You are here: / Civil Procedure
, ,

COMPLAINT DID NOT SUFFICIENTLY DESCRIBE THE GOODS FOR WHICH PLAINTIFF WAS SEEKING PAYMENT IN THIS BREACH OF CONTRACT ACTION AS REQUIRED BY CPLR 3016, THEREFORE DEFENDANT DID NOT HAVE TO SPECIFICALLY DISPUTE EACH ITEM, A GENERAL DENIAL WAS SUFFICIENT, PLAINTIFF’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that plaintiff’s motion for summary judgment in this breach of contract action should not have been granted. The criteria for a motion pursuant to CPLR 3016 (f) alleging the failure to pay for delivered goods were not met because the complaint did not sufficiently describe the goods and the prices. Therefore a general denial, as opposed to specific denials re: the items listed in the complaint, was sufficient. In addition defendant alleged the goods were not timely delivered, which is a valid defense that does not require specifically disputing each item described in the complaint:

In an action involving, inter alia, goods sold and delivered, CPLR 3016(f) permits a plaintiff to “set forth and number in his [or her] verified complaint the items of his [or her] claim and the reasonable value or agreed price of each.” “To meet the requirements of CPLR 3016(f), a complaint must contain a listing of the goods or services provided, with enough detail that it may readily be examined and its correctness tested entry by entry'” … . If the complaint meets these requirements, the defendant may not generally deny allegations of the complaint, but must, instead, specifically dispute the items on the plaintiff’s list … .

Here, the complaint failed to comply with CPLR 3016(f). The three invoices failed to state the price of each individual invoice item, or the date when each item was delivered. Although it was acknowledged that partial payment was made, the plaintiff did not specify what the partial payment was for. The plaintiff also alleged that the defendant made a partial payment toward one invoice without specifying to which of the invoiced items the defendant’s payment was applied … .

In any event, even assuming  CPLR 3016(f) was complied with, a general denial is sufficient where a defense to the cause of action pursuant to CPLR 3016(f) speaks to the “entirety of the parties’ dealings” … . In this case, the defense—that the plaintiff breached the contract by untimely delivering the items in the contract—goes to the entirety of the parties’ dealings. Further, damages awarded on the counterclaim may offset liability for goods sold and delivered if the circumstances warrant it … . SSG Door & Hardware, Inc. v APS Contr., Inc., 2018 NY Slip Op 07481, Second Dept 11-7-18

CIVIL PROCEDURE (COMPLAINT DID NOT SUFFICIENTLY DESCRIBE THE GOODS FOR WHICH PLAINTIFF WAS SEEKING PAYMENT IN THIS BREACH OF CONTRACT ACTION AS REQUIRED BY CPLR 3016, THEREFORE DEFENDANT DID NOT HAVE TO SPECIFICALLY DISPUTE EACH ITEM, A GENERAL DENIAL WAS SUFFICIENT, PLAINTIFF’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/CONTRACT LAW (COMPLAINT DID NOT SUFFICIENTLY DESCRIBE THE GOODS FOR WHICH PLAINTIFF WAS SEEKING PAYMENT IN THIS BREACH OF CONTRACT ACTION AS REQUIRED BY CPLR 3016, THEREFORE DEFENDANT DID NOT HAVE TO SPECIFICALLY DISPUTE EACH ITEM, A GENERAL DENIAL WAS SUFFICIENT, PLAINTIFF’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/DEBTOR-CREDITOR (BREACH OF CONTRACT, CIVIL PROCEDURE, COMPLAINT DID NOT SUFFICIENTLY DESCRIBE THE GOODS FOR WHICH PLAINTIFF WAS SEEKING PAYMENT IN THIS BREACH OF CONTRACT ACTION AS REQUIRED BY CPLR 3016, THEREFORE DEFENDANT DID NOT HAVE TO SPECIFICALLY DISPUTE EACH ITEM, A GENERAL DENIAL WAS SUFFICIENT, PLAINTIFF’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/CPLR 3016 (COMPLAINT DID NOT SUFFICIENTLY DESCRIBE THE GOODS FOR WHICH PLAINTIFF WAS SEEKING PAYMENT IN THIS BREACH OF CONTRACT ACTION AS REQUIRED BY CPLR 3016, THEREFORE DEFENDANT DID NOT HAVE TO SPECIFICALLY DISPUTE EACH ITEM, A GENERAL DENIAL WAS SUFFICIENT, PLAINTIFF’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))

,

COURT HAD DISCRETION TO ACCEPT A BELATED ORDER OF REFERENCE SUBMITTED AFTER THE 60-DAY DEADLINE IN 22 NYCRR 202.48 IN THIS FORECLOSURE ACTION, LAW OF THE CASE DOCTRINE DOES NOT APPLY TO A DISCRETIONARY ORDER (SECOND DEPT).

