You are here: / Civil Procedure

In Consolidated Actions Started in Different Counties, the County Where the First Action Was Brought is the Proper Venue

The Second Department determined the proper venue for consolidated actions started in different counties is the county where the first action was brought: ” ‘[W]here actions commenced in different counties have been consolidated pursuant to CPLR 602, the venue should be placed in the county where the first action was commenced, unless special circumstances are present which decision is also addressed to the sound discretion of the court’…” . Fitzsimons v Brennan, 2015 NY Slip Op 03802, 2nd Dept 5-6-15

 

, , ,

Supervision, Even If Inadequate, Could Not Have Prevented Injury Caused by the Sudden, Unanticipated Act of Another Student—Summary Judgment to Defendant Properly Granted

The First Department determined that plaintiff’s injury on the playground could not have been prevented by supervision. Therefore the alleged inadequate supervision was not a proximate cause of the injury. Plaintiff was injured when he hit a pole while running away from another student. The court noted that the board of education, not the city, is the proper party.  The city is a separate legal entity not responsible for the torts of the board:

As to the claim against the Board, it is well settled that

“[s]chools are under a duty to adequately supervise the students in their charge and they will be held liable for foreseeable injuries proximately related to the absence of adequate supervision. Schools are not insurers of safety, however, for they cannot reasonably be expected to continuously supervise and control all movements and activities of students; therefore, schools are not to be held liable for every thoughtless or careless act by which one pupil may injure another. A teacher owes it to his [or her] charges to exercise such care of them as a parent of ordinary prudence would observe in comparable circumstances … .

“Even if a breach of the duty of supervision is established, the inquiry is not ended; the question arises whether such negligence was the proximate cause of the injuries sustained” … . ” Where an accident occurs in so short a span of time that even the most intense supervision could not have prevented it, any lack of supervision is not the proximate cause of the injury and summary judgment in favor of the [defendant school district] is warranted'” … . Thus, “[a]n injury caused by the impulsive, unanticipated act of a fellow student ordinarily will not give rise to a finding of negligence absent proof of prior conduct that would have put a reasonable person on notice to protect against the injury-causing act” … .

Here, even assuming that plaintiff could demonstrate that the supervision during the gym class was inadequate, the Board established a prima facie case for summary judgment by demonstrating that the accident was the result of a series of sudden and spontaneous acts and that any lack of supervision was not the proximate cause of the infant plaintiff’s injury … . Jorge C. v City of New York, 2015 NY Slip Op 03772, 1st Dept 5-5-15

 

,

Preliminary Injunction Prohibiting the Levying of Deficit Assessments by the Workers’ Compensation Board Properly Granted

The Fourth Department determined Supreme Court properly issued a preliminary injunction. All the criteria—irreparable harm, likelihood of success on the merits, and balancing of the equities—were met. The case involved the Workers’ Compensation Board’s levying of deficit assessments against petitioners pursuant to Workers’ Compensation Law section 50.  Matter of Riccelli Enters Inc v State of NY Workers’ Compensation Bd, 2014 NY Slip Op 03067, 4th Dept 5-2-14

 

Substantive Issue Raised by Petitioner Had Not Been Addressed in a Prior Proceeding Which Had Been Dismissed—Current Proceeding Therefore Not Barred by Doctrine of Collateral Estoppel

The Third Department determined a former teacher’s challenge to the recall of another former teacher was not barred by collateral estoppel.  The challenge was based upon the claim that the petitioner had greater seniority than the recalled teacher.  A prior challenge by petitioner to the recall of a different teacher had been dismissed, but the seniority issue had not been addressed in that prior proceeding:

In order for collateral estoppel to apply, there must be an identity of a decisive issue between the present and prior proceedings which was necessarily decided in the prior proceeding, and the party who will be estopped must have been afforded a full and fair opportunity to litigate the issue in the prior proceeding … . “Whether to apply collateral estoppel in a particular case depends on general notions of fairness involving a practical inquiry into the realities of the litigation” … . Here, while petitioner raises an identical issue in this proceeding, namely, whether she is entitled to more seniority credit than the Board gave her, that issue has never been decided. Rather, the earlier proceeding was dismissed as time-barred. Because the issue of whether petitioner is entitled to more seniority has not been decided, it is not barred by collateral estoppel … . Matter of Bubel v Board of Educ of the Saugerties Cent Sch Dist, 2014 NY Slip Op 02999, 3rd Dept 5-1-14

 

,

Failure to Mail Summons and Complaint to the Address the Property Owner Designated for the Receipt of All Relevant Correspondence Required Vacation of the Judgment of Foreclosure and Sale—Property Owner Was Never Properly Served Pursuant to CPLR 308(2)

The Second Department determined the property owner, Murphy, was entitled to vacate the judgment of foreclosure and sale because he was not properly served.  The summons was not served at Murphy’s primary residence in Manhattan (Reade Street), where Murphy had always received correspondence about the subject property (a vacation home referred to as the Noyack property) and where Murphy had requested all correspondence regarding the subject property be sent.  Rather the summons was served on someone other than Murphy (who was not identified) at the Noyack property and was mailed there as well. The court determined the service was invalid because it did not comply with the two prongs of CPLR 308(2):

CPLR 308 sets forth the different ways in which service of process upon an individual can be effected in order for the court to obtain jurisdiction over that person. CPLR 308(2) provides, in pertinent part, that personal service upon a natural person may be made “by delivering the summons within the state to a person of suitable age and discretion at the actual place of business, dwelling place or usual place of abode of the person to be served and by . . . mailing the summons to the person to be served at his or her last known residence” (emphasis added). “Jurisdiction is not acquired pursuant to CPLR 308(2) unless both the delivery and mailing requirements have been strictly complied with” … . It “is a two-step form of service in which a delivery and a mailing are both essential” (Vincent C. Alexander, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C308:3).

