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Only Attorney Can Represent Voluntary Association—Appeals Dismissed

In dismissing the appeals, the First Department held that only an attorney can represent a voluntary association

Petitioner is a voluntary association comprised of rent-regulated tenants in the subject building. Patricia Pillette is a member of the association and appears pro se purportedly on behalf of the association. However, Pillette is not an attorney, and a voluntary association may only be represented by an attorney and not by one of its members who is not an attorney admitted to practice in the state of New York (see CPLR 321[a]). Accordingly, petitioner’s failure to appear by attorney requires dismissal of the appeals… .  Matter of Tenants Comm of 36 Gramercy Park v NYS Div of Hous & Community Renewal, 2013 NY Slip Op 04984, 1st Dept 7-2-13

 

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Breach of Fiduciary Duty Allegations Not Specific Enough

The First Department determined plaintiff’s allegations in support of a breach of fiduciary duty cause of action were not specific enough to survive a motion to dismiss:

Because the underlying allegations of wrongdoing were inadequately pleaded, the fiduciary breach and injunction causes of action were not sustainable. Although plaintiff alleges, among other things, that defendant tried to prevent her from having any meaningful participation in the companies’ operation, her allegations are vague and conclusory, made without any specific instances of the alleged misconduct…. The lack of particularity with respect to plaintiff’s allegations of breach of fiduciary duty (CPLR 3016[b]) is not excused by the individual defendant’s alleged refusal to provide information or by the lack of discovery, as information regarding the alleged denial of participation in corporate management was not solely in the individual defendant’s possession…. Moreover, plaintiff failed to assert specific dates that she had requested information, or to specify the information she had requested….  Berardi v Beradi, 2013 NY Slip Op 04976, 1st Dept 7-2-13

 

Statute of Limitations for Article 78 “Mandamus to Compel;” Doctrine of Laches Applied

The Fourth Department affirmed the dismissal (as untimely) of an Article 78 proceeding against the City of Buffalo and others which sought to compel the city to investigate two fires pursuant to General Municipal Law section 204-d.  The Fourth Department explained when the four-month statute of limitations in this “mandamus to compel” action was triggered and applied the doctrine of laches:

…[T]the petition is in the nature of mandamus to compel inasmuch as petitioner seeks to “compel the performance of a ministerial act [imposed] by law”… . In such a proceeding, the four-month statute of limitations begins to run when a respondent refuses a petitioner’s demand that it “perform its duty” (CPLR 217 [1];…). The petitioner’s “demand must be made within a reasonable time after the right to make the demand occurs”…. Here, petitioner made a February 8, 2010 written demand to the Erie County District Attorney’s Office to conduct a further investigation. The Erie County District Attorney’s Office, however, is not a named respondent, and we conclude that petitioner “unreasonably delayed” in failing to make the demand to respondents on February 8, 2010 and that “this proceeding is barred by laches” ….  Matter of Van Tol v City of Buffalo…, 582, 4th Dept 6-28-13

 

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Chronic Nonpayment Not Subject to 15-Day Cure Period; Chronic Nonpayment is Treated Differently from Occasional Nonpayment

The First Department explained the legal principles which apply to chronic nonpayment of rent as follows:

…[P]laintiff chronically failed to pay its rent, having forced defendant to bring 10 nonpayment proceedings over the last seven years. This is a breach of a substantial obligation under the lease…, and is a type of default that plaintiff cannot cure within the 15-day cure period provided for in the lease …. Accordingly, plaintiff was properly denied a Yellowstone injunction, since that relief requires a showing that plaintiff is able to cure….  Defendant was not limited to a nonpayment proceeding under the term of the lease that provided for such proceedings for nonpayment. Chronic nonpayment is a violation of a different type than occasional nonpayment. Nor can plaintiff rely on any defect of the notice of default, since no such notice is even necessary for an action based on chronic nonpayment….  Definitions Personal Fitness Inc v 133 E 58th St LLC, 2013 NY Slip Op 04892, 1st Dept 6-27-13

 

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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

 

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