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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))

ESSENTIAL EVIDENCE SUBMITTED IN REPLY PAPERS PROPERLY CONSIDERED BECAUSE A SURREPLY WAS ALLOWED (FIRST DEPT).

The First Department noted that essential evidence in reply papers was properly considered by the court because a surreply was allowed:

 … [T]o support amending a personal injury complaint to add a cause of action for wrongful death, plaintiffs were required to submit “competent medical proof of the causal connection between the alleged malpractice and the death of the original plaintiff” … . The affirmation of plaintiffs’ expert, which stated that to a reasonable degree of medical certainty the decedent’s injury led to his death, was sufficient, for the purposes of CPLR 3025(b), to establish a causal connection between the decedent’s death and the originally alleged negligence by defendants … . Plaintiff’s submission of the expert’s affirmation on reply is not fatal to the motion, because defendant was permitted to submit a surreply. Frangiadakis v 51 W. 81st St. Corp., 2018 NY Slip Op 03331, First Dept 5-8-18

​CIVIL PROCEDURE (REPLY PAPERS, ESSENTIAL EVIDENCE SUBMITTED IN REPLY PAPERS PROPERLY CONSIDERED BECAUSE A SURREPLY WAS ALLOWED (FIRST DEPT))/REPLY PAPERS (CIVIL PROCEDURE, ESSENTIAL EVIDENCE SUBMITTED IN REPLY PAPERS PROPERLY CONSIDERED BECAUSE A SURREPLY WAS ALLOWED (FIRST DEPT))

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PLAINTIFF’S MOTION TO AMEND HER COMPLAINT BY ADDING A BATTERY CAUSE OF ACTION AGAINST A TEACHER AND A RESPONDEAT SUPERIOR CAUSE OF ACTION AGAINST THE SCHOOL SHOULD HAVE BEEN GRANTED, CRITERIA EXPLAINED, RELATION-BACK DOCTRINE APPLIED TO THE NEW CAUSES OF ACTION (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined plaintiff’s motion to amend her complaint to add a battery cause of action against a teacher and a respondeat superior cause of action against the school should have been granted. Plaintiff alleged the defendant teacher struck her on the back of her head. The complaint alleged a negligence cause of action. Prior to trial plaintiff moved to amend the complaint to add the battery and respondeat superior causes of action. The motion was denied. The case went to trial and the jury rendered a defense verdict. Plaintiff will get a new trial on the two causes of action in the amended complaint:

It is well settled that, “[i]n the absence of prejudice or surprise, leave to amend a pleading should be freely granted” … . Plaintiff established that the relation-back doctrine applied for statute of limitations purposes with respect to the battery cause of action, which was based on the same facts and occurrence as the negligence cause of action and thus related back to the original complaint (see CPLR 203 [f]…). In opposition to the cross motion, defendants failed to establish that they would be prejudiced by plaintiff’s delay in seeking leave to amend the complaint … , inasmuch as the new causes of action were based upon the same facts as the negligence cause of action in the original complaint … .

Defendants argued in opposition to the cross motion that plaintiff failed to proffer any excuse for her delay in seeking leave to amend the complaint, but ” [m]ere lateness is not a barrier to the amendment. It must be lateness coupled with significant prejudice to the other side’ ” … . Therefore, although plaintiff provided no excuse for her delay in seeking leave to amend, that is of no moment because, as noted above, defendants have not shown that they were prejudiced by the delay … . Wojtalewski v Central Sq. Cent. Sch. Dist., 2018 NY Slip Op 03275, Fourth Dept 5-4-18

​EDUCATION-SCHOOL LAW (CIVIL PROCEDURE, PLAINTIFF’S MOTION TO AMEND HER COMPLAINT BY ADDING A BATTERY CAUSE OF ACTION AGAINST A TEACHER AND A RESPONDEAT SUPERIOR CAUSE OF ACTION AGAINST THE SCHOOL SHOULD HAVE BEEN GRANTED, CRITERIA EXPLAINED, RELATION-BACK DOCTRINE APPLIED TO THE NEW CAUSES OF ACTION (FOURTH DEPT))/EMPLOYMENT LAW (EDUCATION-SCHOOL LAW, CIVIL PROCEDURE, PLAINTIFF’S MOTION TO AMEND HER COMPLAINT BY ADDING A BATTERY CAUSE OF ACTION AGAINST A TEACHER AND A RESPONDEAT SUPERIOR CAUSE OF ACTION AGAINST THE SCHOOL SHOULD HAVE BEEN GRANTED, CRITERIA EXPLAINED, RELATION-BACK DOCTRINE APPLIED TO THE NEW CAUSES OF ACTION (FOURTH DEPT))/CIVIL PROCEDURE (AMEND COMPLAINT, PLAINTIFF’S MOTION TO AMEND HER COMPLAINT BY ADDING A BATTERY CAUSE OF ACTION AGAINST A TEACHER AND A RESPONDEAT SUPERIOR CAUSE OF ACTION AGAINST THE SCHOOL SHOULD HAVE BEEN GRANTED, CRITERIA EXPLAINED, RELATION-BACK DOCTRINE APPLIED TO THE NEW CAUSES OF ACTION (FOURTH DEPT))/COMPLAINTS (AMENDMENT, PLAINTIFF’S MOTION TO AMEND HER COMPLAINT BY ADDING A BATTERY CAUSE OF ACTION AGAINST A TEACHER AND A RESPONDEAT SUPERIOR CAUSE OF ACTION AGAINST THE SCHOOL SHOULD HAVE BEEN GRANTED, CRITERIA EXPLAINED, RELATION-BACK DOCTRINE APPLIED TO THE NEW CAUSES OF ACTION (FOURTH DEPT))/RELATION BACK DOCTRINE (AMENDMENT OF COMPLAINT, PLAINTIFF’S MOTION TO AMEND HER COMPLAINT BY ADDING A BATTERY CAUSE OF ACTION AGAINST A TEACHER AND A RESPONDEAT SUPERIOR CAUSE OF ACTION AGAINST THE SCHOOL SHOULD HAVE BEEN GRANTED, CRITERIA EXPLAINED, RELATION-BACK DOCTRINE APPLIED TO THE NEW CAUSES OF ACTION (FOURTH DEPT))/CPLR 203 (AMENDMENT OF COMPLAINT, RELATION-BACK, PLAINTIFF’S MOTION TO AMEND HER COMPLAINT BY ADDING A BATTERY CAUSE OF ACTION AGAINST A TEACHER AND A RESPONDEAT SUPERIOR CAUSE OF ACTION AGAINST THE SCHOOL SHOULD HAVE BEEN GRANTED, CRITERIA EXPLAINED, RELATION-BACK DOCTRINE APPLIED TO THE NEW CAUSES OF ACTION (FOURTH DEPT))

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MOTION TO SET ASIDE THE VERDICT AS NOT SUPPORTED BY LEGALLY SUFFICIENT EVIDENCE AND AS AGAINST THE WEIGHT OF THE EVIDENCE SHOULD HAVE BEEN GRANTED, THE EVIDENCE DID NOT ALLOW THE CONCLUSION THAT THE WILL, WRITTEN BY DECEDENT’S CARETAKER THREE DAYS BEFORE DEATH, WAS DULY EXECUTED (THIRD DEPT).

The Third Department determined the jury verdict finding the will offered by petitioner had been duly executed was not supported by legally sufficient evidence and was against the weight of the evidence. The will was handwritten by petitioner, not decedent, three days before his death. The decedent, who was terminally ill, had moved to petitioner’s family-type adult home only three weeks before his death. One attesting witness had worked at the home for 28 years. The other attesting witness had lived at the home for seven years and was petitioner’s friend:

A verdict may be set aside as unsupported by legally sufficient evidence where “there is simply no valid line of reasoning and permissible inferences which could possibly lead rational [people] to the conclusion reached by the jury on the basis of the evidence presented at trial” … .. A jury verdict may be found to be against the weight of the evidence “where the proof so preponderated in favor of the unsuccessful party that the verdict could not have been reached on any fair interpretation of the evidence” … . * * *

Upon this record, we cannot find legally sufficient evidence to support the jury’s verdict finding that the will had been duly executed … . Further, the jury’s verdict is against the weight of the evidence, as it could not have been reached on a fair interpretation of the evidence … . Matter of Fraccaro, 2018 NY Slip Op 03198, Third Dept 5-3-18

TRUSTS AND ESTATES (MOTION TO SET ASIDE THE VERDICT AS NOT SUPPORTED BY LEGALLY SUFFICIENT EVIDENCE AND AS AGAINST THE WEIGHT OF THE EVIDENCE SHOULD HAVE BEEN GRANTED, THE EVIDENCE DID NOT ALLOW THE CONCLUSION THAT THE WILL, WRITTEN BY DECEDENT’S CARETAKER THREE DAYS BEFORE DEATH, WAS DULY EXECUTED (THIRD DEPT))/WILLS (MOTION TO SET ASIDE THE VERDICT AS NOT SUPPORTED BY LEGALLY SUFFICIENT EVIDENCE AND AS AGAINST THE WEIGHT OF THE EVIDENCE SHOULD HAVE BEEN GRANTED, THE EVIDENCE DID NOT ALLOW THE CONCLUSION THAT THE WILL, WRITTEN BY DECEDENT’S CARETAKER THREE DAYS BEFORE DEATH, WAS DULY EXECUTED (THIRD DEPT))/VERDICT, MOTION TO SET ASIDE (MOTION TO SET ASIDE THE VERDICT AS NOT SUPPORTED BY LEGALLY SUFFICIENT EVIDENCE AND AS AGAINST THE WEIGHT OF THE EVIDENCE SHOULD HAVE BEEN GRANTED, THE EVIDENCE DID NOT ALLOW THE CONCLUSION THAT THE WILL, WRITTEN BY DECEDENT’S CARETAKER THREE DAYS BEFORE DEATH, WAS DULY EXECUTED (THIRD DEPT))

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INMATE-PETITIONER’S INITIAL PRO SE ATTEMPT TO FILE A LATE NOTICE OF CLAIM REGARDING AN INCIDENT IN THE COUNTY JAIL BY SENDING THE PAPERS TO THE COURT CLERK, NOT THE COUNTY COURT, WAS A NULLITY, PETITIONER’S SECOND ATTEMPT TO FILE A LATE NOTICE AFTER THE STATUTE OF LIMITATIONS HAD RUN COULD NOT, THEREFORE, RELATE BACK TO THE INITIAL ATTEMPT (THIRD DEPT).

The Third Department determined that the inmate-petitioner’s motion for leave to file a late notice of claim, based upon an incident in the county jail, could not relate back to petitioner’s first (pro se) attempt to file a late notice of claim. Petitioner’s first attempt was sent to the court clerk as opposed to the county clerk. The court clerk returned the papers and instructed the petitioner to send them to the county clerk. Nothing further was done by the petitioner until an attorney was assigned and the statute of limitations had passed. The relation-back doctrine could not be applied because the failure to file the original papers with the county clerk was a jurisdictional defect:

… [W]here an action to enforce a claim has not yet been commenced, a party seeking to make an application for leave to serve a late notice of claim should commence a special proceeding in the Supreme Court or the County Court in a county where the action may be properly brought to trial (see General Municipal Law § 50-e [7]…). A special proceeding is commenced by the filing of initiatory papers with the County Clerk in the county in which the special proceeding is brought or with any other person designated by the County Clerk to accept filing… . While the Supreme Court or the County Court may convert an improperly brought motion for leave to serve a late notice of claim into a special proceeding … , the failure to file the application with the appropriate clerk — the County Clerk — is a fatal defect that may not be overlooked or corrected by the court pursuant to CPLR 2001… . Indeed, the filing of initiatory papers with the Clerk of the Supreme and County Courts, rather than the County Clerk, “has been equated to a nonfiling and, thus, ‘a nonwaivable jurisdictional defect rendering the proceeding a nullity'” … . Matter of Dougherty v County of Greene, 2018 NY Slip Op 03192, Third Dept 5-3-18

​MUNICIPAL LAW (NOTICE OF CLAIM, INMATE-PETITIONER’S INITIAL PRO SE ATTEMPT TO FILE A LATE NOTICE OF CLAIM REGARDING AN INCIDENT IN THE COUNTY JAIL BY SENDING THE PAPERS TO THE COURT CLERK, NOT THE COUNTY COURT, WAS A NULLITY, PETITIONER’S SECOND ATTEMPT TO FILE A LATE NOTICE AFTER THE STATUTE OF LIMITATIONS HAD RUN COULD NOT, THEREFORE, RELATE BACK TO THE INITIAL ATTEMPT (THIRD DEPT))/NOTICE OF CLAIM (MUNICIPAL LAW,  INMATE-PETITIONER’S INITIAL PRO SE ATTEMPT TO FILE A LATE NOTICE OF CLAIM REGARDING AN INCIDENT IN THE COUNTY JAIL BY SENDING THE PAPERS TO THE COURT CLERK, NOT THE COUNTY COURT, WAS A NULLITY, PETITIONER’S SECOND ATTEMPT TO FILE A LATE NOTICE AFTER THE STATUTE OF LIMITATIONS HAD RUN COULD NOT, THEREFORE, RELATE BACK TO THE INITIAL ATTEMPT (THIRD DEPT))/CIVIL PROCEDURE (NOTICE OF CLAIM, RELATION BACK, INMATE-PETITIONER’S INITIAL PRO SE ATTEMPT TO FILE A LATE NOTICE OF CLAIM REGARDING AN INCIDENT IN THE COUNTY JAIL BY SENDING THE PAPERS TO THE COURT CLERK, NOT THE COUNTY COURT, WAS A NULLITY, PETITIONER’S SECOND ATTEMPT TO FILE A LATE NOTICE AFTER THE STATUTE OF LIMITATIONS HAD RUN COULD NOT, THEREFORE, RELATE BACK TO THE INITIAL ATTEMPT (THIRD DEPT))/STATUTE OF LIMITATIONS (NOTICE OF CLAIM, INMATE-PETITIONER’S INITIAL PRO SE ATTEMPT TO FILE A LATE NOTICE OF CLAIM REGARDING AN INCIDENT IN THE COUNTY JAIL BY SENDING THE PAPERS TO THE COURT CLERK, NOT THE COUNTY COURT, WAS A NULLITY, PETITIONER’S SECOND ATTEMPT TO FILE A LATE NOTICE AFTER THE STATUTE OF LIMITATIONS HAD RUN COULD NOT, THEREFORE, RELATE BACK TO THE INITIAL ATTEMPT (THIRD DEPT))/COUNTY CLERK (FILING LATE NOTICE OF CLAIM, INMATE-PETITIONER’S INITIAL PRO SE ATTEMPT TO FILE A LATE NOTICE OF CLAIM REGARDING AN INCIDENT IN THE COUNTY JAIL BY SENDING THE PAPERS TO THE COURT CLERK, NOT THE COUNTY COURT, WAS A NULLITY, PETITIONER’S SECOND ATTEMPT TO FILE A LATE NOTICE AFTER THE STATUTE OF LIMITATIONS HAD RUN COULD NOT, THEREFORE, RELATE BACK TO THE INITIAL ATTEMPT (THIRD DEPT))

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FEDERAL RISK RETENTION GROUP (RRG) LAW PREEMPTS NEW YORK INSURANCE LAW’S TIMELY DISCLAIMER OF COVERAGE PROVISION, THEREFORE DEFENDANT FOREIGN RRG DID NOT NEED TO COMPLY WITH NEW YORK’S STATUTORY TIMELY DISCLAIMER REQUIREMENT (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Singh, in a matter of first impression, determined that federal law, the Liability Risk Retention Act (LRRA), preempted New York’s Insurance Law section 3420(d)(2). Therefore defendant foreign risk retention group (RRG) [Preferred Contractors Insurance Company Risk Retention Group LLC (PCIC)], did not need to comply with the timely notice of disclaimer requirement of Insurance Law 3420(d)(2). Plaintiff general contractor, Nadkos, sued PCIC because PCIC claimed it had no duty to defend Nadkos in a construction-accident personal injury case brought by a subcontractor and PCIC had not provided the timely notice of disclaimer required by New York’s Insurance Law. The legal argument is complex and no attempt to fairly summarize it is made here:

Application of Insurance Law § 3420(d)(2) to PCIC or to any other RRG would directly or indirectly regulate these groups in violation of 15 USC § 3902(a)(1). Section 3420(d)(2) alters the rights and obligations of the carrier and insured under the policy by creating additional rights for the injured party, that is not contemplated by the LRRA and not required by all other states. …

This heightened standard requirement in New York impairs an RRG’s ability to operate on a nationwide basis “without being compelled to tailor their policies to the specific requirements of every state in which they do business”… . As Congress has chosen to limit the power of nondomiciliary states to regulate RRGs, the LRRA clearly preempts Insurance Law § 3420(d)(2). Nadkos, Inc. v Preferred Contrs. Ins. Co. Risk Retention Group LLC, 2018 NY Slip Op 03242, First Dept 5-3-18

​INSURANCE LAW (FEDERAL RISK RETENTION GROUP (RRG) LAW PREEMPTS NEW YORK INSURANCE LAW’S TIMELY DISCLAIMER OF COVERAGE PROVISION, THEREFORE DEFENDANT FOREIGN RRG DID NOT NEED TO COMPLY WITH NEW YORK’S STATUTORY TIMELY DISCLAIMER REQUIREMENT (FIRST DEPT))/DISCLAIMER (INSURANCE LAW, FEDERAL RISK RETENTION GROUP (RRG) LAW PREEMPTS NEW YORK INSURANCE LAW’S TIMELY DISCLAIMER OF COVERAGE PROVISION, THEREFORE DEFENDANT FOREIGN RRG DID NOT NEED TO COMPLY WITH NEW YORK’S STATUTORY TIMELY DISCLAIMER REQUIREMENT (FIRST DEPT))/PREEMPTION (INSURANCE LAW, FEDERAL RISK RETENTION GROUP (RRG) LAW PREEMPTS NEW YORK INSURANCE LAW’S TIMELY DISCLAIMER OF COVERAGE PROVISION, THEREFORE DEFENDANT FOREIGN RRG DID NOT NEED TO COMPLY WITH NEW YORK’S STATUTORY TIMELY DISCLAIMER REQUIREMENT (FIRST DEPT))/RISK RETENTION GROUP (RRG)  (INSURANCE LAW, FEDERAL RISK RETENTION GROUP (RRG) LAW PREEMPTS NEW YORK INSURANCE LAW’S TIMELY DISCLAIMER OF COVERAGE PROVISION, THEREFORE DEFENDAN

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DEPARTMENT OF ENVIRONMENTAL CONSERVATION’S (DEC’S) DETERMINATIONS ON THE USE OF SNOWMOBILES IN NEWLY ADDED PORTIONS OF THE ADIRONDACK PARK UPHELD, TWO CHALLENGES NOT RIPE FOR REVIEW (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Rumsey, over a two-justice partial dissent, upheld the Department of Environmental Conservation’s (DEC’s) determinations regarding snowmobile trails in newly added portions of the Adirondack Park. Because approval of the trails was still subject to permits and variances, two of petitioners’ causes of action were deemed not ripe for review. The Third Department determined there was no conflict between the Rivers System Act and the Adirondack Park State Land Master Plan. The Rivers System Act was deemed to control and the act allowed the proposed snowmobile traffic as a continuation of an existing use. And the Third Department held that a 2009 “guidance” document for the siting of snowmobile trails adopted by the DEC did not commit the DEC to a definite course of future action. Concerning the “ripeness” issue, the court wrote:

… [P]ermits and variances must be obtained through further administrative action before the proposed uses may be established. Specifically, permits are required to erect a bridge over a scenic river …  or to construct a trail within a scenic river area … . Moreover, variances are required for the use of motorized vehicles within scenic river areas … , and for construction of a Class II snowmobile trail, to the extent that it may exceed the maximum trail width of four feet that is permitted by regulation … . Permit and variance applications are governed by the Uniform Procedures Act … , which imposes conditions related to the substantive relief sought and provides the opportunity for further public participation. No permit or variance may be granted unless the proposed use is consistent with the purpose of the Rivers System Act … , and conditions may be imposed as necessary to preserve and protect affected river resources or to assure compliance with the Rivers System Act … . Moreover, there is an opportunity for public comment on applications for a permit or a variance …  and the granting of a permit or variance may be challenged through a CPLR article 78 proceeding. Thus, inasmuch as the harms upon which the first and second causes of action are based may be prevented or ameliorated by further administrative action, Supreme Court correctly concluded that the first and second causes of action are not ripe for judicial review. Matter of Adirondack Wild: Friends of The Forest Preserve v New York State Adirondack Park Agency, 2018 NY Slip Op 03193. Third Dept 5-3-18

​ENVIRONMENTAL LAW (DEPARTMENT OF ENVIRONMENTAL CONSERVATION’S (DEC’S) DETERMINATIONS ON THE USE OF SNOWMOBILES IN NEWLY ADDED PORTIONS OF THE ADIRONDACK PARK UPHELD, TWO CHALLENGES NOT RIPE FOR REVIEW (THIRD DEPT))/ADIRONDACK PARK (DEPARTMENT OF ENVIRONMENTAL CONSERVATION’S (DEC’S) DETERMINATIONS ON THE USE OF SNOWMOBILES IN NEWLY ADDED PORTIONS OF THE ADIRONDACK PARK UPHELD, TWO CHALLENGES NOT RIPE FOR REVIEW (THIRD DEPT))/CIVIL PROCEDURE (RIPENESS, DEPARTMENT OF ENVIRONMENTAL CONSERVATION’S (DEC’S) DETERMINATIONS ON THE USE OF SNOWMOBILES IN NEWLY ADDED PORTIONS OF THE ADIRONDACK PARK UPHELD, TWO CHALLENGES NOT RIPE FOR REVIEW (THIRD DEPT))/RIPENESS (CIVIL PROCEDURE, DEPARTMENT OF ENVIRONMENTAL CONSERVATION’S (DEC’S) DETERMINATIONS ON THE USE OF SNOWMOBILES IN NEWLY ADDED PORTIONS OF THE ADIRONDACK PARK UPHELD, TWO CHALLENGES NOT RIPE FOR REVIEW (THIRD DEPT))/SNOWMOBILES (ADIRONDACK PARK, DEPARTMENT OF ENVIRONMENTAL CONSERVATION’S (DEC’S) DETERMINATIONS ON THE USE OF SNOWMOBILES IN NEWLY ADDED PORTIONS OF THE ADIRONDACK PARK UPHELD, TWO CHALLENGES NOT RIPE FOR REVIEW (THIRD DEPT))/LAND USE (ADIRONDACK PARK, SNOWMOBILES, (DEPARTMENT OF ENVIRONMENTAL CONSERVATION’S (DEC’S) DETERMINATIONS ON THE USE OF SNOWMOBILES IN NEWLY ADDED PORTIONS OF THE ADIRONDACK PARK UPHELD, TWO CHALLENGES NOT RIPE FOR REVIEW (THIRD DEPT))

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COURT PROPERLY RELIED ON UNSIGNED COPIES OF A DEPOSITION TRANSCRIPT BECAUSE DEFENDANT DID NOT RETURN SIGNED COPIES WITHIN 60 DAYS AND DID NOT CHALLENGE THE ACCURACY OF THE TRANSCRIPT (FIRST DEPT).

The First Department noted that the court, in awarding summary judgment to plaintiff, properly relied upon unsigned copies of the transcript of the deposition testimony of defendant’s witness because the defendant failed to return signed copies within 60 days and did not challenge the accuracy of the transcript (CPLR 3116(a)). Shackman v 400 E. 85th St. Realty Corp., 2018 NY Slip Op 03223, First Dept 5-3-18

​CIVIL PROCEDURE (DEPOSITION TRANSCRIPTS, COURT PROPERLY RELIED ON UNSIGNED COPIES OF A DEPOSITION TRANSCRIPT BECAUSE DEFENDANT DID NOT RETURN SIGNED COPIES WITHIN 60 DAYS AND DID NOT CHALLENGE THE ACCURACY OF THE TRANSCRIPT (FIRST DEPT))/EVIDENCE (DEPOSITION TRANSCRIPTS, COURT PROPERLY RELIED ON UNSIGNED COPIES OF A DEPOSITION TRANSCRIPT BECAUSE DEFENDANT DID NOT RETURN SIGNED COPIES WITHIN 60 DAYS AND DID NOT CHALLENGE THE ACCURACY OF THE TRANSCRIPT (FIRST DEPT))/DEPOSITIONS (UNSIGNED TRANSCRIPTS, EVIDENCE, COURT PROPERLY RELIED ON UNSIGNED COPIES OF A DEPOSITION TRANSCRIPT BECAUSE DEFENDANT DID NOT RETURN SIGNED COPIES WITHIN 60 DAYS AND DID NOT CHALLENGE THE ACCURACY OF THE TRANSCRIPT (FIRST DEPT))/UNSIGNED DEPOSITIONS ( COURT PROPERLY RELIED ON UNSIGNED COPIES OF A DEPOSITION TRANSCRIPT BECAUSE DEFENDANT DID NOT RETURN SIGNED COPIES WITHIN 60 DAYS AND DID NOT CHALLENGE THE ACCURACY OF THE TRANSCRIPT (FIRST DEPT))/CPLR 3116(a) (DEPOSITION TRANSCRIPTS, COURT PROPERLY RELIED ON UNSIGNED COPIES OF A DEPOSITION TRANSCRIPT BECAUSE DEFENDANT DID NOT RETURN SIGNED COPIES WITHIN 60 DAYS AND DID NOT CHALLENGE THE ACCURACY OF THE TRANSCRIPT (FIRST DEPT))

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