plaintiffs on the adverse possession claim, and that aspect of the order must be reversed (citations omitted). (Citing Weinstein Korn & Miller)

CPLR 3212 – Searching the record – no requirement to provide additional notice Kenneths Fine Repairs, LLC v. State, 133 A.D.3d 1181, 21 N.Y.S.3d 412 (3d Dep’t 2015) (“Contrary to claimant's initial contention, it was not entitled to any additional notice that the Court of Claims intended to search the record to determine whether summary judgment was warranted for either party. CPLR 3212 (b) provided claimant with notice that its motion for summary judgment would empower the court to consider whether judgment as a matter of law in favor of defendant was warranted, and the statute requires no further notice to claimant. Further, defendant's contention that summary judgment was premature because additional discovery is required is unavailing. That argument is unpreserved given that claimant did not seek additional discovery; instead, claimant took a directly contrary position by moving for summary judgment on the issue of liability (citation omitted).”).

CPLR 3212 – Brill (Digest – November 2015) Take a Chill Brill The Continuing Ramifications of the Court of Appeals Decision More than 10 years ago, in 2004, the N.Y. Court of Appeals issued its decision in Brill v. City of N.Y., 2 N.Y.3d 648 (2004), which impacted the timing of summary judgment motions. Significantly, it held that a court should not hear an untimely summary judgment motion, even if meritorious, unless the movant shows good cause for the delay in bringing the motion. Prior case law had split on whether the good cause standard was satisfied where the motion had merit and there was no showing of prejudice. The Court in Brill rejected that position, in effect denying a summary judgment motion that was meritorious. In subsequent cases, Brill was construed strictly, resulting in the denial of summary judgment motions served even a few days late. See, e.g., Milano v. George, 17 A.D.3d 644 (2d Dep’t 2005) (one day late). One of the primary culprits and excuses offered for delays in making the motion has been outstanding discovery. However, that discovery has to be relevant or “essential” to the summary judgment motion to qualify as good cause. See, e.g., Courtview Owners Corp. v. Courtview Holding B.V., 113 A.D.3d 722 (2d Dep’t 2014) (“While significant outstanding discovery may, in certain circumstances, constitute good cause for a delay in making a motion for summary judgment (citations omitted), contrary to the defendants’ contention, the discovery outstanding at the time the note of issue was filed was not essential to their cross motion.” Id. at 723 (citations omitted).). What has never been addressed squarely, however, is the practice in some courts to permit and, in some instances, to require, the filing of the note of issue well before discovery is complete. It is also significant to note that the primary motivation for the “120 day rule” was to avoid “eve of trial” summary judgment motions that would disrupt “the court’s calendar and leav[e] an adversary little or no time to reply. Moreover, the belated motion, sometimes used as a dilatory tactic, was most burdensome for the court and for parties who had already prepared for trial.” Gonzalez v. 98 Mag Leasing Corp., 95 N.Y.2d 124, 128 (2000) (citations omitted). Nevertheless, in Brill, and in some subsequent decisions, the appellate courts overturned the discretion of the trial judge, who was in the best position to understand and appreciate his or her

119 calendar. The dissent in a recent Second Department decision, Bennett v. St. John’s Home & St. John’s Health Care Corp., 128 A.D.3d 1428 (4th Dep’t 2015), reflects how far we have strayed from the good intentions of Brill. In Bennett, the plaintiff had expressly consented to the timing of the defendants’ summary judgment motion, which was after the 120- day deadline, and the lower court granted the defendants’ motion. On appeal, however, the plaintiff argued that the motion should have been denied as untimely and that there was no showing of good cause for the delay. A majority of the Appellate Division noted that although the lower court was not required to accept the parties’ express stipulation, it did in fact do so. The majority found that the plaintiff had waived the contention that the motion was untimely “by expressly consenting to the timing of the motion before it was made.” Id. at 1478–79. Thus, the majority would not deny the motion on timeliness grounds. The dissent argued that the parties could not stipulate to a late motion absent a showing of good cause. In fact, the dissent maintained that it was against public policy to permit the parties to waive the deadline and the court could not approve the parties’ stipulation without a showing of good cause: [A]s articulated by the legislature and the Court of Appeals, it is public policy to strictly enforce the 120-day limit for summary judgment motions in the absence of leave of court on good cause shown. . . . Although parties may stipulate away some statutory rights, under CPLR 3212 (a) and the decisions of the Court of Appeals in Brill and Miceli, “the court has the exclusive authority to extend the statutory deadline; mutual agreement of the parties without court approval will not suffice,” and the court may not approve of the delayed motion without a showing of good cause. Thus, contrary to the majority’s position, litigants cannot waive the statutory requirement that good cause be shown in order to permit the late filing of a motion pursuant to CPLR 3212, and the statute does not permit courts to accept a stipulation of the parties “in advance of the motion” where there is no showing of good cause. Id. at 1430–31 (citations omitted). The majority expressly disagreed with the dissent that the summary judgment motion timing requirements may not be affirmatively waived as a matter of public policy. Unfortunately, much of what causes the problems on the ground are the standards and goals that impose deadlines, sometimes unrealistic, on the parties and the courts. While Brill’s intentions were good – to prevent unnecessary delay and to compel attorneys to comply with deadlines – the varied practices throughout the state sometimes unnecessarily burden movants who did not engage in delay, but who are boxed in by contradictory deadlines. It is unfair to require a movant to establish “good cause” for not moving within the required period where he or she did not cause any delay, and the court expressly permits or requires discovery to be concluded after a premature filing of the note of issue. Having the foresight or “prophet-ability” to know with certainty whether future discovery will be “relevant” or “established” is a trait that no one in the post-biblical era retains. Furthermore, not permitting meritorious summary judgment motions to go forward and be granted is a waste of the parties’ and court’s valuable time and resources. In this case, the trial judge’s discretion was the better part of valor.

CPLR 3212(a) (Digest – January 2016) Update on the Chill Brill In the November 2015 edition of the Digest, I referred to the Fourth Department decision

120 in Bennett v. St. John’s Home & St. John’s Health Care Corp., 128 A.D.3d 1428 (4th Dep’t 2015), in connection with the summary judgment motion deadline. I expressed concern with the dissent which found that parties could not stipulate to a late motion, maintaining that it was against public policy to permit the parties to waive the deadline and the court could not approve the parties’ stipulation without a showing of good cause. Recently, the New York State Court of Appeals affirmed the Appellate Division’s grant of summary judgment but found that [a]s the issue of the timeliness under CPLR 3212(a) of defendants’ summary judgment motion was not preserved in Supreme Court, the Court of Appeals lacks power to review either the Appellate Division’s exercise of its discretion to reach the issue, or the issue itself. 2015 N.Y. Slip Op. 08613 (Nov. 23, 2015) (citing Hecker v. State of N.Y., 20 N.Y.3d 1087 (2013)). CPLR 3212(a)-120 day rule not shortened by rule or preliminary order Boereau v. Scott, 2016 NY Slip Op 04168 (2d Dep’t 2016) (“Here, the motion was filed on June 4, 2014 and, in the order appealed from, the court indicated that the note of issue was filed on March 13, 2014-well within the 120 days contemplated by the CPLR (citations omitted). The record reveals no preliminary order setting a deadline shorter than that provided in CPLR 3212(a). Moreover, the individual part rules of the Justice of the Supreme Court who decided the motion, which were in effect at the time the motion was made, also do not shorten the deadline established in the CPLR (citations omitted). We take judicial notice of those rules, which are on the New York State Unified Court System public website (citations omitted).”).

CPLR 3212(a) – Cannot serve summary judgment motion before joinder of issue Stone Column Trading House Ltd. v. Beogradska Banka A.D. in Bankruptcy, 139 A.D.3d 577, 30 N.Y.S.3d 817 (1st Dep’t 2016) (“The motion court correctly determined that Stone Column's motion for summary judgment was premature because it served the motion prior to joinder of issue (citations omitted). Pursuant to a stipulation, the parties agreed to proceed against each other in a consolidated interpleader action involving the parties' competing claims to an amount on deposit at a bank in liquidation proceedings (see CPLR 1006). The stipulation shows that the parties contemplated answering interrogatories in lieu of filing answers to each other's complaints. As interrogatories have yet to be completely answered, and objections thereto resolved, issue has not been joined. Moreover, the motion court correctly noted that discovery is still outstanding on numerous material issues of fact (citations omitted).”).

CPLR 3212(a) – Reassignment of action to different judge’s part after entry of PCO does not extend summary judgment motion deadline Waxman v. Hallen Constr. Co., Inc., 139 A.D.3d 597, 33 N.Y.S.3d 23 (1st Dep’t 2016) (“The motion for summary judgment should have been denied as untimely, as it was submitted more than 50 days after the expiration of the deadline imposed by a preliminary conference order, and there was no showing of good cause for the late filing (citations omitted). The reassignment of the action to a different Justice's part after entry of the preliminary conference order is not good cause for the late filing, since there was no subsequent order or directive explicitly providing for a different time limit, or stating that the time limits of the new part's rules would supersede the preliminary conference order (citation omitted).”).

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CPLR 3212 – Timing of summary judgment motion-when was it “made”? Pietrafesa v. Canestro, 130 A.D.3d 602, 13 N.Y.S.3d 204 (2d Dep’t 2015): “Contrary to the Supreme Court's determination, the defendant's motion for summary judgment was made when the motion papers were served in May 2013, which was prior to both the filing of the note of issue and the decedent's death in July 2013 (citations omitted). Therefore, the defendant's motion was timely made pursuant to CPLR 3212(a). The fact that the defendant, in effect, renewed his pending motion for summary judgment in August 2014, after a personal representative was substituted for the decedent, did not render his motion untimely. Under the circumstances presented here, the timeliness of the defendant's motion must be judged by the date of service of the original motion papers, rather than the renewed motion papers (citation omitted). Accordingly, the Supreme Court should have granted that branch of the defendant's motion which was to restore the case to the motion calendar, and then determined the merits of his pending, but undecided, motion for summary judgment, taking into consideration the plaintiff's opposition, and the defendant's reply and amended reply. Further, the Supreme Court should have determined the merits of the plaintiff's cross motion, taking into consideration the defendant's opposition and the plaintiff's reply.”

CPLR 3212 - Brill – Timeliness of Motion Williams v. Wright, 119 A.D.3d 670, 990 N.Y.S.2d 60 (2d Dep’t 2014): “The reason why an untimely motion for summary judgment may be considered if another party made a motion on nearly identical grounds is that, pursuant to CPLR 3212 (b), the court has the authority, on a motion for summary judgment, to search the record and award relief to a nonmoving party (citations omitted). In the instant case, the MTA defendants, the original movants, established as a matter of law that they were not at fault in the happening of the accident. However, the fact that the MTA defendants were not at fault in the happening of the accident did not mean that the LIPA defendants were at fault and, therefore, that the plaintiff was entitled to summary judgment against the LIPA defendants. Accordingly, the plaintiff's motion for summary judgment on the issue of liability against the LIPA defendants should have been denied as untimely.”

CPLR 3212 - Brill – Timeliness of Motion Freire-Crespo v. 345 Park Ave. L.P., 122 A.D.3d 501 (1st Dep’t 2014): “The controlling preliminary conference order dictated the … 120-day time limit. The reassignment of the matter thereafter to a part whose rules provide for a standard 60-day time limit did not serve to eliminate that provision of that preliminary conference order, in the absence of a further order or directive explicitly providing for a reduced time limit, or some other means of directing that the time limits of the new part's rules would supersede the preliminary conference order. Fine v One Bryant Park, LLC (84 AD3d 436, 437 [1st Dept 2011]) does not hold to the contrary; it did not involve a reassignment after the issuance of a preliminary conference order.”

CPLR 3212 – Failing to (Initially) Attach Pleadings to Motion Vazquez v. Gun Hill Assoc., LLC, 122 A.D.3d 723, 996 N.Y.S.2d 645 (2d Dep’t 2014): “The Supreme Court denied the defendant's motion for summary judgment on the basis that it had failed to submit a complete set of the pleadings with its motion, as required by CPLR 3212(b). The court reasoned that, since the defendant had included an amended complaint with its motion papers, it was required to include an amended answer. However, the defendant could not submit an amended answer because no such pleading existed. Accordingly, the Supreme

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Court should not have denied the motion on the basis of a purported failure to comply with CPLR 3212(b).” Long Is. Pine Barrens Socy., Inc. v. County of Suffolk, 122 A.D.3d 688, 996 N.Y.S.2d 162 (2d Dep’t 2014): “Although the Supreme Court denied the plaintiffs' motion for summary judgment on the ground that they failed to submit a copy of the pleadings with their motion papers, we nonetheless exercise our discretion to reach the merits. Notwithstanding that CPLR 3212(b) requires that motions for summary judgment be supported by a copy of the pleadings, CPLR 2001 permits a court, at any stage of an action, to ‘disregard a party's mistake, omission, defect, or irregularity if a substantial right of a party is not prejudiced’ (citations omitted). Although the plaintiffs failed to include a copy of the pleadings with their motion for summary judgment, the defendants submitted a copy of the pleadings in connection with their opposition and cross motion for summary judgment. Under the particular circumstances presented here, we find that the record is sufficiently complete, and there is no proof that a substantial right of the defendants was impaired by the plaintiffs' failure to submit copies of the pleadings (citations omitted).”

CPLR 3212 – Substantial basis in fact and law – Increased burden International Shoppes, Inc. v. At the Airport, LLC, 16 N.Y.S.3d 72 (2d Dep’t 2015): Majority: “[W]e conclude that the plaintiffs sustained their statutory burdens in opposition to the motion by demonstrating that the action ‘has a substantial basis in fact and law’ (citations omitted). Indeed, the plaintiffs came forward with allegations and supporting evidence indicating that Petrucci, despite knowing or having reason to know that revenues were not intentionally underreported and that rent was properly paid, falsely and maliciously advised Port Authority investigators that the plaintiffs were intentionally underreporting revenues from the leasehold premises and underpaying rent, and that she did so out of personal enmity and to disrupt the existing and prospective contractual and business relations between the plaintiffs and the Port Authority as well as to undermine the terms of a settlement agreement entered into between the plaintiffs and Petrucci's father in 2007 (citations omitted).”

CPLR 3212(b) - Amendment Abrogates Singletree line of cases on use of expert affidavit not previously disclosed (Digest – January 2016) Niagara Falls Moment Avoided CPLR 3212(b) Amendment Abrogates Singletree Doctrine “Niagara Falls” is the name of a famous vaudeville skit, performed most famously by Abbott and Costello. The routine involves a disturbed man recounting the story of the day he was able to exact revenge at Niagara Falls against his enemy, when he loses control and attacks the innocent bystander to whom he is telling the story. Although the individual eventually calms down, he loses control each time he hears the fateful words “Niagara Falls,” apparently reliving the moment. For some of us, our Niagara Falls moment is triggered by the mention of Brill v. City of N.Y., 2 N.Y.3d 648 (2004). For further evidence of my malady, see below for a brief discussion of the Bennett case (“Update on the Chill Brill”). For other lawyers, a mere reference to the Second Department decision in Construction by Singletree, Inc. v. Lowe, 55 A.D.3d 861 (2d Dep’t 2008), provokes excitable behavior. In Singletree, the Second Department affirmed the lower court’s rejection of the plaintiff’s expert’s affidavit, submitted in opposition to the defendant’s summary judgment

123 motion after the filing of the note of issue, because the plaintiff had failed to identify the expert during pretrial disclosure. While Singletree was not the first Second Department case to rule this way, the decision garnered widespread publicity and condemnation, particularly by the plaintiffs’ bar. The anti-Singletree chorus argued that CPLR 3101(d), which concerns expert disclosure, provides no deadline other than stating that “where a party for good cause shown retains an expert an insufficient period of time before the commencement of trial to give appropriate notice thereof, the party shall not thereupon be precluded from introducing the expert’s testimony at the trial solely on grounds of noncompliance with this paragraph.” Thus, they argued that a court should not preclude a previously unidentified expert from submitting an affidavit on a post–note of issue summary judgment motion. The contrary argument is that expert disclosure is . . . disclosure! And disclosure is to be completed before the note of issue and certificate of readiness are filed. See, e.g., J. Miller’s concurring opinion in Rivers v. Birnbaum, 102 A.D.3d 26, 51–52 (2d Dep’t 2012) (“A party that certifies that discovery is complete or that does not move to vacate the note of issue within 20 days has effectively represented to the court that the additional disclosure of experts is unnecessary” (citation omitted)). Nevertheless, what is true is that the overwhelming number of courts, even in the Second Department, have agreed that expert disclosure is not required before the filing of the note of issue. Cases following Singletree confused the issue. Singletree held that the failure to identify an expert prior to the filing of the note of issue standing alone justified the rejection of the expert’s affidavit. In Rivers v. Birnbaum, 102 A.D.3d 26, 41 (2d Dep’t 2012), the Second Department appeared to back away from Singletree, finding that post–note of issue expert disclosure is a factor to be considered but “does not, by itself, render the disclosure untimely.” Thus, Rivers gave the trial court the discretion to reject the affidavit but not solely because the expert was not previously disclosed. A month earlier, however, in Garcia v. The City of N.Y., 98 A.D.3d 857, 859 (1st Dep’t 2012), the First Department, for the first time, adopted the Singletree reasoning (without citing to Singletree), holding that the plaintiff’s liability expert’s affidavit should not have been considered because of the “plaintiff’s failure to identify the expert during pretrial discovery as required by defendants’ demand.” Id. at 858–59. See also DeSimone v. City of N.Y., 121 A.D.3d 420 (1st Dep’t 2014). Along comes the recent amendment to CPLR 3212(b), dealing with the proof submitted on a summary judgment motion, expressly motivated by a desire to overrule the Singletree line of cases. It provides that [w]here an expert affidavit is submitted in support of, or opposition to, a motion for summary judgment, the court shall not decline to consider the affidavit because an expert exchange pursuant to subparagraph (i) of paragraph (1) of subdivision (d) of section 3101 was not furnished prior to the submission of the affidavit. 2015 N.Y. Laws ch. 529, eff. Dec. 11, 2015. The amendment took effect immediately and applies to (1) all pending cases where a summary judgment motion is made on or after December 11, 2015, and (2) all cases filed after that date. Whether you believe the Singletree decision was correct or not, the conflicting and confusing law among the Departments was unfair to practitioners. It is important to note that this legislation would not preclude a court from applying the remedies afforded by CPLR 3126, where a party willfully fails and refuses to provide requested discovery (for example, where a

124 testifying expert has been retained but not disclosed). Moreover, practitioners should not rely on this amendment to save them where the court orders expert disclosure by a date certain prior to the filing of the note of issue, as is the practice in the Commercial Division. See, e.g., 22 N.Y.C.R.R. § 202.70, Rule 13 (“The note of issue and certificate of readiness may not be filed until the completion of expert disclosure.”). But, for now, we can say that with the abrogation of the Singletree decision, the mere mention of that case will (hopefully) no longer trigger an uncontrollable response. Now, where do the Brillamaniacs find relief?! Slowly I turn, step by step, inch by inch . . . .

CPLR 3213 – Timing of summary judgment motion in lieu of complaint Bhanti v. Jha, 30 N.Y.S.3d 888 (2d Dep’t 2016) (“The plaintiffs commenced this action to recover on a promissory note by motion for summary judgment in lieu of complaint pursuant to CPLR 3213. However, they made the motion returnable on a date prior to the expiration of the time within which the defendant had to appear in the action, which was a fatal jurisdictional defect (citation omitted). Therefore, the Supreme Court properly granted that branch of the defendant's motion which was to dismiss the action.”).

CPLR 3213 – Defenses defeated Blumenstein v. Waspit Group, Inc., 2016 NY Slip Op 05075 (1st Dep’t 2016) (“In opposition, defendants failed to raise an issue of fact as to a bona fide defense (see id.). Their argument that the note was usurious improperly relies on facts extrinsic to the note (citations omitted). Their argument that the note was not an instrument for the payment of money only is defeated by their failure to establish that the note and the deed of settlement executed simultaneously with it were inextricably intertwined (citations omitted). While the note states that it was executed ‘pursuant to’ and ‘in consideration of’ the deed, it does not state that it was ‘subject to the terms and conditions of’ the deed (see id.). Nothing in the deed affects the value of the principal due under the note or otherwise alters defendants' obligations to pay under the note (citation omitted).”).

CPLR 3213 – Collusion Defense Barred By Terms of Absolute and Unconditional Guaranty (Digest – August 2015) Defenses to CPLR 3213 Summary Judgment in Lieu of Complaint Collusion Defense Barred by Express Language of Absolute and Unconditional Guaranty CPLR 3213 is an expedited method of resolving a finite set of issues. One is to enforce a foreign judgment, for example, where it was obtained by default and could not be enforced in New York under CPLR Article 54’s filing provisions. The other is in an action based on an instrument for the payment of money only, such as a promissory note. There has been much litigation over the years in connection with attempts to bring various agreements within CPLR 3213. See, e.g., Divito v. Zastawrny LLC, 129 A.D.3d 1668 (4th Dep’t 2015) (agreement for purchase of chiropractic practice is not instrument for payment only). Generally, if an instrument requires extrinsic evidence, it would not qualify for CPLR 3213 treatment. Cooperatieve Centrale Raiffeisen-Boerenleenbank, B.A. v. Navarro, 2015 N.Y. Slip Op. 04753 (June 9, 2015), presented a different issue. There was no question that the subject unconditional guarantee was an instrument for the payment of money. Instead, the defendant sought to avoid liability on the ground that the default judgment against him, which was the underlying debt, was obtained by the plaintiff’s collusion.

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The N.Y. Court of Appeals noted that guarantees are generally subject to normal contract construction principles and are to be enforced according to their plain meaning if complete, clear, and unambiguous on their face. Moreover, “absolute and unconditional” guarantees, those that obligate a guarantor to make payment without recourse to any defenses or counterclaims, are similarly enforceable. In fact, the Court acknowledged that absolute guarantees apply even to fraudulent inducement claims. The Court concluded that the subject guaranty was absolute and unconditional, and thus barred the defendant’s collusion defense: [D]efendant specifically agreed that his “liability under this Guaranty shall be absolute and unconditional irrespective of (1) any lack of validity or enforceability of the agreement; . . . or (iv) any other circumstance which might otherwise constitute a defense available to, or a discharge of, the Seller (Agra Canada) or a guarantor.” By its plain terms, in broad, sweeping and unequivocal language, the Guaranty forecloses any challenge to the enforceability and validity of the documents which establish defendant’s liability for payments arising under the Purchase Agreement, as well as to any other possible defense to his liability for the obligations of the Agra businesses. Id. at *5.

