Queens Bar BulletinQueens Bar BulletinQueens County Bar Association / 90-35 One Hundred Forty Eighth Street, Jamaica, NY 11435 / (718) 291-4500

www.qcba.org

Vol. 75 / No. 4 / January 2012

BY DAVID H. ROSEN

Appellate PracticeSiegmund Strauss, Inc. v

East 149th Realty Corp.1illustrates the effect of theCourt of Appeals’ decisionin Matter of Aho,2 holdingthat the right of directappeal from an intermedi-ate order terminates uponthe entry of final judgment.The dispute arose out of a failed business merg-

er between the parties, for simplicity referred tohere simply as “Strauss” (plaintiffs) and “theRodriguezes” (defendants). The original agree-ment contemplated that the Rodriguezes wouldcontinue working at the premises involved in thebusiness, and the dispute reached a head whenStrauss changed the locks and excluded theRodriguezes from the premises.Strauss sued for a declaratory judgment that the

Rodriguezes had no interest in the premises, andmoved for a preliminary injunction excludingthem. The motion was granted. The Rodriguezesserved pleadings asserting claims for fraud, con-version and tortious interference with contractswith various other entities, improper accountingand wrongful termination, but that denied the exis-tence of a contract and asserted no claim forbreach of contract. Strauss successfully moved todismiss these claims, on the grounds that theRodriguezes’ claims really sounded in breach ofcontract, since the essence of the purported fraudclaims was that Strauss entered into the mergeragreement with no intent of performing it.Strauss filed a note of issue. The Rodriguezes

then moved to amend their pleadings to assertclaims for breach of contract, but the motion wasdenied, apparently as untimely. The Rodriguezesfiled a notice of appeal from this order, but neitherperfected nor formally withdraw it, choosinginstead to pursue an appeal from any adverse finaljudgment.After a bench trial, the trial court held in favor

of Strauss, declaring that Strauss was entitled topossession of the premises and that theRodriguezes had no interest in it. The Rodriguezesnow appealed from this judgment, asserting thatthe appeal brings up for review the prior ordersdismissing their original pleadings and denyingleave to amend.Recall that CPLR 5501 (a)(1) provides that an

appeal from a final judgment brings up for reviewany intermediate order or judgment which “neces-sarily affects” the final judgment. Did the orderdismissing the Rodriguezes pleadings necessarilyaffect the final judgment? No, said the FirstDepartment. The Court adopted a suggestion madeby Professor Siegel, that a helpful question in mak-ing this determination is whether or not reversal of

BY ILENE J. REICHMAN

This past year, the NewYork Court of Appealsrendered a number of decisions of interest to thecriminal practitioner. Some of the more signifi-cant opinions are highlighted in this article.In People v. Steward, 17 N.Y.3d 104 (2011),

the defendant was charged with multiple countsof first and second degree robbery and variouscounts of weapon possession. The victim of therobbery was the prominent radio host of a showon a popular NewYork City radio station. At thecommencement of jury selection, the trial judge advisedcounsel that they would only be given five minutes to ques-tion each panel of prospective jurors. After the first round ofjury selection, defense counsel objected to the limitationand argued that five minutes was not enough time to ques-tion 16 seated panelists in a case that was both complex andserious. In support of this argument, counsel cited severaltopics that he had hoped to discuss with the prospectivejurors but had been unable to do so due to the time con-straints imposed.In reversing Steward’s conviction, the Court of Appeals

held that while Criminal Procedure Law § 270.15 (b) doesnot contain guidelines regarding the duration of voir dire,and leaves the scope of counsel’s examination of prospec-tive jurors to the trial judge’s discretion, it does require thatcounsel “be afforded a fair opportunity to question theprospective jurors as to any unexplored matter affectingtheir qualifications”. Under the particular circumstances inthis case, the Court found that a five-minute time limit perround was unduly restrictive and that the defendant had suf-fered prejudice as a result of the restriction.In People v. Fernandez, 17 N.Y.3d 70 (2011), a case

involving multiple sex offenses, the complainant, who was11 years old at the time of trial, testified that the defendant,her uncle had engaged in numerous sexual encounters withher over a four-month period. Defense counsel sought toelicit testimony from the defendant’s parents that the com-plainant had a reputation for untruthfulness. However, thetrial judge precluded such testimony on the ground that

counsel had failed to lay a proper foundationbecause he had not established the quality of thecommunity members’ associations with thecomplainant or the reliability of his proposedwitnesses’ testimony.In its decision rejecting the trial judge’s ruling

and sustaining the Appellate Division’s reversalof the conviction, the Court of Appeals held inFernandez that for the purpose of introducingtestimony regarding a witness’ bad reputationfor truth and veracity, family members and fam-ily friends could be found to constitute a rele-

vant community for such purpose, and that in a case wherethe complainant’s credibility was the paramount issue, theerroneous preclusion of such testimony could not be con-sidered harmless.In People v. Gibson, 17 N.Y.3d 757 (2011), the Court of

Appeals clarified its prior holdings regarding the right tocounsel and the definition of interrogation. In Gibson, thedefendant was suspected of committing a robbery but wastaken into custody for a bench warrant in an unrelated casein which his indelible right to counsel had attached. Whenthe defendant asked to speak with a detective whom heknew, the detective brought him to his office and offeredhim a cigarette in the hope that he could obtain a sample ofhis DNA. While the defendant spoke to the detective abouta problem he was having with his landlord, he smoked thecigarette and then extinguished it in an ashtray. The detec-tive then took the cigarette butt and had it tested. DNA fromthe cigarette butt was found to match the DNA left on anarticle of clothing believed to have been worn by the perpe-trator of the robbery under investigation.On appeal, Gibson argued that his custodial questioning

by the detective and the collection of his DNA violated hisindelible right to counsel and should have been suppressed.But the Court of Appeals held that the detective’s offer of acigarette to the defendant was not reasonably likely to elicitan incriminating response, and that the defendant’s volun-tary deposit of DNA on the cigarette was not a communica-tive act that disclosed the contents of his mind. Therefore,

CPLR Update

_______________________ Continued On Page 7

I N S I D E T H I S I S S U ECriminal Law Cases . . . . . . . . . . . . . . . . 1

CPLR Update - 2011 . . . . . . . . . . . . . . . . 1

The Docket . . . . . . . . . . . . . . . . . . . . . . . 2

Mandatory E-Filing . . . . . . . . . . . . . . . . . 2

President’s Message. . . . . . . . . . . . . . . . 3

History Corner: Almanac Murder Trial . . 3

Editor’s Note: The Ethical Roots of

Our Profession . . . . . . . . . . . . . . . . . . 4

Marital Quiz . . . . . . . . . . . . . . . . . . . . . . . 5

Poetry Corner . . . . . . . . . . . . . . . . . . . . . 6

Photo Corner: Holiday Party . . . . . . . . 8-9

Overcoming Bluster and Bull . . . . . . . . 10

___________________________________ Continued On Page 6

Criminal Law Cases

Season of GivingPictured here (left to right) Hon. Bernice D. Siegal –President, Queens County Women’s Bar Association;Lawrence M. Litwack, Esq. – President, BrandeisAssociation; Sandra M. Munoz, Esq. – President,Latino Lawyers Association of Queens County;Richard Michael Gutierrez, Esq. – President, QueensCounty Bar Association; Hon. Maureen A. Healy–President, St. John’s Law School Alumni Association,Queens Chapter; Thomas J. Principe, Esq. – President,St. John’s Law School Alumni Association.

David H. Rosen

Ilene J. Reichman

THE QUEENS BAR BULLETIN – JANUARY 20122

If you or someone you know is having a problem with alcohol,drugs or gambling, we can help.

To learn more, contact QCBA LAC for a confidential conversation.Confidentiality is privileged and assured under Section 499 of theJudiciary Laws as amended by Chapter 327 of the laws of 1993.

Lawyers Assistance CommitteeConfidential Helpline 718 307-7828

being the official notice of the meetings and programs listed below, which, unless otherwise noted, will be heldat the Bar Association Building, 90-35 148th St., Jamaica, New York. More information and any changes will bemade available to members via written notice and brochures. Questions? Please call (718) 291-4500.

PLEASE NOTE:The Queens Bar Association has been certified by the NYS Continuing Legal Education Board as anAccredited Legal Education Provider in the State of New York.

TH E DO C K E T . . .

NE W ME M B E R S

February 2012

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

View

March 2012Tuesday, March 6 New Image and E-Verify Systems at St. John’s Law

SchoolTuesday, March 13 Commercial LeasingWednesday, March 14 Basic Criminal Law - Pt 1Monday, March 19 Stated Meeting - Social Media in Your Law PracticeWednesday, March 21 Basic Criminal Law - Pt 2Tuesday, March 27 Article 81/Guardianship Training for the Layperson -

2:30-5:00 pm

April 2012

Friday, April 6 Good Friday - Office ClosedMonday, April 16 Judiciary, Past Presidents & Golden Jubilarians NightWednesday, April 18 Equitable Distribution UpdateSunday, April 29 ARTtorneys Art Show at Queens College 3:00-6:00 pm

May 2012

Thursday, May 3 Annual Dinner & Installation of OfficersTuesday, May 15 CPLR Update SeminarThursday, May 17 Matrimonial Law CLE

CLE Dates to be Announced

Civil CourtElder LawInsuranceSupreme Court & Torts Section

CLE Seminar & Event Listing

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Patrick Joseph Campbell

Neil B. Galfunt

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Chi Wang

Jacob Zev Weinstein

ADVERTISE TOTHE LEGAL PROFESSIONin Queens, New York & Suffolk Counties

Call 631-427-7000

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Class of 2013Gregory J. BrownTracy Catapano-Fox

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Class of 2014Chanwoo Lee

Timothy B. RountreeZenith T. Taylor

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2011-2012Officers and Board of Managers

of the

Queens County Bar AssociationPresident - Richard Michael GutierrezPresident-Elect - Joseph John Risi, Jr.Vice President - Joseph F. DeFelice

Secretary - Paul E. KersonTreasurer - Joseph Carola, III

Publisher:Long Islander Newspapers,LLC, under the auspices ofQueens County BarAssociation. The QueensBar Bulletin is publishedmonthly from October toMay. All rights reserved.Material in this publicationmay not be stored or repro-duced in any form withoutpermission.

©2012The Queens County

Bar Association.Advertising Offices:

Long Islander Newspapers,149 Main Street, Huntington,

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Arthur N. Terranova . . . Executive DirectorQUEENS BAR BULLETIN

EDITOR - Paul E. Kerson (kersonpaul@aol.com)ASSOCIATE EDITORS

Richard N. Golden (goldenlaw@nyc.rr.com)Stephen D. Fink (finkylaw@aol.com)

Gary C. DiLeonardo (garygcd@aol.com)Manuel Herman (mannyherman@aol.com)Ilene J. Reichman (momster8931@aol.com)

“Queens Bar Bulletin”(USPS Number: 252-520) is published monthly exceptJune, July, August and September by Long IslanderNewspapers, LLC., 149 Main Street, Huntington, NY 11743,under the auspices of the Queens County Bar Association.Entered as periodical postage paid at the Post Office atJamaica, New York and additional mailing offices under theAct of Congress. Postmaster send address changes to theQueens County Bar Association, 90-35 148th Street, Jamaica,NY 11435.

Send letters and editorial copy to:Queens Bar Bulletin, 90-35 148th Street,Jamaica, New York 11435

Editor’s Note: Articles appearing in the Queens BarBulletin represent the views of the respective authorsand do not necessarily carry the endorsement of theAssociation, the Board of Managers, or the EditorialBoard of the Queens Bar Bulletin.

THE QUEENS BAR BULLETIN – JANUARY 2012 3

HI S T O R Y CO R N E R

Several weeks ago, I wrote about thedecision of the NewYork City Departmentof Finance to commence the enforcementof penalties and interest against refereesfor late filing of Real Property TransferTaxes.Recently, the Association received a let-

ter mailed to the Honorable Fern Fisher,Deputy Chief Administrative Judge of theState of NewYork, regarding the responsi-bility of referees for the late filing of theRPTT.All members of the Association, with an

email address that had been given to staff,were sent a copy of this letter. For thosemembers who have not received this letterand would like a copy, please contact theAssociation and a copy will be sent to you.In this letter, Michael A. Cardozo,

Corporation Counsel of the City ofNew York, states the position of theDepartment of Finance with regards tothe enforcement of penalties and inter-est on late filed Real Property Tax

Returns, against courtappointed referees.Currently the law treats refer-

ees selling properties at foreclo-sure, as grantors, subject to thetimely filing of the returns andthe payment of taxes.Unfortunately, the position

taken by the Department ofFinance concerning enforce-ment of penalties and interest,against referees places them in aprecarious financial positionand creates a significant problem for thecourt system.Referees who receive an appointment or

an Order of Reference must now decideinitially, whether to accept or reject theappointment. However, once an appoint-ment is accepted, and a sale occurs, if thereferee signs the deed, it will obligate himor her to make sure there is compliancewith the law. Consequently, the RPTT mustbe filed within thirty (30) days of the trans-

fer otherwise the referee isliable for the payment ofpenalties and interest.

Customarily, once thedeed and the transfer docu-ments are signed, the refereelooses any further control overthe transaction. Reliance isplaced upon the purchaser,usually the lending institutionor its agents to timely file theRPTT.

As an arm of the court,referees should not be put in such an unten-able position. Moreover, as of January 1,2012, the Department of Finance will com-mence enforcement of late filings and havethe right to seek a judgment against refer-ees, even though they did nothing wrong incausing the untimely filing of the RPTT.Until there is a change in the law, the

court should consider ways it can protectand prevent referees from being subject tothe harshness of this law.

To militate the unfairness of this law,perhaps the court can add language to theOrder of Reference that would afford ref-erees’ protection. The exact language tobe used is within the province of thecourt. However, the Association is willingto assist the court in formulating languagethat will hopefully resolve this problem.For those referees who decide to accept

an appointment from the court, the use ofa hold harmless agreement might also behelpful.Although, a hold harmless agreement

might protect referees somewhat, it doesnot prevent the Department of Financefrom seeking recourse against them, shouldthere be a breach of the agreement.If any members have any suggestions on

how to resolve this problem, please contactthe Queens County Bar Association or youcan email me at Richlaw101@aol.com.

Richard M. GutierrezPresident

PR E S I D E N T ’S ME S S A G E

Rihard M. Gutierrez

By: STEPHEN DAVID FINK, ESQ.

A lawyer without history or literature is amechanic, a mere working mason; if hepossesses some knowledge of these, hemay venture to call himself an architect.

—Sir Walter Scott

Lincoln the LawyerBy 1858 Abraham Lincoln was well

known as one of the best lawyers inIllinois. He had tried many cases but hiscriminal experience was somewhat limit-ed. His trials included a number of murdercases but he had lost the majority of them.As an attorney Lincoln was also known

for only taking cases in which he believedin the innocence of his client. However,the defense of William “Duff” Armstrongmay have been an exception.

Lincoln Takes the CaseAs a young man in the early 1830’s and

before he was a lawyer, Lincoln had livedin the frontier town of New Salem, Illinois.One day a local bully by the name of JackArmstrong challenged him to a wrestlingmatch. Lincoln won the match and earnedArmstrong’s respect. He became closefriends of Armstrong and his wife Hannah.He would pay visits to the family andknew their son William (“Duff”).Years later, when Duff Armstrong was

accused of murder, Lincoln wrote HannahArmstrong (Jack had passed away) offer-ing to take the case for free.

The ChargesThe facts of the case are well docu-

mented. On the evening of August 29,1857, Armstrong and Jack Norris savage-ly beat James Metzger while all three werequite drunk. Metzger was a large brawnyman and during the fight both Norris andArmstrong allegedly struck him with aclub and a make shift blackjack - typeweapon called a “slung-shot.” Metzgersuffered severe head injuries and died twodays later. Armstrong and Norris werearrested and charged with murder. Norriswas quickly convicted of manslaughterbased upon eyewitness testimony.Enter Lincoln. There is some historical

controversy whether Lincoln defended the

case even though he knew Armstrong tobe guilty. Regardless, Lincoln put asideany of his misgivings and prepared thecase for trial.

The TrialThe trial was held on May 8, 1858 in the

local Courthouse in Beardstown, Illinois.You can still see the actual Courtroomwhere the trial was held. The town isabout 45 miles northwest of Springfield inthe heart of Illinois farm country. Thefamous Courtroom is on the second floor.In fact, the reader may want to see theHenry Fonda movie Young Lincoln whichgenerally depicts the trial.The prosecution’s case rested upon the

testimony of its key witness, CharlesAllen. He testified that on the night of themurder he saw Duff Armstrong strikeMetzger under the light of a full moon.During this testimony, eyewitnesses in the

Courtroom state that Lincoln seemed obliv-ious as to what was happening all about him.He seemed bored and his gaze was fixedupon one spot on the blank ceiling.However, when it was his turn to cross

examine, Lincoln asked Allen severalquestions to establish the precise details ofthe night in question. Allen testified thatthere was a full moon and that from a dis-tance of about 150 feet he saw Armstrongkill Metzger.

Judicial NoticeOnce the direct testimony was complet-

ed Lincoln seemed to drop his boredveneer. He asked the Judge permission toenter an 1857 almanac into evidence.Permission was granted. Allen wasrecalled and Lincoln had him read thealmanac entry for August 29, 1857, thedate of the assault. The almanac estab-lished that in fact even if there had been amoon, based upon its position, by 11o’clock it would have been unlikely thatAllen could see anything from 150 feetaway. During their deliberations thejurors were allowed to look at thealmanac to confirm their opinion that thewitness had lied.

Other Issues During TrialThe use of the almanac was not the

only matter that Lincoln managed toraise during the trial. In fact the trialjudge later stated that he felt it was actu-ally the other issues that led to the jury toacquit. Specifically, before recallingAllen to discredit him, Lincoln hadcalled a witness who testified that theweapon was his and did not belong toDuff Armstrong. Lincoln had also used adoctor as an expert witness to testify thatthe blow to the back of Metzger’s headcould not have caused the wound at thefront of the victim’s head.Finally, Lincoln delivered his closing

argument (in shirt sleeves) basically per-sonally vouching for Duff Armstrong.This probably could not be done in a crim-inal trial today. Lincoln was well known inthis section of Illinois and his word carriedgreat weight.

Later EventsAfter securing the acquittal of

Armstrong, Lincoln went on to bigger andbetter things. The trial was followed by hisunsuccessful run for the Senate againstStephen A. Douglas. In fact, one of theissues in that campaign was whetherLincoln had altered the almanac that wasused at the trial. This charge was certainlyunfounded.The reader is referred to Moonlight:

Abraham Lincoln and the AlmanacTrial, by John Evangelist Walsh. Whilethe book is certainly a helpful resource, ithas been criticized for being overly nega-tive as toward Lincoln.

Judicial Notice and New York lawSo more than 150 years later, what does

NewYork say about judicial notice and theuse of an almanac.Judicial notice has a long history in

New York. See e.g., Swinnerton v. TheColumbian Insurance Company , 37 N.Y.174, 10 Tiffany 174 (1867) [the Courtsare bound to take judicial notice of theactual existence of a Civil War in 1861].The Courts “. . . will generally takenotice of whatever ought to be generallyknown within the limits of their jurisdic-tion.... Id. at 189.Even today, the principles of judicial

notice are liberally followed. For example,

it has been held that a trial judge may takejudicial notice of facts within her personalknowledge which were derived from anunrelated case that came before her. See,Sam & Mary Housing Corp. v. Jo/SalMarket Corp. 100 A.D. 2d 901, 474N.Y.S. 2d 786 (2d Dept. 1984). However,a Court may not take judicial notice, suasponte of the applicability of a Statute ofLimitations if that defense has not beenraised. See, Paladino v. Time WarnerCable of New York City, 16 A.D. 3d 646,973 N.Y.S. 2d 63 (2d Dept. 2005). Judicialnotice is applicable in trial Courts as wellas in the Appellate Division. See, Khatibiv. Weill, 8 A.D. 3d 485, 778 N.Y.S. 2d 511(2d Dept. 2004).As a general matter scientific tracts are

excluded as books of inductive science.They are not admissible at trial as affirma-tive evidence. See, Foggett v. Fischer, 23App. Div. 207, 48 N.Y. Supp. 741 (2dDept. 1897). However, books or publica-tions that contain ascertained facts ratherthan opinions, or which by long use areaccepted as standard and unvaryingauthority may be utilized. An almanacfalls within this exception. It is simply anaid from which judicial notice can betaken.Just as in the famous Lincoln trial,

Courts today can take judicial notice ofthe rising or setting of the sun or moon onany particular day. See, e.g., Brown v.McCullough, 240 App. Div. 381, 270 N.Y.Supp. 37, 39 (1st Dept. 1934). It is errornot to allow reference to an almanac toestablish these times. See, e.g., Auerbachv. Stein, 162 Misc. 102, 293 N.Y. Supp.545 (App. Term, 1st Dept. 1936). Also,see, Affronti v. Crosson, 95 N.Y. 2d 713,723 N.Y.S. 2d 757, 761 (2001) [Censusdata from statistical yearbooks can berelied upon for purposes of taking judicialnotice].

To the practitioner, under New YorkLaw the result should be the same sinceLincoln presented the evidence more than150 years ago. The almanac has long beena “tool” that the New York lawyer canrefer to for various purposes. See,Montenes v. Metropolitan Street RailwayCo., 77 A.D. 493, 78 N.Y. Supp.1059 (2dDept. 1902).

THE ALMANAC MURDER TRIAL AND JUDICIAL NOTICE

THE QUEENS BAR BULLETIN – JANUARY 20124

By Paul E. Kerson

We are a profession, not a business.While we must collect legal fees toremain open and support ourselves andour families, the collection of legal fees isnot the goal.Legal fees are like gasoline for your car.

You bought the car to take you and yourpassengers all over the map. You did notbuy the car for the sole and exclusive pur-pose of putting gasoline in it. You musthave gasoline to go anywhere, but thegasoline itself is not the goal.So it is with law. The most thoughtful

among us was John Donne. He prepared forhis legal career at both Oxford andCambridge Universities, and at Thavie’s Innand Lincoln’s Inn, both leading British LawSchools. Donne did not receive degreesfrom Oxford and Cambridge because thesewere Anglican institutions, and he was ofthe Catholic faith. Before separation ofChurch and State, Universities wereallowed to pull this kind of thing.Donne was elected to Parliament twice,

in 1601 and 1614. He joined the AnglicanChurch, and was appointed Dean of St.Paul’s Cathedral in London in 1615. ButDonne’s most important contributioncame from his writings. One of the chap-ters of his 1624 book, “Devotions UponEmergent Occasions” became one of thebest statements of the philosophy behindthe legal profession, and famous world-

wide. One of its stanzas isoften reprinted as a poem,“For Whom the Bell Tolls.”But much of the rest of thispoem, actually a book chap-ter, is worth reading and sav-ing, especially when a client,adversary or judge has givenyou an especially hard time:“Perchance he for whom

this bell tolls may be so ill asthat he knows not it tolls forhim…The church is catholic, universal,

so are all her actions; all that shedoes, belongs to all. When she bap-tizes a child, that action oncerns me;for that child is thereby connected tothat head which is my headtoo, and ingraffed into that body,whereof I am a member.And when she buries a man, that action

concerns me; all mankind is of one author,and is one volume; when one man dies,one chapter is not torn out of the book,but translated into a better language; andevery chapter must be so translated…

No man is an island, entire of itself,Every man is a piece of the continent,a part of the main;

If a clod be washed away by the sea,Europe is the less.As well as if a promontory were.

As well as if a manor of thine own

Or of thine friend’s were.Each man’s death diminishesme,

For I am involved in mankind.Therefore, send not to knowFor whom the bell tolls,It tolls for thee.”

(Henry Alford, “The Works ofJohn Donne,” Vol. III, London,John W. Parker Co. 1839, p.574-5)

A short 312 years later, in 1936, RabbiJ.H. Hertz, the Chief Rabbi of the BritishEmpire, wrote his widely distributedBiblical Commentary, “Pentateuch andHaftorahs,” the leading book used inAmerican synagogues for generations.Rabbi Hertz’s interpretation ofDeuteronomy 16:20 (“Justice, justice,thou shalt follow”) matches John Donne’s“For Whom the Bell Tolls” idea for idea:“To understand the idea of justice in

Israel we must bear in mind the Biblicalteaching that man is created in the imageof G-d; that in every human being there isa Divine spark; and that each human life issacred, and of infinite worth.In consequence, a human being cannot

be treated as a chattel, or a thing, butmust be treated as a personality; and, as apersonality, every human being is thepossessor of the right to life, honour, andthe fruits of his labor. Justice is the awe-

inspired respect for the personality ofothers and their inalienable rights; evenas injustice is the most flagrant manifes-tation of disrespect for the personality ofothers.” (Hertz, p. 821) (emphasis inoriginal).It is 2012. Many readers have given up

on Organized Religion. Then we must turnto the thoughts of the (“G-dless”) five-time Socialist Party candidate forPresident, Eugene Victor Debs (1855-1926). Debs was President of theAmerican Railway Union in 1893, andwas imprisoned in a Federal Penitentiaryfrom 1918-21 for publicly opposingAmerican involvement in World War I.Debs wrote his philosophy, which match-es John Donne’s and Rabbi Hertz’sthought for thought:

“While there is a lower class,I am in it,While there is a criminal elementI am of it;While there is a soul in prison, I amnot free.”

17th century, 20th century, 19th century,Catholic, Anglican, Jewish, Socialist – theidea is just the same – we are all in thistogether. All people we come in contactwith – clients, adversaries, office staff,judges and court personnel – are worthy ofour respect, our attention and our bestefforts to put more justice in the world.

The Ethical Roots of Our Profession

Paul E. Kerson

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ED I T O R ’S NO T E

THE QUEENS BAR BULLETIN – JANUARY 2012 5

BY GEORGE J. NASHAK JR.*

Question #1 - Didthe Supreme Courtimprovidently exer-cise its discretion in,sua sponte, enjoininga party from bring-ing any furthermotions without thepermission of thecourt?

Your answer -________________________________________________________________________________________________________________________________________________________________________________________________

Question #2 - May the court properlyappoint a parenting coordinator to mediatebetween parties and oversee the imple-mentation of their court-ordered parentingplan?

Your answer -________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________

Question #3 - May a court delegate to aparent coordinator the authority to resolveissues affecting the best interests of thechildren?

Your answer -________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________

Question #4 - In a visitation proceeding,may a court order a parent to undergocounseling or treatment?

Your answer -________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________

Question #5 -In a visitation proceeding,may a court order a parent to undergocounseling or treatment as a condition offuture visitation or re-application for visi-tation rights?

Your answer -________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________

Question # 6 - If parties acquired title toreal property prior to their marriage as

joint tenants with right of survivorship,does their marriage transform the jointtenancy into tenants by the entirety?

Your Answer -________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________

Question #7 - Can the rights of the partiesin Question 6 be resolved in a matrimoni-al action or is a partition and recoupmentaction necessary?

Your answer -________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________

Questions #8 - If a so-ordered stipulationof settlement does not contain the specificrecitals mandated by CSSA, are the provi-sions, concerning basic child support pay-ments. “add-ons” for child care and unre-imbursed health care expenses enforce-able?

Your answer -________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________

Question #9 - Does an appeal lie from anorder entered upon the consent of theappealing party?

Your answer -________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________

Question #10 - Is it necessary to have apension valued, if the party seeking part ofthe pension is not asking for an immediatepayout?

Your answer -________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________

*Editor’s Note: Mr. Nashak is a PastPresident of our Association and Vice-Chair of our Family Law Committee. He isa member of the firm of Ramo NashakBrown & Garibaldi LLP

ANSWERS APPEAR ON PAGE 11

George J. Nashak, Jr.

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WWW.NYFORENSIC.COMdrberrill@yahoo.com

MAIN OFFICE26 Court Street, Suite 1711, Brooklyn, NY 11242

718-237-2127

LONG ISLAND OFFICE45 North Station Plaza, Suite 404, Great Neck, NY 11021

516-504-0018

MANHATTAN139 Manhattan Avenue, New York, NY 10025

212-280-3706

The New York Center forNeuropsychology

& Forensic Behavioral Science

Dr. N.G. Berrill, Director

THE QUEENS BAR BULLETIN – JANUARY 20126

Need help with a case?Involved with a matter in which you are unfamiliar?Need some hearing/trial experience?

Call us at: The Q.C.B.A. Mentor Committee’sMentor Volunteer Programfor free assistance!!718-291-4500 oremail us at: info@qcba.org

Who are we???The QCBA Mentor Committee’s Mentor Volunteer Program.

Contact us at 718-291-4500 or info@qcba.org.

We answer questions for free..........

We offer assistance in practice and procedures..........

We allow you to second seat us or join us for a day

to gain practical trial/courtroom/law office experience....

We cover all areas of practice..........

PO E T R Y CO R N E R

CopingOne thing they failedTo teach in law schoolIs how to stay calmAnd keep your cool

When dealing with people,and there are all sorts -Some frustrated and angryAnd occasional good sports

The client who arrivesWith a chip on his shoulderOr one who bringsHis own inch thick folder

The flirt who thinksBy her charm and wileShe’ll successfully evadeAn evidentiary pile

Of course, there’s manyA “jailhouse lawyer”Who knows more than you -What an annoyer!

Occasionally, one isMost gratifiedWhen greeted by oneWho is most satisfied

And compliments youOn a job well done,making practice of lawAlmost fun.

So, advice to clients -you can yell and cuss,But, for crying out loudleave the lawyering to us!

Robert E. Sparrow, Esq.

Laws Decline andExhortationPolitical corporate contributions once limited and

remissButtressed from legal restrictions, recalled from

dubious mistIs lucre potential the current rule of law?Have we succumbed to avaricious wealth?

Young aspirants with ambitions earning yearningNo love for law, jingoistic fiery burningDesiring lucre in repressive stealthIs this not a lecherous unremitting flaw?

Esoteric theories in legal dress aboundUnrelenting to unashamedly expoundProjected audaciously although patently unsound.

To reform the law with laudatory zealThe reformer aims with incipient hopeful thrustDeluded with desultory mindset keelSolely cannot extirpate a predatory trust.

United we breach this exculpatory deceiveTo regenerate ideals we will ingeniously conceive.

Arnold H. Ragano, Esq.

Robert E. Sparrow

Arnold H. Ragano

the Court agreed with the hearing courtthat the detective had simply “capitalizedon the situation that manifested itselfthrough defendant’s own actions.”In People v. Santiago, 17 N.Y.3d 661

(2011), the Court of Appeals reviewed atrial judge’s preclusion of expert testimo-ny regarding eyewitness identification. InSantiago, the defendant was charged withfirst degree assault for brutally attacking awoman, who was a stranger, on a subwaystation. The victim described the perpe-trator as a Hispanic male, 5’8” to 5’9”tall, with a mustache and goatee, wearinga cap that concealed his face “from themiddle of his top lip, down, and from thetop of his eyebrows up”. Two eyewitness-es to the attack provided similar descrip-tions to the police. Twelve days later, oneof those eyewitnesses was shown a photoarray containing the defendant’s photo butdid not make an identification. However,two days after that viewing, the victimviewed the same photo array and identi-fied the defendant as the perpetrator of theattack. Two days after that identification,the victim identified the defendant in alineup. That same day, the eyewitnesswho had failed to make a photographicidentification viewed the lineup as well.Though he did not identify the defendantat that time, he later asserted that he waseighty percent sure that the defendant wasthe perpetrator but that he had not identi-fied him because he was concerned abouthis immigration status. The next day, thateyewitness was reading a Spanish-lan-guage newspaper in which he saw a pho-tograph of the defendant in handcuffs,accompanied by police officers.Prior to trial, defense counsel filed a

motion seeking to introduce expert testi-mony on the psychological factors affect-ing the accuracy of eyewitness identifica-tion. Counsel informed the court that hisexpert was prepared to testify on a varietyof topics including exposure time, cross-racial and cross-ethnic inaccuracy,

weapon focus, lineup fairness, lineupinstructions, forgetting curve, post-eventinformation, wording of questions,unconscious transference, simultaneousversus sequential lineups, eyewitness con-fidence issues and confidence malleabili-ty. Without a hearing, the trial courtdenied the defense motion but invitedcounsel to “suggest ways to address, dur-ing jury selection and in the final instruc-tions, the topic of a witness’s confidence”.After reviewing its recent decisions

regarding the admission of expert testi-mony on eyewitness identification, theCourt of Appeals reversed Santiago’s con-viction and ordered a new trial. The Courtrejected the prosecution’s argument thatthe denial of such expert testimony wasappropriate because the victim’s identifi-cation of the defendant was corroboratedby the two eyewitnesses who also identi-fied him at trial. Specifically, the Courtheld that it was an abuse of discretion todeny expert testimony regarding eyewit-ness confidence, confidence malleability,post-event information and unconscioustransference and that under the circum-stances presented, the error could not bedeemed harmless.In People v. Ventura, 17 N.Y.3d 675

(2011) , the defendant filed a timely noticeof appeal from his trial conviction but wasdeported from the United States by theDepartment of Homeland Security’sImmigration and Customs EnforcementBureau prior to the disposition of hisappeal. TheAppellate Division then grant-ed the prosecution’s motion to dismiss theappeal, reasoning that the defendant hadeffectively forfeited his right to challengehis conviction because he was no longerunder the control of the court.The Court of Appeals reversed the

Appellate Division’s decision dismissingVentura’s appeal, holding that the “invari-able importance of the fundamental rightto an appeal ... makes access to interme-diate appellate courts imperative” andthat “[a]s a matter of fundamental fair-ness, all criminal defendants shall be per-mitted to avail themselves of intermedi-ate appellate courts as ‘the State has pro-vided an absolute right to seek review incriminal proceedings’”.

Criminal LawCasesContinued From Page 1 ________________

THE QUEENS BAR BULLETIN – JANUARY 2012 7

the intermediate order would require reversalof the judgment. If it would, then it “neces-sarily affects” the judgment, if not, not.Applying this test, the First Departmentnoted that while reversal of the intermediateorders would give the Rodriguezes an avenueof redress for their contract claims, the rever-sal would not reverse the judgment as to pos-session of the premises.Could they get around this by reviving the

long-inactive appeal from the order denyingleave to amend? No, and here is whereMatter of Aho comes in. They never perfect-ed the appeal, and so would need an enlarge-ment of time in which to do so. Pursuant toMatter of Aho, however, once the final judg-ment was entered they no longer had a rightto appeal from the intermediate order.Where, as here, the intermediate order doesnot necessarily affect the final judgment, theright to appeal terminates on entry of finaljudgment whether or not they have substan-tial rights at stake and even if they have dili-gently pursued the appeal. The only waythey can protect themselves is by obtainingan order staying entry of the final judgment.The Appellate Division noted that the rule

sometimes acts adversely to judicial econo-my, where the appellate court has expendedresources considering the appeal, only tohave it terminated by a final judgment. Thecourt recommended legislative attention tothe issue. Leave to appeal to the Court ofAppeals has been granted, at least to theextent of the affirmance of the judgment andnot otherwise. Whether enough of the appealremains to allow a reconsideration of Matterof Aho remains to be seen.

ArbitrationIn Matter of Kowaleski3 the issue was the

arbitrator’s failure to consider an issue hewas statutorily required to consider. TheCourt of Appeals held that the resultingdetermination, even though supported bysubstantial evidence, nevertheless exceededa specific limitation on his power, and so wassubject to vacatur.Petitioner was a Corrections Officer, who

was terminated for certain offenses related toher conduct regarding other officers andemployees. She claimed that the chargeswere brought in retaliation for an earlier inci-dent in which she had reported a fellow-offi-cer’s misconduct. She filed a grievance andthe matter went to arbitration.At the arbitration, petitioner argued that

the arbitrator was required to consider theretaliation defense, pursuant to Civil ServiceLaw § 75-b, which prohibits public employ-ers from retaliating against whistle-blowers.The arbitrator held that the terms of theCollective Bargaining Agreement limited hisdetermination to the question of whether ornot petitioner was in fact guilty of the offens-es charged, and so precluded his considera-tion of the retaliation defense. He did indi-cate that he would consider the question ofretaliation to the extent that it bore on credi-bility of witnesses and, more vaguely, as itbore on the overall question of petitioner’sguilt or innocence.At the hearing, the respondent produced

substantial evidence that the petitioner had infact committed two of the offenses charged,and that the penalty of termination wasappropriate. The arbitrator found that theCBA allowed discipline only for “justcause,” and only where the employer hadmade a “fair and objective investigation,”and where the action was “non-discriminato-ry.” The agency action was therefore upheld.This CPLR Article 75 proceeding fol-

lowed, and Supreme Court concluded thatwhile the arbitrator had exceeded his powersby failing to consider Civil Service Law § 75-

b, the award should still not be vacated sincethe error was one of law. Supreme Court alsofound that § 75-b prohibited only those disci-plinary actions taken solely as retaliation forthe whistle-blowing, and not those where, ashere, there was evidence providing an inde-pendent basis for the discipline.The Appellate Division majority agreed

that the arbitrator committed an error oflaw in deeming the retaliation claimbeyond his jurisdiction, but found that thiswas a mere error of law. There was a two-judge dissent, which would have reversedon the ground that petitioner was entitled toan explicit determination of whether thecharges were in fact in retaliation for herpast whistle-blowing.The Court of Appeals agreed with the dis-

sent and reversed. Civil Service Law § 75-bprohibits retaliation against whistle-blowers,and specifically allows the employee to raise

the retaliation issue before the arbitrator,regardless of the terms of the CBA. Wherethe disciplinary action is taken as retaliation,it must be dismissed. Therefore, in ignoringthe defense the arbitrator acted in excess ofhis powers and the award had to be vacated.The Court noted the possibility that discipli-nary proceedings could be retaliatory evenwhere the employee is in fact guilty. Theissue under § 75-b is the existence of theretaliatory motive, and a separate inquiryinto the issue is required to fulfill the statu-tory purpose.

Calendar Practice: 90-Day NoticesDismissals for failure to file a note of issue

pursuant to CPLR 3216, cannot be automat-ic or had by mere ministerial entry in therecords, held the Court of Appeals in

CPLR UpdateContinued From Page 1 ________________

_________________ Continued On Page 10

THE QUEENS BAR BULLETIN – JANUARY 20128

PH O T O CO R N E R

Holiday Party 2011

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

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

Joseph Levin, Tom Principe and Joe DeFelice

Photos by Walter Karling

THE QUEENS BAR BULLETIN – JANUARY 2012 9

PH O T O CO R N E R

December 15, 2011

Photos by Walter Karling

Sasha displaying the gifts that our generous members donated

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

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

THE QUEENS BAR BULLETIN – JANUARY 201210

Cadichon v Facelle.4Last year, this Update reported an earlier

decision of the Court of Appeals in thiscase.5 Supreme Court had served a CPLR3216 demand upon plaintiff’s counsel, andthe time to file a note of issue had expiredwith no note being filed. The problem wasthat there was no actual order dismissing thecomplaint. Supreme Court apparentlyviewed the dismissal as automatic. Fromwhat, then, could the plaintiff appeal?Plaintiff of course moved to vacate the

dismissal, which Supreme Court denied, andthe First Department affirmed, 3 - 2.Normally, orders denying vacatur of dis-missals are not appealable, as not being final,the final determination is the dismissal itself.The Court of Appeals initially dismissed theappeal6 from the affirmance, on its ownmotion, for non-finality. Upon plaintiff’smotion for reconsideration, the Court recog-nized that Supreme Court’s order wasambiguous as to whether the dismissalwould be automatic or not. The Court heldthat where it is unclear whether or not thedismissal was by automatic operation of astatute, rule or court order, the order denyinga motion to vacate is to be deemed the finalappealable paper. Since here the affirmanceof the denial of vacatur had a two-judge dis-sent, the appeal lay as of right, and the Courtretained jurisdiction of the appeal.We noted last year that the appeal might

serve as a vehicle for consideration ofwhether CPLR 3216 dismissals were auto-matic or not. There have been AppellateDivision opinions which approved the notionthat an automatic dismissal pursuant toCPLR 3216 results when a court issues a 90-day notice and the plaintiff fails to comply.7It was submitted here that the CPLR saysnothing which should make a CPLR 3216dismissal “automatic,” whether the requisite90-day notice is served by the defendants or

by the court, or whether or not the courtissues its notice in an order.The Court of Appeals noted that “a minis-

terial dismissal of the action without benefitof further judicial review” would be at vari-ance with the language of CPLR 3216. Thestatute allows the trial court, on its ownmotion, to dismiss the action. Where there isonly a ministerial entry of a dismissal, how-ever, there has been no motion. LikewiseCPLR 3216 (b)(3), in setting forth the con-tent of the 90-day notice, requires a warningthat the failure to file the note of issue will bethe “basis for a motion. . .for dismissal”. Aministerial dismissal is not the same thing asa motion, or a dismissal by order.8Moreover, the 2008 amendment to CPLR

205(a) requires that a dismissal for neglect toprosecute must be accompanied by a state-ment by the judge, on the record, setting forththe specific conduct resulting in the dismissal,which must demonstrate a general pattern ofdelay. While that statute was inapplicablehere, since it became effective only after theevents at issue, the necessity of “judicialinvolvement” in the dismissal is emphasized.The Court once again stated its insistence onadherence to judicial deadlines. “But where,as here, the case proceeds to the point whereit is subject to dismissal, it should be the trialcourt, with notice to the parties, that shouldmake the decision concerning the fate of thecase, not the clerk’s office.”That last point should not be overlooked.

The Court here goes beyond merely holdingthat an order is required for a 3216 dismissal.It holds that the order can only be enteredafter “notice to the parties.” This implies thatthe parties will have an opportunity to beheard and, presumably, the opportunity todevelop a record prior to dismissal.Where it is the defendants who serve the

90-day notice, the action is not to be dis-missed unless the defendants move for thedismissal and the plaintiff has an opportuni-ty to show why dismissal is unwarranted.That the notice has been served by the courtshould result in a lesser opportunity to avoid

dismissal. The Court of Appeals has held, inBaczkowski v Collins Const. Co.,9 and DiSimone v Good Samaritan Hosp.,10 thatCPLR 3216 is “extremely forgiving” of liti-gation delay. The courts are authorized todismiss under that provision, but are neverrequired to do so. Where the plaintiff canshow a reasonable excuse for delay and ameritorious claim, the courts are prohibitedfrom dismissing the action. If the court-issued 90-day notice is regarded as setting anautomatic dismissal in motion, the plaintiff isdeprived of his opportunity to show why dis-missal should not result until the action isalready dismissed.Judge Graffeo, writing for himself and

Judges Read and Smith, dissented on thegrounds that the plaintiff never raised theissue of there not having been a motion priorto dismissal. The dissent stressed that the teston the motion to vacate the dismissal was thesame as would have been applied to themotion to dismiss itself. Since plaintiff failedto justify the vacatur, he could not have suc-cessfully opposed dismissal. The dissentwould have sustained what it described as“sua sponte” dismissals. This is apparentlymeant to encompass ministerial entries ofdismissal as well as ex parte orders.Going forward, there are two sets of issues

to be worked out. Where 90-day noticesreach their deadlines, courts will have todetermine the mode of notice to the parties,and how they will be heard, before an actualdismissal can be entered.More importantly in the short run is the

status of cases like this one, where the courtshave employed the shortcut of a ministerialdismissal instead of an actual order. In theabsence of an order, this case teaches thatwithout an actual order there has been noactual dismissal, no matter what the clerkmay have entered in the records. In all suchcases, motions to reinstate the complaintsmust be granted. That is not to say that aproper dismissal motion will not lie at thatpoint. Of course it will, and in the majorityof cases will probably be properly granted.

The plaintiffs will, however, at least have theopportunity to be heard, and to try to showthat dismissals should not have resulted.Last year, the First Department decided

Umeze v Fidelis Care N.Y.,11 one of thosedecisions which is interesting only for thedissent it provoked. Defendants had moved todismiss the action, pursuant to CPLR 3216,for failure to file a note of issue after beingserved with a 90-day notice. Plaintiff pro sewas able to show sufficient merit and justifi-cation for the delay, as well as lack of intentto abandon the action, to satisfy the trial courtand the Appellate Division majority.The two-judge dissent, by Justice

Catterson, would have required the plaintiffto show justifiable excuse for the generalfive-year delay in the entire action. In sup-port of this, he cited to Sortino v. Fisher,12 a1963 decision in which the First Departmentheld that an action could be dismissed for“general delay.” Sortino set off a tug-of-warbetween the courts and the Legislature, inwhich the Legislature enacted successivelyblunter versions of CPLR 3216 to forestall“general delay” dismissals.13The Court of Appeals has now reversed

the Appellate Division and dismissed theaction.14 It did not, however, revive the “gen-eral delay” issue. Rather, in a brief review-of-submissions memorandum, it relied onthe current attitude towards CPLR 3216motions, requiring (1) a justifiable excuse forthe specific delay in failing to file a note ofissue pursuant to the 90-day notice, and (2)proof of a meritorious cause of action. TheAppellate Division majority had found goodcause for the delay in the efforts by the prose plaintiff to find counsel, which indicated alack of intent to abandon the action. Clearly,this was not enough for the Court ofAppeals.

Collateral Estoppel - Res JudicataIn Roddy v. Nederlander Producing Co. of

America, Inc.,15 the issue before the Court ofAppeals was whether a prior motion had

CPLR UpdateContinued From Page 7 ________________

_________________ Continued On Page 11

BY: THOMAS F. LIOTTI*

You’ve seen it. You have heard it. Youcannot believe that it was said, but it was.You have had to dig your way out of it orwear waders to get through it. Your meterhas gone off. You want to give your adver-sary a lie detector exam or sodiumPentothal, “the truth serum.” He reallyshould star in the sequel to Liar, Liar. Heshoots from the hip. He gives new meaningto the phrase “loose cannon” or “loose lipssink ships.”

Rule 1 - Count to ten, slowly, before lettingyour blood pressure rise to unacceptable lev-els. Breathe out, breathe in.

Rule 2 - Try to keep smiling. It’s the onlyway you will get through it.

Rule 3 - Say good morning, Your Honor.

Rule 4 -While smoke is coming out of yourears, listen to your adversary, take notes andorder the minutes. Decide whether to turnyour hearing aids up, down or to leave themat home.

Rule 5 - Check the docket number to makesure that your adversary is talking about yourcase.

Rule 6 - Try to remember why you are there.Clue - If your case is not on the calendar,leave even if your adversary is speaking ofyou.

Rule 7 - Remember these laws -

Murphy’s Law - Whatevercan go wrong will, unless thecourt grants your applicationto adjourn. Failing that, askfor an early lunch or recess.Failing that, ask for a bath-room break.

The Peter Principle of Law- Everyone reaches their high-est level of incompetency.

Newton’s Third Law - For every actionthere is an opposite and equal reaction orit’s payback time.

Parkinson’s Law - Work expandsaccording to the amount of time in whichyou have to complete it. Therefore, bill bythe nano second.

Rule 8 - Since contempt means the willfuldisobedience of a lawful court order, keepsaying that you did not know that it was anorder, that you did not understand it or hear it.

Rule 9 - If ever asked to describe your adver-sary simply say: res ipsa loquitur.

Rule 10 - If your adversary is speaking intongues or quoting foreign law, read from theBible.

Rule 11 - As your adversary argues with thejudge, practice bowing, scraping and groveling.

Rule 12 - Do the Stations of theCross on your knees at St.Patrick’s Cathedral the day beforethe start of your trial. It workedfor Imelda Marcos.

Rule 13 - Have your family priestor rabbi sit in the front row behindyou together with your father,mother, spouse and infant children.

Rule 14 - Get paid first.

Rule 15 - Get paid second.

Rule 16 - If strong on the law, pound the law.If strong on the facts, pound the facts. Ifweak on both, pound your feet.

Rule 17 -Wait for Mr. Green.

Rule 18 - Avoid ad hominem comments.Instead, point with the middle finger.

Rule 19 -Wear a crash helmet, riot shield andflak jacket to court. Bring masking tape anda straitjacket for your adversary.

Rule 20 - Report to security that your adver-sary is a crazy person and they should haveextra personnel in the courtroom and alertthe judge. Inform them that they may neednets and poles to subdue him. You haveheard that he is on medication but not takingit. They’ll need extra handcuffs, shacklesand guns drawn.

Rule 21 - The media will cover anyone mak-

ing an ass of themselves. Tell the media thatyour adversary plans to moon the judge.

Rule 22 - Ask the judge to appoint a psychi-atrist to examine your adversary. Tell thecourt that it should be done in-patient.

Rule 23 - Tell the judge that your adversaryneeds a guardian appointed.

Rule 24 - Tell the court that you have beenbitten by a Tse Tse fly and that is why youcannot stay awake during your adversary’slegal argument.

Rule 25 - Tell the judge that your adversarysuffers from a fatal disease - foot in mouth.

Rule 26 - Ask the judge whether she hasheard enough and whether you really need tosay anything? Try: “Your Honor, thank youvery much, we’ll rest on our papers.”

Rule 27 - Instead of oral argument say:“Have a great weekend, Your Honor.”

Rule 28 - Put your adversary’s name platewhere the judge’s should be and vice versa.

Rule 29 - When your adversary is not look-ing, put crazy glue under his legal pads,books, pens and on his seat.

Rule 30 - Give your adversary a present ofKaopectate on the record.

*Thomas F. Liotti is an attorney with officesin Garden City, New York.

Overcoming Bluster and Bull in the Courtroom

Thomas F. Liotti

THE QUEENS BAR BULLETIN – JANUARY 2012 11

ANSWERS TO MARITAL QUIZ ONPAGE 5

Question #1 - Did the Supreme Courtimprovidently exercise its discretion in,sua sponte, enjoining a party from bring-ing any further motions without the per-mission of the court?

Answer: No, “While public policy gen-erally mandates free access to the courts,(citations omitted) the record reflectsthat the father forfeited that right byabusing the judicial process through vex-atious litigation. (citation omitted)Scholar v. Timinisky 2011 NY Slip Op6226 (2nd Dept.)

Question #2 - May the court properlyappoint a parenting coordinator to mediatebetween parties and oversee the implemen-tation of their court-ordered parenting plan?Answer: Yes, Silbowitz v. Silbowitz 2011NY Slip Op 7026 (2nd Dept.).

Question #3 - May a court delegate to aparent coordinator the authority to resolveissues affecting the best interests of thechildren?

Answer: No, Silbowitz v. Silbowitz 2011NY Slip Op 7026 (2nd Dept.).

Question #4 - In a visitation proceeding,may a court order a parent to undergocounseling or treatment?

Answer: Yes, Matter of Smith v. DawnF.B. 2011 NY Slip Op 7062 (2nd Dept.).

Question #5 - In a visitation proceeding,may a court order a parent to undergocounseling or treatment as a condition offuture visitation or re-application for visi-tation rights?

Answer: No,Matter of Smith v. Dawn F.B.2011 NY Slip Op 7062 (2nd Dept.).

Question # 6 - If parties acquired title toreal property prior to their marriage asjoint tenants with right of survivorship,does their marriage transform the joint ten-ancy into tenants by the entirety?

Answer: No, L.L. v. B.H. 2011 NY SlipOp 21316 (Sup. Ct. Nassau CountyFalanga J.)

Question #7 - Can the rights of the partiesin Question 6 be resolved in a matrimonialaction or is a partition and recoupmentaction necessary?

Answer: A partition and recoupmentaction is unwarranted as the rights andremedies can be decided in a matrimonialaction. L.L. v. B.H. 2011 NY Slip Op 21316(Sup. Ct. Nassau County Falanga J.)

Questions #8 - If a so-ordered stipula-tion of settlement does not contain thespecific recitals mandated by CSSA, are

the provisions, concerning basic childsupport payments, “add-ons” for childcare and unreimbursed health careexpenses enforceable?

Answer: No, Bushlow v. Bushlow 2011NY Slip Op 7795 (2nd Dept.)

Question #9 - Does an appeal lie from anorder entered upon the consent of theappealing party?

Answer: No, Matter of Polche v. Polche2011 NY Slip Op 8158 (2nd Dept.)

Question #10 - Is it necessary to have apension valued, if the party seeking part ofthe pension is not asking for an immediatepayout?

Answer: No, Felix v. Felix 2011 NY SlipOp 6821 (2nd Dept.)

Answers to Marital Quiz

given the plaintiff a full and fair opportunityto litigate the issue of the defendant’s negli-gence. Plaintiff had not been directly involvedin the prior motion, and did not appreciate thatit might determine a crucial issue.Plaintiff, a theatrical dancer, had been

injured in a fall on stage allegedly due toexcess moisture from a dry ice machine usedto create a fog. Defendant Gershwin Theaterhad moved for contractual indemnificationfrom plaintiff’s employer, AbhannProductions, on the claim that the machineas well as the stage floor were underAbhann’s exclusive control. The motion wasgranted on appeal.16On the present motion, Gershwin moved

to dismiss plaintiff’s claim on the theory thatthe earlier determination established its lackof control over the machine and the floor, asbeing res judicata, collateral estoppel andlaw of the case. The Appellate Divisionnoted that the proper theory was law of thecase, since res judicata and collateral estop-pel deal with preclusion after judgment. Itheld that the issue of Gershwin’s controlover the machine and stage floor had beenapparent on the first motion, that plaintiffhad been given full notice and an opportuni-ty to be heard (on the appeal as well as themotion) and had chosen to “sit on his hands.”That the first motion was addressed to con-tractual indemnification against Abhann andnot to the dismissal of the complaint againstGershwin, or that plaintiff might not haveappreciated the effect of the order did notdeprive him of the opportunity to litigate theissue of control. It therefore affirmedSupreme Court in granting summary judg-ment on a law of the case basis.The Court of Appeals reversed, and rein-

stated the complaint in a brief memorandumon review of submissions. The earlier motionconcerned third-party indemnification, amatter in which the plaintiff had no interest.He thus had no incentive to litigate the issueat that time nor any notice that the issuemight be conclusively determined againsthim. Therefore, he did not have a full andfair opportunity to litigate the issue ofGershwin’s negligence, and the law of thecase doctrine could not be invoked to pre-clude him from litigating it now.

Commencement of ActionAn action is commenced by filing a sum-

mons and complaint.17 Once the action iscommenced, jurisdiction over the defendantis acquired by serving the summons and

complaint upon him.18 Filing first, serviceafter. If the summons and complaint arenever filed, no action has been commenced,and the complaint is subject to dismissal. Asset forth by the Court of Appeals in Harris vNiagara Falls, the defect is waivable, and isin fact waived if the defendant fails to assertan objection.19In Goldenberg v Westchester County

Health Care Corp.,20 the Court of Appealsreaffirmed that a plaintiff who manages toserve a summons and complaint without fil-ing them first cannot be saved by the 2007amendment to CPLR 2001, which allowedcorrection of minor defects in the filing.Along the way, it reaffirmed that a defen-dant who pleads affirmative defenses of lackof personal jurisdiction and the statue oflimitations has effectively objected to thelack of filing.Plaintiff initially commenced a special

proceeding for leave to file a late notice ofclaim. A complaint was attached to the peti-tion as an exhibit. The petition was granted,and plaintiff served the notice of claim.With the notice of claim plaintiff served a

summons and complaint, not bearing anyindex number. Plaintiff had not, in fact, pur-chased an index number for the action.21 Theaffidavits of service were filed, under theindex number for the special proceeding.The complaint as served contained a cause ofaction for medical malpractice due to lack ofinformed consent, and an allegation of con-tinuous treatment for a period of sevenmonths, neither of which was in the com-plaint filed in the special proceeding.The defendant served an answer, which

included defenses of lack of jurisdiction andstatute of limitations. It does not appear thateither of these defenses were framed so as tospecifically assert that the action had notbeen properly commenced. The defendantswaited until after the statute of limitationshad expired, and then moved to dismiss.Defendants purchased an index number forthe action in order to make the motion.Supreme Court granted the motion and

dismissed. The complaint filed with the spe-cial proceeding did not suffice, since nosummons was filed, and the complaint dif-fered from the one served in materialrespects. The amended CPLR 2001 did notallow the court to excuse a complete failureto file the summons and complaint. TheAppellate Division affirmed,22 as did theCourt of Appeals.The affirmative defenses of lack of per-

sonal jurisdiction and statute of limitationswere sufficient to preserve the objection tothe failure to file the summons and com-plaint. The defendants were under no obliga-

tion to move to dismiss within 60 days of theserving the answer, since the objection wasnot to the manner of service.23The error could not be excused under the

amended CPLR 2001, since the amendmentwas specifically not intended to excuse acomplete failure to file the summons andcomplaint. Recall that the amendment wasspecifically intended to ameliorate so muchof the Harris holding as required dismissalin the situation where the plaintiff had in factfiled the summons and complaint, but hadnot bought an index number specifically tostart a new action.24 The legislative memo-randum in support of the amendments statedthat it was in response to the determinationsof the Court of Appeals in Harris, as well asin the cases harmonized by Harris:Matter ofGershel v Porr,25 andMatter of Fry v Villageof Tarrytown.26 The intent of the amend-ment was to avoid dismissals for “technical,non-prejudicial defects.” Clearly stated inthe legislative memorandum, however, wasthe intent not to excuse all mistakes. A com-plete failure to file within the limitationsperiod continues to be dismissable, as is thefailure to file the appropriate initiatorypapers. “The purpose of this measure is toclarify that a mistake in the method of filing,AS OPPOSED TOA MISTAKE IN WHATIS FILED, is a mistake subject to correctionin the court’s discretion.”27The plaintiff here, having never filed the

summons and complaint at all, was not enti-tled to the benefit of the amended CPLR2001. The proposed complaint filed with thespecial proceeding, with no summonsattached, did not suffice.Note that the mistake here differs from the

mistake made in Harris, which the amend-ment does allow the court to excuse. TheclassicHarrismistake was to file a summonsand complaint intended to commence theaction, but to use an index number obtainedin a prior proceeding (as a proceeding forleave to file a late notice of claim) instead ofpurchasing a new one. Under the amendedCPLR 2001, such a mistake is excusable.

JudgmentsThe Appellate Division, Second

Department has issued two major opinions ondefault judgments, one concerning the failureto serve a reply to a counterclaim, the other ondefault judgments obtained from the clerk.Giglio v NTIMP, Inc.,28 presented the

question of default judgments on counter-claims.Robert Giglio, Sr., his brother Shawn

Giglio, and his son Robert Giglio, Jr. hadbeen drinking at Napper Tandy’s Pub, ownedby the defendant NTIMP. Shawn drove away

from the pub, with Robert, Jr. as his passen-ger, in a vehicle owned by KathleenD’Agostino. Both Shawn and Robert, Jr.,were killed when the vehicle crashed into atree. Both Shawn and Robert, Jr., were intox-icated at the time.This action was commenced by Robert,

Jr.’s mother, Susanne Giglio, together withRobert, Sr., against Napper Tandy andD’Agostino. The claims against NapperTandy were that the sale of alcohol toRobert, Jr., was unlawful as he was a minor,and that it continued to sell alcohol to Shawnwhile he was visibly intoxicated. The claimagainst D’Agostino was that she was liablefor Shawn’s operation of her vehicle, sincehe had done so with her consent.Napper Tandy’s answer was served, by

mail, on plaintiffs’ counsel on May 2, 2007.The answer included a cross-claim againstD’Agostino and a counterclaim againstRobert, Sr., for contribution. The court pre-sumed, as may we, that the claim was thatRobert, Sr., was negligent in allowingRobert, Jr., to consume alcohol, and inallowing him to drive away in a vehicle driv-en by Shawn. No reply to the counterclaimwas served.The action as against D’Agostino and

Shawn’s estate was settled some 11 monthslater, and the parties entered into a generalrelease in favor of D’Agostino andShawn’s estate. The settlement wasapproved by the Surrogate’s Court, and theproceeds were paid.On June 5, 2008, Napper Tandy served a

notice of motion for a default judgment onthe counterclaim against Robert, Sr. Notethat this is over 13 months after the serviceof the answer with the counterclaim, on May2, 2007. Plaintiffs cross-moved to dismissthe counterclaim, since the motion camemore than a year after the reply was due.Pursuant to CPLR 3215 (c), a complaint“shall” be dismissed as abandoned if theplaintiff fails to move for a default judgmentwithin a year after default.Napper Tandy disputed that its motion was

untimely. It claimed that the counterclaimwas served on plaintiff’s attorney pursuant toCPLR 303, and that therefore the time toreply was 30 days, extended to 35 days byvirtue of service having been made by mail.By this reasoning, the last day for service ofthe reply was June 6, 2007; the plaintiff wasin default as of June 7, 2007; and the motiondeadline was Monday, June 9, 2008, sinceJune 7, 2008, was a Saturday. It argued thatits motion, made on June 5, 2008, was there-fore timely.The Appellate Division disagreed. CPLR

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303 does not apply to this action. Where anon-domiciliary plaintiff commences anaction in the state, CPLR 303 operates tomake its counsel its agent for the service ofprocess in any separate action between theparties. In such a case, CPLR 320 (a) statesthat an appearance in the separate actionmust be made within 30 days. Since Robert,Sr., is in fact domiciled in New York, andresides in Farmingdale, his attorney was notan agent for the service of process in sepa-rate actions. It might also be noted that thecounterclaim does not constitute a separateaction, but is part of the main action.Therefore, the time for the reply on the

counterclaim was 20 days, as required byCPLR 3012 (a). The counterclaim havingbeen served by mail on May 2, 2007, thereply was due 25 days later, on May 27,2007. No reply having been served, Robert,Sr., was in default on the counterclaim onMay 28, 2007, and the deadline for a defaultjudgment was a year later, or May 28, 2008.The motion, not made until June 5, 2008,was untimely.Could the lateness be excused? It is clear

that CPLR 3215 (c) applies to counterclaimsas well as complaints. The court noted themandatory language of CPLR 3215 (c): thefailure to move for the default timelyrequires the court to dismiss the pleading tobe dismissed as abandoned unless sufficientcause is shown. This requires a showing of areasonable excuse for the failure to movetimely, as well as of a meritorious cause ofaction. Here, Napper Tandy made no show-ing of a reasonable excuse, focusing all ofits arguments on the timeliness issue.Without a reasonable excuse, the lateness isinexcusable and the court “shall” dismissthe pleading.The court noted that this “pitfall” does not

necessarily apply to cross-claims, dependingon whether or not the pleading asserting thecross-claim demands an answer. By virtue ofCPLR 3011, where a cross-claim does notdemand an answer, and no answer is made,the cross-claim is “deemed denied or avoid-ed.” In such a case, there can be no motionfor default judgment on the cross-claim.Where, however, the pleading asserting thecross-claim does demand an answer, the par-ties responding to the cross-claim andasserting it are both required to act, byanswering pursuant to CPLR 3011, and ifnecessary moving for a default judgmentpursuant to CPLR 3215.A second issue concerned whether or not

Napper Tandy was precluded from claimingcontribution from Shawn’s estate by the set-tlement and release. Napper Tandy com-menced a third-party action against theadministrator of Shawn’s estate, on or aboutApril 30, 2009. The administrator served ananswer, which pleaded the affirmativedefense of the release and its effect underGeneral Obligations Law § 15-108.GOL § 15-108 provides that a release

from an injured party to a tortfeasor protectsthe settling tortfeasor by relieving it from lia-bility to third persons for contribution. Thesettlement here clearly fell within the ambitof GOL § 15-108. Napper Tandy attemptedto avoid the result, by pointing to the 2007amendment to GOL § 15-108. That amend-ment removed settlements for no or nominalconsideration from the protections of thestatute, and was intended to foster the releaseof parties who turn out to be clearly freefrom liability. The trigger amount is a settle-ment of greater than one dollar.Napper Tandy argued that Shawn’s estate

was not protected from contribution by GOL§ 15-108, since it had not in fact contributedto the settlement, which was paid entirely byD’Agostino’s insurer. Here, the release infavor of D’Agostino and Shawn’s estate recit-ed consideration of $50,000. The Appellate

Division refused to look behind the languageof the release to the details of the paymentsmade. The administrator of Shawn’s estatewas therefore entitled to dismissal of thethird-party complaint against her.

In Stephan B. Gleich & Assoc. vGritsipis,29 the Second Department consid-ered the claims for which a default judgmentmay and may not be entered by the clerk,and the effectiveness of a default judgmentimproperly entered by the clerk.Recall that CPLR 3215 (a), a default judg-

ment may be entered by the clerk, withoutconsideration by a judge, if the claim is for asum certain, or a sum which may be ren-dered certain by computation, and if properproof is submitted to the clerk, and if theapplication is made within one year after thedefault.30Plaintiff commenced this action by filing a

summons with notice in the Supreme Courton August 17, 1993. The summons withnotice described the claim as being forunpaid legal fees and disbursements, forunjust enrichment and on an account stated.Service upon the defendant was made,according to the affidavit of service, bydelivery to a person of suitable age and dis-cretion at the defendant’s place of business,followed by mailing to the defendant’s lastknown place of business. There were follow-up mailings to the defendant’s last knownresidence and place of business. The mail-ings to the place of business were inenvelopes were marked “personal and confi-dential.” The defendant failed to appear oranswer.On January 7, 1994, plaintiff submitted to

the clerk an affidavit of the facts constitutinghis claim, setting forth the defendant’s agree-ment to pay fees, the hours of work per-formed by the various partners and associ-ates, and disbursements, all adding up to$66,875.41. The claim on an account statedwas supported by invoices. The clerk enteredjudgment on February 7, 1994, for the statedsum, plus costs and disbursements, for a totaljudgment of $67,245.41. This amountremained unpaid.In 2009 plaintiff commenced a second

action against the defendant, this time torenew the 1994 judgment pursuant to CPLR5014 (1). This time the defendant answered,and moved separately to vacate the 1994judgment, using the index number assignedto it. In the motion to vacate, the defendantasserted lack of personal jurisdiction in thatthe summons with notice had not been prop-erly served, and that he was unaware of thejudgment until the 2009 action was com-menced. Plaintiff opposed the motion, argu-ing that the defendant failed to show a lackof jurisdiction, sufficient to justify vacaturunder CPLR 5015 (a)(4); or a reasonableexcuse for default and a meritorious defensesufficient to justify vacatur under CPLR5015(a)(1).Supreme Court denied the motion, finding

the defendant’s denials of service to be con-clusory, that there was no showing of eithera reasonable excuse or a meritoriousdefense.On appeal, the defendant continued argu-

ing for vacatur under CPLR 5015 (a)(1) and(4). For the first time, however, defendantalso argued that the plaintiff’s inclusion of anequitable claim in the summons with noticeleft the clerk without authority to enter thejudgment in the first place, regardless of thesufficiency of jurisdiction.The Appellate Division began by sustain-

ing so much of the order as held that defen-dant failed to show that either CPLR 5015(a)(1) or (4) justified vacatur of the 1994judgment. The process server’s affidavit wassufficient to show that jurisdiction had beenobtained, and the defendant failed to ade-quately rebut it. As to a reasonable excusefor the default, the only excuse tendered bythe defendant was the claimed lack of juris-diction, and the court also found insufficient

the claimed meritorious defense.The court then considered whether the

judgment was properly entered by the clerkunder CPLR 3215. Even though the defen-dant had not raised the issue below, theAppellate Division held that he could arguethat the claim was not one for the clerk, sincethe issue was one of law only, which wasapparent on the face of the record, and whichcould not have been avoided if raised prop-erly in the first instance.As noted, CPLR 3215 (a) allows the clerk

to enter judgment where the claim is for asum certain or for a sum which can be madecertain by computation. This means that theremedy is allowed where there can be nodoubt as to the amount due; that is, to liqui-dated and indisputable claims such as moneyjudgments and negotiable instruments. Here,the claim was for legal fees which were notset forth in a retainer agreement. If anything,the claim sounded in quantum meruit, whichrequires proof of (1) performance of servic-es in good faith, (2) acceptance of the servic-es; (3) expectation of compensation; and (4)the reasonable value of the services. To theextent that the summons with notice allegeda claim for unjust enrichment, proof wasrequired that (1) the defendant was enriched;(2) at the plaintiff’s expense, and (3) thedefendant should not be allowed in equityand good conscience to retain the amountclaimed. These are both equitable claims,which depend on there being no contractbetween the parties. They are not for sumscertain, and cannot properly be entertainedby the clerk on an application under CPLR3215 (a). The claim for an account stated,however, is based upon the defendant’sretention of billing statements and failure toobject within a reasonable time. These allowan inference that the recipient agrees withthe statements as to the amount owed. Anaccount stated therefore does allow entry ofa clerk’s default judgment.The Second Department agreed with the

First Department31 in holding that a clerk’sdefault judgment may not be entered where,as here, the plaintiff claims both a sum cer-tain and other claims which are not for sumscertain. The Second Department noted thatby entering judgment in such a case the clerkis either severing the non-certain causes ofaction or rendering them academic, either ofwhich are properly judicial functions.Therefore, the clerk had been withoutauthority to enter the default judgment,which was rendered void.Finally, the court considered the position

of the parties after vacatur of the judgment.Does the vacatur leave the finding of defaultintact? In that case, the matter need only pro-ceed to a judicial inquest. Or, does thevacatur of the judgment also vacate the find-ing of default, opening the possibility that thedefault might be found to be excusable andthe parties placed in pre-default status. Thecourt found numerous opinions on both sides,which it reconciled by considering whetherthere had been consideration of the issues ofreasonable excuse and meritorious defense.Where these issues had been considered andit had been determined that the defendantshad not made a sufficient showing, there wasno basis to vacate the finding of default andthe matters proceeded to inquest. Where theissues had not been raised or considered, orwhere the default had been found excusableat the appellate level, upon vacatur of theunauthorized judgment the finding of defaultshould also be vacated and the matter remit-ted for further proceedings on that basis. Thatis to say, the plaintiff would be free to movefor a proper judicial default judgment, andthe defendant would be equally free to movefor leave to answer, awaiting a determinationby the court on the merits of the respectivemotions. A defendant who has not answeredtimely may still move to compel an accept-ance of his answer pursuant to CPLR 3012(d), upon a showing of reasonable excuse.That showing of reasonable excuse is the

same that must be made on a motion tovacate a default judgment.Here, where the Supreme Court had found

that there was neither a reasonable excusefor the default or a meritorious defense, andthe findings had been affirmed on appeal,there was nothing left to do but conduct aninquest on the claims raised in the 1993 sum-mons with notice.The court closed by noting that a plaintiff

who has asserted both sum certain and non-sum certain claims is not completely fore-closed from applying to the clerk in the eventof a default. The plaintiff is allowed to vol-untarily withdraw one or more claims beforethe answer is served or within 20 days ofservice of its pleading, whichever is earlier.32Assuming that the plaintiff makes the appli-cation within that time, it can include in hisaffidavit of facts a statement of voluntarydiscontinuance of the non-sum certainclaims.33 The clerk could then properly enterjudgment on the sum-certain claims. If theplaintiff has not acted within that time, appli-cation for leave to discontinue the non-sumcertain claims would have to be made to thecourt, in which case the application fordefault judgment might as well be made, too.There has been a statutory amendment

which eases the plaintiff’s burden here. Aspart of a package of technical changes, theLegislature has amended CPLR 3217 (a)(1)to extend the plaintiff’s time in which tomake a voluntary discontinuance.34 The vol-untary discontinuance may now be made atany time before the responsive pleading hasbeen served, which means for purposes ofdiscussion of this case the plaintiff may vol-untarily discontinue the non-sum certaincauses of action at any time while seeking aclerk’s default judgment. So much of CPLR3217 (a)(1) as refers to a 20-day limitation isnow restricted to cases where a responsivepleading is not required.

JurisdictionCPLR 306-b has been amended, to pro-

vide that the time for service of initiatorypapers (i.e., a summons and complaint, sum-mons with notice, third-party summons andcomplaint, petition with notice of petition ororder to show cause) is to run from the com-mencement of the action, and not necessari-ly from the filing of the initiatory papers.Ordinarily, of course, the action is com-menced when the initiatory papers are filed,and so there would seem to be little need forthis change. Recall, however, that where acourt finds that circumstances prevent theimmediate filing of the initiatory papers, itmay make an order allowing the filing at atime and date not more than 5 days later.This can happen where a party seeks a tem-porary restraining order at a time when theClerk’s office is closed. In that case, it is thesigning of the order that commences theaction. The initiatory papers may then haveto be served before the filing, which mightbe interpreted as violating the terms of theold 306-b (“Service. . .shall be made within120 days after the filing. . .”). The amend-ment removes any ambiguity.

In Penguin Group (USA) v AmericanBuddha36 the Court of Appeals consideredthe impact of Internet commerce on long-arm jurisdiction in copyright-infringementcases. The precise question concerned theplace of injury.American Buddha is a non-profit corpora-

tion, based in Arizona, which operates twoonline libraries, allowing its members freeaccess to, and downloading of, the storedworks. The servers for the libraries are inOregon and Arizona. Penguin is a prominentpublisher, based in NewYork. It alleges thatAmerican Buddha violated its copyrights byuploading four copyrighted works to thelibraries. The copying and uploading wasdone in Oregon or Arizona. AmericanBuddha maintains that its activities are fair

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use by a library.Penguin sued in US District Court for the

Southern District of New York. Jurisdictionwas predicated on CPLR 302 (a)(3)(ii), pro-viding for long-arm jurisdiction over non-domiciliaries committing tortious acts out ofthe state which cause injuries in the state.American Buddha moved to dismiss for lackof jurisdiction, on the grounds that Penguinhad not suffered any injury in NewYork.The District Court agreed with American

Buddha and dismissed. It viewed the injuryas taking place in Oregon or Arizona, withany in-state injury being “purely derivative”as a result of Penguin’s residence here. Theinjury took place where the copying anduploading took place, in Oregon or Arizona.The Second Circuit asked the Court of

Appeals to resolve the question of whetherthe site of injury in such cases is “the loca-tion of the infringing action or the residence.. .of the copyright holder?” The question asoriginally certified was not limited toInternet cases. Interestingly, the Court ofAppeals accepted the Second Circuit’s invi-tation to reformulate the question, specifyingthat it was limiting the question to “copy-right infringement cases involving theuploading of a copyrighted printed workonto the Internet”. The only element ofjurisdiction before the Court was the situs ofthe injury.37The Court contrasted two of its prior deci-

sions. In Fantis Foods v StandardImporting38 the Court had found that therewas no direct injury in New York where theclaim was for cheese intended to be shippedto Standard (the third-party plaintiff) inChicago, but which was diverted by thethird-party defendant either in Greece orwhile in transit at sea. The mere fact thatStandard was incorporated and had itsoffices in New York was not sufficient tolocate the injury here. In Sybron Corp., vWetzel,39 the Court found a NewYork injurywhere Sybron was a New York manufactur-er, and the defendant had hired had hired oneof its employees in order to obtain Sybron’strade secrets. The claim there was based onmore than Sybron’s New York domicile,being supported by Sybron’s claim that thetrade secrets were acquired here and that thedefendant was likely to use them to obtainSybron’s New York customers. Both FantisFoods and Sybron had relied upon a federalcase, American Eutectic Welding Alloys vDytron Alloys,40 where the court had allowedthe place where a plaintiff lost business as apermissible situs of injury.In Penguin Group (USA) v American

Buddha, the problem was that the “intangi-ble and ubiquitous” nature of the Internetmade it difficult to identify and locate theinjury. The plaintiff’s claim was that thedefendant had made the copyrighted materi-als available to anyone with an Internet con-nection, in New York or anywhere in theworld. Unlike the situation in AmericanEutectic and in traditional commercial torts,there is no one place where the plaintiff maybe said to have lost business. The Courttherefore found it “illogical” to extend theanalysis of those cases here.The Court found a more persuasive ration-

ale by looking to the “unique bundle ofrights” given to copyright holders under fed-eral law. These rights result in the “right to toexclude others from using his property.”41The New York resident copyright holdertherefore suffers a greater injury frominfringement than the indirect loss heldinsufficient in Fantis Foods. Consider, forexample, the lessening of the holder’s profitmotive to publish the works, which havealready been published by the alleged pirate.This is especially true in the case of bookssuch as those involved here, which whileclassics surely fit the description of “margin-

ally profitable.”42The nature of Internet commerce, there-

fore, takes this case out of the analyticalframework applicable to traditional tortcases. In the traditional case, the location oflost sales or customers can more readily beascertained, but in Internet copyrightinfringement cases the entire purpose of thetort is to make the work accessible to anyonewith an Internet connection, including NewYork. The loss to a NewYork copyright hold-er is more direct than the loss to a NewYorkimporter of cheese (as in Fantis Foods). TheCourt found that the nature of Internet com-merce and the particular rights accorded tocopyright holders made the case closer to thecognizable New York injury in Sybron thanthe merely indirect injury in Fantis Foods. Ittherefore found that the plaintiff had indeedsuffered an injury in NewYork, for purposesof long-arm jurisdiction under CPLR 302(a)(3)(ii).The Court noted that it was not holding

that jurisdiction would exist in favor of anyNew York resident alleging copyrightinfringement. There were important ele-ments of jurisdiction which were not part ofthe certified question, notably whether or notthe the non-New York defendant could rea-sonably expect the tortious act would haveconsequences in New York, and whether itderives substantial revenue from interstate orinternational commerce. There is also theconstitutional due process questions ofwhether the non-New York defendant has“minimum contacts” with New York, andwhether compelling it to defend its conducthere comports with fair play and substantialjustice. Those questions were retained by theSecond Circuit and must be determined by it.

MiscellaneousCPLR 2101(f) has been amended43 to

extend the permissible time to raise objec-tions to defects in form of documents, fromtwo days to fifteen days, running from thereceipt of the objectionable paper. Theobjecting party is still required to return thedocuments to the serving party, with a state-ment of particular objections. Since the stat-ed consequence of an untimely objection isthe waiver of the objection, the legislativememo accompanying the amendment stateda concern that an unreasonably short perioddid not give the recipient sufficient time toconsider its objection. The purpose of theamendment is to change the focus of any lit-igation over the objections from the timelimit to the merits of the objection.The same chapter amended CPLR 3217

(a)(1) to extend the time in which a plaintiffmay voluntarily discontinue a claim, byallowing the voluntary discontinuance at anytime before a responsive pleading is served.

Motion PracticeYun Tung Chow v Reckitt & Colman44

ostensibly concerned the standards for adesign-defect products liability case. It ismentioned here for the concurrence by JudgeSmith, who pointed out that the result wasactually due to New York’s view of the bur-den of proof on summary judgment motions,and that in a federal court the motion proba-bly would have been granted.The product involved consisted of pure

sodium hydroxide crystals. Sodium hydrox-ide, commonly known as lye, is highly cor-rosive and dangerous to deal with.45 Yet, itwas marketed to ordinary consumers as adrain cleaner. The package bore warningsthat the user should wear eye protection andrubber gloves, and that the product should bespooned into the clogged drain one table-spoonful at a time, and that the user shouldpour water down the drain only after waitingfor 30 minutes. The plaintiff, who could notread English and testified that he had neverread the instructions or warnings on thelabel, made a solution of 3 spoonfuls of thelye with 3 cups of water in an aluminum con-tainer, and poured the solution down the

drain.46 Immediately, there was a splashbackof the solution onto his face. He sustainedburns and lost the sight in an eye.Plaintiff sued, claiming defective design

and failure-to-warn product liability claims.Defendant moved for summary judgment,and its proof apparently consisted only of anattorney’s affirmation that the product isinherently dangerous, and that the dangersare well known. Supreme Court granted themotion, as to both causes of action. TheAppellate Division affirmed, with a two-judge dissent as to the dismissal of the defec-tive design cause of action. Plaintiff appealedas of right on the defective design issue.The Court of Appeals reversed. The

essence of the defective design claim lies ina risk vs utility analysis. That is, “knowinghow dangerous lye is, was it reasonable fordefendants to place it into the stream of com-merce as a drain cleaning product for use bya layperson?” The mere affirmation of defen-dant’s counsel as to the nature and risks of theproduct being common knowledge, did notaddress this issue and so defendants failed toshow that they were entitled to judgment as amatter of law. Having failed to make thisshowing, the burden never shifted to theplaintiff to establish a triable issue of fact.47Judge Smith concurred, pointing out that

at trial it is the plaintiff who will have theburden of establishing a prima facie case asto defective design. In response to themotion, plaintiff offered an expert affidavit,which proposed alternatives to lye, but failedto show that any safer alternatives wouldhave performed as well at a reasonable cost.The only specific alternative mentioned bythe expert would concededly take longer towork, without any specification of howmuch longer. If this were all the plaintiffadvanced at trial, the result would be direct-ed verdict for the defendant. Why, then, wassummary judgment denied?In federal cases, where the burden at trial

is would be on the responding party, a sum-mary judgment movant can satisfy its burdenby showing the absence of evidence to sup-port the respondent’s case.48 This record infederal court might then “probably” lead togranting the motion.

PleadingsCPLR 3025(b) has been amended49 so as

to require a motion to amend a pleading to beaccompanied by a copy of the proposedamended pleading, clearly showing the pro-posed changes.

CPLR 1008 allows a “third-party defen-dant to assert against the plaintiff in his orher answer any defenses which the third-party plaintiff has to the plaintiff’s claim.” In2008, in Charles v Long Island CollegeHospital,50 the Second Department held thata third-party defendant was entitled to dis-missal of the third-party complaint on thegrounds that the summons and complainthad not been served on the defendant/third-party plaintiff, even though the defendantitself had not raised any objection to juris-diction. Worse, the complaint against thedefendant/third-party plaintiff was not dis-missed. That decision can be criticized, sincethe defendant/third-party plaintiff was with-in its rights to waive the jurisdictional objec-tion, and its service of an answer withoutraising it was the equivalent of proper serv-ice upon it. Nevertheless, this was not theonly appellate case so holding.51 A prudentdefendant, anticipating commencing a third-party action, would therefore be compelledto raise any jurisdictional defenses it mightotherwise waive, lest it be subjected to thesame double whammy.The Legislature has now overruled the

holding in Charles, by amending CPLR1008 to prohibit third-party defendants fromasserting that the summons and complaint(or summons with notice, or notice of peti-tion and petition) was not properly served orthat jurisdiction was not obtained over the

third-party plaintiff.52

Settlements and ReleasesCPLR 3217(a)(1) has been amended53 to

extend the time in which a plaintiff may vol-untarily discontinue an action. The old pro-vision allowed a voluntary discontinuance,without order or stipulation, before theresponsive pleading was served or within 20days of the service of the pleading assertingthe claim, whichever was earlier. This wasfelt to be too restrictive, and so it has beenamended to allow a voluntary discontinu-ance before the responsive pleading is servedor 20 days after service of the pleadingasserting the claim, whichever is later.

When a party releases another fromclaims, known or unknown, in languagebroad enough to include unknown fraudclaims, it is bound by that release as to theunknown fraud claims. It cannot avoid therelease thereafter by claiming that it did notunderstand the depth of the fraud. Rather, afraud will avoid the release only if the relea-sor can point to a fraud separate from thetransactions which are the subject of therelease.In Centro Empresarial Cempresa S.A. v

América Móvil,54 the Court of Appealsdealt with such a situation. The transactionsinvolved an Ecuadorian telecommunica-tions company, Conecel, in which thedefendants held a 60% interest, and theplaintiffs each had a minority.55 In 2002 theplaintiffs became convinced that the defen-dants were not acting in good faith, andwere not providing them with financialinformation concerning Conecel and TWE.Pursuant to one of the parties’ underlyingagreements56 the plaintiffs were able to sellthe defendants 50% of their holdings. Overthe course of 2002, plaintiffs claim that thethe defendants refused to negotiate in goodfaith concerning the buyout of their remain-ing holdings, but that the defendantsrefused to negotiate, thus violating anotherof their underlying agreements.57In 20023, the defendants provided

Conecel’s balance sheet and made other rep-resentations, all of which tended to showthat Conecel was not performing as antici-pated. Defendants then offered to buy outthe plaintiffs’ remaining interest at the low-est price allowed under their agreements,the “floor price.” Plaintiffs, allegedly rely-ing on the defendants’ representations,agreed. The agreements embodying the saleprovided for two releases relevant here. Thefirst, the “Members Release,” released thedefendants from“all manner of actions. . .claims anddemands, liability, whatsoever, in law orequity, whether past, present or future,actual or contingent, arising under or inconnection with the Agreement AmongMembers.”The second relevant release, the “Master

Release,” was in similar language, but had aproviso specifically excepting fraud claimsfrom the scope of the release.Plaintiffs claimed, in this action, that they

found out that the information aboutConecel’s financial condition was false onlyin 2008, when the results of an audit by theEcuadorian government were released.Plaintiffs claimed $900 million in damages.Defendants moved to dismiss, pursuant to

CPLR 3211 (a)(1 and 5), based on therelease. Supreme Court denied the motion.The Appellate Division reversed and grantedthe motion. The Appellate Division held thatthe “Members Release” included any poten-tial claim that the defendants had misrepre-sented Conecel’s true worth. Other than thepotential fraud covered by the release itself,plaintiffs did not allege any fraud in theinducement. Plaintiffs knew that they hadnot been given a complete account ofConecel’s finances, yet did not except fraudclaims from the “Members Release,” or take

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other steps to protect themselves.There was a two-judge dissent, which

found fraudulent inducement in the failure ofthe defendants, who as majority shareholdershad a fiduciary responsibility to the plain-tiffs, to fully reveal their tortious conductprior to obtaining the release.The unanimous Court of Appeals began

by repeating the well-known principles that avalid release is a bar to actions on claims itcovers. As with other contracts, a releasemay be set aside for duress, illegality, fraudor mutual mistake. The burden rests on thedefendant to show the existence of therelease, and once that burden is met the bur-den shifts to the plaintiff to show circum-stances which might render it void. Releasesmay include unknown fraud claims, if that iswhat the parties intend and the release is“fairly and knowingly made.”58 In order tochallenge the release of a fraud claim on thegrounds of fraudulent inducement, the plain-tiff must show a fraud separate from the sub-ject of the release. Otherwise, no fraud claimcould ever be validly released.Here, the “Members Release” was suffi-

ciently broad so as to cover fraud claimsunknown at the time. The release could beavoided if there had been a fraud in theinducement other than those actuallyreleased, but plaintiffs did not allege one.Rather, the fraud alleged by the plaintiffswas the fraud covered by the release: falseinformation concerning Conecel andTWE. Plaintiffs seek to be avoid therelease in that they were unaware of thevalue of the fraud claims they were releas-ing. A release should not be a startingpoint for new litigation.The Court was unpersuaded by the argu-

ment based on fiduciary duty. While defen-dants, as majority shareholders, were fiduci-aries with regard to the plaintiffs, the plain-tiffs were sophisticated principals, and therelationship was no longer one of trust.Plaintiffs were aware that the defendantswere acting in their own interest. The defen-dants, in these circumstances, were notrequired to reveal their tortious conduct as acondition of obtaining their release.Further, the plaintiffs did not allege justifi-

able reliance on the defendants’ alleged mis-representations. Where a party is able toascertain the truth or falsity of the represen-tations made, it must do so. If it fails to makeuse of ordinary means of protecting itself, itwill not be allowed to assert that it wasdefrauded. Plaintiffs here knew that they hadnot received adequate information as to thevalue of Conecel and TWE, yet chose toaccept the offers made by the defendantswithout insisting on proper disclosure, war-ranties or even excepting fraud from thescope of the release. Having been so lax, theplaintiffs cannot ask for the law’s protection.Similarly, in Arfa v Zamir,59 decided the

same day as Centro Empresarial, the plain-tiffs knew that the defendant was untrust-worthy, yet chose to enter into an agree-ment concerning their real estate manage-ment business which contained a generalrelease. They later sued, based on allega-tions of fraud predating the release. Sincethe plaintiffs did not allege that they wereinduced to sign the release by a fraud otherthan that which the subject of the lease, theaction was precluded by the release. As inCentro Empresarial, plaintiffs in Arfa alsofailed to show justifiable reliance, sincethey entered into the release without inves-tigating his actions.

TrialCPLR 2302 and 3122 have been amended

to make clear that trial subpoenas ducestecum for medical records can be issued tonon-party record custodians without anauthorization by the patient, but only by a

court and not by an attorney.60The problem was an unforeseen conse-

quence of the 2002 amendments to these andother sections, allowing the service of dis-closure subpoenas for medical records bycounsel, but only where the subpoenas wereaccompanied by authorizations from thepatients. The subpoenas were required tobear a warning in bold-face type that theyneed not be responded to unless they wereaccompanied by the authorizations. Theintent of the amendments was to protectmedical providers, served with subpoenasduring disclosure, from violating the physi-cian-patient privilege.The problem came when a Civil Court

judge held, in Campos v Payne, that theamendments applied to trial subpoenas aswell as disclosure subpoenas.61 The judgeheld that the absence of an authorization leftthe court, as well as the attorneys, withoutauthority to issue a subpoena duces tecumfor trial records. This allowed a recalcitrantplaintiff to frustrate the production ofrecords for trial. The legislative memoran-dum states that the decision in Campos is“widely followed.”CPLR 2302 has been amended by adding

a sentence providing that in the absence ofan authorization, a trial subpoena may beissued, but only by a court. CPLR 3122 hasbeen amended by the addition of a newparagraph (2), providing that a trial subpoe-na issued by a court does not have to beaccompanied by an authorization. Othersubpoenas are still subject to the authoriza-tion requirement.In People v Guay,62 the Court of Appeals

addressed the issue of a hearing-impairedjuror. While sustaining the decision of thetrial court to dismiss the juror for cause, theCourt also noted that the trial court shouldhave addressed the prospective juror’s limi-tations and the possible accommodationsthat might have allowed him to serve despitethem. The determination, made under theState Constitution and the Judiciary Law, isapplicable to civil trials as well as this crim-inal trial.This was a criminal prosecution for first-

degree rape of a child and related offenses.During jury selection, one of the jurors indi-cated that he was having trouble hearing. Itbecame apparent during questioning of thepanel by counsel that this juror was notunderstanding the questions. He respondedaffirmatively to a question as to whether heknew someone who had confessed to a crimehe did not commit, when further questioningrevealed that he did not know if the person(his son) had confessed and in fact felt thathe was guilty.When asked whether he wouldhave problems hearing if counsel remem-bered to speak up, the juror said that hewould be “pretty good” as long as he was inthe front row of the jury box. The Peoplemoved to dismiss the juror for cause, on thegrounds that he had trouble hearing thecourt. Since the matter would require childwitnesses, and that such witnesses frequent-ly had trouble speaking up, the Peopleargued that the juror could miss parts of thechild’s testimony. The defense opposed, onthe grounds that the juror had indicated hewould not have a problem during trial. Thetrial court noted its own observation that thejuror was having difficulty hearing the courtand counsel, despite his answer to the con-trary. The court concluded that the juror’shearing was a sufficient problem to disquali-fy him, and granted the challenge for cause.The defendant was convicted and

appealed, in part due to the disqualificationof the juror. The Appellate Division affirmedthe conviction.In the Court of Appeals, defendant argued

that the court should have inquired furtherinto the juror’s impairment, and should haveaccommodated the impairment rather thandismissing the juror. The Court began bynoting that jury service is a privilege andduty of citizenship. This is balanced, of

course, by the rights of the accused and therequirements of a fair trial. The JudiciaryLaw specifies that a juror must be able tounderstand and communicate in the Englishlanguage.63It was held in People v Guzman64 that a

hearing impairment does not itself disqualifya juror. A court confronted with a hearing-impaired juror must determine the juror’sability to understand the evidence, evaluate itrationally, deliberate with other jurors effec-tively, and comprehend the legal principlesas instructed by the court. If the court isaware of a reasonable accommodation thatwould allow the prospective juror to performhis duties while not interfering with thedefendant’s rights, the accommodationshould be made. The determination is left tothe trial court’s discretion.Here, the record supported the conclusion

that the particular juror’s impairment wouldhave interfered with the performance of hisduties. His incorrect answer to the questionabout false confessions combined with thetrial court’s observations of his actions dur-ing the voir dire showed that the juror wasnot understanding everything going on infront of him. Further, the trial court was notasked to provide any accommodation for theprospective juror. The record was bare of anyindication that audio equipment was avail-able that might have helped the juror, orwhether he was in fact willing to use it. Thus,the trial court did not err in failing to order anaccommodation on its own motion.While not finding error, however, the

Court did state that it would have been betterif the trial court had acted on its own toinquire about the juror’s limitations and pos-sible accommodations, such as an assistiveamplification device. The inquiry should be“reasonable and tactful.”

VenueThere are many things in the CPLR so

basic that most of us never give them athought, secure in our thorough under-standing. So, it comes as something of ashock when a court construes one of themin a way contrary to the common under-standing, especially when it tells us that itis simply applying the “plain meaning” ofthe words. That is what the Court ofAppeals did in Simon v Usher,65 whichlooked at CPLR 2103(b)(2) and came awaywith a different reading than most lawyerswould have reached.Recall that CPLR 2103 (b)(2) deals with

one of the simplest, most matter-of-fact actsin civil practice, the service of interlocutorypapers by mail. Service is made by simplydropping them in the mailbox (properlyaddressed, sealed and stamped, of course).You’ve still got that right. The problem camewith the next part of 2103(b)(2), which pro-vides that for a five-day extension to anytime period running from the service of apaper, where the service is made by mail.That provision was commonly understood tobenefit the recipient of the service, so that ifthe recipient had a specified time in which toreact to the paper being served, the timewould be extended to account for possibledelays in mailing. Thus, Professor Siegel’sNewYork Practice, in a thorough discussion,observes that 2103(b)(2) includes “the provi-sions about the additional days the recipientgets for responding to a paper when it isserved by mail. . . .the party required to takethe responsive step... The 5 days are added tothe stated period when any mail-servedpaper requires a responsive step...”66In Simon v Usher, it was the party making

the service who was subject to the timelimit, and who needed the 5-day extensionin order to meet it. The action had beencommenced in Bronx County, and onAugust 20, 2009, the defendants served, bymail, their answer with a demand for achange of venue to Westchester County.Pursuant to CPLR 511(b), unless the plain-tiff consents to the change of venue within 5

days, the defendant may move for a changeof venue within 15 days of service of thedemand. Plaintiffs did not consent to thechange of venue, but defendants did notmake the motion until 20 days after serviceof the demand, that is, on September 9,2009. Supreme Court granted the change ofvenue, but the Appellate Divisionreversed.67 The Appellate Division held,without discussion, that the motion wasuntimely, and that the defendants were notentitled to the 5-day extension. It cited toThompson v Cuadrado,68 where it haddenied the extension to a defendant whosemotion to dismiss on jurisdictional groundswas made 61 days after service of itsanswer. CPLR 3211(e), of course, providesthat the defense is waived unless the motionis made within 60 days. The court inThompson noted that the legislative historyof the 1999 amendment to CPLR 5513 evi-dences the Legislature’s understanding thatthe 5-day extension for service by mail didnot apply to the party making the mailingunless there was a specific provision provid-ing that it did. 69The Court of Appeals majority, however,

felt that the plain meaning of CPLR2013(b)(2) was otherwise. It provides to anysituation where a time limit runs from theservice of a paper and service is made bymail, and not only to those situations wherethe party relying on the extension is respond-ing to papers served by its adversary.Moreover, the defendants were, in effect,responding to the plaintiffs’ failure to con-sent to the change of venue.There was a dissent, by Judge Pigott, who

relied on the legislative history of the 1982amendment to CPLR 2103(b)(2), whichextended the extension to 5 days from theoriginal 3. That history set forth the legisla-tive purpose as being to allow the partyreceiving the mailed papers to prepare itsresponse. Here, the plaintiffs were entitled tothe 5-day extension in deciding whether ornot to consent to the change of venue, sincethe demand had been mailed to them. Thedefendants, however, were not responding toany papers, and were not entitled to anyextension.Note, however, that this ruling is applica-

ble only to time periods running from theservice of a paper, not to those runningfrom the filing of a paper. Service is effec-tive upon mailing, but filing is effectiveonly upon receipt by the clerk. So, to takethe most prominent example, the time inwhich to move for summary judgment runsfrom the filing of the note of issue, not fromthe service of a copy upon the movingparty.70 Or, similarly, the ruling is inappli-cable to those time periods running from aparty’s receipt of the papers served. So, forexample, the time in which to object todefects in form of a paper runs from receiptand not service.71 Note, also, that under thefacts of this case the defendants’ motionwould have been untimely had they chosento serve the demand for a change of venueby overnight delivery service instead of bymail. That service only gets an extension ofone business day.72

* David H. Rosen served in the SupremeCourt, Queens County, as Principal LawClerk to Justice Arthur W. Lonschein from1980 to 2000, and as Court Attorney/Refereefrom 2001 to 2010. He is now in privatepractice. Any comments may be addressed todavidhrosenesq@gmail.com

1. Siegmund Strauss, Inc. v East 149th RealtyCorp., 81 A.D.3d 260, 919 N.Y.S.2d 1 [1 Dept.,2010]; Leave to Appeal Granted in Part,Dismissed in Part, 17 N.Y.3d 936 [2011]2. Matter of Aho, 39 N.Y.2d 241, 383

N.Y.S.2d 285 [1976]3. Matter of Kowaleski (New York State Dept.

of Correctional Servs.), 16 N.Y.3d 85, 917N.Y.S.2d 82 (December 21, 2010)4. Cadichon v Facelle, 18 NY3d 230, ___

CPLR UpdateContinued From Page 13 ________________

_________________Continued On Page 15

THE QUEENS BAR BULLETIN – JANUARY 2012 15

NYS2d ___, 2011 NY Slip Op. 08447[November 21, 2011]5. Cadichon v Facelle, 15 N.Y.3d 877, 913

N.Y.S.2d 121 [2010]6. Cadichon v Facelle, 15 N.Y.3d 767, 906

N.Y.S.2d 811[July 1, 2010]7. Parkin v Ederer, 27 A.D.3d 633, 810

N.Y.S.2d 901 [2d Dept., 2006]; Rezene vWilliams, 22 A.D.3d 656, 804 N.Y.S.2d 335 2dDept., 2005]8. Truly automatic dismissals, that is, those

taking effect without a judge’s order, are few andfar between in the CPLR. CPLR 3404 is one,taking effect where an action is stricken from thetrial calendar and not restored within a year. Offthe top of my head, I can’t think of anotherexample.9.Baczkowski v D. A. Collins Const. Co., 89

NY2d 499, 655 NYS2d 848 [1997]10.Di Simone v Good Samaritan Hosp., 100

NY2d 632, 768 NYS2d 735 [2003] discussedabove.11. Umeze v. Fidelis Care New York, 76

A.D.3d 873, 908 N.Y.S.2d 186 [1 Dept., 2010]12. Sortino v. Fisher, 20 A.D.2d 25, 245

N.Y.S.2d 186 [1963]13. This history is discussed in Cohn v.

Borchard Affiliations, 25 N.Y.2d 237, 303N.Y.S.2d 633 [1969]14. Umeze v. Fidelis Care New York, 17

N.Y.3d 751, 929 N.Y.S.2d 67 [2011]15. Roddy v. Nederlander Producing Co. of

America, Inc., 15 N.Y.3d 944, 916 N.Y.S.2d578, [2010]; reversing 73 A.D.3d 583, 904N.Y.S.2d 5 [1 Dept., 2010]16. Roddy v. Nederlander Producing Co. of

Am., Inc., 44 A.D.3d 556, 844 N.Y.S.2d 231[2007]17. Or, a summons with notice (CPLR 304).18. This basic point used to be specified by

CPLR 304. An amendment left the languageout. Fascinatingly, there is no longer any explic-it statement in the CPLR that service of the sum-mons confers jurisdiction.19. Harris v Niagara Falls Bd. of Ed., 6

N.Y.3d 155, 811 NYS2d 299 [2006]20. Goldenberg v Westchester County Health

Care Corp., 16 N.Y.3d 323, 921 N.Y.S.2d 619[March 23, 2011]21. The most common mistake is to recycle

the index number of the notice-of-claim pro-ceeding on the summons and complaint, but

plaintiff here didn’t even do that.22. Goldenberg v Westchester County Health

Care Corp., 68 A.D.3d 1056, 892 N.Y.S.2d 463[2d Dept., 2009]23. See CPLR 3211 (e)24. L. 2007, ch. 52925. Matter of Gershel v Porr, 89 NY2d327,

653 NYS2d 82 [1996]26. Matter of Fry v Village of Tarrytown, 80

NY2d 714, 658 NYS2d 205 [1997]27. L. 2006, ch. 529, Legislative

Memorandum. Emphasis in original.28. Giglio v NTIMP, Inc., 86 A.D.3d 301, 926

N.Y.S.2d 546 [2d Dept., 2011]29. Stephan B. Gleich & Assoc. v Gritsipis, 87

A.D.3d 216, 927 N.Y.S.2d 349 [2d Dept., 2011]30. Also pursuant to CPLR 3215 (a), the clerk

may enter judgment for costs where there is adismissal for neglect to proceed, and the appli-cation is made within a year after the default.31. Geer, Du Bois & Co. v Scott & Sons Co.,

25 A.D.2d 423, 266 N.Y.S.2d 580 [1 Dept.,1966]; Accord, Woodward v. Eighmie Moving &Storage, Inc., 151 A.D.2d 892, 543 N.Y.S.2d187 [3 Dept.,1989];White v. Weiler, 255 A.D.2d952, 680 N.Y.S.2d 784 [4th Dept., 1998]32. CPLR 3217 (a)33. I confess to having been unclear how

that was to work in practice. Even where serv-ice of the summons and complaint (or, as here,the summons with notice) is made by personaldelivery, the defendant has 20 days in which toanswer. The time for a voluntary discontinu-ance was, at most, 20 days from the service ofthe summons. On what day could the plaintiffhave both applied for a default judgment andmade a voluntary discontinuance? Now thatthe time for a voluntary discontinuance hasbeen extended by amendment, the conundrumdisappears.34. L. 2011, ch. 473, § 4, eff. January 1, 201235. L. 2011, ch 473, eff. 1-01-201236. Penguin Group (USA) Inc. v. American

Buddha, 16 N.Y.3d 295, 921 N.Y.S.2d 171[March 24, 2011]37. “a plaintiff relying on [CPLR 302

(a)(3)(ii)] must show that (1) the defendant com-mitted a tortious act outside New York; (2) thecause of action arose from that act; (3) the tor-tious act caused an injury to a person or proper-ty in New York; (4) the defendant expected orshould reasonably have expected the act to haveconsequences in New York; and (5) the defen-dant derived substantial revenue from interstateor international commerce. If these five ele-ments are met, a court must then assess whethera finding of personal jurisdiction satisfies feder-

al due process”. [citation omitted]38. Fantis Foods v Standard Importing Co.,

49 N.Y.2d 317, 425 N.Y.S.2d 783 [1980]39. Sybron Corp. v. Wetzel, 46 N.Y.2d 197,

413 N.Y.S.2d 127 [1978]40. American Eutectic Welding Alloys Sales

Co. v. Dytron Alloys Corp., 439 F.2d 428 [2dCirc., 1971]41. Citing eBay Inc. v MercExchange, L.L.C.,

547 US 388, 392 [2006]42. The books were: “Oil!” by Upton Sinclair;

“It Can’t Happen Here” by Sinclair Lewis; “TheGolden Ass” by Apuleius, as translated by E.J.Kenney; and “On the Nature of the Universe” byLucretius, as translated by R.E. Latham43. L. 2011, ch 473, eff. 1-01-201244. Yun Tung Chow v Reckitt & Colman, Inc.,

17 N.Y.3d 29, 926 N.Y.S.2d 377 [May 10, 2011]45. Not only is it corrosive, when it dissolves

in water the reaction liberates a great of heat andis consequently liable to spatter, as any highschool chemistry student should know. But,many ordinary consumers never took (orlearned) high school chemistry, and many whodid have forgotten all about it.46. Allowing pure sodium hydroxide to come

into contact with aluminum is a particularly badidea. Look at this video to understandwhy: http://www.youtube.com/watch?v=16dshZ5GHZw The product label warned against usingaluminum utensils, apparently without anyexplanation. I don’t remember my high schoolchemistry class mentioning this reaction.47. See, Gilbert Frank Corp. v Federal Ins.

Co., 70 N.Y.2d 966, 525 N.Y.S.2d 793 [1988];Alvarez v Prospect Hosp., 68 N.Y.2d 320, 508N.Y.S.2d 923 [1986]48. Celotex Corp. v Catrett, 477 US 317, 325

[1986]49. L. 2011, ch 473, eff. 1-01-201250. Charles v Long Island College Hospital,

47 A.D.3d 665, 850 N.Y.S.2d 173 [2008]51. See, Prigent v Friedman, 264A.D.2d 568,

695 N.Y.S.2d 79 [1st Dept., 1999]52. L. 2008, ch. 264, effective August 3, 201153. L. 2011, ch 473, eff. 1-01-201254. Centro Empresarial Cempresa S.A. v

América Móvil, S.A.B. de C.V., 17 N.Y.3d 269,929 N.Y.S.2d 3 [June 7, 2011]55. The details of this deal, involving hun-

dreds of millions of dollars in internationalfinance, have been simplified for purposes ofdiscussion. The plaintiffs had originally owned asubstantial portion of Conecel, and in the origi-nal deal the parties created a new entity, TelmexWireless Ecuador (“TWE”). TWE held the actu-al shares of Conecel, and the parties held their

interest in Conecel through it. There were sever-al agreements between the parties, including a“Master Agreement” governing the parties’interests in TWE; a “Limited Liability CompanyAgreement,” governing the parties’ responsibili-ties in running TWE; an “Agreement AmongMembers,” governing the parties rights if defen-dants chose to “roll up” Conecel with its otherLatin American telecom companies for the pur-pose of selling securities; and a “PutAgreement,” giving plaintiffs the right to compeldefendants to buy plaintiffs’ shares in TWE at aset price during set times.56. The “Put Agreement.”57. The “Agreement Among Members.”58. Mangini v McClurg, 24 NY2d 556, 566-

567 [1969]59. Arfa v Zamir, 17 N.Y.3d 737, 929

N.Y.S.2d 11 [June 07, 2011]60. L. 2011, ch. 307, effective August 3. 201161. Campos v Payne, 2 Misc.3d 921, 766

N.Y.S.2d 535 [Civ. Ct., Richmond Cty., 2003]62. People v Guay, 18 NY3d 16, 935 NYS2d

567 [November 15, 2011]63. Judiciary Law § 510(4). The Court noted

that the provision of Judiciary Law § 512 (3),allowing dismissal of a juror due to mental orphysical conditions which caused the juror to beincapable of performing in a reasonable manner,was repealed in 1995.64. People v Guzman, 76 NY2d 1 [1990]65. Simon v Usher, 17 N.Y.3d 625, 934

N.Y.S.2d 362 [October 20, 2011]66. Siegel, New York Practice, § 202 [5th Ed]

[emphases added]67. Simon v Usher, 73 A.D.3d 415, 899

N.Y.S.2d 601 [1st Dept., 2010]68. Thompson v Cuadrado, 277 A.D.2d 151,

717 N.Y.S.2d 109 [1st Dept., 2000]69. The amendment to CPLR 5513 did make

a specific provision to the contrary, in the case ofa party’s time to appeal being extended whereservice of the notice of entry was made by mail,regardless of which party made the service.70. Coty v County of Clinton, 42A.D.3d 612,

839 N.Y.S.2d 825 [3rd Dept., 2007]; Mohen v.Stepanov, 59 A.D.3d 502, 873 N.Y.S.2d 687 [2dDept., 2009]; Group IX, Inc. v Next Print. &Design Inc., 77 A.D.3d 530, 909 N.Y.S.2d 434[1st Dept., 2010] [overruling previous 1stDepartment cases to the contrary]71. CPLR 2101(f), recently amended to

increase the time to fifteen days from receipt (L.2011, ch 473, eff. 1-01-2012)72. CPLR 2103(b)(6)

CPLR UpdateContinued From Page 14 _______________

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