The Second Department determined Supreme Court properly exercised its discretion to accept a belated order of reference in this foreclosure action. The court noted that the law of the case doctrine does not apply to a discretionary ruling:

In this action to foreclose a mortgage, the Supreme Court denied the plaintiffs’ motion for summary judgment on the complaint. On appeal, this Court reversed that determination … . Thereafter, the plaintiffs moved, inter alia, for an order of reference. The Supreme Court, among other things, granted that branch of the motion and directed the plaintiffs to submit an order of reference along with certain supporting documents. The plaintiffs failed to submit the order of reference and supporting documents to the court, allegedly because the documents were lost in the mail.

The plaintiffs made a second motion for an order of reference. The Supreme Court denied this motion without prejudice, finding that the plaintiffs abandoned their motion for an order of reference since they failed to submit the order of reference within 60 days after the signing and filing of the order directing submission, without showing good cause for their failure, in violation of 22 NYCRR 202.48(a). The plaintiffs then moved, inter alia, in effect, to extend the time to submit an order of reference, and for an order of reference. In the order appealed from, the court granted those branches of the plaintiffs’ motion, excusing the plaintiffs’ failure to submit some of the supporting documents the court had directed them to provide in its earlier order.

” It is within the sound discretion of the court to accept a belated order or judgment for settlement'” . “Moreover, a court should not deem an action or judgment abandoned where the result would not bring the repose to court proceedings that 22 NYCRR 202.48 was designed to effectuate, and would waste judicial resources'” … . Solomon v Burden, 2018 NY Slip Op 07480, Second Dept 11-7-18

CIVIL PROCEDURE (BELATED ORDER OR JUDGMENT FOR SETTLEMENT, COURT HAS DISCRETION TO ACCEPT A BELATED ORDER OF REFERENCE SUBMITTED AFTER THE 60-DAY DEADLINE IN 22 NYCRR 202.48 IN THIS FORECLOSURE ACTION, LAW OF THE CASE DOCTRINE DOES NOT APPLY TO A DISCRETIONARY ORDER (SECOND DEPT))/FORECLOSURE (BELATED ORDER OR JUDGMENT FOR SETTLEMENT, COURT HAS DISCRETION TO ACCEPT A BELATED ORDER OF REFERENCE SUBMITTED AFTER THE 60-DAY DEADLINE IN 22 NYCRR 202.48 IN THIS FORECLOSURE ACTION, LAW OF THE CASE DOCTRINE DOES NOT APPLY TO A DISCRETIONARY ORDER (SECOND DEPT))/22 NYCRR 202.48 (BELATED ORDER OR JUDGMENT FOR SETTLEMENT, COURT HAS DISCRETION TO ACCEPT A BELATED ORDER OF REFERENCE SUBMITTED AFTER THE 60-DAY DEADLINE IN 22 NYCRR 202.48 IN THIS FORECLOSURE ACTION, LAW OF THE CASE DOCTRINE DOES NOT APPLY TO A DISCRETIONARY ORDER (SECOND DEPT))/LAW OF THE CASE DOCTRINE (BELATED ORDER OR JUDGMENT FOR SETTLEMENT, COURT HAS DISCRETION TO ACCEPT A BELATED ORDER OF REFERENCE SUBMITTED AFTER THE 60-DAY DEADLINE IN 22 NYCRR 202.48 IN THIS FORECLOSURE ACTION, LAW OF THE CASE DOCTRINE DOES NOT APPLY TO A DISCRETIONARY ORDER (SECOND DEPT))

, ,

PETITIONER WAS A PARTY ALONG WITH DECEDENT IN SEVERAL ACTIONS WHICH RESULTED IN PENDING APPEALS, PETITIONER THEREFORE HAD STANDING TO SEEK THE APPOINTMENT OF AN ADMINISTRATOR OF THE ESTATE OF THE DECEDENT, SURROGATE’S COURT REVERSED (SECOND DEPT).

The Second Department, reversing Surrogate’s Court, determined that petitioner had standing to seek the appointment of an administrator of the estate of the decedent who was a party, along with petitioner, is several actions which resulted in appeals pending before the Second Department:

In this proceeding, the petitioner, the founder of Five Towns College, seeks the appointment of an administrator for the estate of John D. Quinn (hereinafter the decedent), a former member of the college’s board of trustees. Prior to the decedent’s death, the petitioner and decedent were parties in a number of actions that resulted in four appeals pending before this Court … . Those appeals were automatically stayed pending the substitution of a legal representative for the decedent pursuant to CPLR 1015(a).

The Surrogate’s Court dismissed the petition, finding that the petitioner lacked standing to bring the petition. The petitioner, in effect, moved for leave to reargue the dismissal of the petition, and upon reargument, the court adhered to its original determination.