CPLR 3213 – On denial on motion here, formal pleadings must be served because motion papers “do not satisfactorily define the issues.” Mirham v. Awad, 131 A.D.3d 1211, 17 N.Y.S.3d 473 (2d Dep’t 2015): “Upon the denial of a plaintiff's motion for summary judgment in lieu of complaint, ‘the moving and answering papers shall be deemed the complaint and answer, respectively, unless the court orders otherwise’ (CPLR 3213). Here, ‘the moving and answering papers do not satisfactorily define the issues’ (citation omitted). Accordingly, under the circumstances of this case, rather than deeming the moving and answering papers to be the complaint and answer, formal pleadings must be served (citations omitted). In the event the plaintiff chooses to serve a formal complaint, he must do so within 30 days after service upon him of a copy of this decision and order. Since the action has already apparently been commenced by filing (see CPLR 304[a]), and since the Supreme Court, in the order entered January 10, 2014, properly denied the defendants' cross motion pursuant to CPLR 3211(a) to dismiss the action, the service, by the plaintiff, of a formal complaint need not be preceded by a second filing (citation omitted).”

CPLR 3213 – Use of Summary Judgment in Lieu of Complaint-obligations to make payment were absolute and unconditional Bhatara v. Futterman, 122 A.D.3d 509 (1st Dep’t 2014): “Plaintiff made a prima facie showing of his entitlement to summary judgment in lieu of complaint by producing the note executed by defendant for a $200,000 loan and proof of defendant's failure to pay in accordance with the note's terms (citation omitted). In opposition, defendant failed to raise a triable issue of fact. The court was not required to consider any extrinsic documents referenced in the note (citation omitted). That the note was secured by a combined 3% membership interest in a business owned by defendant does not ‘alter its essential character as an instrument for the payment of money only, and accordingly, is immaterial to plaintiff's right to relief pursuant to CPLR 3213’ (citation omitted). We note that in paragraph 14 of the note, defendant expressly agreed that his obligations to make payment under the note ‘shall at all times continue to be absolute and unconditional in all respects, and shall at al[l] times be valid and enforceable irrespective of any other agreements . . . which might otherwise constitute a defense to th[e]

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[n]ote.’ Further, defendant agreed in paragraph 9 of the note that no release of any security for the payment of the note shall affect his liability for payment under the note.”

CPLR 3213 – Use of Summary Judgment in Lieu of Complaint – Defects in Notice of Motion Segway of N.Y., Inc. v. Udit Group, Inc., 120 A.D.3d 789 (2d Dep’t 2014): CPLR 3213 notice of motion set return date prior to expiration of 30 day period to appear and copies of notice of motion served on defendants contained misstatement of location at which motion would be heard. “As such, the motion for summary judgment in lieu of complaint was made returnable to a location in Mineola at which the Supreme Court was not located, and at which the motion could not have been opposed. These defects in the notice of motion, under the particular circumstances of this case and in the context of an action commenced pursuant to CPLR 3213, created a greater possibility of frustrating the core principles of notice to the defendants (citations omitted). Accordingly, these defects constitute ‘jurisdictional defect[s] that courts may not overlook’ pursuant to CPLR 2001 (citations omitted). Since the Supreme Court failed to acquire personal jurisdiction, ‘all subsequent proceedings are thereby rendered null and void’ (citation omitted), and the default judgment entered against the defendants is ‘a nullity’ (citations omitted).”

CPLR 3215 – Clerk should not enter judgment where there is reference to extrinsic proof HSBC Bank USA, N.A. v. Wielgus, 131 A.D.3d 510, 15 N.Y.S.3d 170 (2d Dep’t 2015): “Although the stipulation provided that HSBC could enter a money judgment against Wielgus in the event of a default, it permitted entry of such a judgment only ‘upon ten (10) days notice’ to Wielgus. Thus, the stipulation was not one which provided for entry of a judgment upon default ‘without further notice.’ Moreover, the stipulation did not provide for entry of a judgment ‘in a specified amount.’ Rather, it provided that the judgment to be entered upon Wielgus's default would be calculated so as to ‘credit [Wielgus] for all payments made on account.’ The stipulation thus did not specify the exact principal sum of the judgment that HSBC would have the right to enter based on a default by Wielgus under the stipulation; rather, it provided for a formula that required reference to extrinsic proof as to exactly how much Wielgus might have already paid to HSBC prior to the default, or prior to the judgment. Accordingly, the entry of a clerk's judgment was not authorized by CPLR 3215(i)(1). Furthermore, as a general rule, a clerk's judgment should not be entered where, as here, the amount of the judgment can be determined only by reference to extrinsic proof (citations omitted). Generally, a judgment should be entered on application to the clerk only where ‘there can be no dispute as to the amount due’ (citation omitted). Under these circumstances, HSBC was required to apply to the court, rather than to the clerk, for an order enforcing the stipulation and granting leave to enter an appropriate judgment (citation omitted).”

CPLR 3215 – Default Judgment – Consumer Credit Transactions There are special notice and proof of default rules in consumer credit transactions, which were promulgated September 15, 2014 and were effective October 1, 2014. See Matter of Pinpoint Tech., LLC, 17339/10, NYLJ 1202677620027, at *1 (Civ., RI, J. Straniere Decided November 18, 2014). New rules were promulgated September 15, 2014, effective October 1, 2014.

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CPLR 3215(c) – No intent to abandon HSBC Bank USA, N.A. v. Traore, 139 A.D.3d 1009, 32 N.Y.S.3d 283 (2d Dep’t 2016) (“In December 2008, when the plaintiff took the preliminary step toward obtaining a default judgment of foreclosure and sale by moving for an order of reference (see RPAPL 1321[1]), it initiated proceedings for entry of the default judgment within one year of the defendants' default and, thus, did not abandon this action (citations omitted). Accordingly, the Supreme Court erred in applying CPLR 3215(c) and granting the defendant's cross motion to dismiss the action insofar as asserted against him on that basis.”).

CPLR 3215(c) – No intent to abandon Aurora Loan Servs., LLC v. Gross, 139 A.D.3d 772, 32 N.Y.S.3d 249 (2d Dep’t 2016) (“Here, the plaintiff initiated proceedings in June 2008 for the entry of a judgment of foreclosure and sale within one year of the defendants' default by filing the request for judicial intervention seeking an ex parte order of reference. There was no evidence that the plaintiff intended to abandon the action (citation omitted). Rather, it appears that the plaintiff was attempting to comply with newly imposed requirements for certain mortgage foreclosure actions, which were revised while the action was pending. Under these circumstances, the Supreme Court improvidently exercised its discretion in sua sponte directing the dismissal of the complaint pursuant to CPLR 3215(c), as no extraordinary circumstances existed to warrant dismissal (citation omitted).”).

CPLR 3215(c)– No intent to abandon Banc of Am. Mtge. Capital Corp. v. Hasan, 138 A.D.3d 903, 30 N.Y.S.3d 649 (2d Dep’t 2016) (“Here, in 2010, when the plaintiff took the preliminary step toward obtaining a judgment of foreclosure and sale by moving for an order of reference, it initiated proceedings for entry of the judgment of foreclosure and sale within one year of the defendants' default and, thus, did not abandon the action (citations omitted). Contrary to the appellant's contention, the withdrawal of the plaintiff's motion for an order of reference did not demonstrate that the plaintiff failed to initiate proceedings for entry of a judgment of foreclosure and sale. Therefore, the Supreme Court properly vacated the order dated December 12, 2013, insofar as it related to the appellant. Furthermore, the Supreme Court properly granted that branch of the plaintiff's motion which was to restore the action to active status insofar as it related to the appellant (citation omitted).”).

CPLR 3215(c) – Plaintiff did not abandon action Citimortgage, Inc. v. Espinal, 136 A.D.3d 857, 26 N.Y.S.3d 541 (2d Dep’t 2016) (“The Supreme Court also improvidently exercised its discretion in, sua sponte, directing the dismissal of the complaint pursuant to CPLR 3215(c), as no extraordinary circumstances existed to warrant dismissal (citation omitted). In September 2007, when the plaintiff took the preliminary step of obtaining a default judgment of foreclosure and sale by moving for an order of reference (see RPAPL 1321[1]), it initiated proceedings for the entry of the default judgment within one year of the defendant's default and, thus, did not abandon this action (citations omitted).”).

CPLR 3215(c) – proceedings taken to obtain default judgment US Bank N.A. v. Dorestant, 131 A.D.3d 467, 15 N.Y.S.3d 142 (2d Dep’t 2015): “It is not necessary for a plaintiff to actually obtain a default judgment within one year of the default in order to avoid dismissal pursuant to CPLR 3215(c) (citations omitted). Nor is a plaintiff required

128 to specifically seek the entry of a judgment within a year. ‘As long as “proceedings” are being taken, and these proceedings manifest an intent not to abandon the case but to seek a judgment, the case should not be subject to dismissal’ (citations omitted). Here, in 2009, when U.S. Bank took the preliminary step toward obtaining a default judgment of foreclosure and sale by moving, ex parte, for an order of reference, it initiated proceedings for entry of the default judgment of foreclosure and sale within one year of the defendants' default and, thus, did not abandon the action (citations omitted). Accordingly, the Supreme Court erred in granting Dorestant's cross motion pursuant to CPLR 3215(c) to dismiss the complaint insofar as asserted against him as abandoned.” (Citing Weinstein Korn & Miller)

CPLR 3215(f) – Irregularity in affidavit of nonmilitary service is not a jurisdictional defect Gantt v. North Shore-LIJ Health Sys., 31 N.Y.S.3d 864 (1st Dep’t 2016) (“We note, contrary to the motion court, that any irregularity in the affidavit of nonmilitary service submitted on plaintiff's motion for a default judgment did not rise to the level of a jurisdictional defect, since defendant Hilerio never made any pretense of either being on active military duty or being a military dependent at the time of her default (citation omitted). The motion court properly deemed defendants' answer served, in light of defendants' reasonable excuse for the delay, the relatively short delay, plaintiff's failure to demonstrate prejudice, and the strong preference in this State for deciding matters on the merits.”).

CPLR 3215 – Insufficient proof to enable court to determine that a viable cause of action exists Jacobsen v. S & F Serv. Ctr. Co., Inc., 131 A.D.3d 450, 15 N.Y.S.3d 149 (2d Dep’t 2015): “On her motion for leave to enter a default judgment pursuant to CPLR 3215, the plaintiff was required to submit proof of service of the summons and complaint, proof of the facts constituting the cause of action, and proof of the defendant LLC's default in answering or appearing (citations omitted). The plaintiff was required to allege enough facts to enable the court to determine that a viable cause of action exists (citation omitted). In her affidavit, the plaintiff stated merely that she ‘was caused to fall,’ without stating what caused her to fall. Since the plaintiff did not indicate what caused her to fall, she failed to allege enough facts in her affidavit to enable the court to determine that a viable cause of action exists (citations omitted). In addition, her complaint was verified only by her attorney, and not by a party with personal knowledge of the facts. Therefore, the complaint, by itself, was insufficient to enable the court to determine that a viable cause of action exists (citation omitted). Accordingly, that branch of the plaintiff's motion which was pursuant to CPLR 3215 for leave to enter judgment on the issue of liability against the defendant LLC should have been denied.”.

CPLR 3215(g)(4) – Conflict between departments – does notice requirement applicable to domestic or authorized foreign corporations apply to limited liability company? The First Department has found that it does. See Crespo v. A.D.A Mgmt and Mandy Associates, 292 A.D.2d 5, 739 N.Y.S.2d 49 (1st Dep’t 2002). However, the Second Department has ruled to the contrary. See Gershman v. Ahmad, 131 A.D.3d 1104, 16 N.Y.S.3d 836 (2d Dep’t 2015): “The Supreme Court should have granted the plaintiff's motion for leave to enter judgment against Billiard, as she submitted proof of (a) proper service of the summons and complaint, (b) the facts constituting her claim, by virtue of a complaint verified by the plaintiff, and (c) Billiard's default in answering the complaint (citations omitted). Contrary to Billiard's

129 argument, the plaintiff did not need to demonstrate her compliance with the additional notice requirement of CPLR 3215(g)(4). By its express terms, the notice requirement is limited to situations where a default judgment is sought against a ‘domestic or authorized foreign corporation’ which has been served pursuant to Business Corporation Law § 306(b), and does not pertain to a limited liability company such as Billiard (citations omitted).”

CPLR 3216, 22 NYCRR 202.48 – Failure to settle judgment results in case being dismissed as abandoned Rotbert v Rotbert, 2016 NY Slip Op 05241 (1st Dep’t 2016) (“Irrespective of the applicability of CPLR 3216 or whether the numerous conditions precedent to dismissal therein were satisfied prior to dismissal here, the untimely submission of the proposed judgment of divorce violated the Uniform Rules for Trial Courts (22 NYCRR) § 202.48, which provides, in pertinent part, that ‘[p]roposed orders or judgments, with proof of service on all parties where the order is directed to be settled or submitted on notice, must be submitted for signature, unless otherwise directed by the court, within 60 days after the signing and filing of the decision directing that the order be settled or submitted’ and that ‘[f]ailure to submit the order or judgment timely shall be deemed an abandonment of the motion or action, unless for good cause shown.’ It is clear from the December 5, 2007 transcript that the court directed plaintiff to settle judgment, which he failed to do. Furthermore, with respect to the seven-year delay, the court found that there was no good cause shown as plaintiff had failed to provide any explanation for the delay. Accordingly, the court was correct in vacating the erroneously signed judgment of divorce and dismissing the case as abandoned.”).

CPLR 3216 – Neglect to Prosecute– Plaintiff did not demonstrate intent to abandon Amos v. Southampton Hosp., 15 N.Y.S.3d 837 (2d Dep’t 2015): “Here, the record reveals that both the Hospital and the plaintiffs failed to timely comply with the Supreme Court's discovery orders. Thus, the delay in this case is partially attributable to the Hospital and, on this record, it cannot be said that the Hospital was prejudiced by any delay attributable to the plaintiffs. Moreover, the plaintiffs took steps to address the ongoing discovery disputes with respect to the Hospital even though those steps proved to be inadequate. In addition, after the plaintiffs timely moved, inter alia, for an extension of time to file the note of issue, the parties stipulated to adjourn a court-ordered compliance conference with respect to discovery issues. Under all the circumstances present here, it cannot be said that the plaintiffs demonstrated an intent to abandon the action or a pattern of persistent neglect and delay in prosecuting the action (citations omitted). Accordingly, the Supreme Court improvidently exercised its discretion in denying those branches of the plaintiffs' motion which were to vacate the 90-day notices and for leave to extend the time to serve and file a note of issue, and should have granted those branches of the motion. For the same reasons, the Supreme Court improvidently exercised its discretion in granting the respective cross motions of the Hospital and the Pediatrics defendants pursuant to CPLR 3216 to dismiss the complaint insofar as asserted against each of them, and should have denied those cross motions (citations omitted).”

CPLR 3216 – Neglect to Prosecute – 90 Day Demand Altman v. Donnenfeld, 119 A.D.3d 828, 990 N.Y.S.2d 542 (2d Dep’t 2014): “Here, upon receipt of the appellants' 90-day notice, the respondents did not file a note of issue within the 90- day period. However, the appellants refused certain requests to schedule a continued deposition

130 of the injured respondent and, after the 90-day notice was served, both parties demonstrated an intent to proceed with discovery. Further, there is no evidence that the appellants were prejudiced by the minimal delay involved in this case or that there was a pattern of persistent neglect and delay in prosecuting the action, or any intent to abandon the action. Under these circumstances, the Supreme Court providently exercised its discretion in excusing the respondents' failure to meet the deadline for filing the note of issue (citations omitted).” Belson v. Dix Hills A.C., Inc., 119 A.D.3d 623, 990 N.Y.S.2d 49 (2d Dep’t 2014): “In this case, the plaintiff demonstrated that he did not intend to abandon the action and that there were ongoing discovery proceedings conducted during the time period involved. Moreover, there was no evidence that the defendants were prejudiced by the plaintiff's failure to file a note of issue within the relevant 90-day period. Finally, the plaintiff demonstrated the potential merit of his case by submitting the transcripts of the depositions of the parties and a nonparty witness, as well as documentary evidence. Under these circumstances, it cannot be said that the Supreme Court improvidently exercised its discretion in denying the defendants' motion to dismiss the complaint for failure to prosecute the action.”

CPLR 3216 - CPLR 3216 Amendment – Neglect to Prosecute (Digest – May 2015) Court Demands Scrutinized Cadichon v. Facelle, 18 N.Y.3d 230, 938 N.Y.S.2d 232 (2011) highlighted one of those disturbing non-sanctioned court practices. In Cadichon, a stipulation signed by the court and counsel for the parties provided for a deadline to file the note of issue. Additionally, plaintiff’s counsel was served with and signed a demand for service and filing of the note of issue. Plaintiff did not file the note of issue by the deadline, and four days after the deadline, “unbeknownst to the parties,” and without a motion or court order, the case was dismissed by the court. Ultimately, the Court of Appeals found that the “ministerial dismissal” without a motion as required by CPLR 3216(b)(3) could not serve as a basis for dismissal for want of prosecution. Responding at least in part to the Cadichon decision, CPLR 3216 was amended (eff. Jan. 1, 2015, to provide that a court dismissal under CPLR 3216 can be made only with “notice to the parties,” and when the court serves a written demand, it is required to “set forth the specific conduct constituting the neglect, which conduct shall demonstrate a general pattern of delay in proceeding with the litigation.” In addition, prior to the amendment, one of the requirements under CPLR 3216 was that there could not be a dismissal until one year had elapsed since issue was joined. The amendment provides an alternative timing requirement where a preliminary conference (PC) order has been issued. That is, there can be no dismissal unless the greater of one year after joinder of issue or six months after the PC order has been issued, has elapsed. Interestingly, while the Cadichon Court refused to permit a CPLR 3216 dismissal, it did not express discomfort with ministerial dismissals, which are neither sanctioned by statute nor rule. These types of hidden practices present dangerous stumbling blocks to practicing attorneys and should be eliminated. And while such dismissals might be ministerial to the court, they are anything but to the litigants.

CPLR 3216(a) – Preliminary conference order does not qualify as proper demand Board of Mgrs. of the Lore Condominium v. Gaetano, 139 A.D.3d 550, 30 N.Y.S.3d 560 (1st Dep’t 2016) (“The motion court erred when it effectively dismissed the complaint pursuant to CPLR 3216(a) on the basis that plaintiff failed to file a note of issue and certificate of readiness by October 18, 2013, as required by both a preliminary conference order and a so-

131 ordered stipulation entered into by the parties. A condition precedent to dismissal pursuant to CPLR 3216(a) was not satisfied, since a written demand pursuant to CPLR 3216(b)(3) was never served upon plaintiff. Although court orders signed by the parties may constitute a written demand under CPLR 3216(b)(3) (citation omitted), the preliminary conference order does not qualify as such because it was unsigned by the parties (see id.), and it did not give plaintiff the required 90 days to serve and file the note of issue, or state that plaintiff's failure to timely do so would serve as a basis for a motion to dismiss (citations omitted). The stipulation, while signed by both parties, also fails to qualify as a written demand, because it does not contain the requisite statutory language (see id.).”).

CPLR 3408 – Residential foreclosure actions – Obligation to negotiate in good faith Deutsche Bank Natl. Trust Co. v. Twersky, 135 A.D.3d 895, 24 N.Y.S.3d 193 (2d Dep’t 2016) (“Here, the documentation the appellant submitted in support of her motion did not establish that the plaintiff failed to negotiate in good faith by, inter alia, refusing to accept the appellant's proposal of a lump sum payment of $276,593.55 in full satisfaction of the outstanding loan balance (citations omitted).”). LaSalle Bank, N.A. v. Dono, 135 A.D.3d 827, 24 N.Y.S.3d 144 (2d Dep’t 2016). (“The homeowner thereafter moved to impose a sanction upon the Bank for its failure to negotiate in good faith as required by CPLR 3408(f). The Supreme Court concluded that the homeowner demonstrated that the Bank failed to negotiate in good faith and imposed a sanction. The court abated all interest, disbursements, costs, and attorney's fees that had accrued during the period between October 1, 2010, and August 12, 2014, the date of the order. The court further directed that the Bank was permanently barred from collecting any interest, disbursements, costs, or attorney's fees in the future absent a further court order. We modify…. To conclude that a party failed to negotiate in good faith pursuant to CPLR 3408(f), a court must determine that ‘the totality of the circumstances demonstrates that the party's conduct did not constitute a meaningful effort at reaching a resolution’ (citations omitted). Here, contrary to the Bank's contention, the totality of the circumstances support the Supreme Court's conclusion that it failed to negotiate in good faith. The homeowner's submissions demonstrated that the Bank, among other things, engaged in dilatory conduct by ‘making piecemeal document requests, providing contradictory information, and repeatedly requesting documents which had already been provided’ (citations omitted). The Bank failed to offer any evidence in opposition to the homeowner's motion and did not controvert the homeowner's account of the mandatory settlement negotiations. Accordingly, under the circumstances, the Supreme Court properly concluded that the Bank violated CPLR 3408(f) by failing to negotiate in good faith (citations omitted).”). Aurora Loan Servs., LLC v. Chirinkin, 135 A.D.3d 676; 22 N.Y.S.3d 876 (2d Dep’t 2016) (“The defendants Nelli Chirinkin and Alexei Chirinkin (hereinafter together the defendants) failed to demonstrate that the plaintiff did not negotiate in good faith during the foreclosure settlement conferences (see CPLR 3408). There is nothing in the record to support the claim that the plaintiff engaged in conduct that improperly hindered the settlement process or needlessly prevented the parties from reaching a mutually agreeable resolution (citations omitted). Contrary to the defendants' contention, the plaintiff did not violate CPLR 3408 by refusing to lower the principal or the interest rate or by rejecting the terms of the defendants' counteroffer (citations omitted).”).

