You are here: / Civil Procedure
, ,

EVEN THOUGH THE DEFENDANT CORPORATION DID NOT HAVE AN OFFICE IN NEW YORK COUNTY AND THE TRAFFIC ACCIDENT OCCURRED IN NASSAU COUNTY WHERE THE CORPORATION DID HAVE AN OFFICE, VENUE WAS APPROPRIATELY PLACED IN NEW YORK COUNTY BASED ON DEFENDANT’S CERTIFICATE OF INCORPORATION (FIRST DEPT).

The First Department, reversing Supreme Court, determined the defendants’ motion to change venue in this traffic accident case should not have been granted. Even though the accident didn’t occur in New York County and defendant corporation did not have an office in New York County, the certificate of incorporation designated New York County as the location of its principal office and the certificate controls:

Plaintiff properly placed venue in New York County based upon the corporate defendant’s initial certificate of incorporation designating New York County as the location of its principal office although the company has no office there (see CPLR 503 [c] …).

While defendants annexed to their moving papers the police report for the subject motor vehicle accident indicating that defendants’ vehicle was registered to a Nassau County address on the day of the accident and an affidavit from the corporate defendant’s Vice President averring that its office was in Nassau County when the action was commenced, the corporate residence designated in the initial certificate of incorporation controls for venue purposes … . There was no evidence of an amended certificate of incorporation that changed the principal place of business to Nassau County.

The general rule is that a transitory action, such as the subject motor vehicle accident, when other things are equal, should be tried in the county where the cause of action arose … . This rule, however, is predicated on the convenience of material nonparty witnesses who are to be present at trial … . While the situs of the accident provides a basis to change venue to Nassau County, defendants failed to sustain their burden, as the party moving for a discretionary change of venue pursuant to CPLR 510 (3), that there are material witnesses who would be inconvenienced by a trial in New York County … . Marte v Lampert, 2023 NY Slip Op 00375, First Dept 1-26-23

Practice Point: Here the traffic accident happened in Nassau County where defendant corporation had an office. But defendant’s certificate of incorporation indicated defendant’s principal office was in New York County. The certificate controls, even though the defendant corporation did not actually have an office in New York County.

 

/0 Comments/by
, , ,

THE ONE-YEAR-AND-NINETY-DAY TIME LIMIT FOR A SUIT AGAINST A SCHOOL DISTRICT IN GENERAL MUNICIPAL LAW 50-I(1)(C) IS SUBJECT TO THE INFANCY TOLL IN CPLR 208 (SECOND DEPT). ​

The Second Department, reversing (modifying) Supreme Court, determined the infancy toll (CPLR 208) applies to the one year and 90-day time limit for a suit against a school district (General Municipal Law 50-i(1)(c)). Therefore the application for leave to file a late notice of claim in this action on behalf of an infant student against a school district should have been granted in its entirety:

Supreme Court erred in concluding that any claim by the infant plaintiff based upon incidents that occurred prior to May 31, 2017, would be time-barred. CPLR 208 tolls a statute of limitations for the period of infancy, including the limitation set forth in General Municipal Law § 50-i(1)(c) … . It is undisputed that the infant plaintiff was an infant at the time of the events underlying this action and at the time that the action was commenced. M. S. v Rye Neck Union Free Sch. Dist., 2023 NY Slip Op 00343, Second Dept 1-25-23

Practice Point: The infancy toll of the statute of limitations in CPLR 208 applies to the one-year-ninety-day time limit for a suit against a school district in General Municipal Law 50-i(1)(c).

/0 Comments/by
,

HERE NOTICE OF THE DENIAL OF PETITIONER’S APPLICATION TO THE TOWN FOR THE APPROVAL OF A FENCE AND GATE WAS MAILED TO PETITIONER; PETITIONER WAS ENTITLED TO THE PRESUMPTION THE NOTICE ARRIVED FIVE DAYS AFTER IT WAS MAILED; THEREFORE PETITIONER’S ARTICLE 78 PROCEEDING WAS TIMELY COMMENCED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the Article 78 action was timely brought. The petitioner’s application to the town Architectural Review Board for approval of a fence and a gate was denied. The denial determination was filed with the town clerk on April 26, 2019, and mailed to the petitioner on April 29, 2019. The Article 78 proceeding was commenced on August 29, 2019. Supreme Court held the Article 78 was time-barred but failed to add the five days for mailing:

“A proceeding pursuant to CPLR article 78 must be commenced within four months after the determination to be reviewed becomes final and binding on the petitioner” … . A determination becomes “‘final and binding upon the petitioner’ when the petitioner receives notice that the agency has ‘reached a definitive position on the issue that inflicts actual, concrete injury and . . . the injury inflicted may not be prevented or significantly ameliorated by further administrative action or by steps available to the [petitioner]'” … . Proof of proper mailing gives rise to a rebuttable presumption that the determination was received by the petitioner five days after mailing (see CPLR 2103[b][2]…).

Here, based on the undisputed evidence demonstrating that the mailing of the determination to the petitioner occurred on April 29, 2019, it is presumed that the petitioner received the determination on May 4, 2019. Thus, his time to commence the instant proceeding did not expire until four months later, on September 4, 2019. Matter of Fiondella v Town of E. Hampton Architectural Review Bd., 2023 NY Slip Op 00319, Second Dept 1-25-23

Practice Point: Here the denial of petitioner’s application to the town for approval of a fence and gate was mailed to petitioner. Therefore the four-month statute of limitations for commencement of Article 78 actions started five days after the denial was mailed, not on the day it was mailed.

 

/0 Comments/by
, ,

IN THIS FORECLOSURE ACTION, THE BANK’S FAILURE TO EXPLAIN WHY AN AFFIDAVIT DEMONSTRATING THE NOTICE OF DEFAULT WAS PROPERLY MAILED WAS NOT SUBMITTED WITH THE INITIAL MOTION FOR SUMMARY JUDGMENT PRECLUDED A MOTION FOR LEAVE TO RENEW (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion for lease to renew in this foreclosure action should not have been granted. Supreme Court initially denied the bank’s motion for summary judgment because the proof the notice of default was properly mailed was insufficient. The bank made a motion for leave to renew and submitted an affidavit which Supreme Court deemed sufficient. The Second Department held that the bank’s failure to explain why the affidavit wasn’t produced for the bank’s initial motion precluded renewal:

In support of that branch of its motion which was for leave to renew, the plaintiff submitted the affidavit of Alicia Hernandez, who averred that the required notice of default was mailed by first-class mail and that the address to which the notice of default was sent was the actual notice address. The only explanation offered by the plaintiff for its failure to submit the Hernandez affidavit on its prior motion was that it reasonably believed that the evidentiary submission it had made on the prior motion was sufficient to establish its prima facie case. This contention is devoid of merit. “A party seeking summary judgment should anticipate having to lay bare its proof and should not expect that it will readily be granted a second or third chance” … . In the instant matter, the plaintiff failed to demonstrate any valid reason why the Hernandez affidavit could not have been submitted on its prior motion. Since the Hernandez affidavit was submitted without demonstrating a reasonable justification for failing to submit it on the prior motion, renewal should have been denied … . JPMorgan Chase Bank N.A. v EY Bay Ridge, LLC, 2023 NY Slip Op 00311, Second Dept 1-25-23

Practice Point: Here in this foreclosure action, the bank’s failure to explain why proof of proper mailing of the notice of default was not presented in the initial summary judgment motion required the denial of the bank’s motion for leave to renew.

 

/0 Comments/by
, ,

NEW YORK DID NOT HAVE LONG-ARM OR PERSONAL JURISDICTION OVER THE ITALIAN MANUFACTURER OF A HOSE USED AS A COMPONENT IN A DISHWASHER MADE AND SOLD BY A NONPARTY (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined New York did not have long-arm or personal jurisdiction over an Italian company which manufactured a hose used as a component in a dishwasher made and sold by a nonparty:

… [T]he defendant was an Italian corporation with its business located in that country. It manufactured, sold, and distributed its goods in Italy, and had no office or agent in New York. The plaintiff failed to show that the defendant purposefully availed itself of the privilege of conducting activities in New York so as to subject it to long-arm jurisdiction pursuant to CPLR 302(a)(1) … . The plaintiff also failed to make a prima facie showing that personal jurisdiction exists under CPLR 302(a)(3).

Since the defendant was not subject to the jurisdiction of New York, the plaintiff’s service of process upon it was not valid (see CPLR 313 …). Economy Premier Assur. Co. v Miflex 2 S.p.A., 2023 NY Slip Op 00303,Second Dept 1-25-23

Practice Point: Here plaintiff did not demonstrate the Italian company which manufactured a component of a dishwasher purposefully availed itself of the privilege of conducting business in New York. Therefore New York did not have long-arm or personal jurisdiction over the Italian company.

 

/0 Comments/by
,

THE SECOND DEPARTMENT SEARCHED THE RECORD AND AWARDED SUMMARY JUDGMENT TO A NONAPPEALING PARTY IN THIS SLIP AND FALL CASE (SECOND DEPT).

The Second Department noted that it has to power to search the record and award summary judgment to a party which did not appeal. This was a slip and fall case and decedent’s estate (the nonappealing party) was a defendant. The evidence demonstrated decedent (Kass) did not have actual or constructive knowledge of the debris on the sidewalk which allegedly caused plaintiff to fall:

Although Kass did not properly appeal from the order, this Court has the authority to search the record and grant summary judgment to a nonappealing party with respect to an issue that was the subject of a motion before the Supreme Court … . Upon searching the record, we award Howard Alan Kave, as representative of Kass’s estate, summary judgment dismissing the complaint insofar as asserted against him based upon the same rationale which supports the award of summary judgment in favor of the Mall [i.e., no actual or constructive notice of the condition]. Chiamulera v New Windsor Mall, 2023 NY Slip Op 00300, Second Dept 1-25-23

Practice Point: The appellate division has the power to search the record and award summary judgment to a  nonappealing party.

 

/0 Comments/by

THE TEN-MONTH DELAY BEFORE SEEKING TO AMEND THE COMPLAINT AND DEFENDANT’S SPECULATIVE ALLEGATION OF PREJUDICE WERE NOT SUFFICIENT GROUNDS FOR DENYING THE MOTION TO AMEND (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion to amend the complaint should have been granted. The ten-month delay in seeking the amendment was not a sufficient ground for denying the motion:

A party may amend a pleading “at any time” by leave of the court (CPLR 3025[b] …). “‘In the absence of prejudice or surprise resulting directly from the delay in seeking leave, such applications are to be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit'” …  The determination to permit or deny amendment is committed to the sound discretion of the trial court … . “‘In exercising its discretion, the court should consider how long the party seeking the amendment was aware of the facts upon which the motion was predicated [and] whether a reasonable excuse for the delay was offered'” … . However, “[m]ere lateness is not a barrier to the amendment. It must be lateness coupled with significant prejudice to the other side, the very elements of the laches doctrine” … . “The party opposing the application has the burden of establishing prejudice, which requires a showing that the party has been hindered in the preparation of [its] case or has been prevented from taking some measure in support of [its] position”  … .

… [Defendant] failed to demonstrate that it would be surprised or prejudiced by the proposed amendments … . The details concerning the communications between the parties regarding the plaintiff’s claims were “premised upon the same facts, transactions or occurrences alleged in the original complaint” … and merely elaborated on the same theory of liability alleged in the original complaint … . [Defendan’s] contention that evidence may have been lost in the months following the independent medical examination was too speculative to demonstrate any prejudice from the plaintiff’s delay … . Flowers v Mombrun, 2023 NY Slip Op 00206, Second Dept 1-18-23

Practice Point: Here the ten-month delay before moving to amend the complaint was not a sufficient ground for denial of the motion. The defendant’s allegation of prejudice caused by the delay was speculative.

 

/0 Comments/by
,

NO ONE OBJECTED TO THE VERDICT SHEET BEFORE THE VERDICT AND JUROR AFFIDAVITS ALLEGING CONFUSION ARE NOT TO BE CONSIDERED EXCEPT IN EXTRAORDINARY CIRCUMSTANCES NOT PRESENT HERE; THE MOTION TO SET ASIDE THE VERDICT SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the verdict should not have been set aside on the ground of jury confusion. No objection was made to the verdict sheet until after the verdict and the juror affidavits alleging confusion should only be considered in extraordinary circumstances:

The trial court should not have set aside the verdict based on a determination that the verdict sheet was, on its face, unclear and confusing. None of the parties or the court perceived any lack of clarity until after the jury was discharged, and there was no evidence in the trial record of substantial juror confusion … . Although the court stated that it gave no consideration to the posttrial juror affidavits stating that they believed that they were supposed to deduct from the damage award the amount of plaintiff’s comparative fault, that was the only evidence of jury confusion provided by plaintiff. However, “[ j]uror affidavits should not be used to impeach a jury verdict absent extraordinary circumstances,” not present here …   Moreover, plaintiff did not object to the verdict sheet or the charge until after the jury was discharged, and therefore, waived such objections … . Suarez v Ades, 2023 NY Slip Op 00175, First Dept 1-12-23

Practice Point: The verdict should not have been set aside on jury-confusion grounds. No one objected to the verdict sheet before the verdict and the juror affidavits alleging confusion should only be considered in extraordinary circumstances not present in this case.

 

/0 Comments/by
, ,

PLAINTIFFS’ COUNSEL’S GOOD-FAITH AFFIRMATION DID NOT INCLUDE DETAILS OF ANY EFFORTS TO RESOLVE THE DISCOVERY ISSUE AND WAS THEREFORE INADEQUATE; PLAINTIFFS’ MOTION TO COMPEL DEFENDANT TO SUBMIT TO A DEPOSITION UNDER THREAT OF PRECLUSION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

​The Second Department, reversing Supreme Court, determined the motion compelling defendant to appear for a deposition under threat of preclusion should not have been granted because plaintiffs’ counsel’s good-faith affirmation was inadequate:

Pursuant to 22 NYCRR 202.7(a) and (c), a motion relating to disclosure must be accompanied by an affirmation from moving counsel attesting to a good faith effort to resolve the issues raised in the motion, including the time, place, and nature of the consultation as well as the issues discussed. Here, the affirmation of good faith submitted by the plaintiffs’ counsel in support of their motion to compel disclosure and for other related relief failed to provide any detail of their efforts to resolve the issues. Therefore, the plaintiffs’ motion should have been denied … . Muchnik v Mendez Trucking, Inc., 2023 NY Slip Op 00100, Second Dept 1-11-23

Practice Pont: Here the affidavit plaintiffs’ counsel submitted did not detail the efforts made to resolve the discovery issue and was therefore inadequate. Therefore Supreme Court should not have granted plaintiffs’ motion to compel defendant’s deposition under threat of preclusion.

 

/0 Comments/by
, ,

​HERE THERE IS AN UNRESOLVED QUESTION ABOUT WHETHER PLAINTIFF IS ENTITLED TO WORKERS’ COMPENSATION BENEFITS; SUPREME COURT SHOULD GRANTED SUMMARY JUDGMENT TO DEFENDANTS AND REFERRED THE MATTER TO THE WORKERS’ COMPENSATION BOARD (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the matter should have been referred to the Workers’ Compensation Board and therefore defendants’ motion for summary judgment in this slip and fall case should have been granted:

The plaintiff allegedly was injured when she fell at certain property owned by the defendants (hereinafter the property). Thereafter, the plaintiff commenced this action against the defendants to recover damages for personal injuries. The defendants moved for summary judgment dismissing the complaint, contending that the plaintiff was injured in the course of her employment as a housekeeper/household employee at the property and that the Workers’ Compensation Law provided the exclusive remedy for the damages alleged in the complaint. The Supreme Court denied the motion, as premature, without prejudice to renew.

Primary jurisdiction with respect to determinations as to the applicability of the Workers’ Compensation Law has been vested in the Workers’ Compensation Board (hereinafter the Board) and it is therefore inappropriate for the courts to express views with respect thereto pending determination by the Board … . “Where the issue of the applicability of the Workers’ Compensation Law is in dispute, and a plaintiff fails to litigate that issue before the Board, a court should not express an opinion as to the availability of compensation, but should refer the matter to the Board because the Board’s disposition of the plaintiff’s compensation claim is a jurisdictional predicate to the civil action” … .

Here, the Supreme Court should have referred the matter to the Board for a hearing and determination as to whether the plaintiff is relegated to benefits under the Workers’ Compensation Law … . Lall v Harnick, 2023 NY Slip Op 00080, Second Dept 1-11-23

Practice Point: Any question about whether plaintiff is entitled to Workers’ Compensation benefits must be resolved by the Workers’ Compensation Board. Here in this slip and fall case Supreme Court should have granted defendants’ motion for summary judgment and referred the matter to the Workers’ Compensation Board.

 

/0 Comments/by

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

Copyright © 2023 New York Appellate Digest, LLC
Site by CurlyHost | Privacy Policy