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FORECLOSURE ACTION SHOULD NOT HAVE BEEN DISMISSED, ISSUE WAS NEVER JOINED, EVEN THOUGH THE DEFENSE WAS FIRST RAISED IN REPLY PAPERS, IT COULD BE CONSIDERED ON APPEAL (SECOND DEPT).

The Second Department, reversing Supreme Court, determined this foreclosure action should not have been dismissed because issue was never joined. Even though the defense was first raised in the reply papers, it could be considered on appeal because the issue is apparent on the face of the record and the lower court would have been required to address it:

… [T]he Supreme Court conditionally dismissed the action pursuant to CPLR 3216 unless the plaintiff filed a note of issue or otherwise moved for entry of a judgment within 90 days. The action was thereafter administratively dismissed … .

… [T]he plaintiff moved, inter alia, to vacate the conditional order of dismissal and to restore the action to the calendar. … [T]he Supreme Court denied the plaintiff’s motion, finding that the plaintiff failed to present a reasonable excuse for not complying with the conditional 90-day order to dismiss and that the delay since the time that the referee was appointed was substantial. …

… [D]ismissal of the action pursuant to the … conditional order was improper, as issue was never joined inasmuch as none of the defendants served an answer to the complaint… .. Since at least one precondition set forth in CPLR 3216 was not met here, the Supreme Court was without power to dismiss the action pursuant to that statute … .

Although the plaintiff did not raise, until its reply papers, the argument that this action was improperly dismissed pursuant to CPLR 3216 because issue had not been joined, we may consider it on appeal since the reply papers did not present new facts but only raised an issue of law which appeared on the face of the record and could not have been avoided if brought to the attention of the Supreme Court at the proper juncture … . U.S. Bank N.A. v Ricketts, 2017 NY Slip Op 06475, Second Dept 9-13-17

CIVIL PROCEDURE (FORECLOSURE ACTION SHOULD NOT HAVE BEEN DISMISSED, ISSUE WAS NEVER JOINED, EVEN THOUGH THE DEFENSE WAS FIRST RAISED IN REPLY PAPERS, IT COULD BE CONSIDERED ON APPEAL (SECOND DEPT))/APPEALS (CIVIL PROCEDURE, FORECLOSURE ACTION SHOULD NOT HAVE BEEN DISMISSED, ISSUE WAS NEVER JOINED, EVEN THOUGH THE DEFENSE WAS FIRST RAISED IN REPLY PAPERS, IT COULD BE CONSIDERED ON APPEAL (SECOND DEPT))/FORECLOSURE (FORECLOSURE ACTION SHOULD NOT HAVE BEEN DISMISSED, ISSUE WAS NEVER JOINED, EVEN THOUGH THE DEFENSE WAS FIRST RAISED IN REPLY PAPERS, IT COULD BE CONSIDERED ON APPEAL (SECOND DEPT))

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PETITION TO ADD MAYOR DE BLASIO AS A CANDIDATE PROPERLY DENIED, THE WORKING FAMILIES PARTY’S EXECUTIVE BOARD WAS A NECESSARY PARTY (CT APP).

The Court of Appeals determined the Working Families Party’s petition to add NYC Mayor Bill de Blasio as a mayoral candidate in a primary election was properly denied for failure to name the party’s Executive Board as a necessary party:

Necessary parties are those “who ought to be parties if complete relief is to be accorded between the persons who are parties to the action or who might be inequitably affected by a judgment in the action” (CPLR 1001[a]). Appellants rely on Matter of O’Brien v Seneca County Bd. of Elections (22 AD3d 1036, 1036 [4th Dept 2005]) and Matter of Seaman v Bird (176 AD2d 1061, 1062 [3d Dept 1991]), to argue that, because complete relief could be obtained from the Board of Elections, the Executive Board of the Working Families Party is not a necessary party. Their reliance is misplaced. Here, where petitioners assert that the Executive Board’s certificate of authorization was invalid under Election Law § 6-120, the Executive Board of the Working Families Party was a necessary party because a judgment on this issue could inequitably affect its interests. To the extent that there are other decisions to the contrary, they should not be followed. Matter of Morgan v de Blasio, 2017 NY Slip Op 06399, CtApp 8-31-17

ELECTION LAW (PETITION TO ADD MAYOR DE BLASIO AS A CANDIDATE PROPERLY DENIED, THE WORKING FAMILIES PARTY’S EXECUTIVE BOARD WAS A NECESSARY PARTY (CT APP))/CIVIL PROCEDURE (ELECTION LAW, PETITION TO ADD MAYOR DE BLASIO AS A CANDIDATE PROPERLY DENIED, THE WORKING FAMILIES PARTY’S EXECUTIVE BOARD WAS A NECESSARY PARTY (CT APP))

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DEFAULT JUDGMENT DISCHARGING THE MORTGAGE SHOULD HAVE BEEN GRANTED, THE SIX YEAR STATUTE OF LIMITATIONS FOR FORECLOSURE STARTED WHEN THE DEBT WAS ACCELERATED BY THE FORECLOSURE ACTION WHICH WAS ULTIMATELY DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion for a default judgment discharging a mortgage after the statute of limitations on the foreclosure action had expired should have been granted. The court explained that the six year statute started to run when the debt was accelerated by the foreclosure action that was ultimately dismissed. The plaintiff demonstrated that the dismissed foreclosure action was commenced by a party with standing:

… [W]ith respect to an action pursuant to RPAPL 1501(4), a person having an estate or an interest in real property subject to a mortgage can seek to cancel and discharge that encumbrance where the period allowed by the applicable statute of limitations for the commencement of an action to foreclose the mortgage had expired, provided that the mortgagee or its successor was not in possession of the subject real property at the time the action to cancel and discharged the mortgage was commenced … . An action to foreclose a mortgage has a six-year statute of limitations… . “The law is well settled that, even if a mortgage is payable in installments, once a mortgage debt is accelerated, the entire amount is due and the Statute of Limitations begins to run on the entire debt”… .

Here, the plaintiff submitted a copy of the summons and complaint filed in the mortgage foreclosure action commenced by the defendant’s predecessor-in-interest and the order dismissing that action pursuant to CPLR 3216 which demonstrated that the mortgage was accelerated in 2008 more than six years before the commencement of this action and that there was no longer a pending mortgage foreclosure action … . In addition, the summons and the complaint, along with the subject mortgage documents, submitted by the plaintiff on its motion, demonstrated that the defendant’s predecessor-in-interest had standing to commence the mortgage foreclosure action ….

Further, the plaintiff demonstrated that the applicable statute of limitations had expired even if the limitations period was calculated … the date by which the Federal Deposit Insurance Corporation was appointed as receiver for the defendant’s predecessor-in-interest  …. . 53 PL Realty, LLC v US Bank N.A., 2017 NY Slip Op 06345, Second Dept 8-30-17

 

FORECLOSURE (DEFAULT JUDGMENT DISCHARGING THE MORTGAGE SHOULD HAVE BEEN GRANTED, THE SIX YEAR STATUTE OF LIMITATIONS FOR FORECLOSURE STARTED WHEN THE DEBT WAS ACCELERATED BY THE FORECLOSURE ACTION WHICH WAS ULTIMATELY DISMISSED (SECOND DEPT))/CIVIL PROCEDURE (FORECLOSURE, STATUTE OF LIMITATIONS, DEFAULT JUDGMENT DISCHARGING THE MORTGAGE SHOULD HAVE BEEN GRANTED, THE SIX YEAR STATUTE OF LIMITATIONS FOR FORECLOSURE STARTED WHEN THE DEBT WAS ACCELERATED BY THE FORECLOSURE ACTION WHICH WAS ULTIMATELY DISMISSED (SECOND DEPT))/STATUTE OF LIMITATIONS (FORECLOSURE, DEFAULT JUDGMENT DISCHARGING THE MORTGAGE SHOULD HAVE BEEN GRANTED, THE SIX YEAR STATUTE OF LIMITATIONS FOR FORECLOSURE STARTED WHEN THE DEBT WAS ACCELERATED BY THE FORECLOSURE ACTION WHICH WAS ULTIMATELY DISMISSED (SECOND DEPT))/EVIDENCE (FORECLOSURE, STATUTE OF LIMITATIONS, DEFAULT JUDGMENT DISCHARGING THE MORTGAGE SHOULD HAVE BEEN GRANTED, THE SIX YEAR STATUTE OF LIMITATIONS FOR FORECLOSURE STARTED WHEN THE DEBT WAS ACCELERATED BY THE FORECLOSURE ACTION WHICH WAS ULTIMATELY DISMISSED (SECOND DEPT))

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WINNING A MOTION TO DISMISS DOES NOT TRIGGER THE AWARD OF ATTORNEY’S FEES UNDER CPLR 3220 (SECOND DEPT).

The Second Department determined the successful motion to dismiss a civil suit did not mandate the award of attorney’s fees under the CPLR:

… “[U]nder the American Rule as applied to statutory entitlement to attorneys’ fees, the [United States] Supreme Court has held that we follow a general practice of not awarding fees to a prevailing party absent explicit statutory authority”… . * * *

The relevant phrase of CPLR 3220 stating that the claimant “shall pay the expenses necessarily incurred by the party against whom the claim is asserted, for trying the issue of damages from the time of the offer” demonstrates the Legislature’s intent that, where the claimant has not accepted the offer, the commencement of a trial is a condition precedent to imposing liability upon the claimant for the opposing party’s expenses. This phrase also defines the recoverable expenses as those “necessarily” expended “for trying the issue of damages.” CPLR 3220 further provides that those expenses should be determined by the judge “before whom the case is tried.” Accordingly, the plain language of CPLR 3220 does not explicitly authorize an award of attorney’s fees and costs to a party … who merely prevailed in seeking dismissal of a cause of action alleging breach of contract. Even if CPLR 3220 could arguably support an implied right to the attorney’s fees and costs … , the public policy of the American Rule militates against adoption of that interpretation … . Saul v Cahan, 2017 NY Slip Op 06391, Second Dept 8-30-17

CIVIL PROCEDURE (WINNING A MOTION TO DISMISS DOES NOT TRIGGER THE AWARD OF ATTORNEY’S FEES UNDER CPLR 3220 (SECOND DEPT))/ATTORNEYS (FEES, CIVIL PROCEDURE, WINNING A MOTION TO DISMISS DOES NOT TRIGGER THE AWARD OF ATTORNEY’S FEES UNDER CPLR 3220 (SECOND DEPT))

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FURTHER DISCOVERY NECESSARY TO DETERMINE RELATIONSHIP BETWEEN SIGNATORIES AND NON-SIGNATORIES TO A CONTRACT WITH A FORUM SELECTION CLAUSE, IF THE RELATIONSHIP IS CLOSE ENOUGH, NON-SIGNATORIES WILL BE COVERED BY THE CLAUSE (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Kapnick, determined further jurisdictional discovery was required before certain causes of action could be dismissed on jurisdictional grounds. If the relationship with signatories of a contract with a forum selection clause is close enough, non-signatories will be covered by the clause. Discovery was necessary to determine how close the relationship was. The opinion is too detailed and complex to fully summarize here. The crux of the action is the alleged failure of the corporations to pay interest due on notes held by shareholders:

“Under New York law, a signatory to a contract may invoke a forum selection clause against a non-signatory if the non-signatory is closely related’ to one of the signatories such that enforcement of the forum selection clause is foreseeable by virtue of the relationship between the signatory and the party sought to be bound'” … . If the nonsignatory party has an ownership interest or a direct or indirect controlling interest in the signing party … , or, the entities or individuals consulted with each other regarding decisions and were intimately involved in the decision-making process… , then, a finding of personal jurisdiction based on a forum selection clause may be proper, as it achieves the “rationale behind binding closely related entities to the forum selection clause [which] is to promote stable and dependable trade relations.'” … .

Here, plaintiffs allege that the individual defendants, by virtue of their senior management positions, power and decision-making authority, and B & B, as the parent company of BTEL and as a principal shareholder of 39.6% of BTEL’s stock, had actual knowledge at the time of the offering that BTEL was insolvent and would be incapable of meeting its obligations under the notes; that they authorized, participated in, and promoted the offering; and that they caused the offering memoranda to be distributed into the marketplace. This is enough, at this stage, to permit jurisdictional discovery as to the nature of B & B’s and the individual defendants’ actual knowledge and role in the offering of the notes, and their responsibilities connected thereto, because this information, which may result in a determination that the nonsignatories are indeed “closely related” to the signing parties, is a fact that cannot be presently known to plaintiffs, but rather, is within the exclusive control of defendants …. . Universal Inv. Advisory SA v Bakrie Telecom PTE, Ltd., 2017 NY Slip Op 06344, First Dept 8-29-17

 

CIVIL PROCEDURE (JURISDICTION, DISCOVERY, FORUM SELECTION CLAUSE,  FURTHER DISCOVERY NECESSARY TO DETERMINE RELATIONSHIP BETWEEN SIGNATORIES AND NON-SIGNATORIES TO A CONTRACT WITH A FORUM SELECTION CLAUSE, IF THE RELATIONSHIP IS CLOSE ENOUGH, NON-SIGNATORIES WILL BE COVERED BY THE CLAUSE (FIRST DEPT))/JURISDICTION (DISCOVERY, FORUM SELECTION CLAUSE,  FURTHER DISCOVERY NECESSARY TO DETERMINE RELATIONSHIP BETWEEN SIGNATORIES AND NON-SIGNATORIES TO A CONTRACT WITH A FORUM SELECTION CLAUSE, IF THE RELATIONSHIP IS CLOSE ENOUGH, NON-SIGNATORIES WILL BE COVERED BY THE CLAUSE (FIRST DEPT))/DISCOVERY (CIVIL PROCEDURE, JURISDICTION,  FORUM SELECTION CLAUSE,  FURTHER DISCOVERY NECESSARY TO DETERMINE RELATIONSHIP BETWEEN SIGNATORIES AND NON-SIGNATORIES TO A CONTRACT WITH A FORUM SELECTION CLAUSE, IF THE RELATIONSHIP IS CLOSE ENOUGH, NON-SIGNATORIES WILL BE COVERED BY THE CLAUSE (FIRST DEPT))/CONTRACT LAW (FORUM SELECTION CLAUSE,  FURTHER DISCOVERY NECESSARY TO DETERMINE RELATIONSHIP BETWEEN SIGNATORIES AND NON-SIGNATORIES TO A CONTRACT WITH A FORUM SELECTION CLAUSE, IF THE RELATIONSHIP IS CLOSE ENOUGH, NON-SIGNATORIES WILL BE COVERED BY THE CLAUSE (FIRST DEPT))/FORUM SELECTION CLAUSE (CONTRACT LAW, (JURISDICTION, DISCOVERY, FORUM SELECTION CLAUSE,  FURTHER DISCOVERY NECESSARY TO DETERMINE RELATIONSHIP BETWEEN SIGNATORIES AND NON-SIGNATORIES TO A CONTRACT WITH A FORUM SELECTION CLAUSE, IF THE RELATIONSHIP IS CLOSE ENOUGH, NON-SIGNATORIES WILL BE COVERED BY THE CLAUSE (FIRST DEPT))/CORPORATION LAW (FORUM SELECTION CLAUSE, JURISDICTION, DISCOVERY, FORUM SELECTION CLAUSE,  FURTHER DISCOVERY NECESSARY TO DETERMINE RELATIONSHIP BETWEEN SIGNATORIES AND NON-SIGNATORIES TO A CONTRACT WITH A FORUM SELECTION CLAUSE, IF THE RELATIONSHIP IS CLOSE ENOUGH, NON-SIGNATORIES WILL BE COVERED BY THE CLAUSE (FIRST DEPT))

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SUPREME COURT SHOULD NOT HAVE RULED PLAINTIFF’S EXPERT WAS NOT QUALIFIED, EXPERT WAS QUALIFIED AND THE ISSUE WAS NOT RAISED BY THE PARTIES, QUESTION OF FACT WHETHER PLAINTIFF GAVE INFORMED CONSENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the dentist who provided an affidavit for plaintiff was an expert, the expert raised a question of fact whether defendant departed from the accepted standard of care, and a question of fact was raised about whether plaintiff gave informed consent to the procedure. The court noted that plaintiff’s expert’s qualifications were not questioned in defendant’s reply papers. Therefore, the court should not have raised the issue on its own and used the issue to support granting  summary judgment to the defendant. With regard to informed consent, the court wrote:

“A cause of action predicated on a lack of informed consent is meant to redress a failure of the person providing the professional treatment or diagnosis to disclose to the patient such alternatives thereto and the reasonably foreseeable risks and benefits involved as a reasonable medical . . . practitioner under similar circumstances would have disclosed, in a manner permitting the patient to make a knowledgeable evaluation”… .. To establish a cause of action to recover damages for malpractice based on lack of informed consent, a plaintiff must prove (1) that the person providing the professional treatment failed to disclose alternatives thereto and failed to inform the patient of reasonably foreseeable risks associated with the treatment, and the alternatives, that a reasonable medical practitioner would have disclosed in the same circumstances, (2) that a reasonably prudent patient in the same position would not have undergone the treatment if he or she had been fully informed, and (3) that the lack of informed consent is a proximate cause of the injury … .

Here, the defendant failed to submit proof sufficient to establish, prima facie, that he had informed the plaintiff of the reasonably foreseeable risks associated with the treatment, and, in any event, that a reasonably prudent patient in the same position would have undergone the treatment if he or she had been fully informed … . Dyckes v Stabile, 2017 NY Slip Op 06252, Second Dept 8-23-17

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NEGLIGENCE (DENTAL MALPRACTICE, SUPREME COURT SHOULD NOT HAVE RULED PLAINTIFF’S EXPERT WAS NOT QUALIFIED, EXPERT WAS QUALIFIED AND THE ISSUE WAS NOT RAISED BY THE PARTIES, QUESTION OF FACT WHETHER PLAINTIFF GAVE INFORMED CONSENT (SECOND DEPT))/MEDICAL MALPRACTICE (DENTAL MALPRACTICE, SUPREME COURT SHOULD NOT HAVE RULED PLAINTIFF’S EXPERT WAS NOT QUALIFIED, EXPERT WAS QUALIFIED AND THE ISSUE WAS NOT RAISED BY THE PARTIES, QUESTION OF FACT WHETHER PLAINTIFF GAVE INFORMED CONSENT (SECOND DEPT))/DENTAL MALPRACTICE (SUPREME COURT SHOULD NOT HAVE RULED PLAINTIFF’S EXPERT WAS NOT QUALIFIED, EXPERT WAS QUALIFIED AND THE ISSUE WAS NOT RAISED BY THE PARTIES, QUESTION OF FACT WHETHER PLAINTIFF GAVE INFORMED CONSENT (SECOND DEPT))/EXPERT OPINION  (DENTAL MALPRACTICE, SUPREME COURT SHOULD NOT HAVE RULED PLAINTIFF’S EXPERT WAS NOT QUALIFIED, EXPERT WAS QUALIFIED AND THE ISSUE WAS NOT RAISED BY THE PARTIES, QUESTION OF FACT WHETHER PLAINTIFF GAVE INFORMED CONSENT (SECOND DEPT))/INFORMED CONSENT (DENTAL MALPRACTICE, SUPREME COURT SHOULD NOT HAVE RULED PLAINTIFF’S EXPERT WAS NOT QUALIFIED, EXPERT WAS QUALIFIED AND THE ISSUE WAS NOT RAISED BY THE PARTIES, QUESTION OF FACT WHETHER PLAINTIFF GAVE INFORMED CONSENT (SECOND DEPT))/CIVIL PROCEDURE (ISSUES NOT RAISED BY THE PARTIES, DENTAL MALPRACTICE, SUPREME COURT SHOULD NOT HAVE RULED PLAINTIFF’S EXPERT WAS NOT QUALIFIED, EXPERT WAS QUALIFIED AND THE ISSUE WAS NOT RAISED BY THE PARTIES, QUESTION OF FACT WHETHER PLAINTIFF GAVE INFORMED CONSENT (SECOND DEPT))/SUMMARY JUDGMENT  (ISSUES NOT RAISED BY THE PARTIES, DENTAL MALPRACTICE, SUPREME COURT SHOULD NOT HAVE RULED PLAINTIFF’S EXPERT WAS NOT QUALIFIED, EXPERT WAS QUALIFIED AND THE ISSUE WAS NOT RAISED BY THE PARTIES, QUESTION OF FACT WHETHER PLAINTIFF GAVE INFORMED CONSENT (SECOND DEPT))/EVIDENCE  (DENTAL MALPRACTICE, SUPREME COURT SHOULD NOT HAVE RULED PLAINTIFF’S EXPERT WAS NOT QUALIFIED, EXPERT WAS QUALIFIED AND THE ISSUE WAS NOT RAISED BY THE PARTIES, QUESTION OF FACT WHETHER PLAINTIFF GAVE INFORMED CONSENT (SECOND DEPT))

CERTIFICATE OF READINESS WHICH INDICATED FURTHER DISCOVERY WAS NECESSARY RENDERED THE FILING OF THE NOTE OF ISSUE A NULLITY (SECOND DEPT).

The Second Department determined that the filing of note of issue accompanied by a certificate of readiness which indicated more discovery was required was a nullity:

Pursuant to Uniform Rules for Trial Courts (22 NYCRR) § 202.21, a note of issue must be accompanied by a certificate of readiness, which must state that there are no outstanding requests for discovery and the case is ready for trial … .

Here, the plaintiffs’ certificate of readiness stated, among other things, that discovery proceedings had not been completed, that there were outstanding requests for discovery, and that the case was not ready for trial. Since the certificate of readiness failed to materially comply with the requirements of 22 NYCRR 202.21, the filing of the note of issue was a nullity … . Rizzo v Balish & Friedman, 2017 NY Slip Op 06307, Second Dept 8-23-17

 

CIVIL PROCEDURE (CERTIFICATE OF READINESS WHICH INDICATED FURTHER DISCOVERY WAS NECESSARY RENDERED THE FILING OF THE NOTE OF ISSUE A NULLITY (SECOND DEPT))/CERTIFICATE OF READINESS (CERTIFICATE OF READINESS WHICH INDICATED FURTHER DISCOVERY WAS NECESSARY RENDERED THE FILING OF THE NOTE OF ISSUE A NULLITY (SECOND DEPT))/NOTE OF ISSUE  (CERTIFICATE OF READINESS WHICH INDICATED FURTHER DISCOVERY WAS NECESSARY RENDERED THE FILING OF THE NOTE OF ISSUE A NULLITY (SECOND DEPT))

CALIFORNIA STATUTE IS A PROCEDURAL STATUTE OF LIMITATIONS, NOT A SUBSTANTIVE STATUTE OF REPOSE, THEREFORE THE STATUTE WOULD NOT BE APPLIED IN A NEW YORK ACTION (SECOND DEPT).

The Second Department determined a California statute was a statute of limitations, not a statute of repose. A statute of limitations, unlike a statute of repose, is considered procedural in New York. Therefore the California statute would not be applied in a New York action. Because the California statute of limitations would not apply to the underlying New York action, the defendant-attorneys’ failure to raise the statute of limitations as a defense did not constitute malpractice:

“In New York, Statutes of Limitation are generally considered procedural because they are [v]iewed as pertaining to the remedy rather than the right” … . A statute of limitations “does not begin to run until a cause of action accrues” … . In contrast, “a statute of repose begins to run when the specified event or events takes place, regardless of whether a potential claim has accrued or, indeed, whether any injury has occurred” … . “The repose period serves as an absolute barrier that prevents a plaintiff’s right of action” … . “In other words, the period of repose has the effect of preventing what might otherwise have been a cause of action from ever arising” … . Statutes of repose “exhibit a substantive texture, nature and consequence that distinguishes them from ordinary limitation provisions” … . … [I]f a statute creates a cause of action and attaches a time limit to its commencement, the time is an ingredient of the cause” … . In contrast, when a cause of action “was cognizable at common law or by other statute law, a statutory time limit is commonly taken as one of limitations and must be asserted by way of defense” … . …

… California Code of Civil Procedure § 366.3 is a statute of limitations, not a statute of repose. Unlike a statute of repose, section 366.3 begins to run at the time the cause of action to recover on the promise to make a testamentary disposition accrues, namely, the date of the promisor’s death … . Nestor v Putney Twombly Hall & Hirson, LLP, 2017 NY Slip Op 06284, Second Dept 8-23-17

 

CIVIL PROCEDURE (CHOICE OF LAW, CALIFORNIA STATUTE IS A PROCEDURAL STATUTE OF LIMITATIONS, NOT A SUBSTANTIVE STATUTE OF REPOSE, THEREFORE THE STATUTE WOULD NOT BE APPLIED IN A NEW YORK ACTION (SECOND DEPT))/CHOICE OF LAW ( CALIFORNIA STATUTE IS A PROCEDURAL STATUTE OF LIMITATIONS, NOT A SUBSTANTIVE STATUTE OF REPOSE, THEREFORE THE STATUTE WOULD NOT BE APPLIED IN A NEW YORK ACTION (SECOND DEPT))/STATUTE OF LIMITATIONS  (CHOICE OF LAW, CALIFORNIA STATUTE IS A PROCEDURAL STATUTE OF LIMITATIONS, NOT A SUBSTANTIVE STATUTE OF REPOSE, THEREFORE THE STATUTE WOULD NOT BE APPLIED IN A NEW YORK ACTION (SECOND DEPT))/STATUTE OF REPOSE (CHOICE OF LAW, CALIFORNIA STATUTE IS A PROCEDURAL STATUTE OF LIMITATIONS, NOT A SUBSTANTIVE STATUTE OF REPOSE, THEREFORE THE STATUTE WOULD NOT BE APPLIED IN A NEW YORK ACTION (SECOND DEPT))

WHEN A PRELIMINARY INJUNCTION IS GRANTED THE PLAINTIFF MUST GIVE AN UNDERTAKING (SECOND DEPT).

The Second Department noted that when a court grants a preliminary injunction the plaintiff must give an undertaking:

A party seeking the drastic remedy of a preliminary injunction has the burden of demonstrating, by clear and convincing evidence, (1) a likelihood of ultimate success on the merits, (2) the prospect of irreparable injury if the provisional relief is withheld, and (3) a balancing of the equities in the movant’s favor … . The decision to grant or deny a preliminary injunction lies within the sound discretion of the Supreme Court … . Here, where the plaintiff established a likelihood of success on the merits and the irreparable harm it would suffer should the preliminary injunction not be granted, the equities tip in favor of the plaintiff and the court properly granted that branch of the plaintiff’s motion which sought a preliminary injunction … .

However, upon the granting of a preliminary injunction, a plaintiff “shall give an undertaking in an amount to be fixed by the court, that the plaintiff, if it is finally determined that he or she was not entitled to an injunction, will pay to the defendant all damages and costs which may be sustained by reason of the injunction” (CPLR 6312[b] … ). Mobstub, Inc. v www.staytrendy.com, 2017 NY Slip Op 06265, Second Dept 8-23-17

 

CIVIL PROCEDURE (WHEN A PRELIMINARY INJUNCTION IS GRANTED THE PLAINTIFF MUST GIVE AN UNDERTAKING (SECOND DEPT))/PRELIMINARY INJUNCTION (WHEN A PRELIMINARY INJUNCTION IS GRANTED THE PLAINTIFF MUST GIVE AN UNDERTAKING (SECOND DEPT))/UNDERTAKING (WHEN A PRELIMINARY INJUNCTION IS GRANTED THE PLAINTIFF MUST GIVE AN UNDERTAKING (SECOND DEPT))

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SEX AND DISABILITY EMPLOYMENT DISCRIMINATION COMPLAINT PROPERLY AMENDED UNDER THE RELATION BACK STATUTE WITH OTHERWISE UNTIMELY CAUSES OF ACTION ALLEGING SEXUAL ORIENTATION DISCRIMINATION (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Acosta, over an extensive two-justice dissent, determined the relation-back statute (CPLR 203 (f)) allowed the amendment of a sex-and-disability-discrimination complaint to allege otherwise untimely employment discrimination causes of action based upon plaintiff’s sexual orientation. The original sex-and-disability-discrimination complaint did not mention plaintiff was a lesbian and had suffered discrimination because of her sexual orientation. The First Department held that the wording of the relation-back statute, which refers to “transactions” or “occurrences,” not “claims,” allowed the amendment in the absence of prejudice:

All of plaintiff’s claims are based on the same occurrences — namely the underlying employment actions taken against her – and the original complaint put defendants on notice of those occurrences. To be sure, plaintiff’s original complaint did not allege the specific facts that she is a lesbian, that defendants were aware of her sexual orientation, that defendants discriminated against her on that basis, or that another lesbian colleague was demoted for supporting her internal dispute … . Nevertheless, the motion court correctly determined that the new claims are based on “the same subject matter alleged in the original complaint.” Defendants need not have been put on notice of every factual allegation on which the subsequent claims depend, because the original complaint put them on notice of the occurrences that underlie those claims … .

Viewing “transactions [or] occurrences” through this broad lens for the purposes of relation back under CPLR 203(f) is especially important in the context of anti-discrimination actions – particularly those actions brought under the City HRL [Human Rights Law] – in which it is frequently difficult for plaintiffs to articulate their employers’ motivations for treating them less well than other employees … . O’Halloran v Metropolitan Transp. Auth., 2017 NY Slip Op 06237, First Dept 8-22-17

 

EMPLOYMENT LAW (HUMAN RIGHTS LAW, SEX AND DISABILITY EMPLOYMENT DISCRIMINATION COMPLAINT PROPERLY AMENDED UNDER THE RELATION BACK STATUTE WITH OTHERWISE UNTIMELY CAUSES OF ACTION ALLEGING SEXUAL ORIENTATION DISCRIMINATION (FIRST DEPT))/HUMAN RIGHTS LAW (GENDER AND SEXUAL ORIENTATION DISCRIMINATION, SEX AND DISABILITY EMPLOYMENT DISCRIMINATION COMPLAINT PROPERLY AMENDED UNDER THE RELATION BACK STATUTE WITH OTHERWISE UNTIMELY CAUSES OF ACTION ALLEGING SEXUAL ORIENTATION DISCRIMINATION (FIRST DEPT))/GENDER DISCRIMINATION  (HUMAN RIGHTS LAW, SEX AND DISABILITY EMPLOYMENT DISCRIMINATION COMPLAINT PROPERLY AMENDED UNDER THE RELATION BACK STATUTE WITH OTHERWISE UNTIMELY CAUSES OF ACTION ALLEGING SEXUAL ORIENTATION DISCRIMINATION (FIRST DEPT))/SEXUAL ORIENTATION DISCRIMINATION (HUMAN RIGHTS LAW, SEX AND DISABILITY EMPLOYMENT DISCRIMINATION COMPLAINT PROPERLY AMENDED UNDER THE RELATION BACK STATUTE WITH OTHERWISE UNTIMELY CAUSES OF ACTION ALLEGING SEXUAL ORIENTATION DISCRIMINATION (FIRST DEPT))/SEX DISCRIMINATION (HUMAN RIGHTS LAW, SEX AND DISABILITY EMPLOYMENT DISCRIMINATION COMPLAINT PROPERLY AMENDED UNDER THE RELATION BACK STATUTE WITH OTHERWISE UNTIMELY CAUSES OF ACTION ALLEGING SEXUAL ORIENTATION DISCRIMINATION (FIRST DEPT))

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