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CPLR 3408 – Court must provide notice before assessing sanction U.S. Bank N.A. v. McCrory, 137 A.D.3d 1517 (3d Dep’t 2016) (“We reverse. In a residential foreclosure action, the parties are obligated to participate in good faith in the settlement conference mandated under CPLR 3408 and 22 NYCRR 202.12-a, and the court is authorized to impose an appropriate sanction for a party's failure to comply (citation omitted). Since the April 2011 order was not appealed, Supreme Court's determination to dismiss the initial foreclosure action is not at issue here, and the court acted well within its equity powers in directing plaintiff to attach the dismissal order to any new action — in this way assuring that any assigned judge would be informed of the case history (citation omitted). Given that background, it is understandable that Supreme Court reacted to plaintiff's failure to comply with the earlier directive. That said, a party must be placed on notice and given an opportunity to be heard as a matter of due process before the court imposes a sanction (citations omitted). There is no indication in this record that the court provided such notice. Moreover, the circumstances presented are not so extraordinary as to warrant the severe penalty of a dismissal of the complaint with prejudice (citations omitted). This is particularly so since plaintiff was represented by new counsel and had previously entered into a loan modification agreement after defendants missed certain payments in 2008. We also note that Supreme Court's reliance on 22 NYCRR 202.26 (e) as authority for the dismissal was misplaced, for that rule concerning settlement authority applies to pretrial conferences after the filing of a note of issue, not a CPLR 3408 settlement conference. Accordingly, the complaint is reinstated and the matter remitted to Supreme Court for further proceedings.”).

CPLR 3408 – Supreme Court improvidently exercised discretion in imposing sanction permanently barring bank from collecting interest, disbursements, costs or attorneys’ fees LaSalle Bank, N.A. v. Dono, 135 A.D.3d 827, 24 N.Y.S.3d 144 (2d Dep’t 2016) (“The Bank further contends that the Supreme Court erred in imposing the sanction…. Here, the Supreme Court providently exercised its discretion in imposing a sanction that abated all interest, disbursements, costs, and attorney's fees that had accrued during the period between October 1, 2010, and August 12, 2014, the date of the order, since that period corresponds to the period during which the Supreme Court concluded that the Bank had failed to negotiate in good faith (citations omitted). However, the Supreme Court improvidently exercised its discretion to the extent that it imposed a sanction permanently barring the Bank from collecting any interest, disbursements, costs, or attorney's fees in the future absent further court order (citation omitted). Accordingly, we modify the order appealed from by deleting the provision permanently barring the Bank from collecting any interest, disbursements, costs, or attorney's fees in the future absent further court order.”).

CPLR 3408 – Mandatory settlement conference required in residential foreclosure action involving a “home” loan Richlew Real Estate Venture v. Grant, 131 A.D.3d 1223, 17 N.Y.S.3d 475 (2d Dep’t 2015):“Under the circumstances of this case, the Supreme Court should not have granted that branch of the motion of the defendant Leonard G. Grant (hereinafter the defendant) which was to transfer the case to the residential foreclosure part for a mandatory settlement conference pursuant to CPLR 3408. ‘CPLR 3408 does not apply to every residential foreclosure action’ (citation omitted). CPLR 3408 only mandates a settlement conference in a residential foreclosure

133 action involving a ‘home loan’ as that term is defined by RPAPL 1304, and when the ‘defendant is a resident of the property subject to foreclosure’ (citations omitted). RPAPL 1304(5)(a)(i)-(iv) defines a qualifying home loan as one in which, inter alia, the borrower is a natural person; the borrower incurs the debt primarily for personal, family, or household purposes; and the loan is secured by a mortgage on real property in this state ‘used or occupied, or intended to be used or occupied wholly or partly, as the home or [the] residence of one or more persons and which is or will be occupied by the borrower as the borrower's principal dwelling’ (citation omitted). Here, the conflicting affidavits submitted by the parties reveal a sharp factual dispute, inter alia, as to whether the subject loan was made for the defendant's personal, family, or household use, and whether the mortgaged premises was to be occupied as the defendant's principal dwelling. In light of this factual dispute, a hearing is necessary to determine whether the subject loan constitutes a ‘home loan’ as that term is defined by RPAPL 1304, and thus whether the defendant is entitled to a mandatory settlement conference pursuant to CPLR 3408.”). DaCosta-Harris v. Aurora Bank, FSB, 131 A.D.3d 1095, 17 N.Y.S.3d 156 (2d Dep’t 2015): “Contrary to the plaintiff's contention, the Supreme Court properly denied that branch of her motion which was to stay the defendants from selling her shares of stock. The plaintiff contended that she was entitled to a mandatory settlement conference pursuant to CPLR 3408 before Aurora sold her shares of stock. CPLR 3408 requires, in relevant part, that a court hold a mandatory settlement conference in ‘any residential foreclosure action involving a home loan as such term is defined in section thirteen hundred four of the real property actions and proceeding law’ (CPLR 3408[a]). RPAPL 1304 does not include, in its definition of ‘home loan,’ a loan secured by shares of stock and a proprietary lease from a corporation formed for the purpose of cooperative ownership in real estate (RPAPL 1304[5][a][iii]; cf. Banking Law §§ 6- l[1][e][iv]; 6-m[1][d][iv]). Accordingly, because the subject loan is not a home loan within the meaning of RPAPL 1304, the plaintiff is not entitled to a mandatory settlement conference pursuant to CPLR 3408.”.

CPLR 3408 – “Good Faith” Mandatory Settlement Conferences in Residential Mortgage Foreclosure Actions – Generates a lot of attention!  CitiBank, N.A. v. Barclay, 124 A.D.3d 174, 999 N.Y.S.2d 375 (1st Dep’t 2014) (Good faith is a two way street and the lender and borrower are obligated to cooperate with each other to enable the achievement of a reasonable resolution. Appellate Division reverses lower court sanction against lender barring it from collecting any interest from July 7, 2011 until the date of a final, supported determination on the homeowner’s loan modification application and the release of the case from the settlement part. Court finds lower court ignored homeowner’s actions that contributed to the delays. “Supreme Court gave no weight to Barclay's conduct, ignoring the reciprocal obligations imposed by CPLR 3408(f). While this Court is mindful of the remedial nature of CPLR 3408, the goals of the statute would not be served if we were to ignore the role that Barclay's own conduct played in delaying a resolution of this action. In light of the foregoing, we need not consider plaintiff's alternative arguments that even if the lack of good faith finding is supported by the record, the court lacked the statutory or regulatory authority to impose sanctions under CPLR 3408, and that in any event the sanctions imposed impermissibly rewrote the terms of the parties' loan agreement and were excessive.”).  U.S. Bank N.A. v. Smith, 123 A.D.3d 914 (2d Dep’t 2014) (“Courts are authorized to impose sanctions for violations of CPLR 3408(f) (citation omitted). However, ‘CPLR

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3408(f) does not set forth any specific remedy for a party's failure to negotiate in good faith’ (citation omitted). In such absence, ‘courts have resorted to a variety of alternatives in an effort to enforce the statutory mandate to negotiate in good faith’ (id.). The sanction imposed in this case, to-wit, barring the plaintiff from collecting interest on the mortgage loan for the period between October 5, 2012, and July 5, 2013, was a provident exercise of the Supreme Court's discretion (citation omitted).”).  Deutsche Bank Natl. Trust Co. v. Islar, 122 A.D.3d 566, 996 N.Y.S.2d 130 (2d Dep’t 2014) (“Since Justice Arthur Schack continues to flagrantly ignore this Court's precedent, as articulated in Wells Fargo Bank Minn., N.A. v Mastropaolo (42 AD3d at 239), holding that the defense of lack of standing is waived if not raised by the defendant in an answer or pre-answer motion to dismiss (citations omitted), we deem it appropriate to remit the matter to the Supreme Court, Kings County, for further proceedings before a different Justice.”);  US Bank N.A. v. Williams, 121 A.D.3d 1098, 995 N.Y.S.2d 172 (2d Dep’t 2014) (“Contrary to US Bank's contention, the Supreme Court providently exercised its discretion canceling certain interest accrued on the mortgage note after June 2010. ‘In an action of an equitable nature, the recovery of interest is within the court's discretion. The exercise of that discretion will be governed by the particular facts in each case, including any wrongful conduct by either party’ (citations omitted). The record demonstrates that the foreclosing parties repeatedly represented to the referee and to Williams that they were considering Williams for HAMP loan modification and repeatedly demanded that Williams submit additional documentation in support of that application, notwithstanding the prohibition against such a modification in the PSA, which they did not disclose until approximately 13 months after negotiations began. Under these circumstances, the Supreme Court providently exercised its discretion in finding that US Bank was not entitled to collect interest accrued as a result of its wrongful conduct (citations omitted). However, the Supreme Court improvidently exercised its discretion in canceling interest accrued between June 2010 and until such date as the parties agreed to loan modification, as the Supreme Court lacked authority to force US Bank to agree to modify the mortgage note (citations omitted). Rather, the court should have directed cancellation of interest accrued between June 2010 and the date on which settlement negotiations recommence (citations omitted). Further, the Supreme Court erred in barring US Bank from charging Williams an attorney's fee and costs incurred as a result of the action, as that provision of the order constituted an improper attempt to rewrite the mortgage note. Instead, upon its finding that the Referee's report was supported by the record, that sanctions were appropriate, and, in effect, that US Bank still was obligated pursuant to CPLR 3408 (f) to negotiate in good faith, the court should have barred US Bank from charging Williams an attorney's fee and costs incurred between the date of the initial settlement conference and the date on which settlement negotiations recommence (citations omitted).”).  See also HSBC Bank USA, N.A. v. Sene, 121 A.D.3d 755, 994 N.Y.S.2d 352 (2d Dep’t 2014) (lower court improperly sua sponte stayed proceedings to clear up standing issue not raised by plaintiff in her answer or pre-answer motion to dismiss).  US Bank N.A. v. Sarmiento, 121 A.D.3d 187, 991 N.Y.S.2d 68 (2d Dep’t 2014) (“Although CPLR 3408 is silent as to the sanctions or remedies that may be employed for violation of the good faith negotiation requirement, ‘[i]n the absence of a specifically authorized sanction or remedy in the statutory scheme, the courts must employ

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appropriate, permissible, and authorized remedies, tailored to the circumstances of each given case’ (Wells Fargo Bank, N.A. v. Meyers, 108 AD3d at 23). …We are cognizant that, in a foreclosure action, ‘[t]he court's role is limited to interpretation and enforcement of the terms agreed to by the parties, and the court may not rewrite the contract or impose additional terms which the parties failed to insert’ (citations omitted). Thus, in fashioning a remedy for a violation of the good-faith negotiation requirement set forth in CPLR 3408(f), courts should be mindful not to rewrite the contract at issue or impose contractual terms which were not agreed to by the parties. As the nature of the sanction in this case is unchallenged, our determination herein should not be construed as a deviation from the above-stated principle.”).  When originally enacted, the statute only applied to foreclosure actions involving a high cost loan consummated between January 1, 2003 and September 1, 2008 or a subprime or nontraditional home loan. Federal Natl. Mtge. Assn. v. Anderson, 119 A.D.3d 892, 991 N.Y.S.2d 85 (2d Dep’t 2014) (“In addition, although the current version of CPLR 3408 applies the settlement conference requirement to ‘any residential foreclosure action involving a home loan . . . in which the defendant is a resident of the property’ (CPLR 3408[a]), that version did not become effective until after this action was commenced (citations omitted). As the plaintiff correctly contends, the original version of CPLR 3408, enacted in 2008, was in effect at the time this action was commenced (citation omitted). Accordingly, the original version of the statute is applicable to this case (citation omitted). The original version of the statute ‘applied only to foreclosure actions involving high-cost home loans or subprime or nontraditional home loans’ (citations omitted). Since the loan at issue in this case did not constitute a high-cost home loan, a subprime home loan, or a nontraditional home loan, as those terms were defined in the original version of the statute, the plaintiff was not required to participate in a settlement conference at all (citation omitted).”).  Evans v. Argent Mtge. Co., LLC, 120 A.D.3d 618, 992 N.Y.S.2d 49 (2d Dep’t 2014) (“The Supreme Court's determination that the mortgage was invalid prejudiced Citifinancial in that it was never afforded the opportunity to present evidence refuting the court's sua sponte determination that a prior power of attorney was not recorded, or that if such defect existed, it did not affect Citifinancial's rights (citations omitted). We note that the Supreme Court's determination, in effect, vitiated substantive rights of Citifinancial, which was no longer able to litigate its rights in the dismissed Action No. 2, without giving it the opportunity to be heard on the issue decided (citations omitted)…Accordingly, under the circumstances of this case, we deem it appropriate to remit the matter to the Supreme Court, Kings County, for further proceedings before a different Justice (citations omitted).”).  Bank of N.Y. v. Castillo, 120 A.D.3d 598, 991 N.Y.S.2d 446 (2d Dep’t 2014) (“The Supreme Court also erred in, sua sponte, directing dismissal of the action in its entirety with prejudice (citations omitted). …Here, the Supreme Court was not presented with any extraordinary circumstances warranting sua sponte dismissal of the complaint. Moreover, the plaintiff was not ‘given fair warning that such a sanction was even under consideration,’ as there is no indication that it was advised that the borrower's motion was being revived or that the court was independently considering dismissal based, apparently, on the plaintiff's conduct in the intervening two years (citations omitted). In addition, the Supreme Court's ‘consideration of facts outside of the record, absent the

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parties' consent, constituted error’ (citation omitted). In light of the Supreme Court's intemperate remarks, which exhibited bias against the plaintiff, and its improper reliance on its personal opinion of the federal bailout of mortgage lenders rather than on the evidence before it, we remit the matter to the Supreme Court, Orange County, for further proceedings before a different Justice (citations omitted).”).  Bank of N.Y. v. Cepeda, 120 A.D.3d 451, 989 N.Y.S.2d 910 (2d Dep’t 2014) (“Moreover, the Supreme Court abused its discretion in, sua sponte, directing dismissal of the complaint and the cancellation of the notice of pendency filed against the subject property for lack of standing. …Here, the Supreme Court was not presented with extraordinary circumstances warranting sua sponte dismissal of the complaint and cancellation of the notice of pendency. Since the defendants did not answer the complaint and did not make pre-answer motions to dismiss the complaint, they waived the defense of lack of standing (citations omitted). Furthermore, a party's lack of standing does not constitute a jurisdictional defect and does not warrant a sua sponte dismissal of the complaint by the court (citations omitted). Under the circumstances of this case, and in light of our past admonition in HSBC Bank USA, N.A. v Taher (104 AD3d 815), we deem it appropriate to remit the matter to the Supreme Court, Kings County, for further proceedings before a different Justice.”).  Deutsche Bank Natl. Trust Co. v. Meah, 120 A.D.3d 465, 991 N.Y.S.2d 92 (2d Dep’t 2014) (“In this mortgage foreclosure action, the Supreme Court, in an order dated June 19, 2009, directed a reference to ‘ascertain and compute the amount due to the plaintiff.’ That order was based, in part, on an affidavit submitted by the plaintiff that had been executed by one Keri Selman and had been sworn to on May 8, 2008. Counsel for the plaintiff, upon review of the documents that had previously been submitted, subsequently determined that the plaintiff was unable to confirm either the validity of the process by which the Selman affidavit had been notarized or that Selman had undertaken a ‘proper review of the records,’ as required by Administrative Orders 548/10 and 431/11 of the Chief Administrative Judge. The plaintiff then submitted the motion now under review, in which it sought, inter alia, a new order of reference to compute the amount owed to it based on new papers. The Supreme Court, inter alia, in effect, denied that branch of the motion which was for a new order of reference and, sua sponte, directed dismissal of the complaint and the cancellation of a certain notice of pendency. …The fact that the plaintiff's attorney attempted to comply, in good faith, with an Administrative Order of the Chief Administrative Judge that did not exist at the time that the action was commenced, or at the time of the plaintiff's prior motion for a reference, does not qualify as such an ‘extraordinary circumstance.’ Nothing in the Administrative Orders requires the dismissal of an action merely because the plaintiff's attorney discovers that there was some irregularity or defect in a prior submission, nor is the plaintiff effectively required to commence an entirely new action (citation omitted). Accordingly, the plaintiff is entitled to the issuance of a new order of reference.”).  Bank of N.Y. v. Mulligan, 119 A.D.3d 716, 989 N.Y.S.2d 295 (2d Dep’t 2014) (“The Supreme Court erred when it, sua sponte, directed the dismissal of the complaint and the cancellation of the notice of pendency filed against the subject property for lack of standing (citation omitted). …‘[A] party's lack of standing does not constitute a jurisdictional defect and does not warrant sua sponte dismissal of a complaint by the court’ (citations omitted). Here, the Supreme Court was not presented with any

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extraordinary circumstances warranting sua sponte dismissal of the complaint and cancellation of the notice of pendency.”).  US Bank N.A. v. Sarmiento 121 A.D.3d 187, 1991 N.Y.S.2d 68 (2d Dep’t 2014) (the Second Department set forth the “proper standard” to determine if a party acted in good faith under CPLR 3408(f): “Therefore, we hold that the issue of whether a party failed to negotiate in ‘good faith’ within the meaning of CPLR 3408(f) should be determined by considering whether the totality of the circumstances demonstrates that the party's conduct did not constitute a meaningful effort at reaching a resolution. We reject the plaintiff's contention that, in order to establish a party's lack of good faith pursuant to CPLR 3408(f), there must be a showing of gross disregard of, or conscious or knowing indifference to, another's rights. Such a determination would permit a party to obfuscate, delay, and prevent CPLR 3408 settlement negotiations by acting negligently, but just short of deliberately, e.g., by carelessly providing misinformation and contradictory responses to inquiries, and by losing documentation. Our determination is consistent with the purpose of the statute, which provides that parties must negotiate in ‘good faith’ in an effort to resolve the action, and that such resolution could include, ‘if possible,’ a loan modification (citations omitted). Where a plaintiff fails to expeditiously review submitted financial information, sends inconsistent and contradictory communications, and denies requests for a loan modification without adequate grounds, or, conversely, where a defendant fails to provide requested financial information or provides incomplete or misleading financial information, such conduct could constitute the failure to negotiate in good faith to reach a mutually agreeable resolution.”)

CPLR 4101 – Petition sought equitable relief – permanent injunction - vitiates right to jury trial Matter of Weslowski v. Day, 136 A.D.3d 931, 24 N.Y.S.3d 921 (2d Dep’t 2016) (“As fully set forth in our decision in a previous appeal (citation omitted), the determination which is the subject of this proceeding conditioned the disclosure of public records pursuant to the Freedom of Information Law (Public Officers Law § 84 et seq.) upon the petitioner's prepayment of certain estimated costs. In his petition pursuant to CPLR article 78 to review that determination, the petitioner seeks relief which includes a permanent injunction against the County of Rockland to prohibit it from imposing the estimated costs and to desist from engaging in practices designed to impair his access to the requested records. Inasmuch as the petition sought equitable relief in the form of a permanent injunction, the petitioner was not entitled to a jury trial (citations omitted). Accordingly, the Supreme Court properly, in effect, struck the petitioner's demand for a jury trial.”) (citing Weinstein, Korn & Miller).

CPLR 4403 – Referee reports are not binding and subject to court review Barry v. Clermont York Assoc., LLC, 2014 NY Slip Op 3335(U), 2014 N.Y. Misc. LEXIS 5627 (Sup. Ct. N.Y. Co. 2015): “The court has broad discretion to confirm or reject, in whole or in part, the Report. It is well settled that referee reports are not binding and are subject to court review. 8-R4403 Weinstein-Korn-Miller, NY Civ. Prac. ¶ 4403.05.” (Citing Weinstein Korn & Miller)

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CPLR 4404 – Lower court should not have ordered new trial Lariviere v. New York City Tr. Auth., 131 A.D.3d 1130, 17 N.Y.S.3d 153 (2d Dep’t 2015): “Under CPLR 4404(a), a trial court has the discretion to order a new trial ‘in the interest of justice’ (citations omitted). In considering whether to exercise its discretionary power to order a new trial based on errors at trial, the court ‘must decide whether substantial justice has been done, whether it is likely that the verdict has been affected . . . and must look to [its] own common sense, experience and sense of fairness rather than to precedents in arriving at a decision' (citations omitted). On appeal, however, this Court is invested with the power to decide whether the trial court providently exercised its discretion (see id.). Here, we conclude that the Supreme Court improvidently exercised its discretion in ordering a new trial. The plaintiffs' claims regarding defense counsel's conduct center on remarks made by defense counsel during her summation, although they also challenge her cross-examination of certain witnesses. Some of the challenged conduct was certainly improper, and we do not condone it (citation omitted). Nonetheless, viewing defense counsel's conduct in the context of the entire trial, we conclude that it was not pervasive or prejudicial, or so inflammatory as to deprive the plaintiffs of a fair trial (citations omitted).” (citing Weinstein Korn & Miller)

CPLR 4404(a) – Extension of 15-day limit via parties’ stipulation Gray Line New York Tours, Inc. v. Big Apple Moving & Stor., Inc., 2015 N.Y. Misc. LEXIS 2392, 2015 NY Slip Op 31159(U) (Sup. Ct. N.Y. Co. 2015): “Normally, a motion to challenge a jury verdict pursuant to CPLR §4404(a) is governed by the 15-day time limit of CPLR §4405. This Court permitted the parties to stipulate to extend their time to present written arguments.” (Citing Weinstein Korn & Miller)

CPLR 4405 – A court could not decide a late motion “in the interest of judicial economy” and to “prevent further unnecessary motion practice.” Rather, the plaintiff was required to show good cause for the delay in making the motion. Rice v. Rice, 135 A.D.3d 928, 25 N.Y.S.3d 232 (2d Dep’t 2016) (“Even if the plaintiff's motion were deemed a motion, in effect, pursuant to CPLR 4404(b) to set aside portions of the decision dated June 26, 2013, the plaintiff's motion, made on August 2, 2013, was untimely made, as it was not made within 15 days of the decision (see CPLR 4405). The Supreme Court erred in concluding that it could still reach the merits of the motion ‘in the interest of judicial economy’ and to ‘prevent further unnecessary motion practice.’ Rather, the plaintiff was required to demonstrate good cause for her delay. Since the plaintiff's motion was not made within 15 days after the decision and the plaintiff failed to demonstrate good cause for the delay, the motion should have been denied (citations omitted).”).

