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LAWSUIT INVOLVED WITNESSES AND DOCUMENTS LOCATED IN RUSSIA, DISMISSAL BASED UPON THE DOCTRINE OF FORUM NON CONVENIENS WAS PROPER.

The First Department determine the lawsuit was properly dismissed under the doctrine of forum non conveniens. The lawsuit involved people and documents located in Russia. The fact that defendants wired money from New York was not a sufficient contact:

“The application of the doctrine of forum non conveniens is a matter of discretion to be exercised by the trial court … . Contrary to plaintiff’s argument, “the availability of another suitable forum” is not “a prerequisite for applying the conveniens doctrine” … .

Considering all the relevant factors, the motion court providently exercised its discretion in applying the doctrine of forum non conveniens. What is left of the instant New York state complaint …is the claim that plaintiff (a Cypriot corporation with an office in Canada) should have received dividends from Yugraneft (a Russian company that owns an oil field in Siberia). The key events underlying the claim took place in Russia, where the bulk of the witnesses and documents are located. That the individual defendants may have wired funds from New York does not require a contrary result … .  “[O]ur courts should not be under any compulsion to add to their heavy burdens by accepting jurisdiction of a cause of action having no substantial nexus with New York” … . Norex Petroleum Ltd. v Blavatnik, 2017 NY Slip Op 05310, 1st Dept 6-29-17

 

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QUESTION OF FACT WHETHER WITHDRAWAL OF PRIOR FORECLOSURE PROCEEDING CONSTITUTED THE REVOCATION OF THE ELECTION TO ACCELERATE THE DEBT, THEREBY STOPPING THE RUNNING OF THE SIX-YEAR STATUTE OF LIMITATIONS.

The Second Department determined the lender had raised a question of fact whether it had revoked its election to accelerate the debt by withdrawing a prior foreclosure action. The six-year statute of limitations began to run when the debt was accelerated by the first foreclosure action. If the withdrawal of that action revoked the debt acceleration, the statute would have stopped running at that point rendering the instant action timely:

[E]ven 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'” … . A lender may revoke its election to accelerate the mortgage, but it must do so by an affirmative act of revocation occurring during the six-year statute of limitations period subsequent to the initiation of the prior foreclosure action … .

… [T]he defendant submitted proof that, on August 16, 2011, [the lender] moved for, and on September 22, 2011, was granted, an order that discontinued the foreclosure action, canceled the notice of pendency, and vacated the judgment of foreclosure and sale it had been granted. The defendant thereby raised a triable issue of fact … as to whether [the lender’s] motion “constituted an affirmative act by the lender to revoke its election to accelerate” …  Contrary to the plaintiff’s contention, this case is distinguishable from the cases in which, because “[t]he prior foreclosure action was never withdrawn by the lender, but rather, dismissed . . . by the court, [i]t cannot be said that [the] dismissal by the court constituted an affirmative act by the lender to revoke its election to accelerate” … . NMNT Realty Corp. v Knoxville 2012 Trust, 2017 NY Slip Op 05230, 2nd Dept 6-28-17

 

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ALTHOUGH PLAINTIFF’S COUNSEL HAD NOTIFIED ALL PARTIES HE WAS NO LONGER REPRESENTING PLAINTIFF, THE PROPER PROCEDURE FOR WITHDRAWAL OF AN ATTORNEY OF RECORD HAD NOT BEEN FOLLOWED, THEREFORE THE STIPULATION OF DISCONTINUANCE SIGNED BY PLAINTIFF PRO SE WAS NOT VALID.

The Second Department, reversing Supreme Court, determined plaintiff’s motion to vacate a stipulation of discontinuance should not have been denied. At the time plaintiff signed the discontinuance pro se, his attorney (Mulhern) had notified all parties he was no longer representing plaintiff, but the proper procedure for withdrawing as counsel had not been followed. Therefore the stipulation of discontinuance was not valid:

“Although a client may, as a matter of public policy, discharge an attorney at any time, with or without cause…,  an attorney of record in an action may only withdraw or be changed or discharged in the manner prescribed by statute”… . “Until an attorney of record withdraws or is changed or discharged in the manner prescribed by CPLR 321, his [or her] authority as attorney of record for his [or her] client continues, as to adverse parties, unabated” … .

Here, at the time that the plaintiff executed the stipulation of discontinuance, he and Mulhern had not signed and filed a consent to change attorney form or sought a court order permitting Mulhern to withdraw as the plaintiff’s counsel. Thus, as to the defendants, Mulhern still was the plaintiff’s attorney … , and the plaintiff was not permitted to act pro se without consent of the court … . Accordingly, the plaintiff’s motion to vacate the stipulation of discontinuance should have been granted. Garafalo v Mayoka, 2017 NY Slip Op 05201, 2nd Dept 6-28-17

 

DEFENDANTS, OPERATORS OF A VIRGINIA HOTEL WHERE PLAINTIFF WAS INJURED IN A SHOWER, DEMONSTRATED THE ABSENCE OF BUSINESS TIES TO NEW YORK, THE FACT THAT NEW YORKERS CAN MAKE RESERVATIONS THROUGH A WEBSITE IS NOT ENOUGH.

The Second Department determined defendants’ hotel’s motion to dismiss based upon the lack of business ties to New York was properly granted. Plaintiff was injured in a shower in the hotel, which is located in Virginia. The defendants demonstrated they did not do business in New York. The fact that reservations could be made through a website (accessed in New York) was not enough. There was no showing the injury was linked to the use of the website:

… [T]he plaintiffs failed to demonstrate that the defendants purposefully availed themselves of the privilege of conducting business in New York. Moreover, accepting as true the plaintiffs’ allegation that the defendants were involved in maintaining or operating a website that permitted consumers in New York to make reservations at the subject hotel in Virginia, they failed to make a prima facie showing that there was a substantial relationship between the causes of action asserted in the complaint and any alleged transaction of business through that website … .

The plaintiffs also failed to make a prima facie showing that personal jurisdiction exists under CPLR 302(a)(4) based on ownership, use, or possession of any real property within the state … .

Furthermore, contrary to their contention, the plaintiffs have not made ” a sufficient start'” to warrant holding this branch of the defendants’ motion in abeyance while discovery is conducted on the issue of jurisdiction … . The plaintiffs have not alleged facts which would support personal jurisdiction under either CPLR 302(a)(1) or CPLR 302(a)(4), and thus have failed to indicate how further discovery might lead to evidence showing that personal jurisdiction exists here … . Leuthner v Homewood Suites by Hilton, 2017 NY Slip Op 05212, 2nd Dept 6-28-17

 

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MOTION TO SET ASIDE THE VERDICT IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN GRANTED, PHOTOGRAPHS TAKEN TWO WEEKS AFTER THE ACCIDENT SHOULD NOT HAVE BEEN EXCLUDED, CONTRACT SPECIFICATIONS FOR WORK ON THE AREA OF THE FALL SHOULD NOT HAVE BEEN EXCLUDED, SUBPOENAS FOR WITNESSES WHO HAD NOT BEEN DEPOSED SHOULD NOT HAVE BEEN QUASHED.

The First Department determined the defendants’ motion to set aside the verdict in this slip and fall case should not have been granted. The First Department further held that photographs of the sinkhole where plaintiff fell (taken two weeks after the injury) and the contract specifications for repair of the sinkhole should not have been excluded from evidence. In addition plaintiff’s subpoenas for a city inspector and a principal of the contractor (Halcyon) which repaired the sinkhole should not have been quashed. The fact that those witnesses were not deposed did not preclude plaintiff’s calling them at trial:

… [T]he trial court erred in precluding pictures of the accident site … . Plaintiff authenticated the photographs at his deposition, and further testimony at trial could have explained how and why the scene depicted in the photos did or did not differed from the scene on the day of the accident … . Exclusion of the photographs meant that plaintiff was unable to show the jury the hole into which he allegedly fell.

Nor should the court have precluded the City’s specifications incorporated into its contract with Halcyon. The specifications were expressly incorporated into the contract between Halcyon and the City; thus, they applied not only to the City itself, but also to third parties. Therefore, they were admissible as potential evidence of defendants’ negligence… , and indeed, the City failed to show how the specifications transcended the duty of reasonable care. The trial court’s exclusion of this evidence regarding the specifications hobbled plaintiff’s ability to prove that the City had engaged in affirmative negligence — the very basis upon which the trial court granted the directed verdict.

Likewise, the court erred in quashing the subpoenas directed to the City’s onsite inspector and a principal of Halcyon … . Although plaintiff did not formally name the City’s onsite inspector and the principal of Halcyon as witnesses, nothing in the CPLR requires a party to generate a trial witness list, nor does the record indicate that the individual court rules required him to do so … . Indeed, there is no requirement that a party depose a witness in order to call him or her as a witness at trial. Gonzalez v City of New York, 2017 NY Slip Op 05180, 1st Dept 6-27-17

 

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NO NEW INJURIES WERE ALLEGED, THE DOCUMENT WAS A SUPPLEMENTAL, NOT AN AMENDED, BILL OF PARTICULARS, LEAVE OF COURT NOT REQUIRED.

The Second Department, reversing Supreme Court, determined the document submitted by plaintiff was a supplemental bill of particulars, not an amended bill of particulars. Therefore the document could be served without permission from the court:

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In his original bill of particulars dated February 8, 2006, the injured plaintiff alleged that he sustained permanent personal injuries, including depression, insomnia, agitation, poor concentration, loneliness, and tenseness, and that his injuries were accompanied by distress, depression, stress, and psychological difficulties. After the Supreme Court’s order granting the defendant’s motion for summary judgment dismissing the complaint was reversed on appeal … and the case was restored to the trial calendar, the plaintiffs served, pursuant to CPLR 3101(d), an expert witness disclosure dated August 4, 2013, and the affidavit of their expert psychologist dated April 27, 2013. Thereafter, the plaintiffs served a supplemental bill of particulars dated February 17, 2015, alleging the additional injuries or damages of post-traumatic stress disorder and future costs of long-term psychotherapy. In the order appealed from, the court, inter alia, granted that branch of the defendant’s motion which was to strike the supplemental bill of particulars and denied that branch of the plaintiffs’ cross motion which was to compel the defendant to accept the supplemental bill of particulars. The court found that the supplemental bill of particulars sought to add new injuries, thereby rendering it an amended bill of particulars, and that the plaintiffs failed to demonstrate a reasonable excuse for the inordinate delay in seeking leave to include the new injuries. The plaintiffs appeal.

Pursuant to CPLR 3043(b), a plaintiff in a personal injury action may serve a supplemental bill of particulars containing “continuing special damages and disabilities,” without leave of the court at any time, but not less than 30 days prior to trial, if it alleges “no new cause of action” or claims no “new injury.” Here, the plaintiffs sought to allege continuing consequences of the injuries suffered and described in the original bill of particulars, rather than new and unrelated injuries … . Since the contested bill of particulars is a supplemental bill of particulars, rather than an amended bill of particulars, and was served more than 30 days prior to trial, leave of court was not required … . Khosrova v Hampton Bays Union Free Sch. Dist., 2017 NY Slip Op 05075, 2nd Dept 6-21-17

 

CIVIL PROCEDURE (BILL OF PARTICULARS, NO NEW INJURIES WERE ALLEGED, THE DOCUMENT WAS A SUPPLEMENTAL, NOT AN AMENDED, BILL OF PARTICULARS, LEAVE OF COURT NOT REQUIRED)/BILL OF PARTICULARS (SUPPLEMENTAL VERSUS AMENDED, NO NEW INJURIES WERE ALLEGED, THE DOCUMENT WAS A SUPPLEMENTAL, NOT AN AMENDED, BILL OF PARTICULARS, LEAVE OF COURT NOT REQUIRED)

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INSUFFICIENT PROOF SIGNATURE ON A POWER OF ATTORNEY WAS FORGED, SUPREME COURT REVERSED.

The Second Department, reversing Supreme Court, determined the proof of the allegedly forged signature on a power of attorney was insufficient to support declaring the power of attorney null and void:

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“A certificate of acknowledgment attached to an instrument such as a deed or a mortgage raises the presumption of due execution, which presumption . . . can be rebutted only after being weighed against any evidence adduced to show that the subject instrument was not duly executed'”… . ” [A] certificate of acknowledgment should not be overthrown upon evidence of a doubtful character, such as the unsupported testimony of interested witnesses, nor upon a bare preponderance of evidence, but only on proof so clear and convincing so as to amount to a moral certainty'” … .

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Here, the plaintiff failed to rebut the presumption of validity of the acknowledged power of attorney. Although an expert opinion is not necessarily required in order to establish that a document is a forgery, where an expert opinion is offered, the expert must “state with reasonable professional certainty that the signature at issue is not authentic” … . The plaintiff failed to present evidence authenticating the group of 31 exemplars upon which the plaintiff’s handwriting expert primarily relied … . Further, although the handwriting expert testified that he relied on several additional exemplars, those exemplars likewise were not authenticated … . Consequently, the testimony of the handwriting expert should not have been considered … .

The testimony of the plaintiff and other witnesses was not sufficient to establish, to a moral certainty, that the 2002 power of attorney was forged. The plaintiff denied having signed the 2002 power of attorney. However, “[s]omething more than a bald assertion of forgery is required to create an issue of fact contesting the authenticity of a signature”… . Kanterakis v Minos Realty I, LLC, 2017 NY Slip Op 05074, 2nd Dept 6-21-17

 

CIVIL PROCEDURE (FORGERY, POWER OF ATTORNEY, INSUFFICIENT PROOF SIGNATURE ON A POWER OF ATTORNEY WAS FORGED, SUPREME COURT REVERSED)/EVIDENCE (FORGERY, POWER OF ATTORNEY, INSUFFICIENT PROOF SIGNATURE ON A POWER OF ATTORNEY WAS FORGED, SUPREME COURT REVERSED)/FORGERY (POWER OF ATTORNEY, INSUFFICIENT PROOF SIGNATURE ON A POWER OF ATTORNEY WAS FORGED, SUPREME COURT REVERSED)/EXPERT OPINION (FORGERY, POWER OF ATTORNEY, INSUFFICIENT PROOF SIGNATURE ON A POWER OF ATTORNEY WAS FORGED, SUPREME COURT REVERSED)/FORGERY (POWER OF ATTORNEY, INSUFFICIENT PROOF SIGNATURE ON A POWER OF ATTORNEY WAS FORGED, SUPREME COURT REVERSED)/CERTIFICATE OF ACKNOWLEDGMENT (POWER OF ATTORNEY, INSUFFICIENT PROOF SIGNATURE ON A POWER OF ATTORNEY WAS FORGED, SUPREME COURT REVERSED)

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ATTORNEY GENERAL PROPERLY SUBPOENAED DOCUMENTS RELEVANT TO WHETHER A NON-PROFIT WHICH COUNSELS WOMEN AGAINST TERMINATING THEIR PREGNANCIES WAS PRACTICING MEDICINE WITHOUT A LICENSE, HOWEVER THE SUBPOENA MUST BE TAILORED TO PROTECT THE RIGHT TO FREEDOM OF ASSOCIATION.

The Second Department, in a full-fledged opinion by Justice Cohen, determined the attorney general properly subpoenaed documents relevant to whether the non-profit Evergreen was practicing medicine without a license, but the subpoena had to be tailored to protect the First Amendment rights of Evergreen personnel. Evergreen counsels women in an effort to convince them not to terminate their pregnancies:

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There is no question that the Attorney General’s investigation is of the utmost importance to protecting the health and safety of women. However, it is equally important that such investigation be carried out with respect and sensitivity to the constitutional rights of those involved. While the subpoena seeks documents that generally bear a reasonable relation to the subject matter of the Attorney General’s investigation, the demands are not narrowly tailored to require production of only those documents directly related to Evergreen’s alleged unauthorized practice of medicine. Thus, we limit in scope the demands set forth in the subpoena to require the disclosure of only those documents that are substantially related to the Attorney General’s legitimate need to gather evidence to determine whether Evergreen has engaged in the unauthorized practice of medicine and which do not unnecessarily intrude on Evergreen’s First Amendment right to freedom of association. Matter of Evergreen Assn., Inc. v Schneiderman, 2017 NY Slip Op 05086, 2nd Dept 6-21-17

CIVIL PROCEDURE (SUBPOENAS, FREEDOM OF ASSOCIATION, ATTORNEY GENERAL PROPERLY SUBPOENAED DOCUMENTS RELEVANT TO WHETHER A NON-PROFIT WHICH COUNSELS WOMEN AGAINST TERMINATING THEIR PREGNANCIES WAS PRACTICING MEDICINE WITHOUT A LICENSE, HOWEVER THE SUBPOENA MUST BE TAILORED TO PROTECT THE RIGHT TO FREEDOM OF ASSOCIATION)/CONSTITUTIONAL LAW (SUBPOENAS, FREEDOM OF ASSOCIATION, ATTORNEY GENERAL PROPERLY SUBPOENAED DOCUMENTS RELEVANT TO WHETHER A NON-PROFIT WHICH COUNSELS WOMEN AGAINST TERMINATING THEIR PREGNANCIES WAS PRACTICING MEDICINE WITHOUT A LICENSE, HOWEVER THE SUBPOENA MUST BE TAILORED TO PROTECT THE RIGHT TO FREEDOM OF ASSOCIATION)/ABORTION (SUBPOENAS, FREEDOM OF ASSOCIATION, ATTORNEY GENERAL PROPERLY SUBPOENAED DOCUMENTS RELEVANT TO WHETHER A NON-PROFIT WHICH COUNSELS WOMEN AGAINST TERMINATING THEIR PREGNANCIES WAS PRACTICING MEDICINE WITHOUT A LICENSE, HOWEVER THE SUBPOENA MUST BE TAILORED TO PROTECT THE RIGHT TO FREEDOM OF ASSOCIATION)/SUBPOENAS (FREEDOM OF ASSOCIATION, ATTORNEY GENERAL PROPERLY SUBPOENAED DOCUMENTS RELEVANT TO WHETHER A NON-PROFIT WHICH COUNSELS WOMEN AGAINST TERMINATING THEIR PREGNANCIES WAS PRACTICING MEDICINE WITHOUT A LICENSE, HOWEVER THE SUBPOENA MUST BE TAILORED TO PROTECT THE RIGHT TO FREEDOM OF ASSOCIATION)/FREEDOM OF ASSOCIATION (SUBPOENAS, ATTORNEY GENERAL PROPERLY SUBPOENAED DOCUMENTS RELEVANT TO WHETHER A NON-PROFIT WHICH COUNSELS WOMEN AGAINST TERMINATING THEIR PREGNANCIES WAS PRACTICING MEDICINE WITHOUT A LICENSE, HOWEVER THE SUBPOENA MUST BE TAILORED TO PROTECT THE RIGHT TO FREEDOM OF ASSOCIATION)

NOTICE OF APPEARANCE FILED ON BEHALF OF DEFENDANT BEFORE DEFENDANT WAS MADE A PARTY WAIVED ANY SUBSEQUENT LACK-OF-PERSONAL-JURISDICTION DEFENSE.

The Second Department determined a notice of appearance filed on behalf of a defendant (Dariusz Lojek) before he was made a party waived any subsequent defense alleging lack of personal jurisdiction. The subsequent amended summons and complaint naming Lojek as a party was deemed a nullity. After the statute of limitations passed, Lojek moved to dismiss:

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On August 22, 2011, the plaintiff commenced this action to recover damages for personal injuries against Asconcio, Inter Euro, Darek Cake Company, and the Grimaldi Bakery Co. Dariusz Lojek, the principal of both Inter Euro and Darek Cake, Inc., was not initially named as a defendant in the action. However, on June 20, 2012, Dariusz Lojek’s attorney filed a notice of appearance on his behalf, and demanded “that all Notices and Demands in this action be served upon the undersigned attorney at the address set forth below.” In a letter to the attorneys for the plaintiff and the defendants in the action, Dariusz Lojek’s attorney asked for “copies of any legal papers which you may have already filed in this action,” and requested to be advised of “pending appearances.”

Over three months later, on September 24, 2012, the plaintiff filed a supplemental summons and amended complaint deleting the defendant Grimaldi Bakery Co. from the caption, correcting the name of the defendant Darek Cake Company to Darek Cake, Inc., and adding Marzena Lojek and Dariusz Lojek, the alleged principals of Inter Euro and Darek Cake, Inc., as defendants in the action. Darek Cake, Inc., Marzena Lojek, and Dariusz Lojek were served with the supplemental summons and amended complaint in December 2012. …

Since the plaintiff failed to obtain leave of court or a stipulation between the parties before serving and filing the supplemental summons and amended complaint, that service may be deemed a nullity, and the amended complaint dismissed insofar as asserted against the additional parties for lack of personal jurisdiction … .

However, lack of personal jurisdiction may be waived … . Under the circumstances of this case, by his appearance in June 2012 and his voluntary participation in the action, Dariusz Lojek submitted to the jurisdiction of the court and waived any defense of lack of personal jurisdiction within the applicable statute of limitations … . Jaramillo v Asconcio, 2017 NY Slip Op 05073, 2nd Dept 6-21-17

 

CIVIL PROCEDURE (NOTICE OF APPEARANCE, WAIVER OF DEFENSES, NOTICE OF APPEARANCE FILED ON BEHALF OF DEFENDANT BEFORE DEFENDANT WAS MADE A PARTY WAIVED ANY SUBSEQUENT LACK-OF-PERSONAL-JURISDICTION DEFENSE)/ATTORNEYS (NOTICE OF APPEARANCE, WAIVER OF DEFENSES, NOTICE OF APPEARANCE FILED ON BEHALF OF DEFENDANT BEFORE DEFENDANT WAS MADE A PARTY WAIVED ANY SUBSEQUENT LACK-OF-PERSONAL-JURISDICTION DEFENSE)/NOTICE OF APPEARANCE (WAIVER OF JURISDICTIONAL DEFENSE,  NOTICE OF APPEARANCE FILED ON BEHALF OF DEFENDANT BEFORE DEFENDANT WAS MADE A PARTY WAIVED ANY SUBSEQUENT LACK-OF-PERSONAL-JURISDICTION DEFENSE)

FURTHER LAWSUITS BETWEEN HUSBAND AND WIFE PROPERLY PROHIBITED BY THE COURT.

The Second Department determined it was appropriate to prohibit further lawsuits in this long-standing series of actions between husband and wife:

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The plaintiff appeals from the denial of that branch of his motion which was to enjoin the defendants from commencing any new litigation against, or engaging in any applications or motion practice in existing actions involving, the plaintiff, his medical practice, his wife, Janet Rugg Lew, or his counsel, Wand & Goody, LLP, without prior written permission of the Supreme Court. Although public policy generally mandates free access to the courts, a party may forfeit that right if he or she abuses the judicial process by engaging in vexatious litigation … . Here, the record reflects that both the plaintiff and the defendants have engaged in extensive vexatious litigation against each other in the Family Court and the Supreme Court from 2003 to the present. Under the circumstances of this case, it would only be appropriate to enjoin the defendants from engaging in further litigation if the plaintiff was enjoined as well. Accordingly, we reverse the order entered September 3, 2014, insofar as appealed from, and grant the subject branch of the plaintiff’s motion on condition that he stipulate that he be likewise enjoined from commencing any new litigation against the defendants or engaging in any applications or motion practice in existing actions involving the defendants without written permission of the Supreme Court. If the plaintiff does not so stipulate and serve and file such stipulation in accordance with the terms of this order, then we affirm the order insofar as appealed from. Lew v Sobel, 2017 NY Slip Op 05076, 2nd Dept 6-21-17

CIVIL PROCEDURE (FURTHER LAWSUITS BETWEEN HUSBAND AND WIFE PROPERLY PROHIBITED BY THE COURT)/VEXATIOUS LITIGATION (CIVIL PROCEDURE, FURTHER LAWSUITS BETWEEN HUSBAND AND WIFE PROPERLY PROHIBITED BY THE COURT)

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