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Statutorily-Mandated Venue Is Not Jurisdictional and Is Waivable

In a full-fledged opinion by Justice Dillon, the Second Department discussed, in great detail, the relevant statutes and case law concerning the venue provisions in the CPLR and venue as mandated in the New York City Health & Hospitals Corporation (NYCHHC) Act. The Second Department determined NYCHHC Act’s statutorily-mandated venue is not jurisdictional and can be waived:

In sum, since the NYCHHC chose to waive the venue provision contained in section 7401(3) of the New York City Health and Hospitals Corporation Act for actions brought against it upon the consolidation of the plaintiffs’ two actions, and absent a showing of any special circumstances demonstrating that venue be placed in Bronx County [the statutorily-mandated venue], we conclude that the Supreme Court providently exercised its discretion in placing venue in Westchester County, where the first of the related actions was commenced. Wager v Pelham Union Free Sch Dist, 2013 NY Slip Op 03475, 2nd Dept, 5-15-13

 

 

Criteria for Motion to Amend a Complaint and for the “Relation Back” Doctrine Explained

In affirming the denial of a motion to amend a complaint the Second Department described the law concerning amendment (CPLR 305) and “relation back” (CPLR 203):

CPLR 305(c) authorizes the court, in its discretion, to “allow any summons or proof of service of a summons to be amended, if a substantial right of a party against whom the summons issued is not prejudiced” (CPLR 305[c]). Where the motion is to cure “a misnomer in the description of a party defendant,” it should be granted even after the statute of limitations has run where “(1) there is evidence that the correct defendant (misnamed in the original process) has in fact been properly served, and (2) the correct defendant would not be prejudiced by granting the amendment sought”…. CPLR 305(c) does not apply in this case, where the plaintiff’s mistake in failing to commence the action against Keyspan-Ravenswood within the statute of limitations period had nothing to do with the misnomer… . * * *

As codified in CPLR 203(c), “what is commonly referred to as the relation back doctrine allows a claim asserted against a defendant in an amended filing to relate back to claims previously asserted against a codefendant for Statute of Limitations purposes where the two defendants are united in interest’ (CPLR 203[b])” ….. For the rule allowing relation back to the original date of filing under CPLR 203(c) to apply, a plaintiff is required to prove that: “(1) both claims arose out of the same conduct, transaction, or occurrence, (2) the new party is united in interest with the original defendant, and by reason of that relationship can be charged with such notice of the institution of the action that the new party will not be prejudiced in maintaining its defense on the merits by the delayed, otherwise stale, commencement, and (3) the new party knew or should have known that, but for a mistake by the plaintiff as to the identity of the proper parties, the action would have been brought against that party as well” … .  Sally v Keyspan Energy Corp, 2013 NY Slip Op 03469, 2nd Dept, 5-15-13

 

 

 

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Hybrid Article 78 and Declaratory Judgment Proceeding Requires Separate Treatment of Both

In a hybrid proceeding— an Article 78 proceeding to review a Town Board’s stop work order for a quarry acting without a permit, and a related declaratory judgment action—the Second Department determined Supreme Court could not dismiss the declaratory judgment action as if it were part of the Article 78 proceeding.  The two actions must be treated as separate proceedings:

…[I]n the absence of a dispositive motion addressed to the causes of action which sought declaratory relief, the Supreme Court improperly, in effect, dismissed those causes of action …. In a hybrid proceeding and action, separate procedural rules apply to those causes of action which are asserted pursuant to CPLR article 78, on the one hand, and those which seek declaratory relief, on the other hand (see id. at 1008). “The Supreme Court may not employ the summary procedure applicable to a CPLR article 78 cause of action to dispose of causes of action to recover damages or seeking a declaratory judgment”…. “Thus, where no party makes a request for a summary determination of the causes of action which seek damages or declaratory relief, it is error for the Supreme Court to summarily dispose of those causes of action”…. Here, since no party made such a motion, the Supreme Court should not have summarily disposed of the causes of action which sought declaratory relief, and the matter must be remitted … .  Matter of Lake St Granite Quarry, Inc v Town/Village of Harrison, 2013 NY Slip Op 03487, 2nd Dept, 5-15-13

 

 

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Two Options to Recover on Note and Mortgage; One in Law (Note); One in Equity (Foreclosure)

In finding that CPLR 5236(b) did not apply in the case, the Second Department described the two options a mortgagee has with respect to recovery based on a note and mortgage:

CPLR 5236(b) provides, in relevant part, that “[r]eal property mortgaged shall not be sold pursuant to an execution issued upon a judgment recovered for all or part of the mortgage debt.” Typically, a mortgagee has the choice of “two remedies: one at law in a suit on the debt as evidenced by the note, the other in equity to foreclose the mortgage” …. A mortgagee who elects to proceed on the note becomes “subject to the statutory restrictions which direct that when a judgment is recovered for all or part of the mortgage debt, the execution shall direct that no part of the mortgage[d] property shall be levied upon or sold thereunder” (Goddard v Johnson, 96 Misc 2d 230, 231). Matter of Ivy Hill Commodities Corp v Beekharry, 2013 NY Slip Op 03483, 2nd Dept, 5-15-13

 

 

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Discovery Demands Overbroad

In affirming Supreme Court’s determination that petitioner’s discovery demands in a property tax assessment matter were overbroad, the Second Department wrote:

