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Relation-Back” and “Savings Clause” Statutes Explained

The First Department discussed the difference between the relation-back doctrine of CPLR 203(f) and the savings clause of CPLR 205(a):

In a prior appeal in this action, we held that plaintiffs could not utilize the relation-back provisions in CPLR 203(f) to cure their defective initial complaint, based on their failure to comply with the subject agreements’ condition precedent to commencing an action against Impact, since the doctrine is dependent upon the existence of a valid preexisting action .. . However, on this appeal, we find that the savings clause of CPLR 205(a) does not bar plaintiffs’ action, since the statute was “created to serve in those cases in which the prior action was defective and so had to be dismissed” … . The dismissal of the prior action for plaintiffs’ failure to comply with a condition precedent was not a judgment on the merits …, and plaintiff commenced a new action within the six-month period required by CPLR 205(a).  Southern Wine & Spirits of Am, Inc v Impact Envtl Eng’g, PLLC, 2013 NY Slip Op o2i46, 9651, 650083/10, 1st Dept 3-28-13

 

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Judicial Hearing Officer Does Not Have Power to Find Non-Witness Guilty of Contempt

The First Department noted that a judicial hearing officer (JHO) does not have the power to find any person in contempt except a witness before him:

While CPLR 4311 and 4317(a) give a referee, upon consent of the parties, the power to hear and determine all trial issues before the court, CPLR 4301 specifically precludes a referee and, thus, a JHO from “adjudg[ing] any person except a witness before him guilty of contempt.” While [the JHO] had the power to make factual findings concerning violation of his orders, he was without power to adjudge persons in contempt because neither contempt finding involved behavior occurring before him … .  Hoffman v Helm Capital Group, Inc, 2013 NY Slip Op 02141, 603109/08, 9537A, 1st Dept 3-28-13

 

Excuse for Default Found Inadequate

The Second Department determined the motion court erred when it found defendant’s excuse for default in appearing or answering adequate:

While the determination of what constitutes a reasonable excuse lies within the sound discretion of the Supreme Court, a general assertion that the default was occasioned by the defendant’s insurance broker or liability carrier is insufficient … . Here, the defendant’s unsubstantiated claims that he believed that his insurance broker had forwarded the summons and complaint to his insurer and that his insurer was providing a defense are unreasonable given that the defendant was served with the plaintiff’s motion for leave to enter a default judgment … .   Spitzer v Landau, 2013 NY Slip Op 02067, 2012-05686, Index No 001868/11, 2nd Dept 3-27-13

 

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Defaulting Party Can Give Testimony and Present Evidence at Damages Proceeding 

The defendant’s answer in a partition action was struck due to his failure to comply with disclosure requests and court orders.  At the inquest the defendant was allowed to cross-examine plaintiff’s witnesses but was not allowed give testimony or offer proof in mitigation of the alleged damages.  The Second Department wrote:

[A] defendant whose answer is stricken as a result of a default admits all traversable allegations in the complaint, including the basic allegation of liability, but does not admit the plaintiff’s conclusion as to damages'” … . Indeed, where an entry of a default judgment against a defendant is made after an application to the court, the defendant is entitled to a ” full opportunity to cross-examine witnesses, give testimony and offer proof in mitigation of damages'” … .  Rawlings v Gillert, 2013 NY Slip Op 02063, 2011-11951, Index No 7570/08, 2nd Dept 3-27-13

 

Notice of Appearance Does Not Waive Lack of Jurisdiction Defense

The Second Department noted that filing a Notice of Appearance does not waive the lack of personal jurisdiction which can be raised in a motion to dismiss pursuant to CPLR 3211(a)(8) or as a defense in the answer pursuant to CPLR 3211.  Frederic v Israel, 2013 NY Slip Op 02049, 2012-03475, Index No 20290/06, 2nd Dept 3-27-13

 

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Criteria for Motions to Dismiss Pursuant to CPLR 3211 Discussed in Detail

In a full-fledged opinion by Justice Dickerson, the Second Department laid out the requirements for determining a motion to dismiss pursuant to CPLR 3211(a)(7), the elements of the theory of agency, the requirements for a judgment based on documentary evidence pursuant to CPLR 3211(a)(1), and the elements of a cause of action alleging breach of a fiduciary duty.  Faith Assembly v Titledge Of NY Abstract, LLC, 2013 NY Slip Op 02046, 2011-04345, Index No 28579/09, 2nd Dept 3-27-13

 

Plaintiff Could Not Demonstrate Valid “Nail and Mail” Service

The Second Department affirmed the trial court’s determination that plaintiff was unable to demonstrate the defendant had been validly served using the “nail and mail” method:

…[T]he Supreme Court properly granted that branch of the plaintiff’s motion which was to dismiss the complaint pursuant to CPLR. Where service is effected pursuant to CPLR 308(4), the so-called “nail and mail” method, the plaintiff must demonstrate that service pursuant to CPLR 308(1) or (2) (personal service or residence service) could not be made with ” due diligence'” … .This requirement must be ” strictly observed, given the reduced likelihood that a summons served pursuant to that section will be received'” … .