Upon reargument, the Surrogate’s Court should have found that the petitioner has standing to bring the petition. SCPA 1002(1) provides, in relevant part, that “a person interested in an action . . . in which the intestate . . . , if living, would be a proper party may present a petition to the court having jurisdiction praying for a decree granting letters of administration to him or to another person upon the estate of the intestate.” In this case, the decedent was named as a party in the actions in which appeals are pending before this Court, and the petitioner, as a defendant in those actions and an appellant before this Court, has an interest in those actions. Thus, pursuant to SCPA 1002(1), the petitioner has standing to petition the Surrogate’s Court for the appointment of an administrator for the decedent’s estate. Matter of Quinn, 2018 NY Slip Op 07433, Second Dept 11-7-18

TRUSTS AND ESTATES (PETITIONER WAS A PARTY ALONG WITH DECEDENT IN SEVERAL ACTIONS WHICH RESULTED IN PENDING APPEALS, PETITIONER THEREFORE HAD STANDING TO SEEK THE APPOINTMENT OF AN ADMINISTRATOR OF THE ESTATE OF THE DECEDENT, SURROGATE’S COURT REVERSED (SECOND DEPT))/CIVIL PROCEDURE (TRUSTS AND ESTATES, PETITIONER WAS A PARTY ALONG WITH DECEDENT IN SEVERAL ACTIONS WHICH RESULTED IN PENDING APPEALS, PETITIONER THEREFORE HAD STANDING TO SEEK THE APPOINTMENT OF AN ADMINISTRATOR OF THE ESTATE OF THE DECEDENT, SURROGATE’S COURT REVERSED (SECOND DEPT))/APPEALS (TRUSTS AND ESTATES, CIVIL PROCEDURE, (PETITIONER WAS A PARTY ALONG WITH DECEDENT IN SEVERAL ACTIONS WHICH RESULTED IN PENDING APPEALS, PETITIONER THEREFORE HAD STANDING TO SEEK THE APPOINTMENT OF AN ADMINISTRATOR OF THE ESTATE OF THE DECEDENT, SURROGATE’S COURT REVERSED (SECOND DEPT))/SURROGATE’S COURT PROCEDURE ACT (SPCA) (PETITIONER WAS A PARTY ALONG WITH DECEDENT IN SEVERAL ACTIONS WHICH RESULTED IN PENDING APPEALS, PETITIONER THEREFORE HAD STANDING TO SEEK THE APPOINTMENT OF AN ADMINISTRATOR OF THE ESTATE OF THE DECEDENT, SURROGATE’S COURT REVERSED (SECOND DEPT))/CPLR 1015 (TRUSTS AND ESTATES, PETITIONER WAS A PARTY ALONG WITH DECEDENT IN SEVERAL ACTIONS WHICH RESULTED IN PENDING APPEALS, PETITIONER THEREFORE HAD STANDING TO SEEK THE APPOINTMENT OF AN ADMINISTRATOR OF THE ESTATE OF THE DECEDENT, SURROGATE’S COURT REVERSED (SECOND DEPT))

,

PLAINTIFF ENTITLED TO PREJUDGMENT INTEREST AT THE STATUTORY RATE IN THIS CONVERSION ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff was entitled to interest at the statutory rate based on the value of the property at the time and place of conversion:

On a prior appeal in this action, this Court awarded summary judgment to the plaintiff, inter alia, on the cause of action to recover damages for conversion in the sum of $69,500, representing the amount of estate funds that were wrongfully converted by the defendant Rick Barrett. The Supreme Court subsequently entered an amended judgment that awarded the plaintiff the sum of $69,500 but failed to award prejudgment interest at the statutory rate of 9% per annum on that sum. The plaintiff appeals from so much of the amended judgment as failed to award prejudgment interest at the statutory rate on the $69,500 damages award.

“The usual measure of damages for conversion is the value of the property at the time and place of conversion, plus interest” … . Indeed, CPLR 5001(a) provides for the award of prejudgment interest upon sums awarded for the deprivation of or interference with another’s property, and relevant case law clearly establishes that such interest is properly awarded as part of the recovery on a cause of action sounding in conversion … . Moreover, interest is to be awarded at the statutory rate of 9% per annum … . Scotti v Barrett, 2018 NY Slip Op 07477, Second Dept 11-7-18

CONVERSION (PLAINTIFF ENTITLED TO PREJUDGMENT INTEREST AT THE STATUTORY RATE IN THIS CONVERSION ACTION (SECOND DEPT))/INTEREST (CONVERSION, PLAINTIFF ENTITLED TO PREJUDGMENT INTEREST AT THE STATUTORY RATE IN THIS CONVERSION ACTION (SECOND DEPT))/CPLR 5001 (PLAINTIFF ENTITLED TO PREJUDGMENT INTEREST AT THE STATUTORY RATE IN THIS CONVERSION ACTION (SECOND DEPT))