CPLR 4503- Ambac Assur. Corp. v. Countrywide Home Loans, Inc., 2016 NY Slip Op 04439 (Digest – July 2016) Divided Court of Appeals Imposes Litigation Requirement on Common-Interest Privilege Holds Communications Prior to Closing of Merger Not Protected

Generally, the presence of a third party to a communication between counsel and client waives the attorney-client privilege. The common-interest privilege, however, is an exception. Under this doctrine, the privilege will not be destroyed by the third party’s presence “if the communication is for the purpose of furthering a nearly identical legal interest shared by the

139 client and the third party.” Ambac Assur. Corp. v. Countrywide Home Loans, Inc., 124 A.D.3d 129 (1st Dep’t 2014). There was a conflict among the Appellate Division Departments as to whether the communication has to be made in connection with a pending action or “in reasonable anticipation of litigation.” The Second Department had taken this narrower view, while the First Department in Ambac ruled that the communication need not be tied to litigation. That was until a divided New York State Court of Appeals stepped in and held there to be a litigation requirement. Ambac concerned a discovery dispute arising out of an action brought by Ambac, a financial guaranty insurer, that guaranteed payments on residential mortgage-backed securities (RMBS) issued by Countrywide and related entities. Ambac claimed that Countrywide fraudulently induced it to insure the RMBS transactions and breached contractual representations. Ambac also sued Bank of America Corporation (BOA) based on its merger with Countrywide. The crux of the discovery dispute was BOA’s withholding of some 400 communications that occurred between BOA and Countrywide after the merger plan was signed but before the merger closed. BOA argued that the communications were protected from disclosure by the attorney-client privilege because they related to legal issues that both companies had to resolve jointly to successfully complete the merger. BOA claimed that the merger agreement “evidenced the parties’ shared legal interest in the merger’s ‘successful completion’ as well as their commitment to confidentiality, and therefore shielded the relevant communications from discovery.” Ambac Assur. Corp. v. Countrywide Home Loans, Inc., 2016 N.Y. Slip Op. 04439 (June 9, 2016) at *2–3. Ambac moved to compel, arguing that because both BOA and Countrywide had shared voluntarily confidential material before the merger closed, they had waived the attorney-client privilege. An appointed special referee granted Ambac’s motion, noting that generally the exchange of privileged communications constitutes a waiver of the attorney-client privilege. The referee added that the “common interest” doctrine is an exception to the waiver rule, but found that for the exception to apply there must be a common legal interest in a pending or reasonably anticipated litigation, which was not the case here. BOA moved to vacate the special referee’s decision and order, arguing that its communications with Countrywide were protected even in the absence of pending anticipated litigation. The Supreme Court denied the motion, finding that there had to be a reasonable anticipation of litigation for the common-interest doctrine to apply. The Appellate Division reversed, concluding that the better policy would be not to require that the communication be tied to litigation. A majority of the New York State Court of Appeals reversed the Appellate Division order, holding that the litigation requirement “that has historically existed in New York” applied and that the common-interest doctrine should not be expanded “to protect shared communications in furtherance of any common legal interest.” Id. at *6. It found that the benefits in extending the doctrine to communications made in the absence of pending or anticipated litigation were outweighed by the substantial loss of relevant evidence and the potential for abuse. The Court noted that in a non-litigation setting, there may be parties asserting common legal interests, who are really protecting non-legal or exclusively business interests. It rejected BOA’s argument that the common-interest doctrine should be coextensive with the attorney- client privilege, which is not tied to the contemplation of litigation because the doctrine itself is not an evidentiary privilege or an independent basis for the attorney-client privilege (citation omitted). Rather, it limits the circumstances under

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which attorneys and clients can disseminate their communications to third parties without waiving the privilege, which our courts have reasonably construed to extend no further than communications related to pending or reasonably anticipated litigation. Id. at *8. The dissent pointed out that [g]iven that the attorney-client privilege has no litigation requirement and the reality that clients often seek legal advice specifically to comply with legal and regulatory mandates and avoid litigation or liability, the privilege should apply to private client-attorney communications exchanged during the course of a transformative business enterprise, in which the parties commit to collaboration and exchange of client information to obtain legal advice aimed at compliance with transaction-related statutory and regulatory mandates. Id. at *9. The dissent emphasized that a majority of federal courts and a significant number of state courts that have addressed the issue have held that the privilege applied even if litigation is not pending or reasonably anticipated.

CPLR 4503 – Communications relating to advice law firm’s in-house general counsel gave to attorneys in firm relating to their ethical obligations in representing firm client not subject to disclosure Stock v. Schnader Harrison Segal & Lewis LLP, 2016 NY Slip Op 05247 (1st Dep’t 2016) (“The primary issue on this appeal is whether attorneys who have sought the advice of their law firm's in-house general counsel on their ethical obligations in representing a firm client may successfully invoke attorney-client privilege to resist the client's demand for the disclosure of communications seeking or giving such advice. We hold that such communications are not subject to disclosure to the client under the fiduciary exception to the attorney-client privilege (citation omitted) because, for purposes of the in-firm consultation on the ethical issue, the attorneys seeking the general counsel's advice, as well as the firm itself, were the general counsel's ‘ real clients'’ (citations omitted). Further, we decline to adopt the ‘current client exception,’ under which a number of courts of other jurisdictions (citation omitted) have held a former client entitled to disclosure by a law firm of any in-firm communications relating to the client that took place while the firm was representing that client. Because we also find unavailing the former client's remaining arguments for compelling the law firm and one of its attorneys to disclose the in-firm attorney-client communications in question, we reverse the order appealed from and deny the motion to compel.”).

CPLR 4503 – Attorney- Client Privilege (Digest – May 2015) Watch What You Say – and When You Say It! Attorney Statements Made Prior to Commencement of Litigation Protected by Qualified Privilege if Pertinent to Good-Faith Anticipated Litigation As lawyers know, material and pertinent statements made by an attorney in connection with an action are absolutely privileged and protected from liability for defamation. But how about statements made before there is a litigation? Are they protected? Resolving a conflict among the Departments of the Appellate Division, the N.Y. Court of Appeals held in Front v. Khalil, 24 N.Y.3d 713, 4 N.Y.S.3d 581, 28 N.E.3d 15 (2015), that statements made by attorneys prior to the commencement of litigation are protected by a qualified privilege if the statements

141 are pertinent to good-faith anticipated litigation. Thus, a defamation cause of action based on those statements cannot lie. The statements at issue in this action were made in an April 2011 letter sent by plaintiff Front’s counsel to defendant Khalil. The letter accused Khalil, plaintiff’s former director of engineering of some really bad things, including: attempting to steal plaintiff’s confidential and proprietary information; engaging in an illegal competing side business, which diverted business opportunities from plaintiff; misappropriating trade secrets; and violating codes of conduct and the duty of loyalty. The cease and desist letter sought the return of proprietary information and demanded that Khalil not contact plaintiff’s clients. A similar cease and desist letter was sent to Khalil’s subsequent employer, one of plaintiff’s competitors, enclosing the earlier letter to Khalil. Six months later, when neither Khalil nor his employer complied, plaintiff brought this action against Khalil and his employer. Khalil then brought a third-party action against Front’s counsel, alleging defamation and other claims arising out of the offending correspondence. The critical issue was whether the cease and desist letter was protected as privileged. The Supreme Court found the letter to be “absolutely” privileged, as it clearly related to litigation and ruled the six-month gap between sending the letter and commencing the action was of no consequence. The Appellate Division affirmed, concluding that the statements in the letter were “absolutely” privileged since they were made in the context of “prospective litigation.” While the N.Y. Court of Appeals affirmed, it found that a qualified, rather than an absolute privilege, applied to the statements because they were made prior to litigation. Since its 1897 decision in Youmans v. Smith, 153 N.Y. 214 (1897), the Court has held that attorney statements made in the course of an action, which “are material and pertinent to the questions involved,” are absolutely immune from defamation claims. What had not been directly addressed by the Court was whether a privilege applied to statements made in connection with prospective litigation. The Court noted that the Appellate Division Departments had split on this issue and concluded: The rationale supporting the application of privileged status to communication made by attorneys during the course of litigation is also relevant to pre-litigation communication. When litigation is anticipated, attorneys and parties should be free to communicate in order to reduce or avoid the need to actually commence litigation. Attorneys often send cease and desist letters to avoid litigation. Applying privilege to such preliminary communication encourages potential defendants to negotiate with potential plaintiffs in order to prevent costly and time-consuming judicial intervention. Communication during this pre-litigation phase should be encouraged and not chilled by the possibility of being the basis for a defamation suit. However, the Court was unwilling to extend an absolute privilege to such pre-action statements, instead opting for a qualified privilege, applying only to statements pertinent to a good-faith anticipated litigation: We recognize that extending privileged status to communication made prior to anticipated litigation has the potential to be abused. Thus, applying an absolute privilege to statements made during a phase prior to litigation would be problematic and unnecessary to advance the goals of encouraging communication prior to the commencement of litigation. To ensure that such communications are afforded sufficient protection the privilege should be qualified. Rather than applying the general malice standard to this pre-litigation stage, the privilege should only be applied to statements pertinent to a good-faith anticipated litigation. This requirement ensures that privilege does not protect attorneys who are

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seeking to bully, harass, or intimidate their client’s adversaries by threatening baseless litigation or by asserting wholly unmeritorious claims, unsupported in law and fact, in violation of counsel’s ethical obligations. Therefore, we hold that statements made prior to the commencement of an anticipated litigation are privileged, and that the privilege is lost where a defendant proves that the statements were not pertinent to a good-faith anticipated litigation. The Court concluded that at the time the letters were sent, Front’s attorneys had a good- faith basis to anticipate litigation and the statements were pertinent to the anticipated litigation. Attorneys drafting such letters on behalf of their clients should be careful and prepared to establish that the statements made were pertinent to a good-faith anticipated litigation. Otherwise, those statements might not be protected and instead be viewed as actionable.

CPLR 4503 – Attorney-Client Privilege – New York Law Applies to Documents in Switzerland Sebastian Holdings, Inc. v. Deutsche Bank AG, 123 A.D.3d 437 | 998 N.Y.S.2d 326 (1st Dep't 2014): Deutsche Bank withheld or redacted documents reflecting communications between employees and in house counsel of its private wealth management division, Deutsche Bank Suisse in Geneva Switzerland. Plaintiff moved to compel, arguing that Swiss law applied and it did not recognize attorney-client privilege with communications with in-house counsel. The Appellate Division agreed with the lower court that stipulated orders entered into by the parties initiating the Hague Convention process directed that discovery was to proceed under New York Civil Practice Law and Rules were dispositive on the issue of which law to apply. “We agree with the motion court that the stipulated orders, directing that discovery is to proceed under the CPLR, are dispositive. Indeed, the Request specifically states that Deutsche Bank would prepare a privilege log ‘in accordance with the standards of the New York Civil Practice Law and Rules for determination by the Court upon application as to such privilege designations and redactions.’ We reject plaintiff's assertion that this language creates a reservation of rights on privilege challenges; on the contrary, the language merely allows plaintiff to challenge Deutsche Bank's privilege designation and redactions. Accordingly, the motion court properly concluded that privilege determinations are governed by New York law, as the parties stipulated.”

CPLR 4503 – Attorney-Client Privilege – Common Interest Privilege The traditional rule is that the presence of a third-party waives the attorney-client privilege. See People v. Harris, 57 N.Y.2d 335, 442 N.E.2d 1205, 456 N.Y.S.2d 694 (2d Dep’t 1982); People v. Buchanan, 145 N.Y. 1, 39 N.E. 846 (1895); Hyatt v. State of Cal. Franchise Tax Bd., 105 A.D.3d 186, 205, 962 N.Y.S.2d 282 (2d Dep’t 2013); HSH Nordbank AG N.Y. Branch v. Swerdlow, 259 F.R.D. 64 (S.D.N.Y. 2009). The common-interest privilege is an exception to that rule and provides that the privilege will not be destroyed even if a third party is present at the time of the communication between attorney and client “if the communication is for the purpose of furthering a nearly identical legal interest shared by the client and the third party.” Ambac Assur. Corp. v. Countrywide Home Loans, Inc., 124 A.D.3d 129, 998 N.Y.S.2d 329 (1st Dep't 2014). The doctrine requires that (1) the communication qualify for protection under the attorney-client privilege, and (2) the communication be made for the purpose of furthering a legal interest or strategy common to the parties. Ambac Assur. Corp. v. Countrywide Home Loans, Inc., 124 A.D.3d 129, 998 N.Y.S.2d 329 (1st Dep't 2014); U.S. Bank Natl. Assn. v. APP Intl. Fin. Co., 33 A.D.3d 430, 823 N.Y.S.2d 361 (1st Dep't 2006). There is a conflict, however,

143 over whether there is a third requirement, that is, that the communication must be made in connection with a pending action or “in reasonable anticipation of litigation.” The Second Department finds there is such a requirement. See e.g., Hyatt v. State of Cal. Franchise Tax Bd., 105 A.D.3d 186, 205, 962 N.Y.S.2d 282 (2d Dep’t 2013). Recently, however, the First Department found to the contrary. Ambac Assur. Corp. v. Countrywide Home Loans, Inc., 124 A.D.3d 129, 998 N.Y.S.2d 329 (1st Dep't 2014).

CPLR 4504, 4507 – Waiving privilege by placing mental condition at issue Jones v. FEGS-WeCARE/Human Resources, NYC, 139 A.D.3d 627, 30 N.Y.S.3d 860 (1st Dep’t 2016) (“Plaintiff waived the physician-patient and psychologist-patient privileges that apply to the records (citations omitted), because she placed her mental condition at issue by requesting damages for psychological injuries (citations omitted) and by challenging the reasonableness of FEGS's assessment of her psychological state. We find the motion court properly determined that the requested authorizations are discoverable, but should have limited it from August 2012 to the present.”).

CPLR 4504 – Chanko v. American Broadcasting Cos. Inc., 27 N.Y.3d 46 (2016) (Digest – May 2016) Filming Patient’s Medical Treatment and Death Supports Claim for Breach of Physician- Patient Confidentiality But Does Not Support Cause of Action for Intentional Infliction of Emotional Distress Reality TV has been trending for some time now, extending to crime and medical themes. NY Med was a documentary series about professionals treating patients suffering from medical trauma. On the day that the ABC crew was filming at the New York and Presbyterian Hospital, the decedent was in the emergency room of the hospital being treated for injuries sustained after being hit by a car. Significantly, although the hospital and chief resident had agreed to permit the filming, neither the decedent nor his family were consulted. Their consent was never obtained either for the filming or for the crew’s presence. Within an hour after the decedent arrived at the hospital, the chief resident declared him dead. The declaration of death and the moment the doctor advised the family of the death were all filmed. Sixteen months later, the decedent’s widow became aware of the recording when she watched the show and recognized the scene. She then informed the other plaintiffs, who also watched the show. The plaintiffs brought this action against the network, the hospital, and the doctor. In Chanko v. American Broadcasting Cos. Inc., 2016 N.Y. Slip Op. 02478 (March 31, 2016), the lower court granted the defendants’ separate motions to dismiss to the extent of dismissing all causes of action, except for the breach of doctor-patient confidentiality claim against the hospital and doctor, and intentional infliction of emotional distress cause of action against the network, the hospital, and the doctor. The Appellate Division modified the order, dismissing the entire action. Initially, the New York State Court of Appeals ruled on the privilege issue. Because the plaintiff did not cross-appeal to the dismissal of this cause of action against the network, the Court only addressed the claim against the hospital and doctor. It noted that the physician-patient privilege applies “not only to information orally communicated by the patient, but also to information ascertained by observing the patient’s appearance and symptoms, unless those

144 factual observations would be obvious to lay observers.” Id. at *3. The Court rejected the argument that the medical information disclosed must be “embarrassing or something that patients would naturally wish to keep secret.” Id. at *5. Instead, whether the confidentiality inherent in the fiduciary physician-patient relationship is breached does not depend on the nature of the medical treatment or diagnosis about which information is revealed. Our broad rule protects all types of medical information and provides consistency, avoiding case-by-case determinations of what is considered embarrassing to any particular patient. Id. The Court similarly rejected the argument that because the decedent’s image was blurred and unidentifiable when aired on television, confidential information was not disclosed. It noted that at least one other person who watched the broadcast recognized the decedent, that network employees who filmed and edited the recording were present when the hospital and doctor received confidential medical information, and that 13 people were listed on the DVD as being involved in editing raw footage. Moreover, the plaintiff’s lack of consent could be inferred from the alleged violation of privacy statutes and patient confidentiality. Finally, the Court found that the allegations of damages without detail were sufficient since “discovery has not yet taken place, and plaintiffs have viewed only a few minutes of aired video footage from which to craft their allegations.” Id. at *6. With respect to the intentional infliction of emotional distress cause of action, however, the Court concluded that although the complaint alleged the required elements of such a cause of action, they were insufficient to satisfy the requirement that the defendants’ conduct be “extreme and outrageous.” While acknowledging that the defendants’ conduct was offensive, it was not so extreme and outrageous as to satisfy our exceedingly high legal standard. The footage aired by ABC was edited so that it did not include decedent’s name, his image was blurred, and the episode included less than three minutes devoted to decedent and his circumstances. We cannot conclude that defendants’ conduct in allowing the broadcasting of that brief, edited segment is more outrageous than other conduct that this Court and the Appellate Division Departments have determined did not rise to the level required to establish “extreme and outrageous conduct” sufficient to state a cause of action for intentional infliction of emotional distress. Id. at *7–8.

CPLR 4504 - People v. Rivera, 25 N.Y.3d 256 (2015) (Digest – July 2015) Psychiatrist Reveals Defendant’s Admission at Trial Right or Obligation to Reveal Confidential Information Does Not Abrogate Privilege In People v. Rivera, 2015 N.Y. Slip Op. 03764 (May 5, 2015), a child, in her mother’s presence, told the pediatrician that she had been sexually abused by the defendant. The pediatrician then reported the accusation to the Administration for Children’s Services (ACS). The child’s mother informed the defendant’s mother of the accusation, who then relayed that information to the defendant. The defendant was subsequently admitted to Columbia Presbyterian Hospital’s psychiatric emergency room, complaining of depression and suicidal thoughts. There, the defendant told his treating psychiatrist that he had sexually abused the child. After the People moved to subpoena the defendant’s psychological records, including any admissions of guilt, the lower court reviewed the records in-camera and ruled that although the defendant’s admission was privileged, it was admissible at trial because the psychiatrist had

145 disclosed the abuse to ACS. After the child testified to the abuse at trial, the People called the defendant’s psychiatrist who testified that the defendant had admitted to sexually abusing the child. Despite the defendant’s denial of any wrongdoing, he was convicted and sentenced to 13 years to life. The Appellate Division unanimously reversed the judgment and remanded the case for a new trial, finding that the trial court erred in permitting the psychiatrist to testify about the defendant’s admission. The Court of Appeals affirmed, holding that the trial court ruling violated the physician-patient privilege. The People argued that since the legislature established several exceptions to the privilege, the defendant could not have reasonably expected his statements to remain confidential. The Court rejected this argument, finding that even if a doctor may or must by law report instances of abuse or threatened future harm to authorities, including confidential information, the evidentiary privilege under CPLR 4504(a) is not abrogated. The Court noted that while confidentiality is an ethical requirement essential to treatment, privilege is a rule of evidence protecting communications and medical records. Moreover, the Court maintained that if the legislature wished to carve out another exception it would have done so; in fact, CPLR 4504 requires certain physicians and other professionals to disclose information under certain circumstances. The Court stressed that the physician-patient privilege should be afforded a “broad and liberal construction”; there is a difference between admitting a statement in a child protection proceeding and introducing a statement at the defendant’s criminal trial; and there is no express exception applicable here. Thus, the Court held that the admission of the psychiatrist’s testimony violated CPLR 4504(a), it would not curtail the privilege here as the People requested, and the error was not harmless.

CPLR 4506 – People v. Bandalamenti, 2016 NY Slip Op 02556 (2016) (Digest – May 2016) Father Secretly Records Conversation Between His Son and the Defendant Vicarious Consent Supports Use and Admissibility of Recording at Defendant’s Trial In People v. Badalamenti, 2016 N.Y. Slip Op. 02556 (April 5, 2016), the issue related to the admissibility of a recording done by a father without his son’s or the defendant’s knowledge or consent. The defendant and his girlfriend had been arrested on charges that they had hit her five-year-old son. The boy’s father, who had suspicions that his son was being mistreated, tried to call the mother on several occasions in vain, with the calls going to voicemail. A phone call then went through; although no one said anything, the father was able to hear what was going on in the defendant’s apartment. After he heard the defendant yelling and threatening to beat and punch the child, the father used a voice memo function on his cellphone to record the conversation. In the recording, played for the jury at the defendant’s trial, the defendant told the boy that he was going to hit him repeatedly for lying and that “this would hurt more than a previous beating.” Id. at *1. The defendant was charged with various counts of assault, criminal possession of a weapon, and endangering the welfare of a child. The defendant argued that the recording should be inadmissible pursuant to CPLR 4506 since it was done without consent and was thus prohibited eavesdropping under Penal Law § 250.05. The trial court permitted the recording to be admitted into evidence with respect to the endangering the welfare of a child count, finding that the recording was not prohibited eavesdropping and, even if it were, it was justified based on the father’s duty to take action when he heard the defendant’s conduct.

