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Dismissal for Failure to Show Up at a Conference with the Judge Constituted a Dismissal for Neglect to Prosecute within the Meaning of CPLR 205/2008 Amendment to CPLR 205 Did Not Apply Retroactively

In a full-fledged opinion by Justice Dickerson, the Second Department determined the plaintiffs could not recommence a lawsuit which was dismissed pursuant to 22 NYCRR 202.27 when the plaintiffs failed to show up at a conference with the judge. CPLR 205 precludes the recommencement of a lawsuit dismissed for neglect to prosecute. In 2008 CPLR 205 was amended to require the judge to put on the record the specific conduct constituting neglect and to specify that the conduct involved a general pattern of delay.  In order for the plaintiffs to prevail in their attempt to restart the suit, the 2008 amendment would have to be deemed to apply retroactively.  The Second Department determined that the dismissal for failure to show up at the conference was a dismissal for neglect to prosecute, and the 2008 amendment did not apply retroactively. Therefore the plaintiffs attempt to restart the suit failed:

…[W]e conclude that the prior action commenced by the plaintiffs was dismissed for failure to prosecute. We further conclude that the 2008 amendment to CPLR 205(a) is not to be applied retroactively and, thus, the plaintiffs may not avail themselves of the saving provision of CPLR 205(a) regardless of whether the Supreme Court set forth in the record the specific conduct constituting the plaintiffs’ neglect to prosecute or evidence that the plaintiffs were engaged in a general pattern of delay. Marrero v Nails, 2013 NY Slip Op 08599, 2nd Dept 12-26-13

 

 

French Court Never Had Personal Jurisdiction Over New York Defendant/Service Not Accomplished In Accordance with Hague Convention

The Second Department determined a foreign (French) judgment could not be enforced in New York because the plaintiff did not demonstrate the French court had personal jurisdiction over the defendant.  The defendant was not served in the French action in accordance with the Hague convention:

…[A] foreign country judgment is not conclusive, and thus may not be recognized, if (1) it was “rendered under a system which does not provide impartial tribunals or procedures compatible with the requirements of due process of law” or (2) “the foreign court did not have personal jurisdiction over the defendant” (CPLR 5304[a][1]…). A plaintiff seeking enforcement of a foreign country judgment bears the burden of making a prima facie showing that the mandatory grounds for nonrecognition do not exist … .

Here, the plaintiff failed to make a prima facie showing that the Superior Court of Paris had personal jurisdiction over the defendant. Pursuant to the Hague Convention, service in a signatory country may be made, inter alia, “by a method prescribed by its internal law for the service of documents in domestic actions upon persons who are within its territory” (20 UST 361[5][a]). In the United States, the methods prescribed for service under the Hague Convention are set forth in Rule 4(e)(1) and (2) of the Federal Rules of Civil Procedure … . Rule 4(e)(1) authorizes service to be made by “following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made,” and Rule 4(e)(2) sets forth three specific authorized methods of service. …[P]laintiff submitted the affidavit of a process server indicating that service was effected by delivering the writ of summons to a person of suitable age and discretion at the defendant’s place of business in New York. Delivery of the summons to a person of suitable age and discretion at the defendant’s actual place of business is a state law method of service authorized by CPLR 308(2), and thus permissible under Rule 4(e)(1). However, CPLR 308(2) additionally requires that the summons be mailed to either the defendant’s last known address or actual place of business, and personal jurisdiction is not acquired pursuant to CPLR 308(2) unless both the delivery and mailing requirements have been complied with … . Since the affidavit of the plaintiff’s process server did not aver that the writ of summons was additionally mailed to the defendant, it was insufficient to establish, prima facie, that service was properly effected pursuant to CPLR 308(2) …, and therefore conformed to Rule 4(e)(1). Daguerre, S.A.R.L. v Rabizadeh, 2013 NY Slip Op 08587, 2nd Dept 12-26-13

 

Untimely Summary Judgment Motion Denied—No Showing of Good Cause for the Delay/Motion Was Mislabeled as a Cross Motion

In a full-fledged opinion by Justice Feinman, over a dissent, the First Department determined an untimely motion for summary judgment was properly denied because there was no explanation for the delay.  The court noted the motion was mislabeled as a cross-motion because it did not address the issues raised in the original motion, but rather addressed the allegations in the complaint:

Brill v City of New York (2 NY3d 648 [2004]) addressed the “recurring scenario” of litigants filing late summary judgment motions, in effect “ignor[ing] statutory law, disrupt[ing] trial calendars, and undermin[ing] the goals of orderliness and efficiency in state court practice” (2 NY3d at 650). Brill holds that to rein in these late motions, brought as late as shortly before trial, CPLR 3212(a) requires that motions for summary judgment must be brought within 120 days of the filing of the note of issue or the time established by the court; where a motion is untimely, the movant must show good cause for the delay, otherwise the late motion will not be addressed … .  * * * Brill draws a bright line based on the two elements of CPLR 3212(a): the statutorily imposed or court-imposed deadlines for filing summary judgment motions, and the showing of good cause by a late movant in order for its motion to be considered. * * *

We do not hold that when a summary judgment motion is filed past the deadline, the court must automatically reject it. Rather, we enforce the law as written by the legislature, and as explained in Brill. It is up to the litigant to show the court why the rule should be flexible in the particular circumstances, or, in the words of the statute, that there is “good cause shown” for the delay. * * *

To the extent [the] motion was directed at the complaint, as opposed to any cross claims …, and was not made returnable the same day as the original motion, it was not a cross motion as defined in CPLR 2215. The rule is that a cross motion is an improper vehicle for seeking relief from a nonmoving party… . Kershaw v Hospital for Special Surgery, 2013 NY Slip Op 08548, 1st Dept 12-24-13

 

 

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Defendant-Doctor in a Medical Malpractice Action May Be Questioned (by the Plaintiff) As an Expert About His Own Treatment of Plaintiff

The Third Department determined (1) the defendant doctor in a medical malpractice action can be deposed as an expert (by the plaintiff)  with respect to his treatment (the doctor was asked whether the treatment as described in the records deviated from the standard of care); (2) the defendant doctor must answer the question whether he has given any statements to a quality assurance committee, even though the statements themselves would be privileged; (3) substantial changes to deposition testimony in an errata sheet would be allowed, but, based on the substantive nature of the changes, further deposition of the witness was appropriate as well.  With respect to questioning the defendant doctor as an expert about his own treatment, the court wrote:

In the context of a medical malpractice action, the Court of Appeals has held that “a plaintiff . . . is entitled to call the defendant doctor to the stand and question him [or her] both as to his [or her] factual knowledge of the case (that is, as to his [or her] examination, diagnosis, treatment and the like) and, if he [or she] be so qualified, as an expert for the purpose of establishing the generally accepted medical practice in the community” … .  Thus, although “one defendant physician may not be examined before trial about the professional quality of the services rendered by a codefendant physician if the questions bear solely on the alleged negligence of the codefendant and not on the practice of the witness[,] [w]here . . . the opinion sought refers to the treatment rendered by the witness, the fact that it may also refer to the services of a codefendant does not excuse the defendant witness from [being deposed] as an expert” … . Lieblich … v Saint Peter’s Hospital of the City of Albany…, 516736, 3rd Dept 12-19-13

 

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Motion to Renew Based Upon New Evidence Should Have Been Granted/Request to Depose Knowledgeable Witnesses In Addition to the Witnesses Initially Provided by the Municipality Should Have Been Granted

The Third Department determined a motion to renew based upon newly discovered evidence and a motion to depose additional knowledgeable witnesses (from the municipality) should have been granted:

To be entitled to renewal, plaintiffs were required to provide new facts that would change the prior determination as well as a justifiable excuse for not providing such facts earlier (see CPLR 2221 [e] [2], [3]…).  “While we generally decline to disturb the decision to grant or deny a motion to renew, we will do so if there was an abuse of discretion” … . * * *

Renewal of that part of plaintiffs’ motion which sought the production of knowledgeable witnesses should have, to a large extent, also been granted.  “While a municipality, in the first instance, has the right to determine which of its officers or employees with knowledge of the facts may appear for an examination before trial, a plaintiff may demand the production of additional witnesses, upon a showing that the representative already deposed had insufficient knowledge or was otherwise inadequate”… . Hurrel-Harring… v State of New York…, 517132, 3rd Dept 12-19-13

 

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In a Class Action Suit, Class-Representatives’ Failure to Keep In Touch With Their Lawyer Justified Their Withdrawal as Class Representatives

The Third Department determined Supreme Court should have allowed representatives of the class (in a class action lawsuit) to withdraw based upon the representatives’ failure to keep in touch with their lawyer:

Supreme Court abused its discretion in declining to permit the seven class representatives to withdraw from this action. CPLR 3217 (b) provides that an action or proceeding may be discontinued “upon order of the court and upon terms and conditions, as the court deems proper.”  While the decision to grant such an application is generally committed to the sound discretion of the trial court …, a party cannot ordinarily be compelled to litigate and, absent special circumstances – such as prejudice to a substantial right of the defendant or other improper consequences – discontinuance should be granted … . * * *

Class representatives have a duty to adequately and vigorously represent the interests of class members … .  Thus, if a class representative fails to maintain contact with class counsel or is otherwise no longer willing or able to serve in that capacity, he or she cannot fulfill the duties of a class representative and should withdraw … .  The remedy under such circumstances is not to penalize the entire class by forcing an unwilling plaintiff to remain in the litigation. Hurrel-Harring v State of New York, 517131, 3rd Dept 12-19-13

 

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Civil Contempt Does Not Include the Element of Willfulness/Adverse Inference May Be Drawn Re: Assertion of Privilege Against Self-Incrimination in Civil Contempt Proceeding

In a full-fledged opinion by Justice Angiolillo, the Second Department cleared up some confusion created by conflicting authority concerning whether willfulness was an element of civil contempt.  The defendant was held in contempt based upon his failure to deposit the proceeds of the sale of marital property with the court. The Second Department concluded willfulness is not an element of civil contempt.  In addition, the Second Department explained that the defendant’s assertion of his Fifth Amendment privilege against self-incrimination in the contempt proceedings did not preclude the court from drawing an adverse inference and did not relieve the defendant of his burden of proof:

…[W]e conclude that, for the plaintiff to prevail on her motion to hold the defendant in civil contempt, she was required to prove by clear and convincing evidence “(1) that a lawful order of the court, clearly expressing an unequivocal mandate, was in effect, (2) that the order was disobeyed and the party disobeying the order had knowledge of its terms, and (3) that the movant was prejudiced by the offending conduct” … . The use of the words “willful” and “willfully” in some of our cases involving civil contempt …, should not be construed to import the element of willfulness into a civil contempt motion made pursuant to Judiciary Law § 753(A)(3). “It is not necessary that the disobedience be deliberate or willful; rather, the mere act of disobedience, regardless of its motive, is sufficient if such disobedience defeats, impairs, impedes, or prejudices the rights or remedies of a party” … . * * *

“[T]he Fifth Amendment does not forbid adverse inferences against parties to civil actions when they refuse to testify in response to probative evidence offered against them” … . “In New York, unlike the rule in a criminal case, a party’s invocation of the privilege against self-incrimination in a civil case may be considered by the finder of the facts in assessing the strength of the evidence offered by the opposing party on the issue which the witness was in a position to controvert” … .  El-Dehdan v El-Dehdan, 2013 NY Slip Op 08404, 2nd Dept 12-18-13

 

 

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Six-Year Breach of Contract Statute of Limitations Applied to Third Party Beneficiaries (Here the Plaintiff Villages and Towns) of Contracts Between the Counties and the Defendant Sewer-Construction Companies

The Court of Appeals, with two concurring judges, determined that the causes of action alleging the faulty construction of sewers resulting in settling of the roadways within the plaintiff villages and towns was time-barred. The plaintiff villages and towns were third-party beneficiaries to the sewer-construction contracts entered into by the counties encompassing the plaintiff villages and towns. The complaints alleged a “continuing nuisance.”  The court held that the actions were time-barred whether analyzed under a contract or nuisance theory (the continuing nuisance theory was rejected on the merits).  The court further held that the six-year breach of contract statute of limitations applied to third-party beneficiaries of the contracts (here the plaintiff villages and towns):

A breach of contract action must be commenced within six years from the accrual of the cause of action (see CPLR 203 [a]; 213 [2]).  “In cases against architects or contractors, the accrual date for Statute of Limitations purposes is completion of performance” (Newburgh, 85 NY2d at 538…).  This rule applies “no matter how a claim is characterized in the complaint” because “all liability” for defective construction “has its genesis in the contractual relationship of the parties” (Newburgh, 85 NY2d at 538 …). Even if the plaintiff is not a party to the underlying construction contract, the claim may accrue upon completion of the construction where the plaintiff is not a “stranger to the contract,” and the relationship between the plaintiff and the defendant is the “functional equivalent of privity” (Newburgh, 85 NY2d at 538-539 … ). * * *

The Appellate Division properly applied Newburgh to these actions commenced by third-party beneficiaries to the construction contracts.  Newburgh extended the completion of performance accrual rule to actions against architects or contractors brought by “intended beneficiar[ies]” of construction contracts (id.).  Here, the Counties contracted with defendants to install the sewer system for the benefit of municipalities like plaintiffs, a fact which was surely “known to all parties at the time the contracts were negotiated” (id.).  Town of Oyster Bay v Lizza Industries Inc …, 214, 215, 217, 217, 218, 219, 220, 221, 222, 223, CtApp 12-17-13

 

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Defaulting Defendant Forfeits the Right to Discovery Re: Inquest on Damages

The Second Department determined that a defaulting defendant could not compel plaintiff to submit to an independent medical examination:

Although ” a defaulting defendant is entitled to present testimony and evidence and cross-examine the plaintiff’s witnesses at the inquest on damages,’ a defendant forfeits the right to discovery by defaulting in answering the complaint” … . Contrary to the Supreme Court’s determination, the defendant was not entitled to any further discovery, since its right to discovery was forfeited by its default in answering the complaint .. . Accordingly, the Supreme Court erred in denying the plaintiff’s cross motion for a protective order and directing him to submit to an independent medical examination. Kolonlowski v Daily News LP, 2013 NY Slip Op 08230, 2nd Dept 12-11-13

 

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Numerous Core Issues Discussed in Complicated Case Stemming from Mold in a Complex of Apartments Which Necessitated Termination of All the Leases

In perhaps the most complicated decision this writer has ever read, the Second Department reversed many of Supreme Court’s rulings and sorted out the defense and indemnification responsibilities for an astounding array of insurance companies.  The lawsuits arose from the intrusion of water and mold into a complex of rental apartments causing the termination of all the leases. The general contractor and a large number of subcontractors all had insurance policies issued by many different companies. Among the issues addressed: (1) “[C]ontract language that merely requires the purchase of insurance will not be read as also requiring that a contracting party be named as an additional insured”…; (2) Whether damage from water intrusion and mold is an “occurrence” within the meaning of the policy-language; (3) Whether the law of the insured’s domicile should apply; (4) The use of extrinsic evidence to determine an insurer’s duty to defend; and (5) Disclaimer based upon late notice.  QBE Ins Corp v Adjo Contr Corp, 2013 NY Slip Op 08238, 2nd Dept 12-11-13

 

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