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PLAINTIFF WAS ENTITLED TO A JURY TRIAL ON THE ISSUE OF THE APPROPRIATE DISCOUNT RATE TO BE APPLIED TO A JURY VERDICT IN THIS BREACH OF CONTRACT ACTION (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, in a case sent back by the Court of Appeals for a determination of the appropriate discount rate on a jury verdict in a breach of contract action, held the plaintiff’s request for a jury trial on the issue should have been granted:

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… [I]t is undisputed that, prior to the original trial in this matter, plaintiff demanded a jury trial on all issues. During that trial, “[o]ver the [plaintiff’s] objection, the jury was provided with a verdict form that did not allow for any damages discount” … . Although the Court of Appeals remitted the matter for the purpose of establishing a discount rate, it did not indicate whether the discount rate should be determined by the trial court or a jury. Nevertheless, prior to the trial that is the subject of this appeal, plaintiff renewed its request for a jury, which the court denied. Contrary to defendant’s contention, neither article 50-A nor article 50-B of the CPLR requires that the discount rate be determined by the court. As the Court of Appeals stated, this is a breach of contract action… . Article 50-A deals with periodic payment of judgments in actions concerning medical and dental malpractice, and article 50-B deals with periodic payment of judgments in actions concerning personal injury, injury to property, and wrongful death. Furthermore, we conclude that Toledo v Iglesia Ni Christo (18 NY3d 363 [2012]) does not require the trial court to determine the discount rate in this case inasmuch as Toledo was a wrongful death case within the purview of CPLR article 50-B. Village of Herkimer v County of Herkimer, 2018 NY Slip Op 00756, Fourth Dept 2-2-18

CIVIL PROCEDURE (JURY TRIAL, PLAINTIFF WAS ENTITLED TO A JURY TRIAL ON THE ISSUE OF THE APPROPRIATE DISCOUNT RATE TO BE APPLIED TO A JURY VERDICT IN THIS BREACH OF CONTRACT ACTION (FOURTH DEPT))/DAMAGES (JURY TRIAL, PLAINTIFF WAS ENTITLED TO A JURY TRIAL ON THE ISSUE OF THE APPROPRIATE DISCOUNT RATE TO BE APPLIED TO A JURY VERDICT IN THIS BREACH OF CONTRACT ACTION (FOURTH DEPT))/DISCOUNT RATE (DAMAGES, JURY TRIAL, PLAINTIFF WAS ENTITLED TO A JURY TRIAL ON THE ISSUE OF THE APPROPRIATE DISCOUNT RATE TO BE APPLIED TO A JURY VERDICT IN THIS BREACH OF CONTRACT ACTION (FOURTH DEPT))/JURY TRIAL (BREACH OF CONTRACT, DISCOUNT RATE, PLAINTIFF WAS ENTITLED TO A JURY TRIAL ON THE ISSUE OF THE APPROPRIATE DISCOUNT RATE TO BE APPLIED TO A JURY VERDICT IN THIS BREACH OF CONTRACT ACTION (FOURTH DEPT))/CONTRACT LAW (DAMAGES, JURY TRIAL, PLAINTIFF WAS ENTITLED TO A JURY TRIAL ON THE ISSUE OF THE APPROPRIATE DISCOUNT RATE TO BE APPLIED TO A JURY VERDICT IN THIS BREACH OF CONTRACT ACTION (FOURTH DEPT))

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DEFENDANTS IN THIS WRONGFUL DEATH CASE WERE ENTITLED TO DISCOVERY OF TAX RETURNS TO DETERMINE WHETHER THE MOTHER AND FATHER WERE MARRIED AT THE TIME OF MOTHER’S DEATH, IF SO, THE STATUTE OF LIMITATIONS HAD PASSED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined defendants in this wrongful death case were entitled to discovery of tax returns to determine whether the parents of the plaintiff-children were married. If the parents were married when mother died, the statute of limitations had passed:

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Individual tax returns are generally not discoverable unless the movant makes a ” requisite showing that [the] tax returns [are] indispensable to [the] litigation and that [the] relevant information possibly contained therein [is] unavailable from other sources’ ” … . A wrongful death action has a two-year statute of limitations from the date of the decedent’s death…  Where the sole distributee is an infant, the statute is tolled “until appointment of a guardian or the majority of the sole distributee, whichever is earlier”… . Where, however, the decedent is married and the surviving spouse is thus a distributee of the estate, the infancy toll does not apply because the spouse “was available both to seek appointment as the personal representative of the estate and to commence an action on behalf of the children in a timely fashion” … . Has K’Paw Mu v Lyon, 2018 NY Slip Op 00687, Fourth Dept 2-2-18

CIVIL PROCEDURE (DISCOVERY, TAX RETURNS, DEFENDANTS IN THIS WRONGFUL DEATH CASE WERE ENTITLED TO DISCOVERY TAX RETURNS TO DETERMINE WHETHER THE MOTHER AND FATHER WERE MARRIED AT THE TIME OF MOTHER’S DEATH, IF SO, THE STATUTE OF LIMITATIONS HAD PASSED (FOURTH DEPT))/DISCOVERY (TAX RETURNS, DEFENDANTS IN THIS WRONGFUL DEATH CASE WERE ENTITLED TO DISCOVERY TAX RETURNS TO DETERMINE WHETHER THE MOTHER AND FATHER WERE MARRIED AT THE TIME OF MOTHER’S DEATH, IF SO, THE STATUTE OF LIMITATIONS HAD PASSED (FOURTH DEPT))/TAX RETURNS (CIVIL PROCEDURE, DISCOVERY, DEFENDANTS IN THIS WRONGFUL DEATH CASE WERE ENTITLED TO DISCOVERY TAX RETURNS TO DETERMINE WHETHER THE MOTHER AND FATHER WERE MARRIED AT THE TIME OF MOTHER’S DEATH, IF SO, THE STATUTE OF LIMITATIONS HAD PASSED (FOURTH DEPT))/STATUTE OF LIMITATIONS (WRONGFUL DEATH, DISCOVERY, TAX RETURNS, DEFENDANTS IN THIS WRONGFUL DEATH CASE WERE ENTITLED TO DISCOVERY TAX RETURNS TO DETERMINE WHETHER THE MOTHER AND FATHER WERE MARRIED AT THE TIME OF MOTHER’S DEATH, IF SO, THE STATUTE OF LIMITATIONS HAD PASSED (FOURTH DEPT))/WRONGFUL DEATH  (DISCOVERY, TAX RETURNS, DEFENDANTS IN THIS WRONGFUL DEATH CASE WERE ENTITLED TO DISCOVERY TAX RETURNS TO DETERMINE WHETHER THE MOTHER AND FATHER WERE MARRIED AT THE TIME OF MOTHER’S DEATH, IF SO, THE STATUTE OF LIMITATIONS HAD PASSED (FOURTH DEPT))/TRUSTS AND ESTATES (WRONGFUL DEATH, DISCOVERY, TAX RETURNS, DEFENDANTS IN THIS WRONGFUL DEATH CASE WERE ENTITLED TO DISCOVERY TAX RETURNS TO DETERMINE WHETHER THE MOTHER AND FATHER WERE MARRIED AT THE TIME OF MOTHER’S DEATH, IF SO, THE STATUTE OF LIMITATIONS HAD PASSED (FOURTH DEPT))

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DEFENDANT’S MOTION TO VACATE THE DEFAULT JUDGMENT ON THE GROUND THAT THE ISSUING COURT DID NOT HAVE PERSONAL JURISDICTION SHOULD NOT HAVE BEEN DISMISSED EVEN THOUGH THE JUDGMENT HAD BEEN SATISFIED BY A PROPERTY EXECUTION, IF DEFENDANT CAN DEMONSTRATE A LACK OF PERSONAL JURISDICTION, THE JUDGMENT WILL BE A NULLITY (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the defendant did have standing to move to vacate a default judgment on the ground that the court which issued the judgment did not have personal jurisdiction over the defendant. The judgment had been satisfied by a property execution on the defendant’s bank account:

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Where, as here, a defendant moves to vacate a default judgment on the ground that the court that rendered the judgment lacked personal jurisdiction over the defendant … a finding in favor of the defendant would mean that the judgment was “a nullity” . It necessarily follows that, “if a judgment is a nullity, it never legally existed so as to become extinguished by payment” … . …

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In addition, inasmuch as plaintiff levied the judgment amount with interest by a property execution on defendant’s bank account, we conclude that defendant did not voluntarily pay and satisfy the judgment … . Thus, it cannot be said that she waived the defense of lack of personal jurisdiction … . Cach, LLC v Ryan, 2018 NY Slip Op 00755, Fourth Dept 2-2-18

 

DEBTOR-CREDITOR (DEFENDANT’S MOTION TO VACATE THE DEFAULT JUDGMENT ON THE GROUND THAT THE ISSUING COURT DID NOT HAVE PERSONAL JURISDICTION SHOULD NOT HAVE BEEN DISMISSED EVEN THOUGH THE JUDGMENT HAD BEEN SATISFIED BY A PROPERTY EXECUTION, IF DEFENDANT CAN DEMONSTRATE A LACK OF PERSONAL JURISDICTION, THE JUDGMENT WILL BE A NULLITY (FOURTH DEPT))/CIVIL PROCEDURE (PERSONAL JURISDICTION, DEFAULT JUDGMENT, DEFENDANT’S MOTION TO VACATE THE DEFAULT JUDGMENT ON THE GROUND THAT THE ISSUING COURT DID NOT HAVE PERSONAL JURISDICTION SHOULD NOT HAVE BEEN DISMISSED EVEN THOUGH THE JUDGMENT HAD BEEN SATISFIED BY A PROPERTY EXECUTION, IF DEFENDANT CAN DEMONSTRATE A LACK OF PERSONAL JURISDICTION, THE JUDGMENT WILL BE A NULLITY (FOURTH DEPT))/DEFAULT JUDGMENT (PERSONAL JURISDICTION, (DEFENDANT’S MOTION TO VACATE THE DEFAULT JUDGMENT ON THE GROUND THAT THE ISSUING COURT DID NOT HAVE PERSONAL JURISDICTION SHOULD NOT HAVE BEEN DISMISSED EVEN THOUGH THE JUDGMENT HAD BEEN SATISFIED BY A PROPERTY EXECUTION, IF DEFENDANT CAN DEMONSTRATE A LACK OF PERSONAL JURISDICTION, THE JUDGMENT WILL BE A NULLITY (FOURTH DEPT))/PERSONAL JURISDICTION (DEFAULT JUDGMENT, DEFENDANT’S MOTION TO VACATE THE DEFAULT JUDGMENT ON THE GROUND THAT THE ISSUING COURT DID NOT HAVE PERSONAL JURISDICTION SHOULD NOT HAVE BEEN DISMISSED EVEN THOUGH THE JUDGMENT HAD BEEN SATISFIED BY A PROPERTY EXECUTION, IF DEFENDANT CAN DEMONSTRATE A LACK OF PERSONAL JURISDICTION, THE JUDGMENT WILL BE A NULLITY (FOURTH DEPT))

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PLAINTIFFS’ MOTION TO SET ASIDE THE JURY’S DAMAGES AWARD IN THIS PERSONAL INJURY CASE SHOULD NOT HAVE BEEN GRANTED, THE JURY WAS FREE TO DISREGARD EXPERT OPINION (FOURTH DEPT).

The Fourth Department, modifying Supreme Court, reinstated the jury’s damages award in this personal injury case. Plaintiffs moved to set aside the damages award unless the defendant stipulated to an increased amount and Supreme Court granted the motion. The Fourth Department explained that the jury was free to disregard expert opinion and the jury could have concluded that plaintiff had exaggerated her injuries or that the injuries were preexisting:

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“It is well settled that the amount of damages to be awarded for personal injuries is primarily a question for the jury . . . , the judgment of which is entitled to great deference based upon its evaluation of the evidence, including conflicting expert testimony” … .. Thus, “even in cases where there is evidence which could support a conclusion different from that of a jury, its verdict will still be accorded great deference and respect so long as there is credible evidence to support its interpretation” … . In addition, ” a jury is at liberty to reject an expert’s opinion if it finds the facts to be different from those which formed the basis for the opinion or if, after careful consideration of all the evidence in the case, it disagrees with the opinion’ “… . In short, “[w]here the verdict can be reconciled with a reasonable view of the evidence, the successful party is entitled to the presumption that the jury adopted that view” … . Mecca v Buffalo Niagara Convention Ctr. Mgt. Corp., 2018 NY Slip Op 00735, Fourth Dept 2-2-18

NEGLIGENCE (DAMAGES, PLAINTIFFS’ MOTION TO SET ASIDE THE JURY’S DAMAGES AWARD IN THIS PERSONAL INJURY CASE SHOULD NOT HAVE BEEN GRANTED, THE JURY WAS FREE TO DISREGARD EXPERT OPINION (FOURTH DEPT))/CIVIL PROCEDURE (PLAINTIFFS’ MOTION TO SET ASIDE THE JURY’S DAMAGES AWARD IN THIS PERSONAL INJURY CASE SHOULD NOT HAVE BEEN GRANTED, THE JURY WAS FREE TO DISREGARD EXPERT OPINION (FOURTH DEPT))/EVIDENCE (EXPERT OPINION, DAMAGES,  PLAINTIFFS’ MOTION TO SET ASIDE THE JURY’S DAMAGES AWARD IN THIS PERSONAL INJURY CASE SHOULD NOT HAVE BEEN GRANTED, THE JURY WAS FREE TO DISREGARD EXPERT OPINION (FOURTH DEPT))/EXPERT OPINION (DAMAGES, LAINTIFFS’ MOTION TO SET ASIDE THE JURY’S DAMAGES AWARD IN THIS PERSONAL INJURY CASE SHOULD NOT HAVE BEEN GRANTED, THE JURY WAS FREE TO DISREGARD EXPERT OPINION (FOURTH DEPT))/DAMAGES (PERSONAL INJURY,  PLAINTIFFS’ MOTION TO SET ASIDE THE JURY’S DAMAGES AWARD IN THIS PERSONAL INJURY CASE SHOULD NOT HAVE BEEN GRANTED, THE JURY WAS FREE TO DISREGARD EXPERT OPINION (FOURTH DEPT))/CPLR 4404 (PLAINTIFFS’ MOTION TO SET ASIDE THE JURY’S DAMAGES AWARD IN THIS PERSONAL INJURY CASE SHOULD NOT HAVE BEEN GRANTED, THE JURY WAS FREE TO DISREGARD EXPERT OPINION (FOURTH DEPT))

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MOTION TO DISMISS MADE BY DECEASED DEFENDANT’S FORMER ATTORNEY PURPORTEDLY ON DECEDENT’S BEHALF WAS A NULLITY, MOTIONS TO DISMISS MADE BY OTHER DEFENDANTS ARGUING THAT PLAINTIFFS DID NOT TAKE TIMELY STEPS TO SUBSTITUTE A REPRESENTATIVE FOR THE DECEASED DEFENDANT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department determined plaintiff’s failure to take timely steps to substitute a representative for a defendant who had died required the dismissal of the complaint against that defendant. A motion to dismiss made by decedent’s former attorney, purportedly on behalf of the decedent, was a nullity and should not have been granted. Motions to dismiss made by the other defendants should have been granted:

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“The death of a party divests the court of jurisdiction and stays the proceedings until a proper substitution has been made pursuant to CPLR 1015(a). Moreover, any determination rendered without such substitution will generally be deemed a nullity” … . The death of a party terminates his or her attorney’s authority to act on behalf of the deceased party… . Although the determination of a motion pursuant to CPLR 1021 made by the successors or representatives of a party or by any party is an exception to a court’s lack of jurisdiction, here, one of the motions pursuant to CPLR 1021 was made by the former attorney for the decedent purportedly on behalf of the decedent. Since the former attorney lacked the authority to act, the Supreme Court lacked jurisdiction to consider that motion to dismiss … . Accordingly, so much of the order as granted the motion purportedly made on behalf of the decedent is a nullity.

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Nonetheless, the Supreme Court had jurisdiction to consider the other defendants’ separate motions to dismiss pursuant to CPLR 1021 and to consider the plaintiffs’ cross motion. CPLR 1021 provides, in pertinent part, that “[i]f the event requiring substitution occurs before final judgment and substitution is not made within a reasonable time, the action may be dismissed as to the party for whom substitution should have been made, however, such dismissal shall not be on the merits unless the court shall so indicate” … . …

Here, the Supreme Court providently exercised its discretion in determining that substitution of the decedent was not made within a reasonable time. As such, the court providently exercised its discretion in denying those branches of the plaintiffs’ cross motion which were to appoint a representative for the decedent and, upon appointment, substitute the representative for the decedent as a defendant. Given that substitution was not made within a reasonable time, dismissal of the complaint as against the decedent, “the party for whom substitution should have been made” (CPLR 1021), was proper. However, contrary to the court’s determination, CPLR 1021 did not authorize dismissal of the complaint as against any of the other defendants. Vicari v Kleinwaks, 2018 NY Slip Op 00576, Second Dept 1-31-18

CIVIL PROCEDURE (SUBSTITUTION OF REPRESENTATIVE FOR DECEASED DEFENDANT, MOTION TO DISMISS MADE BY DECEASED DEFENDANT’S FORMER ATTORNEY PURPORTEDLY ON DECEDENT’S BEHALF WAS A NULLITY, MOTIONS TO DISMISS MADE BY OTHER DEFENDANTS ARGUING THAT PLAINTIFFS DID NOT TAKE TIMELY STEPS TO SUBSTITUTE A REPRESENTATIVE FOR THE DECEASED DEFENDANT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/SUBSTITUTION OF REPRESENTATIVE FOR DECEASED DEFENDANT MOTION TO DISMISS MADE BY DECEASED DEFENDANT’S FORMER ATTORNEY PURPORTEDLY ON DECEDENT’S BEHALF WAS A NULLITY, MOTIONS TO DISMISS MADE BY OTHER DEFENDANTS ARGUING THAT PLAINTIFFS DID NOT TAKE TIMELY STEPS TO SUBSTITUTE A REPRESENTATIVE FOR THE DECEASED DEFENDANT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/TRUSTS AND ESTATES (CIVIL PROCEDURE, SUBSTITUTION OF REPRESENTATIVE FOR DECEASED DEFENDANT, MOTION TO DISMISS MADE BY DECEASED DEFENDANT’S FORMER ATTORNEY PURPORTEDLY ON DECEDENT’S BEHALF WAS A NULLITY, MOTIONS TO DISMISS MADE BY OTHER DEFENDANTS ARGUING THAT PLAINTIFFS DID NOT TAKE TIMELY STEPS TO SUBSTITUTE A REPRESENTATIVE FOR THE DECEASED DEFENDANT SHOULD HAVE BEEN GRANTED (SECOND DEPT))

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FILING A 90 DAY NOTICE AND THEN DISCONTINUING THE FORECLOSURE ACTION IN 2014 DID NOT REVOKE THE ELECTION TO ACCELERATE REPRESENTED BY THE FILING OF THE SUMMONS AND COMPLAINT IN 2008, FORECLOSURE ACTION PROPERLY DISMISSED AS UNTIMELY (SECOND DEPT).

The Second Department determined the foreclosure action was untimely. The summons and complaint operated to accelerate the debt, triggering the six-year statute of limitations. The fact that the plaintiff bank filed a 90-day notice within the six years and then subsequently discontinued the foreclosure action did not revoke the election to accelerate:

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The filing of the summons and complaint seeking the entire unpaid balance of principal in the prior foreclosure action constituted a valid election by the plaintiff to accelerate the maturity of the debt… . This established that the mortgage debt was accelerated on April 11, 2008, and that the applicable six-year statute of limitations had expired by the time the plaintiff commenced the instant action on July 8, 2014 … .

In opposition, the plaintiff failed to raise a triable issue of fact as to whether it affirmatively revoked its election to accelerate the mortgage debt within the six-year limitations period … . The plaintiff voluntarily discontinued the prior foreclosure action on April 23, 2014, after the statute of limitations had expired, and it failed to demonstrate that its April 8, 2014, 90-day notice, as a matter of law, “destroy[ed] the effect of the sworn statement that the plaintiff had elected to accelerate the maturity of the debt” … . Deutsche Bank Natl. Trust Co. v Adrian, 2018 NY Slip Op 00543, Second Dept 1-31-18

FORECLOSURE (STATUTE OF LIMITATIONS, FILING A 90 DAY NOTICE AND THEN DISCONTINUING THE FORECLOSURE ACTION IN 2014 DID NOT REVOKE THE ELECTION TO ACCELERATE REPRESENTED BY THE FILING OF THE SUMMONS AND COMPLAINT IN 2008, FORECLOSURE ACTION PROPERLY DISMISSED AS UNTIMELY (SECOND DEPT))/CIVIL PROCEDURE (FORECLOSURE, STATUTE OF LIMITATIONS, FILING A 90 DAY NOTICE AND THEN DISCONTINUING THE FORECLOSURE ACTION IN 2014 DID NOT REVOKE THE ELECTION TO ACCELERATE REPRESENTED BY THE FILING OF THE SUMMONS AND COMPLAINT IN 2008, FORECLOSURE ACTION PROPERLY DISMISSED AS UNTIMELY (SECOND DEPT))/STATUTE OF LIMITATIONS (FORECLOSURE,  FILING A 90 DAY NOTICE AND THEN DISCONTINUING THE FORECLOSURE ACTION IN 2014 DID NOT REVOKE THE ELECTION TO ACCELERATE REPRESENTED BY THE FILING OF THE SUMMONS AND COMPLAINT IN 2008, FORECLOSURE ACTION PROPERLY DISMISSED AS UNTIMELY (SECOND DEPT))

PLAINTIFF MADE A SUFFICIENT SHOWING OF PERSONAL JURISDICTION OVER A NEW JERSEY RADIATION TREATMENT CLINIC TO BE ENTITLED TO DISCOVERY (FIRST DEPT).

The First Department determined plaintiff had sufficiently demonstrated personal jurisdiction over a New Jersey radiation therapy clinic (PPM) to be entitled to disclosure under both CPLR 301 (general jurisdiction) and 302 (specific jurisdiction):

Plaintiff made a “sufficient start” in establishing that New York courts have jurisdiction over PPM under CPLR 301 and 302(a)(1) to be entitled to disclosure pursuant to CPLR 3211(d) … . With regard to general jurisdiction, codified in CPLR 301, it is not clear whether PPM’s “affiliations with the State [New York] are so continuous and systematic as to render [it] essentially at home in the [] State” … . However, the record contains a State filing in which PPM identified itself as having a principal place of business in Manhattan — “tangible evidence” upon which to question PPM’s claims to the contrary … .

With regard to specific jurisdiction (CPLR 302[a][1]), the record shows that PPM’s activities in New York were “purposeful and [that] there is a substantial relationship between the transaction and the claim asserted” … . PPM chose and marketed its Somerset, New Jersey, location to target New York residents, touting its proximity to New York in advertising, entered into an agreement with a consortium of New York City hospitals for the referral of cancer patients for treatment at its facility, and provided the consortium’s doctors with privileges at its facility. In contrast to Paterno v Laser Spine Inst. (24 NY3d 370 [2014]), a medical malpractice action in which the plaintiff argued that New York courts had jurisdiction over a Florida-based facility and its doctors based on an advertisement and communications, in this case, plaintiff did not seek out PPM. She says that she was directed to PPM by her New York doctor, defendant Raj Shrivastava, as part of a referral fee agreement, that Dr. Shrivastava thereafter co-managed her care, and that PPM billed her directly for Dr. Shrivastava’s services. Robins v Procure Treatment Ctrs., Inc., 2018 NY Slip Op 00464, First Dept 1-25-18

CIVIL PROCEDURE (PERSONAL JURISDICTION, PLAINTIFF MADE A SUFFICIENT SHOWING OF PERSONAL JURISDICTION OVER A NEW JERSEY RADIATION TREATMENT CLINIC TO BE ENTITLED TO DISCOVERY (FIRST DEPT))/JURISDICTION (CIVIL PROCEDURE, PLAINTIFF MADE A SUFFICIENT SHOWING OF PERSONAL JURISDICTION OVER A NEW JERSEY RADIATION TREATMENT CLINIC TO BE ENTITLED TO DISCOVERY (FIRST DEPT))/DISCOVERY (CIVIL PROCEDURE, PLAINTIFF MADE A SUFFICIENT SHOWING OF PERSONAL JURISDICTION OVER A NEW JERSEY RADIATION TREATMENT CLINIC TO BE ENTITLED TO DISCOVERY (FIRST DEPT))/CPLR 3211 (d) (DISCOVERY, PLAINTIFF MADE A SUFFICIENT SHOWING OF PERSONAL JURISDICTION OVER A NEW JERSEY RADIATION TREATMENT CLINIC TO BE ENTITLED TO DISCOVERY (FIRST DEPT))/CPLR 301 (PERSONAL JURISDICTION, PLAINTIFF MADE A SUFFICIENT SHOWING OF PERSONAL JURISDICTION OVER A NEW JERSEY RADIATION TREATMENT CLINIC TO BE ENTITLED TO DISCOVERY (FIRST DEPT))/CPLR 302  (PERSONAL JURISDICTION, PLAINTIFF MADE A SUFFICIENT SHOWING OF PERSONAL JURISDICTION OVER A NEW JERSEY RADIATION TREATMENT CLINIC TO BE ENTITLED TO DISCOVERY (FIRST DEPT))/GENERAL JURISDICTION (CPLR 301, PLAINTIFF MADE A SUFFICIENT SHOWING OF PERSONAL JURISDICTION OVER A NEW JERSEY RADIATION TREATMENT CLINIC TO BE ENTITLED TO DISCOVERY (FIRST DEPT))/SPECIFIC JURISDICTION (CPLR 302 (A)(1), PLAINTIFF MADE A SUFFICIENT SHOWING OF PERSONAL JURISDICTION OVER A NEW JERSEY RADIATION TREATMENT CLINIC TO BE ENTITLED TO DISCOVERY (FIRST DEPT))

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THE DOCUMENTS SOUGHT IN DISCOVERY WERE PROTECTED BY THE COMMON INTEREST PRIVILEGE, AN EXCEPTION TO THE USUAL RULE RE: WAIVER OF ATTORNEY-CLIENT PRIVILEGE (SECOND DEPT).

The Second Department determined Supreme Court properly denied the motion to compel discovery because the requested documents were protected by the common interest privilege (an exception to the usual rule re: waiver of the attorney-client privilege):

The common-interest privilege is an exception to the traditional rule that the presence of a third party waives the attorney-client privilege … . To fall within that exception, the privileged communication must be for the purpose of furthering a legal, as opposed to a commercial, interest common to the client and the third party… . “The legal interest that those parties have in common must be identical (or nearly identical), as opposed to merely similar” … . Moreover, the communication must “relate to litigation, either pending or anticipated, in order for the exception to apply” … . Saint Annes Dev. Co. v Russ, 2018 NY Slip Op 00451, Second Dept 1-24-18

CIVIL PROCEDURE (PRIVILEGE, THE DOCUMENTS SOUGHT IN DISCOVERY WERE PROTECTED BY THE COMMON INTEREST PRIVILEGE, AN EXCEPTION TO THE USUAL RULE RE: WAIVER OF ATTORNEY-CLIENT PRIVILEGE (SECOND DEPT))/ATTORNEYS (PRIVILEGE, THE DOCUMENTS SOUGHT IN DISCOVERY WERE PROTECTED BY THE COMMON INTEREST PRIVILEGE, AN EXCEPTION TO THE USUAL RULE RE: WAIVER OF ATTORNEY-CLIENT PRIVILEGE (SECOND DEPT))/PRIVILEGE (COMMON INTEREST, THE DOCUMENTS SOUGHT IN DISCOVERY WERE PROTECTED BY THE COMMON INTEREST PRIVILEGE, AN EXCEPTION TO THE USUAL RULE RE: WAIVER OF ATTORNEY-CLIENT PRIVILEGE (SECOND DEPT))/COMMON INTEREST PRIVILEGE (HE DOCUMENTS SOUGHT IN DISCOVERY WERE PROTECTED BY THE COMMON INTEREST PRIVILEGE, AN EXCEPTION TO THE USUAL RULE RE: WAIVER OF ATTORNEY-CLIENT PRIVILEGE (SECOND DEPT))/ATTORNEY-CLIENT PRIVILEGE (COMMON INTEREST, THE DOCUMENTS SOUGHT IN DISCOVERY WERE PROTECTED BY THE COMMON INTEREST PRIVILEGE, AN EXCEPTION TO THE USUAL RULE RE: WAIVER OF ATTORNEY-CLIENT PRIVILEGE (SECOND DEPT))

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PLAINTIFF’S MOTION FOR A PRELIMINARY INJUNCTION PROPERLY DENIED, BUT COMPLAINT SHOULD NOT HAVE BEEN DISMISSED SUA SPONTE (SECOND DEPT).

The Second Department, modifying Supreme Court, determined defendant’s motion for a preliminary injunction was properly denied, but Supreme Court should not have dismissed the complaint sua sponte. The underlying action sought a declaratory judgment that plaintiff was the owner of shares of stock allocated to a cooperative apartment. The plaintiff moved for a preliminary injunction in the pending holdover proceeding:

To obtain a preliminary injunction, the moving party must demonstrate (1) a likelihood of success on the merits, (2) irreparable injury absent a preliminary injunction, and (3) that the equities balance in his or her favor (see CPLR 6301…). “The decision to grant or deny a preliminary injunction lies within the sound discretion of the Supreme Court” … . Here, the plaintiff did not sustain his burden of establishing a likelihood of success on the merits.

However, inasmuch as there was neither notice to the parties by the Supreme Court nor an application by the defendant seeking dismissal, it was error for the court to, sua sponte, direct the dismissal of the complaint in this action … . Gonzalez v 231 Maujer St., HDFC, 2018 NY Slip Op 00412, Second Dept 1-24-18

CIVIL PROCEDURE (SUA SPONTE DISMISSAL OF COMPLAINT, PLAINTIFF’S MOTION FOR A PRELIMINARY INJUNCTION PROPERLY DENIED, BUT COMPLAINT SHOULD NOT HAVE BEEN DISMISSED SUA SPONTE (SECOND DEPT))/SUA SPONTE (DISMISSAL OF COMPLAINT, PLAINTIFF’S MOTION FOR A PRELIMINARY INJUNCTION PROPERLY DENIED, BUT COMPLAINT SHOULD NOT HAVE BEEN DISMISSED SUA SPONTE (SECOND DEPT))

INITIAL ATTEMPT TO SERVE DEFENDANT WAS TIMELY BUT DEFECTIVE, EVEN THOUGH THE STATUTE OF LIMITATIONS HAD RUN, SUPREME COURT PROPERLY GRANTED PLAINTIFF AN EXTENSION OF TIME TO EFFECT SERVICE (SECOND DEPT).

The Second Department determined Supreme Court properly allowed plaintiff to extend the time to serve the summons and complaint. The initial service was timely but defective. In the mean time, the statute of limitations had run:

Generally, service of a summons and complaint must be made within 120 days after the commencement of the action (see CPLR 306-b). If service is not made within the time provided, the court, upon motion, must dismiss the action without prejudice, or “upon good cause shown or in the interest of justice, extend the time for service” … . “An extension of time for service is a matter within the court’s discretion” … . Here, while the action was timely commenced, the statute of limitations had expired when the plaintiff cross-moved for relief, the timely service of process was subsequently found to have been defective, and the defendant had actual notice of the action within 120 days of commencement of the action… . Moreover, there was no prejudice to the defendant attributable to the delay in service … . Chan v Zoubarev, 2018 NY Slip Op 00402, Second Dept 1-24-18

CIVIL PROCEDURE (EXTEND TIME TO EFFECT SERVICE, INITIAL ATTEMPT TO SERVE DEFENDANT WAS TIMELY BUT DEFECTIVE, EVEN THOUGH THE STATUTE OF LIMITATIONS HAD RUN, SUPREME COURT PROPERLY GRANTED PLAINTIFF AN EXTENSION OF TIME TO EFFECT SERVICE (SECOND DEPT))/SERVICE OF PROCESS (EXTEND TIME, INITIAL ATTEMPT TO SERVE DEFENDANT WAS TIMELY BUT DEFECTIVE, EVEN THOUGH THE STATUTE OF LIMITATIONS HAD RUN, SUPREME COURT PROPERLY GRANTED PLAINTIFF AN EXTENSION OF TIME TO EFFECT SERVICE (SECOND DEPT))/STATUTE OF LIMITATIONS (SERVICE OF PROCESS, EXTEND TIME, INITIAL ATTEMPT TO SERVE DEFENDANT WAS TIMELY BUT DEFECTIVE, EVEN THOUGH THE STATUTE OF LIMITATIONS HAD RUN, SUPREME COURT PROPERLY GRANTED PLAINTIFF AN EXTENSION OF TIME TO EFFECT SERVICE (SECOND DEPT))/CPLR 306-b (EXTEND TIME TO EFFECT SERVICE, INITIAL ATTEMPT TO SERVE DEFENDANT WAS TIMELY BUT DEFECTIVE, EVEN THOUGH THE STATUTE OF LIMITATIONS HAD RUN, SUPREME COURT PROPERLY GRANTED PLAINTIFF AN EXTENSION OF TIME TO EFFECT SERVICE (SECOND DEPT))

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