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Family Court Could Not Countermand County Court’s Order of Protection

The Third Department noted that Family Court can not countermand County Court’s order of protection stemming from the father’s assault of the mother.  Therefore, Family Court could not require the mother to facilitate the reading of the father’s letters to the child:

Family Court does not have jurisdiction to countermand the provisions  of a  criminal court  order  of protection ….  Considering that “an order of protection issued incident to a criminal proceeding is an ameliorative measure intended to safeguard the rights of victims”…, the criminal court order of protection would have to be modified, if deemed appropriate by County Court, before Family Court would be authorized to require the mother to accept, read or facilitate the reading of the father’s communications to the child.  Matter of Samantha WW v Gerald XX, 513853, 3rd Dept 6-27-13

 

Late Amendment of Complaint (After Note of Issue Filed) Should Have Been Granted

The First Department reversed the IAS court’s denial of plaintiff’s motion to serve a third amended complaint.  The court noted that plaintiff’s failure to vacate his note of issue did not require the denial of the motion. In explaining that mere lateness is not a barrier to amendment, the court wrote:

…”[M]ere lateness is not a barrier to . . . amendment. It must be lateness coupled with significant prejudice to the other side . ….. “The kind of prejudice required to defeat an amendment . . . must . . . be a showing of prejudice traceable not simply to the new matter sought to be added, but also to the fact that it is only now being added. There must be some special right lost in the interim, some change of position or some significant trouble or expense that could have been avoided had the original pleading contained what the amended one wants to add”…. Defendants failed to show such prejudice. Jacobson v Croman, 2013 NY Slip Op 04909, 1st Dept 6-27-13

 

“Grouping of Contacts” Analysis to Determine Which State’s Law Applies

The First Department noted Supreme Court correctly applied the “grouping of contacts” analysis in determining whether New York or Maryland law applied in an action to determine which insurance company was required to defend and indemnify.  The First Department further noted that late notice to the carrier because of the need to investigate did not warrant the carrier’s disclaimer of coverage.  Addressing the “grouping of contacts,” the court explained:

The motion court correctly determined that, under the standard “grouping of contacts” analysis, New York law, rather than Maryland law, applies in this case …. Indeed, the subcontract between Hayward Baker and Schiavone involved construction services at a site located in New York, Schiavone formed a joint venture in New York to perform those services, the accident and resulting litigation occurred in New York, Zurich asserts that it is a New York corporation with a home office in New York, Illinois National is licensed to do business in New York, and the demand letters and responses were sent from the parties’ New York offices … .  Illinois Natl Ins Co v Zurich Am Ins Co, 2013 NY slip Op 04881, 1st Dept 6-27-13

 

Statute of Limitations Defense in Article 78 Proceeding Waived Because Not Raised in Answer or Pre-Answer Motion to Dismiss

In reversing Supreme Court’s dismissal of an Article 78 proceeding as untimely, the Third Department determined the statute of limitations defense was waived because it was not raised in the answer or in a pre-answer motion to dismiss:

Petitioner contends that Supreme Court erred in granting respondent’s oral motion to dismiss the petition based upon statute of limitations grounds inasmuch as respondent  failed to timely raise this defense/objection in either its verified answer or a pre-answer motion to dismiss. We agree. It is well established that an aggrieved party must raise a statute of limitations defense/objection in either the answer or a pre-answer motion  to  dismiss  (see  CPLR  3211  [e]; 7804  [f];…). A pre-answer motion  to dismiss based  upon  a statute of limitations defense/objection necessarily “must  be  made  prior to the time in which to serve an  answer, and the failure to do  so will result in a waiver of the defense unless [thereafter] raised in the responsive pleading”… .  Matter of Kowalczyk v Village of Monticello, 515968, 3rd Dept 6-27-13

 

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Article 78 Petition in Nature of Prohibition Against Judge and District Attorney Granted

The Second Department explained the criteria for an Article 78 action (against a judge and district attorney) in the nature of prohibition.  In this case Supreme Court had ordered defendant to appear for resentencing after the Appellate Division had ruled without remitting the matter to Supreme Court for further proceedings.  The Second Department granted the petition and prohibited the resentencing:

The remedy of prohibition generally lies when a court or an officer acts or threatens to act without jurisdiction or exceeds its authorized powers in a proceeding over which it has jurisdiction (see CPLR 7803[2];…). To warrant the extraordinary remedy of prohibition, it is not enough that the court made a mere legal error. Rather, the court’s error must implicate its very powers and thereby be subject to correction by prohibition….  Matter of Dow v Tomei, 2013 NY Slip Op 04799, 2nd Dept 6-26-13

 

Motion for Default Judgment Should Have Been Denied; Motion to Compel Acceptance of Late Answer Should Have Been Granted

The Second Department determined Supreme Court should not have granted plaintiff’s motion for a default judgment and denied defendant’s motion to compel the acceptance of a late answer:

Under the circumstances of this case, the Supreme Court improvidently exercised its discretion in granting the plaintiffs’ motion pursuant to CPLR 3215 for leave to enter a default judgment against the defendant Lockwood Associates, LLC (hereinafter Lockwood), and in denying Lockwood’s cross motion pursuant to CPLR 3012(d) to compel the plaintiffs to accept service of its answer. Considering the lack of any prejudice to the plaintiffs as a result of Lockwood’s relatively short delay in answering, the existence of a potentially meritorious defense, and the public policy favoring the resolution of cases on the merits, Lockwood’s delay in answering should have been excused….  Grammas v Lockwood Assoc LLC, 2013 NY Slip Op 04776, 2nd Dept 6-26-13

 

Dismissal of Complaint “With Prejudice” Did Not Require Dismissal of Second Complaint

Even though a complaint had ostensibly been dismissed “with prejudice” because the plaintiff did not have the capacity to sue, a subsequent complaint brought after plaintiff gained capacity to sue could not be dismissed pursuant to res judicata or collateral estoppel:

The record makes clear that, notwithstanding its denomination of the dismissal of the first action as “with prejudice,” the Supreme Court did not intend to preclude the plaintiff from commencing a new action once he acquired the capacity to sue, which he purportedly lacked when he commenced the first action (see CPLR 3211[a][3]). Consequently, as the Supreme Court stated in the order appealed from, the dismissal of the first action was not a final judgment on the merits and it was not preclusive, under either res judicata or collateral estoppel, of claims or issues in the present action …. Thus, the court properly granted that branch of the plaintiff’s motion which was to dismiss the affirmative defenses of res judicata and collateral estoppel. Brown v Lutheran Med Ctr, 2013 NY Slip Op 04568, 2nd Dept, 6-19-13

 

Preclusion Proper Remedy for Failure to Comply with Discovery Deadlines and Requests

The Second Department determined the failure to comply with discovery deadlines and provide good faith responses to discovery requests justified the preclusion of evidence:

“The failure to comply with deadlines and provide good-faith responses to discovery demands impairs the efficient functioning of the courts and the adjudication of claims’”… . The nature and degree of the penalty to be imposed pursuant to CPLR 3126 lies within the sound discretion of the trial court…. Here, the plaintiff made a clear showing that the defendants failed to comply with the compliance conference order …. Which required them to respond to certain requests made in the plaintiff’s supplemental notice of demand for production of documents …, since the defendants did not provide meaningful responses to those demands (see CPLR 3126[3];…). Further, the defendants’ willful and contumacious conduct in failing to meaningfully respond to those demands was reasonably inferred from the defendants’ repeated failures to respond to the plaintiff’s demands and the court’s compliance conference order without a reasonable excuse…. Accordingly, the Supreme Court providently exercised its discretion in granting that branch of the plaintiff’s cross motion which was pursuant to CPLR 3126 to preclude the defendants from presenting evidence at trial with respect to those items … .  HR Prince, Inc v Elite Envtl Sys, Inc, 2013 NY Slip Op 04576, 2nd Dept, 6-19-13

 

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Appellate Court Recognized Prior Decision Was “Clearly Erroneous” and Did Not Hold Trial Court to It

The Fourth Department noted that a trial court is bound by an appellate decision, even if the decision is wrong.  However, in this case, the Fourth Department upheld the trial court’s modification, acknowledging that its prior decision should not be followed:

It is well settled that, until a decision of this Court is “ ‘modified or reversed by a higher court, . . . the trial court is bound by our decision’ ”…, regardless of whether our decision was correctly decided….  We thus conclude that the Surrogate erred in failing to comply with our prior decision. Nevertheless, this Court is not likewise required to follow our prior decision under the doctrine of law of the case.    Indeed, for the reasons that follow, we conclude that we should not apply the doctrine of law of the case herein, and we therefore affirm the modified decree … .“As the doctrine of . . . law of the case is not one of inflexible law, but permits a reasoned exercise of a certain degree of discretion in its application, the better rule is that the doctrine should not be utilized to accomplish an obvious injustice, or applied where the former appellate decision was clearly, palpably, or manifestly erroneous or unjust . . . [T]he effect of a prior ruling by an appellate court in a later appeal before that court, or in a subsequent stage of the same appeal before that court, presents the problem of balancing the interest in foreclosing reconsideration of the prior decision with the desire for a just result . . .  We recognize that our earlier decision was “clearly erroneous”…, as “shown by contrary authority emanating from [the Court of Appeals,] whose rulings . . . are controlling”…. We also conclude that “correction of the error made on the former appeal [will] create no injustice or hardship, [inasmuch as] no change has been made in the status of the parties in reliance upon the ruling in the former appeal” ….  Matter of Ladelfa, 580, 4th Dept, 6-14-13

 

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Court Is Powerless After Release Signed and Filed

The Fourth Department noted that a court loses jurisdiction over a case after a release has been signed and filed:

Supreme Court erred in granting the motion of … (defendant) to compel plaintiff to comply with the release agreement between plaintiff and defendants. Defendant brought his motion after the related third-party action was settled and an unconditional stipulation of discontinuation as to him with respect to this action was signed by the attorneys for plaintiff and defendant and filed. Although a trial court has the power “to exercise supervisory control over all phases of pending actions an proceedings”…, it lacks jurisdiction to entertain a motion after the action has been “unequivocally terminated . . . [by the execution of] an express, unconditional stipulation of discontinuance”….  Cambridge Integrated Services Group, Inc v Johnson…, 723, 4th Dept, 6-14-13

 

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