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There was additional evidence that the defendant had beaten the child, including the child’s own testimony and the landlady’s statement that she heard the child begging “Anthony” to stop hurting him. Although the defendant claimed that he had never hit the child, the jury returned a guilty verdict on all charges except one. The Appellate Division affirmed, adopting the vicarious consent doctrine, and a majority of the New York State Court of Appeals affirmed. The Court found that although the father’s actions did not amount to wiretapping, they met the statutory elements of the crime of “mechanical overhearing of a conversation.” The majority concluded that the core issue was consent and that here the father gave his consent to the recording on behalf of his child. The majority pointed out that the principle of vicarious consent originated in the federal courts, and was adopted by the New York Appellate Term in People v. Clark, 19 Misc. 3d 6 (App. Term 2d Dep’t 2008). The Court noted its approval of the approach, finding that [t]here is no basis in legislative history or precedent for concluding that the New York Legislature intended to subject a parent or guardian to criminal penalties for the act of recording his or her minor child’s conversation out of a genuine concern for the child’s best interests. By contrast, the vicarious consent doctrine recognizes the long-established principle that the law protects the right of a parent or guardian to take actions he or she considers to be in his or her child’s best interests. Yet it also recognizes important constraints on that right, by requiring that the parent or guardian believe in good faith that it is necessary for the best interests of the child to make the recording, and that this belief be objectively reasonable. Badalamenti, 2016 N.Y. Slip Op. 02556 at *5–6. Applying the doctrine to the facts of this case, the Court found that the father had a good- faith objectively reasonable belief that it was necessary for the child’s welfare to record the conversation. The dissent maintained that the core issue was not consent, but statutory interpretation, that the Penal Law did not permit the majority’s interpretation or the adoption of the vicarious consent doctrine here, and that nothing in the statute permits parents to surreptitiously record conversations to which they are not parties between their children and third parties.

CPLR 4515/214-c - Sean R. v. BMW of N. Am., LLC, 26 N.Y.3d 801, 48 N.E.3d 937 (2016) (Digest – May 2016) Applying Frye and General Acceptance Requirement Plaintiff’s Expert Witnesses Were Properly Precluded in Chemical Exposure Case Because They Did Not Rely on Generally Accepted Principles and Methodologies In Sean R. v. BMW of N. Am., LLC, 2016 N.Y. Slip Op. 01000 (February 11, 2016), a toxic tort action, the plaintiff alleged that he sustained personal injuries when he was exposed in utero to gas fumes in the BMW his mother Debra was driving. Debra had complained of an odor which she said, at times, caused her headaches, dizziness, and throat irritation. When Debra brought the car in because of the gas odor, Hassel Motors could not identify any problems. Debra continued to drive the car, notwithstanding the gas odor, when she got pregnant. Months later, and eight months after Debra first smelled the gas odor, Hassel found fuel leakage into the engine compartment caused by a split fuel hose. Two years later, BMW issued a recall due to defects in the feed fuel hoses. In the interim, the plaintiff was born and eventually diagnosed with severe mental and physical disabilities.

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The plaintiff alleged that the defective fuel hose and the failure timely to discover and correct the defect caused him to be exposed in utero to toxic gas fumes, resulting in his injuries. The plaintiff proffered two causation experts, who concluded that Debra’s exposure during her first trimester to the gas vapor most likely caused the plaintiff’s injuries. Significantly, the plaintiff’s primary expert based her conclusion as to the concentration of gas vapor inhaled by the plaintiff’s mother on her symptoms: “In controlled studies, for symptoms such as these to occur immediately, a gasoline vapor concentration of at least 1000 ppm . . . is required.” Id. at *2. BMW and Hassel Motors moved for summary judgment, alleging that the plaintiff’s experts’ opinions lacked a proper foundation. The lower court denied the motion and the Appellate Division affirmed on that particular issue. The defendants then moved to preclude the experts from testifying at trial or to hold a Frye hearing. Their motion was supported by their own experts who alleged that the plaintiff’s experts did not use generally accepted principles and methodologies and that their conclusions were novel. The lower court granted that motion, precluding the plaintiff’s two causation experts and agreeing that they did not rely on generally accepted methodologies. The Appellate Division affirmed. The New York State Court of Appeals noted that a plaintiff in a toxic tort action must demonstrate exposure to the toxin at levels known to cause the harm the plaintiff claims to have suffered. Such a showing by experts must be done through methods “found to be generally accepted as reliable in the scientific community,” otherwise known as the Frye test, or the “general acceptance” requirement. In this action, the Court found that the plaintiff’s causation experts not only failed to show a consensus in the scientific community, they did not even identify a text, scholarly article, or scientific study approving or applying their methodology. The Court took particular exception to the “inverse approach Dr. Frazier employed in this case – working backwards from reported symptoms to divine an otherwise unknown concentration of gasoline vapor. Dr. Frazier has not identified on this record any study, report, article or opinion that admits or employs such a methodology.” Id. It stressed that the expert’s methodology differed fundamentally from the “odor threshold” analysis that has been admitted in toxic tort cases: The odor threshold of a substance is the level at which the substance is capable of olfactory detection (citation omitted). Concentrations below the odor threshold are, by definition, not detectable by human smell (citation omitted). Causation experts have used odor thresholds to determine, for example, that a plaintiff was occupationally exposed to 60 ppm of hexane where hexane cannot be detected below that concentration and the plaintiff testified that he smelled hexane while working (citation omitted). Id. Conversely, the Court found that Dr. Frazier’s “symptom threshold” methodology has not been generally accepted in the scientific community: Defendants state, and plaintiff does not dispute, that unleaded gasoline in the early 1990s had a very low odor threshold of between 0.50 and 0.76 ppm. Assuming that is correct, a person would have been able to detect the odor of unleaded gasoline vapor at less than 1 ppm. Had Dr. Frazier applied a true odor threshold methodology in this case, like the experts in Beckner and Magistrini, the only conclusion she could have reached was that plaintiff was exposed to at least 1 ppm of unleaded gasoline – the minimum level at which gasoline is detectable by human smell. Instead, Dr. Frazier averred that there is a

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minimum threshold of gasoline vapor beneath which individuals do not experience headache, nausea or dizziness. And because Debra experienced headaches, nausea and dizziness, Dr. Frazier concluded she must have been exposed to at least that concentration. Plaintiff has not shown that such a “symptom-threshold” methodology, unlike the odor threshold methodology admitted in other cases, has been generally accepted in the scientific community. Id.

CPLR 4518 – Business records relevant to diagnosis and treatment of victim’s injuries admissible People v. Baught, 138 A.D.3d 1129, 28 N.Y.S.3d 903 (2d Dep’t 2016) (“Contrary to the defendant's contention, the Supreme Court properly admitted into evidence, as an excited utterance, his mother's statement to a police officer accusing him of assaulting her and the admission of the statement did not violate his right to confrontation. The circumstances surrounding the mother's statement and her advanced age warrant the conclusion that the statement was not made ‘under the impetus of studied reflection’ (citation omitted), and the statement was nontestimonial in nature because it was made spontaneously and was not the result of police interrogation (citations omitted). The defendant's contention that the Supreme Court erred in failing to completely redact from his mother's medical records her account of her injuries and her claim that her assailant was her son is without merit. These statements were properly admitted pursuant to the business records exception to the hearsay rule (see CPLR 4518), because they were relevant to the diagnosis and treatment of the victim's injuries, and likely were relied upon by hospital personnel in developing a discharge plan to ensure her safety (citations omitted).”).

CPLR 4519 – Dead man’s statute Zwarycz v. Marnia Constr., Inc., 130 A.D.3d 922, 15 N.Y.S.3d 86 (2d Dep’t 2015): “First, contrary to the defendants' contention, CPLR 4519, the so-called Dead Man's Statute, did not preclude the plaintiff's testimony concerning his transactions or communications with William Sullivan, as that testimony was offered against the interests of the estate of Helen Sullivan, and not ‘against the executor, administrator or survivor’ of William Sullivan (citations omitted). Moreover, CPLR 4519 did not preclude the plaintiff's testimony concerning certain transactions or communications he had with Helen Sullivan, as the defendants opened the door to that testimony (citations omitted).”

CPLR 5011 – Res judicata and collateral estoppel Hoffer v. Bank of Am., N.A., 136 A.D.3d 750, 25 N.Y.S.3d 279 (2d Dep’t 2016) (“‘[T]he general doctrine of res judicata gives binding effect to the judgment of a court of competent jurisdiction and prevents the parties to an action, and those in privity with them, from subsequently re-litigating any questions that were necessarily decided therein'’ (citation omitted). ‘Under New York's transactional approach to res judicata, once a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if based upon different theories or if seeking a different remedy'’ (citation omitted). Here, all the causes of action asserted in the complaint were litigated or could have been litigated in the prior proceeding and, therefore, are foreclosed by the doctrine of res judicata (citations omitted). In any event, the plaintiffs' claims are also barred by the doctrine of collateral estoppel,

149 which ‘bars relitigation of an issue which has necessarily been decided in a prior action and is determinative of the issues disputed in the present action, provided that there was a full and fair opportunity to contest the decision now alleged to be controlling’ (citations omitted). The party invoking the doctrine must show that the identical issue was necessarily decided in the prior action and is determinative in the present action. The burden then shifts to the party to be estopped to demonstrate ‘the absence of a full and fair opportunity to contest the prior determination’ (citations omitted). Here, the Bank established that the decisive issues in this action were necessarily decided against the plaintiffs in the prior proceeding, and the plaintiffs failed to demonstrate that they did not have a full and fair opportunity to contest the prior determination (citations omitted).”).

CPLR 5015 – Speculative/ conclusory opinion that defendant lacked mental capacity Monroe v. Monroe, 16 N.Y.S.3d 775 (2d Dep’t 2015): “Contrary to the defendant's contention, his psychiatrist's recent opinion that he lacked the mental capacity to adequately protect his rights and interests during the divorce proceedings in 2009 was speculative, conclusory, and without any probative value. As a result, the defendant failed to demonstrate with competent admissible medical evidence that he was incapable of protecting his rights during the relevant time period (citations omitted).”

CPLR 5015 – Vacating order- Fraud and misrepresentation Matter of Jonathan C. v. Iaishia Q. T., 131 A.D.3d 1054, 17 N.Y.S.3d 428 (2d Dep’t 2015): “Here, the petitioner alleged that the mother misrepresented that he was the child's father and that he relied upon that misrepresentation in seeking and consenting to the order of filiation (citations omitted). Accordingly, the father set forth a proper basis upon which to vacate the order of filiation (citations omitted). Furthermore, the petitioner's allegations regarding the mother's misrepresentations were substantiated by the petitioner's affidavit submitted in support of the motion and by the results of the private DNA test showing that he is not, in fact, the child's father (citations omitted). The petitioner's proof regarding the mother's misrepresentations went unrefuted. Indeed, the mother did not oppose the petitioner's motion or even appear at any of the court proceedings during which the petitioner's motion was considered. Under the circumstances of this case, the Family Court erred by summarily denying the petitioner's motion without conducting a hearing on the issues of whether the order of filiation was procured by a misrepresentation made by the mother regarding the petitioner's paternity (citation omitted), and whether the petitioner should be estopped from challenging the filiation order based upon the best interests of the child (citations omitted). Accordingly, we remit the matter to the Family Court, Kings County, for a hearing on these issues.”

CPLR 5015, 317 – Vacating Default Avila v. Distinctive Dev. Co., LLC, 120 A.D.3d 449, 991 N.Y.S.2d 89 (2d Dep’t 2014): “The Supreme Court determined that Distinctive deliberately attempted to avoid notice of the summons, based upon the fact that the New York Secretary of State mailed a copy of the summons and complaint to Distinctive by certified mail, in time for it to defend the action, and that this mailing was returned ‘unclaimed.’ However, the Supreme Court should not have made this determination without conducting a hearing as to whether Distinctive received notice of the dispatch or delivery of the certified mail from the Secretary of State (citations omitted). Accordingly, we remit the matter to the Supreme Court, Queens County, for a hearing on the

150 issue of whether Distinctive received notice of the certified mail sent to it by the Secretary of State, and for a new determination thereafter on that branch of the defendants' motion which was pursuant to CPLR 317 to vacate of much of the order entered April 10, 2012, as granted that branch of the plaintiff's motion which was pursuant to CPLR 3215 for leave to enter a default judgment against Distinctive.” Bennett v. Patel Catskills, LLC, 120 A.D.3d 458, 990 N.Y.S.2d 594 (2d Dep’t 2014): “The process server's affidavit of service created a rebuttable presumption that the plaintiffs served the defendant by delivering a copy of the summons and complaint to the Secretary of State (citations omitted). In opposition, the defendant denied receipt of the summons and complaint. The fact that the summons and complaint, which had been sent by certified mail, return receipt requested, to the address on file with the New York Secretary of State, had been returned to the Secretary of State as ‘unclaimed,’ raised a triable issue of fact as to whether the defendant received notice of the certified mail sent to it by the Secretary of State, and the matter must be remitted for a hearing and new determination of that issue and of the motion and cross motion (citations omitted).”

CPLR 5015, 317 – Vacating Default Note that a court can consider CPLR 317 as a basis to vacate a default even though the defendant did not cite to that section. See Eugene DiLorenzo, Inc. v. A.C. Dutton Lumber Co., Inc., 67 N.Y.2d 138, 501 N.Y.S.2d 8, 492 N.E.2d 116 (1986); Gershman v. Midtown Moving & Storrage, Inc., 123 A.D.3d 974 (2d Dep’t 2014): “Although the defendant did not cite to CPLR 317 in opposition to the plaintiffs' motion, under the circumstances of this case, this Court may consider CPLR 317 as a basis for vacating the default (citations omitted)… Here, the record reveals that neither the defendant nor its agent received actual notice of the summons, which was delivered to the Secretary of State, in time to defend itself against this action (citations omitted). There is no basis in the record upon which to conclude that the defendant was deliberately attempting to avoid service of process, especially since the plaintiffs had knowledge of the defendant's actual business address (citations omitted). In addition, the defendant met its burden of demonstrating the existence of a potentially meritorious defense (citation omitted). Accordingly, the Supreme Court properly denied the plaintiffs' motion for leave to enter a default judgment against the defendant.”

CPLR 5015 – Inherent discretionary power Delta Diagnostic Radiology, P.C. v. Infinity Group, 49 Misc. 3d 42, 18 N.Y.S.3d 816 (2d Dep’t 2015): (“[U]nder the unique circumstances presented here, where the case is still pending and has not yet gone to trial, we consider it appropriate for this court to exercise its inherent discretionary power to grant defendant relief from the consent order (citations omitted). Were we not to exercise our inherent power by reversing the August 16, 2013 order and granting vacatur of so much of the April 14, 2011 order as denied defendant's motion for summary judgment, we would be forcing the Civil Court to apply a standard at trial to which we no longer adhere, and to make a determination which is contrary to existing law.” (Citing Weinstein Korn & Miller)

CPLR 5015 – Abuse of discretion Matter of State of New York v. Richard TT., 14 N.Y.S.3d 824 (3d Dep’t 2015): “Turning to the merits, ‘[a] motion pursuant to CPLR 5015 to vacate a judgment or order is addressed to the trial court's sound discretion, subject to reversal only where there has been a clear abuse of

151 that discretion’ (citations omitted). Petitioner argues that such an abuse of discretion is present here, as Matter of State of New York v Donald DD. (supra) did not compel the conclusion that respondent did not suffer from a mental abnormality. We agree that Matter of State of New York v Donald DD. (supra) did not warrant vacatur of orders that Supreme Court otherwise viewed to be supported by the evidence and, accordingly, reverse.”

CPLR 5015(a)(1)– Failure to appear at scheduled pretrial settlement conferences resulted in dismissal of complaint with prejudice; motion to vacate untimely, and, without merit Hayes v. Village of Middleburgh, 2016 NY Slip Op 04487 (3d Dep’t 2016) (“Here, the record reflects that a copy of Justice Devine's order dismissing plaintiff's complaint with prejudice, together with notice of entry, was served upon plaintiff's counsel on or about March 16, 2012. Inasmuch as plaintiff did not move to vacate that order until more than two years later, plaintiff's motion to vacate pursuant to CPLR 5015 (a) (1) clearly was untimely (citations omitted). While it is true, as plaintiff points out, that Supreme Court retains inherent authority to vacate its own judgment or order ‘in the interest of justice, even where the statutory one-year period under CPLR 5015 (a) (1) has expired’ (citations omitted), plaintiff's motion papers fail to articulate any reasonable excuse for his more than two-year delay in bringing the underlying motion to vacate. Moreover, even if we were to consider plaintiff's belated explanation for such delay — namely, that he was under the mistaken impression that he had to await resolution of the attorney disciplinary proceeding before bringing the motion to vacate — we still would be unable to conclude that Supreme Court abused its discretion in denying plaintiff's motion. Simply put, plaintiff has not offered a reasonable excuse for his failures to appear in the first instance, nor has he made any attempt to demonstrate that he has a potentially meritorious cause of action. Under these circumstances, and regardless of whether the underlying motion is evaluated under 22 NYCRR 202.27 or CPLR 5015, Supreme Court did not abuse its discretion in denying plaintiff's motion to vacate. To the extent that plaintiff argues on appeal that ‘Supreme Court should have modified [the] prior order to reflect that the matter was only dismissed without prejudice,’ we need note only that plaintiff never asked Supreme Court for this alternative relief or moved to modify the underlying order (citation omitted) and, as such, cannot now be heard to complain. The parties' remaining arguments have been examined and found to be lacking in merit.”).

CPLR 5015(a)(1) and (a)(4) – Jurisdictional question must be resolved first Vapnersh v. Tabak, 131 A.D.3d 472, 15 N.Y.S.3d 131 (2d Dep’t 2015): “When a party seeking to vacate an order entered upon default seeks both a discretionary vacatur pursuant to CPLR 5015(a)(1) and raises a jurisdictional objection under CPLR 5015(a)(4), the jurisdictional question must be resolved before determining whether it is appropriate to grant discretionary vacatur of the default under CPLR 5015(a)(1) (citations omitted). ‘The death of a party divests the court of jurisdiction and stays the proceedings until a proper substitution has been made pursuant to CPLR 1015(a). Moreover, any determination rendered without such substitution will generally be deemed a nullity’ (citations omitted). Furthermore, the death of a party terminates his or her attorney's authority to act on behalf of the deceased party (citations omitted). Although the determination of a motion pursuant CPLR 1021 ‘made by the successors or representatives of a party or by any party’ is an exception to a court's lack of jurisdiction upon the death of a party (citations omitted), here, the motion pursuant to CPLR 1021 to dismiss the complaint was made by Tabak's former attorney, purportedly on behalf of Tabak. Since the former attorney lacked the

152 authority to act, the Supreme Court lacked jurisdiction to consider the motion to dismiss, and the order dated May 20, 2009, granting the motion, was a nullity (citations omitted). Accordingly, the Supreme Court should have granted that branch of the plaintiff's motion which was, in effect, pursuant to CPLR 5015(a)(4) to vacate the order dated May 20, 2009.”

CPLR 5015(a)(3) – Vacating judgment or order upon ground of fraud EMC Mtge. Corp. v. Toussaint, 136 A.D.3d 861, 25 N.Y.S.3d 312 (2d Dep’t 2016) (“CPLR 5015(a)(3) permits a court to vacate a judgment or order upon the ground of fraud, misrepresentation, or other misconduct of an adverse party. Here, insofar as relevant, the defendant did not allege ‘extrinsic fraud,’ which is ‘a fraud practiced in obtaining a judgment such that a party may have been prevented from fully and fairly litigating the matter’ (citations omitted). Thus, she was required to show a reasonable excuse for her default (citations omitted). However, as stated previously, she failed to offer any excuse for her default (citation omitted). Accordingly, the Supreme Court should have denied the defendant's motion, in effect, pursuant to CPLR 5015(a) to vacate the judgment of foreclosure and sale, and thereupon to dismiss the complaint insofar as asserted against her.”).

CPLR 5015(a)(3) – Motion should be made within “reasonable time” Country Wide Home Loans, Inc. v. Harris, 136 A.D.3d 570, 26 N.Y.S.3d 33 (1st Dep’t 2016) (“The motion court properly granted Dunia's motion to vacate pursuant to CPLR 5015(a)(3), even though Dunia only referenced CPLR 5015 and did not specify subdivision (a)(3) in his motion papers (citation omitted). The motion was made within a reasonable time (citation omitted), given that Dunia moved less than three months after entry of the judgment of foreclosure and sale, and there is no indication that he had actual notice of this action before entry of the judgment. Given that plaintiff knew of Dunia's fee interest since at least 2009, but neither joined him nor gave him notice of the instant action, the motion court properly vacated the judgment on the ground of extrinsic fraud (citation omitted). However, the motion court erred in granting Dunia's motion to dismiss this action pursuant to CPLR 3211(a)(10) for failure to join him as a necessary party. To the extent that Dunia is a necessary party, he was made a party when the court, sua sponte, granted his intervention (citation omitted).”).

CPLR 5015(a)(4)– Lower court erred in deciding motion without conducting hearing on service U.S. Bank, N.A. v. Tauber, 2016 NY Slip Op 05142 (2d Dep’t 2016) (“"Ordinarily, the affidavit of a process server constitutes a prima facie showing of proper service" (citations omitted). Although bare and unsubstantiated denials are insufficient to rebut the presumption of service (citation omitted), a sworn denial of service containing specific facts generally rebuts the presumption of proper service established by the affidavit of service and necessitates a hearing (citation omitted). Where the defendant denies residing at the premises where service allegedly was made, the sworn denial, combined with documentary and other evidence supporting such claim, is sufficient to rebut the plaintiff's prima facie showing of proper service and to necessitate an evidentiary hearing (citations omitted). Here, the Supreme Court erred in determining the motion without first conducting a hearing, as the appellant demonstrated her entitlement to a hearing on the issue of service (citations omitted).”).

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CPLR 5019(a) – Mistakes, defects or irregularities regarding judgment or order not affecting substantial right of party HSBC Bank USA, N.A. v. Dalessio, 137 A.D.3d 860, 27 N.Y.S.3d 192 (2d Dep’t 2016) (“The plaintiff then moved pursuant to CPLR 2001 and 5019 (a) to substitute, nunc pro tunc, newly signed affidavits of merit and of the amounts due in place of the affidavits of merit and of the amounts due that had been attached to the plaintiff's motion for an order of reference and motion for a judgment of foreclosure and sale…. The Supreme Court providently exercised its discretion in granting the plaintiff's motion in its entirety (citations omitted). Under the circumstances of this case, no substantial right of Dalessio will be affected by the court's substitution of the new affidavits of merit and of the amounts due (citations omitted). Nor has Dalessio suggested any prejudice she would suffer by the court permitting the correction of the name of the plaintiff in the caption, and of the state of incorporation indicated in the complaint.”). Wells Fargo Bank, N.A. v. Watanabe, 136 A.D.3d 1413, 25 N.Y.S.3d 771 (4th Dep’t 2016) (“We further conclude that the court erred in denying that part of plaintiff's motion seeking to substitute the affidavit of merit and amount due…. Here, we conclude that the substitution of the original affidavit of merit and amount due with a new, substantively identical affidavit of merit and amount due was a ministerial amendment permitted by CPLR 2001 and CPLR 5019 (a) inasmuch as the change affected only plaintiff's ability to comply with the Administrative Order, and ‘[t]he attorney affirmation is not itself substantive evidence’ (citations omitted). We further conclude that ‘[n]o substantial right of [defendant Makoto Watanabe would] be affected by the court's substitution’ (citation omitted). Indeed, that defendant did not reside in the subject property when plaintiff commenced the mortgage foreclosure action and the property was vacant at that time, and he never joined this action nor made any effort to contest the foreclosure.”).

CPLR 5019(a) – Cannot be used to change judgment in substantive manner Matter of Pulte Homes of N.Y., LLC v. Planning Bd. of Town of Carmel, 136 A.D.3d 643, 24 N.Y.S.3d 409 (2d Dep’t 2016) (“Here, in seeking to amend the judgment so as to provide that it was entitled to a refund of the recreation fee it paid to the Planning Board, the petitioner was not seeking to correct a mere clerical error. Rather, the petitioner sought to change the judgment in a substantive manner. Notably, the petition did not specifically request a refund of the recreation fee that the petitioner paid to the Planning Board. Thus, CPLR 5019(a) was not the proper procedural mechanism by which to seek such amendment of the judgment.”).

CPLR 5019(a) – Resettlement improperly changed substance of order Joseph v. Baksh, 137 A.D.3d 1220, 28 N.Y.S.3d 697 (2d Dep’t 2016) (“The defendants then moved pursuant to CPLR 5019(a) to resettle the order dated July 26, 2013, ‘so as to clarify [the Supreme] Court's ruling therein.’ They argued that the order was not clear as to whether it was denying their motion in part or in its entirety. The plaintiff opposed the motion. In an order dated December 12, 2013, the Supreme Court granted the defendants' motion to resettle, stating, in relevant part, that ‘questions of fact have only been raised regarding the plaintiff's left shoulder and right hip and evidence can only be introduced concerning those body parts. To this extent the motion is granted.’ Resettlement is generally intended to remedy clerical errors or clear mistakes in an order or judgment when there is no dispute about the substance of what that order or judgment should contain (citation omitted). It may be used where the order improperly reflects the decision or fails to include necessary recitals, but cannot be used to obtain a ruling

154 not adjudicated on the original motion or to modify the decision which has been made (citations omitted). Here, in granting the defendants' motion to resettle the order dated July 26, 2013, the Supreme Court improperly changed the substance of that order. Although that order stated that the plaintiff had only raised triable issues of fact regarding certain body parts, it stated unambiguously that ‘the motion for summary judgment is denied.’ In granting the defendants' motion to resettle the order, the Supreme Court changed this outcome by, in effect, granting the motion to the extent that it related to body parts other than the plaintiff's left shoulder and right hip. This is not the correction of a clerical error. Accordingly, the Supreme Court should have denied the defendant's motion.”).

CPLR 5222/5225 – Separate Entity Rule In Motorola Credit Corp. v. Standard Chartered Bank, 24 N.Y.3d 149, 996 N.Y.S.2d 594, 21 N.E.3d 223 (2014), the New York State Court of Appeals ruled that the separate entity rule is alive and well. Specifically, it was asked by the United States Court of Appeals for the Second Circuit to answer a certified question as to “whether the ‘separate entity’ rule prevents a judgment creditor from ordering a garnishee bank operating branches in New York to restrain a judgment debtor's assets held in foreign branches.” The Motorola case arose out of two judgments entered in plaintiff’s favor, one for $2.1 billion in compensatory charges, the other for an additional $1 billion in punitive damages against the Uzan family in connection with a loan it made to the Uzans. The Uzans went to great lengths to avoid satisfying the judgments, and thus Motorola pursued collection through efforts to attach the Uzans’ assets held by third parties. The Southern District of New York issued an order restraining the Uzans and third parties with notice from transferring the Uzans’ property. Motorola served the restraining order on the defendant Standard Chartered Bank’s (SCB) New York branch. SCB is a U.K. incorporated and headquartered foreign bank, which had no connection to the loan or the underlying litigation. After locating none of the Uzans’ property in its New York branch, SCB located the Uzans’ assets approximating $30 million in its United Arab Emirates (U.A.E) branches and SCB froze those assets. However, the U.A.E and Jordan bank regulators intervened, with the U.A.E Central Bank unilaterally debiting $30 million from SCB’s account with the bank. SCB then sought relief from the restraining order in the district court claiming that the restraint violated U.A.E law and subjected SCB to double liability. Relying on the separate entity rule, SCB also asserted that service of the restraining order on SCB’s New York branch was ineffective against assets located in the branch’s foreign branches. Motorola argued in opposition that the separate entity rule had been abrogated by the Koehler decision. The district court agreed with SCB that the separate entity rule precluded reaching the foreign assets but stayed the release of the restraint until the Second Circuit ruled on Motorola’s appeal. The Second Circuit then certified the question referred to above. In answering the certified question in the affirmative, a majority of the Court reviewed the three basic rationale for the separate entity rule: First, courts applying the rule have emphasized the importance of international comity and the fact that “any banking operation in a foreign country is necessarily subject to the foreign sovereign's own laws and regulations” (citations omitted). Second, it was viewed as necessary to protect banks from being “subject . . . to competing claims” and the possibility of double liability (citations omitted), a concern strenuously voiced by the amici in this case. And third, the rule has been justified based on the “intolerable burden” that would

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otherwise be placed on banks to monitor and ascertain the status of bank accounts in numerous other branches (citations omitted). The majority noted that the separate entity rule has been part of the common law since 1916. It emphasized that its decision in Koehler v. Bank of Bermuda Ltd., 12 N.Y.3d 533, 883 N.Y.S.2d, 763, 911 N.E.2d 825 (2009) did not discuss or decide the continued validity of the rule because in that case the foreign bank did not raise the issue and the case did not involve bank branches or bank account assets. The majority rejected the dissent’s and Motorola’s argument that because nothing in CPLR 5222 embodies the separate entity rule, it is incompatible with the CPLR. The Court stressed that the rule was a common law principle predating the CPLR. Finally, notwithstanding Motorola’s “invitation,” the Court refused to cast aside the separate entity rule, citing the facts that the rule had been part of the common law for nearly a century, international banks have taken the rule into account when deciding to open New York branches, and the underlying reasons for adoption of the rule-- such as the risk of competing claims and the possibility of double liability, promoting international comity and avoiding conflicts among competing legal systems – are still true today. The dissent criticized the majority for adopting expressly “for the first time” the separate entity rule, which “has no statutory basis and was initially formulated by the lower courts nearly a century ago based on a rationale that has no application to these modern times. In choosing this outmoded rule, the majority has engaged in improper judicial legislation, avoided the clear import of our recent decision in Koehler v. Bank of Bermuda (12 NY3d 533, 911 N.E.2d 825, 883 N.Y.S.2d 763 [2009]) and given short shrift to the compelling public policy reasons to reject such a rule.” The dissent was particularly concerned that the majority’s decision permitted the judgment debtors to evade enforcement proceedings and will permit banks doing business in New York to shield customer account held in branches located outside of the United States. The dissent stressed that CPLR Article 52 neither expressly nor impliedly incorporates the separate entity rule, the rule is obsolete and runs counter to public policy, the majority’s position cannot be reconciled with its decision in Koehler, and regardless, while the common law is important, the Court should be flexible when the world has changed or evolved. For a more complete discussion, see Weinstein, Korn & Miller 5225.16.

CPLR 5224/5225 – Information subpoena reaches accounts and records at branches outside of New York State (Digest – December 2015) Extraterritorial Reach of Information Subpoena Consent to Regulatory Authority Deemed Sufficient to Compel Compliance Outside of New York B&M Kingstone, LLC v. Mega Int’l Commercial Bank Co., Ltd., 131 A.D.3d 259 (1st Dep’t 2015), concerned the enforceability of an information subpoena served on a New York branch of a Taiwanese international banking corporation, seeking information about accounts and records from branches outside of New York. The petitioner, B&M, had served an information subpoena on respondent Mega’s New York bank branch seeking to enforce a 10- year-old money judgment. Mega only provided information concerning its New York branch, but not with respect to branches outside New York State. On the way to permitting enforceability, the First Department addressed several important current procedural issues. The first related to the seminal 2014 United States Supreme Court decision in Daimler AG v. Bauman, 134 S. Ct. 746 (2014). There, the Court significantly limited the expanse of

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“doing business” as a basis for general jurisdiction. Specifically, it held that for a foreign corporation to be found to be doing business, its in-state activities must be so continuous and systematic as to render it “essentially at home in the forum State.” Id. at 751. Here, in B&M, the court quickly dispensed with this issue, finding that New York did not have general jurisdiction over Mega’s worldwide operations under Daimler. Nevertheless, the court found that by consenting to the necessary regulatory oversight in exchange for permission to operate in New York, Mega was subject to the court’s jurisdiction and was required to comply fully with the information subpoenas. This meant production of information about accounts and records outside of New York and the United States. That did not end the discussion, however. The First Department then addressed the “separate entity rule,” which provides that bank branches are to be treated as separate entities and, thus, “the mere fact that a bank may have a branch within New York is insufficient to render accounts outside of New York subject to attachment merely by serving a New York branch.” Nat’l Union Fire Ins. Co. v. Advanced Emp’t Concepts, Inc., 269 A.D.2d 101, 101 (1st Dep’t 2014). In Motorola Credit Corp. v. Standard Chartered Bank, 24 N.Y.3d 149 (2014), the New York State Court of Appeals ruled that the separate entity rule was alive and well and prevented a judgment creditor from ordering a garnishee bank with New York branch banks to restrain a debtor’s assets in a foreign bank branch. The court in B&M found, however, that the holding in Motorola was limited to restraining notices and turnover orders impacting assets held in foreign branch accounts, and did not apply to or bar the court’s right to compel Mega to respond fully to the information subpoena. The court stressed the importance and broadness of post-judgment discovery to aid execution and that “public policy interests and innovations in technology support such an exercise of jurisdiction.” B&M Kingstone, LLC, 131 A.D.3d at 266. The court found that there was no claim that compliance with the subpoena would be onerous or unduly burdensome or that the information was unavailable in New York. “Thus, the court’s general personal jurisdiction over the bank’s New York branch permits it to compel that branch to produce any requested information that can be found through electronic searches performed there.” Id. at 267. Moreover, the court ruled that principles of international comity did not preclude enforcement since there had been insufficient evidence that the bank could be liable for violating foreign law by complying with the subpoena. Finally, Mega failed to establish that another state’s or country’s interest was greater than New York’s.

CPLR 5226 – Rendering services without receiving compensation Grand Pac. Fin. Corp. v. 97-111 Hale, LLC, 2015 N.Y. Misc. LEXIS 39, 2015 NY Slip Op 30013(U) (Sup. Ct. N.Y. Co. 2015): “For all of these reasons, defendants' own testimony and the few documents that they have produced, as well as plaintiff's expert's conclusions regarding defendants' current activities, satisfy plaintiff's burden of proving that defendants render services without receiving adequate compensation (citations omitted), and that defendants' past, and present employment, for apparently little to no pay, evinces an intent to frustrate plaintiff's attempt to collect on its judgment absent court intervention.” (citing Weinstein Korn & Miller)

CPLR 5226 – Appointment of independent receiver Coscia v. Eljamal, 48 Misc. 3d 361, 8 N.Y.S.3d 882 (Sup. Ct. Westchester Co. 2015): “However, while a receiver is the appropriate procedural mechanism to liquidate Eljamal's

157 interests in the companies, the Court denies the plaintiff's request that he be appointed as the receiver. Although CPLR 5228 allows for the appointment of a judgment creditor as a receiver, the Court finds that appointment of an independent receiver is more appropriate to avoid any appearance of impropriety in the sale of Eljamal's interests in the companies (citation omitted). In addition to the plaintiff's desire to satisfy the judgment as quickly as possible, the plaintiff's past involvement in the Companies as a general manager could present a conflict of interest in obtaining the highest value for Eljamal's interests in the Companies in an arms-length transaction. While the plaintiff contends that his work experience in the gasoline industry makes him particularly well-suited for appointment as receiver, an independent receiver could properly value and sell Eljamal's membership interests by seeking leave of Court to employ the appropriate expert to conduct appraisals. Accordingly, the Court appoints an independent receiver, rather than the plaintiff, as set forth in the decretals below.” (Citing Weinstein Korn & Miller)

CPLR 5231 Amendment regarding income executions

Amended: (i) to designate initial service on New York judgment debtor as “first service”; (ii) to designate subsequent service on person or entity from whom the debtor is receiving or will receive money, after a failure to serve the debtor or the debtor's default, as "second service"; and (iii) to provide that the second service can be made in any county in which the person or entity has an office or place of business. L. 2015, ch 550, effective December 11, 2015.

CPLR 5501(a)(1) – not applicable because defendant was aggrieved and could have appealed Emerson J. Dobbs, Inc. v. L & L Pirton, Inc., 48 Misc. 3d 137(A), 2015 N.Y. Misc. LEXIS 2771, 2015 NY Slip Op 51136(U) (App. Term 2d Dep’t 2015): “Defendant contends on appeal that its motion for summary judgment should have been granted. In our view, review of this contention is barred by defendant's failure to cross-appeal from the judgment. While CPLR 5501 (a) (1) provides for review, upon an appeal from a final judgment, of any order that was adverse to the respondent on appeal, the intent of this provision was to protect a party who was barred, by the requirement that only an aggrieved party can appeal (see CPLR 5511), from appealing from the judgment (citations omitted). Here, however, defendant was aggrieved by the judgment and could have appealed therefrom but failed to do so, and plaintiff has appealed only on the limited ground of inadequacy. In these circumstances, the denial of defendant's summary judgment motion is not brought up for review. We note, in any event, that were the denial properly before us, we would not disturb it.” (Citing Weinstein Korn & Miller)

CPLR 5511 – No appeal from order issued on consent Matter of O'Sullivan v. Schebilski, 138 A.D.3d 1170, 30 N.Y.S.3d 351 (3d Dep’t 2016) (“We find unavailing the father's arguments on appeal that, due to his disability, Family Court should not have determined that he willfully violated the support order and that his consent to the willfulness finding was neither knowing, intelligent nor voluntary. It is well settled that no appeal lies from an order issued on consent (citations omitted). To the extent that the father claims that his consent was involuntary, such a claim must be raised in a motion to vacate the underlying order (citations omitted). ”).

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CPLR 5511 – Plaintiff not aggrieved by order granting relief to third party defendant against the third party plaintiff Faicco v. Mr. Lucky's Pub, Inc., 15 N.Y.S.3d 893 (2d Dep’t 2015): “‘A person is aggrieved within the meaning of CPLR 5511 when he or she asks for relief but that relief is denied in whole or in part,' or when someone asks for relief against him or her, which the person opposes, and the relief is granted in whole or in part'’ (citations omitted). Here, the order appealed from granted relief to the third-party defendant, Penn-Star Insurance Company, against the defendants third-party plaintiffs, Mr. Lucky's Pub, Inc., doing business as Mr. Lucky's Pub, and Cheryle Kijik, but not against the plaintiff (citation omitted). Since the plaintiff is not aggrieved by the order appealed from, her appeal must be dismissed (citations omitted).”

CPLR 5511 – Aggrieved Party Matter of Agam B. (Janna W.), 121 A.D.3d 1109, 996 N.Y.S.2d 632 (2d Dep’t 2014): “In a child neglect proceeding pursuant to Family Court Act article 10, the mother appeals from an order of the Family Court, Queens County (Richroath, J.), dated August 27, 2013, which granted the motion of the attorney for the child to appoint a guardian ad litem for the child pursuant to CPLR 1201 and 1202 during the pendency of the proceeding beyond his 18th birthday. Ordered that the appeal from the order is dismissed, without costs or disbursements, as the mother is not aggrieved thereby. A person is aggrieved within the meaning of CPLR 5511 ‘when he or she asks for relief but that relief is denied in whole or in part,’ or, when someone ‘asks for relief against him or her, which the person opposes, and the relief is granted in whole or in part’ (citations omitted). Here, the mother did not ‘ask[ ] for relief,’ and no party ‘ask[ed] for relief’ against her (citations omitted). Moreover, when the subject child reached the age of majority, the mother lost the legal right to make decisions on the child's behalf, especially medical decisions, unless she obtained some form of court-authorized guardianship (citations omitted), and here, she did not do so. Accordingly, the mother was not aggrieved by the order appealed from.”

CPLR 5520(a)– Excuse late filing where there was proper service of notice of appeal Rundberg v. Rundberg, 2016 NY Slip Op 04779 (3d Dep’t 2016) (“Although the affidavit of service reflects that plaintiffs timely served the notice of appeal, there is no evidence that they timely filed the notice of appeal (citations omitted). In the absence of any prejudice to defendant, we excuse any late filing in this regard (citations omitted).”).

CPLR 5522 – Mootness Matter of Spence v. Shah, 136 A.D.3d 1242, 26 N.Y.S.3d 613 (3d Dep’t 2016) (“Initially, we find that, although minor amendments were made to 10 NYCRR 2.59 in November 2014 when this appeal was pending, those amendments do not render the appeal moot. Indeed, both parties urged in their appellate briefs that the amendments did not impact the appeal; however, petitioners changed their position and argued mootness in their reply brief. Since mootness can be raised at any time (citation omitted), we briefly address such argument. ‘Where the case presents a live controversy and enduring consequences potentially flow from the [judgment] appealed from, the appeal is not moot’ (citations omitted). The 2014 amendments narrowed slightly the applicability of the mask-wearing requirement from an area where patients ‘may be present’ to where they are ‘typically present,’ and also carved a few exceptions, such as for personnel providing speech therapy or working with a patient who lip reads. The amendments did not otherwise meaningfully change the mask-wearing requirement for non-vaccinated

159 personnel, and the amendments do not in any way adversely affect or change the basis of petitioners' challenge to the regulatory requirement. If petitioners prevail in their challenge to the original regulation, personnel to whom the current regulation applies will be affected (citation omitted). The fact that DOH also clarified that local health care facilities could adopt more stringent policies has no bearing on this challenge to the merits of the requirements set forth in DOH's regulation. The appeal is not moot since ‘the rights of the parties will be directly affected by the determination of the appeal’ (citations omitted).”).

CPLR 5522/ 3001 (Digest – May 2015) An Expired Order Lives On The Appeal of a Protection Order Does Not Become Moot Merely Because It Expired While the Appeal Was Pending A court can rule only when there is an actual controversy among the parties to a litigation. Thus, courts cannot decide moot, hypothetical or academic questions. So what happens if an appellate court is asked to review an order that has expired while an appeal is pending? In Veronica P. v. Radcliff A., 24 N.Y.3d 668, 3 N.Y.S.3d 288, 26 N.E.3d 1143 (2015), petitioner filed a petition charging that her nephew, the respondent, who regularly stayed with her, assaulted and harassed her. The Family Court granted a temporary order of protection and after a hearing found respondent guilty of a family offense and issued a two year order of protection against him. While the appeal was pending, however, the order of protection expired. The question was whether the expiration of the protection order rendered the appeal moot. Generally, “an appeal will be considered moot unless the rights of the parties will be directly affected by the determination of the appeal and the interest of the parties is an immediate consequence of the judgment” (citing Hearst Corp. v. Clyne, 50 N.Y.2d 707, 714 (1980)). However, even where the resolution of an appeal may not immediately relieve a party from a currently ongoing court-ordered penalty or obligation to pay a judgment, the appeal is not moot if an appellate decision will eliminate readily ascertainable and legally significant enduring consequences that befall a party as a result of the order which the party seeks to appeal (citations omitted). The Court held here that the appeal was not moot. A court in a future criminal case or Family Court proceeding could enhance a sentence or adverse civil adjudication against respondent, relying on the protection order. A court could increase the severity of a criminal sentence or civil judgment against the respondent. In addition, the Court found that the protection order had other potential legal consequences, including impeaching respondent’s credibility in the future, and respondent could face additional law enforcement scrutiny and an increased likelihood that he would be arrested in the future (by being in the police computer database). In sum, while the order may have expired, its ramifications lived on, giving life to the appeal, neither mooting nor muting it.

CPLR 5522, 3001 – Appeal is moot and no exception applies People ex rel. Mason v. Warden, 138 A.D.3d 501, 28 N.Y.S.3d 308 (1st Dep’t 2016) (“This appeal challenging the legality of petitioner's preconviction detention is moot because he is currently incarcerated following his conviction and sentencing (citation omitted), and no exception to the mootness doctrine applies (citation omitted).”).

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CPLR 5522 – Mootness Matter of Raven K. (Adam C.), 130 A.D.3d 622, 13 N.Y.S.3d 469 (2d Dep’t 2015):“‘It is a fundamental principle of our jurisprudence that the power of a court to declare the law only arises out of, and is limited to, determining the rights of persons which are actually controverted in a particular case pending before the tribunal’ (citation omitted). Under the mootness doctrine, a court is ordinarily precluded from considering questions ‘which, although once live, have become moot by passage of time or change in circumstances. In general an appeal will be considered moot unless the rights of the parties will be directly affected by the determination of the appeal and the interest of the parties is an immediate consequence of the judgment’ (citations omitted). Generally, a case that is moot is unreviewable unless it fits within the exception, for which three elements must be shown: ‘(1) a likelihood of repetition, either between the parties or among other members of the public; (2) a phenomenon typically evading review; and (3) a showing of significant or important questions not previously passed on, i.e., substantial and novel issues’ (citations omitted). ‘Here, since the order on appeal was made, the paternal grandmother was awarded custody of the subject child and the neglect petitions against the parents have been withdrawn, thereby rendering academic the appeal from so much of the order as denied those branches of the paternal grandmother's motion which were for leave to intervene in the parental neglect proceedings, for an award of physical custody of the subject child, and to direct the petitioner to comply with Family Court Act § 1017. Moreover, this case does not warrant invocation of the exception to the mootness doctrine (citations omitted). Accordingly, we grant the petitioner's motion to dismiss the appeal as academic to the extent indicated.”.

