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NEW YORK CITY CHARTER PROVISION REQUIRES ONLY ONE ATTEMPT AT PERSONAL SERVICE OF NOTICES OF BUILDING CODE VIOLATIONS BEFORE TURNING TO THE NAIL AND MAIL ALTERNATIVE (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge DiFiore, determined that he New York City charter provisions governing service of a Notice of Violation (NOV) of the building code require only one unsuccessful attempt at personal service before the affix and mail provisions kick in. The CPLR nail and mail provisions (which require due diligence in the attempts at personal service) do not apply:

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The question presented is whether, prior to use of the affix and mail procedure, the City Charter requires more than a single attempt to personally serve the NOV at the premises. * * *

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… [T]he plain language of the relevant statute speaks in the singular — “[s]uch notice may only be affixed . . . where a reasonable attempt has been made” at personal delivery — indicating that only one attempt is required … . * * *

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Moreover, the alternate service procedure authorized by the statute — a single attempt to personally deliver the NOV, coupled with affixing the NOV to the property and mailing copies to the owner at the premises and other addresses on file with related City agencies — is reasonably calculated to inform owners of violations relating to their properties. Matter of Mestecky v City of New York, 2017 NY Slip Op 08162, CtApp 11-20-17

 

MUNICIPAL LAW (NYC) (NEW YORK CITY CHARTER PROVISION REQUIRES ONLY ONE ATTEMPT AT PERSONAL SERVICE OF NOTICES OF BUILDING CODE VIOLATIONS BEFORE TURNING TO THE NAIL AND MAIL ALTERNATIVE (CT APP))/REAL PROPERTY LAW (NYC, BUILDING CODE VIOLATIONS, NEW YORK CITY CHARTER PROVISION REQUIRES ONLY ONE ATTEMPT AT PERSONAL SERVICE OF NOTICES OF BUILDING CODE VIOLATIONS BEFORE TURNING TO THE NAIL AND MAIL ALTERNATIVE (CT APP))/CIVIL PROCEDURE (NYC, BUILDING CODE VIOLATIONS, NEW YORK CITY CHARTER PROVISION REQUIRES ONLY ONE ATTEMPT AT PERSONAL SERVICE OF NOTICES OF BUILDING CODE VIOLATIONS BEFORE TURNING TO THE NAIL AND MAIL ALTERNATIVE (CT APP))/NOTICES OF VIOLATION (NYC BUILDING CODE, NEW YORK CITY CHARTER PROVISION REQUIRES ONLY ONE ATTEMPT AT PERSONAL SERVICE OF NOTICES OF BUILDING CODE VIOLATIONS BEFORE TURNING TO THE NAIL AND MAIL ALTERNATIVE (CT APP))/NAIL AND MAIL (NYC BUILDING CODE VIOLATIONS, NEW YORK CITY CHARTER PROVISION REQUIRES ONLY ONE ATTEMPT AT PERSONAL SERVICE OF NOTICES OF BUILDING CODE VIOLATIONS BEFORE TURNING TO THE NAIL AND MAIL ALTERNATIVE (CT APP))/NOTICE OF VIOLATION (NOV)  (NYC BUILDING CODE VIOLATIONS, NEW YORK CITY CHARTER PROVISION REQUIRES ONLY ONE ATTEMPT AT PERSONAL SERVICE OF NOTICES OF BUILDING CODE VIOLATIONS BEFORE TURNING TO THE NAIL AND MAIL ALTERNATIVE (CT APP))

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PRIOR APPELLATE DECISION VACATING AN ORDER CONCERNING A COUNTERCLAIM WAS THE LAW OF THE CASE, NOT A PRIOR SUPREME COURT RULING ON THE COUNTERCLAIM, ACCOUNTANT REPORT PREPARED FOR LITIGATION NOT DISCOVERABLE (FOURTH DEPT).

The Fourth Department, modifying Supreme Court, determined the decision vacating an order concerning a counterclaim in a prior appeal was the law of the case, despite the “otherwise affirmed” phrase in the decision, and Supreme Court should not have adhered to a prior ruling on the counterclaim in Supreme Court. The Fourth Department further held that Supreme Court properly found a report prepared by an accountant was prepared in anticipation of litigation and was not discoverable as a “mixed file:”

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“An appellate court’s resolution of an issue on a prior appeal constitutes the law of the case and is binding on . . . Supreme Court, as well as on the appellate court . . . [T]he “law of the case” operates to foreclose re-examination of [the] question absent a showing of subsequent evidence or change of law’ “… . Nevertheless, “where a court has vacated an earlier order, the doctrine of . . . law of the case no longer applies . . . Indeed, a vacated judgment has no preclusive force either as a matter of collateral or direct estoppel or as a matter of the law of the case’ “… . While this Court may have “otherwise affirmed” the order insofar as it concerned the issues unrelated to the counterclaim, we dismissed the appeal from that part of the order concerning the counterclaim and vacated the judgment. That necessarily means that any determinations related to the counterclaim were not encompassed by the “otherwise affirmed” language related to the order … . Micro-Link, LLC v Town of Amherst, 2017 NY Slip Op 08120, Fourth Dept 11-17-17

CIVIL PROCEDURE (LAW OF THE CASE, DISCOVERY, PRIOR APPELLATE DECISION VACATING AN ORDER CONCERNING A COUNTERCLAIM WAS THE LAW OF THE CASE, NOT A PRIOR SUPREME COURT RULING ON THE COUNTERCLAIM, ACCOUNTANT REPORT PREPARED FOR LITIGATION NOT DISCOVERABLE (FOURTH DEPT))/APPEALS (CIVIL PROCEDURE, LAW OF THE CASE, PRIOR APPELLATE DECISION VACATING AN ORDER CONCERNING A COUNTERCLAIM WAS THE LAW OF THE CASE, NOT A PRIOR SUPREME COURT RULING ON THE COUNTERCLAIM, ACCOUNTANT REPORT PREPARED FOR LITIGATION NOT DISCOVERABLE (FOURTH DEPT))/PRIVILEGE (MATERIAL PREPARED FOR LITIGATION, PRIOR APPELLATE DECISION VACATING AN ORDER CONCERNING A COUNTERCLAIM WAS THE LAW OF THE CASE, NOT A PRIOR SUPREME COURT RULING ON THE COUNTERCLAIM, ACCOUNTANT REPORT PREPARED FOR LITIGATION NOT DISCOVERABLE (FOURTH DEPT))/ACCOUNTANTS (PRIVILEGE, REPORT PREPARED FOR LITIGATION, PRIOR APPELLATE DECISION VACATING AN ORDER CONCERNING A COUNTERCLAIM WAS THE LAW OF THE CASE, NOT A PRIOR SUPREME COURT RULING ON THE COUNTERCLAIM, ACCOUNTANT REPORT PREPARED FOR LITIGATION NOT DISCOVERABLE (FOURTH DEPT))/LAW OF THE CASE (CIVIL PROCEDURE, PRIOR APPELLATE DECISION VACATING AN ORDER CONCERNING A COUNTERCLAIM WAS THE LAW OF THE CASE, NOT A PRIOR SUPREME COURT RULING ON THE COUNTERCLAIM, ACCOUNTANT REPORT PREPARED FOR LITIGATION NOT DISCOVERABLE (FOURTH DEPT))

WHERE A NOTE OF ISSUE HAS BEEN FILED BUT IS SUBSEQUENTLY VACATED, THE ACTION IS NOT SUBJECT TO DISMISSAL AS ABANDONED PURSUANT TO CPLR 3404 (FOURTH DEPT).

The Fourth Department, in a full-fledged opinion by Justice NeMoyer, determined that CPLR 3404, which deems an action abandoned if not restored within a year of being marked off or struck from the calendar, does not apply to cases where a note of issue was filed but subsequently was vacated. The 1st and 2nd Department adhere to this view, the 3rd Department does not:

In accordance with the tenor and spirit of our existing case law, we now explicitly adopt the 1st and 2nd Departments’ rule, and reject the 3rd Department’s. It is axiomatic that CPLR 3404 has no applicability in the absence of an extant and valid note of issue … , and we agree with the Second Department that “[t]he vacatur of a note of issue . . . returns the case to pre-note of issue status [and] does not constitute a marking off’ or striking the case from the court’s calendar within the meaning of CPLR 3404” … . To state the obvious, a note of issue does not survive its own vacatur, and it makes no sense to apply CPLR 3404 when the statute’s operative premise—i.e., the continuing vitality of the note of issue—no longer exists. Bradley v Konakanchi, 2017 NY Slip Op 08125, Fourth Dept 11-17-17

CIVIL PROCEDURE (WHERE A NOTE OF ISSUE HAS BEEN FILED BUT IS SUBSEQUENTLY IS VACATED, THE ACTION IS NOT SUBJECT TO DISMISSAL AS ABANDONED PURSUANT TO CPLR 3404 (FOURTH DEPT))/CPLR 3403 (WHERE A NOTE OF ISSUE HAS BEEN FILED BUT IS SUBSEQUENTLY IS VACATED, THE ACTION IS NOT SUBJECT TO DISMISSAL AS ABANDONED PURSUANT TO CPLR 3404 (FOURTH DEPT))/NOTE OF ISSUE  (WHERE A NOTE OF ISSUE HAS BEEN FILED BUT IS SUBSEQUENTLY IS VACATED, THE ACTION IS NOT SUBJECT TO DISMISSAL AS ABANDONED PURSUANT TO CPLR 3404 (FOURTH DEPT))/ABANDONMENT (CPLR 3404, WHERE A NOTE OF ISSUE HAS BEEN FILED BUT IS SUBSEQUENTLY IS VACATED, THE ACTION IS NOT SUBJECT TO DISMISSAL AS ABANDONED PURSUANT TO CPLR 3404 (FOURTH DEPT))

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EVEN THOUGH THE WRONG CORPORATION WAS NAMED IN THE CONTRACT DEFENDANT SIGNED AS PRESIDENT, DEFENDANT COULD NOT BE HELD PERSONALLY LIABLE, MOTION TO SET ASIDE THE VERDICT SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department determined defendant’s motion to set aside the verdict in this contract dispute should have been granted. Defendant signed the contract as president of a corporation which existed but was misnamed. Defendant could not be held personally liable:

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“According to the well settled general rule, individual officers or directors are not personally liable on contracts entered into on behalf of a corporation if they do not purport to bind themselves individually’ . . . However, it is also well established that an agent who acts on behalf of a nonexistent principal may be held personally liable on the contract”… . “The rule [was] designed to protect a party who enters into a contract where the other signatory represents that he is signing on behalf of a business entity that in fact does not exist, under any name . . . [Thus,] as long as the identity of the corporation can be reasonably established from the evidence[,] . . . [an e]rror in the use of the corporate name will not be permitted to frustrate the intent which the name was meant to convey’ . . . In such a situation, . . . there is no need or basis to impose personal liability on the person who signed the contract as agent for the entity”… . “Accordingly, absent an allegation that, at the time of the contract, a plaintiff was under an actual misapprehension that there was some other, unincorporated group with virtually the same name as that of the actual business entity, the [c]ourt will not permit the [plaintiff] to capitalize on [a] technical naming error in contravention of the parties’ evident intentions’ ” … .

Thus, courts have determined that the individual who signed the contract may be liable where there was no existing corporation under any name because, under those circumstances, the plaintiff has “no remedy except against the individuals who acted as agents of those purported corporations”… . Where, as here, there was an existing corporation and merely a misnomer in the name of the corporation, courts have declined to impose liability on the individual who signed the contract because the plaintiff has a remedy against the existing, albeit misnamed, corporation… .

Here, we conclude that no one was under an actual misapprehension that there was an entity with the name. TBW, INC. J.N.K. Mach. Corp. v TBW, Ltd., 2017 NY Slip Op 08106, Fourth Dept 11-17-17

 

CORPORATION LAW (CONTRACT LAW, EVEN THOUGH THE WRONG CORPORATION WAS NAMED IN THE CONTRACT DEFENDANT SIGNED AS PRESIDENT, DEFENDANT COULD NOT BE HELD PERSONALLY LIABLE (FOURTH DEPT))/CONTRACT LAW (CORPORATION LAW, EVEN THOUGH THE WRONG CORPORATION WAS NAMED IN THE CONTRACT DEFENDANT SIGNED AS PRESIDENT, DEFENDANT COULD NOT BE HELD PERSONALLY LIABLE (FOURTH DEPT))/CIVIL PROCEDURE (MOTION TO SET ASIDE THE VERDICT, EVEN THOUGH THE WRONG CORPORATION WAS NAMED IN THE CONTRACT DEFENDANT SIGNED AS PRESIDENT, DEFENDANT COULD NOT BE HELD PERSONALLY LIABLE, MOTION TO SET ASIDE THE VERDICT SHOULD HAVE BEEN GRANTED (FOURTH DEPT))/VERDICT, MOTION TO SET ASIDE, EVEN THOUGH THE WRONG CORPORATION WAS NAMED IN THE CONTRACT DEFENDANT SIGNED AS PRESIDENT, DEFENDANT COULD NOT BE HELD PERSONALLY LIABLE, MOTION TO SET ASIDE THE VERDICT SHOULD HAVE BEEN GRANTED (FOURTH DEPT))

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PLAINTIFF BANK SHOULD HAVE BEEN ALLOWED TO AMEND THE COMPLAINT BY ADDING PARTIES AND TO EXTEND THE REACH OF THE ACTION TO THE ENTIRE PREMISES WHICH HAD BEEN ACQUIRED BY ADVERSE POSSESSION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff bank should have been allowed to amend its complaint in this foreclosure action to add parties and extend the reach of the action to the entire premises. There was evidence a party acquired title to the entire premises by adverse possession:

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In the absence of prejudice or surprise to the opposing party, leave to amend a pleading should be freely granted “unless the proposed amendment is palpably insufficient or patently devoid of merit” … . Moreover, pursuant to CPLR 1003, “[p]arties may be added at any stage of the action by leave of court” … .

Here, the plaintiff’s proposed cause of action was not “palpably insufficient or patently devoid of merit” … . RPAPL 1501 provides that any person who “claims an estate or interest in real property’ may maintain an action against any other person . . . to compel the determination of any claim adverse to that of the plaintiff which the defendant makes, or which it appears from the public records, . . . the defendant might make'”… . Pursuant to RPAPL 1501(5), the interest held by any mortgagee of real property is an “interest in real property” as that phrase is used in article 15… . Thus, contrary to the Supreme Court’s determination, the plaintiff, as mortgagee of the subject premises, asserted a cause of action to quiet title pursuant to RPAPL 1501 based on its claim that the mortgage encumbered the entire premises because the mortgagor acquired title to the entire premises by adverse possession … . Moreover, the plaintiff properly sought leave to amend the summons and complaint to add as defendants certain persons who might claim interests in the premises that are adverse to its own interest. Emigrant Sav. Bank v Walters, 2017 NY Slip Op 07976, Second Dept 11-15-17

 

CIVIL PROCEDURE (AMEND COMPLAINT, FORECLOSURE, PLAINTIFF BANK SHOULD HAVE BEEN ALLOWED TO AMEND THE COMPLAINT BY ADDING PARTIES AND TO EXTEND THE REACH OF THE ACTION TO THE ENTIRE PREMISES WHICH HAD BEEN ACQUIRED BY ADVERSE POSSESSION (SECOND DEPT))/FORECLOSURE (CIVIL PROCEDURE, PLAINTIFF BANK SHOULD HAVE BEEN ALLOWED TO AMEND THE COMPLAINT BY ADDING PARTIES AND TO EXTEND THE REACH OF THE ACTION TO THE ENTIRE PREMISES WHICH HAD BEEN ACQUIRED BY ADVERSE POSSESSION (SECOND DEPT))/REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (FORECLOSURE, PLAINTIFF BANK SHOULD HAVE BEEN ALLOWED TO AMEND THE COMPLAINT BY ADDING PARTIES AND TO EXTEND THE REACH OF THE ACTION TO THE ENTIRE PREMISES WHICH HAD BEEN ACQUIRED BY ADVERSE POSSESSION (SECOND DEPT))/ADVERSE POSSESSION (FORECLOSURE, CIVIL PROCEDURE, PLAINTIFF BANK SHOULD HAVE BEEN ALLOWED TO AMEND THE COMPLAINT BY ADDING PARTIES AND TO EXTEND THE REACH OF THE ACTION TO THE ENTIRE PREMISES WHICH HAD BEEN ACQUIRED BY ADVERSE POSSESSION (SECOND DEPT))

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NEW YORK LABOR LAW WORK-PAY REQUIREMENTS DO NOT APPLY TO WORK DONE OUT-OF-STATE (FIRST DEPT).

The First Department determined New York Labor Law worker-pay requirements do not apply to work done outside the state:

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Under New York Law, it is a “settled rule of statutory interpretation, that unless expressly stated otherwise, no legislation is presumed to be intended to operate outside the territorial jurisdiction of the state enacting it” … .

Article 6 of the New York Labor Law, which contains the unlawful deductions, notice, and record keeping provisions which plaintiffs claim were violated, contains no indication that the provisions were intended to apply when the work in question is performed outside the state. Article 19 of the New York Labor Law, which contains the minimum wage, overtime, and spread of hours provisions identified in the complaint, includes a “Statement of Public Policy” which states, in relevant part: “There are persons employed in some occupations in the state of New York at wages insufficient to provide adequate maintenance for themselves and their families…. Employment of persons at these insufficient rates of pay threatens the health and well-being of the people of this state and injures the overall economy” (Labor Law § 650).

Since these statutes do not expressly apply on an extraterritorial basis, plaintiffs’ claims under these provisions, based on labor performed exclusively outside New York, do not state a cause of action under Article 6 or Article 19 of the New York Labor Law … . Rodriguez v KGA Inc., 2017 NY Slip Op 07948, First Dept 11-14-17

 

CIVIL PROCEDURE (STATUTES, APPLICATION OUT-OF-STATE, NEW YORK LABOR LAW WORK-PAY REQUIREMENTS DO NOT APPLY TO WORK DONE OUT-OF-STATE (FIRST DEPT))/EMPLOYMENT LAW (STATUTES, APPLICATION OUT-OF-STATE, NEW YORK LABOR LAW WORK-PAY REQUIREMENTS DO NOT APPLY TO WORK DONE OUT-OF-STATE (FIRST DEPT))/LABOR LAW (STATUTES, APPLICATION OUT-OF-STATE, NEW YORK LABOR LAW WORK-PAY REQUIREMENTS DO NOT APPLY TO WORK DONE OUT-OF-STATE (FIRST DEPT))/JURISDICTION (LABOR LAW STATUTES, APPLICATION OUT-OF-STATE, NEW YORK LABOR LAW WORK-PAY REQUIREMENTS DO NOT APPLY TO WORK DONE OUT-OF-STATE (FIRST DEPT))/STATUTES (JURISDICTION, LABOR LAW, NEW YORK LABOR LAW WORK-PAY REQUIREMENTS DO NOT APPLY TO WORK DONE OUT-OF-STATE (FIRST DEPT))/EMPLOYMENT LAW (STATUTES, APPLICATION OUT-OF-STATE, NEW YORK LABOR LAW WORK-PAY REQUIREMENTS DO NOT APPLY TO WORK DONE OUT-OF-STATE (FIRST DEPT))

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WHISTLEBLOWER CAUSE OF ACTION WAS TIMELY UNDER THE RELATION-BACK DOCTRINE AND DID NOT WAIVE THE HUMAN RIGHTS LAW GENDER DISCRIMINATION CLAIM (FIRST DEPT).

The First Department determined plaintiff’s whistleblower (Labor Law 740) cause of action in the amended complaint was not time-barred because defendant had timely notice of the facts underlying the claim in the original complaint. The relation-back doctrine applied. The court further held that the gender discrimination action under the Human Rights Law was separate and distinct from the whistleblower cause of action:

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The court properly applied the relation back doctrine (CPLR 203[f]) to plaintiff’s whistleblower claim pursuant to Labor Law § 740, which requires such actions to be commenced within one year of the alleged retaliatory action (Labor Law § 740[4][a]). Although that claim was not asserted until the Second Amended Complaint, filed on October 19, 2015, more than one year after her termination on February 4, 2014, the original complaint, filed on January 31, 2015, alleged that on February 3, 2014, plaintiff reported to the defendants’ Business Practices Office defendants’ improper practices regarding its procurement of chemicals to manufacture its highest grossing drug, and that those practices did not comply with FDA regulations. It further alleged that she was terminated the next day in retaliation for that conduct. …

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The motion court correctly concluded that Labor Law § 740(7), the “election-of-remedies” provision, does not waive plaintiff’s claim of discrimination under the New York State Human Rights Law (State HRL) (Executive Law § 296) because, in alleging discrimination on account of plaintiff’s gender, national origin, and religion, plaintiff does not seek the same rights and remedies as she does in connection with her whistleblowing claim, notwithstanding that both claims allege that she was wrongfully terminated … . Demir v Sandoz Inc., 2017 NY Slip Op 07961, First Dept 11-14-17

 

EMPLOYMENT LAW (WHISTLEBLOWER CAUSE OF ACTION WAS TIMELY UNDER THE RELATION-BACK DOCTRINE AND DID NOT WAIVE THE HUMAN RIGHTS LAW GENDER DISCRIMINATION CLAIM (FIRST DEPT))/LABOR LAW (WHISTLEBLOWER CAUSE OF ACTION WAS TIMELY UNDER THE RELATION-BACK DOCTRINE AND DID NOT WAIVE THE HUMAN RIGHTS LAW GENDER DISCRIMINATION CLAIM (FIRST DEPT))/HUMAN RIGHTS LAW (WHISTLEBLOWER CAUSE OF ACTION WAS TIMELY UNDER THE RELATION-BACK DOCTRINE AND DID NOT WAIVE THE HUMAN RIGHTS LAW GENDER DISCRIMINATION CLAIM (FIRST DEPT))/CIVIL PROCEDURE (WHISTLEBLOWER CAUSE OF ACTION WAS TIMELY UNDER THE RELATION-BACK DOCTRINE AND DID NOT WAIVE THE HUMAN RIGHTS LAW GENDER DISCRIMINATION CLAIM (FIRST DEPT))/CPLR 203 (RELATION BACK, WHISTLEBLOWER CAUSE OF ACTION WAS TIMELY UNDER THE RELATION-BACK DOCTRINE AND DID NOT WAIVE THE HUMAN RIGHTS LAW GENDER DISCRIMINATION CLAIM (FIRST DEPT))/DISCRIMINATION (HUMAN RIGHTS LAW, EMPLOYMENT LAW, WHISTLEBLOWER CAUSE OF ACTION WAS TIMELY UNDER THE RELATION-BACK DOCTRINE AND DID NOT WAIVE THE HUMAN RIGHTS LAW GENDER DISCRIMINATION CLAIM (FIRST DEPT))

FAILURE TO INCLUDE RETURN DATE IN A NOTICE OF PETITION IS NO LONGER A JURISDICTIONAL DEFECT, HERE THERE WAS ACTUAL NOTICE AND NO PREJUDICE (FOURTH DEPT).

The Fourth Department noted that the failure to include a return date in a notice of petition is no longer a jurisdictional defect and can be overlooked where notice was actually provided:

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A “notice of petition shall specify the time and place of the hearing on the petition” (CPLR 403 [a]). The omission of a return date in a notice of petition does not, however, deprive a court of personal jurisdiction over the respondent … . Indeed, such a technical defect is properly disregarded under CPLR 2001 so long as the respondent had adequate notice of the proceeding and was not prejudiced by the omission… .

Here, it is undisputed that respondent had ample notice of the proceeding from its inception. Moreover, respondent has not identified any prejudice from the omitted return dates. The technical defects in the notices of petition should therefore be disregarded under CPLR 2001 … . Matter of Bender v Lancaster Cent. Sch. Dist., 2017 NY Slip Op 07853, Fourth Dept 11-9-17

 

CIVIL PROCEDURE (RETURN DATE, FAILURE TO INCLUDE RETURN DATE IN A NOTICE OF PETITION IS NO LONGER A JURISDICTIONAL DEFECT, HERE THERE WAS ACTUAL NOTICE AND NO PREJUDICE (FOURTH DEPT))/PETITION, NOTICE OF  (RETURN DATE, FAILURE TO INCLUDE RETURN DATE IN A NOTICE OF PETITION IS NO LONGER A JURISDICTIONAL DEFECT, HERE THERE WAS ACTUAL NOTICE AND NO PREJUDICE (FOURTH DEPT))/RETURN DATE (NOTICE OF PETITION, FAILURE TO INCLUDE RETURN DATE IN A NOTICE OF PETITION IS NO LONGER A JURISDICTIONAL DEFECT, HERE THERE WAS ACTUAL NOTICE AND NO PREJUDICE (FOURTH DEPT))/CPLR 403 (a) (RETURN DATE, FAILURE TO INCLUDE RETURN DATE IN A NOTICE OF PETITION IS NO LONGER A JURISDICTIONAL DEFECT, HERE THERE WAS ACTUAL NOTICE AND NO PREJUDICE (FOURTH DEPT))/CPLR 2001 (RETURN DATE, FAILURE TO INCLUDE RETURN DATE IN A NOTICE OF PETITION IS NO LONGER A JURISDICTIONAL DEFECT, HERE THERE WAS ACTUAL NOTICE AND NO PREJUDICE (FOURTH DEPT))

MOTION TO AMEND PLEADINGS NO LONGER REQUIRES A SHOWING OF THE MERIT OF THE PROPOSED AMENDMENT, THIRD DEPT JOINS THE OTHER THREE DEPARTMENTS (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Mulvey, following the other three departments, determined that a motion to amend the pleadings no longer requires a demonstration of the merit of the proposed amendment:

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We have previously adhered to a rule requiring the proponent of a motion for leave to amend a pleading to make a “sufficient evidentiary showing to support the proposed claim” … , that is, to make an “evidentiary showing that the proposed amendments have merit” … . However, we are persuaded to depart from that line of authority and follow the lead of the other three Departments, and we now hold that “[n]o evidentiary showing of merit is required under CPLR 3025 (b)” … . Thus, the rule on a motion for leave to amend a pleading is that the movant need not establish the merits of the proposed amendment and, “[i]n the absence of prejudice or surprise resulting directly from the delay in seeking leave, such applications are to be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit”… . The rationale for adopting this rule is that the liberal standard for leave to amend that was adopted by the drafters of the CPLR is inconsistent with requiring an evidentiary showing of merit on such a motion. “If the opposing party [on a motion to amend] wishes to test the merits of the proposed added cause of action or defense, that party may later move for summary judgment [or to dismiss] upon a proper showing” … . NYAHSA Servs., Inc., Self-Insurance Trust v People Care Inc., 2017 NY Slip Op 07918, Third Dept 11-9-17

 

CIVIL PROCEDURE (MOTION TO AMEND PLEADINGS NO LONGER REQUIRES A SHOWING OF THE MERIT OF THE PROPOSED AMENDMENT, THIRD DEPARTMENT JOINS THE OTHER THREE DEPARTMENTS (THIRD DEPT))/PLEADINGS, AMENDMENT OF  (MOTION TO AMEND PLEADINGS NO LONGER REQUIRES A SHOWING OF THE MERIT OF THE PROPOSED AMENDMENT, THIRD DEPARTMENT JOINS THE OTHER THREE DEPARTMENTS (THIRD DEPT))/AMENDMENT OF PLEADINGS  (MOTION TO AMEND PLEADINGS NO LONGER REQUIRES A SHOWING OF THE MERIT OF THE PROPOSED AMENDMENT, THIRD DEPARTMENT JOINS THE OTHER THREE DEPARTMENTS (THIRD DEPT))/CPLR 3025 (b) (MOTION TO AMEND PLEADINGS NO LONGER REQUIRES A SHOWING OF THE MERIT OF THE PROPOSED AMENDMENT, THIRD DEPARTMENT JOINS THE OTHER THREE DEPARTMENTS (THIRD DEPT))

TRIAL COURT VIOLATED THE LAW OF THE CASE DOCTRINE, PRIOR RULING BY THE COMMERCIAL DIVISION BECAME THE LAW OF THE CASE (SECOND DEPT).

The First Department determined the law of the case doctrine prohibited the trial court, a court of coordinate jurisdiction, from deviating from a prior ruling in the commercial division. The commercial division had ruled the plaintiff restaurant’s exhaust system violated the NYC Mechanical Code:

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The “law of the case doctrine is designed to eliminate the inefficiency and disorder that would follow if courts of coordinate jurisdiction were free to overrule one another in an ongoing case” … . Here, the trial court was prohibited from finding that plaintiff’s commercial kitchen exhaust system did not violate the Mechanical Code. The trial court adopted the earlier finding … when it held that [the] orders were the “law of the case,” and limited the issue at trial … . Glaze Teriyaki, LLC v MacArthur Props. I, LLC, 2017 NY Slip Op 07770, First Dept 11-9-17

 

CIVIL PROCEDURE (LAW OF THE CASE, TRIAL COURT VIOLATED THE LAW OF THE CASE DOCTRINE, PRIOR RULING BY THE COMMERCIAL DIVISION BECAME THE LAW OF THE CASE (SECOND DEPT))/LAW OF THE CASE  (LAW OF THE CASE, TRIAL COURT VIOLATED THE LAW OF THE CASE DOCTRINE, PRIOR RULING BY THE COMMERCIAL DIVISION BECAME THE LAW OF THE CASE (SECOND DEPT))

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