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NEW YORK

CIVIL PRACTICE:

2014 YEAR IN REVIEW

Michael J. Hutter

Professor of Law Albany Law School 80 New Scotland Ave. Albany, NY 12208

518-445-2360 mhutt@albanylaw.edu Special Counsel

POWERS & SANTOLA, LLP 39 North Pearl Street Albany, NY 12207 518-465-5995

mhutter@powers-santola.com December 2014

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LEGISLATION

1. CPLR 2106 - L. 2014, ch. 380

Effective 1/1/15, Statute is amended by dividing it into 2 sections (a) and (b). Subdivision (a) restates

present statute. Subdivision (b) authorizes any individual physically outside the US and its territories to use an affirmation instead of affidavit and specifies the form of the affirmation.

2. CPLR 2214 - L. 2014, ch. 109 Effective 7/22/14, subdivision (c) is amended to provide that in e-filed action previously filed e-papers

need only be referenced by docket number on e-filing system and not filed again for reargument/renewal motion, absent a court rule. Amendment overrules Biscone v. Jet Blue Airways (103 A.D.3d 158 [2d Dep’t 2012]).

3. CPLR 3113, L. 2014, ch. 379 Effective 9/23/14, subdivision (c) is amended to permit non-party deponent’s counsel to make

objections on behalf of deponent in the same manner as counsel for party. Amendment overrules

Thompson v. Mather (70 A.D.3d 1436 [4th

Dep’t 2010]) and Sciara v. Surgical Assoc., 104 A.D.3d 1256 [4

th Dep’t 2013]).

4. CPLR 3122-a - L. 2014, ch. 314

Effective 8/11/14, a new subdivision is added which expands statute’s authentication requirements to

records produced voluntarily, without the service of a subpoena duces tecum.

5. CPLR 3216 - L. 2014, ch. 371 Effective 1/1/15 (1) subdivision (a) is amended to make clear that a CPLR 3216 dismissal by a court

must be preceded “with notice to the parties”; (2) subdivision (b)(2) is amended to provide as an

alternative time period “six months since the issuance of the preliminary court conference order” ; and (3) subdivision (b)(3) is amended to add that the demand set forth the specific conduct constituting the neglect.

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JUDICIAL DECISIONS

Part One

PERSONAL JURISDICTION

I. CPLR 301

A. Presence

1. Corporations

Daimler AG v. Bauman

134 S. Ct. 746 (2014) Court declared in essence that NY’s well established “doing business” standard under which an unauthorized foreign corporation is subject to general jurisdiction in NY is unconstitutional. Instead,

general jurisdiction is present onlywhen a corporation is “at home.” There are three instances: (1) corporation is incorporated in the state; (2) corporation has its principal place of business in the state; and (3) “in an exceptional case” where the corporation’s activities in the state are “so substantial and of such a nature as to render the corporation at home in that state.” COMMENT: (1) How is principal

place of business determined? (2) What would be an example of the third permissible basis? (3) Can a foreign parent corporation be at home in a state where it controls or dominates a subsidiary incorporated in that state or with its principal place of business there such that the subsidiary is a mere “department” of the parent under Delagi v. VW (29 N.Y.2d 426 [1972])? (4) For further discussion of

Daimler and its effects, see Connors, “Impact Of Recent US Supreme Court Decisions On Practice In NY,” NYLJ, 6/18/14 and 7/21/14, p. 3, col. 1. Magdelena v. Lins

__ A.D.3d __, __ N.Y.S.2d __ (1st Dep’t 2014)

Court held, citing Daimler, that there was no basis for general jurisdiction over foreign corporation since it is not incorporated in NY and does not have its principal place of business in NY.

Mejia-Haffner v. Killington Ltd. 119 A.D.3d 912, 990 N.Y.S.2d 561 (2d Dep’t 2014)

In this post-Daimler decision, Court held P did not demonstrate that D was “doing business” in NY for purposes of general jurisdiction. COMMENT: ? Sonera Holding v. Cukuroua Holding

750 F.3d 221 (2d Cir. 2014) Court observed that Daimler has made it clear that “engagement in a substantial continuous and systematic course of business” is alone insufficient to render a corporation at home in a forum.

Saarstahl v. Wirthlin 2014 WL 2727018 (Trial Order) (Sup. Ct. NY Co. (Sherwood, J.)

Court dismissed action, citing Daimler, and stating: “The record makes clear that D Wirthlin, based in Utah and incorporated in Delaware, is not “at home” in NY. Rather, its presence here consists merely of having a NY mailing address and a NY phone number. The exercise of general personal

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jurisdiction over D would violate due process under Daimler.” COMMENT: For a discussion of other decisions from the Commercial Division reaching same result, see, Smith and Hills “General Jurisdiction in NY After Daimler,” NYLJ, 10/17/14, p. 3, col. 1.

2. Persons

Burnham v. Superior Court 495 U.S. 604 (1990)

Service of process of person upon person while in NY, even if transient, is sufficient to confer general jurisdiction. COMMENT: Justice Sotomayor in her concurrence in Daimler noted the “incongruous” result created by Daimler when compared to Burnham.

Hardware v. Ardowork 117 A.D.3d 561, 986 N.Y.S.2d 445 (1

st Dep’t 2014)

Court held that third-party D, the father of the infant P, was “doing business” in NY sufficient to render him subject to general jurisdiction in NY. COMMENT: Does Daimler’s “at home” standard apply to individual who is conducting business?

B. Consent

1. Corporations

BCL §304(a)

Under this statute, a foreign corporation that is registered to do business in NY consents to general jurisdiction. See, Augsburgy Corp. v. PetroKey Corp ., 97 A.D.2d 173 (3d Dep’t 1983). COMMENT:

Does Daimler preclude mere registration as basis for general jurisdiction? See, Alexander, Practice Commentaries to CPLR 301, C301:6 (2014).

2. Persons

Barclays Bank v. Urbi, SAB 114 A.D.3d 479, 981 N.Y.S.2d 10 (1

st Dep’t 2014)

Court upheld jurisdiction over foreign corporation based on the parties’ agreement wherein they stated they consented to jurisdiction in NY with respect to the claims in issue. COMMENT: Effect, if any, of Daimler on written consent agreements?

C. Domicile Magdelena v. Lins __ A.D.3d __, __ N.Y.S.2d __ (1

st Dep’t 2014)

Court notes that domicile of individual D may still be a basis for personal jurisdiction after Daimler. COMMENT: Correct?

D. Voluntary Appearance

Matter of Pitka v. Pitka

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121 A.D.3d 1521, 944 N.Y.S.2d 750 (4th

Dep’t 2014) Court held Family Court jurisdiction over respondent father in this Family Court Act Article 4 proceeding as his voluntary appearance through the course of this litigation clearly indicated that he

consented to NY’s personal jurisdiction over him.

II. CPLR §302(a)

A. Due Process

Walden v. Fiore 134 S. Ct. 1115 (2014)

When specific jurisdiction is involved, e.g., longarm basis, Court held that the due process “minimum contacts” analysis requires the contacts to be based on a D’s individual contacts with a forum state, and not based solely on the relationship the D may have with the Ps or third-parties who reside in the

state. COMMENT: (1) Walden raises concerns about the application CPLR 302(a)(3)(a)(ii) where the only connection D may have with NY is ability to foresee consequences of the act in NY; (2) Sybron v. Wetzel,, 46 N.Y.2d 197 (1978) and Penguin Group v. American Budka, 16 N.Y.3d 295 (2011), have mostly likely been overruled by Walden.

B. Bases

1. CPLR 302(a)(1)

Paterno v. Laser Spine Institute __ N.Y.3d __, __ N.Y.S.2d __ (2014)

P, NY resident, sued D, a Florida corporation for medical malpractice arising out of spinal surgery performed in Florida. P learned of D through an advertisement on the home page of his ISP AOL. After viewing a video via that advertisement, she communicated with D via telephone and the internet and sent MRI film to D. After an exchange of emails and undergoing another MRI in NY at the

request of D, P agreed to surgery and traveled to Florida. Court held D had not transacted business in NY as the passive website, emails and instructions were not enough to make the required showing. COMMENT: Unfortunate result which seems at odds with Court’s prior “transacting business” decisions. In essence, it allows and out-of-state corporation who trolls for patients in NY, and

elsewhere, to avoid jurisdiction in NY because all it did in NY, according to the court, was to entice and encourage NY residents to come to Florida. Mejia-Haffner v. Killington Ltd. 119 A.D.3d 912, 990 N.Y.S.2d 561 (1

st Dep’t 2014)

P was injured at a ski-racing instructional camp operated by D. Court held there was no jurisdiction under CPLR 302(a)(1) since the allegations of negligence - faulty instructions from instructors - were too remote from D’s sales and promotion activities conducted through its website.

Magdelena v. Lins __ A.D.3d __, __ N.Y.S.3d __ (1

st Dep’t 2014)

Court held there was no basis for jurisdiction as the record shows that the parties negotiated and executed the Fee Sharing Agreement while they were out of the country, and it is not alleged that the agreement was performed or breached in NY. Thus, no part of the transaction at issue occurred in NY.

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Cellino & Barnes v. Martin, Lister & Alvarez 117 A.D.3d 1459, 985 N.Y.S.2d 776 (4

th Dep’t 2014)

Court held Florida law firm was subject to jurisdict ion under CPLR 302(a)(1) and had the requisite minimum contacts with NY to be subject to jurisdiction in NY in this action by P seeking quantum meriut damages for P NY law firm’s legal representation of client who later retained Florida firm to represent her. Florida firm represented client who was injured in motor vehicle accident tin NY and

then obtained favorable settlement of her NY PI claim from NY tortfeasors in accordance with NY law, and, before settling the action, attorney handling the claim for Florida firm became admitted to practice in NY.

2. CPLR 302(a)(3)

Hardware v. Ardowork Corp.

117 A.D.3d 561, 986 N.Y.S.2d 445 (1st Dep’t 2014)

Court held third-party P, the father of the infant P, was not subject to jurisdiction under CPLR 302(a)(3) because, although he engaged in a persistent course of conduct within NY, the situs of the

injury alleged in the third-party complaint is CT, where the infant P was allegedly exposed to lead-based paint at a property owned by him, regardless of whether the child resided in NY at the time. Waggaman v. Arauzo

117 A.D.3d 724, 985 N.Y.S.2d 281 (2d Dep’t 2014) Court held that D, a TX physician who prescribed medication to P’s mother while she resided in TX and FL was not subject to personal jurisdiction under CPLR 302(a)(3)(ii) as P, a NY resident, failed to

establish that alleged tortious act caused injury in NY, that physician expected or should reasonably have expected the act to have consequences in NY, or that he derived substantial revenue from interstate commerce. Court also noted that under Walden the D’s purported treatment of a NY resident’s mother in TX and FL is the type of attenuated connection to a forum state that the Supreme

Court now holds violates due process. Darrow v. Hetronic Deutschland 119 A.D.3d 1142, 990 N.Y.S.2d 150 (3d Dep’t 2014)

P, a NY resident, brought this action against a German corporation, a manufacturer of radio remote controls, to recover for injuries he sustained while operating a boom with such a device. Court held jurisdiction was proper under CPLR 302(a)(3)(ii), noting that D did not dispute P’s evidence that it

derives half of its revenues from export sales (over 1 million); and that it should have reasonably expected a manufacturing defect to have consequences in NY as it used a distributor to distribute its products to various locations in the United States, including NY and that distributor used regional distributors, including one that was designated to serve the NY market, a distribution network D was

aware of. Court also held, without citing Walden, that the exercise of jurisdiction is compatible with due process. COMMENT: Consistent with Walden?

3. Discovery

Gottlieb v. Merrigan 119 A.D.3d 1054, 990 N.Y.S.2d 109 (3d Dep’t 2014)

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P, a NY attorney, was retained to represent a NY resident, employed by a NY corporation, who was injured during the course of his employment in MA. Two years later P was discharged and the client retained D, a MA attorney and his law firm to represent him. The client’s action was settled and D

was to be paid a fee from the settlement. The WC carrier for the client’s employer asserted a lien, and thereafter client through his NY WC attorneys entered into a settlement agreement pursuant to WCL §32. P then commenced an action to collect the amount he claimed was owed him from the settlement. Court reversed dismissal of the action for lack of personal jurisdiction over D concluding

that P made a “sufficient start” and demonstrated that additional facts establishing jurisdiction “may exist” but are within the exclusive control of D. In so holding,, the Court noted that Ds do not dispute that they knowingly chose to represent a NY resident seeking to recover on an injury for which he was also receiving NY WC benefits. Nor do Ds dispute that the consent of the NY carrier and the approval

of the WCB - along with Ds’ arrangement to pay the carrier out of the settlement proceeds - was necessary to settle the client’s case, and that they initiated and pursued negotiation with the carrier. Court noted discovery may show that the negotiations occurred in NY.

III. Vehicle & Traffic Law §253

Torres v. Santus LLC 2014 WL 978431 (EDNY) (Ross, J.)

Court awards default judgment against D, a foreign corporation, over whom personal jurisdiction was present under V&T §253. COMMENT: Compatible with Daimler and Walden?

Part Two

PROPER COURT

I. BCL §1312(a)

Palisades Tickets, Inc. v. Daffner 118 A.D.3d 619, 989 N.Y.S.2d 25 (1

st Dep’t 2014)

P, a foreign corporation not authorized to do business in NY, sued a NY attorney, alleging he

conspired with his clients to impede P from collecting on judgment in its favor. Court held even if the underlying judgment arose from a business transaction with the judgment debtors, who are NY residents and corporations, evidence of a single transaction is insufficient to sustain D’s burden of showing that the corporation engaged in “systematic and regular” business activities in this state.

II. FORUM SELECTION CLAUSES

A. Enforceability

Magdelena v. Lins __ A.D.3d __, __ N.Y.S.3d __ (1

st Dep’t 2014)

Court held P could not enforce forum selection clause as he was not a party to the agreement containing it or an intended third-party beneficiary of the agreement. Gliklad v. Cherney

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113 A.D.3d 505, 979 N.Y.S.2d 297 (1st Dep’t 2014)

On prior appeal, Court had upheld validity of the parties’ forum selection clause. (97 A.D.3d 401). On present appeal, it held: “Given the binding ruling as to clause, the trial court correctly found that D

was barred from asserting a defense based on lack of jurisdiction.” Ofer v. Sirota 116 A.D.3d 509, 984 N.Y.S.2d 312 (1

st Dep’t 2014)

Court dismissed divorce action, noting the forum selection clause in prenuptial agreement, granting exclusive jurisdiction over any divorce litigation to a competent Israeli court was enforceable. It held that wife could not avoid the clause simply because NY’s legal system might treat her more favorably

by permitting her to obtain a no-fault divorce; wife, an Israeli citizen, had been well aware that Jewish religious laws governed Israeli divorces when she consented to the forum selection clause; and that NY’s strong and important public policy with regard to compelling civil litigants to remove any barriers to remarriage could not override forum selection clause in prenuptial agreement, which

granted exclusive jurisdiction over any divorce litigation to a competent Israeli court, particularly because wife would not be deprived of her day in court in the chose forum. U.S. Merchandise v. L&R Dist.

__ A.D.3d __, __ N.Y.S.2d __ (2d Dep’t 2014) The parties entered into a non-disclosure agreement which contained a clause providing for “the exclusive jurisdiction of the courts of Delaware and the federal courts therein” for disputes. P

commenced an action alleging breach of the agreement in Nassau County, and D moved to dismiss on the basis of the clause. Court reversed trial court and held clause was not enforceable as P “made the requisite strong showing that the clause was ‘unreasonable.’” It noted that neither the parties nor the agreement ahs 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. Putnam Leasing Co. v. Pappas

__ Misc.3d __, 995 N.Y.S.2d 457 (D. Ct. Nassau Co. 2014) (Ciaffa, J.) D moved to vacate default judgment entered in NY by P, a CT corporation. Judgment was based on a clause in the parties MV lease that all litigation arising under the lease was to be brought in a NY

court. At the time the lease was entered into D was a resident of CT, and the action was commenced with service upon D by certified mail as provided in lease. Court held post-Daimler that it possessed jurisdiction “over the action, consistent with due process, pursuant to the clause.”

B. Federal Courts

Atlantic Marine Constr. Co. v. US District Court 134 S. Ct. 568 (2013)

Court held that where an action is commenced in a federal court not permitted under a forum selection clause, the clause may be enforced by a motion to transfer under 28 USC §1404(a). It declined to consider whether dismissal under FRCP 12(b)(6) would be appropriate. Court also noted in

determining whether transfer meets §1404(a)’s requirements, the clause should control except in unusual cases. Lastly, it noted that where the action is commenced in the forum not specified a §1404(a) transfer does not carry with it the original venue’s choice of law rules.

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Starkey v. Gap Adventures, Inc. 2014 WL 1271233 (SDNY) (Greisa, J.)

P, a NY resident commenced this action against D, challenging she was sexually assaulted by a tour guide while vacationing in the Galapagos Islands, which vacation was organized by D. Her confirmation invoice and service voucher from D stated that in purchasing the ticket, she agreed to the contract’s Terms and Conditions which could be reviewed via a hyperlink. One of the clauses stated

all matters arising from it are subject to the exclusive jurisdiction of the Ontario and Canadian courts. Court granted D’s motion to dismiss, noting the inconvenience P alleged to invalidate the clause - inconvenience in traveling to Canada - was insufficient to rise to the level of “fundamental unfairness” necessary to invalidate such clauses under Second Circuit precedent. Court also rejected P’s argument

that dismissal would be unfair because she may be time-barred from suing in Canada, a ground that plight was of her own making.

III. FORUM NON CONVENIENS

A. Motion Mashregbank PSC v. Ahmed Hamad

23 N.Y.3d 129, 989 N.Y.S.2d 458 (2014) Departing from USL Corp. v. Dunes Hotels & Casino (70 N.Y.2d 948 [1988]), Court holds that notwithstanding CPLR 327(a)’s language a court may dismiss sua sponte an action on forum non

conveniens ground.

B. Application of Factors

Mashregbank PSC v. Ahmed Hamad 23 N.Y.3d 129, 989 N.Y.S.2d 458 (2014) Court dismissed the action sua sponte, observing: “Apart from the use of NY banks to facilitate dollar

transfers - a fact which, as we have said, is of minor importance here - we see nothing in this case to justify resort to a NY forum. No party is a NY resident; no relevant conduct apart from the execution of fund transfers occurred in NY; no party has identified any important NY witnesses or NY documents; NY law does not apply; no property related to the dispute is located in NY; no related

litigation is pending in NY; and no other circumstance supports an argument that NY is an appropriate forum. Alternatives to a NY forum are available; indeed, the parties’ briefs refer to a number of related investigations or litigation pending in several foreign countries. This is a classic case for the application of the forum non conveniens doctrine.” In so ruling, Court made short shrift of the

argument based on NY’s banking system: “Our state’s interest in the integrity of its banks is indeed compelling, but it is not significantly threatened every time one foreign national, effecting what is alleged to be a fraudulent transaction, moves dollars through a bank in NY.”

Boyle v. Starwood Hotels & Resorts 23 N.Y.3d 1012, 992 N.Y.S.2d 773 (2014) Court upheld Second Department’s dismissal with conditions. Second Department had held trial court

providently granted hotel chain’s motion to dismiss PI action, in which Ps alleged that they contracted Legionnaires’’ disease during separate stays at hotel located in United Arab Emirates, on ground of forum non conveniens, with dismissal conditioned upon chain’s stipulation to waive jurisdictional and

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statute of limitations defense in United Kingdom, France and UAE; two Ps were residents, other P was resident of France, alleged injuries arose in UAE and chain was incorporated in MD such that only connection with NY was chain’s principal place of business in White Plains.

Becker v. Federal Home Loan Mortgage Corp. 114 A.D.3d 519, 981 N.Y.S.2d 379 (1

st Dep’t 2014)

Court upheld dismissal of mortgagors’ claims against Freddie Mac which sought various relief on

ground it lacked a substantial nexus with NY, in connection with a mortgage loan on real property located in IL, although Freddie Mac had an office in NY and note was eventually securitized by a NY trust, such that certain documents and witnesses knowledgeable about the securitization were located in NY, where mortgagors resided in IL, note and mortgage were secured by real property in IL,

mortgagors sought reformation of note to reflect present value of property in IL, and underlying mortgage stated that laws of IL applied. Wild v. University of Pennsylvania

115 A.D.3d 944, 983 N.Y.S.2d 58 (2d Dep’t 2014) Court upheld dismissal of veterinary malpractice action against PA veterinary hospital, noting the witnesses, with the exception of owner, and evidence were located in PA, which was the situs of the

underlying events, PA was an alternative forum, suit would impose burden on NY court of retaining a case to which it did not have a substantial nexus, and owner did not elucidate what relevant testimony the expected three non-party witnesses located in NY would give. However, Court held dismissal should have been conditioned on hospital’s stipulation to accept service of process in a new action in

PA upon the same causes of action and to waive any SOL defenses. Koop v. Guskind 116 A.D.3d 672, 984 N.Y.S.2d 68 (2d Dep’t 2014)

Court upheld dismissal as a provident exercise of the trial court’s discretion of the action by P hunting guide seeking to recover damages for injuries he allegedly sustained when hunter accidentally shot him, where guide was a resident of Canada, the shooting occurred in Canada, many of the witnesses

were in Canada, and location of hunter’s residence was sole connection in the case to NY. However, it held the dismissal should have been conditioned on hunter’s stipulation to waiver of jurisdictional and SOL defenses, so as to assure availability of a forum for the action.

Kang v. Kim 121 A.D.3d 527, 995 N.Y.S.2d 3 (1

st Dep’t 2014)

In this action seeking to impose a constructive trust, Court held trial court did not err in finding NY

was a proper forum, noting the trial court considered the appropriate factors including that the dispute concerns real property in NY and the actions and transactions that gave rise to the claim occurred in NY, the mortgage payments on the properties and rent collected from the properties go to a NY bank, there is no alternative forum in which to litigate this claim because South Korea does not recognize

constructive trusts, and D has demonstrated his availability to this forum by his prior business activities here. Cellino & Barnes v. Martin Lister & Alvarez

117 A.D.3d 1459, 985 N.Y.S.2d 776 (4th

Dep’t 2014) P NY law firm commenced action against a FL law firm, seeking quantum meriut damages for its

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legal representation of client who was injured in NY MV accident who later retained the FL firm to represent her. Court held that D failed to meet its “heavy firm” of establishing that NY is an inconvenient forum.

IV. VENUE

A. Venue Contractual Clause

Medina v. Gold Crest Care Ctr. 117 A.D.3d 633, 988 N.Y.S.2d 578 (1

st Dep’t 2014)

Nursing home patient’s agreement specified that venue for all disputes arising from or relating to the

agreement was Westchester County. Court, reversing trial court, held that the negligence action brought against D was covered by clause and thus it granted D’s motion to change venue from the Bronx to Westchester County.

Bhonlay v. Raquette Lake Camps 120 A.D.3d 1015, 991 N.Y.S.2d 765 (1

st Dep’t 2014)

Parties’ agreement specified venue for any dispute would be Hamilton County. Court upheld change

of venue from New York County to Hamilton County as P did not demonstrate that enforcement of the clause would be unjust, contravene public policy, or was obtained by overreaching. The mere inconvenience to travel was insufficient as it did not rise to the level of “gravely difficult” travel such that P would be deprived of his day in court.

Couvertier v. Concourse Rehab 117 A.D.3d 772, 985 N.Y.S.2d 683 (2d Dep’t 2014)

Decedent upon his admission to D signed an agreement which contained a forum selection clause which stated “any and all actions arising out of and related to the agreement shall be brought in Westchester County, NY.” Upon his death a wrongful action was commenced in Bronx County. Trial court’s order granting motion to change venue to Westchester County was affirmed by Court. Court

initially held that the language of the clause embraced a medical malpractice action and that the action arose out of care rendered to decedent by D. Court also held P “failed to show the clause was unreasonable or unjust, or that a trial in Westchester County would be so gravely difficult that, for all practical purposes, she would be deprived of her day in court. Also, the P did not allege, or

demonstrate, that the clause was the result of fraud or overreaching. Under these circumstances, P failed to make any showing that the clause should be set aside.” Delany v. Town Sports Intl.

2014 N.Y. Slip Op. 31466(U) (Sup. Ct. NY Co.) (Edmead, J.) Parties’ written agreement specified Westchester County as the venue for any action arising out of the agreement. D moved to change venue to that county from NY County. Court held clause established

prima facie its entitlement to relief. It then held P failed to show clause was procured by fraud or overreaching, noting fact that clause was not product of negotiation and presented to P at registration did not establish otherwise; and that difficulty of Ds managers and employees to travel did not establish trial in Westchester County would be “so gravely difficulty” that P would be deprived of his

day in court. Lastly, Court noted P’s claim that any third-parties brought into the action would move to dismiss on forum non conveniens ground is “speculative” at best.

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B. Venue Requirements Peoples v. Vohra 113 A.D.3d 664, 978 N.Y.S.2d 353 (2d Dep’t 2014)

Decedent died after treatment at D hospital located in Orange County, and Orange County Surrogate subsequently appointed P, decedent’s mother-in-law, who “resided” in a nursing home in Kings County. Action for medical malpractice commenced in Kings County. Court denied D’s motion to

change venue pursuant to CPLR 510 to Orange County, noting venue was proper through SCPA §1001(6). It further held D failed to establish that appointment of P “amounted to a fraud upon the court.”

Nova Casualty Co. v. RPE, Inc. 115 A.D.3d 717, 981 N.Y.S.2d 582 (2d Dep’t 2014) Appeal involved two related D/J actions declaring rights and obligations of the parties under two

policies of insurance. First action was commenced in Erie County and second in Queens County. Trial court ordered consolidation pursuant to CPLR 602(a) and Court held venue of that consolidated action should be Erie County where first action was commenced. It noted generally that with respect to joint trials the trial should be in the venue where the first action was commenced unless “special

circumstances” existed. Here, no such situation was present as party failed to make such showing. Ferdito v. Vultaggio 115 A.D.3d 541, 982 N.Y.S.2d 449 (1

st Dep’t 2014)

In this consolidated action, departure from the basic rule was warranted as Nassau County was the site for the HQ of the parties, and “most importantly” trial court determined action could be “most effectively handled and tried” in Nassau County. Court also noted defendants did not establish any

substantial prejudice as a result of consolidation in Nassau County. Liere v. State __ A.D.3d __, __ N.Y.S.2d __ (3d Dep’t 2014)

Claimant commenced this action seeking damages from D based on the alleged malicious prosecution of an administrative proceeding by the Department of Environmental Conservation. He subsequently moved to change venue of the matter from Albany County to Suffolk County. The Court of Claims

denied the motion. Court affirmed. It noted D failed to meet his burden under CPLR 510(3) since beyond providing the names and addresses of certain non party 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. COMMENT: P is not precluded from making the motion.

Fix v. B&B Mall Assoc. 118 A.D.3d 477, 987 N.Y.S.2d 384 (1

st Dep’t 2014)

D moved to change venue from Bronx to Westchester County in action where P alleges she was injured in mall in Westchester County owned by D. In support of its motion, D submitted an affidavit of its president averring that its principal place of business at the relevant time was in Westchester

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County and that it does not maintain a place of business or office in Bronx County. Court held the conclusory affidavit, unsupported by any documentary evidence or other showing that it had designated Westchester County as its principal office, was insufficient to establish that P’s selection of Bronx County was improper. Court also noted that P refuted D’s claims by his proof that D had

designated Bronx County as its principal place of business in filings with Secretary of State. Greenwald v. Polatseck 114 A.D.3d 904, 980 N.Y.S.2d 810 (2d Dep’t 2014)

Ds moved to transfer venue from Kings to Rockland County, where MV accident occurred, on ground that P was a resident of Rockland County, and not Kings County. While P had a residence in Rockland County where he resided with his wife and child, he claimed he moved into his parent’s

home in Kings County after he was released from the hospital. Court granted motion, finding that P failed to establish a second residence at his parents’ home which would have permitted venue in Kings County.

Kelly v. Karsenty 117 A.D.3d 912, 986 N.Y.S.2d 227 (2d Dep’t 2014) P commenced action in Queens County and D moved to transfer venue to Rockland County on ground

all parties resided in Rockland County. Court held P established residency in Queens County by copy of his lease for apartment in Queens County, copy of a NYS tax bill that listed the apartment in Queens as P’s address, and which was dated prior to the commencement of the action, and a maintenance invoice for the apartment in Queens, a bank account statement, and a union membership

card, all of which listed the apartment in Queens as his address, and all of which were dated after the commencement of the action, were sufficient to establish that, at the time of the commencement of the P/I action, P had a bona fide intent to retain an additional residence in Queens with some degree of permanency, as required to establish venue in Queens County was proper.

Chehab v. Roitman 120 A.D.3d 736, 992 N.Y.S.2d 74 (2d Dep’t 2014)

Court upheld denial of D’s motion to change venue from Kings to Queens County which was made on ground neither party resided in Kings County. Court held D failed to establish that venue P selected was improper. It noted D’s sole piece of evidence with respect to issue of P’s residence was the police accident report referring to the subject accident. But this evidence merely showed that, at the time the

accident occurred, P had a residence in TX, and this did not demonstrate that P did not maintain a residence in Kings County at the time when the action was commenced, two months after the accident. “Although a P may choose venue based solely on a D’s address, as set forth in a police accident report, a police accident report, standing alone, is not sufficient evidence to demonstrate that, on the date that

an action is commenced, a P does not reside in the county where he or she elects to place the venue of trial.” Chung v. Kwah 122 A.D.3d 729, __ N.Y.S.2d __ (2d Dep’t 2014)

In this medical malpractice action, P venued the action in Kings County based upon the principal office of the D. Court held venue was proper, noting that under CPLR 503(d) the County of an individual’s principal office is a proper venue; and here D’s medical office was in Kings County.

C. Motions

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Valentin v. Cold Crest Care Ctr., Inc. 117 A.D.3d 633, 988 N.Y.S.2d 578 (1

st Dep’t 2014)

Where D moved to change venue based on venue selection clause, it was not required to serve a

written demand for a change with or prior to its answer and it needed only to be made “within a reasonable time after commencement of the action.” Bhonlay v. Raquette Lake Camps, Inc.

120 A.D.3d 1015, 991 N.Y.S.2d 765 (1st Dep’t 2014)

Court noted that existence of venue agreement is one of the “limited situations” in which court may disregard strict compliance with the requirements of Article 5’s requirements.