Here, the plaintiff produced the process server’s affidavit, which satisfied its prima facie burden regarding service. However, in her responsive affidavit, [defendant] rebutted that showing by stating specifically that (1) she was never personally served in this action, (2) she had never resided at the address where the process server attempted personal service and eventually affixed the papers, and (3) the summons and complaint were never affixed to the door of the subject premises where she had lived for more than 20 years. This showing was sufficient to warrant a hearing … .\At the hearing, the plaintiff failed to demonstrate that its process server made a genuine effort to determine [defendant’s] correct address or that he made “quality” efforts to serve her with process … . Aurora Loan Services, LLC v Gaines, et al, 2013 NY Slip Op 02034, 2011-04002, Index No 20180/08, 2nd Dept. 3-27-13

 

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Statute of Limitations to Reopen Tax Foreclosure Default Judgment Applies In Face of the Claim that Respondent Was Never Notified of the Proceeding

The Fourth Department determined the one month statute of limitations for a motion to reopen a default judgment of tax foreclosure applied even where the respondent asserts he or she was not notified of the proceeding:

We agree with petitioner, however, that respondent’s motion was untimely. “A motion to reopen a default judgment of tax foreclosure ‘may not be brought later than one month after entry of the judgment’ ” … . Here, the judgment of foreclosure was entered on March 31, 2010, and respondent did not move to vacate it until September 12, 2011, nearly 18 months after it was entered. Contrary to respondent’s contention, the statute of limitations set forth in RPTL 1131 applies even where, as here, the property owner asserts that he or she was not notified of the foreclosure proceeding … .  Matter of Foreclosure of Tax Liens …, 353. 12-01666, 4th Dept. 3-22-13

 

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Choice of Forum; Choice of Law

The Fourth Department determined a choice of forum clause must be enforced and noted the difference between choice of forum and choice of law:

Supreme Court properly granted defendant’s motion to dismiss the complaint pursuant to CPLR 3211 (a) (1). According to the “Standard Terms and Conditions” of the agreement …, “[a]ny litigation arising in any way from this Agreement shall be brought in the Courts of Common Pleas of Pennsylvania having jurisdiction.”  That forum selection clause is “ ‘prima facie valid and enforceable unless it is shown by the challenging party to be[, inter alia,] unreasonable, unjust, [or] in contravention of public policy’ ” … 

Contrary to plaintiff’s contention, the enforcement of the forum selection clause does not contravene New York public policy … .

The “Standard Terms and Conditions” also provide that “[t]he laws of the Commonwealth of Pennsylvania shall govern the validity of this Agreement, its interpretation and performance,” and plaintiff contends that the enforcement of the “limitation of legal liability” provision of the agreement pursuant to Pennsylvania law violates General Obligations Law §§ 5-322.1 and 5-324 and would thus contravene New York public policy. That contention, however, concerns choice of law, not choice of forum, and it may properly be raised before a court in the forum chosen by the parties in Pennsylvania … .“[O]bjections to a choice of law clause are not a warrant for failure to enforce a choice of forum clause” … .  Erie Insurance Company of New York, … v AE Design, Inc., 337, CA 12-01549, 4th Dept. 3-22-13

 

 

 

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Court’s Sua Sponte Transfer of a Zoning-Related Case to Another County Was Improper; The Denial of a Request for a Variance Does Not Affect Real Property within the Meaning of CPLR 507

The Fourth Department determined Supreme Court erred in transferring a case to another venue sua sponte and in determining that an action seeking to annul the denial of a variance affected real property within the meaning of CPLR 507:

Petitioner commenced this CPLR article 78 proceeding seeking to annul two determinations of respondent made in connection with petitioner’s application for an area variance from a provision of the Town of Whitestone’s Zoning Ordinance. The proceeding was commenced in Supreme Court, Onondaga County, and by …order …that court, sua sponte, transferred the proceeding to Supreme Court, Oneida County, pursuant to CPLR 507. We agree with petitioner that the court erred in transferring the proceeding sua sponte. CPLR 509 provides that the place of trial may be changed to another county “by order upon motion, or by consent.” CPLR 510 provides the grounds for the change of the place of trial, upon a motion. A court “is authorized to change venue only upon motion and may not do so upon its own initiative” …. Additionally, a CPLR article 78 proceeding seeking to annul a determination denying a request for an area variance does not affect the title to, or the possession, use or enjoyment of, real property, and thus the court erred in relying on CPLR 507 in transferring the proceeding.  Matter of Mimassi v Town of Whitestone Zoning Board of Appeals, 189, CA 12-01652, 4th Dept. 3-22-13

 

 

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