…[T]he document demands, even limited to those concerning tax years 2008/2009, 2010/2011, and 2011/2012, were of an overbroad and burdensome nature. Although CPLR 3101(a) provides for “full disclosure of all matter material and necessary in the prosecution or defense of an action,” unlimited disclosure is not required, and supervision of disclosure is generally left to the Supreme Court’s broad discretion… . While documents related to the actions of the Board of Assessment Review for the Town of Babylon are relevant to this hybrid proceeding and action alleging statutory and constitutional violations, the Supreme Court properly determined that the “sweeping demands” of the notice of discovery and inspection were overbroad and burdensome …. “Where discovery demands are overbroad, the appropriate remedy is to vacate the entire demand rather than to prune it'” … .  In the Matter of Greenfield v Board of Assessment Review…, 2013 NY Slip Op 03480, 2nd Dept, 5-15-13

 

 

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Lateness Not a Barrier to Motion to Amend Pleadings/Addition of Wrongful Death Cause of Action Allowed; No Prejudice to Defendant

The Second Department upheld Supreme Court’s grant of a motion to amend a complaint to add a cause of action for wrongful death “long after the action ha[d] been certified for trial…”.  The Second Department explained:

Although the plaintiff delayed in making the motion, ” [m]ere lateness is not a barrier to the amendment. It must be lateness coupled with significant prejudice to the other side'”…. Contrary to the defendants’ contentions, they did not demonstrate that they would be significantly prejudiced by the amendment. In light of the medical records of the plaintiff’s decedent, which documented multiple hospital admissions and her declining medical condition following the subject accident, along with the decedent’s deposition testimony regarding the aggravation of pre-existing medical conditions, the defendants cannot, under the circumstances of this case, claim to have been surprised by the amendment … . Moreover, the plaintiff offered a reasonable excuse for the delay, and to avoid any possible prejudice to the defendants, the Supreme Court granted them time to obtain further discovery … . Henry v MTA, 2013 NY Slip Op 03457, 2nd Dept, 5-15-13

 

 

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Criteria for Motion to Amend Pleadings/Motion for Additional Depositions

In this Labor Law action, the Second Department explained the factors to be considered in a motion to amend the pleadings, and the factors to be considered in a motion for additional depositions:

Applications for leave to amend pleadings should be freely granted except when the delay in seeking leave to amend would directly cause undue prejudice or surprise to the opposing party, or when the proposed amendment is palpably insufficient or patently devoid of merit (see CPLR 3025[b];…). The sufficiency or underlying merit of the proposed amendment is to be examined no further ….  * * *

The moving party that is seeking additional depositions has the burden of demonstrating “(1) that the representatives already deposed had insufficient knowledge, or were otherwise inadequate, and (2) there is a substantial likelihood that the persons sought for depositions possess information which is material and necessary to the prosecution of the case” …. Whether the defendant had the authority to supervise the means and methods of the work is material and relevant to the issue of liability in this case …. Gomez v State of New York, 2013 NY Slip Op 03455, 2nd Dept, 5-15-13

 

 

Motion to Vacate Default Based On Lack of Jurisdiction Need Not Demonstrate Reasonable Excuse Meritorious Defense

In finding Supreme Court should have held a hearing on whether defendant [Goldberger] was properly served with a complaint in a foreclosure action (in which the defendant did not appear), the Court noted that the fact defendant had unsuccessfully filed for bankruptcy after the judgment of foreclosure did not prevent him from contesting service of the foreclosure complaint.  The Court explained that where the motion to vacate a default judgment is based on a lack of personal jurisdiction, neither a reasonable excuse nor a meritorious defense need be demonstrated:

The Supreme Court erred in determining the motion without first conducting a hearing. Although the process server’s affidavit constituted prima facie evidence of proper service, Goldberger’s sworn claim that he did not reside at the subject premises, along with his submission of documentary evidence supporting that claim, was sufficient to rebut the prima facie showing, and to necessitate a hearing… . Contrary to the plaintiff’s contention, Goldberger is not judicially estopped from seeking vacatur of the judgment as a result of his filing of a bankruptcy petition. …Goldberger did not receive a favorable result in the bankruptcy proceeding by taking a position contrary to one he is taking in this action ….  …[A] party who moves to vacate a judgment entered on default on the ground of lack of personal jurisdiction is not required to demonstrate a reasonable excuse for the default or a potentially meritorious defense  … . Dime Sav Bank of Williamsburg v 146 Ross Realty, LLC, 2013 NY Slip Op 03451, 2nd Dept, 5-15-13

 

 

Objection to Verification of Answer Too Late 

The Second Department determined plaintiff waited too long before objecting to an insufficient verification in the answer:

A party must “give[ ] notice with due diligence” that he or she intends to treat a pleading as a nullity pursuant to CPLR 3022 on the ground that the pleading was served with an insufficient verification (CPLR 3022;…). Here, the plaintiff …waived any claim that the verification accompanying the answer of the defendant …was defective by waiting approximately eight months after the answer was filed to object to it (see CPLR 3022; …).   Cherubin Antiques, Inc v Matiash, 2013 NY Slip Op 03449, 2nd Dept, 5-15-13

 

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Pre-Deposition Motion to Dismiss in Rear-End Collision Case Not Premature

In reversing the denial of summary judgment to the plaintiff in a rear-end collision case, the Second Department determined the pre-deposition motion for summary judgment should not have been dismissed as premature:

The Supreme Court erred in concluding that the plaintiffs’ motion was premature. A party who contends that a summary judgment motion is premature is required to demonstrate that discovery might lead to relevant evidence or the facts essential to justify opposition to the motion were exclusively within the knowledge and control of the movant (see CPLR 3212[f]; … .The defendant’s contention that the plaintiffs’ motion was premature because the plaintiffs had not yet been deposed at the time the plaintiffs’ motion was filed did not establish what information the defendant hoped to discover at the plaintiffs’ depositions that would relieve him of liability in this case. “The mere hope or speculation that evidence sufficient to defeat a motion for summary judgment may be uncovered during the discovery process is insufficient to deny the motion” … .  Cajas-Romero v Ward, 2013 NY Slip Op 03446, 2nd Dept, 5-15-13

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