SUPREME COURT SHOULD NOT HAVE GRANTED PLAINTIFF PERMISSION TO SERVE AN AMENDED COMPLAINT AND SIMULTANEOUSLY AWARDED PLAINTIFF SUMMARY JUDGMENT ON SEVERAL CAUSES OF ACTION, THE AMENDED COMPLAINT SUPERSEDES THE ORIGINAL AND MUST BE ANSWERED BEFORE FURTHER PROCEEDINGS (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined Supreme Court should not have simultaneously granted plaintiff permission to amend the complaint and granted summary judgment on several causes of action. An amended complaint supersedes the original complaint and should be answered before any further proceedings:

… Supreme Court should not have awarded the plaintiff summary judgment on the issue of liability on the first, third, and fourth causes of action in the amended complaint, while simultaneously allowing the plaintiff to serve the amended complaint … . “When an amended complaint has been served, it supersedes the original complaint and becomes the only complaint in the case” … . “Since an amended complaint supplants the original complaint, it would unduly prejudice a defendant if it were bound by an original answer when the original complaint has no legal effect” … . As a result, “an amended complaint should ordinarily be followed by an answer” … . Here, the court should not have awarded the plaintiff summary judgment on the issue of liability on the causes of action in the amended complaint before the defendant had answered the amended complaint … . R&G Brenner Income Tax Consultants v Gilmartin, 2018 NY Slip Op 07470, Second Dept 11-7-18

CIVIL PROCEDURE (SUPREME COURT SHOULD NOT HAVE GRANTED PLAINTIFF PERMISSION TO SERVE AN AMENDED COMPLAINT AND SIMULTANEOUSLY AWARDED PLAINTIFF SUMMARY JUDGMENT ON SEVERAL CAUSES OF ACTION, THE AMENDED COMPLAINT SUPERSEDES THE ORIGINAL AND MUST BE ANSWERED BEFORE FURTHER PROCEEDINGS (SECOND DEPT))/AMENDED COMPLAINT (SUPREME COURT SHOULD NOT HAVE GRANTED PLAINTIFF PERMISSION TO SERVE AN AMENDED COMPLAINT AND SIMULTANEOUSLY AWARDED PLAINTIFF SUMMARY JUDGMENT ON SEVERAL CAUSES OF ACTION, THE AMENDED COMPLAINT SUPERSEDES THE ORIGINAL AND MUST BE ANSWERED BEFORE FURTHER PROCEEDINGS (SECOND DEPT))

,

MOTION TO DISMISS THE COMPLAINT IN THIS FORECLOSURE ACTION FOR FAILURE TO TIMELY SERVE WITHIN THE 120 DAY WINDOW SHOULD HAVE BEEN GRANTED, CRITERIA FOR ALLOWING LATE SERVICE EXPLAINED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants’ motion pursuant to CPLR 306-b to dismiss the complaint in this foreclosure action (with regard to defendant Joseph) because it was not served within 120 days of filing should have been granted. The court explained the criteria for allowing extra time to serve:

As relevant here, CPLR 306-b provides that “[s]ervice of the summons and complaint . . . shall be made within one hundred twenty days after the commencement of the action.” Further, “[i]f service is not made upon a defendant within the time provided in this section, the court, upon motion, shall dismiss the action without prejudice as to that defendant, or upon good cause shown or in the interest of justice, extend the time for service.” ” Good cause’ and interest of justice’ are two separate and independent statutory standards” … . “To establish good cause, a plaintiff must demonstrate reasonable diligence in attempting service” … . “If good cause for an extension is not established, courts must consider the interest of justice’ standard of CPLR 306-b” … , which “requires a careful judicial analysis of the factual setting of the case and a balancing of the competing interests presented by the parties” … . “Unlike an extension request premised on good cause, a plaintiff [seeking an extension in the interest of justice] need not establish reasonably diligent efforts at service as a threshold matter” … . “However, the court may consider diligence, or lack thereof, along with any other relevant factor in making its determination, including expiration of the statute of limitations, the potentially meritorious nature of the cause of action, the length of delay in service, the promptness of a plaintiff’s request for the extension of time, and prejudice to defendant” … . “No one factor is determinative—the calculus of the court’s decision is dependent on the competing interests of the litigants and a clearly expressed desire by the Legislature that the interests of justice be served” … .