CPLR 5701 – Order on in limine motion appealable as functional equivalent of partial summary judgment motion Artibee v Home Place Corp., 14 N.Y.S.3d 817 (3d Dep’t 2015): In CPLR Article 16 case defendant moved in limine for a jury charge apportioning liability between the defendant and non-party State. Appellate Division found order was appealable as functional equivalent of partial summary judgment motion and “because the resolution thereof limited the scope of the issues to be tried (citations omitted).” See David L. Ferstendig, CPLR Article 16 Exception to Joint and Several Liability, 659 NYSLD 2, 3 (2015).

CPLR 5701 – No appeal lies from an order denying reargument See, e.g., Forbes v. Giacomo, 130 A.D.3d 428, 11 N.Y.S.3d 485 (1st Dep’t 2015)

CPLR 5701 – Supreme Court Bound to Apply Precedent in Another Department Until its Department or Court of Appeals Rules D'Alessandro v. Carro, 123 A.D.3d 1, 992 N.Y.S.2d 520 (1st Dep’t 2014): “While defendants have denominated their motion as one seeking renewal, they identify no change in law warranting reexamination of their arguments. It is axiomatic that Supreme Court is bound to apply the law as promulgated by the Appellate Division within its particular Judicial Department (citation omitted), and where the issue has not been addressed within the Department, Supreme Court is bound by the doctrine of stare decisis to apply precedent established in another Department, either until a contrary rule is established by the Appellate Division in its own Department or by the Court of Appeals (citations omitted). Thus, a particular Appellate Division will require the lower courts within its Department to follow its rulings, despite contrary authority from another Department, until the Court of Appeals makes a dispositive ruling on the

161 issue (citation omitted).”

Appeals – 22 NYCRR 500.27 – In re Viking Pumps, Inc., 2016 N.Y. Slip Op. 03413 (2016) (Digest – June 2016) Numerous Policies Over Many Years Implicated by Asbestos Exposure Claims On Two Certified Questions from the Delaware Supreme Court, Court of Appeals Sides with Insured, Applying “All Sums” Allocation and Vertical Exhaustion Based on Policy Language Asbestos claims provoke thorny insurance issues because of allegations of exposure over a long period of time. Significantly, multiple policies (including primary, umbrella and excess policies) issued over many years raise questions about which policies are required to respond and in which order they may be responsible, that is, the allocation and exhaustion of the available insurance. From an insured’s standpoint, this can have a dramatic effect on its responsibilities to “track down” insurers who may have issued policies decades ago and perhaps, more importantly, can impact gaps in coverage where policies for particular years are unavailable, where insurers are insolvent or where there are applicable policy exclusions. In In re Viking Pump, Inc., 2016 N.Y. Slip Op. 03413 (May 3, 2016), Viking Pumps and Warren Pumps bought pump manufacturing businesses from Houdaille Industries in the 1980s, which subjected them to liability for asbestos exposure claims. For successive annual periods, Houdaille had obtained significant primary and umbrella excess coverage with Liberty Mutual and additional layers of excess insurance issued by various insurers. On two certified questions from the Delaware Supreme Court, the New York State Court of Appeals addressed important issues relating to the allocation and exhaustion of the various policies. With respect to the allocation issue, the insureds argued for the “joint and several” or “all sums” allocation method. This allocation theory permits an insured to collect its full liability under any insurance policy in effect during the relevant periods. It is then the burden of the insurer that issued that policy to seek contribution from other insurers whose policies are triggered. Conversely, the excess insurers urged that a pro rata allocation should be applied. “Under this method, an insurer’s liability is limited to sums incurred by the insured during the policy period; in other words, each insurance policy is allocated a ‘pro rata’ share of the total loss representing the portion of the loss that occurred during the policy period (citations omitted).” Id. at *6. In Consol. Edison Co. of N.Y. v. Allstate Ins. Co., 98 N.Y.2d 208 (2002), the Court had applied the pro rata method in the context of an environmental contamination claim. However, it pointed out that the policy language in Viking Pump “is substantively distinguishable from the language that we interpreted in Consolidated Edison” and that it had not adopted a “blanket rule” there. Viking Pump, 2016 N.Y. Slip Op. 03413 at *8. In coming to the diametrically opposed conclusion here that the “all sums” allocation method was intended, the Court focused primarily on two provisions: a non-cumulation clause or a non-cumulation and prior insurance provision. Most of the excess policies followed the form with respect to the underlying Liberty Mutual non-cumulation of liability or anti-stacking clause, which provided that: [i]f the same occurrence gives rise to personal injury, property damage or advertising injury or damage which occurs partly before and partly within any annual period of this

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policy, the each occurrence limit and the applicable aggregate limit or limits of this policy shall be reduced by the amount of each payment made by [Liberty Mutual] with respect to such occurrence, either under a previous policy or policies of which this is a replacement, or under this policy with respect to previous annual periods thereof. Id. at *3. In addition, the excess policies that did not follow the form had their own “Prior Insurance and Non-Cumulation of Liability” clause, providing that: It is agreed that if any loss covered hereunder is also covered in whole or in part under any other excess Policy issued to the [Insured] prior to the inception date hereof[,] the limit of liability hereon . . . shall be reduced by any amounts due to the [Insured] on account of such loss under such prior insurance. Subject to the foregoing paragraph and to all the other terms and conditions of this Policy in the event that personal injury or property damage arising out of an occurrence covered hereunder is continuing at the time of termination of this Policy the Company will continue to protect the [Insured] for liability in respect of such personal injury or property damage without payment of additional premium. Id. The Court noted that it had not previously addressed the interplay between non- cumulation/prior insurance provisions and allocation. It concluded that pro rata allocation is inconsistent with non-cumulation clauses, because such provisions “plainly contemplate that multiple successive insurance policies can indemnify the insured for the same loss or occurrence.” The Court also reasoned that the continuing coverage clauses in non-cumulation and prior insurance provisions further supported its conclusion: The continuing coverage clause expressly extends a policy’s protections beyond the policy period for continuing injuries. Yet, under a pro rata allocation, no policy covers a loss that began during a particular policy period and continued after termination of that period because that subsequent loss would be apportioned to the next policy period as its pro rata share. Using the pro rata allocation would, therefore, render the continuing coverage clause irrelevant. Id. at *11. The second issue the Court confronted was whether horizontal or vertical exhaustion applied. The insureds argued for vertical exhaustion, that is, that they could access the excess insurance in a particular year once the primary and umbrella policies in that year were exhausted. Thus, there would be no need to first exhaust the primary and umbrella policies in other policy years. Conversely, the excess insurers asserted that horizontal exhaustion should be applied, requiring that all underlying primary and umbrella policies in all triggered years be exhausted first, before the insured could look to any excess insurance policy. The Court sided with the insureds here again, holding that vertical exhaustion applied in light of the language in the excess policies tying their attachment only to specific underlying policies in effect during the same policy period as the applicable excess policy, and the absence of any policy language suggesting a contrary intent. Id. at *14. This Court of Appeals decision marks a significant victory for insureds on these critical issues. Counsel should carefully review relevant policy language to determine if they can take advantage of the Viking Pump ruling.

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CPLR 6212 – Lower court improperly limited recovery to costs and damages incurred prior to the Appellate Division order annulling the attachment rather than the later date when the attachment was actually removed. Matter of Jalas v. Halperin, 136 A.D.3d 816, 25 N.Y.S.3d 264 (2d Dep’t 2016) (“The Supreme Court erred in limiting recovery of the costs and damages sustained by reason of the attachment to those occurring before this Court's decision and order dated December 28, 2010. CPLR 6212(e) provides, in part, that ‘[t]he plaintiff shall be liable to the defendant for all costs and damages, including reasonable attorney's fees, which may be sustained by reason of the attachment if the defendant recovers judgment, or if it is finally decided that the plaintiff was not entitled to an attachment of the defendant's property.’ This provision does not limit the time period for which a defendant may recover damages arising from the attachment, but, rather, permits a defendant to recover ‘all costs and damages, including reasonable attorney's fees, which may be sustained by reason of the attachment.’ The attachment was not removed until April 5, 2011. It is conceivable that the administrator sustained costs and damages by reason of the attachment until the attachment was removed as a matter of record. Accordingly, we modify the order appealed from to provide that the administrator shall be awarded damages proven to have occurred before April 5, 2011.”).

CPLR 6301 – Clear right to relief Weiner v. Artura, 2015 NY Slip Op 30102(U), 2015 N.Y. Misc. LEXIS 191 (Sup. Ct. Suffolk Co. 2015): “The burden is upon the moving party to make a prima facie showing that he or she is entitled to summary judgment as a matter of law by presenting evidence in admissible form demonstrating the absence of any material facts (citation omitted). To grant a preliminary injunction the law requires the moving parties to demonstrate: ‘(1) the likelihood of ultimate success on the merits; (2) irreparable injury to him absent granting of the preliminary injunction; and (3) a balancing of equities’ (citation omitted). The first requirement compels a party seeking a preliminary injunction to establish a ‘clear right’ to the relief. (Citation omitted).” ) (Citing Weinstein Korn & Miller)

CPLR 6501 – Purpose of Notice of Pendency Mortgage Elec. Registration Sys., Inc. v. Pagan, 119 A.D.3d 749, 991 N.Y.S.2d 51 (2d Dep’t 2014): “‘[T]o cut off a prior lien, such as a mortgage, the purchaser must have no knowledge of the outstanding lien and win the race to the recording office’ (citation omitted). When a notice of pendency is filed, a purchaser is charged with constructive notice of litigation if he or she fails to record the deed prior to the filing of the notice of pendency (see id. at 102). ‘A person whose conveyance or incumbrance is recorded after the filing of the notice is bound by all proceedings taken in the action after such filing to the same extent as a party’ (CPLR 6501). Here, inasmuch as Deutsche Bank's predecessor, nonparty Fremont Investment & Loan, failed to record its mortgage prior to the recording of Full Spectrum's mortgage, and prior to the filing of the notice of pendency indexed against, among others, the mortgagor, Kenneth Pagan, Deutsche Bank is bound by all proceedings taken in the instant action (citation omitted), including the order vacating the deed from Kenneth to Mendez (citations omitted).”

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CPLR 6512 – Effectiveness of notice of pendency – Failure to serve within statutory period Knopf v. Sanford, 132 A.D.3d 416, 17 N.Y.S.3d 674 (1st Dep’t 2015): “Furthermore, the cancellation of the notices of pendency was mandatory pursuant to CPLR 6514(a). CPLR 6514(a) provides, in relevant part, that ‘[t]he court, upon motion of any person aggrieved and upon such notice as it may require, shall direct any county clerk to cancel a notice of pendency, if service of a summons has not been completed within the time limited by section 6512.’ CPLR 6512 provides that a notice of pendency is only effective if a summons is served upon the defendant within 30 days after filing. Here, plaintiffs failed to serve defendant Pursuit Holdings, LLC within this 30-day period. ‘Nail-and-mail’ substitute service was ineffective because that method of service is only appropriate for serving individuals, not corporate entities (citations omitted).”

CPLR 7501 – Monarch Consulting, Inc. v. National Fire Ins. Co. of Pittsburgh PA, 26 N.Y.3d 659 (2016) (Digest – April 2016) McCarran-Ferguson Act Does Not Preclude Application of the Federal Arbitration Act Questions of Enforceability of Arbitration Clauses Are for Arbitrators, Not the Court Generally, the FAA preempts state law requiring a judicial resolution of a claim when the contracting parties agree that their disputes will be resolved by arbitration. However, there is another statute, the McCarran-Ferguson Act (M-F), which can exempt state laws from the reach of FAA preemption. M-F, in essence, gives states the power to regulate the insurance business without interference from federal regulation. An exception is where Congress enacts a law that specifically relates to the insurance business; in that circumstance, it would control. Stated differently, M-F “reverse preempts” a federal law that does not specifically relate to the business of insurance that would “invalidate, impair or supersede” the state law. In Monarch Consulting, Inc. v. National Union Fire Ins. Co. of Pittsburgh, PA, 26 N.Y.3d 659 (2016), the New York State Court of Appeals was presented with the interplay of the FAA, M-F, and California Insurance Code § 11658. Under California law, most employers are required to maintain workers’ compensation insurance. The insurers that provide that coverage are regulated by state entities, including the California Department of Insurance, its Commissioner, and the Workers’ Compensation Insurance Rating Bureau of California (WCIRB). California Insurance Code § 11658(a) provides that [a] workers’ compensation insurance policy or endorsement shall not be issued by an insurer to any person in [California] unless the insurer files a copy of the form or endorsement with the rating organization [WCIRB] . . . and 30 days have expired from the date the form or endorsement is received by the commissioner from the rating organization without notice from the commissioner. Thus, workers’ compensation insurers must file with the WCIRB copies of any policies, endorsements, and forms before issuing the policies. This provides an opportunity to the Commissioner to review the submission and, in some circumstances, to reject it. National Union provided workers’ compensation insurance to three different California- based employers, and the relevant policies were filed appropriately without objection. After the policies were executed, National Union entered into “Payment Agreements” with its insureds, “deferring payments due under the policies in return for the provision of collateral on behalf of the insureds. The Payment Agreements set forth the particulars of that arrangement and what would occur in the event of a default.” The Agreements were never filed with the State of California.

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The Agreements contained arbitration provisions, providing the arbitrators with exclusive jurisdiction over the dispute, “including any questions as to its arbitrability.” At the relevant time, insurers were not obligated to disclose to their insureds contemporaneously with any insurance coverage quote that there were arbitration provisions in the workers’ compensation policies. In 2011, such a law was passed, but was inapplicable to the subject policies issued before then. A dispute arose between National Union and each of its insureds, which in turn resulted in a battle over whether the disputes were to be resolved via arbitration. The lower court issued a split decision, granting National Union’s motion to compel arbitration in two of the proceedings and denying its motion in the third proceeding, finding that the Payment Agreements were unenforceable. A majority of the Appellate Division reversed the orders compelling arbitration, holding that the penalty for National Union’s failure to file the Payment Agreements would be to decline to enforce the arbitration provisions. “In the majority’s view, this result did not contravene the FAA because the McCarran-Ferguson Act precluded its application inasmuch as requiring arbitration would impair and undermine the goals of California Insurance Code § 11658.” Id. at *5. The dissenting justices believed that all of the claims should have been arbitrated. They reasoned that M-F did not reverse preempt the FAA because state law did not, at that point, regulate the use of arbitration provisions in workers’ compensation insurance policies, and application of the FAA would not impair California law. In addition, they found that under the FAA, the arbitrators should decide whether the Agreements had to be filed and the penalties for a failure to do so “because the insureds challenged the arbitration clauses on a ground that would invalidate the Payment Agreements in their entirety.” Id. at *6. On its appeal as of right to the Court of Appeals, National Union argued that M-F did not reverse preempt the FAA, because the FAA did not “interfere with, or undermine” California Insurance Code § 11658, and the enforceability of the Agreements should be determined by arbitration because the challenge to the Agreements was premised upon the validity of the Agreements as a whole. The insureds countered that the Agreements and arbitration provisions were illegal and unenforceable because they were not filed, M-F reverse preempts the FAA and, even if the FAA were to apply, the courts should determine the enforceability of the arbitration provisions. The Court of Appeals noted that there is a three-part test to determine whether M-F reverse preempted the FAA: (1) the federal statute in question does not specifically relate to insurance; (2) the state law at issue was enacted to regulate the business of insurance; and (3) the federal statute at issue would invalidate, impair, or supersede the state law (citations omitted). Id. The Court held that the first two prongs had been met because the FAA did not relate specifically to insurance and California Insurance Code § 11658 was enacted to regulate the business of insurance. Thus, whether M-F applied depended on whether the FAA invalidated, impaired, or superseded the California Insurance Code provision. The Court found that the provision would not be invalidated by the application of the FAA. The Court noted that although California courts have found that the FAA was reverse preempted by M-F with respect to healthcare service plans, workers’ compensation policies were different. In the former situation, a California statute required that certain disclosures be included in arbitration clauses in healthcare plans. In contrast, California law did not require a specific form or content of arbitration provisions or otherwise restrict their use in workers’ compensation insurance policies.

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In addition, the Court found that the California Insurance Code § 11658 filing requirement did not relate to the use or form of the arbitration provision. The Court rejected the insured’s argument that the FAA’s application would undercut the Department’s authority to review agreements and would provide an incentive to insurers to violate the filing requirement: [W]hether this issue is resolved by a court or by arbitrators, the question of whether the failure to file invalidates the Payment Agreements will not be determined by the Department, itself. However, should it be so inclined, the Department may pursue an enforcement action against National Union. Thus, permitting arbitration will not undermine the authority of the WCIRB or the Commissioner (citation omitted). Rather, the insureds’ contention that permitting arbitration would somehow frustrate the filing requirement or allow National Union to escape the consequences of its failure to comply with section 11658 is based on nothing more than their apparent hostility to arbitration. Id. at *7–8. Having established that the FAA was not reverse preempted, the Court held that the issue of the Payment Agreements and arbitration provisions should be resolved via arbitration as opposed to the courts. It found that attacks on the validity of the contract, as opposed to attacks on the validity of the arbitration provision itself, are to be resolved not by the courts, but by the arbitrator in the first instance. Here, the core issue related to the failure to file the Agreements rendering them unenforceable and “only by extension, the arbitration provisions.” Moreover, parties can agree to arbitrate gateway issues regarding arbitrability: Thus, where a contract contains a valid delegation to the arbitrator of the power to determine arbitrability, such a clause will be enforced absent a specific challenge to the delegation clause by the party resisting arbitration (citation omitted). Id. at *9.

CPLR 7501 – Cusimano v. Schnuur, 26 N.Y.3d 391 (2015) (Digest – April 2016) Federal Arbitration Act Applies to Agreements Involving Intrafamily Transactions But Plaintiffs Waived Their Right to Arbitrate Cusimano v. Schnurr, 26 N.Y.3d 391 (2015), involved three commercial agreements entered into among family members concerning family-owned entities, executed by New York residents. These agreements contained a provision requiring that any dispute be resolved by an arbitration governed by the American Arbitration Association (AAA). The three agreements included a partnership agreement, an operating agreement, and a sales agreement. This action was commenced alleging fraud and malpractice against the family’s accountants. The procedural history is a bit complicated, but at some point the issue of arbitration was broached. Ultimately the lower court found that the FAA was inapplicable “because the totality of the economic activity at issue did not have an effect on interstate commerce,” and that the court, not an arbitrator, should decide the applicable statute of limitations issue. In addition, the lower court held that the plaintiffs had waived their right to arbitrate by their “resort to, and aggressive participation in” the litigation. The Appellate Division reversed, finding that the FAA did apply and that the plaintiffs had not waived their right to arbitration. The Court of Appeals agreed with the Appellate Division that the FAA applied, but concluded that the plaintiffs had waived their right to arbitrate. The Court noted that traditionally the FAA has been interpreted broadly by the United States Supreme Court, which has made clear “that it is not necessary for the individual transaction to have a substantial effect on interstate

167 commerce, so long as the type of activity at issue has the requisite substantial effect.” Id. at 398– 99. The Court here rejected the defendants’ argument that the agreements did not impact interstate commerce because the entities were passive, requiring “little or no active management,” and the agreements were executed by New York residents and involved intrafamily transactions. The Court pointed out that the agreements essentially involved the ownership of and investment in commercial properties, that matters concerning commercial real estate have traditionally been treated as impacting interstate commerce, and that the focus should be on the particular economic activity: The ultimate purpose of the agreements was to authorize participation in the business of commercial real estate and that is, in fact, what the entities did. In determining whether the FAA applies, the emphasis is meant to be on whether the particular economic activity at issue affects interstate commerce – and, here, it does. Id. at 400. Nevertheless, the Court found that the plaintiffs had waived their right to arbitrate because of the amount of litigation that had occurred and the length of time between the start of the action and request for arbitration. The Court found that there was both substantive prejudice and prejudice resulting from excessive cost and delay: After vigorously pursuing their litigation strategy for approximately one year, plaintiffs moved to compel arbitration. Even more telling, the desire for arbitration only arose after Supreme Court made plain its view that plaintiffs’ claims were vexatious and largely time-barred. Indeed, plaintiffs had expressly represented to Supreme Court that they did not want to go to arbitration. Plaintiffs’ behavior is indicative of blatant forum-shopping and, under these circumstances, prejudice has clearly been established. Id. at 401.

CPLR 7501 – Federal Arbitration Act Applicability The practitioner must be aware of the interplay of the Federal Arbitration Act (9 USCS § 1, et seq.) applicable to contracts involving interstate and maritime commerce. See Cusimano v. Schnurr, 26 N.Y.3d 391, 44 N.E.3d 212 (2015) (“More recently, the United States Supreme Court indicated that it was ‘perfectly clear that the FAA encompasses a wider range of transactions than those actually 'in commerce' — that is, “within the flow of interstate commerce”’ (citation omitted). The Court clarified that it is not necessary for the individual transaction to have a substantial effect on interstate commerce, so long as the type of activity at issue has the requisite substantial effect (see 539 U.S. at 56). ‘Congress's Commerce Clause power “may be exercised in individual cases without showing any specific effect upon interstate commerce” if in the aggregate the economic activity in question would represent “a general practice . . . subject to federal control.” Only that general practice need bear on interstate commerce in a substantial way’ (539 U.S. at 56-57 [citations omitted]).”).