Since, under the circumstances of this case, the Noyack property, although Murphy’s vacation home, could properly be characterized as his dwelling place or usual place of abode … , we agree with the Supreme Court that the plaintiff satisfied the first prong of CPLR 308(2) by a fair preponderance of the evidence by serving process upon a person of suitable age and discretion at the Noyack property … .

However, the plaintiff failed to meet its burden of proof that its mailing of copies of the summons and complaint to that same address satisfied the second prong of CPLR 308(2). The undisputed evidence demonstrated that the plaintiff received notice from Murphy that the Reade Street address was to be used with respect to all notices concerning the Noyack property. Thereafter, from 2003 through December 2008, a period of time extending beyond the date of the mailing of copies of the summons and complaint to the Noyack property, the plaintiff actually utilized the Reade Street address to send Murphy all correspondence and notices relating to the Noyack property, including those referable to the mortgage statements and Murphy’s default thereunder. The only documents that the plaintiff mailed to the Noyack property were the summons and complaint, despite its knowledge that Murphy had given notice in accordance with the terms of the mortgage that his residence was the Reade Street address, and that it was at that address that he was to receive all mail. Washington Mut. Bank v Murphy, 2015 NY Slip Op 03520, 1st Dept 4-29-15

 

, ,

Third-Party Beneficiary of an Indemnification Agreement May Enforce Obligations Owed to the Judgment Debtor by the Indemnifying Party

The Second Department determined the third-party beneficiary of an indemnification agreement could bring an action to collect a debt by suing the entity which entered the indemnification agreement with the judgment debtor. “Pursuant to CPLR 5227, a special proceeding may be commenced by a judgment creditor ‘against any person who it is shown is or will become indebted to the judgment debtor.’ Such a proceeding is properly asserted against one who agreed to indemnify the judgment debtor in the underlying proceeding … . The judgment creditor stands in the judgment debtor’s shoes, and may enforce the obligations owed to the judgment debtor by the indemnifying party… “. Matter of White Plains Plaza Realty, LLC v Cappelli Enters., Inc., 2015 NY Slip Op 03549, 2nd Dept 4-29-15

 

,

Family Court Did Not Follow Statutory Procedure Before Ruling the New York Court Did Not Have Subject Matter Jurisdiction in a Proceeding to Modify a New Jersey Custody and Visitation Order—A Proceeding to Modify the Custody and Visitation Order Was Pending In New Jersey at the Time the New York Proceeding Was Brought

The Second Department determined Family Court failed to follow statutory procedure when it determined the New York court did not have subject matter jurisdiction over a proceeding to modify a New Jersey custody and visitation order.  At the time the New York proceeding was brought there was a pending proceeding in New Jersey to modify the custody and visitation order. Before determining the jurisdiction issue, Family Court was required to (but did not) make a record of its communications with the New Jersey court, provide the record to the parties, and give the parties the opportunity to present facts and legal arguments (Domestic Relations Law 75-i, 76-b, 76-e). The case was remanded for that purpose:

A court of this state may not modify a child custody determination made by a court of another state “unless . . . [t]he court of the other state determines it no longer has exclusive, continuing jurisdiction . . . or that a court of this state would be a more convenient forum” (Domestic Relations Law § 76-b[1]…). ” Where a different state possesses exclusive, continuing jurisdiction, New York cannot take jurisdiction unless the foreign state declines, even [if] the parties clearly no longer have a significant connection with that state'” … .

Furthermore, “a court of this state may not exercise its jurisdiction . . . if, at the time of the commencement of the proceeding, a proceeding concerning the custody of the child has been commenced in a court of another state having jurisdiction substantially in conformity with this article, unless the proceeding has been terminated or is stayed by the court of the other state because a court of this state is a more convenient forum” (Domestic Relations Law § 76-e[1]). “If the court [of this state] determines that a child custody proceeding has been commenced in a court in another state having jurisdiction substantially in accordance with [Domestic Relations Law article 5-A], the court of this state shall stay its proceeding and communicate with the court of the other state” (Domestic Relations Law § 76-e[2]; see Domestic Relations Law § 75-i[1]). “If the court of the state having jurisdiction substantially in accordance with this article does not determine that the court of this state is a more appropriate forum, the court of this state shall dismiss the proceeding” (Domestic Relations Law § 76-e[2]).

