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Criteria for Determining Motions to Dismiss Affirmative Defenses Explained

The Second Department explained the analytical criteria for determining motions to dismiss affirmative defenses:

Pursuant to CPLR 3211(b), “[a] party may move for judgment dismissing one or more defenses, on the ground that a defense is not stated or has no merit” (CPLR 3211[b]). When moving to dismiss an affirmative defense, the plaintiff bears the burden of demonstrating that the affirmative defense is “without merit as a matter of law” … . “In reviewing a motion to dismiss an affirmative defense, the court must liberally construe the pleadings in favor of the party asserting the defense and give that party the benefit of every reasonable inference” … . Bank of NY v Penalver, 2015 NY Slip Op 01407, 2nd Dept 2-18-15

 

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Criteria for Discovery in a Special Proceeding Explained/Criteria for Leave to File a Late Notice of Claim Explained

The Second Department determined petitioner’s application for leave to file a late notice of claim was properly denied, as was petitioner’s request for discovery prior to the hearing.  The court explained the relevant analytical criteria:

In a special proceeding, where disclosure is available only by leave of the court (see CPLR 408), the Supreme Court has broad discretion in granting or denying disclosure …, although it must balance the needs of the party seeking discovery against such opposing interests as expediency and confidentiality … . Contrary to the petitioners’ contention, they failed to demonstrate that the requested discovery was necessary and that providing the requested discovery would not unduly delay this proceeding … .

In determining whether to permit service of a late notice of claim, the court must consider all relevant facts and circumstances, including whether (1) the public corporation acquired actual knowledge of the essential facts constituting the claim within 90 days of the incident or a reasonable time thereafter, (2) the petitioner had a reasonable excuse for the delay, and (3) the public corporation was prejudiced by the delay in its ability to maintain its defense on the merits (see Education Law § 3813[2-a]; General Municipal Law § 50-e[5]…). The injured petitioner’s assertion that she did not immediately appreciate the nature and severity of her injuries during the first 90 days after the subject incident is unavailing without supporting medical evidence explaining why the possible permanent effects of the injuries took so long to become apparent and to be diagnosed … . * * *

In addition, the petitioners failed to establish that the respondent acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim arose or within a reasonable time thereafter … . * * *

Finally, the petitioners failed to establish that the respondent would not be substantially prejudiced in its defense on the merits by the significant delay should leave be granted … . Matter of Bramble v New York City Dept of Education, 2015 NY Slip Op 01450, 2nd Dept 2-18-15

 

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Criteria for Vacation of a Stipulation of Settlement Not Met

In finding that the motion to vacate a stipulated settlement was properly denied, the Second Department explained the relevant analytical criteria:

“Settlements entered into in open court are binding and are not lightly cast aside” … . A stipulation is an independent contract which is subject to basic principles of contract law … . “Only where there is cause sufficient to invalidate a contract, such as fraud, collusion, mistake or accident, will a party be relieved from the consequences of a stipulation made during litigation” … . Mortgage Elec Registration Sys Inc v Kontarinis, 2015 NY Slip Op 01430, 2nd Dept 2-18-15

 

Further Proceedings Are Stayed When Counsel’s Motion to Withdraw Is Granted

The First Department noted that when plaintiff’s counsel’s motion for leave to withdraw was granted, further proceedings against plaintiff were stayed pursuant to CPLR 321 (c):

When the court granted plaintiff’s counsel’s motion for leave to withdraw, further proceedings against plaintiff were stayed, by operation of CPLR 321(c), until 30 days after notice to appoint another attorney had been served upon her … . While the stay was in effect, the court had no power to decide defendant’s motion for summary judgment dismissing the complaint. Fan v Sabin, 2015 NY Slip Op 01400, 1st Dept 2-17-15

 

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Plaintiff Placed Her Mental Condition In Controversy—Defendant Entitled to Have Her Examined by a Psychiatrist

The First Department, in the context of an action for retaliatory discharge, sexual harassment and intentional infliction of emotional distress, determined plaintiff had placed her mental condition in controversy and defendant was entitled to have plaintiff examined by a psychiatrist.  Plaintiff had alleged “extreme mental and physical anguish,” “severe anxiety,” eczema, hair pulling, depression and suicidal feelings:

Under these circumstances, the court providently exercised its discretion in determining that defendant had demonstrated that plaintiff had placed her mental condition “in controversy” by alleging unusually severe emotional distress, so that a mental examination by a psychiatrist is warranted to enable defendant to rebut her emotional distress claims (CPLR 3121[a]…). Although plaintiff asserts that an examination would be unduly intrusive into private matters, she did not propose conditions or seek a protective order limiting the scope or extent of the examination … . Clark v Allen & Overy LLP, 2015 NY Slip Op 01398, 1st Dept 2-17-15

 

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Motion for a Change of Venue Can Be Entertained in “Dangerous Sex Offender” Trials and Hearings Under the Mental Hygiene Law/Non-Final Order Which Necessarily Affects the Final Order Is Appealable

The Court of Appeals, in a full-fledged opinion by Judge Lippman, determined that “dangerous sex offender” trials and hearings under the Mental Hygiene Law are subject to the change of venue procedures under the CPLR.  Here, after the motion for a change of venue was denied, the petitioner refused to attend the hearing.  The Court of Appeals noted that the denial of the motion to change venue, although a non-final order, was appealable because it necessarily affected the final order:

Mental Hygiene Law § 10.08 (e) provides that “[a]t any hearing or trial pursuant to the provisions of this article, the court may change the venue of the trial to any county for good cause, which may include considerations relating to the convenience of the parties or witnesses or the condition of the respondent.”  * * * The construction of the provision is somewhat ambiguous, in that, if the legislature intended to restrict a change of venue to article 10 trials, the reference to “any hearing or trial” would appear to be superfluous. We see no need to read a restriction into the statute limiting annual review hearings solely to the few counties where secure treatment facilities are located.

However, petitioner failed to establish good cause for the change of venue. As noted above, the statute provides that good cause “may include considerations relating to the convenience of the parties or witnesses or the condition of the respondent” (Mental Hygiene Law § 10.08 [e]). The affidavit submitted in support of the motion did urge, generally, that it would be inconvenient and burdensome for unnamed family members and other potential witnesses to travel to Oneida County, but failed to identify a single witness that would testify on petitioner’s behalf. Nor did the affidavit set forth the subject of any proposed testimony — let alone identify any information that would be potentially relevant to the issue of whether petitioner remained a dangerous sex offender in need of confinement. Therefore, the motion for a change of venue was properly denied. Matter of Tyrone D v State of New York, 2015 NY Slip Op 01301, CtApp 2-13-15

 

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Four-Year Statute of Limitations Under Magnuson-Moss Warranty Act Started to Run When the Vehicle Was Delivered, I.E., When the Vehicle Was Leased===Three-Year Statute of Limitations for the General Business Law 349 Cause of Action Started to Run When the Vehicle Was Subsequently Purchased (After the Lease-Period)

Plaintiff leased a car (from BMW) for several years and then purchased it.  After the purchase plaintiff sought coverage for repairs under the Magnuson-Moss … Warranty Act (Warranty Act) and sought damages pursuant to General Business Law 349 (deceptive business practices).  The Second Department determined the Warranty Act cause of action accrued on the date the car was delivered (leased) and therefore was time-barred.  However, the General Business Law cause of action accrued when the car was purchased and was timely:

In moving to dismiss a cause of action as barred by the applicable statute of limitations, a defendant bears the initial burden of demonstrating, prima facie, that the time within which to commence the action has expired … . The burden then shifts to the plaintiff to raise a question of fact as to whether the statute of limitations was tolled or was otherwise inapplicable, or whether the action was actually commenced within the applicable limitations period … . To make a prima facie showing, the defendant must establish, inter alia, when the plaintiff’s cause of action accrued … .

Claims brought under the Warranty Act are covered by the four-year statute of limitations prescribed by UCC 2-725 … . That statute specifically defines the date of accrual to be “when the breach occurs, regardless of the aggrieved party’s lack of knowledge of the breach. A breach of warranty occurs when tender of delivery is made, except that where a warranty explicitly extends to future performance of the goods and discovery of the breach must await the time of such performance, the cause of action accrues when the breach is or should have been discovered” (UCC 2-725[2]).

Here, BMW met its prima facie burden by establishing that the plaintiff had four years from November 10, 2007, the date she accepted delivery of the vehicle, to commence the Warranty Act cause of action, but that this action was not commenced until November 22, 2011. … The “New Vehicle Limited Warranty” did not guarantee future performance but only promised to repair or replace defective parts for a specified period of time… . …

Actions pursuant to General Business Law § 349 must be commenced within three years of the date of accrual … , which first occurs when the plaintiff has been injured by a deceptive act or practice that is in violation of section 349 … . As this cause of action is predicated on the sale of the vehicle, which took place in October 2010, it was timely commenced on November 22, 2011, within the three-year statute of limitations … . Loiodice v BMW of N Am LLC, 2015 NY Slip Op 01244, 2nd Dept 2-11-15

 

Process Servers Outside of New York City Are Not Required to Keep a “Log Book

The Second Department explained that, under the relevant provisions of the General Business Law, process servers outside the City of New York are not required to keep a “log book” for recording service:

General Business Law § 89-u, which applies to process servers outside of the City of New York, requires process servers to “maintain a legible record of all service made by him [or her] as prescribed in this section” (General Business Law § 89-u[1]). Unlike General Business Law § 89-cc(1), which is applicable in the City of New York, General Business Law § 89-u, which is applicable outside the City of New York, does not expressly require that the “legible record” be “kept in chronological order in a bound, paginated volume” (General Business Law § 89-cc[1]), i.e., a log book. “Pursuant to the maxim of statutory construction expressio unius est exclusio alterius, where a law expressly describes a particular act, thing or person to which it shall apply, an irrefutable inference must be drawn that what is omitted or not included was intended to be omitted and excluded” … . Since the Legislature did not include a log book requirement for process servers in counties outside of the City of New York, the Supreme Court erred in determining that the process server in Nassau County was required to maintain such log book. Moret Partnership v Spickerman, 2015 NY Slip Op 01248, 2nd Dept 2-11-15

 

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Failure to Timely Respond to a Notice to Admit Not an Admission of the Matters Stated Therein—Notice Improperly Sought Admissions that Went to the Heart of the Controversy

12The Second Department determined defendants’ failure to timely respond to plaintiff’s notice to admit was not an admission of the matters stated therein because the notice sought admissions which went to the heart of the controversy:

“The purpose of a notice to admit is only to eliminate from the issues in litigation matters which will not be in dispute at trial. It is not intended to cover ultimate conclusions, which can only be made after a full and complete trial” … . Contrary to the plaintiff’s contention, his notice to admit improperly sought the defendants’ admissions concerning a matter that went to the heart of the controversy in this case … . Since the admissions sought were improper, the defendants’ failure to timely respond to the subject notice should not be deemed an admission of the matters stated therein … . Williams v City of New York, 2015 NY Slip Op 01268, 2nd Dept 2-11-15

 

Dismissal for Failure to State a Cause of Action Is Not Given Res Judicata Effect

The Second Department noted that a dismissal for failure to state a cause of action is not a determination on the merits and will not be given res judicata effect:

“As a general rule, a dismissal for failure to state a cause of action is not on the merits and, thus, will not be given res judicata effect” … . Since the dismissal of the prior action was not on the merits, the Supreme Court should have denied that branch of the moving defendants’ motion which was pursuant to CPLR 3211(a)(5) to dismiss, on the ground of res judicata… . Hock v Cohen, 2015 NY Slip Op 01243, 2nd Dept 2-11-15

 

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