The plaintiff failed to establish that it exercised reasonably diligent efforts in attempting to effect proper service of process upon Joseph and, thus, failed to show good cause … . Further, the plaintiff failed to establish that an extension of time was warranted in the interest of justice … . Where the plaintiff’s delay in serving a defendant is protracted, and the defendant has no notice of the action for a protracted period of time, an inference of substantial prejudice arises …  The plaintiff failed to rebut the inference of substantial prejudice that arose due to its protracted delay in serving Joseph, as it failed to come forward with any proof that Joseph had notice of this action prior to being served more than 5½ years after the action was commenced … . Moreover, the plaintiff failed to explain its more than six-month delay in moving for relief pursuant to CPLR 306-b after it effectuated service upon Joseph … . Under theses circumstances, the plaintiff failed to establish its entitlement to an extension of time to serve Joseph under the interest of justice standard … , and its motion should have been denied. Wells Fargo Bank, NA v Barrella, 2018 NY Slip Op 07486, Second Dept 11-7-18

FORECLOSURE (MOTION TO DISMISS THE COMPLAINT IN THIS FORECLOSURE ACTION FOR FAILURE TO TIMELY SERVE WITHIN THE 120 DAY WINDOW SHOULD HAVE BEEN GRANTED, CRITERIA FOR ALLOWING LATE SERVICE EXPLAINED (SECOND DEPT))/CIVIL PROCEDURE (MOTION TO DISMISS THE COMPLAINT IN THIS FORECLOSURE ACTION FOR FAILURE TO TIMELY SERVE WITHIN THE 120 DAY WINDOW SHOULD HAVE BEEN GRANTED, CRITERIA FOR ALLOWING LATE SERVICE EXPLAINED (SECOND DEPT))/CPLR 306-b MOTION TO DISMISS THE COMPLAINT IN THIS FORECLOSURE ACTION FOR FAILURE TO TIMELY SERVE WITHIN THE 120 DAY WINDOW SHOULD HAVE BEEN GRANTED, CRITERIA FOR ALLOWING LATE SERVICE EXPLAINED (SECOND DEPT))

, ,

THE DEFENSE OF LACK OF STANDING WAS NOT RAISED IN THE ANSWER AND WAS THEREFORE WAIVED, JUDGE SHOULD NOT HAVE, SUA SPONTE, DISMISSED THE COMPLAINT ON THAT GROUND (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion for a default judgment and an order of reference should have been granted. By not raising lack of standing as a defense in the answer, the defense was waived. Supreme Court did not have the authority to, sua sponte, deny plaintiff’s motion on that ground:

… [U]nder this Court’s well-established precedent, as articulated in Wells Fargo Bank Minn., N.A. v Mastropaolo (42 AD3d 239), the defense of lack of standing is waived if not raised by the defendant in an answer or pre-answer motion to dismiss. Accordingly, by failing to answer the complaint or to make a pre-answer motion to dismiss the complaint, the defendants waived the defense of lack of standing … . Under the circumstances of this case, we remit the matter to the Supreme Court, Kings County, for further proceedings before a different Justice. Wells Fargo Bank, N.A. v Halberstam, 2018 NY Slip Op 07485, Second Dept 11-7-18

FORECLOSURE (THE DEFENSE OF LACK OF STANDING WAS NOT RAISED IN THE ANSWER AND WAS THEREFORE WAIVED, JUDGE SHOULD NOT HAVE, SUA SPONTE, DISMISSED THE COMPLAINT ON THAT GROUND (SECOND DEPT))/STANDING (FORECLOSURE, THE DEFENSE OF LACK OF STANDING WAS NOT RAISED IN THE ANSWER AND WAS THEREFORE WAIVED, JUDGE SHOULD NOT HAVE, SUA SPONTE, DISMISSED THE COMPLAINT ON THAT GROUND (SECOND DEPT))/CIVIL PROCEDURE (FORECLOSURE, STANDING, THE DEFENSE OF LACK OF STANDING WAS NOT RAISED IN THE ANSWER AND WAS THEREFORE WAIVED, JUDGE SHOULD NOT HAVE, SUA SPONTE, DISMISSED THE COMPLAINT ON THAT GROUND (SECOND DEPT))/JUDGES (SUA SPONTE DISMISSAL, FORECLOSURE, THE DEFENSE OF LACK OF STANDING WAS NOT RAISED IN THE ANSWER AND WAS THEREFORE WAIVED, JUDGE SHOULD NOT HAVE, SUA SPONTE, DISMISSED THE COMPLAINT ON THAT GROUND (SECOND DEPT))/SUA SPONTE (THE DEFENSE OF LACK OF STANDING WAS NOT RAISED IN THE ANSWER AND WAS THEREFORE WAIVED, JUDGE SHOULD NOT HAVE, SUA SPONTE, DISMISSED THE COMPLAINT ON THAT GROUND (SECOND DEPT))

