, ,

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

 

,

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

 

,

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

 

,

CPLR 5239 Is the Proper Vehicle for Vacation of an Execution—Here Defendant’s Brother Brought a CPLR 5239 Proceeding to Vacate an Execution Against the Brother’s Property Which Purported to Relate to a Debt Owed by Defendant—The Execution Was Vacated Based Upon the Brother’s Proof of Ownership

The Second Department determined Kamel, a non-party, had demonstrated that he did not have an ownership interest in property which was executed against to satisfy a judgment against the defendant, Kamel’s brother. The court explained the procedure to vacate an execution pursuant to CPLR 5239:

Pursuant to CPLR 5239, “any interested person may commence a special proceeding against the judgment creditor or other person with whom a dispute exists to determine rights in the property or debt” (CPLR 5239…). The court may “vacate the execution or order, void the levy, direct the disposition of the property or debt, or direct that damages be awarded” and, if necessary, may hold a hearing to determine the proper disposition (CPLR 5239…). As the party seeking relief, “it [is the] petitioner’s burden to proffer evidence demonstrating that the property was not subject to the lien identified in the notice of sheriff’s sale” … .

At the hearing, Kamel presented mortgage documents relating to the purchase of the LIC property, as well as documents identifying him as the principal of the LLC which held legal title to that property and his own personal guaranty for the $1.45 million mortgage loan for that property. Accordingly, Kamel met his burden of demonstrating that the LIC property was not subject to execution … . Born to Build LLC v Saleh, 2015 NY Slip Op 01232, 2nd Dept 2-11-15

 

, ,

Telephone-Communication Buy-Sell Arrangements Sufficient for Long-Arm Jurisdiction/Forum Selection Clause In Invoices Not Enforceable Pursuant to UCC 207

The First Department determined that telephone communications re: the sale of diamonds between a seller in New York and a buyer in California were a sufficient basis for New York's long-arm jurisdiction over the California defendant.  The court further found that the forum selection clause and consent to jurisdiction in the relevant invoices were additional terms which, pursuant to UCC 207, were never expressly agreed to and therefore not enforceable:

UCC § 2-207 contemplates situations like the one here, where parties do business through an exchange of forms such as purchase orders and invoices. As the parties did here, merchants frequently include terms in their forms that were not discussed with the other side. UCC § 2-207[2] addresses that scenario, providing, “[t]he additional terms are to be construed as proposals for addition to the contract. Between merchants such terms become part of the contract unless: … [b] they materially alter it.”

Here, during telephone discussions, the parties negotiated the essential terms required for contract formation, and the invoices were merely confirmatory … . Thus, the forum selection clause is an additional term that materially altered the parties' oral contracts, and defendant did not give its consent to that additional term … . …

… [T]he motion court erred in finding that the parties' telephone dealings over several years and in the two transactions at issue were insufficient as a matter of law to confer personal jurisdiction over defendant pursuant to CPLR 302(a)(1). CPLR 302(a)(1) authorizes the assertion of long-arm jurisdiction over a non-domiciliary who “transacts any business within the state or contracts anywhere to supply goods or services in the state.” CPLR 302(a)(1) is a “single act statute”; accordingly, physical presence is not required and one New York transaction is sufficient for personal jurisdiction. The statute applies where the defendant's New York activities were purposeful and substantially related to the claim … . ” Purposeful'” activities are defined as ” those with which a defendant, through volitional acts, avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws'” … .

We recognize that courts of this state have generally held telephone communications to be insufficient for finding purposeful activity conferring personal jurisdiction … . However, there are exceptions to this general rule, and in some cases, telephone communications will, in fact, be sufficient to confer jurisdiction … . C Mahendra NY LLC v National Gold & Diamond Ctr Inc, 2015 NY Slip Op 01157, 1st Dept 2-10-15

 

,

An Action by a Judgment Creditor Pursuant to CPLR 5225 and 5227 Seeks both Legal and Equitable Relief—a Jury Trial Is Therefore Not Available

The Fourth Department determined an action to enforce a judgment against a party other than the judgment debtor (here a judgment creditor) under CPLR 5225 and 5227 is a proceeding for both legal and equitable relief for which a jury trial is not available:

“[T]he right to trial by jury is zealously protected in our jurisprudence and yields only to the most compelling circumstances” … . “Trial by jury in all cases in which it has heretofore been guaranteed by constitutional provision shall remain inviolate forever” (NY Const, art 1, § 2). “That guarantee extends to all causes of action to which the right attached at the time of adoption of the 1894 Constitution . . . Historically, however, actions at law were tried by a jury, [and] matters cognizable in equity were tried by the Chancellor. Even though the two systems have merged, vestiges of the law-equity dichotomy remain in the area relating to trial by jury” … .

Thus, the right to a jury trial “depends upon the nature of the relief sought” … . Under the CPLR, a jury trial is available in an action “in which a party demands and sets forth facts which would permit a judgment for a sum of money only” (CPLR 4101 [1] [emphasis added]). Where a plaintiff joins legal and equitable causes of action in a complaint, it waives its right to a jury trial … . * * *

…[W]e conclude that enforcement of a judgment under CPLR 5225 and 5227 against a party other than the judgment debtor is an outgrowth of the “ancient creditor's bill in equity,” which was used after all remedies at law had been exhausted. We thus conclude that [the judgment creditor's] use of CPLR 5225 and 5227 in this case is in furtherance of both legal and equitable relief and, therefore, that [the judgment creditor] is not entitled to a jury trial on those combined legal and equitable claims … . Matter of Colonial Sur Co v  Lakeview Advisors LLC, 2015 NY Slip Op 01002, 4th Dept 2-6-15

 

Court Did Not Conduct an Adequate Investigation Into the Allegation of Improper Outside Influence on the Jury Before Granting Plaintiff’s Motion to Set Aside the Verdict—Matter Sent Back for an Evidentiary Hearing

The Fourth Department determined Supreme Court did not conduct an adequate investigation of alleged outside influence upon the jurors before granting plaintiff's motion to set aside the verdict.  There was an allegation a person who worked for an insurance company which insured some of the defendants was “stalking” the jury during the trial:

It is well settled that the decision whether to grant a motion for a new trial pursuant to CPLR 4404 (a) is committed to the trial court's discretion and will not be disturbed absent an abuse of that discretion … . Here, we agree with defendants that the court abused its discretion in the manner in which it investigated and determined the issue whether there had been improper outside influence on the jury that “was such as would be likely . . . to influence the verdict” … . Shortly after the trial had concluded and the jury was discharged, the court received notice of an allegation from one juror that a person attending the trial had been “stalking” the impaneled jurors on lunch breaks and during other recess periods. The juror described the individual's behavior as “creepy.” It was later learned that the individual was a representative of an insurance company monitoring the progress of the trial because it insured many of the defendants. As a result of the “stalking” allegation, the court conducted its own investigation and ultimately set aside the verdict, which had been entirely in defendants' favor, and ordered a new trial. We agree with defendants that the court abused its discretion in conducting an in camera interview of the complaining juror without notifying counsel, without seeking counsels' consent to that procedure …, and without providing counsel with an opportunity to be heard or to participate, even in some restricted manner, in the interview of the juror … . Further, the court limited its investigation to one juror, and we conclude that the court abused its discretion in failing to conduct a more expanded investigation, including, at a minimum, conducting an interview of all of the jurors … . Lastly, the court abused its discretion in prohibiting counsel from contacting any jurors until after plaintiff's motion to set aside the verdict was decided. This unnecessary prohibition essentially precluded defendants from obtaining and submitting any meaningful opposition to plaintiff's motion, the practical result being that the granting of plaintiff's motion was a foregone conclusion. Varano v Forba Holdings LLX 2015 NY Slip OP 01090, 4th Dept 2-6-15


,

Action Challenging a City Resolution to Sell City Property to an Identified Purchaser Is a Challenge to an Administrative Act and Is Therefore Governed by the Four-Month “Article 78” Statute of Limitations

The Fourth Department determined the four-month “Article 78” statute of limitations applied to a challenge to a city resolution allowing the sale of city property to a particular, named purchaser  (which was an administrative act).  The action, therefore, was properly dismissed as time-barred. The court explained how an action is analyzed to determine the nature of it for purposes of applying the correct statute of limitations:

The causes of action under General Municipal Law § 51 have no specific limitations period, and we must “examine the substance of th[e] action to identify the relationship out of which the claim[s] arise[] and the relief sought” … . “If the rights of the parties may be resolved in a different form of proceeding for which a specific limitations period applies, then we must use that period” … . Ultimately, “the nature of the remedy rather than the theory of liability is the salient consideration in ascertaining the applicable [s]tatute of [l]imitations” … . Here, plaintiffs are challenging the resolution authorizing defendant Mayor to execute a purchase and sale agreement for the garage. The resolution was an administrative act, rather than a legislative act, inasmuch as it applies only to the City and [the purchaser]… . It is well established that the proper vehicle for challenging an administrative act is a CPLR article 78 proceeding, and thus the four-month statute of limitations under CPLR 217 applies … . Riverview Dev LLC v City of Oswego, 2015 NY Slip Op 01105, 4th Dept 2-6-15