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Amendment of Bill of Particulars After Four Years of Discovery Should Not Have Been Allowed

The Second Department determined Supreme Court should not have allowed plaintiff to amend his bill of particulars to include aggravation of a preexisting condition because the request came after four years of discovery during which plaintiff had affirmatively stated his injuries did not include aggravation of preexisting condition:

Generally, in the absence of prejudice or surprise to the opposing party, leave to amend a bill of particulars should be freely granted “unless the proposed amendment is palpably insufficient or patently devoid of merit” (…see CPLR 3025[b]…). “However, where the application for leave to amend is made long after the action has been certified for trial, judicial discretion in allowing such amendments should be discrete, circumspect, prudent, and cautious’” … .Under the circumstances of this case, including the fact that, during four years of discovery, the plaintiff affirmatively maintained that his injuries did not include the aggravation of a pre-existing condition, as well as the lateness of his request for leave to amend, the prejudice to the defendants, and the lack of any reasonable excuse for the delay, the Supreme Court improvidently exercised its discretion in granting the plaintiff’s motion for leave to amend his bill of particulars … .  Rodgers v New York City Tr Auth, 2013 NY Slip Op 05623, 2nd Dept 8-14-13

 

“Law of the Case” Doctrine Did Not Apply—Dismissal of Affirmative Defense Did Not Constitute Full Litigation of the Issue

In a property-line dispute, the Second Department reversed Supreme Court ruling that the location of the fence on plaintiff’s property was the “law of the case.”  The “law of the case” doctrine was imposed by Supreme Court based on the dismissal of the title insurance company’s affirmative defense which claimed the fence was on defendant’s land.  The Second Department wrote:

“The doctrine of the law of the case’ is a rule of practice, an articulation of sound policy that, when an issue is once judicially determined, that should be the end of the matter as far as Judges and courts of co-ordinate jurisdiction are concerned” …  The doctrine “applies only to legal determinations that were necessarily resolved on the merits in [a] prior decision” …, “and to the same questions presented in the same case” … . “Like claim preclusion and issue preclusion, preclusion under the law of the case contemplates that the parties had a full and fair’ opportunity to litigate the initial determination” … .  Contrary to the determination of the Supreme Court, the prior order …which granted [the] motion pursuant to CPLR 3211 to dismiss …, did not necessarily resolve the issue of whether the fence was located on the plaintiffs’ property or the defendants’ property, as the parties did not have an opportunity to fully litigate that issue… . Ramanathan v Aharon, 2013 NY Slip Op 05621, 2nd Dept 8-14-13

 

Criteria for Avoiding Dismissal After Failure to Comply with 90-Day Notice to Serve and File Note of Issue Explained

The Second Department explained the criteria for avoiding dismissal for failure to comply with a 90-day notice to serve and file a note of issue:

Here, the defendant … did not serve a 90-day demand, but relied instead on an order dated June 13, 2008, which instructed the plaintiffs that the failure to serve and file a note of issue within 90 days would result in dismissal of the action pursuant to CPLR 3216. This order had the same effect as a valid 90-day notice pursuant to CPLR 3216 … .To avoid the sanction of dismissal, the plaintiffs were initially required to comply with the order dated June 13, 2008, either by serving and filing a timely note of issue or by moving, before the default date, to vacate the order or to extend the 90-day period pursuant to CPLR 2004 … . Having failed to pursue either of the foregoing options, the plaintiffs were obligated to demonstrate a reasonable excuse for the delay and a potentially meritorious cause of action to avoid the sanction of dismissal (see CPLR 3216[e]…).  Griffith v Wray, 2013 NY Slip Op 05615, 2nd Dept 8-14-13

 

Criteria for Disclosure from Nonparty Witness

The Second Department explained the criteria for disclosure from a nonparty witness:

A party seeking disclosure from a nonparty witness must demonstrate that the disclosure sought is material and necessary, and must set forth the “circumstances or reasons” why disclosure is “sought or required” from such nonparty witness (CPLR 3101[a][4]…). Here, the plaintiff failed to demonstrate that additional testimony from the nonparty witnesses or the information sought would be material and necessary to the prosecution of this case (see CPLR 3101[a]…).  Dicenso v Wallin, 2013 NY Slip Op 05612, 2nd Dept 8-14-13

 

Law Office Failure Was Valid Excuse for Default—Answer Deemed Served in Absence of Cross Motion

The Second Department determined law office failure constituted a valid excuse for a defendant’s default and defendant’s answer, which was attached to the papers submitted in opposition to plaintiff’s motion for a default judgment, would be deemed served in the absence of a cross motion seeking leave to file a late answer:

In its discretion, the court may accept law office failure as an excuse (see CPLR 2005;… . The claim of law office failure should, however, be supported by a “detailed and credible” explanation of the default or defaults at issue … . Law office failure should not be excused where allegations of law office failure are conclusory and unsubstantiated…. The Supreme Court providently exercised its discretion in accepting the defendant’s excuse of law office failure, as the defendant provided detailed affidavits of personnel explaining the delay in timely serving an answer.  Blake v United States of Am, 2013 NY Slip 05609, 2nd Dept 8-14-13

 

Court Has No Power to Dismiss for Failure to Prosecute in Absence of 90-Demand to File and Serve Note of Issue

The Second Department noted that a court does not have the power to dismiss a complaint based on the doctrine of laches, or failure to prosecute, where plaintiff has not been served with a 90-day demand to serve and file a note of issue (CPLR 3216).  Baxter v Javier, 2013 NY slip Op 05605, 2nd Dept 8-14-13

 

Dismissal of Federal Action Precluded Related Action in State Court—Res Judicata, Privity under Res Judicata Doctrine, Effect of Initial Forum Choice, and “First-in-Time” Rule Discussed

In a full-fledged opinion by Justice Moskowitz, the First Department determined that Supreme Court should have dismissed the state complaint because the dismissal of the related federal complaint controlled under the doctrine of res judicata.  The lawsuit was brought by the insurer (Syncora) of mortgage-backed securities issued by the defendant (JP Morgan [formerly known as Bear Stearns]). Syncora first sued in federal court where the action was dismissed based on the findings that the fraud allegations Syncora sought to add to the complaint were untimely and Syncora did not have standing because it was neither a buyer or a seller of the relevant securities.  Syncora then filed the state action asserting the same claims rejected as untimely by the federal court.  The opinion addresses several distinct issues: (1) the flexibility of the concept of “privity” in applying the doctrine of res judicata to the parties and “those in privity” with the parties; (2) a finding of “privity” can be based upon the plaintiff’s allegations about the relationship between a party and another entity; (3) a party which makes a strategic decision to first bring an action in one jurisdiction “is bound by the effects of the path it charted…”; and (4) dismissal of the complaint pursuant to CPLR 3211(a)(4) in favor of the earlier-filed federal action was warranted under New York’s “first-in-time” rule.  Syncora Guar Inc v JP Morgan Sec LLC, 2013 NY Slip Op 05602, 1st Dept, 8-13-13

 

Intervention Not Available to Vacate a Default Judgment—Default Judgment is Not on the Merits and Therefore Has No Res Judicata Effect on Putative Intervenors

The First Department determined a motion to intervene in an action which ended in a default judgment should not have been granted.  Plaintiff sued defendant, which defaulted. Defendant had transferred its assets to the parties seeking to intervene to vacate the default.  Plaintiff had sued the intervenors alleging the transfer of assets from the defendant to the intervenors was fraudulent (the “supplemental proceeding”). The First Department explained:

“[T]he potentially binding nature of the judgment on the proposed intervenor is the most heavily weighted factor in determining whether to permit intervention” … .Here, however, intervenors cannot intervene by arguing that the default judgment has a res judicata effect on the supplemental proceeding and adversely affects their rights in that proceeding. The default judgment has no res judicata effect on intervenors because a default is not a determination on the merits as is necessary to invoke that doctrine … . Likewise, intervenors were not parties to the default action … .  Further, plaintiffs did not obtain the default judgment through fraud or through any other wrongdoing… .  Intervenors’ right to act for defendant ended with the 2007 sale—an event that occurred four years before the clerk entered the default judgment against [defendant].  Amalgamated Bank v Helmsley-Spear, Inc, 2013 NY Slip Op 05600, 1st Dept 8-13-13

 

Motion for Summary Judgment in Lieu of Complaint Should Have Been Denied—Question of Fact Re: Whether Spanish Document Was a Judgment

The First Department determined that a motion brought pursuant to CPLR 3213 to enforce a Spanish court’s award of damages against the defendant should not have been granted.  Experts disagreed about whether the Spanish document was an enforceable judgment.  The First Department explained the criteria for recognizing foreign decrees (CPLR 5302) and for determining a motion for summary judgment in lieu of a complaint (CPLR 3213):

A motion for summary judgment in lieu of a complaint (CPLR 3213) is based on an “instrument for the payment of money only or upon any judgment.” The statute allows a plaintiff an expedited procedure for entry of a judgment by filing and service of a summons and a set of motion papers that contain sufficient evidentiary detail for the plaintiff to establish entitlement to summary judgment (see David D. Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3213:8).

CPLR 5302 provides that New York will recognize foreign decrees that are “final, conclusive and enforceable where rendered even though an appeal therefrom is pending.” Here, the parties’ Spanish law experts disagree as to whether the document here, denominated a “ruling” (“auto” in Spanish), is enforceable as a judgment. *  *  *

The conflicting evidence as to whether the ruling is final, conclusive and enforceable in Spain precludes plaintiff from obtaining an accelerated judgment pursuant to CPLR 3213.  Sea Trade Mar Corp v Coutsodontis, 2013 NY Slip Op 05599, 1st Dept 8-13-13

 

Courts Have Discretion to Grant Affirmative Relief in Absence of a Formal Cross-Motion

In a full-fledged opinion by Justice Balkin, the Second Department determined trial courts have the discretion to determine applications made in the absence of the formal requirements of a cross-motion.  In this case the defendant answered a motion for a default judgment demonstrating a reasonable excuse and a meritorious defense. Included in the answering papers was an application for leave to serve a late answer to compel plaintiff to accept the answer.  Supreme Court granted all the requested relief.  The plaintiff appealed on the ground that the affirmative relief should have been requested through a formal cross-motion.  The Second Department wrote:

Given the language of CPLR 2215, and the contexts in which it is applicable, the most reasonable interpretation of the statute is that a party seeking relief in connection with another party’s motion is, as a general rule, required to do so by way of a cross motion, at least to have a right that the request be determined on the merits. Otherwise, a party who seeks relief by way of a notice of cross motion would be in a position less favorable than that of a party who merely makes the request without a notice of cross motion: the party who makes a formal cross motion would be required to comply with the notice and service requirements and deadlines imposed by the statute, but a party seeking relief merely by requesting it would enjoy greater flexibility.

Nonetheless, courts retain discretion to entertain requests for affirmative relief that do not meet the requirements of CPLR 2215. Litigants, however, must be cognizant of an important distinction between the two situations: a party in compliance with CPLR 2215 is entitled to have its cross motion considered; a party not in compliance with the statute must hope that the court opts, in the exercise of its discretion, to entertain the request. Thus, we are in agreement with our colleagues in the Appellate Division, 3rd Department, who, in Fox Wander W. Neighborhood Assn. v Luther Forest Community Assn. (178 AD2d at 872), held that, even in the absence of an explicit notice of cross motion, the Supreme Court is not “prohibited” from entertaining the nonmoving party’s request for relief.  Fried v Jacob Holding Inc, 2013 NY Slip Op 05555, 2nd Dept 8-7-13

 

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