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DEFENDANT’S MOTION FOR A CHANGE OF VENUE IN THIS TRAFFIC ACCIDENT CASE PROPERLY GRANTED BASED UPON CONVENIENCE OF WITNESSES (FIRST DEPT).

The First Department determined the defendant’s (Target’s) motion to change venue in this traffic accident case was properly granted:

Supreme Court did not improvidently exercise its discretion in granting Target’s motion to change venue to Suffolk County even though plaintiff properly placed venue in New York County based upon Target’s principal place of business at the time the action was commenced (see CPLR 503[a], [c]). The motor vehicle accident happened in Suffolk County, plaintiffs and codefendants live in that county, the decedent received her medical treatment there … . Target also submitted the affidavits of two Suffolk County police officers, who averred that they were involved in the investigation including interviewing witnesses at the accident location and that they would be inconvenienced by having to travel to New York County because it would cause them to be absent from their police duties for a full day … .

That the police officers signed affidavits in favor of the motion to change venue establishes that they were aware of the action and demonstrates that they are willing to testify at trial. It was proper for the motion court to consider the police officers’ convenience, because their testimony regarding their investigation as to how the accident happened bears on liability… . Furthermore, the police officers’ affidavits are not insufficient because they do not set forth their home addresses, since it is undisputed that they work in Suffolk County … . Kochan v Target Corp., 2018 NY Slip Op 03445, First Dept 5-10-18

​CIVIL PROCEDURE (VENUE, DEFENDANT’S MOTION FOR A CHANGE OF VENUE IN THIS TRAFFIC ACCIDENT CASE PROPERLY GRANTED BASED UPON CONVENIENCE OF WITNESSES (FIRST DEPT))/VENUE (DEFENDANT’S MOTION FOR A CHANGE OF VENUE IN THIS TRAFFIC ACCIDENT CASE PROPERLY GRANTED BASED UPON CONVENIENCE OF WITNESSES (FIRST DEPT))/TRAFFIC ACCIDENTS (CIVIL PROCEDURE, VENUE, DEFENDANT’S MOTION FOR A CHANGE OF VENUE IN THIS TRAFFIC ACCIDENT CASE PROPERLY GRANTED BASED UPON CONVENIENCE OF WITNESSES (FIRST DEPT))/CPLR 503 (VENUE, DEFENDANT’S MOTION FOR A CHANGE OF VENUE IN THIS TRAFFIC ACCIDENT CASE PROPERLY GRANTED BASED UPON CONVENIENCE OF WITNESSES (FIRST DEPT))

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ALTHOUGH THE HOSPITAL’S POTENTIAL LIABILITY IN THIS MEDICAL MALPRACTICE ACTION WAS PURELY VICARIOUS, ATTORNEYS FOR BOTH THE HOSPITAL AND THE EMPLOYEE-PHYSICIAN WERE PROPERLY ALLOWED TO PARTICIPATE IN THE TRIAL, PLAINTIFFS’ MID-TRIAL REQUEST TO CALL AN EXPERT WITNESS PROPERLY DENIED (THIRD DEPT).

The Third Department determined the trial court in this medical malpractice action did not err in allowing the continued participation of the attorney for defendant hospital (AMH) after the action against the hospital had been dismissed. After the dismissal of the action against the hospital, the only liability the hospital faced was vicarious liability for the actions of its physician employee, who was represented by another attorney. The Third Department further found that the plaintiffs’ request, made for the first time at trial, to call an expert to establish, by cell phone and tower information (GIS), the location of a physician who had been called to assist at the hospital was properly denied:

Following the dismissal of all claims of direct negligence asserted against AMH, plaintiffs renewed their motion to have the role of AMH’s counsel limited. While the dismissal of the direct negligence claims rendered AMH’s potential liability purely vicarious in nature, we are unable to conclude that Supreme Court’s refusal to limit the role of AMH’s counsel during the remainder of the trial to essentially that of a spectator was in error. Because AMH’s liability would be determined by the jury’s findings in relation to plaintiffs’ claims of negligence against Olsen [its physician-employee], AMH was entitled to participate in the efforts to defeat those claims … . Supreme Court promised to exert control over the cross-examination of the remaining witnesses by AMH’s counsel, indicating its intent to prevent any attempt by AMH to “reiterate or to plow ground that has already been plowed by one side or the other,” and the record reflects that counsel’s cross-examination of these witnesses, if any, was limited and dealt primarily with different material than that explored on direct examination. The balanced approach taken by the court served to ensure defendants’ valued right to representation by counsel of their choosing while also protecting plaintiffs against the possibility of unduly cumulative and duplicative proof … . Under these circumstances, we find no “clear abuse of discretion” in the course of action taken by Supreme Court nor any prejudice to plaintiffs as a result thereof … . * * *

… [P]laintiffs first notified defendants of their intention to call a GIS expert more than three years after defendants’ respective demands for expert disclosure and during the midst of the trial. Notably, [the physcian’s] cell phone number was provided to plaintiffs during a pretrial deposition more than a year and a half earlier and, thus, plaintiffs possessed the essential facts necessary to investigate the matter — and, if necessary, to retain an expert — long before trial. Plaintiffs’ claim that they did not realize the significance of the calls, and thus the need to subpoena the phone records, until shortly before trial did not, as Supreme Court found, constitute good cause for the delay … . Moreover, we agree with Supreme Court that, given the complex and technical issues presented by the proposed GIS testimony, the mid-trial disclosure of this expert would have prejudiced defendants … . Lasher v Albany Mem. Hosp., 2018 NY Slip Op 03402, Third Dept 5-10-18

​ATTORNEYS (ALTHOUGH THE HOSPITAL’S POTENTIAL LIABILITY IN THIS MEDICAL MALPRACTICE ACTION WAS PURELY VICARIOUS ATTORNEYS FOR BOTH THE HOSPITAL AND THE EMPLOYEE-PHYSICIAN WERE PROPERLY ALLOWED TO PARTICIPATE IN THE TRIAL, PLAINTIFFS’ MID-TRIAL REQUEST TO CALL AN EXPERT WITNESS PROPERLY DENIED (THIRD DEPT))/CIVIL PROCEDURE (ATTORNEYS, TRIAL, ALTHOUGH THE HOSPITAL’S POTENTIAL LIABILITY IN THIS MEDICAL MALPRACTICE ACTION WAS PURELY VICARIOUS ATTORNEYS FOR BOTH THE HOSPITAL AND THE EMPLOYEE-PHYSICIAN WERE PROPERLY ALLOWED TO PARTICIPATE IN THE TRIAL, PLAINTIFFS’ MID-TRIAL REQUEST TO CALL AN EXPERT WITNESS PROPERLY DENIED (THIRD DEPT))/CIVIL PROCEDURE (EXPERT WITNESSES, PLAINTIFFS’ MID-TRIAL REQUEST TO CALL AN EXPERT WITNESS PROPERLY DENIED (THIRD DEPT))/MEDICAL MALPRACTICE (ATTORNEYS, TRIAL, ALTHOUGH THE HOSPITAL’S POTENTIAL LIABILITY IN THIS MEDICAL MALPRACTICE ACTION WAS PURELY VICARIOUS ATTORNEYS FOR BOTH THE HOSPITAL AND THE EMPLOYEE-PHYSICIAN WERE PROPERLY ALLOWED TO PARTICIPATE IN THE TRIAL, PLAINTIFFS’ MID-TRIAL REQUEST TO CALL AN EXPERT WITNESS PROPERLY DENIED (THIRD DEPT))/CPLR 3101 (EXPERT WITNESSES, PLAINTIFFS’ MID-TRIAL REQUEST TO CALL AN EXPERT WITNESS PROPERLY DENIED (THIRD DEPT))/EXPERT WITNESSES (CIVIL PROCEDURE, NOTICE, PLAINTIFFS’ MID-TRIAL REQUEST TO CALL AN EXPERT WITNESS PROPERLY DENIED (THIRD DEPT))

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BECAUSE PLAINTIFF HAD FILED HIS EMPLOYMENT DISCRIMINATION COMPLAINT WITH THE NYC DIVISION OF HUMAN RIGHTS, HE WAS PRECLUDED UNDER THE ELECTION OF REMEDIES DOCTRINE FROM BRINGING THIS COURT ACTION PURSUANT TO THE NYC HUMAN RIGHTS LAW (SECOND DEPT).

The Second Department determined that because plaintiff had filed his employment discrimination complaint with the NYC Division of Human Rights (Division), he was precluded under the election of remedies doctrine from bringing a court action pursuant to the NYC Human Rights Law (NYCHRL):

“Pursuant to the election of remedies doctrine, the filing of a complaint with [the Division] precludes the commencement of an action in the Supreme Court asserting the same discriminatory acts”… . The election of remedies doctrine does not implicate the subject matter jurisdiction of the court, but rather deprives a plaintiff of a cause of action … . Here, the plaintiff’s causes of action are based on the same allegedly discriminatory conduct asserted in the proceedings before the Division. Therefore, the plaintiff is barred from asserting those claims under the NYCHRL in this action … . Luckie v Northern Adult Day Health Care Ctr., 2018 NY Slip Op 03349, Second Dept 5-9-18

​EMPLOYMENT LAW (DISCRIMINATION, HUMAN RIGHTS LAW, BECAUSE PLAINTIFF HAD FILED HIS EMPLOYMENT DISCRIMINATION COMPLAINT WITH THE NYC DIVISION OF HUMAN RIGHTS, HE WAS PRECLUDED UNDER THE ELECTION OF REMEDIES DOCTRINE FROM BRINGING THIS COURT ACTION PURSUANT TO THE NYC HUMAN RIGHTS LAW (SECOND DEPT))/HUMAN RIGHTS LAW (EMPLOYMENT LAW, DISCRIMINATION, BECAUSE PLAINTIFF HAD FILED HIS EMPLOYMENT DISCRIMINATION COMPLAINT WITH THE NYC DIVISION OF HUMAN RIGHTS, HE WAS PRECLUDED UNDER THE ELECTION OF REMEDIES DOCTRINE FROM BRINGING THIS COURT ACTION PURSUANT TO THE NYC HUMAN RIGHTS LAW (SECOND DEPT))/ADMINISTRATIVE LAW (ELECTION OF REMEDIES, (DISCRIMINATION, HUMAN RIGHTS LAW, BECAUSE PLAINTIFF HAD FILED HIS EMPLOYMENT DISCRIMINATION COMPLAINT WITH THE NYC DIVISION OF HUMAN RIGHTS, HE WAS PRECLUDED UNDER THE ELECTION OF REMEDIES DOCTRINE FROM BRINGING THIS COURT ACTION PURSUANT TO THE NYC HUMAN RIGHTS LAW (SECOND DEPT))/CIVIL PROCEDURE (ELECTION OF REMEDIES, DISCRIMINATION, HUMAN RIGHTS LAW, BECAUSE PLAINTIFF HAD FILED HIS EMPLOYMENT DISCRIMINATION COMPLAINT WITH THE NYC DIVISION OF HUMAN RIGHTS, HE WAS PRECLUDED UNDER THE ELECTION OF REMEDIES DOCTRINE FROM BRINGING THIS COURT ACTION PURSUANT TO THE NYC HUMAN RIGHTS LAW (SECOND DEPT))/ELECTION OF REMEDIES (DISCRIMINATION, HUMAN RIGHTS LAW, BECAUSE PLAINTIFF HAD FILED HIS EMPLOYMENT DISCRIMINATION COMPLAINT WITH THE NYC DIVISION OF HUMAN RIGHTS, HE WAS PRECLUDED UNDER THE ELECTION OF REMEDIES DOCTRINE FROM BRINGING THIS COURT ACTION PURSUANT TO THE NYC HUMAN RIGHTS LAW (SECOND DEPT))

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TWO STATEMENTS FOUND TO BE NONACTIONABLE EXPRESSIONS OF OPINION IN THIS DEFAMATION ACTION, PLAINTIFFS HAVE NO PROOF BURDEN ON A MOTION TO DISMISS, DEFENDANTS NOT SHIELDED BY THE COMMUNICATIONS DECENCY ACT (SECOND DEPT).

The Second Department, modifying Supreme Court, determined two statements alleged by the plaintiffs to have been defamatory were nonactionable opinion (other defamatory statements alleged in the complaint properly survived the motion to dismiss). The court noted that plaintiffs have no burden to prove the allegations in a complaint in response to a motion to dismiss, and further found that the Communications Decency Act did not shield the defendants from liability:

Here, the allegedly defamatory statements set forth in paragraphs 53 and 55 of the complaint—which asserted, among other things, that [the defendant president of the cooperative] was “attempting insult of American laws & freedom” and was attempting to “destroy Trump Village 4 and sell our buildings to the highest bidder after we are bankrupt”—constituted nonactionable expressions of opinion. The statements … were not easily understandable, were largely incapable of being proven true or false, and, in context, signaled to the average reader that the statements were opinion, not fact. …

We reject the defendants’ contention that the allegations of defamation fail to state a cause of action because their statements were protected by qualified privileges, and insufficient facts were alleged to show that they spoke with malice necessary to defeat those privileges … . Since “the burden does not shift to the nonmoving party on a motion made pursuant to CPLR 3211(a)(7), a plaintiff has no obligation to show evidentiary facts to support [his or her] allegations of malice on [such] a motion'” … . Here, to the extent that the defendants’ statements may be shielded by any qualified privileges, the allegations of malice that were set forth in the complaint and in an affidavit submitted by [the cooperative president] preclude dismissal of the complaint insofar as asserted against the defendants for failure to state a cause of action ,,, ,

We agree with the Supreme Court that the Communications Decency Act (47 USC § 230) did not warrant dismissal of the complaint at this juncture. A defendant is “immune from state law liability if (1) it is a provider or user of an interactive computer service’; (2) the complaint seeks to hold the defendant liable as a publisher or speaker’; and (3) the action is based on information provided by another information content provider'” … . “[I]f a defendant service provider is itself the content provider,’ it is not shielded from liability” … . Here, the plaintiffs alleged that the defendants authored the defamatory statements, which would mean that the defendants were content providers within the meaning of the statute … . Trump Vil. Section 4, Inc. v Bezvoleva, 2018 NY Slip Op 03389, Second Dept 5-9-18

​DEFAMATION (TWO STATEMENTS FOUND TO BE NONACTIONABLE EXPRESSIONS OF OPINION IN THIS DEFAMATION ACTION, PLAINTIFFS HAVE NO PROOF BURDEN ON A MOTION TO DISMISS, DEFENDANTS NOT SHIELDED BY THE COMMUNICATIONS DECENCY ACT (SECOND DEPT))/OPINION (DEFAMATION, TWO STATEMENTS FOUND TO BE NONACTIONABLE EXPRESSIONS OF OPINION IN THIS DEFAMATION ACTION, PLAINTIFFS HAVE NO PROOF BURDEN ON A MOTION TO DISMISS, DEFENDANTS NOT SHIELDED BY THE COMMUNICATIONS DECENCY ACT (SECOND DEPT))/COMMUNICATIONS DECENCY ACT (DEFAMATION, TWO STATEMENTS FOUND TO BE NONACTIONABLE EXPRESSIONS OF OPINION IN THIS DEFAMATION ACTION, PLAINTIFFS HAVE NO PROOF BURDEN ON A MOTION TO DISMISS, DEFENDANTS NOT SHIELDED BY THE COMMUNICATIONS DECENCY ACT (SECOND DEPT))

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COURT SHOULD NOT HAVE CONSIDERED AND RULED UPON PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN THIS FORECLOSURE PROCEEDING AFTER A DEFENDANT DIED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the death of a defendant in this foreclosure action precluded the court from hearing and determining plaintiff’s motion for summary judgment, even with respect to the other defendants:

As a general matter, “the death of a party divests a court of jurisdiction to act, and automatically stays proceedings in the action pending the substitution of a legal representative for that decedent pursuant to CPLR 1015(a)” … . “[A]ny determination rendered without such a substitution will generally be deemed a nullity”… .

Here, the defendant Michael Costello died before the plaintiff’s motion was made and before the orders appealed from were issued. Since a substitution had not been made, the Supreme Court should not have determined the merits of the plaintiff’s motion, even to the extent that the plaintiff sought relief against the other defendants … . Furthermore, although this Court has recognized, under certain limited circumstances, that “where a party’s demise does not affect the merits of a case, there is no need for strict adherence to the requirement that the proceedings be stayed pending substitution” … , those circumstances are not present here … . American Airlines Fed. Credit Union v Costello, 2018 NY Slip Op 03335, Second Dept 5-9-18

​CIVIL PROCEDURE (DEATH OF A PARTY, COURT SHOULD NOT HAVE CONSIDERED AND RULED UPON PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN THIS FORECLOSURE PROCEEDING AFTER A DEFENDANT DIED (SECOND DEPT))/TRUSTS AND ESTATES (CIVIL PROCEDURE, DEATH OF A PARTY, COURT SHOULD NOT HAVE CONSIDERED AND RULED UPON PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN THIS FORECLOSURE PROCEEDING AFTER A DEFENDANT DIED (SECOND DEPT))/FORECLOSURE (DEATH OF A PARTY, CIVIL PROCEDURE, COURT SHOULD NOT HAVE CONSIDERED AND RULED UPON PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN THIS FORECLOSURE PROCEEDING AFTER A DEFENDANT DIED (SECOND DEPT))/CPLR 1015  (DEATH OF A PARTY, COURT SHOULD NOT HAVE CONSIDERED AND RULED UPON PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN THIS FORECLOSURE PROCEEDING AFTER A DEFENDANT DIED (SECOND DEPT))/DEATH OF A PARTY  (CIVIL PROCEDURE, COURT SHOULD NOT HAVE CONSIDERED AND RULED UPON PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN THIS FORECLOSURE PROCEEDING AFTER A DEFENDANT DIED (SECOND DEPT))/SUBSTITUTION (DEATH OF A PARTY, COURT SHOULD NOT HAVE CONSIDERED AND RULED UPON PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN THIS FORECLOSURE PROCEEDING AFTER A DEFENDANT DIED (SECOND DEPT))

MOTION TO EXTEND TIME TO SERVE DEFENDANT IN THIS MEDICAL MALPRACTICE ACTION PROPERLY GRANTED, EVEN THOUGH STATUTE OF LIMITATIONS HAD EXPIRED (SECOND DEPT).

The Second Department determined plaintiff’s motion to extend the time to serve defendant (Nayak) in this medical malpractice action was properly granted, even though the statute of limitations expired in the interim between filing the summons and complaint and the motion to extend. Plaintiff’s attempt at timely service was found to be defective:

The plaintiff’s cross motion pursuant to CPLR 306-b to extend the time to serve Nayak with the summons and complaint was properly granted in the interest of justice … . When deciding whether to grant an extension of time to serve a summons and complaint in the interest of justice, “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” … Here, the record established that the plaintiff exercised diligence in timely filing, and in attempting to serve Nayak and notify Nayak and her insurance carrier of the summons and complaint within the 120-day period following the filing of the summons and complaint, although the attempt to serve Nayak was ultimately deemed defective … . While the action was timely commenced, the statute of limitations had expired when the plaintiff cross-moved for relief, the plaintiff promptly cross-moved for an extension of time to serve Nayak, and there was no identifiable prejudice to Nayak attributable to the delay in service … . Furze v Stapen, 2018 NY Slip Op 03338, Second Dept 5-9-18

​CIVIL PROCEDURE (SERVICE OF PROCESS, MOTION TO EXTEND TIME TO SERVE DEFENDANT IN THIS MEDICAL MALPRACTICE ACTION PROPERLY GRANTED, EVEN THOUGH STATUTE OF LIMITATIONS HAD EXPIRED (SECOND DEPT))/EXTEND TIME TO SERVE (MOTION TO EXTEND TIME TO SERVE DEFENDANT IN THIS MEDICAL MALPRACTICE ACTION PROPERLY GRANTED, EVEN THOUGH STATUTE OF LIMITATIONS HAD EXPIRED (SECOND DEPT))/CPLR 306-b (SERVICE OF PROCESS, MOTION TO EXTEND TIME TO SERVE DEFENDANT IN THIS MEDICAL MALPRACTICE ACTION PROPERLY GRANTED, EVEN THOUGH STATUTE OF LIMITATIONS HAD EXPIRED (SECOND DEPT))/SERVICE OF PROCESS  (MOTION TO EXTEND TIME TO SERVE DEFENDANT IN THIS MEDICAL MALPRACTICE ACTION PROPERLY GRANTED, EVEN THOUGH STATUTE OF LIMITATIONS HAD EXPIRED (SECOND DEPT))

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DEFENDANT CANADIAN INSURANCE COMPANY’S TIES TO NEW YORK WERE NOT SUFFICIENT TO ALLOW THE EXERCISE OF LONG-ARM JURISDICTION OVER THE COMPANY (FIRST DEPT).

The First Department determined defendant insurance company’s connections to New York were insufficient to support long-arm jurisdiction:

[D]efendant … is incorporated in Canada, has its principal place of business in Canada, and is not authorized to do business in New York. Defendant issued a $10 million life insurance policy to a trust, designated on the policy application as the policy owner and beneficiary, which the record shows has its situs in New Jersey. The policy application was signed in New Jersey, and the receipt reflecting delivery of the policy identifies New Jersey as the place of execution. While the trustee may be a New York resident, he is neither the designated owner nor a beneficiary of the policy.

Plaintiff cites no authority to support its argument that New York courts may exercise jurisdiction over defendant because the policy insured the life of a New York resident. Nor do defendant’s purported ties to New York suffice. Plaintiff points out that the medical portion of the application was signed in New York by the insured and the medical examiner and that, before it was delivered to the trustee, the policy passed through two New York intermediaries. These transactions are not only too fleeting to provide a jurisdictional foundation, but are also not the acts from which plaintiff’s claims arise … . Even assuming, as the record suggests, that defendant assured plaintiff (which acquired ownership of the policy) of the incontestability of the policy by a letter faxed to a New York number, this is not sufficient to establish New York jurisdiction over defendant … . AMT Capital Holdings, S.A. v Sun Life Assur. Co. of Can., 2018 NY Slip Op 03318, First Dept 5-8-18

​CIVIL PROCEDURE (LONG ARM JURISDICTION, DEFENDANT CANADIAN INSURANCE COMPANY’S TIES TO NEW YORK WERE NOT SUFFICIENT TO ALLOW THE EXERCISE OF LONG-ARM JURISDICTION OVER THE COMPANY (FIRST DEPT))/LONG ARM JURISDICTION ( DEFENDANT CANADIAN INSURANCE COMPANY’S TIES TO NEW YORK WERE NOT SUFFICIENT TO ALLOW THE EXERCISE OF LONG-ARM JURISDICTION OVER THE COMPANY (FIRST DEPT))/INSURANCE LAW (LONG ARM JURISDICTION, DEFENDANT CANADIAN INSURANCE COMPANY’S TIES TO NEW YORK WERE NOT SUFFICIENT TO ALLOW THE EXERCISE OF LONG-ARM JURISDICTION OVER THE COMPANY (FIRST DEPT))/CPLR 302 (LONG ARM JURISDICTION, DEFENDANT CANADIAN INSURANCE COMPANY’S TIES TO NEW YORK WERE NOT SUFFICIENT TO ALLOW THE EXERCISE OF LONG-ARM JURISDICTION OVER THE COMPANY (FIRST DEPT))

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ALTHOUGH THE DEFENDANT NEW YORK COMPANY IS A WHOLLY OWNED SUBSIDIARY OF AN ISRAELI COMPANY, THE TWO ENTITIES OPERATED INDEPENDENTLY SUCH THAT NEW YORK COULD NOT EXERCISE JURISDICTION OVER THE ISRAELI COMPANY, A QUALIFIED PRIVILEGE RE DEFAMATORY REMARKS ALLEGEDLY MADE BY DEFENDANT DOES NOT INSULATE THE DEFENDANT FROM A CAUSE OF ACTION BASED UPON BREACH OF A CONTRACTUAL NON-DISPARAGEMENT CLAUSE (FIRST DEPT).

The First Department found that a defendant company, IAI, which operates in Israel, was not subject to personal jurisdiction in New York under the theory that defendant IAINA, which operates in New York, was a department of IAI. The court explained the relevant criteria. The court further held that a common interest privilege (with respect to alleged defamatory remarks regarding the plaintiff, defendant IAINA’s employee) does not insulate defendant from the alleged breach of a contractual non-disparagement clause:

Defendants established that IAI North America, Inc. (IAINA), which does business in the State of New York, is not a mere department of IAI, which operates primarily in Israel, and therefore that jurisdiction over IAINA is not jurisdiction over IAI … . The key executive personnel of the subsidiary were not assigned to their positions by the foreign parent, the subsidiary trained its own personnel, the parent did not write and publish all of the sales literature used by the subsidiary, and the subsidiary prepared its own financial statements … . … While IAINA is a wholly owned subsidiary of IAI, common ownership is “intrinsic to the parent-subsidiary relationship and, by [itself], not determinative”… . IAINA showed that it observed corporate formalities. Nothing in plaintiff’s affirmation indicates that IAI interferes in the selection and assignment of IAINA’s executive personnel, and the CEO of IAINA denied this. He also denied that IAI controlled IAINA’s marketing and operational policies. Plaintiff claimed that IAI had control over the approval of IAINA’s annual budget during the 11 years he worked at IAINA. However, this does not suffice … . …

IAINA … contends that the cause of action for breach of a non-disparagement clause should be dismissed because, even if it made disparaging remarks about plaintiff (its former employee), the remarks were privileged. However, the common interest privilege it relies on — which is part of the law of defamation — does not apply to a claim for breach of a non-disparagement clause … . Wolberg v IAI N. Am., Inc., 2018 NY Slip Op 03321, First Dept 5-8-18

CIVIL PROCEDURE (ALTHOUGH THE DEFENDANT NEW YORK COMPANY IS A WHOLLY OWNED SUBSIDIARY OF AN ISRAELI COMPANY, THE TWO ENTITIES OPERATED INDEPENDENTLY SUCH THAT NEW YORK COULD NOT EXERCISE JURISDICTION OVER THE ISRAELI COMPANY, A QUALIFIED PRIVILEGE RE DEFAMATORY REMARKS ALLEGEDLY MADE BY DEFENDANT DOES NOT INSULATE THE DEFENDANT FROM A CAUSE OF ACTION BASED UPON BREACH OF A CONTRACTUAL NON-DISPARAGEMENT CLAUSE (FIRST DEPT))/JURISDICTION (CIVIL PROCEDURE, CORPORATIONS, ALTHOUGH THE DEFENDANT NEW YORK COMPANY IS A WHOLLY OWNED SUBSIDIARY OF AN ISRAELI COMPANY, THE TWO ENTITIES OPERATED INDEPENDENTLY SUCH THAT NEW YORK COULD NOT EXERCISE JURISDICTION OVER THE ISRAELI COMPANY, A QUALIFIED PRIVILEGE RE DEFAMATORY REMARKS ALLEGEDLY MADE BY DEFENDANT DOES NOT INSULATE THE DEFENDANT FROM A CAUSE OF ACTION BASED UPON BREACH OF A CONTRACTUAL NON-DISPARAGEMENT CLAUSE (FIRST DEPT))/CORPORATIONS (JURISDICTION, ALTHOUGH THE DEFENDANT NEW YORK COMPANY IS A WHOLLY OWNED SUBSIDIARY OF AN ISRAELI COMPANY, THE TWO ENTITIES OPERATED INDEPENDENTLY SUCH THAT NEW YORK COULD NOT EXERCISE JURISDICTION OVER THE ISRAELI COMPANY, A QUALIFIED PRIVILEGE RE DEFAMATORY REMARKS ALLEGEDLY MADE BY DEFENDANT DOES NOT INSULATE THE DEFENDANT FROM A CAUSE OF ACTION BASED UPON BREACH OF A CONTRACTUAL NON-DISPARAGEMENT CLAUSE (FIRST DEPT))/DEFAMATION (NON-DISPARAGEMENT CLAUSE, A QUALIFIED PRIVILEGE RE DEFAMATORY REMARKS ALLEGEDLY MADE BY DEFENDANT DOES NOT INSULATE THE DEFENDANT FROM A CAUSE OF ACTION BASED UPON BREACH OF A CONTRACTUAL NON-DISPARAGEMENT CLAUSE (FIRST DEPT))/QUALIFIED PRIVILEGE (DEFAMATION, NON-DISPARAGEMENT CLAUSE, A QUALIFIED PRIVILEGE RE DEFAMATORY REMARKS ALLEGEDLY MADE BY DEFENDANT DOES NOT INSULATE THE DEFENDANT FROM A CAUSE OF ACTION BASED UPON BREACH OF A CONTRACTUAL NON-DISPARAGEMENT CLAUSE (FIRST DEPT))/NON-DISPARAGEMENT CLAUSE (DEFAMATION, A QUALIFIED PRIVILEGE RE DEFAMATORY REMARKS ALLEGEDLY MADE BY DEFENDANT DOES NOT INSULATE THE DEFENDANT FROM A CAUSE OF ACTION BASED UPON BREACH OF A CONTRACTUAL NON-DISPARAGEMENT CLAUSE (FIRST DEPT))/CONTRACT LAW (DEFAMATION, NON-DISPARAGEMENT CLAUSE, A QUALIFIED PRIVILEGE RE DEFAMATORY REMARKS ALLEGEDLY MADE BY DEFENDANT DOES NOT INSULATE THE DEFENDANT FROM A CAUSE OF ACTION BASED UPON BREACH OF A CONTRACTUAL NON-DISPARAGEMENT CLAUSE (FIRST DEPT))/PRIVILEGE (DEFAMATION, COMMON INTEREST,  A QUALIFIED PRIVILEGE RE DEFAMATORY REMARKS ALLEGEDLY MADE BY DEFENDANT DOES NOT INSULATE THE DEFENDANT FROM A CAUSE OF ACTION BASED UPON BREACH OF A CONTRACTUAL NON-DISPARAGEMENT CLAUSE (FIRST DEPT))/COMMON INTEREST PRIVILEGE (DEFAMATION, A QUALIFIED PRIVILEGE RE DEFAMATORY REMARKS ALLEGEDLY MADE BY DEFENDANT DOES NOT INSULATE THE DEFENDANT FROM A CAUSE OF ACTION BASED UPON BREACH OF A CONTRACTUAL NON-DISPARAGEMENT CLAUSE (FIRST DEPT))

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ALTHOUGH DEFENDANT FOREIGN CORPORATION DID NOT HAVE AN OFFICE IN NEW YORK COUNTY, IT HAD DESIGNATED NEW YORK COUNTY AS ITS PLACE OF BUSINESS IN ITS FILING WITH THE SECRETARY OF STATE, MOTION TO CHANGE VENUE SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendants’ motion to change venue should not have been granted. Although defendant foreign corporation did not have a place of business in New York County, it had designated New York County as the location of its business in its filing with the Secretary of State:

Wakefern, a foreign corporation, submitted a copy of its application for authorization to conduct business filed with the Secretary of State, in which it identified New York County as “[t]he county within this state where its office is to be located” … . Wakefern’s designation of New York County in its application is controlling for venue purposes, even if it does not actually have an office in New York County … . Janis v Janson Supermarkets LLC, 2018 NY Slip Op 03333, First Dept 5-8-18

CORPORATION LAW (CIVIL PROCEDURE, VENUE, ALTHOUGH DEFENDANT FOREIGN CORPORATION DID NOT HAVE AN OFFICE IN NEW YORK COUNTY, IT HAD DESIGNATED NEW YORK COUNTY AS ITS PLACE OF BUSINESS IN ITS FILING WITH THE SECRETARY OF STATE, MOTION TO CHANGE VENUE SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT))/CIVIL PROCEDURE (VENUE, CORPORATION LAW,  ALTHOUGH DEFENDANT FOREIGN CORPORATION DID NOT HAVE AN OFFICE IN NEW YORK COUNTY, IT HAD DESIGNATED NEW YORK COUNTY AS ITS PLACE OF BUSINESS IN ITS FILING WITH THE SECRETARY OF STATE, MOTION TO CHANGE VENUE SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT))/VENUE (CORPORATION LAW, ALTHOUGH DEFENDANT FOREIGN CORPORATION DID NOT HAVE AN OFFICE IN NEW YORK COUNTY, IT HAD DESIGNATED NEW YORK COUNTY AS ITS PLACE OF BUSINESS IN ITS FILING WITH THE SECRETARY OF STATE, MOTION TO CHANGE VENUE SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT))/FOREIGN CORPORATIONS (CIVIL PROCEDURE, VENUE, ALTHOUGH DEFENDANT FOREIGN CORPORATION DID NOT HAVE AN OFFICE IN NEW YORK COUNTY, IT HAD DESIGNATED NEW YORK COUNTY AS ITS PLACE OF BUSINESS IN ITS FILING WITH THE SECRETARY OF STATE, MOTION TO CHANGE VENUE SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT))

LAW OFFICE FAILURE INSUFFICIENT, MOTION TO VACATE DEFAULT PROPERLY DENIED (FIRST DEPT).

The First Department determined law office failure was not sufficient to justify granting plaintiffs’ motion to vacate the default judgment:

… [P]laintiffs’ counsel affirmed that he had timely prepared opposition papers, but due to law office failure, the nature of which counsel failed to describe in any detail, the papers were never filed. Counsel affirmed that he was under the impression the motion was still being considered by the court when he happened to discover the default order. He further affirmed that, despite defendants’ sworn affidavits of service, he was never served with the notices of entry of the default order.

Here, in addition to the untimeliness of this CPLR 5015 motion to vacate, the bare and unsubstantiated assertions of law office failure are insufficient to establish a reasonable excuse for the default … . Moreover, the record shows that plaintiffs had a prior pattern of dilatory conduct, indicating that the default was not an excusable isolated event or inadvertent error … Because plaintiffs failed to provide an acceptable excuse for the default, it is unnecessary to address whether they demonstrated a meritorious cause of action … . Fernandez v Santos, 2018 NY Slip Op 03326, First Dept 5-8-18

​CIVIL PROCEDURE (DEFAULT, MOTION TO VACATE, LAW OFFICE FAILURE INSUFFICIENT, MOTION TO VACATE DEFAULT PROPERLY DENIED (FIRST DEPT))/ATTORNEYS (LAW OFFICE FAILURE INSUFFICIENT, MOTION TO VACATE DEFAULT PROPERLY DENIED (FIRST DEPT))/LAW OFFICE FAILURE (DEFAULT,  MOTION TO VACATE, LAW OFFICE FAILURE INSUFFICIENT, MOTION TO VACATE DEFAULT PROPERLY DENIED (FIRST DEPT))/DEFAULT, MOTION TO VACATE ( LAW OFFICE FAILURE INSUFFICIENT, MOTION TO VACATE DEFAULT PROPERLY DENIED (FIRST DEPT))/CPLR 5015 (DEFAULT, MOTION TO VACATE, LAW OFFICE FAILURE INSUFFICIENT, MOTION TO VACATE DEFAULT PROPERLY DENIED (FIRST DEPT))

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