, , ,

LABOR LAW 200 CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED BECAUSE DEFENDANT GENERAL CONTRACTOR DID NOT EXERCISE SUPERVISORY CONTROL OVER THE MANNER OF PLAINTIFF’S WORK, SUPREME COURT SHOULD NOT HAVE, SUA SPONTE, DISMISSED CROSS CLAIMS BECAUSE THAT RELIEF WAS NOT REQUESTED, PLAINTIFF’S EMPLOYER WAS NOT ENTITLED TO PROTECTION FROM SUIT UNDER THE WORKERS’ COMPENSATION LAW BECAUSE IT DID NOT MAINTAIN A WORKERS’ COMPENSATION POLICY (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, in a comprehensive decision, over a comprehensive dissent, determined that the general contractor, Ultimate, was not liable under Labor Law 200 for plaintiff’s fall through an opening in planks and plywood covering a stairwell opening because the accident was attributable to the manner of the work and Ultimate did not exercise any supervisory control over the installation of drywall by the plaintiff. The dissent argued that there was a question of fact whether the opening in the stairwell covering was a dangerous condition of which Ultimate had notice, which is also a ground for liability under Labor Law 200. The Second Department noted that the court should not have sua sponte dismissed Ultimate’s cross claims against the drywall company (Fortin) because such relief was not requested. The Second Department further noted that Fortin was not entitled to protection from plaintiff’s suit under the Workers’ Compensation Law on the ground that plaintiff was Fortin’s employee because Fortin did not maintain a Workers’ Compensation policy:

“Labor Law § 200(1) is a codification of the common-law duty of an owner or general contractor to provide workers with a safe place to work”… . “Cases involving Labor Law § 200 fall into two broad categories: namely, those where workers are injured as a result of dangerous or defective premises conditions at a work site, and those involving the manner in which the work is performed” … . Where “a claim arises out of alleged defects or dangers arising from a subcontractor’s methods or materials, recovery against the owner or general contractor cannot be had unless it is shown that the party to be charged exercised some supervisory control over the operation” … . “A defendant has the authority to supervise or control the work for purposes of Labor Law § 200 when that defendant bears the responsibility for the manner in which the work is performed” … . “[M]ere general supervisory authority at a work site for the purpose of overseeing the progress of the work and inspecting the work product is insufficient to impose liability under Labor Law § 200” … . …

… Ultimate established, … that the accident arose from the method and manner in which the plaintiff and Jean-Guy Fortin covered the stairwell opening … . …

The Supreme Court should not have, in effect, sua sponte, directed dismissal of Ultimate’s cross claims against Fortin for common-law indemnification and contribution, which relief Fortin did not request in its motion papers… . Moreover, the Supreme Court should have granted that branch of Ultimate’s motion which was for summary judgment on its cross claim against Fortin for common-law indemnification. Contrary to Fortin’s contention, Ultimate’s cross claims are not barred by Workers’ Compensation Law § 11. … Ultimate established that Fortin did not procure workers’ compensation on behalf of the plaintiff … . Therefore, Fortin is not entitled to the benefit of the workers’ compensation bar. Poulin v Ultimate Homes, Inc., 2018 NY Slip Op 07468, Second Dept 11-7-18

LABOR LAW-CONSTRUCTION LAW (LABOR LAW 200 CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED BECAUSE DEFENDANT GENERAL CONTRACTOR DID NOT EXERCISE SUPERVISORY CONTROL OVER THE MANNER OF PLAINTIFF’S WORK, SUPREME COURT SHOULD NOT HAVE, SUA SPONTE, DISMISSED CROSS CLAIMS BECAUSE THAT RELIEF WAS NOT REQUESTED, PLAINTIFF’S EMPLOYER WAS NOT ENTITLED TO PROTECTION FROM SUIT UNDER THE WORKERS’ COMPENSATION LAW BECAUSE IT DID NOT MAINTAIN A WORKERS’ COMPENSATION POLICY (SECOND DEPT))/CIVIL PROCEDURE (SUA SPONTE, LABOR LAW 200 CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED BECAUSE DEFENDANT GENERAL CONTRACTOR DID NOT EXERCISE SUPERVISORY CONTROL OVER THE MANNER OF PLAINTIFF’S WORK, SUPREME COURT SHOULD NOT HAVE, SUA SPONTE, DISMISSED CROSS CLAIMS BECAUSE THAT RELIEF WAS NOT REQUESTED, PLAINTIFF’S EMPLOYER WAS NOT ENTITLED TO PROTECTION FROM SUIT UNDER THE WORKERS’ COMPENSATION LAW BECAUSE IT DID NOT MAINTAIN A WORKERS’ COMPENSATION POLICY (SECOND DEPT))/JUDGES (SUA SPONTE, LABOR LAW 200 CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED BECAUSE DEFENDANT GENERAL CONTRACTOR DID NOT EXERCISE SUPERVISORY CONTROL OVER THE MANNER OF PLAINTIFF’S WORK, SUPREME COURT SHOULD NOT HAVE, SUA SPONTE, DISMISSED CROSS CLAIMS BECAUSE THAT RELIEF WAS NOT REQUESTED, PLAINTIFF’S EMPLOYER WAS NOT ENTITLED TO PROTECTION FROM SUIT UNDER THE WORKERS’ COMPENSATION LAW BECAUSE IT DID NOT MAINTAIN A WORKERS’ COMPENSATION POLICY (SECOND DEPT))/WORKERS’ COMPENSATION (LABOR LAW-CONSTRUCTION LAW, LABOR LAW 200 CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED BECAUSE DEFENDANT GENERAL CONTRACTOR DID NOT EXERCISE SUPERVISORY CONTROL OVER THE MANNER OF PLAINTIFF’S WORK, SUPREME COURT SHOULD NOT HAVE, SUA SPONTE, DISMISSED CROSS CLAIMS BECAUSE THAT RELIEF WAS NOT REQUESTED, PLAINTIFF’S EMPLOYER WAS NOT ENTITLED TO PROTECTION FROM SUIT UNDER THE WORKERS’ COMPENSATION LAW BECAUSE IT DID NOT MAINTAIN A WORKERS’ COMPENSATION POLICY (SECOND DEPT)