Schwartz v. Yellowbook, Inc. 118 A.D.3d 691, 986 N.Y.S.2d 840 (2d Dep’t 2014)

Trial court granted D’s motion to change venue from Nassau to Richmond County. Court held branch of motion made pursuant to CPLR 510(3) on discretionary grounds was improperly made in Richmond County as a motion on that ground is required to be made in Nassau County, where the action was pending, in another county in the 10

th Judicial District, or in a county contiguous to Nassau

County and branch of motion made pursuant to CPLR 510(1), based on an allegedly improper county was untimely made as it was not served within 15 days after service of his demand for a change of venue; and as P served a timely affidavit and supporting proof of his residency in Nassau County in response to D’s demand, the motion should have been made in Nassau County, and not Richmond

County. Deas v. Ahmed 120 A.D.3d 750, 991 N.Y.S.2d 661 (2d Dep’t 2014)

Court noted that in order to prevail on a motion pursuant to CPLR 510(1) to change venue, a D must show that the P’s choice of venue is improper, and also that the D’s choice of venue is proper. Here, D failed to show that P did not maintain a residence in Kings County where he venued action and thus

motion was properly denied. King v. CSC Holdings, LLC __ A.D.3d __, __ N.Y.S.2d __ (2d Dep’t 2014)

Court noted that in response to the Ds’ demand to change venue, the P timely served pursuant to CPLR 503(a) and 511(b) an affidavit of her attorney containing factual averments that were prima facie sufficient to show that the county designated by her was proper. Accordingly, the Ds’ 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. Jackson v. Jamaica Hosp. Med. Ctr.

119 A.D.3d 1193, 991 N.Y.S.2d 480 (3d Dep’t 2014) P, an inmate, commenced action in Clinton County where he was incarcerated. D moved to transfer venue to Queens County. Court denied the motion with regard to D’s assertion that venue is not

proper in Clinton County, D failed to timely follow the procedures set forth in CPLR 511 and thus it became one addressed entirely to the discretion of Supreme Court. Inasmuch as the grounds proffered for D’s motion - namely P’s residence and the convenience of witnesses - were known to it since the

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commencement of the action in 2006, the timing of D’s 2012 motion was not reasonable and it should not have been granted.

Part Three

COMMENCEMENT OF ACTION:

FILING, SERVICE AND NOTICE OF CLAIM

43 Misc.3d 767, 984 N.Y.S.2d 572 (Sup. Ct. Kings Co. 2014) (Demarest, J.) Court held the mistake made by P’s counsel in uploading a summons and verified complaint drafted for a related matter against a different D instead of the summons with notice bearing the caption and

index number for the action against D when counsel electronically commenced the action against D through the State of NY’s electronic filing system was an error the court was authorized to correct under CPLR 2001.

Wells Fargo Bank, NA v. Gonsalves 44 Misc.3d 531, 987 N.Y.S.2d 561 (Sup. Ct. Westchester Co. 2014) (Connolly, J.)

Court held P having obtained, due to an error or miscommunication, a refund of the filing fee it had paid when it filed its commons and complaint and notice of pendency in its foreclosure action with the NYS Courts Electronic Filing system, was permitted pursuant to CPLR 2001 to have the previously assigned index number reinstated and the summons and complaint restored under the original index

number upon payment of the applicable filing fee. Court noted the relief sought by the P with respect to its index number and the deletion of its summons and complaint was in the nature of the correction of a mistake and, therefore, the court’s discretion pursuant to CPLR 2001 was broad.

II. SERVICE

A. Summons

Segway of New York v. Udit Group 120 A.D.3d 789, 992 N.Y.S.2d 524 (2d D014) P commenced action pursuant to CPLR 3213 by motion for S/J in lieu of complaint. Court granted

motion to vacate judgment as the facial defects in the NOM - improper return date and misstatement of courthouse address - were not technical defects but jurisdictional errors, and thus not excusable or correctable under CPLR 2001.

B. Bases for Service

1. CPLR 308

(a) Personal Delivery (1) Hall v. Wong

119 A.D.3d 897, 990 N.Y.S.2d 579 (2d Dep’t 2014) Court held service of D pursuant to CPLR 308(1) was effected when P’s process server testified that

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after the D came to the front door and he explained that he wanted to give her legal papers, D, speaking through the closed door, refused to open the door and told him to come back another time; and the process server then placed the summons and complaint between the storm door and the interior brown door.

(b) Suitable Age and Discretion (2) Edan v. Johnson

117 A.D.3d 528, 985 N.Y.S.2d 548 (1st Dep’t 2014)

Court held service was properly effected under CPLR 308(2) upon D doctor at her actual place of business by leaving the summons and complaint with the receptionist at his practice, who was a person

of suitable age and discretion. That D was temporarily out on maternity leave when the service was effectuated is of no moment, since she was clearly identified as a doctor working in the Medical practice, and resumed working there after her temporary four-month absence.

Bank of America v. Grutterman 117 A.D.3d 508, 985 N.Y.S.2d 532 (1

st Dep’t 2014)

Court held service upon doorman of D’s apartment building was proper under CPLR 308(2), given

that the process server was denied access to D’s apartment. Sutton v. Hatner Group 115 A.D.3d 1039, 982 N.Y.S.2d 185 (3d Dep’t 2014)

Court held P did not effectuate service under CPLR 308(2) as he did not mail a copy of the process after leaving a copy with a person of suitable age and secretion at D’s business. Court further noted that non-compliance was waived because he failed to move for dismissal on this basis within 60 days

of service answer.

(c) Nail and Mail (4)

Washington Mutual Bank v. Holt 113 A.D.3d 755, 979 N.Y.S.2d 612 (2d Dep’t 2014) Court held that service was not effected under CPLR 308(4), rejecting the process server’s testimony

that he had unsuccessfully attempted personal delivery and service pursuant to CPLR 308(2) on four prior dates. The basis for its rejection was evidence that, of the five people whom the process server had allegedly contacted on various dates at the premises owned by D, one had moved out of the premises prior to the time in question, three had been earlier evicted, and one established through

documentary evidence that he was physically in Atlanta, GA, on business when the process server claimed the witness was in Queens. Olscamp v. Facsciano

118 A.D.3d 1472, 988 N.Y.S.2d 805 (4th

Dep’t 2014) Court found service was not effected upon D pursuant to CPLR 308(4) as the process server did not comply with the first element of the statute as he affixed process to door of D’s last known residence.

(d) Alternative Service (5)

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Blair v. Meth 112 A.D.3d 769, 977 N.Y.S.2d 318 (2d Dep’t 2014) Court observed that a mere mailing of process to a D does not effect service even if the process is

received. Satadjou v. Mohammadi 105 A.D.3d 1423, 963 N.Y.S.2d 897 (4

th Dep’t 2014)

Court approved service by e-mail pursuant to CPLR 308(5). COMMENT: For further discussion of service by electronic means, see Higgitt, “Emergence of E-Service Under CPLR 308(5),” Oct. 2013 NYSBA Journal, p. 28.

Matter of Noel v. Maria NYLJ 9/17/14, p. 1, col. 1 (Family Ct. Richmond Co.) (Gliedman, SM). Court approved service in this child support proceeding upon respondent by sending a digital copy of

the summons and petition to respondent’s Facebook account. COMMENT: For further discussion, see, Abramowitz, “Service By Facebook,” NYLJ, 10/29/14, p. 1, col. 3.

2. CPLR 303

Khalife v. Audi Saradar SAL 109 A.D.3d 741, 972 N.Y.S.2d 8 (1

st Dep’t 2014)

Court held P’s service of process upon D’s counsel in a pending federal action pursuant to CPLR 303 was not proper as D in that federal action had only moved to intervene and had obtained a TRO precluding dispersal of money from an escrow account and had not filed a complaint, and thus the action-commencement requirement of the statute was not met. Court rejected P’s argument that CPLR

303 should be interpreted more broadly to subject a foreign person or entity to the jurisdiction of NYS courts if the foreign person or entity is seeking some form of affirmative relief in NY courts, as opposed to commencing an action, is unavailing, as the plain meaning of the statute does not authorize such power.

AQ Asset Mgt. v. Levine 42 Misc.3d 971, 979 N.Y.S.2d 773 (Sup. ‘Ct. NY Co. 2014) (Kornreich, J.)

Ps were granted an order authorizing the service of a subpoena upon a nonresident Swiss national through the NY attorneys who represented the nonresident in a tort action he brought in NY against two of the Ps here. In the Court’s view, as the Ps who were Ds in the nondomiciliary’s tort action could have commenced a new action against him by delivering a summons to his NY attorneys, and

given that a subpoena is served “in the same manner as a summons” (CPLR 2303[a]), service of a subpoena by those Ps upon the nondomiciliary through his attorneys in order to take his testimony was valid pursuant to CPLR 303. COMMENT: Invoking CPLR 303 allows Ps to avoid Judiciary Law §2-b, which states that subpoena service can be had only within the state.

3. BCL §311

Jiggetts v. MTA Metro-North

121 A.D.3d 414, 993 N.Y.S.2d 699 (1st Dep’t 2014)

Court held trial court properly dismissed action on the basis that no personal jurisdiction was obtained

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over D as he failed to comply with CPLR 311(a)(1) because process server tendered process to unauthorized person who later handed it to an officer.

4. CPLR 312-a

Castillo v. JFK Medsport 116 A.D.3d 899, 983 N.Y.S.2d 866 (2d Dep’t 2014)

Court held P failed to establish that Ds were properly served by mail pursuant to CPLR 312-a since he failed to present any evidence that the acknowledgments of receipt in the form set forth in the statute were completed and mailed or delivered to his attorney.

5. Order to Show Cause Matter of the State of New York v. Robert C. 113 A.D.3d 937, 979 N.Y.S.2d 173 (3d Dep’t 2014)

Court noted that a petitioner must ordinarily be dismissed for lack of personal jurisdiction if petitioner does not comply with service directives in the OTSC. It further noted that CPLR 306-b does not permit an extension of the time to serve, but CPLR 2004 is available for an extension.

O’Brien v. Pordum 120 A.D.3d 993, 991 N.Y.S.2d 381 (4

th Dep’t 2014)

Trial court dismissed this election law proceeding on the ground petitioner failed to serve the AG as required under CPLR 2214(d) and only served respondent Board of Elections. Court reversed and held the failure to serve the AG was a technical defect that can be disregarded where the Board was represented by its own counsel.

C. Methods Conti v. Clyne

120 A.D.3d 884, 991 N.Y.S.2d 663 (3d Dep’t 2014) While respondent was served with process by petitioner himself, which ran afoul of CPLR 2103(a), Court observed that “while there has been disagreement among the Appellate Divisions as to the effect

of this type of error, this Court has consistently held that it is a mere irregularity which does not vitiate service. We perceive no reason to depart from our precedent, particularly in light of the court of Appeals’ holding that CPLR 2001, as amended in 2007, permits a court to overlook technical defects in the manner of service that do not prejudice the person or persons being served. (see Ruffin v. Lion

Corp., 15 N.Y.3d 578, 582 [2010]).”

D. Filing Requirements

Pipinias v. J. Sackais & Sons 116 A.D.3d 749, 983 N.Y.S.2d 587 (2d Dep’t 2014) Ds moved to dismiss the complaint (action was commenced in December 2002) as abandoned

pursuant to CPLR 3215(c). As to D1, since P never filed proof of service within 20 days of service as required by CPLR 308(2) his time to answer never began to run and P could not have obtained a default judgment against him; and their motion was properly denied as made by D1. The Court further

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held, noting a Ps delay in filing proof of service is a mere procedural irregularity which may be corrected by an order of the court permitting late filing of proof of service, under the circumstances of this case, Supreme Court providently exercised its discretion in granting that branch of P’s cross motion which was, in effect, to extend his time to file proof of service as to D, nunc pro tunc, to the

date upon which such proof of service was actually filed and directing that D appear and answer within 30 days of the date of the order.

E. 120 Days to Serve and Extensions of Time

Solano v. Mendez 114 A.D.3d 614, 980 N.Y.S.2d 764 (1

st Dep’t 2014)

Court held trial court properly denied D’s motion to dismiss the complaint, and granted P an extension of time to serve the summons and complaint for good cause shown and in the interest of justice under CPLR 306-b. P demonstrated good cause since service was made within two weeks of the filing of the action, at the address and apartment for D listed on the police accident report and shown in a database

search run by P’s process server. P also demonstrated that the interests of justice warranted the relief. D’s carrier was notified of the action within days of its filing, and correspondence provided by P demonstrated that an exchange of documents and settlement negotiations were ongoing prior to the fling of the complaint. No prejudice to D was shown since P’s cross motion for the extension of time

to serve D was made approximately four months after the 120-day period had expired. Moreover, the police accident report supported P’s assertion that the action is potentially meritorious. Dong v. Kao

115 A.D.3d 839, 982 N.Y.S.2d 152 (2d Dep’t 2014) Court held service of process was not made within 120 days of the commencement of the action as required by CPLR 306-b. Although process was delivered to persons of suitable age and secretion at

the actual places of business of those Ds on November 4, 2011, one day before the expiration of the 120-day period, service was not completed within that time frame because the second act required by CPLR 308(2), the mailing, was not performed within the 120-day period. Also contrary to P’s contention, considering all of the circumstances of this case, the Supreme Court providently exercised

its discretion in denying her cross motion to extent the time to serve the summons and complain upon Ds, nunc pro tunc, in the interest of justice. COMMENT: Is CPLR 2001 available?

Siragusa v. D’Esposito 116 A.D.3d 837, 983 N.Y.S.2d 624 (2d Dep’t 2014) Court affirmed trial court’s order granting P additional time to serve. It noted: “When considering

whether to grant an extension of time to effect service beyond the 120-day statutory period in the interest of justice, the court may consider the P’s diligence, or lack thereof, along with other relevant factors, including the expiration of the SOL, the potentially meritorious nature of the cause of action, the length of delay in service, the promptness of P’s request for the extension of time, and any

prejudice to the D. A determination of whether to grant the extension in the interest of justice is generally within the discretion of the motion court. Castillo v. JFK Medport

116 A.D.3d 899, 983 N.Y.S.2d 866 (2d Dep’t 2014) Court held trial court providently exercised its discretion in granting P’s cross motion pursuant to

20

CPLR 306-b for leave to extend the time to serve Ds with copies of the summons and complaint in the interest of justice. While the action was timely commenced, the SOL had expired when P cross-moved for relief, the timely service of process was subsequently found to have been defective, and the Ds had actual notice of the action within 120 days of its commencement. Furthermore, P promptly

cross-moved for an extension of time to serve Ds and there was no identifiable prejudice to Ds attributable to the delay in service. Deep v. Boies

121 A.D.3d 1316, 995 N.Y.S.298 (3d Dep’t 2014) Court held trial court properly denied P’s motion for an extension to time to serve X. Court noted the unexplained delay in making the motion and the limited evidence of a meritorious claim against X.

F. Motions Dong v. Kao

115 A.D.3d 839, 982 N.Y.S.2d 152 (2d Dep’t 2014) Court held trial court properly denied a D’s motion pursuant to CPLR 306-b to dismiss the complaint insofar as asserted against him as he waived his objection that he was not timely served with the

summons and complaint by failing to move for judgment on that ground within 60 days after serving his answer. Castillo v. JFK Medport

116 A.D.3d 899, 983 N.Y.S.2d 866 (2d Dep’t 2014) Court held that Ds were not required to raise their objection to P’s flawed claim of service being effected pursuant to CPLR 312-a when D’s insurer mailed to P’s attorney the liability coverage

provided Ds, but were free to thereafter raise their objection to personal jurisdiction by a motion to dismiss pursuant to CPLR 3211(a)(8) or by setting it forth as a defense in their answer as provided for in CPLR 3211 (see CPLR 320[b]; 3211[e]). Since Ds moved to dismiss in accordance with CPLR 3211, any alleged information appearance by Ds did not constitute a waiver of the jurisdictional

objection. Sutton v. Hafner Valuation Grp. 115 A.D.3d 1039, 981 N.Y.S.2d 185 (3d Dep’t 2014)

Court held D waived its objection to P’s failure to mail process after delivering a copy pursuant to CPLR 308(2) as it failed to move for judgment on that basis within 60 days of serving the answer.

III. NOTICE OF CLAIM

A. Generally

Mosey v. County of Erie 117 A.D.3d 1381, 984 N.Y.S.2d 706 (4

th Dep’t 2014)

Court held P was not required to file notice of claim naming Sheriff in his official capacity before

commencing his action alleging negligent hiring and training. Miranda v. State

21

113 A.D.3d 943, 978 N.Y.S.2d 463 (3d Dep’t 2014) Inmate’s failure to file pursuant to Court of Claims Act §11 a notice of claim upon AG either personally or by certified mail, RRR, requires dismissal of action. His service by priority mail did not

comply with statutory requirements. Dreckette v. NYC Health and Hospitals Corp. 45 Misc.3d 752, __ N.Y.S.2d __ (Sup. Ct. 2014) (Steinhardt, J.)

Court held where P e-filed a notice of claim with City Comptroller, mistakenly believing that such constituted service of the notice upon Ds, the court had no discretion to deem the notice of claim served timely upon D nunc pro tunc or to grant P an extension of time to serve a late notice of claim.

While CPLR 2001 allows courts to correct or disregard technical defects occurring at the commencement of an action that do not prejudice the opposing party, it may not be used to correct a defect relating to actual notice to a D. P’s error constituted a filing defect affecting a substantial right of D, and was thus more than a mere technical irregularity which could be overlooked by the court.

Robles v. NYC Housing Auth. 23 N.Y.3d 982, 990 N.Y.S.2d 160 (2014)

Court held Appellate Division improperly concluded that where claimant’s description of the location of where he tripped lacked particularly and his 50-h testimony was contradictory regarding where his accident occurred as he gave conflicting versions, thereby further rendering the notice of claim defective, requiring S/J to D, the award of S/J was not warranted as D failed to show it was prejudiced

by any defect in the notice of claim. Matter of New York City Asbestos Litig. __ N.Y.3d __, __ N.Y.S.2d __ (2014)

Interpreting statute which requires anyone who sues the Port Authority first serve a notice of claim, Court held that a notice of claim for personal injuries is a sufficient notice of a claim for wrongful death where the injured person dies of his injuries between the service of the notice and

commencement of action. Freeland v. Erie County 122 A.D.3d 1348, __ N.Y.S.2d __ (4

th Dep’t 2014)

P filed a notice of claim following suicide of inmate which included name of claimant, inmate’s son and sole distribute, and was executed by P in his capacity as legal guardian to son. Court exercised its discretion to treat notice of claim as one filed on behalf of inmate’s son.

Flemming v. State 120 A.D.3d 848, 991 N.Y.S.2d 181 (3d Dep’t 2014)

Claimant’s general allegations relating to a conspiracy and the failure of certain correction officers to investigate an unspecified complaint was insufficient to satisfy requirements of Court of Claims Act §11.

Mosley v. State 117 A.D.3d 1417, 985 N.Y.S.2d 359 (4

th Dep’t 2014)

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Court held statement in notice of claim that the accident occurred when claimant slipped on ice and snow on the walkway as she “approached entry to facility” was sufficient specificity of claim to satisfy requirements of Court of Claims Act §11.

Scott v. City of New Rochelle 44 Misc.3d 366, 986 N.Y.S.2d 819 (Sup. Ct. Westchester Co. 2014) (Connolly, J.)

At issue was whether P was required to name the individual officers in his notice of claim for action seeking damages arising out of his assault by those officers, employed by the City. Court noted the split between First Department - Tannenbaum v. City (30 A.D.3d 357 [2006]) (Yes) - and Fourth Department - Goodwin v. Pretorious (105 A.D.3d 207 [2013]) (No), and sided with Fourth

Department. Cambio v. City of New York __ A.D.3d __, __ N.Y.S.2d __ (1

st Dep’t 2014)

P, who is legally blind, alleged in his notice of claim that he fell at a street corner because of defects in the roadway that the City negligently failed to prevent from becoming a “traplike condition.” In his complaint, however, P alleged that the City negligently failed to maintain the sidewalk, curb and

roadway, negligently caused and permitted damage thereto, rendering the location dangerous, and failed to properly inspect and repair the location. Court granted D’s S/J motion, noting the City correctly argued that P raised a new theory of liability in the complaint and BOP by alleging that the City caused and created the defect, since the notice of claim alleged negligent maintenance and did not

alert the City that P would allege a theory of affirmative negligence, or negligent design. Court further noted that P’s time to seek leave to file a late notice of claim had expired. Conroy v. Incorporated Village of Freeport

43 Misc.3d 608, 984 N.Y.S.2d 819 (Sup. Ct. Nassau Co. 2014) (Palmieri, J.) In an action by P former lifeguards against D municipal park owner alleging that D surreptitiously installed a video recording device in their changing room, D’s motion made a year after the note of

issue was filed, to amend its answer to assert a defense that Ps’ notices of claim were defective because they failed to assert allegations of negligence and infliction of emotional distress, later pleaded in the complaint, was denied. Ps’ notice of claim which alleged invasion of privacy, violation of the Labor Law and improper surveillance, and claimed emotional and mental distress as items of

damage or injuries in comparison to the second and third causes of action in the complaint for violation of the Labor Law and intentional infliction of emotional distress were sufficient and in compliance with GML §50-e. Any noncompliance was merely a mistake, omission, irregularity or defect made in good faith and could be disregarded. Moreover, extensive discovery and examinations

had been conducted, the delay in seeking the requested relief was inordinate and unexplained, and the trial was imminent. Furthermore, as the alleged defect went not to the facts underlying the claims, but to the remedy sought based on those facts, D failed to express how an imprecise rendering of the remedies sought prejudiced it in its investigation and preparation of its case.

B. Late Notice of Claim Zapata v. New York City Housing Auth.

115 A.D.3d 606, 982 N.Y.S.2d 130 (1st Dep’t 2014)

Court denied P’s motion for leave to file a late notice of claim. It noted P failed to show that D

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acquired actual knowledge of the facts constituting his claim within 90 days, or a reasonable time thereafter. Even if D was aware that P reported an assault to the police during the statutory period, knowledge of the report does not constitute notice to D of P’s intention to file a civil suit based on a claim of negligent security. Further, the delay of more than six months between the alleged assault

and the filing of the notice of claim undeniably compromised D’s ability to identify witnesses and collect their testimony based upon fresh memories. Brown v. NYC Health & Hospitals Corp.

116 A.D.3d 514, 984 N.Y.S.2d 30 (1st Dep’t 2014)

In affirming denial of application, Court noted P mother’s professed ignorance of law is not a reasonable excuse for the delay in seeking leave and P’s infancy carries little weight as there is no

connection between his infancy and untimely notice of claim. Rosario v. NYC Health & Hospitals Corp. 119 A.D.3d 490, 990 N.Y.S.2d 506 (1

st Dep’t 2014)

In affirming grant of application, Court noted P’s failure to demonstrate a reasonable cause for delay in filing is not alone fatal to application where, as here, D had actual knowledge of the facts from P’s medical records.

Strohmeier v. Metropolitan Trans. Auth. 121 A.D.3d 548, 993 N.Y.S.2d 888 (1

st Dep’t 2014)

In reversing grant of application, Court noted P failed to show D’s insurance carrier of the essential facts underlying P’s accident such as location and cause of accident, and absence of reasonable excuse. Dardginska v. City of New York

__ A.D.3d __, __ N.Y.S.2d __ (1st Dep’t 2014)

In reversing grant of application, Court noted that it is undisputed that Ds did not acquire actual knowledge of the facts and circumstances constituting the claim within the statutory 90-day service

period, or a reasonable time thereafter, and there has been no showing that a defense on the merits would not be prejudiced by the late service.

Hampson v. Connetquat Central School Dist. 114 A.D.3d 790, 980 N.Y.S.2d 132 (2d Dep’t 2014) In reversing grant of application, Court noted that P failed to submit ay medical evidence to support

her allegations that she was more concerned and preoccupied with daughter’s alleged injures than with retaining attorney and there was no evidence to support P’s hearsay allegations that teachers were aware of the “horsing around” involving students.

Lopez v. County of Nassau 120 A.D.3d 688, 990 N.Y.S.2d 886 (2d Dep’t 2014) In affirming grant of application, Court noted P’s incapacitating injuries reasonably exercised minimal

delay and County had obtained actual knowledge of the facts underlying the claim within the 90-day period.

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Randolph v. Westchester Med. Ctr. 122 A.D.3d 822, __ N.Y.S.2d __ (2d Dep’t 2014) In affirming denial of application, Court noted the absence of a reasonable excuse for the delay and

that service of complaint more than 3 months after the statutory period had elapsed did not provide D with actual knowledge of the underlying facts. Babcock v. Walton Central School Dist.

119 A.D.3d 1061, 989 N.Y.S.2d 172 (3d Dep’t 2014) In this action where P claimed he was sexually harassed and abused by teacher, Court, in reversing grant of application, noted that while application was filed within one year and 90 days of P’s 18

th

birthday, D did not have notice of P’s claim within 90 days of the accrual of the claim or a reasonable time thereafter, given P’s and teacher’s steadfast denials of rumored relationship at time of initial investigation, and P offered no explanation for either the nearly one-year delay between the time he reached the age of majority and his application for leave to file a late notice of claim or the at least

seven-month delay between his disclosure of the abuse to high school principal and his filing of application for leave to file late notice of claim. Goga v. Watertown Bd. of Educ.

113 A.D.3d 1108, 977 N.Y.S.2d 855 (4th

Dep’t 2014) In affirming grant of application, Court noted P was unaware of serious nature of injury and its permanency during 90-day period and submitted medical records demonstrating progressive and

worsening nature of injury, six-month period between assault and application was comparatively short period of delay, D had notice of essential facts constituting claim, and late service would not substantially prejudice D in maintaining defense on merits.

Candino v. Starpoint Cent. School Dist. 115 A.D.3d 1170, 982 N.Y.S.2d 210 (4

th Dep’t 2014)

In reversing grant of application, in application where P alleged he was exposed to herpes virus when

he participated in wrestling tournament, Court noted that until P filed application, D had no knowledge that P had contracted herpes or otherwise had been injured at tournament, and notice of claim filed by another wrestler only provided D with constructive knowledge of P’s claim, since nothing in that notice established that P was infected at tournament.

Part Four

STATUTES OF LIMITATIONS

I. EXTENDING/SHORTENING LIMITATION PERIOD

Executive Plaza, LLC v. Peerless Ins. Co. 22 N.Y3d 511, 982 N.Y.S.2d 826 (2014)

Fire insurance policy provided that no payments for replacement cost of damaged insured property would be made until insured completed the repairs or replacement and that any action by insured under the policy had to be brought no later than 2 years after fire. Here, after fire P acted reasonably to replace damaged building but could not complete task before the 2 year limitations period. D

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moved to dismiss action as barred by the limitation period. Court held the action was not barred. It noted: “The problem with the limitation period in this case is not its duration, but its accrual date. It is neither fair nor reasonable to require a suit within 2 years from the date of the loss, while imposing a condition precedent to the suit - in this case, completion of replacement of the property - that cannot be

met within the 2-year period. A ‘limitation period’ that expires before suit can be brought is not really a limitation period at all, but simply a nullification of the claim.” COMMENT: The Court observed that this was the first case holding “an otherwise reasonable limitation period” unreasonable due to an “inappropriate accrual date.”

Smile Train v. Ferris Consulting Grp. 117 A.D.3d 629, 986 N.Y.S.2d 473 (1

st Dep’t 2014)

Parties’ agreement contained a three-month SOL. Court held it was enforceable as period was not unreasonable under the circumstances and not so vague and ambiguous as to be unenforceable. Court also held it encompassed claim for breach of the implied covenant of good faith as it is a contract claim and not a tort claim. COMMENT: NY public policy does not permit a shortened period for

intentional torts. Dart Mechanical Corp. v. City of New York 121 A.D.3d 452, 994 N.Y.S.2d 90 (1

st Dep’t 2014)

Court held six months limitations period in the parties construction action was not “unreasonably short,” and thus enforceable in this action seeking damages for D’s delays.

Dejoy v. Ehmann 114 A.D.3d 1288, 980 N.Y.S.2d 869 (4

th Dep’t 2014)

Where P failed to file summons and complaint within the applicable SOL period, a court may not

permit a nunc pro tunc filing since such relief would effectively extend the SOL, a result precluded by CPLR 201.

II. STATUTORY PERIODS

A. Legal Malpractice Cabrera v. Collazo

115 A.D.3d 147, 979 N.Y.S.2d 326 (1st Dep’t 2014)

Court held an attorney may be liable for legal malpractice if attorney neglect causes the client to miss the SOL even if the attorney’s death occurs before the statute runs. Court noted client was entitled on

this motion to dismiss on SOL grounds to the inference the attorney, who died at a noted cancer center, died as a result of a chronic, terminal illness that he knew, or should have known, presented the immediate risk that his ability to represent his clients’ interests might be impaired, yet failed to take any action to protect those rights notwithstanding the availability of three other attorneys associated

with his firm as of counsel. Moreover P was not informed that the limitations period was about to expire so that she could protect her claim. COMMENT: Be vigilant as the statute runs. RedZone, LLC v. Cadwalader

45 Misc.3d 672, 994 N.Y.S.2d 764 (Sup. Ct. NY Co. 2013) (Schweitzer, J.) Court held in this legal malpractice action alleging D’s negligence in a transactional matter, and where

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D represented P in litigation concerning a matter out of which the malpractice claim arose that, but that successor counsel took over, Court held continuous treatment doctrine applied to toll the SOL. It noted the NY courts have not held that representation during litigation cannot be deemed as continuous to representation during transactional work.

B. Judiciary Law §487 Melcher v. Greenberg Traurig

23 N.Y.3d 10, 988 N.Y.S.2d 101 (2014) Court held §487 claims are subject to the six-year SOL in CPLR 213(1). COMMENT: Applicable period in legal malpractice action is three-years.

C. Medical Malpractice Perez v. Fitzgerald

115 A.D. 177, 981 N.Y.S.2d 5 (1st Dep’t 2014)

Court held action alleging chiropractic malpractice was governed by three-year SOL of CPLR 214(6). It noted P was not referred to D by a licensed physician and D’s 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. Furthermore, the treatment, which consisted of adjusting or applying force to different parts of the spine, massages, heat, compression, and manipulation of P’s neck, constituted chiropractic treatment. (see Education Law §6551).

Devadas v. Niksarli 120 A.D.3d 1000, 992 N.Y.S.2d 197 (1

st Dep’t 2014)

In this medical malpractice action, Court in a 4-1 decision (Freidman, J., dissenting), held the jury’s conclusion that the SOL was tolled under the continuous treatment doctrine should not be disturbed. P underwent Lasik surgery and complained of blurry vision and other complications in several follow up visits which ended in 2004. P commenced the lawsuit after a subsequent visit in 2007. The question

was whether the 2007 visit was related to the 2004 visits such that the continuous treatment doctrine applied. Court held there was sufficient proof that it was. It noted the controlling case law holds only that the subsequent medical visits must “relate” to the original condition and here, P initially engaged D to correct his blurry vision, and the 2007 visit was motivated by continued blurriness in P’s eye,

thus making the two visits “related.” Court also emphasized that since prior to the surgery D had guaranteed to him a good result, meaning that the procedure would fi P’s nearsightedness, P “was considered to be under the continuous care of his doctor until it was determined that he was sterile, P was under the continuous care of D for he SOL purposes until D rectified P’s vision problems, or, as

turned out to the case, determined that any further efforts y him to do so would be futile.” COMMENT: Court also rejected D’s argument that because P pursued no treatment for over 30 months after May 2004 he was entitled to a tolling based on his single visit in February 2007 because original ignored P’s belief that he wa under the active treatment of D at all times.

Devadas v. Niksarli 120 A.D.3d 1000, 992 N.Y.S.2d 197 (1

st Dep’t 2014)

Court held continuous treatment doctrine inapplicable to derivative claim of wife for loss of services. Wei v. Westside Women’s Med.

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115 A.D.3d 662, 981 N.Y.S.2d 566 (2d Dep’t 2014) Court granted Ds’ motion to dismiss, finding Ds established that the last time they treated P was 4/7/09, and thus the commencement of the action on 10/9/11 was beyond the 2 ½ year SOL. P failed

to raise an issue of fact as to the applicability of the continuous treatment toll, as P never scheduled an appointment with Ds following her final visit on 4/7/09. P’s assertion that Ds suggested she make a follow-up appointment in the future was insufficient to invoke the continuous treatment toll, as P did not show that she sought or obtained any further appointment after the date in question.

Miccio v. Gerdis 120 A.D.3d 639, 990 N.Y.S.2d 863 (2d Dep’t 2014)

P alleged Ds were negligent in failing to diagnose and treat her condition of loosening teeth due to inadequate bone support and receding gums, and failing to diagnose a tumor which was causing her gums and jaw bone to deteriorate. Court held P raised a triable issue of fact as to whether P received continuous treatment for her loose teeth and receding gums, which allegedly were symptomatic of the

tumor the Ds failed to diagnose. It noted: “A physician or hospital cannot defeat the application of the continuous treatment doctrine merely because of a failure to make a correct diagnosis as to the underlying condition, where it treated the patient continuously over the relevant time period for symptoms that are ultimately traced to that condition. COMMENT: Court observed: “The failure to

make the correct diagnosis as to the underlying condition while continuing to treat the symptoms does not mean, for purposes of continuity, that there has not been treatment.” Hauss v. Community Care

119 A.D.3d 1037, 990 N.YS.2d 122 (3d Dep’t 2014) Decedent became a patient of D in 2001. He visited D periodically for monitoring of his blood pressure and cholesterol levels. He terminated the relationship in 2007 and shortly thereafter suffered

a massive heart attack and was diagnosed with coronary artery disease. He died in December 2008 and P commenced this wrongful death/medical malpractice action on 11/27/09. Court noted that high cholesterol and blood pressure are not symptoms of coronary artery disease and that decedent was not treated for any of the symptoms of that condition prior to June 2007. As the allegation is that Ds failed

to discover and treat decedent’s coronary artery disease by failing to order appropriate testing or refer decedent to a specialist, Court held the alleged omissions do not amount to the establishment of a course of treatment” and, accordingly, the motion for partial S/J dismissing any claims prior to May 27, 2007 should have been granted.

Walton v. Strong Mem. Hosp. 114 A.D.3d 1289, 980 N.Y.S.2d 691 (4

th Dep’t 2014)

P had removed from his heart a 13 cm loop of plastic tubing. It had broken off from a catheter placed inside the heart during surgery when he was 3-years old, some 22 years ago. Court dismissed the medical malpractice action against the D who performed the surgery, finding that the catheter was a

fixation device and not a foreign object as it had been placed inside the heart to monitor atrial pressure, i.e., a continuing treatment purpose.

D. Discovery

Semenza v. Lilly’s Nails 116 A.D.3d 409, 983 N.Y.S.2d 20 (1

st Dep’t 2014)

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P allegedly sustained on 1/9/10 a cut to her foot during a pedicure at D’s parlor. She claims she did not learn what caused her pain until 3/17/10, when an orthopedist found a sliver of a razor embedded in her foot. P commenced an action on 2/18/13 more than 3 years after the incident. Court held under

CPLR 214 the action is time-barred and P may not avail herself of the tolling provision of CPLR 214-c(2), as the “types of substances intended to be covered [by that section] are toxic substances.” (Blanco v. American Tel. & Tel. Co., 90 N.Y.2d 757, 767 [1997]). A razor is not a “substance” within the meaning of the statute.

E. Wrongful Death Freeland v. Erie County

122 A.D.3d 1348, __ N.Y.S.2d __ (4th

Dep’t 2014) Decedent died on 10/12/11, P was appointed as guardian of decedent’s son, the sole distribute on 3/7/13, and this wrongful death action was commenced on 7/1/13. Court held action was not time-

barred because as it could not be commenced until the appointment of an administrator of decedent’s estate to serve as guardian of his son’s property (see SCPA 707[1][a]; 1001[2],[6]; 1723[1]), the SOL was tolled until that appointment occurred on 3/7/13.

III. BORROWING STATUTE Norex Petroleum Ltd. v. Blavatnik 23 N.Y.3d 665, 992 N.Y.S.2d 503 (2014)

P, a Canadian corporation, commenced an action against Ds in the SDNY, which action involved control of an oil field in Siberia. Upon a non-merits dismissal of the action, P refiled the action, a NY court action pursuant to CPLR 205(a). However, at that time it was not timely under Canadian law,

which does not have a statute similar to CPLR 205(a). Court held the CPLR 202 analysis need not be applied to both the original action and the refilled action, just the original action. Court based its decision on its view that the anti-forum shopping purposes of CPLR 202 are served by its one-time application when the original action is commenced. COMMENT: CPLR 202 need not be consulted

when the action is recommenced pursuant to CPLR 205(a).

IV. TERMINATION / NEW ACTION

Norex Petroleum Ltd. v. Blavatnick 23 N.Y.3d 665, 992 N.Y.S.2d 503 (2014) Court decision implicitly held that under CPLR 205(a) the prior action which has been limited can be

one in a federal action in NY. Marrero v. Crystal Nails 114 A.D.3d 101, 978 N.Y.S.2d 257 (2d Dep’t 2014)

P’s prior action was dismissed in 2007 for failure to prosecute it and a motion to vacate/renew was denied on 12/24/09. That order was affirmed by an appellate decision dated 10/19/10. P then refilled his action on 4/8/11, relying on CPLR 205(a). Court held new action was filed within the required 6

months, noting the dismissal became final on 10/19/10, the date P’s appeals as of right were exhausted. Second, the Court held that the action was dismissed for failure to prosecute, concluding the dismissal directed by the trial court for failure to appear at a conference and thus rendered it a

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dismissal for failure to prosecute. Third, the Court concluded the 2008 amendments, adding the requirements for he court to specify the relied upon conduct for dismissal which establishes an exception, was not to be applied retroactively to P as the action was initially dismissed in 2007.

Midwest Goldbuyers, Inc. v. Brink’s Global Services 120 A.D.3d 1150, 992 N.Y.S.2d 883 (1

st Dep’t 2014)

Court held P’s prior action in Illinois which was dismissed was not a prior action” for purposes of

CPLR 205(a). Ross v. Jamaica Hosp. Med. Ctr. 122 A.D.3d 607, 996 N.Y.S.2d 118 (2d Dep’t 2014)

Court held CPLR 205(a) could not be invoked as new action was commenced more than 6 months after dismissal by Supreme Court.

Castor v. Pulaski 117 A.D.3d 1552, 985 N.Y.S.2d 380 (4

th Dep’t 2014)

Court dismissed action on ground P lacked standing “without prejudice to the commencement of a

new action by an appropriate party within 6 months in accordance with CPLR 205(a).

V. RELATION - BACK

Garcia v. New York Presbyt. Hosp. 114 A.D.3d 615, 981 N.Y.S.2d 84 (1sst Dep’t 2014) P sued D hospital and several physicians employed by or affiliated with hospital, alleging they were

negligent in performing a procedure. After SOL ran, P sought to amend the complaint to add a claim against another physician who made 2 notes in P’s chart after the procedure in question. Court affirmed denial of motion as P could not satisfy the elements of the relation back doctrine. Even if P could impose vicarious liability against the hospital for the acts of the physician in question, this

would not be sufficient ot show that the proposed D was so united in interest with the hospital that he could be charged with notice of the commencement of the action against the hospital for the purposes of the relation back doctrine.

Nasca v. DelMonte 111 A.D.3d 1427, 975 N.Y.S.2d 317 (4

th Dep’t 2013)

P commenced this chiropractic malpractice action against Venne, who treated him, and Mark

DelMonte, d/b/a Niagara Chiropractic Office. After SOL ran, P sought to amend the complaint to DelMonte individually and his professional corporation. Court granted motion, noting with respect to the first prong of the relation back test that the claims against DelMonte P.C. arose out of the same occurrence as that alleged against DelMonte doing business as Niagara Chiropractic. Further, the

second prong of the test was satisfied, since DelMonte P.C. employed Venne, and therefore may be held vicariously liable for his conduct. Finally, the third prong of the test was satisfied, as P established that their failure to include DelMonte P.C. as a D in the original or first amended complaint was a mistake and not the result of a strategy to obtain a tactical advantage.

VI. ESTOPPEL

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Dart Mech. Corp. v. City of New York 121 A.D.3d 452, 994 N.Y.S.2d 90 (1

st Dep’t 2014)

Court held Ds could not be estopped from asserting its SOL defense. It noted that as P could have

commenced this action regardless of whether it had submitted the required documentation for payment for substantially complete work and for an extension of time to perform under the contract, Ds’ alleged delays and improper conduct regarding the documentation did not frustrate P’s ability to bring this action.

Plain v. Vassar Bros. Hosp. 115 A.D.3d 922, 982 N.Y.S.2d 558 (2d Dep’t 2014)

P commenced action against Dr. Panos and D hospital at which Panos performed surgery. The action was commenced after the SOL ran as to the D. In response to dismissal motion, P argued D should be estopped from asserting the SOL defense based on tis fraud in permitting Panos to continue to perform surgery, knowing of his malpractice. Court held these facts did not rise to the level of estoppel as the

alleged concealment consists of “nothing but Ds’ failure to disclose the wrongs they had committed, (the Ds are] not estopped from pleading a SOL defense.”

Part Five

PLEADINGS AND APPEARANCES

I. COMPLAINT

A. Sufficiency

Peterson v. NYSE&G 115 A.D.3d 1029, 981 N.Y.S.2d 834 (3d Dep’t 2014)

P sued for injuries due to explosion allegedly caused by gas leak. His insurer paid under the policy for property damages and after payment P commenced an action against D for PI. Insurer, not a party to the action, moved to sever what it denominated as its subrogation claim from the PI claim. After settlement of PI claim, trial court denied the motion. Court affirmed. It noted that pleading made no

mention of property damages and only 5 years after action was commenced was mention of such damages made in an amended BOP; and that a BOP cannot be used to assert a theory of liability not asserted in complaint, but only to amplify the alleged theory of liability.

Waterfront Operations v. Candido 115 A.D.3d 1313, 983 N.Y.S.2d 168 (4

th Dep’t 2014)

P, a nursing facility, sued for services rendered to decedent, and attached to complaint the Agreement

and invoice, stating amount due, and D asserted in answer that P failed to provide all of the billed services. Court upheld denial of P’s S/J argument, holding that a P failed to meet the CPLR 3016(f) specific standards, D’s general answer was sufficient.

ASB Productions v. Njibaloh 2014 N.Y. Slip Op. 31325(U) (Sup. Ct. N.Y. Co.) (Kern, J.) P employer sued D employee for b reach of employment agreement. D moved to dismiss on the

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ground P failed to use her correct legal name in the caption. Court denied motion stating it presented absolutely no authority for the assertion that failure to use a party’s full legal name in the caption divests this court with jurisdiction over the party. Indeed, D does not dispute that she is the person P identified I the complaint, nor does she argue that she is an improper party. Thus, simply put, the fact

that Ds named her as “Fatou Diouf” as opposed to “Ndeye Fatou Diouf” does not warrant dismissal at this time. Bermudez v. State

44 Misc.3d 605, 989 N.Y.S.2d 794 (Ct. Cl. 2014) (Marin, J.) Court held claimant’s failure to verify his signed and notarized claim against the State as required by Court of Claims Act §8-b(4) did not warrant dismissal of his action. While claimant did not sign

section of standard claim labeled “Verification,” the last page of his claim contained his notarized signature. Court noted there was no discernible distinction between claimant verifying his claim and swearing to it before a notary.

B. Demand for Complaint McIntosh v. Genesee Valley Laser Ctr. 121 A.D.3d 1560, 993 N.Y.S.2d 844 (4

th Dep’t 2014)

D moved to dismiss action upon P’s failure to serve complaint after being served with a demand. Court affirmed dismissal, rejecting P’s contention that P mailed the complaint as unsupported in the record. It stated: “P failed to establish at a court appearance that he filed or served a complaint, and

his claims concerning such filing or service are belied by a subsequent letter in which he request permission from the court to serve a late complaint upon Ds’ attorney. Moreover, the record contains neither a copy of the alleged complaint nor proof of service.” Lastly, Court noted P failed to establish a meritorious claim.

II. NOTICE OF APPEARANCE Tsionis v. Eriora Corp.

__ A.D.3d __, __ N.Y.S.2d __ (2d Dep’t 2014) D, who held a second mortgage on premises, moved to vacate a default judgment which was entered on the basis that none of the Ds, including the mortgagor, appeared or answered the complaint. Court

granted D’s motion noting that D had served a notice of appearance, which did not have to be filed, and D was not required to serve an answer because the complaint did not contain any allegation he was required to defend against.

Sellers v. Success Counseling 2014 N.Y. Slip Op. 31950(U) (Sup. Ct. Bronx Co.) (Suarez, J.) P commenced action on 10/25/13 by filing summons with complaint. Court dismissed action for lack

of personal jurisdiction, concluding that P’s only service of that process was by mail on 2/25/14 which was not timely (service had to be effect on or before 2/24/14) and in any event the mailing did not comply with CPLR 312-a. Court rejected argument that D’s service of a notice of appearance on 4/17/14 conferred personal jurisdiction as the appearance was then followed by a motion to dismiss.

III. ANSWER

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A. Timeliness Perez v. KHL Acupuncture 112 A.D.3d 483, 976 N.Y.S.2d 378 (1

st Dep’t 2013)

Trial court denied application to enter a default judgment and granted D’s motion to compel P to accept answer. Court affirmed, noting a meritorious defense is not required to obtain relief under CPLR 3012(b).

Metropolitan Prop. and Cas. Ins. Co. v. Braun 120 A.D.3d 1128, 992 N.Y.S.2d 420 (2d Dep’t 2014)

Trial court denied P’s motion for a default judgment and granted D’s motion for an extension of time to answer, and Court affirmed. It noted: “Under the circumstances, although Ds’ assertion of law office failure “is not particularly compelling, it constitutes good cause for the delay.” There is no evidence that Ps have been prejudiced, and the record shows that Ps had previously agreed to an

extension of time for Ds to answer. Contrary to Ps’ contentions, a meritorious defense was not required for Ds to be granted an extension of time to answer. COMMENT: Court cited Perez. Mannino Dev., Inc. v. Linares

117 A.D.3d 995, 986 N.Y.S.2d 578 (2d Dep’t 2014) Court affirmed denial of D’s motion to extend time to answer complaint and compel service of answer. It noted that D’s appearance and participation, along with their counsel, at settlement conferences

required for certain residential mortgage foreclosure actions did not provide a reasonable excuse for their delay in answering. As such, it was unnecessary to determine whether they demonstrated the existence of a potentially meritorious defense.

Hutchinson v. NYC Health and Hosp. Corp. 118 A.D.3d 945, 988 N.Y.S.2d 675 (2d Dep’t 2014) Court affirmed order denying application for a default judgment on liability and granting D’s motion

to deem its late answer timely served nunc pro tunc. It noted D requested an extension of time to answer 20 days after the time to answer had expired and when answer was rejected, it promptly moved and opposed P’s application for default judgment. It noted that P was not prejudiced by the short delay in service, the lack of willfulness on the part of D, and existence of a potentially meritorious

defense. COMMENT: What about Perez and Metropolitan? NY Hosp. Med. Ctr. v. Nationwide 120 A.D.3d 1322, 992 N.y.S.2d 361 (2d Dep’t 2014)

D moved to vacate default judgment and pursuant to CPLR 3012(d) extend time to appear and compel acceptance of its complaint. Court affirmed grant of motion. It noted that a D seeking to vacate a default in answering or appearing must demonstrate a reasonable excuse for the default and potentially

meritorious defense. Here, D established a reasonable excuse through an employee’s affidavit, which attested to a clerical oversight regarding the delay in forwarding the summons with notice to its attorney. Furthermore, D demonstrated a potentially meritorious defense to the action.

Gershman v. Midtown Moving __ A.D.3d __, __ N.Y.S.2d __ (2d Dep’t 2014)

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P moved for leave to enter a default judgment based on D’s failure to timely appear and D cross-moved for leave to serve a late answer. Trial court denied motion and granted cross-application and Court affirmed. Initially, Court held D did not demonstrate a reasonable excuse for its default as it did not adequately explain the failure to file with Secretary of State the current address of its agent

designed to receive process on its behalf. However, Court, citing to CPLR 317, which was not relied upon by D, held D met its requirement showing it had not received actual notice of the process and that it had a potentially meritorious defense. Court also exercised its discretion to grant the cross-application even in the absence of a formal cross-motion.

IV. AMENDMENTS Kimso Apartments, LLC v. Gandhi

__ N.Y.3d __, __ N.Y.S.2d __ (2014) Before resting, D moved to conform the pleading to the proof, seeking to assert a counterclaim for money owed him when a “Settlement Agreement” previously entered into with P regarding their

ownership of certain corporations, about which proof was made at trial. Trial court granted the motion and entered judgment on the counterclaim. Court upheld entry of judgment, and reversed Appellate Division, noting that absent prejudice, courts are free to permit amendment even after trial; and that under the facts here there was no prejudice. It also noted the delay in making the amendment did not

bar the trial court’s exercise of discretion. A.N. Frieda Diamonds, Inc. v. Kaminski 122 A.D.3d 517 __ N.Y.S.2d __ (1

st Dep’t 2014)

Court held trial court improvidently exercised its discretion in denying motion to amend complaint to add a fraud claim as there is no evidence that D would be prejudiced or surprised by it, the claim was pled with sufficient particularity and there was a sufficient showing of merit.

87 Chambers, LLC v. 77 Reade, LLC 114 A.D.3d 525, 980 N.Y.S.2d 444 (1

st Dep’t 2014)

Court granted motion to amend complaint to add claims of gross negligence and punitive damages as Ds would not be prejudiced, noting that mere fact of exposure to greater liability does not constitute the requisite prejudice.

Carducci v. Piccirillo 115 A.D.3d 694, 981 N.Y.S.2d 599 (2d Dep’t 2014)

Court affirmed grant of motion to amend answer to add the Statute of Frauds as a defense. It noted that “lateness” is not a barrier to an amendment and that leave should ordinarily be granted unless opposing party would be prejudiced or amendment is “palpably insufficient or devoid of merit.”

Favia v. Harley-Davidson Motor Co. 119 A.D.3d 836, 990 N.Y.S.2d 540 (2d Dep’t 2014) Court granted motion to amend second amended complaint to add a cause of action for negligence per

se and punitive damages, noting that no evidentiary showing of merit is required under CPLR 3025(b). Court may only decide if amendment is “palpably insufficient” to state a cause of action or defense or is “patently” devoid of merit.

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Dryer v. Musacchio 117 A.D.3d 1115, 985 N.Y.S.2d 302 (3d Dep’t 2014)

P firefighter sustained injuries when D’s buildings collapsed and he was trapped under burning debris. Court affirmed trial court’s order permitting P to serve an amended complaint as to his GML §205-a claim. Court noted P’s supplemental BOP set forth the particular provisions of the Building Code alleged to have been violated by D, the delay in making the motion was excusable as the building had

been demolished by the time P retained an expert, thus hindering their investigation, and theory of liability had been explored in discovery process. Simoneit v. Mark Cerrone, Inc.

122 A.D.3d 1246, __ N.Y.S.2d __ (4th

Dep’t 2014) Court held trial court abused its discretion in permitting Ds to amend their answer to assert various affirmative defenses based upon alleged brake failure. It noted that the motion was made 7 months

after P had filed the note of issue and more than 2 years after she commenced the action, yet Ds offered no excuse for their delay in making the motion.

V. BILL OF PARTICULARS

Bradshaw v. Lenox Hill Hosp. 115 A.D.3d 515, 981 N.Y.S.2d 916 (1

st Dep’t 2014)

In this medical malpractice action, P sought to serve an amended BOP alleging that D hospital was negligent in failing to revoke D physician’s privileges when it knew or should have known that he was treating patients after ingesting cocaine. P’s motion was denied, as there was no assertion in the prior pleadings that would provide the hospital with notice that such a claim would be made.

Lesniak v. Stockholm Obstetrics & Gynecological Servs., P.C. 114 A.D.3d 646, 979 N.Y.S.2d 837 (2d Dep’t 2014)

D’s motion for further BOP was denied, as P’s BOP adequately apprised Ds of the claimed negligent acts of commission and omission. Williams v. NorthShore LIJ

119 A.D.3d 935, 990 N.Y.S.2d 260 (2d Dep’t 2014) In this multi-D medical malpractice action (112 Ds) trial court directed P to file a BOP stating negligence as to each specific D by a specified date. When P failed to do so, action was dismissed sua

sponte. Court upheld dismissal as proper under CPLR 3406(b) and 22 NYCRR 202.56(b)(1)(iv), (b)(2). Friedland v. Vassar Bros. Med. Ctr.

119 A.D.3d 1183, 990 N.Y.S.2d 673 (3d Dep’t 2014) In affirming denial of D’s S/J motion, Court noted that to the extent D argued that P’s allegations of negligence exceeded those contained in her BOP as amended, D waived this argument by failing to

make it before Supreme Court. In any event, “P’s second amended BOP provided D adequate notice of her theory of negligence. (see CPLR 3043[a][3]).”

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Marra v. Hughes __ A.D.3d __, __ N.Y.S.2d __ (3d Dep’t 2014) In affirming S/J to D, Court noted P’s claim in his verified BOP was sufficient to give notice of his

theory of liability.

Part Six

MOTIONS

I. SUMMARY JUDGMENT

A. Brill

Quinones v. Joan & Sanford Weill Med. Ctr.

114 A.D.3d 472, 980 N.Y.S.2d 88 (1st Dep’t 2014)

In this employment discrimination action, P had been given numerous extensions over a year to file a NOI. D moved for extension of the preliminary conference order of a 45 day NOI deadline for a S/J

motion pursuant to CPLR 2004 because the partner making the motion did not attend the conference and was unaware (“overlooked”) the deadline when reviewing the file. Court affirmed denial, noting that the proffered excuse was a “perfunctory claim of law office failure.”

Freire-Crespo v. 345 Park Ave, LP 122 A.D.3d 501, __ N.Y.S.2d __ (1

st Dep’t 2014)

Two Brill issues were ruled upon. (1) The initial preliminary conference order set forth 120-day time

limit for S/J motion after filing of NOI. Action was then reassigned to another part whose rules provided for a standard 60-day limit. Court held reassignment did not require the 60-day limit be applicable absent a court order so providing. (2) Both S/J motions, which sought S/J on its cross-claim for indemnification, and cross-motion by co-D which sought S/J dismissing the complaint and cross-

claim, were filed after the 120-day period. Court held D proffered the explanation that a long-standing illness to counsel precluded it from timely submitting the S/J application. The Court concluded that such a reason was acceptable. However, where co-D offered no reason or excuses for its untimely submission, the trial court was within its discretion to ignore the motion.

William v. Wright 119 A.D.3d 670, 990 N.Y.S.2d 60 (2d Dep’t 2014)

In this MV collision case, P was passenger on D bus and was injured when D LIPA truck passed the stopped bus and the truck’s door swung open and struck bus. Bus D moved for S/J and 10 months after filing of NOI P moved for S/J on liability against LIPA which was granted by trial court. Court reversed, noting that P’s motion was untimely as it was made in violation of a certification order

requiring motions for S/J to be made within 90 days of filing of NOI. Court also noted that although the bus D motion was timely made, P could not rely on that motion to render its motion timely because the bus D argued only that it was not at fault for P’s injuries, and thus no “identical grounds” was present.

Freisher v. City of New York 120 A.D.3d 1390, 993 N.Y.S.2d 112 (2d Dep’t 2014)

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Trial court properly entertained D’s motion in limine excluding certain expert testing as it was not an untimely motion for S/J but a motion seeking to exclude evidence. Derrick v. North Star Orthopedics

121 A.D.3d 741, 994 N.Y.S.2d 159 (2d Dep’t 2014) Court noted that D’s cross-motion” for S/J was improperly designated a cross-motion and was in fact an untimely S/J motion, apparently because it sought affirmative relief from a non-moving party (P).

However, it held trial court properly considered it because the initial moving party for S/J was timely made and the non-timely motion was made on the same grounds. McDowell & Walker v. Micha

113 A.D.3d 979, 979 N.Y.S.2d 430 (3d Dep’t 2014) Court held trial court properly denied P’s motion for S/J as untimely because it was made in violation of the Sixth Judicial District rule which requires S/J motions to be no later than 60 days after the NOI

had been filed unless permission has been obtained. Bissell v. State 122 A.D.3d 1434, 995 N.Y.S.2d 530 (4

th Dep’t 2014)

Court denied D’s S/J motion on the basis that it was made more than 10 months after the expiration of the 120-day deadline and D made no showing of good cause in its moving papers. It also held that the trial court erred in considering the “good cause” proffered for he first time in its reply papers.

B. Affidavits/Affirmations/Transcripts Bacani v. Rosenberg

114 A.D.3d 454, 979 N.Y.S.2d 584 (1st Dep’t 2014)

Court held an attorney drafted CPLR 3101(d) expert disclosure is not evidentiary proof in admissible form.

Long v. Taida Orchids, Inc. 117 A.D.3d 624, 986 N.YS.2d 469 (1

st Dep’t 2014)

In this MV accident case P submitted the report of his chiropractor which was not in proper form as it was not notarized. Court held report could still be considered as D did not object to the submission. COMMENT: Can the court sua sponte reject the report? Court held No.

Midfirst Bank v. Agho 121 A.D.3d 343, 991 N.Y.S.2d 623 (2d Dep’t 2014) In this mortgage foreclosure action, P submitted in support of the motion for S/J an affidavit prepared

by a “foreclosure specialist,” which was executed in Oklahoma by a Oklahoma notary public. Court noted initially that out-of-state affidavits need to be conformed to NY law pursuant to CPLR 2309, which requires that the document, itself, be authenticated by the attachment of a certificate of conformity, and that in certain real properly transactions the out-of-state affidavit must also be

accompanied by a certificate of authentication, addressing the appropriateness of the witness/notary to administer oaths. However, Real Property Law §299 identifies parties outside of NY who may attest to the veracity of a sworn document, including notary publics, and that Real Property Law §311(5)

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waves the need for a certificate of authentication where the document was observed by one of the parties identified in §299. In light of these provisions, the Court held affidavit was in admissible form. COMMENT: Court noted that even if there was an issue with the certificate of conformity, the trial court is authorized via CPLR 2001 to conform the certificate nunc pro tunc. See, Ali v. Verizon, 116

A.D.3d 722 (2d Dep’t 2014). Hunter Sports Shooting Grounds v. Foley 120 A.D.3d 759, 992 N.Y.S.2d 285 (2d Dep’t 2014)

Court held report of D town’s expert, which set forth the level of sound emitted by P’s operation was inadmissible of Town’s S/J motion as the affidavit was made and executed in NJ and lacked the required certificate of conformity and Town, after being given an opportunity to correct the deficit,

failed to do so. COMMENT: Court cited to Agho. Henry v. Higgins 117 A.D.3d 796, 987 N.Y.S.2d 72 (2d Dep’t 2014)

In this dog bite case, Court held trial court should not have considered affidavit of P’s father in opposition to D’s S/J motion as father was not properly disclosed as a notice witness in P’s discovery response.

Rosenblatt v. St. George Health 119 A.D.3d 45, 984 N.Y.S.2d 401 (2d Dep’t 2014)

D moved for S/J, relying in part on P’s EBT transcript which was unsigned. Court held transcript could be used as if fully signed under CPLR 3116(a) as P failed to sign it within 60 days after receipt. Court further noted that D’s evidence that it had provided a copy of the transcript for P’s review was properly considered even though it was submitted in reply because it was submitted in response to P’s

opposition papers which raised the failure for the first time. Singh v. Brown 43 Misc.3d 715, 982 N.Y.S.2d 860 (Sup. Ct. Bronx Co. 2014) (Aarons, J.)

In this MV accident case, Court held that where none of the EBT transcripts that D had submitted in support of his S/J motion had been signed by deponent, D could rely only on his own deposition and any admissions against interest in the depositions of adverse parties. It noted a party may use an

unsigned deposition transcript as if fully signed if it can demonstrate that the transcript had been submitted to the deponent for review but the deponent failed to sign and return it within 60 days, and an unsigned deposition transcript is admissible on S/J where it was certified by the reporter and its accuracy is unchallenged or it was submitted by the party deponent, and admissions against interest

contained in unsigned deposition transcripts may be placed in evidence. Here D failed to show that he had served the transcripts.

C. Experts

Public Adm’r of Bronx County v. 485 E. 188

th St. Realty Corp.

116 A.D.3d 1, 981 N.Y.S.2d 381 (1st Dep’t 2014)

In this wrongful death action arising out of a fire in D’s apartment building, Ds moved for S/J. Court held trial court properly considered expert reports that P had obtained from a separately commenced action by one of the decedent’s coworkers based upon the injuries the coworker sustained in the very

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same fire. Court noted that CPLR 3101(d)(1)(i) does not require a party to respond to a demand for expert witness information at any specific time, and Ds did not show that they were prejudiced by P’s reliance on that material in responding to their dispositive motions. It was clear that all parties had the expert reports well before they made their motions, because Ds’ own expert referred to them in his

affidavit, which Ds submitted in support of their motions in the present case. Lastly, the Court observed the admissibility of expert testimony is a determination within the discretion of the court, and the court properly considered the materials in question.

DeSimone v. City of New York 121 A.D.3d 420, 993 N.Y.S.2d 551 (1

st Dep’t 2014)

In this Labor Law action, Court held trial court providently exercised its discretion in denying P’s

cross-motion to submit a disclosure of his expert professional engineer, since it was first submitted in opposition to Ds’ motions for S/J dismissing the complaint, and subsequent to the filing of the NOI and certificate of readiness.

Abreu v. MTA 117 A.D.3d 972, 986 N.Y.S.2d 557 (2d Dep’t 2014) Court held trial court did not abuse its discretion in permitting P to submit in opposition to D’s S/J

motion an affidavit from its medical expert, disclosed for the first time after the NOI had been filed. It noted that Ds had the opportunity to reply to that proof in its reply and there was no showing of prejudice to D by the late disclosure.

Buchanon v. Mach Trucks 113 A.D.3d 716, 979 N.Y.S.2d 342 (2d Dep’t 2014) Court held trial court properly exercised its discretion in grant P’s cross-motion for additional time to

obtain an expert’s affidavit to defeat S/J. Turi v. Birk 118 A.D.3d 979, 988 N.Y.S.2d 670 (2d Dep’t 2014)

In this medical malpractice action wherein Ds moved for S/J, Court held affirmation of P’s expert was not deficient by reason of the redaction of the expert’s name, since “the unredacted original was offered to the court for . . . in camera inspection, as is required.”

Rivera v. Albany Med. Ctr. 119 A.D.3d 1135, 990 N.Y.S.2d 310 (3d Dep’t 2014)

In this medical malpractice action, D moved for S/J, submitting its expert’s medical affidavit with the name of the physician’s identity redacted and Court held the moving affidavit of the D’s expert was “incompetent,” seeing no compelling reason why related medical affidavit should be allowed. COMMENT: Court noted with apparent approval decisions permitting the non-moving party to

withhold its expert’s identity; and also its prior decision in Morrison v. Hindley (221 A.D.2d 691 [3d Dep’t 1995]), leaving unanswered the question of whether the court could consider a redacted affidavit where an unredacted affidavit is provided to the court.

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D. Pleadings Long Island Pine Barrens Soc. v. County of Suffolk 122 A.D.3d 688, 996 N.Y.S.2d 162 (2d Dep’t 2014)

Trial court denied P’s motion for S/J on the ground it failed to submit a copy of the pleadings as required by CPLR 3212(b). Court held such failure was excusable under CPLR 2001 as Ds submitted a copy of the pleadings on their cross-motion and there is no proof that Ds were prejudiced by P’s

failure. Singh v. Brown 43 Misc.3d 715, 982 N.Y.S.2d 860 (Sup. Ct. Bronx Co. 2014) (Aarons, J.)

Citing to First Department decisions which require denial of a S/J motion where all of the pleadings are not included in the moving papers, Court held that failure here to provide a compete set of the pleadings is excusable, as permitted by the governing precedent, where the moving D submits missing papers in reply. Court also held (1) the failure to include the BOP is not fatal as a BOP “is not a

pleading but serves to amplify the pleading,” and (2) the omission of answers to the cross-claims, if any were filed, did not warrant denial of the motion. Parties are not required to answer a cross-claim, and it is simply deemed denied, unless an answer is demanded in the pleading (CPLR 3011). None of the answers asserting cross-claims here contained a demand.

E. Partial Summary Judgment on Liability Gurenkoff v. Nagar

120 A.D.3d 470, 990 N.Y.S.2d 604 (2d Dep’t 2014) Court held trial court properly denied P’s motion for S/J on liability as his moving papers, his and D’s EBT testimony, gave conflicting versions as to how the accident happened.

Espinoza v. Coco-Cola Bottling Co. 121 A.D.3d 640, 993 N.Y.S.2d 721 (2d Dep’t 2014)

Court affirmed denial of P’s motion for S/J on liability in this MV action. It noted that for P to prevail he had the burden of establishing, prima facie, not only that D was negligent, but that the P was free from comparative fault “since there can be more than one proximate cause of an accident.” Here, D provided a conflicting version of the facts surrounding the accident and thus “a triable issue of fact

exists as to whether P was comparatively at fault.” Piscitello v. Fortress Trucking 118 A.D.3d 1441, 988 N.Y.S.2d 784 (4

th Dep’t 2014)

In this MV accident case, Court affirmed denial of P’s motion for S/J on liability as P failed to establish his initial burden of establishing that D’s negligence was the sole proximate cause of the accident and that he was free from comparative negligence as a matter of law.”

F. Reply Arguments Eujoy Realty Corp. v. Van Wagner Com.

22 N.Y.3d 413, 981 N.Y.S.2d 326 (2013) In this action to recover for allegedly due and unpaid rent, D argued in response to P’s S/J motion that

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P’s theory of recovery under the lease was not pleaded in its complaint. Court of Appeals rejected this argument, but stated that “even if P had in fact presented a new legal argument about the lease to Supreme Court in a reply brief, neither that court nor the Appellate Division would have been prohibited from considering it.” COMMENT: Court distinguishes those cases where new facts are

submitted for the first time in a reply affidavit and a court refused to consider those factors. It also indicates that a trial court has broad discretion not to consider a new argument and should do so when the non-movant can establish prejudice. See generally, Connors, Practice Commentaries to CPLR 2214.

II. RENEWAL Fernandez v. Moskowitz

113 A.D.3d 574, 979 N.Y.S.2d 522 (1st Dep’t 2014)

Trial court denied D’s S/J motion and while D’s appeal of that denial was pending P discovered additional evidence in his favor. Court on appeal granted D’s S/J motion. P then moved to renew S/J

motion, contending that dismissal of complaint was “new fact” and that he should be allowed to renew the S/J motion to proffer the additional evidence, which he contended would defeat S/J. Court held P cannot renew a motion he won and as well cannot move to renew after judgment is entered, as here. Court further noted that P’s recourse was to seek to vacate the Court’s prior decision and judgment

based on the additional evidence. COMMENT: It is worthwhile to note that if the trial court granted D’s S/J motion, P could apparently make a motion to renew. Malco Realty Corp. v. Westchester Condos, Ltd .

114 A.D.3d 413, 857 N.Y.S.2d 688 (1st Dep’t 2014)

Court affirmed denial of P’s motion to renew, noting that the subsequent retention of an expert is not a proper ground for renewal.

Corpnan v. Dennis 117 A.D.3d 601, 986 N.Y.S.2d 451 (1

st Dep’t 2014

Court held trial court “soundly” exercised its discretion in granting renewal, noting that “even if the vigorous requirements for renewal are not met, such relief may be properly granted so as not to defeat substantive fairness.”

III. CPLR 3216 and 3404 Motions Willis v. City of New York 113 A.D.3d 674, 978 N.Y.S.2d 333 (2d Dep’t 2014)

D moved to dismiss pursuant to CPLR 3404. Court held that section was inapplicable to this pre-NOI action and D was required to move pursuant to CPLR 3216 to obtain a dismissal of the action based on P’s alleged failure to prosecute the action.

Kapnisckis v. Woo 114 A.D.3d 729, 988 N.Y.S.2d 144 (2d Dep’t 2014)

P moved to vacate his default in opposing D’s S/J motion, which was granted by trial court with directions to submit opposing papers by a specified date and file a NOI two months later. P did neither and action was marked “Disposed” by the clerk. Within one year, P moved to restore and

41

submitted papers responding to the S/J motion. Trial court denied the motion and Court reversed. After noting the CPLR 3404 did not apply since no NOI had been applied and the trial court’s earlier order was not a valid 90-day notice, the Court held there was no basis to deny motion to restore.

Herbert v. Chaudrey 119 A.D.3d 1170, 989 N.Y.S.2d 399 (3d Dep’t 2014) After P filed a NOI, D moved to vacate based on P’s failure to comply with outstanding discovery

demands which motion was granted conditionally when P failed to comply, P moved to vacate the NOI which was granted and case was struck from trial calendar. When P filed a NOI two years later, D moved to dismiss pursuant to CPLR 3404. Court granted motion, nothing that action was automatically dismissed pursuant to CPLR 3404 when P failed to restore the action within one year.

In that regard, Court noted that vacating the NOI alone is not enough to invoke presumption of abandonment that arises pursuant to CPLR 3404, but statute applies when action has been struck from the calendar. COMMENT: Court noted that P may seek to vacate the CPLR 3404 dismissal by making a motion to restore the action, and such a motion requires a showing of a meritorious cause of

action, reasonable excuse for the delay, absence of prejudice to the D and lack of intent to abandon the action.

II. VOLUNTARY DISCONTINUANCE

American Transit Ins. Co. v. Roberson 114 A.D.3d 821, 980 N.Y.S.2d 778 (2d Dep’t 2014)

P moved to discontinue its action pursuant to CPLR 3217(b), and motion was granted “with prejudice” and asked for an inquest to determine costs and attorney’s fees to which D is entitled. Court reversed the “with prejudice” decretal paragraph of the trial court’s order. It noted: “In general, absent a showing of special circumstances, including prejudice to a substantial right of the D or other improper

consequences, a motion for a voluntary discontinuance should be granted without prejudice. Contrary to the Ds’ contention, the P was not required to demonstrate any basis for seeking a voluntary discontinuance. Furthermore, there was not showing that the rights of the Ds or others would be prejudiced if P were permitted to commence a second action for the same relief in another venue. Any

prejudice to Ds was properly obviated by awarding costs and an attorney’s fee to Ds to compensate them for the time expended in the defense of the action to date.”

Part Seven

DISCOVERY

I. DISCOVERABLE MATTER Reid v. Soults

114 A.D.3d 921, 980 N.Y.S.2d 579 (2d Dep’t 2014) In this wrongful death action, D moved to compel P to comply with a demand for certain videotape compilations and a demand for an authorization for a non-party’s YouTube account. The compilation

allegedly contained clips depicting decedent’s lifestyle prior to the subject hospitalization. Trial court denied motion. In this pre-Kapon decision, Court held the videotape compilation was potentially relevant on the issue of pecuniary loss and life expectancy, and remanded to Supreme Court for an in camera review. COMMENT: On remand after the review, Supreme Court held the compilation was

42

not discoverable. Harris v. Schmidt 117 A.d.3d 1569, 985 N.Y.S.2d 811 (3d Dep’t 2014)

In this PI action, Court directed Ps to submit for in camera review records of prior WC claim unrelated to subject accident so as to permit court to determine whether those records were material and relevant to medical conditions placed in controversy by Ps. Court also directed Ps to disclose P’s application

for no-fault benefits. Forman v. Henkin 2014 N.Y. Slip Op. 30679(U) (Sup. Ct. NY Co.) (Billings, J.)

In this PI action, D sought authorization to obtain records from P’s private Facebook account. Court directed P to provide to D all privately posted photographs post-injury except those that show nudity or romantic encounters, but any associates’ messages on her private account as D did not how they

might be relevant. Additionally, P was directed to provide records from Facebook, including archived or deleted, showing each time P posted a private message and the number of words in the text of each message until she deactivated her account. COMMENT: P had alleged that the accident impaired her memory and her ability to read and write.

II. DISCOVERY FROM NON-PARTIES Kapon v. Koch

23 N.Y.3d 32, 988 N.Y.S.2d 559 (2014) Court held a party seeking discovery from a non-party pursuant to CPLR 3101(a)(4) by service of a subpoena must sufficiently state the “circumstances or reasons” underlying the subpoena, either o the

face of he subpoena itself or in a notice accompanying it, and a witness who moves to quash the subpoena must establish either that the discovery sought is “utterly irrelevant” to the action or that the “futility of the process to uncover anything legitimate is inevitable or obvious.” Should the witness meet that burden, the subpoenaing party must then establish that the discovery sought is “material and

necessary” to the prosecution or defense of an action. The subpoenaing party is not required to demonstrate that it cannot obtain the requested disclosure from any other source. So long as the disclosure sought is relevant to the prosecution or defense of an action, it must be provided by the non-party. COMMENT: The “Special Circumstances” requirement imposed by Second, Third & Fourth

Departments has been abolished.

III. EXPERT DISCLOSURE

Sadek v. Wesley 117 A.D.3d 193, 986 N.Y.S.2d 25 (1

st Dep’t 2014)

In this auto accident action where P alleged the accident caused him to experience an embolic stroke,

Court held trial court should not have granted that part of D’s motion in limine seeking to preclude one of P’s neurological experts from testifying, thereby preventing P from making his case, on the ground that CPLR 3101(d) statement by P’s expert failed to sufficiently set forth the mechanism by which the stroke occurred. The statement with narrative report was served more than a year before trial, and D’s

had the option of moving for an amplification or to require the witness to provide a more complete explication of his theory of causation. Therefore, their motion in limine on the eve of trial to entirely preclude the witness on that basis was unnecessary and improper.

43

Newark v. Pimenti 117 A.D.3d 581, 986 N.Y.S.2d 581 (1

st Dep’t 2014)

Court held trial court did not abuse its discretion in precluding two defense experts from testifying at trial in the absence of any “good cause” for the failure to disclose these experts until the second day of trial.

Rivera v. Montefiore Med. Ctr. __ A.D.3d __, __ N.Y.S.2d __ (1

st Dep’t 2014)

Court held that P’s challenge at trial to D’s expert disclosure on the ground of lack of specificity was

waived because P did not reject the disclosure or make any objection to it on that ground. Arcamone-Makinano v. Britton Prop. 117 A.D.3d 889, 986 N.Y.S.2d 372 (2d Dep’t 2014)

Trial court precluded P’s experts from testifying due to failure to properly disclose them, and without the expert testimony, P was unable to establish entitlement to injunctive relief and actual damages. Court reversed and ordered a new trial. It held in the absence of any proof that P willfully violated a

court directive regarding expert disclosure and the fact that a short adjournment of this non-jury trial could have eliminated any prejudice to D, trial court abused its discretion in precluding the testimony. Smalley v. Harley Davidson

115 A.D.3d 1369, 983 N.Y.S.2d 707 (4th

Dep’t 2014) In this personal injury action, trial court granted D’s motion seeking to preclude the trial testimony of two of P’s experts based on P’s failure to make timely expert disclosures and seeking to strike those

expert disclosures as well as a third expert disclosure. Court reversed and held that the trial court should have adjourned the trial rather than granting D’s motion, thereby precluding the subject expert testimony and striking the subject expert disclosures. Justice Centra and Scuniers disserted, expressing the view that this case was an inappropriate case in which to substitute our discretion for that of

Supreme Court with respect to plaintiffs’ late and even almost eve of trial disclosure of an entirely new products liability expert and a second amended disclosure for their previously disclosed liability expert, both of which proffer new liability theories.

IV. UNIFORM RULE 202.17(b) AND EXCHANGE OF MEDICAL REPORTS Hamilton v. Miller 23 N.Y.3d 592, 992 N.Y.S.2d 190 (2014)

In this appeal, involving two separate lead paint cases, Ps in both cases submitted a BOP which alleged 35 different injuries and also disclosed a limited amount of medical and educational records which tended to show that the Ps had been exposed to lead paint as children. D served notices for

medical examinations of the Ps under CLR 3121(a) and requested that Ps produce prior to the examination copies of any reports of any physicians who treated or examined them pursuant to Uniform Rule 202.17(b)(1). Trial court granted motion and Fourth Department affirmed. Court modified, holding that P is not required to provide narrative reports for claimed injuries where there is

none, or very limited, medical evidence. On the other hand, where medical records of a certain claimed condition exist, P must produce reports as required under 202.17(b)(1). If no such reports are in existence, P is required to seek out reports from their providers to comply with the mandates of the

44

rule. In reaching this ruling, the Court noted that a report under 202.17(b)(1) only requires a recitation of injuries, diagnosis and prognosis. It does not require, as urged by Ds, a finding of causation. Issues of causation should be addressed through expert disclosure under CPLR 3101(d).

V. CPLR 3126 CDR Creances S.A.S. v. Cohen 23 N.Y.3d 307, 991 N.Y.S.2d 519 (2014)

Court affirmed on order striking the answer and entering a default judgment as prescribed in CPLR 3126(3). This sanction was imposed on a finding by clear and convincing evidence that Ds had engaged in conduct that constituted a “fraud on the court.” The “fraud” included numerous instances

of witness tampering, perjury, and falsification of documents. COMMENT: Although court cited to CPLR 3126, “the relief afforded appears to lie under the distinct inherent powers of the courts to impose sanctions involving a fraud on the court.” Connors, Practice Commentaries to CPLR 3126, C3126:8.

Merrill Lynch v. Global Strat. 22 N.Y.3d 877, 976 N.Y.S.2d 678 (2013) Trial court directed entry of default judgment against individual Ds due to their alleged failure to

respond to P’s documents demands, namely, the production of documents claimed to be in their possession that related to the corporate Ds. Court vacated judgment. It noted there was no proof in the record to support the granting of the default judgment against the individual Ds who had yet to answer and against whom a stay on the claims against them had been granted. COMMENT: Court

noted, quoting Prof. Connors’ Practice Commentaries: “The sanction should be commensurate with the particulars disobedience it is designed to punish and go no further than that.” BDS Copy v. International Paper

__ A.D.3d __, __ N.Y.S.2d (3d Dep’t 2014) In this commercial litigation, the trail court struck P’s complaint on the ground of P’s failure to respond to documentation supporting P’s damage claims. P maintained that those documents could be

found if Ds search through 60-80 banker’s boxes stored in a warehouse and trial court had stated this was not reasonable compliance with P’s discovery obligations. Court affirmed, finding a pattern of non-compliance sufficient to support finding that P’s conduct was willful.

Cason v. Smith 120 A.D.3d 1554, 993 N.Y.S.2d 218 (4

th Dep’t 2014)

In this MV accident case, Court held trial court did not abuse its discretion in granting P’s motion to

strike answer as interposed by individual D for failure to appear for a court-ordered deposition. Court also held that the trial court abused its discretion in striking answer interposed by corporate D who employed the individual D as the individual left its employ prior to the commencement of the action and P produced no evidence that D exercised any control over him. As to the corporate D’s failure to

produce a corporate representative for a deposition, dismissal was inappropriate as it offered a reasonable excuse, namely, it conceded facts necessary to establish liability. The appropriate sanction was an order resolving issue of negligence in P’s favor and an assessment of $1,500.00 to P’s counsel.

Gumbs v. Flushing Town Ctr. 114 A.D.3d 573, 981 N.Y.S.2d 394 (1

st Dep’t 2014)

45

In this PI action, D moved pursuant to CPLR 3126 to strike the complaint upon P’s failure to provide requested HIPAA-compliant authorizations. Court affirmed denial with Justices Freedman and Gische dissenting. It found no abuse of the trial court’s discretion given the paucity of support for the motion in the first instance. Specifically, Ds’ argument regarding the relevance of Gumb’s medical history as

set forth in his deposition was improperly made for the first time in their reply papers. This impropriety deprived Ps of an opportunity to respond to the argument. Accordingly, the denial of Ds’ motion as reasonable and supported by law. It also found that the records sought went beyond the conditions P placed in controversy.

Stone v. Zinoukhoua 119 A.D.3d 928, 990 N.Y.S.2d 567 (2d Dep’t 2014)

In this PI action, D had not appeared at a deposition despite multiple court orders requiring his appearance. Court held striking of the answer and the entry of a default judgment was warranted by this willful and contumacious conduct.

D.A. Bennett v. Cartz 113 A.D.3d 945, 979 N.Y.S.2d 179 (3d Dep’t 2014)

Court, with Justice McCarthy dissenting, vacated an order dismissing counterclaims of D pursuant to CPLR 3126 for failure to produce documents. Court held there was no basis for a finding of willfulness, noting that trail court made no finding of willfulness, but based the preclusion order instead upon the conclusion that the records that D sought to admit were “speculative,” and thus

unduly prejudicial - a determination that does not provide a basis for relief pursuant to CPLR 3126.

IV. SPOILIATION

Dulue v. AC & L Food Corp. 119 A.D.3d 450, 990 N.Y.S.2d 24 (1

st Dep’t 2014)

In this PI action, P’s counsel notified D property owner a week after P was injured on the property to

preserve all surveillance films showing the subject slip and fall. D preserved an 84 second clip that showed P’s injury, and gave it to D’s insurance carrier. Six weeks later P expanded his request to six hours of footage and for all cameras in the store. Those films had been destroyed through an automatic erasure every 21 days. Court upheld denial of sanction against D, Justice Saxe dissenting.

It noted that there was no obligation to preserve hours of tape indefinitely each time there is an accident, and that there was no indication prior to the destruction that P desired those films, having given a limited request.

Lentini v. Wechsler 120 A.D.3d 1200, 992 N.Y.S.2d 135 (2d Dep’t 2014) In this actin where P alleged she was injured when some bricks collapsed as she was walking on a

brick walkway, trial court struck answer on the ground of D’s spoliation of evidence. D had paved over walkway with fresh cement after P requested him not to do until he made arrangements to inspect the brick walkway. Court affirmed, noting D paved over the walkway after receiving notice P intended to inspect it and that such paving frustrated P’s ability to prove his case.

Dyer v. City of Albany 121 A.D.3d 1238, 995 N.Y.S.2d 753 (3d Dep’t 2014)

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P alleged that D was negligent in failing to maintain a city park playground where the infant P was injured when she fell from a swing. P moved to strike answer pursuant to CPLR 3126 based upon D’s destruction of the swing, which was denied and affirmed. Court upheld affirmance, noting tha t D’s

supervisor testified he was informed that someone had gotten hurt on one of the swings, so he went to the park, inspected all of the swings and observed that the safety mechanism would not latch on one swing. After unsuccessfully attempting to latch it 2 times, he removed the wing and disposed of it. D had not been directed to preserve the swing, it is unclear whether the disposal occurred before P served

a notice of claim, and neither P nor her relatives had notified D of any problem with the swing aside from that notice of claim. P was not particularly prejudiced because relatives took several clear pictures of the swing the day after the accident and the supervisor testified that the safety mechanism would not latch.

Weiss v. Bellevue Matern. Hosp. 121 A.D.3d 1480, 995 N.Y.S.2d 640 (3d Dep’t 2014)

In this medical malpractice action, P learned during the discovery process that the infant P’s mother’s labor and delivery records had been destroyed 8 years after the infant’s birth pursuant to the D’s records retention policy. Trial court denied P’s motion to strike answer on the ground of spoliation of evidence and Court affirmed. It noted there was no evidence that D acted in bad faith and that P had

not established that the records “fatally compromised their ability to prosecute the action.” Johnson v. Ayyub 115 A.D.3d 1191, 982 N.Y.S.2d 615 (4

th Dep’t 2014)

In this medical malpractice action, certain radiology films included in a packet of decedent’s medial records previously picked up by P and returned to D hospital were missing. D physician moved to strike complaint as against him due to the loss of these films. Noting that there was no evidence of

intention destruction and the loss did not fatally compromise D’s ability to defend himself, Court held the sanction of dismissal was not warranted, and let stand the trial court’s sanction of an adverse inference against the party who may be responsible for the loss.

Simoneit v. Mark Cerrone, Inc. 122 A.D.3d 1246, __ N.Y.S.2d __ (4

th Dep’t 2014)

In MV accident case involving a school bus, Court upheld as a spoliation sanction against the bus

company D the striking of affirmative defenses based upon brake failure where D after the accident replaced allegedly defective parts and discarded them. Court held D should have anticipated litigation where several of the school children were removed from the scene by ambulance and the brake parts were a “crucial piece of evidence” to support the defense.

VII. CPLR 3119 Kapon v. Koch 23 N.Y.3d 32, 988 N.Y.S.2d 559 (2014)

Koch commenced an action in CA against X. In connection with that action, he sought disclosure from Kapon in NY, invoking CPLR 3119 and serving a subpoena on Kapon who was a non-party in the CA action. Among other legal matters, Court noted that under CPLR 3119(e) an application to the

court for a protective order or to quash a subpoena under CPLR 3119, “must comply with the rules of this state or statutes of this state and be submitted to the court in the county in which discovery is to be conducted.

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Part Eight

JUDGMENTS

I. ENFORCEMENT OF SISTER STATE JUDGMENTS

Kane v. Galtieri 122 A.D.3d 582, 996 N.Y.S.2d 78 (2d Dep’t 2014) In this wrongful death action against D, a retired police officer on a disability pension, pension fund

and D’s ex-wife intervened. Court held a FL marriage dissolution judgment and QDRO was not entitled to full faith and credit by NY court since D transferred his pension to his ex-wife to render himself judgment proof, and FL law allowed a collateral challenge on the judgment on the ground of fraud, a NY court can entertain a similar challenge. On the facts Court found fraud as claimed.

Starla D. v. Jeremy E. 121 A.D.3d 1221, 994 N.Y.S.2d 702 (3d Dep’t 2014)

Petitioner commenced this proceeding pursuant to the Uniform Interstate Family Support Act seeking to establish paternity and obtain child support. A prior proceeding commenced by petitioner for similar relief was dismissed “with prejudice,” as she requested. Court held Alabama judgment was entitled to Full Faith and Credit as the judgment was final, and personal jurisdiction over D was

present as he waived a challenge to personal jurisdiction; and that the judgment was res judicata precluding litigation of her claims in NY.

II. ENFORCEMENT OF FOREIGN JUDGMENTS

Landauer Ltd. v. Joe Monani Fish Co., Inc. 22 N.Y.3d 1129, 985 N.Y.S.2d 463 (2014)

P, a British company, sought to enforce monetary judgment of English Court, entered on its default, in NY and moved for S/J in lieu of complaint. Court held judgment was enforceable despite the fact P’s service on D via CPLR 311(a) was ineffective as each contract between the parties contained provision giving English Court’s jurisdiction over any disputes regarding the contracts, P company possessed

entire contract, and P was engaged in ongoing negotiations with British company in order to settle the dispute, providing notice of English lawsuit. Ayyash v. Koleilat

115 A.D.3d 495, 981 N.Y.S.2d 536 (1st Dep’t 2014)

P served information subpoenas and restraining notices on Ds, NY branches of financial institutions, in an effort to enforce a judgment entered in a court in Lebanon. Court held trial court properly denied

P’s motion to compel pursuant to CPLR 5242 since responding would likely cause great annoyance and expense to Ds or their employees or agents. Also, the denial of the motion was warranted based on principles of international comity since the underlying dispute did not originate in the US, the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters provides an

alternative recourse, and ordering compliance raises the risk of undermining important interests of other nations by potentially conflicting with their privacy laws or regulations. Harvardsky Holdings v. Kozeny

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117 A.D.3d 77, 983 N.Y.S.2d 240 (1st Dep’t 2014)

A Czech Republic court found D guilty of gross fraud; and was sentenced to a term of 10 years imprisonment and directed to pay $410 million to injured persons and entities. P subsequently

commenced an action in NY under CPLR 53 seeking recognition of the Czech judgment to render it enforceable and an attachment of funds held in a bank account in the name of D’s alter ego. Court held a NY court may recognize a foreign country judgment issued by a criminal court awarding a sum of money as compensation for damages sustained by a fraudulent scheme. COMMENT: In this case

of first impression, First Department has expanded the class of foreign judgments that are potentially recognizable under CPLR 5301. Abu Dhabi Commercial Bank v. Saad Training

117 A.D.3d 609, 986 N.Y.S.2d 454 (1st Dep’t 2014)

P, a UAE bank, obtained a $40 million judgment in UK against Saudi Arabia D, and then brought action in NY seeking to domesticate and enforce the judgment pursuant to CPLR 3123 and 5303. D

moved to dismiss because it had no assets in NY and neither the transaction nor it had any connection to NY. Court held pursuant to CPLR Article 53, a party seeking domestication of a foreign judgment need not establish a basis for personal jurisdiction over the D in NY. The Court further held that due process did not require persona jurisdiction as there is no unfairness to D as the English Court

protected its due process rights. COMMENT: Court also held that NY’s statutory interest rate of 9% applied to the English judgment.

III. ENFORCEMENT OF NY JUDGMENTS

Motorola Credit Corp. v. Standard Chartered Bank 24 N.Y.3d 149, __ N.Y.S.2d __ (2014)

P obtained a judgment for $2.1 billion, plus $1 billion in punitive damages which was entered in SDNY. Court held that NY’s separate entity rule prevents P as a judgment creditor from ordering a garnishee bank operating branches in NY to restrain the assets of D as a judgment creditor held in foreign branches of the bank.

IV. MISCELLANEOUS Flagstar Bank v. State

114 A.D.3d 138, 978 N.Y.S.2d 266 (2d Dep’t 2014) Judgment creditor lost its judgment lien because county Clerk docketed transcript of the federal judgment against individual judgment debtor as if he were a corporation. Court held P’s claim against

the State based on negligence of the Clerk was barred by NY’s rules governing municipal liability, specifically, State did not owe P a “special duty” of care.

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Part Nine

APPEALS

I. APPEALABLE ORDERS

Piorkowski v. Hosp. for Special Surgery 116 A.D.3d 560, 983 N.Y.S.2d 720 (1

st Dep’t 2014)

Balcom v. Reither 77 A.D.3d 863, 911 N.Y.S.2d 72 (2d Dep’t 2014) Lynch v. Carlozzi

121 A.D.3d 1308, 995 N.Y.S.2d 292 (3d Dep’t 2014) An order which merely determines the admissibility of evidence is not appealable as of right or by permission even if made in advance of brief and on motion papers.

Hurrell-Haring v. State 119 A.D.3d 1052, 990 N.Y.S.2d 286 (3d Dep’t 2014)

Court determined on the merits an appeal from an order deciding a Frye motion. Muhammed v. Fitzpatrick 91 A.D.3d 1353, 937 N.Y.S.2d 519 (4

th Dep’t 2012)

Court held an order determining a Frye appeal is appealable as it involves the merits of the action and affects a substantial right.

Lieblich v. St. Peter’s Hosp. 112 A.D.3d 1202, 977 N.Y.S.2d 780 (3d Dep’t 2013) On appeal from an order directing a party to answer questions at an EBT and resolving other discovery

matters, Court held that although no appeal lies from an order directing aparty to answer questions after EBT, an exception exists when the order involved the merits of the action or affects a substantial right of the party; and the order appealed here fell within that exception.

Waldorf v. Waldorf 117 A.D.3d 1035, 986 N.Y.S.2d 563 (2d Dep’t 2014)

Court dismissed D’s appeal on ground that as the only argument raised pertained to dicta in trial court’s decision, and no appeal lies from dicta. U.S. Bank Nat. Assn. v. Smith

__ A.D.3d __, __ N.Y.S.2d __ (2d Dep’t 2014) Court dismissed appeal as no appeal lies as of right from an order which does not determine a motion made on notice (CPLR 5701[a][2]) and it declined to granted leave to appeal.

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II. MISCELLANEOUS MATTERS

Aguigar-Consulo v. City of New York 113 A.D.3d 707, 978 N.Y.S.2d 855 (1

st Dep’t 2014)

Court dismissed appeal from order denying the parties’ motion to set aside the verdict on the ground the finding of liability was contrary to the weight of the evidence. Court dismissed the appeals since the appendix was inadequate because the trial transcript was not included in the appendix. COMMENT: Is unavailability of transcript ground for additional time to make the motion required by

CPLR 440-5 to be made within 15 days of verdict? Rivera v. Montefiore Med. Ctr. __ A.D.3d __, __ N.Y.S.2d __ (1

st Dep’t 2014)

Court held that where a party unsuccessfully objects to offered evidence at trial, that objection preserves right to raise that ruling on an appeal from the final judgment, but where there is an appeal from an order deciding a post-trial motion and the issue is not raised in that motion, it may not be

raised on an appeal from an order deciding that motion. Branch v. County of Sullivan 112 A.D.3d 1119, 977 N.Y.S.2d 127 (3d Dep’t 2014)

D argued that the NOA, although timely filed, was never served on it. Inasmuch as D has had ample opportunity to respond to the appeal and does not allege any prejudice, Court treated the NOA as valid pursuant to CPLR 5520(a).

III. SANCTIONS Waldorf v. Waldorf

117 A.D.3d 1035, 986 N.Y.S.2d 563 (2d Dep’t 2014) Where D filed an appeal raising an issue where the law was well-settled against her argument, Court directed that counsel show cause why sanctions should not be imposed pursuant to 22 NYCRR 130-

1.1(c)(3).