CPLR 7501 – Punitive Damages Claims Matter of Flintlock Constr. Servs., LLC v. Weiss, 991 N.Y.S.2d 408 (1st Dep’t 2014): Majority of the court held that subject provision did not unequivocally exclude punitive damage claims. “Merely stating, without further elaboration, that an agreement is to be construed and enforced in accordance with the law of New York does not suffice to invoke the Garrity rule. The Supreme Court has made clear that in order to remove the issue of punitive damages from the arbitrators, the agreement must ‘unequivocal[ly] exclu[de]’ the claim (id. at 60). The

168 agreement in this case, which provided only that it was to be ‘construed and enforced’ in accordance with the law of New York, did not unequivocally exclude claims for punitive damages from the consideration of the arbitrators (citations omitted). A New York choice-of-law provision does not constitute a manifestation of unequivocal intent sufficient to invoke the Garrity rule. We cannot agree with the dissent's conclusion that the parties' choice-of-law provision evinces ‘unequivocally’ with the requisite specificity demanded by the United States Supreme Court that the parties intended to incorporate the Garrity rule disallowing punitive damages in an arbitration. Matter of Diamond Waterproofing Sys., Inc. v 55 Liberty Owners Corp. (4 NY3d 247 [2005]), upon whose dicta the dissent relies, involved application of the statute of limitations and does not speak to the issue sub judice. We are aware of no instance in which the language that an agreement is to be ‘construed and enforced’ in accordance with New York law has been held to displace Mastrobuono. Indeed, case law is to the contrary, consistent with the Supreme Court's admonition that the relevant agreement must ‘specifically exclude’ the issue of punitive damages from the purview of the arbitrator in order to be enforceable (citation omitted).”

CPLR 7503 – Time limit does not apply where there was no agreement to arbitrate Matter of Fiduciary Ins. Co. v. American Bankers Ins. Co. of Fla., 132 A.D.3d 40, 14 N.Y.S.3d 427 (2d Dep’t 2015): “As noted by the Court of Appeals, a party may not be bound to arbitrate a dispute by mere inaction (citation omitted). Therefore, American Bankers' failure to move to stay arbitration pursuant to CPLR 7503 did not render this dispute arbitrable, where, as here, no agreement to arbitrate was ever made (citations omitted), and where, as will be discussed, American Bankers was not an insurer subject to the statutory requirement to submit to mandatory arbitration.”

CPLR 7509 – Reversal of substantive rulings improper Madison Realty Capital, L.P. v. Scarborough-St. James Corp., 135 A.D.3d 652, 25 N.Y.S.3d 83 (1st Dep’t 2016) (“CPLR 7511(c)(1) only authorizes modification of computational errors and mistakes in description, not reversal of substantive rulings (citation omitted). Defendants challenge the arbitrator's calculation of rent on multiple bases; however, not only are their arguments substantive, they are unavailing.”).

CPLR 7511(b)(1)– Seller waives claim that arbitrator was not impartial A & L Vil. Mkt., Inc. v. 344 Vil., Inc., 2016 NY Slip Op 04367 (2d Dep’t 2016) (“The arbitrator should have disclosed to the parties that he had been the arbitrator in a prior unrelated proceeding in which Vested was a party (citation omitted). Although the seller's attorney learned of the prior arbitration from the brokers' attorney a week after the hearing, the seller continued to actively participate in the arbitration process without raising any objections to the arbitrator. Under these circumstances, the seller waived any claims related to the alleged partiality of the arbitrator (citations omitted). In any event, the seller failed to establish that the prior arbitration had any effect upon the arbitrator's ability to be neutral in the instant matter (citations omitted). The seller also failed to demonstrate that the arbitrator committed misconduct, or that the arbitration award was irrational (citations omitted).”).

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CPLR 7511 – Partiality of arbitrator Matter of Piller v. Schwimmer, 135 A.D.3d 766, 22 N.Y.S.3d 572 (2d Dep’t 2016) (“Pursuant to CPLR 7511(b)(1)(ii), an arbitration award may be vacated if the rights of a party were prejudiced by the partiality of the arbitrator (citation omitted). An arbitrator designated by parties to a private contract may have a preexisting business or social relationship with a party to the contract, and that fact, without more, is not sufficient to disqualify the arbitrator— particularly where that relationship is known by the ‘other side’ (citation omitted). Indeed, if the parties so agree, the relationship of an arbitrator to the party selecting the arbitrator or to the matters in dispute will not disqualify the arbitrator (citation omitted). Thus, where a party becomes aware of a relationship between an arbitrator and the other party or to the matters in dispute that could lead to bias, if the party continues to participate in the arbitration, the party has waived his of her right to object to the award on this ground (citations omitted).”).

CPLR 7801 – Ranco Sand & Stone Corp. v. Vecchio, 27 N.Y.3d 92 (2016) (Digest – May 2016) In Zoning Dispute, Petitioner Seeks to Annul Positive Declaration Court Finds Matter Not Ripe for Judicial Review In Ranco Sand & Stone Corp. v. Vecchio, 2016 N.Y. Slip Op. 02477 (March 31, 2016), Ranco owned two pieces of contiguous property which were located in an area zoned for residential use. However, in 1997, Ranco leased one parcel to a private bus company which used the land as a trucking station and bus yard. Even though this was clearly a nonconforming use, the Town did not seek to enforce the residential zoning requirements. In 2002, Ranco sought to rezone the parcel to heavy industrial use. In 2004, the Town Planning Board recommended approval of the application but no further action was taken for five years, when the Town Board adopted a resolution issuing a positive declaration pursuant to the State Environmental Quality Review Act (SEQRA) that the rezoning of the parcel “may have a significant effect on the environment.” It required Ranco to prepare a draft environmental impact statement (DEIS). Such a statement is to describe “significant adverse environmental impacts” and include alternatives and mitigation measures. It provides the agency with information to assist in assessing the possible environmental consequences. Ranco commenced this CPLR Article 78 proceeding seeking to annul the positive declaration and requested mandamus relief. The respondent moved to dismiss for failure to state a cause of action. The Supreme Court granted the motion, finding that the issue was not ripe for judicial review. The Appellate Division affirmed, holding that the positive declaration did not give rise to a justiciable controversy. Ranco argued that the requirement that it prepare a DEIS would cause it actual and real financial injury, and thus there was a justiciable controversy. In order to bring an Article 78 proceeding to challenge an administrative action, it needs to be “final and binding upon the petitioner.” The issue here was whether the positive declaration was ripe for judicial review. The Court of Appeals noted that when challenging an action under SEQRA, a positive declaration is ripe for review when two requirements are met: First, “the action must ‘impose an obligation, deny a right or fix some legal relationship as a consummation of the administrative process’” (citation omitted). This threshold requirement consists of “‘a pragmatic evaluation. . . of whether the decisionmaker has arrived at a definitive position on the issue that inflicts an actual, concrete injury’” (id.).

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Second, “there must be a finding that the apparent harm inflicted by the action ‘may not be prevented or significantly ameliorated by further administrative action or by steps available to the complaining party’” (id.). Id. at *4. The Court concluded that, in this action, Ranco satisfied only the first requirement, but not the second, and to accept Ranco’s position would, in essence, conflate the two requirements: Indeed, Ranco’s approach would lead to convergence of the two requirements set forth in Gordon by reducing the analysis to whether a petitioner will incur unrecoverable costs. The inevitable result would be that every positive declaration requiring the creation of a DEIS would be ripe for review because the preparation of a DEIS by its nature carries financial costs that generally cannot be recouped, regardless of the outcome of the SEQRA process and the ultimate determination on a petitioner’s zoning application. However, courts should seek to avoid this type of “piecemeal review of each determination made in the context of the SEQRA process [which] would subject it to ‘unrestrained review… result[ing] in significant delays in what is already a detailed and lengthy process’” (citation omitted). Id. at *5. The Court of Appeals noted that generally a positive declaration that requires a DEIS is not a final agency action, but rather an initial step in the SEQRA process.

CPLR 7801/7803 –Springer v. Board of Educ. Of the City Sch. Distr. Of the City of N.Y., 27 N.Y.3d 102 (2016) (Digest – May 2016) Does Tenured Teacher Who Resigns Retain Tenure When Moving to New Position and School? Only if the Teacher Submits Written Request to Withdraw the Prior Resignation In Springer v. Board of Educ. of the City Sch. Dist. of the City of N.Y., 2016 N.Y. Slip Op. 02553 (April 5, 2016), the petitioner, a tenured teacher, voluntarily resigned to pursue a career as a corporate chef. Within months, however, he decided to return to teaching. After initially acting as a substitute teacher, he applied and was hired for a full-time teaching position. Following the replacement of the principal, the petitioner was terminated at the end of the school year upon receiving an “unsatisfactory” rating. Rather than filing a grievance, the petitioner brought this Article 78 proceeding, arguing that the decision to terminate was unlawful, arbitrary, and capricious, or an abuse of discretion, since he was a tenured teacher when he was reappointed. The petitioner sought reinstatement. The Board of Education cross-moved to dismiss the petition for, among other things, failure to state a cause of action or to exhaust administrative remedies. The lower court granted the motion on the ground that petitioner failed to exhaust his administrative remedies. The Appellate Division affirmed, but on a different ground, that is, petitioner’s failure to follow the applicable regulation with respect to the withdrawal of tenure. The Court of Appeals affirmed. It noted that, under the relevant regulation, a tenured teacher who resigns can avoid a probationary term at the new job if he or she submits a written request to withdraw the prior resignation. The petitioner claimed that he complied with the resignation requirements when applying in writing for the teaching positions. The Board countered that the required and specific written withdrawal request, not made here by the petitioner, is significant because it gives the Chancellor the opportunity to review the teacher’s competence and work history and to reject the request. Noting that the rules of statutory

171 construction apply to administrative regulations, the Court of Appeals construed the regulation in accordance with its plain language and concluded that the petitioner did not withdraw his resignation properly: By its plain terms, C-205(29) requires submission of a written request for withdrawal of resignation prior to a teacher’s reinstatement with tenure. “It is an accepted rule that all parts of a statute are intended to be given effect and that a statutory construction which renders one part meaningless should be avoided” (citation omitted). If, as petitioner argues, post-resignation application and hiring alone were sufficient to withdraw a prior resignation, then the language of the regulation requiring “written request . . . subject only to medical examination and the approval of the Chancellor,” would have no meaning. C-205(29)’s provision that a written request be subject to the Chancellor’s approval gives the Chancellor the opportunity to reject a request to withdraw a resignation. Under petitioner’s theory, the Chancellor’s role in the process is entirely eliminated. Petitioner’s interpretation of the Regulation is not in keeping with its plain language. Id. at *3.

CPLR 7801/7803 – Perlbinder Holdings, LLC v. Srinivasan, 27 N.Y.3d 1 (2016) (Digest – April 2016) Petitioner Did Not Acquire Vested Right to Maintain Large Outdoor Advertising Sign by Good-Faith Reliance on an Invalid Permit Remedy Was for Petitioner to Seek Variance from Applicable Agency In Perlbinder Holdings, LLC v. Srinivasan, 2016 N.Y. Slip Op. 02122 (March 24, 2016), the petitioner had maintained a large illuminated advertising sign on the side of its building for many years, courtesy of a 1980 permit. Subsequently, the New York City zoning regulations were changed in a way that did not permit the sign, but the original sign was grandfathered in as a legal non-conforming use. In 2002, the petitioner sought and obtained a zoning variance from the New York City Board of Standards and Appeals (BSA) to build a new mixed-use building on the property and the right to relocate the original sign with slightly different dimensions. The petitioner never built the building or constructed the sign. In 2008, the New York City Department of Buildings (DOB) issued a violation for petitioner’s failure to maintain the then- vacant building on which the original sign was located. The building and sign were subsequently demolished. The petitioner then sought to erect a new support structure and sign. Although the DOB granted the application for the support structure, it objected to the sign on various bases. On reconsideration, however, the sign permit was approved as grandfathered by the then- Manhattan Borough Building Commissioner. After the petitioner installed the structure and sign, the DOB audited its earlier permit approvals and determined that this sign was not lawfully approved and revoked the permits for the structure and sign. The BSA affirmed the DOB determination and concluded that the sign violated the Zoning Resolution and the petitioner had lost its right to the continued use of the advertising sign as a non-conforming use because that use had been discontinued for more than two years when the original sign and building were demolished. In addition, it found that the petitioner’s good- faith reliance did not estop the agency from making its determination.

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The petitioner brought this CPLR Article 78 proceeding seeking to restore its right to use the new sign on its property. The petitioner claimed that in relying in good faith on the Commissioner’s approval and the subsequently issued permits, it expended significant amounts of money to install the new sign. The Supreme Court denied the petition, dismissing the proceeding, finding that the BSA’s determination upholding the revocations was rational and not arbitrary or capricious, and concluding that estoppel was not available against an agency. The Appellate Division reversed and remanded the matter to the BSA for further findings and to determine whether the petitioner was entitled to a variance. It found that the BSA’s conclusion that it could not consider the petitioner’s good faith was erroneous. It also determined that the record established as a matter of law that the petitioner relied in good faith on the earlier 2008 determination and, thus, the BSA was required to consider petitioner’s good-faith reliance. The court did find that a variance was required for the new sign, because it was in a different location and position than the original sign. The Court of Appeals modified the Appellate Division order and dismissed the petition. The Court found that the BSA’s determination was rational because the applicable zoning resolution did not authorize the display of advertising signs in the zoning district and the new sign did not qualify as a grandfathered replacement. The petitioner argued it had a common law vested right to maintain the sign because it spent significant funds to erect a new sign in good- faith reliance on the 2008 permit. However, the Court ruled that vested rights cannot be acquired when the reliance is on an invalid permit, as was applicable here. Thus, the municipality could revoke the permit: When a permit is wrongfully issued in the first instance, the vested rights doctrine does not prevent the municipality from revoking the permit to correct its error. Because the 2008 permit was unlawfully issued, petitioner could not rely on it to acquire vested rights. Id. at *4. Finally, the Court agreed with the City that the Appellate Division erred in remanding the case for a variance determination and in ruling “as a matter of law” that petitioner acted in good faith. The Court held that the administrative agency, not the Court, should resolve the issue of the petitioner’s goodfaith reliance if the petitioner were to seek a variance.

CPLR 7801 – Prohibition Matter of Gentil v. Margulis, 120 A.D.3d 1414, 993 N.Y.S.2d 115 (2d Dep’t 2014): “The defendant commenced this proceeding pursuant to CPLR article 78 seeking relief in the nature of prohibition to prohibit the respondents from retrying him on counts two and three of the indictment on the ground that to do so would subject him to double jeopardy. In reviewing an application for prohibition, the first question is whether the issue presented is the type for which the remedy of prohibition lies (citations omitted). If prohibition lies, then this Court must consider whether to exercise its discretion to grant that remedy (citation omitted). Prohibition is the traditional remedy where a defendant seeks protection against double jeopardy (citations omitted), and the writ lies in this case.”

CPLR 7804 – Submission of Complete Certified Transcript Matter of Smith v. Quinn, 120 A.D.3d 1509, 992 N.Y.S.2d 457 (3d Dep’t 2014): “Although the Attorney General did not submit a complete certified hearing transcript with the answer (see CPLR 7804 [e]), he has subsequently done so. Petitioner has since reviewed the complete certified transcript and alleges no prejudice. Accordingly, we will disregard any

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CPLR 8301 (a)(13) - Taxing of cost of obtaining stenographic copy of trial testimony O'Brien v. Town of Huntington, 131 A.D.3d 685, 15 N.Y.S.3d 821 (2d Dep’t 2015): “This Court's opinion and order also included a provision awarding the defendants one bill of costs (citation omitted). The rules of this Court provide that ‘[i]n the absence of a contrary direction, the award by this court of costs upon any cause shall be deemed to include disbursements’ (22 NYCRR 670.21[b]). The defendants' proposed judgment included a provision taxing the cost of obtaining a stenographic copy of the trial testimony as a disbursement pursuant to CPLR 8301(a)(13). Under the circumstances of this case, the Supreme Court should not have rejected the defendants' request to tax the cost of obtaining the trial transcript as a disbursement since the defendants submitted an attorney affirmation, wherein counsel stated that while the transcripts were used during the trial, they were procured with the intent of preparing a record on appeal, and detailed his reasons for believing that an appeal would be necessary (citations omitted). Therefore, the defendants are permitted to tax $9,862.65 of the costs they expended in procuring the transcripts (citation omitted).”

CPLR 8303-a v. 22 NYCRR Part 130: Awarding sanctions – applicability of CPLR 8303-a, not 22 NYCRR Part 130 Baxter v. Javier, 2016 NY Slip Op 04165 (2d Dep’t 2016) (“In accordance with this Court's prior decision and order, the defendants were only entitled to an award of attorney's fees and costs based upon CPLR 8303-a (citation omitted). CPLR 8303-a provides, in pertinent part, that where, as here, a plaintiff has commenced a ‘frivolous’ claim in an action to recover damages for injury to property, ‘the court shall award to the successful party, costs and reasonable attorney's fees not exceeding ten thousand dollars.’ Thus, the plaintiff is correct that the Supreme Court erred in basing its award on both CPLR 8303-a and 22 NYCRR Part 130, and in awarding attorney's fees and costs in excess of the statutory limit set forth in CPLR 8303-a (citation omitted). Similarly, the court erred in imposing a sanction upon the plaintiff pursuant to 22 NYCRR 130-1.1. However, contrary to the contention of the plaintiff, the Supreme Court was not limited to making only one $10,000 award under CPLR 8303-a. The statute specifically permits an award of up to $10,000 to ‘the successful party’ against whom a frivolous claim is asserted. Here, the plaintiff interposed frivolous claims for punitive damages against each of the two defendants, and consequently, there are two ‘successful parties’ within the meaning of CPLR 8303-a. Thus, each defendant is entitled to a separate award under CPLR 8303-a of up to $10,000 (citation omitted).”).

CPLR 8601 – Actions v. State: New York State Equal Access to Justice Act Thomas v. Coughlin, 194 A.D.2d 281, 606 N.Y.S.2d 378 (3d Dep't 1993): Prevailing party may recover under CPLR 8601 even though legal services were provided to him without charge. The trial court must specify the basis for its fee, which may be based upon reconstructed time records where necessary.

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CPLR 8601 – Actions v. State: NYS Equal Access to Justice Act (Digest – June 2015) CPLR Article 86: To Prevail or Not to Prevail, That Is the Catalyst Question New York State Court of Appeals Punts on Whether Catalyst Theory Applies CPLR Article 86 is the New York State Equal Access to Justice Act (EAJA). It is based on the Federal Equal Access to Justice Act, 28 U.S.C. § 2412(d), which is expressly referenced in CPLR 8600. The intent of the Act is to establish a mechanism authorizing the recovery of attorney fees and other expenses in certain actions against the state. Specifically, CPLR 8601 provides that a “prevailing party” is entitled to recover counsel fees and expenses in certain actions against New York State “unless the court finds that the position of the state was substantially justified or that special circumstances make an award unjust.” The “catalyst theory” provides that even if the government moots an action voluntarily by granting the relief the plaintiff sought, the plaintiff can nevertheless recover attorney fees on the theory that the claim was a catalyst for favorable governmental action. That theory was accepted by the federal courts in interpreting the federal EAJA in 1989, the year CPLR Article 86 was enacted. In 2001, however, in Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of Health & Human Res., 532 U.S. 598 (2001), the U.S. Supreme Court rejected the catalyst theory in the context of the fee- shifting provisions of the Fair Housing Authority Act of 1988 and the Americans With Disabilities Act of 1990. The Court held that in order to recover fees as a “prevailing party,” one needs to obtain “some [type of] relief.” In 2001 the First Department, relying on Buckhannon, similarly rejected the catalyst theory as applied to Article 86. See Auguste v. Hammons, 285 A.D.2d 417 (1st Dep’t 2001). The First Department revisited the issue in Solla v. Berlin, 106 A.D.3d 80 (1st Dep’t 2013), rejecting its earlier holding in Auguste and formally recognizing the catalyst theory. The court reasoned that Buckhannon was not dealing with the state or the federal EAJA, that New York courts should interpret Article 86 in accordance with the federal courts’ understanding of the EAJA in 1989, when the state statute was enacted, and that there “is no evidence to suggest that the New York State Legislature, in enacting the State EAJA, ever intended to eliminate attorneys’ fee awards under the catalyst theory.” Id. at 82. The issue was then presented to the N.Y. Court of Appeals which punted, stating that it took no position on whether the catalyst theory applies to CPLR Article 86. Instead, the Court held that even if the catalyst theory applied, the petitioner was not entitled to recover: Under the pre-Buckhannon federal precedent that petitioner would have us apply, a fee claimant recovers attorneys’ fees only if his or her lawsuit prompted a change in position by the party from which claimant seeks reimbursement (citations omitted) . . . Here, petitioner seeks payment of attorneys’ fees from the State of New York. But the State has consistently sided with petitioner regarding HRA’s reduction of her shelter allowance. The City altered its position following petitioner’s commencement of this proceeding, but the State did not. Consequently, petitioner could not recover attorneys’ fees under CPLR article 86 even if the catalyst theory were New York law. Therefore, the Appellate Division erred in granting petitioner’s application. Solla v. Berlin, 24 N.Y.3d 1192, 3 N.Y.S.3d 748, 27 N.E.3d 462 (2015). The catalyst theory lives for another day and the Court of Appeals’ decision is a catalyst for confusion!

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CPLR 8602 – Action v. State: NYS Equal Access to Justice Act Reasonable attorneys’ fees may include fees for paralegal or law student services performed “under the supervision of an attorney incurred in connection with an administrative proceeding and judicial action.” (CPLR 8602(b)) However, where petitioner represented himself and was not under an attorney’s supervision, even though he was a qualified paralegal, he did not incur reimbursable fees or expenses under the statute. Matter of Mingo v. Chappius, 123 A.D.3d 1347 (3d Dep’t 2014) (“We affirm. EAJA provides for an award, in limited circumstances, of ‘fees and other expenses’ to a prevailing party in civil actions against the state (CPLR 8601 [a]; see CPLR 8600). The statute permits an award of counsel fees but, inasmuch as such an award is in derogation of the common law, those provisions are strictly construed (citations omitted). ‘Fees and other expenses’ are defined in relevant part as ‘reasonable attorney fees, including fees for work performed by law students or paralegals under the supervision of an attorney incurred in connection with an administrative proceeding and judicial action’ (CPLR 8602 [b] [emphasis added]; see CPLR 8601 [a]). Petitioner represented himself and was not under the supervision of an attorney even if he is, in fact, qualified as a paralegal. Thus, he has not incurred any reimbursable fees or expenses, and Supreme Court properly denied his motion (citations omitted).”).

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