THE PHRASE ‘WITHIN FIVE DAYS’ IN CPLR 511, A CHANGE OF VENUE STATUTE, DOES NOT IMPOSE A WAITING PERIOD FOR A MOTION TO CHANGE VENUE, THE MOTION MAY BE MADE WITHIN THE FIVE DAYS (THIRD DEPT), ​

The Third Department, over a partial dissent, determined that the phrase “within five days” in a change of venue statute (CPLR 511) did not impose a five day waiting period:

Asserting that Ulster County was an improper venue for the proceeding, the Steeles served a timely written demand that the proceeding be tried in Oswego County (see CPLR 511 [b]). Four days later, the Steeles moved, in Ulster County, to change venue of the proceeding to Oswego County. The Aarons argue that the Steeles, by failing to wait five days after their demand to allow the Aarons an opportunity to provide a written consent to change venue, failed to comply with the statutory procedure and thereby were not entitled to a change of venue as of right. This argument is based on an interpretation that the language “unless within five days” places a hold on the defendant’s obligation to make a motion, during which time the defendant must simply wait for the plaintiff to respond to the demand (CPLR 511 [b]). We disagree with that interpretation of the statute.

The Aarons’ argument appears to focus exclusively on the phrase “unless within five days.” However, a plaintiff can choose not to respond to the demand, so the defendant may be sitting and waiting for nothing. In our view, the five-day window is a time limit on the plaintiff only, and the defendant is not required to refrain from doing anything during that period. Instead, the limits placed on a defendant under CPLR 511 (b) — other than the 15-day limit to move for change of venue — are contingent on whatever response the plaintiff may provide, rather than a five-day time period. While the five days are a limit on the plaintiff’s ability to respond to the demand, the defendant retains the ability to make the venue motion “unless . . . [the] plaintiff serves a written consent” agreeing to the venue selected by the defendant (CPLR 511 [b]). In other words, the important occurrence for the defendant is the plaintiff granting consent, not the passage of days. If the plaintiff consents to the demanded change in venue, the defendant may not move for such relief. In a situation where the defendant made a motion before the end of the plaintiff’s five-day response window and the plaintiff thereafter consented, the defendant would have to withdraw the motion (which would be unnecessary at that point anyway). Matter of Aaron v Steele, 2018 NY Slip Op 07393, Third Dept 11-1-18

CIVIL PROCEDURE (VENUE, THE PHRASE ‘WITHIN FIVE DAYS’ IN CPLR 511, A CHANGE OF VENUE STATUTE, DOES NOT IMPOSE A WAITING PERIOD FOR A MOTION TO CHANGE VENUE, THE MOTION MAY BE MADE WITHIN THE FIVE DAYS (THIRD DEPT))/CPLR 511 (VENUE, THE PHRASE ‘WITHIN FIVE DAYS’ IN CPLR 511, A CHANGE OF VENUE STATUTE, DOES NOT IMPOSE A WAITING PERIOD FOR A MOTION TO CHANGE VENUE, THE MOTION MAY BE MADE WITHIN THE FIVE DAYS (THIRD DEPT))/VENUE (THE PHRASE ‘WITHIN FIVE DAYS’ IN CPLR 511, A CHANGE OF VENUE STATUTE, DOES NOT IMPOSE A WAITING PERIOD FOR A MOTION TO CHANGE VENUE, THE MOTION MAY BE MADE WITHIN THE FIVE DAYS (THIRD DEPT))

, , ,

PLAINTIFF CONTRACTOR DID NOT ALLEGE IT WAS LICENSED TO DO HOME IMPROVEMENT WORK IN ITS COMPLAINT ALLEGING BREACH OF CONTRACT AND SEEKING TO FORECLOSE ON A MECHANIC’S LIEN, THE COMPLAINT SHOULD HAVE BEEN DISMISSED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the defendant general contractor’s motion to dismiss the complaint brought by plaintiff subcontractor, based upon the subcontractor’s failure to allege it was licensed to do home improvement work, should have been granted:

“Pursuant to CPLR 3015(e), a complaint that seeks to recover damages for breach of a home improvement contract or to recover in quantum meruit for home improvement services is subject to dismissal under CPLR 3211(a)(7) if it does not allege compliance with the licensing requirement” … . Moreover, a home improvement contractor who fails to possess and plead possession of a valid license as required by relevant laws may not commence an action to foreclose a mechanic’s lien … .