With limited exceptions not applicable here, “a record must be made” of the communication between the two courts and “[t]he parties must be informed promptly of the communication and granted access to the record” (Domestic Relations Law § 75-i[4]). Furthermore, “[i]f the parties are not able to participate in the communication, they must be given the opportunity to present facts and legal arguments before a decision on jurisdiction is made” (Domestic Relations Law § 75-i[2]). Matter of Frankel v Frankel, 2015 NY Slip Op 03530, 2nd Dept 4-29-15

 

, ,

Town Board Is Not a Proper Party In an Action Seeking Review of a Determination Made by the Town’s Zoning Board

The Second Department noted that the Town Board is not a proper party to an action seeking review of a determination by the town’s Zoning Board.  The Zoning Board “is an independent, quasi-judicial, administrative arm of the Town … . The Town Board … had no jurisdiction to hear or determine the subject application and, in fact, neither heard nor determined it.” Matter of TAC Peek Equities, Ltd. v Town of Putnam Val. Zoning Bd. of Appeals, 2015 NY Slip Op 03547, 2nd Dept 4-29-15

 

Summary Judgment Motion Served Within 60 Days of the Filing of the Note of Issue but Filed on the 61st Day Deemed Untimely

The First Department, reversing Supreme Court, strictly enforced a Supreme Court “individual part rule” and deemed a summary judgment motion untimely.  The rule requires a motion for summary judgment to “filed” within 60 days of the filing of the note of issue.  Here the motion was served within the 60 days but was filed on the 61st day. Connolly v 129 E. 69th St. Corp., 2015 NY Slip Op 03450, 1st Dept 4-28-30

 

Including “Statute of Limitations” in a Catch-All Paragraph Listing Many Affirmative Defenses Did Not Provide Plaintiff with Sufficient Notice—At a Bare Minimum, the Duration of the Relevant Statute of Limitations, Six Years Here, Should Be Pled

The First Department, in a full-fledged opinion by Justice Acosta, with an extensive concurrence, determined that the inclusion of the “statute of limitations” in a catch-all paragraph listing many affirmative defenses did not provide sufficient notice to the plaintiff.  In addition to failing to separately number and plead each affirmative defense (as required by the CPLR) the defendant failed to plead what the applicable statute of limitations (six years here) was. The court criticized a Court of Appeals case which said that simply mentioning the “statute of limitations” as an affirmative defense is sufficient notice—the First Department specifically suggested that the Court of Appeals revisit the issue. The court held that the plaintiff was prejudiced by the failure to plead the applicable (six-year) statute of limitations because the issue was not directly addressed during discovery as a result of the insufficient notice.  Supreme Court’s grant of summary judgment to the defendant was reversed on the merits (competing expert affidavits raised questions of fact). The defendant was allowed to replead the affirmative defense and the plaintiff was allowed further discovery on the issue:

The result of defendant’s failure to comply with CPLR 3014 is that its statute of limitations defense lay buried within a paragraph of mostly irrelevant, and conclusory, defenses. Although plaintiff could have moved to compel separate numbering …, it was not required to make such a motion because defendant’s answer did not necessitate a responsive pleading (see CPLR 3018; CPLR 3024). Thus, plaintiff cannot be forced to accept the defective answer simply because it declined to make a motion to compel separate numbering.

Further, we have no doubt that defendant was permitted to plead its affirmative defenses hypothetically — which it apparently attempted to do by “reserving” those defenses unto itself — but only insofar as those defenses were concise, separately numbered, and sufficiently stated (CPLR 3013; CPLR 3014). A permissive hypothetical pleading does not extend so far as to authorize a defendant to plead each and every affirmative defense that might exist without regard to its relevance to the cause(s) of action presented by the complaint. Permitting such conduct here would effectively sanction deception on the part of defendant, whether intentional or not, thereby avoiding the CPLR’s notice requirement. In other words, defendant’s formulation of its laundry list of defenses in hypothetical terms does not exempt it from the other requirements of CPLR 3014.

The question, therefore, becomes one of prejudice. That is, the CPLR directs us to construe a defendant’s answer liberally and disregard defects unless a substantial right of the plaintiff would be prejudiced (see CPLR 3026). This must be done in light of the overarching directive that the CPLR “be liberally construed to secure the just, speedy and inexpensive determination of every civil judicial proceeding” (CPLR 104). “[W]e must literally apply the mandate [to construe pleadings liberally] as directed and thus make the test of prejudice one of primary importance” … . * * *

It seems clear that a court cannot require a level of particularity beyond that outlined by the Official Forms; to do so would contravene CPLR 107’s command that pleadings that comply with the forms are sufficient as a matter of law … . Thus, the most that a court could require of a defendant pleading the statute of limitations is to state the applicable period of limitations, as set forth in Official Form 17. We acknowledge that Official Form 17 establishes a ceiling, not a floor. To be sure, a defendant whose answer pleads the “statute of limitations” and includes the applicable period of limitations will necessarily be in compliance with the official form, and courts must deem that pleading sufficient pursuant to CPLR 107 and CPLR 3013. Scholastic Inc. v Pace Plumbing Corp., 2015 NY Slip Op 03489, 1st Dept 4-28-15

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy