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: • Ferstendig, LexisNexis AnswerGuide New York Civil Litigation (2016 ed. Matthew Bender). Copyright 2016 Matthew Bender & Company, Inc., a LexisNexis company. All rights reserved. • LexisNexis® Expert Commentaries, David L. Ferstendig on Brill v. City of New York. Copyright 2007 Matthew Bender & Company, Inc., a LexisNexis company. All rights reserved. • 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 3 Holmes v.