Here, the complaint did not allege that the plaintiff was duly licensed in the Town of East Hampton at the time the services were rendered … . Moreover, in opposition to the defendants’ motion, the plaintiff did not dispute that it did not possess the necessary license. The plaintiff’s contention that the work it performed was not for home improvement but, rather, was for the construction of a new home for which a home improvement contracting license was not necessary, is without merit. The Town Code defines “home improvement” as including, inter alia, “[n]ew home construction” … . Moreover, contrary to the plaintiff’s contention, the defendants are entitled to the protection of CPLR 3015(e) and the applicable licensing requirements … . Kristeel, Inc. v Seaview Dev. Corp., 2018 NY Slip Op 07296, Second Dept 10-31-18

CIVIL PROCEDURE (HOME IMPROVEMENT CONTRACTS, PLAINTIFF CONTRACTOR DID NOT ALLEGE IT WAS LICENSED TO DO HOME IMPROVEMENT WORK IN ITS COMPLAINT ALLEGING BREACH OF CONTRACT AND SEEKING TO FORECLOSE ON A MECHANIC’S LIEN, THE COMPLAINT SHOULD HAVE BEEN DISMISSED (SECOND DEPT))/CPLR 3015 (HOME IMPROVEMENT CONTRACTS, PLAINTIFF CONTRACTOR DID NOT ALLEGE IT WAS LICENSED TO DO HOME IMPROVEMENT WORK IN ITS COMPLAINT ALLEGING BREACH OF CONTRACT AND SEEKING TO FORECLOSE ON A MECHANIC’S LIEN, THE COMPLAINT SHOULD HAVE BEEN DISMISSED (SECOND DEPT))/HOME IMPROVEMENT CONTRACTS (PLAINTIFF CONTRACTOR DID NOT ALLEGE IT WAS LICENSED TO DO HOME IMPROVEMENT WORK IN ITS COMPLAINT ALLEGING BREACH OF CONTRACT AND SEEKING TO FORECLOSE ON A MECHANIC’S LIEN, THE COMPLAINT SHOULD HAVE BEEN DISMISSED (SECOND DEPT))/CONTRACT LAW (HOME IMPROVEMENT CONTRACTS, PLAINTIFF CONTRACTOR DID NOT ALLEGE IT WAS LICENSED TO DO HOME IMPROVEMENT WORK IN ITS COMPLAINT ALLEGING BREACH OF CONTRACT AND SEEKING TO FORECLOSE ON A MECHANIC’S LIEN, THE COMPLAINT SHOULD HAVE BEEN DISMISSED (SECOND DEPT))/LIEN LAW (HOME IMPROVEMENT CONTRACTS, PLAINTIFF CONTRACTOR DID NOT ALLEGE IT WAS LICENSED TO DO HOME IMPROVEMENT WORK IN ITS COMPLAINT ALLEGING BREACH OF CONTRACT AND SEEKING TO FORECLOSE ON A MECHANIC’S LIEN, THE COMPLAINT SHOULD HAVE BEEN DISMISSED (SECOND DEPT))/MECHANIC’S LIENS (HOME IMPROVEMENT CONTRACTS, PLAINTIFF CONTRACTOR DID NOT ALLEGE IT WAS LICENSED TO DO HOME IMPROVEMENT WORK IN ITS COMPLAINT ALLEGING BREACH OF CONTRACT AND SEEKING TO FORECLOSE ON A MECHANIC’S LIEN, THE COMPLAINT SHOULD HAVE BEEN DISMISSED (SECOND DEPT))/MUNICIPAL LAW (LICENSES, HOME IMPROVEMENT CONTRACTS, PLAINTIFF CONTRACTOR DID NOT ALLEGE IT WAS LICENSED TO DO HOME IMPROVEMENT WORK IN ITS COMPLAINT ALLEGING BREACH OF CONTRACT AND SEEKING TO FORECLOSE ON A MECHANIC’S LIEN, THE COMPLAINT SHOULD HAVE BEEN DISMISSED (SECOND DEPT))/LICENSES  (HOME IMPROVEMENT CONTRACTS, PLAINTIFF CONTRACTOR DID NOT ALLEGE IT WAS LICENSED TO DO HOME IMPROVEMENT WORK IN ITS COMPLAINT ALLEGING BREACH OF CONTRACT AND SEEKING TO FORECLOSE ON A MECHANIC’S LIEN, THE COMPLAINT SHOULD HAVE BEEN DISMISSED (SECOND DEPT))

Categories

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

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy